Rollins v. Alabama Community College System (814 F. Supp. 2d 1250, 2011)

MEMORANDUM OPINION

W. HAROLD ALBRITTON, Senior District Judge.

I. INTRODUCTION

This case is before the court on Motions for Summary Judgment (Doc. ## 117, 124, 130, 134, 137), filed by the Defendants on February 24, 2001.

Pamalon Rollins, Shemedrea Johnson, and Renoda Thomas originally filed a Complaint on May 29, 2009, in the Circuit Court for Montgomery County, against Alabama Community College System; H. Councill Trenholm State Technical College; Samuel Munnerlyn, individually and in his official capacity; Bradley Byrne, individually and in his official capacity; Alabama Department of Post-Secondary Education; State Board of Education; Governor Bob Riley, in his official capacity; Randy McKinney, in his official capacity; Betty Peters, in her official capacity; Stephanie W. Bell, in her official capacity; Dr. Ethel H. Hall, in her official capacity; Ella B. Bell, in her official capacity; David F. Byers, Jr., in his official capacity; Gary Warren, in his official capacity; and Dr. Mary Jane Caylor, in her official capacity. The Complaint was asserted on behalf of the individual plaintiffs and a class they sought to represent. The Complaint alleged violations of state law, but also violations of the Constitution and laws of the United States. The case was removed on the basis of federal question jurisdiction, and supplemental jurisdiction over the state law claims.

The Plaintiffs subsequently amended them Complaint on several occasions. The Fourth Amended Complaint (Doc. # 63) was filed on June 16, 2010, and brought claims on behalf of the original Plaintiffs, but also added Tamara Ward as a Plaintiff. Freida Hill, in her official capacity as Chancellor of the Alabama Department of Post^Secondary Education, was also substituted for Defendant Bradley Byrne in that capacity.

The Fourth Amended Complaint alleged a Class Action under Title VII of the Civil Rights Act of 1964, as amended (Count I); and brought claims for disparate treatment on the basis of gender in violation of Title VII (Count II); disparate impact on the basis of gender claims (Count III); class action damages (Count IV); violations of the Equal Pay Act (Count V); Equal Protection, pursuant to 42 U.S.C. § 1983 (Count VI); Title VII gender discrimination and § 1983 (Count VII) ; Title VII retaliation (Rollins) (Count VIII) ; Title VII and § 1983 gender discrimination (Johnson) (Count IX); Title VII retaliation (Johnson) (Count X); Title VII gender discrimination and § 1983 (Thomas) (Count XI); Title VII retaliation (Thomas) (Count XII); Title VII gender discrimination and § 1983 (Ward) (Count XIII); Title VII and § 1983 retaliation (Ward) (Count XIV); and violation of policy and state statutes (Count XV). Count VI is the only Count which includes claims against the individual defendants, and all of those were sued in their official capacities. Only Munnerlyn and Byrne were also sued in their individual capacities.

The court subsequently denied a Motion for Class Certification by the Plaintiffs (Doc. # 107). The court also disposed of some aspects of the Motion for Partial Summary Judgment (Doe. # 134), dismissing money damages claims against individual Defendants in their official capacity, and substituting Governor Robert Bentley for former Governor Bob Riley. Doc. # 189. This left money damages claims outstanding only against Munnerlyn and Byrne in their individual capacities. The court also granted a Motion to Strike Evidentiary Materials in some respects, and denied that Motion in other respects. See Doc. # 185.

The Defendants have filed separate motions for summary judgment as to the claims of each Plaintiff. While the-filings are voluminous, and necessitate extensive discussion by the court as to each motion, because there is overlap in some of the claims, particularly regarding legal standards to be applied, the court has addressed all of the motions in one Memorandum Opinion and Order.

For the reasons to be discussed, the Defendants’ motions are due to be GRANTED in part and DENIED in part, and the court will decline to exercise supplemental jurisdiction over the state law claims.

II. SUMMARY JUDGMENT STANDARD

Summary judgment is proper “if there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The party asking for summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion,” relying on submissions “which it believes demonstrate the absence of a genuine issue of material fact.” Id. at 323, 106 S.Ct. 2548. Once the moving party has met its burden, the nonmoving party must “go beyond the pleadings” and show that there is a genuine issue for trial. Id. at 324, 106 S.Ct. 2548.

Both the party “asserting that a fact cannot be,” and a party asserting that a fact is genuinely disputed, must support their assertions by “citing to particular parts of materials in the record,” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(A), (B). Acceptable materials under Rule 56(c)(1)(A) include “depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.”

To avoid summary judgment, the non-moving party “must do more than show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). On the other hand, the evidence of the nonmovant must be believed and all justifiable inferences must be drawn in its favor. See Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

After the nonmoving party has responded to the motion for summary judgment, the court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).

The summary judgment rule is to be applied in employment discrimination eases as in any other case. Chapman v. AI Transport, 229 F.3d 1012, 1026 (11th Cir.2000)(en banc).

III. FACTS

The submissions of the parties establish the following facts, construed in a light most favorable to the nonmovants:

All of the Plaintiffs are employees of H. Councill Trenholm State Technical College (“Trenholm”). The Defendants in this case include, in addition to Trenholm, the Alabama Community College System (“ACCS”), the Alabama Department of Posb-Secondary Education, and the State Board of Education. There are twenty-nine colleges within the ACCS, one of which is Trenholm. The State Board of Education is the governing board for all of the ACCS colleges. The Department of PosWSecondary Education is responsible to the State Board of Education for supervision of two-year community and technical colleges. Other Defendants in this case include the President of Trenholm, Samuel Munnerlyn (“Munnerlyn”) in his official and individual capacities; Bradley Byrne, in his individual capacity; and Randy McKinney, Betty Peters, Stephanie W. Bell, Dr. Ethel H. Hall, Ella B. Bell, David F. Byers, Jr., Gary Warren, and Dr. Mary Jane Caylor, in their official capacities as members of the State Board of Education. Robert Bentley has been sued in his official capacity as Governor. Freída Hill has been sued in her official capacity as Chancellor. Doc. # 189.

All of the Plaintiffs have asserted claims based on the salaries they receive as compared to male employees at Trenholm. The President determines the initial placement of employees on the salary schedules, and makes requests for salary increases, and submits the requests to the Chancellor and the Alabama Department of Post-Secondary Education. During the events in question in this ease, Trenholm was served by two different Presidents: Anthony Molina (“Molina”), who passed away in April 2007, and Samuel Munnerlyn (“Munnerlyn”). Bradley Byrne was the Chancellor during the relevant period. The Chancellor has the authority to reject any salary request or request to reorganize an employee’s job position.

Trenholm has the following classifications of employees: Salary Schedule A— President, Salary Schedule B — Deans and Business Officers, Salary Schedule C— professional personnel not included in other schedules, Salary Schedule D — teachers, Salary Schedule E — technical and support personnel not included in other schedules, and Salary Schedule H — support personnel working twenty or more but less than forty hours per week.

The C Salary Schedule has C-l, C-2, and C-3 classifications. The C-l and C-2 Salary Schedules, as well as the D and E Salary Schedules, provide for step increases. At relevant points in this litigation, the C-3 classification did not provide for step increases, but as a result of settlement of separate litigation, Carolyn Millender v. H. Councill Trenholm State Technical Coll., et al., 2:07-cv-00145 (M.D.Ala.), Trenholm implemented C-3 Salary Schedule Guidelines establishing pay steps for future salary increase. When Trenholm implemented the C-3 Salary Schedule Guidelines, each existing C-3 employee was placed at a specific salary step based on length of service at Trenholm. Doc. # 89-4. The Plaintiffs contend that the failure of the new C3 schedule to account for prior education experience is a violation of state law.

The Plaintiffs point out that African-American employees have previously brought litigation against various colleges which was resolved by consent decree in Shuford v. Ala. State Bd. of Edu., 897 F.Supp. 1535 (M.D.Ala.1995). Some of the job duties of the Plaintiffs, and their proffered comparators, include compliance with that consent decree.

Facts Specific to Plaintiff Thomas

Thomas was hired by Trenholm in August 2002, while Molina was President, as the Accounts Receivables Clerk. She was placed on the E3-03 Salary Schedule and was making $35, 953 at that time. Two weeks after being hired as Accounts Receivables Clerk, Thomas also assumed the duties of the Accounts Payable position, but did not receive a pay increase. In June 2003, the Payroll Clerk retired, and Thomas also assumed the duties of Payroll Clerk.

In August 2004, Thomas’s job title was changed to Accountant/Payroll and Personnel. Thomas states that in her position she is responsible for compliance with state policies, she manages accounting of payroll and benefits, she prepares monthly internal and external reports, she provides staff with tax and benefit changes, she serves as backup to accounts payables, receivables, bookstores and human resources. She assists external auditors and serves as a liaison. She reconciles payroll ledger on a monthly basis and prepares and reconciles quarterly reports. She is also responsible for reconciling and preparing employee W-2s for disbursements and attends training and professional development workshops. PI. Ex. # 86, ¶ 3.

In February 2007, Thomas asked Molina to reorganize her position and advance her from the E-2 to the E-l at step 17. Molina passed away. Thomas renewed her request with interim president Munnerlyn. Munnerlyn declined her request because he was interim, and did not recommend the requested reorganization later when he became President.

In 2008, Thomas was approached by her supervisor, Catherine Wright, about an Operations Accountant position. Thomas was told the position paid $54,830 and was at El 01 on the Salary Schedule. Thomas was not interested in the position. Her supervisor asked the head of the department, Dean of Finance Debra Griggs (“Griggs”), to see if more money was available, but was told that $54,830.00 was budgeted for the position.

In December 2008, William Merrill was hired as the Operations Accountant at $70,000. When asked in his deposition why Merrill was paid $70,000, Munnerlyn stated that Merrill was a CPA, had other certifications and “[w]e needed some other — a male would be nice to have in the business office.” PI. Ex. # 8, p. 277:11-16.

Thomas states that after she complained about gender discrimination verbally and in writing prior to 2007, and in February 2007, May 2007, September 2007, a March 2008 grievance which was later withdrawn, an April 22, 2009 EEOC charge, she has been subjected to retaliation in the terms and conditions of her employment.

Facts Specific to Plaintiff Rollins

Pamalon Rollins (“Rollins”) currently serves as the Human Resources Director at Trenholm.

In 2004, Rollins applied for and received the Administrative Services Manager position at Trenholm. At that time she was placed on the C-3 Salary Schedule. The C Salary Schedule is for Professional Personnel. The President of Trenholm at the time of Rollins’s hire was Molina. Molina attached conditions to the offer of employment to Rollins, requiring her to obtain a Master’s degree in Human Resources Management within three years of her hiring date. Rollins accepted the offer of employment with the condition. At the time she was hired in 2004, Rollins earned a salary of $40,000. Over time, Rollins received a change in pay from the Defendants on one occasion in 2007, noted below, and legislative pay raises.

Rollins states that she later discovered that men employed at Trenholm have not had to comply with a condition of a Master’s Degree for their employment. She specifically points to Charles Harris, Dennis Monroe, Larry Achord, Gerald Horn, Michael Evans, and Quinton Ross.

In 2005, Rollins’s position was re-titled Director of Human Resources. Her position summary states that she is responsible for the daily operations of administrative services.

In 2006, Rollins requested a reorganization of her position and that her position be advanced from the C-3 Salary Schedule to the C-2 Salary Schedule. Molina denied this request, citing budget concerns.

Rollins obtained her Master’s degree in Human Resources Management in May 2007. She did not receive a pay increase for completing this degree. Rollins states that male employees have received pay increases when they have completed degrees.

In mid-2007, Rollins requested a reorganization of her position and pay increase. Byrne met with Rollins and asked Latonya Dupree, Human Resource Director of the Department of Post-Secondary Education, to review Human Resource Director salaries and make a recommendation to him. Rollins states that the salary survey conducted by Latonya Dupree was flawed in many ways. After Byrne received the salary survey, Byrne agreed to increase Rollins’s salary from $51,360 to $55,360. Rollins states that she was underpaid by almost $20,000 because the salary survey was flawed.

In June of 2008, Rollins again requested a reorganization and pay increase, seeking to have her position moved from the C-3 schedule to the C-2 schedule. She asked that her salary be increased from $55,360 to $77,000. Munnerlyn was President of Trenholm at the time of this request. Munnerlyn recommended her request. On August 5, 2008, then-Chancellor of the Alabama Department of Post-Secondary Education, Byrne, denied the reorganization request.

On August 27, 2008 Rollins filled EEOC charges of gender discrimination. Rollins states that Munnerlyn retaliated against Rollins for protected activities through various actions.

Facts Specific to Plaintiff Tamara Ward

Tamara Ward (“Ward”) worked as an Adjunct Instructor for approximately 8 years before she was made a full time Instructor at Trenholm. She was made a full time instructor in May of 2004, and placed on the D-l Salary Schedule at Grade 1A, Step 1 at a salary of $33,092.00. Ward is licensed through the Alabama Board of Cosmetology as a certified Cosmetology Instructor and a Managing Cosmetologist. Before being employed at Trenholm, Ward was a Salon Inspector for the Alabama Board of Cosmetology, in charge of inspecting salons in a 10 to thirteen-county region.

The D Salary Schedule applies to instructors, librarians, and counselors. The D Salary Schedule has steps, and advancement in steps is based upon years completed.

In 2005, Ward was told that she would be entitled to advancement if she received her Master’s degree. Ward obtained a Master’s degree in Management from Troy University. She submitted a request for advancement on October 4, 2007. Ward was informed by Munnerlyn that she had to take and pass an NOCTI occupational exam to receive an advancement in rank. Ward contends that the NOCTI exam had never been required previously. Ward passed the exam in December 2008 and provided the documentation to the Defendants on March 5, 2009. The Defendants informed her that she had to wait for the following calendar year to receive her raise.

Ward filed an EEOC charge of gender discrimination on July 6, 2009. The court granted a motion to add Ward as a Plaintiff in this case on April 8, 2010. See Doc. # 56. Ward alleges various actions have been taken against her in retaliation for protected activities.

Facts Specific to Plaintiff Shemedrea Johnson

Shemedrea Johnson (“Johnson”) began working at Trenholm in 2001 as the Director of Restricted Programs. When Johnson applied, the job posting indicated that the position would be paid on the C-2 Salary Schedule. The C-2 schedule applies to jobs with a high level of administrative responsibilities. The C-2 schedule pays more than the C-3 schedule. After Johnson met with Molina for an interview, she was told that the position would be on the C-3 Salary Schedule.

As the Director of Restricted Programs, Johnson has oversight over all grants and contracts. In December 2006 or January 2007, Mary Ann Beck resigned her position as Director of Accounting. The business department was headed by the Griggs. Directly below Griggs were Beck, Rollins, and Dennis Monroe, Director of Physical Plant. Thomas and other employees reported to the Director of Accounting.

Johnson assumed Beck’s duties. Administrative Assistant Daisy Taylor resigned, and Johnson also assumed her duties.

Around August 2007, Griggs was terminated. Johnson assumed those job duties and was given a $1,000 stipend. Griggs returned one month later.

On June 20, 2007, Johnson asked then-interim President Munnerlyn to be placed on the C-2 Salary Schedule. Munnerlyn agreed and requested the change. Byrne denied the request. Byrne stated that he felt the decision should be made by a permanent president. Munnerlyn told Johnson he would make a new request when he became President. Munnerlyn was confirmed as President in December 2007.

On January 16, 2008, Johnson asked Munnerlyn to place her on the C-2 Salary Schedule. She made the same request on May 5, 2008. She was not placed on the C-2 schedule.

When Trenholm implemented its C-3 Salary Schedule in 2008, Johnson was placed at step 7, based on one year of salary credit for each year of employment at Trenholm.

On July 30, 2008, Johnson filed an EEOC Charge of gender discrimination. She alleges that various adverse acts taken against her in retaliation for her EEOC Charge and other complaints.

IV. DISCUSSION

As indicated, the court will address each of the Plaintiffs’ claims separately with respect to the statute pursuant to which they are asserted, but there are some issues which are common to all of the Plaintiffs. The court first turns to a few of those preliminary issues which the Plaintiffs have in common.

A. Preliminary Issues

1. Direct v. Circumstantial Evidence Analysis

All of the Plaintiffs have argued that they have a direct evidence case of discrimination in employment on the basis of their gender, and direct evidence of retaliation. In large part, this argument is based on Munnerlyn’s deposition testimony, noted above. The cited testimony, and the question precipitating it, are as follows:

Q. Was that based on the fact that Mr. Billy — why was Mr. Billy Merrill paid $70,000?

A. I had three candidates to interview. I interviewed all three candidates. Billy Merrill came out on top because of his interview, because he’s a certified CPA. He has several other certifications. And I thought that he was someone we needed in our business office. And you asked me earlier. We needed some other — a male would be nice to have in the business office.

Munnerlyn Dep., PI. #8, p. 277:4-16. This testimony was given in connection with a position for which Merrill was hired and for which Thomas argues she would have applied had she known that the salary would be $70,000, rather than the $54,000 figure represented to her.

The Defendants argue that this statement must be considered in the context of Munnerlyn’s other deposition testimony, particularly because it is prefaced with “[a]nd you asked me earlier.” Id. at 277:13-14. The Defendants point out that Munnerlyn testified that he is aware of the need for diversity because Trenholm is a historically black college, but that he hires based on who can do the work. Id. at 139-140. They argue that taken in that context it is clear that Munnerlyn based his decision on qualification of the candidate and ability to do the job. The Defendants go on to argue that even if the court does not consider Munnerlyn’s statement in context, the statement does not rise to the level of direct evidence.

The Eleventh Circuit has held that “[djirect evidence is evidence that establishes the existence of discriminatory intent behind the employment decision without any inference or presumption. Therefore, remarks by non-decision makers or remarks unrelated to the decision making process itself are not direct evidence of discrimination.” Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir.1998) (citations omitted). “[Djirect evidence relates to actions or statements of an employer reflecting a discriminatory or retaliatory attitude correlating to the discrimination or retaliation complained of by the employee.” Carter v. Three Springs Residential Treatment, 132 F.3d 635, 641 (11th Cir.1998). If the alleged statement suggests, but does not prove, a discriminatory motive, then it is circumstantial evidence. Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir.2004).

The Defendants point the court to Harris v. Shelby County Bd. of Ed., 99 F.3d 1078, 1082-83 n. 2 (11th Cir.1996). In Harris, the personnel director was asked in her deposition whether the decision maker had discussed the hiring of the plaintiff. The personnel director answered that the decision maker said “that under the circumstances we did not need to employ a black at Thompson High School.” Id. at 1082-83 n. 2. The personnel director then went on to say that he could not say for a fact that that would eliminate the plaintiff from the position because the personnel director “did not know [the decision maker’s] thinking.” Id. The Eleventh Circuit concluded that this was circumstantial, but not direct evidence, of discrimination.

In this case, Munnerlyn was specifically asked why he set the salary for Billy Merrill at a certain level. As set forth above, he answered that it was because Billy Merrill was the best qualified of three candidates, and that it would be nice to have a male in the business office.

First, clearly Munnerlyn’s statement is not direct evidence of discrimination as to any claims by Rollins, Ward, or Johnson, who did not apply for the position for which Merrill was hired. Standard v. A.B.E.L. Services, Inc. 161 F.3d 1318, 1330-31 (11th Cir.1998) (stating that remarks by non-decision makers or remarks unrelated to the decision making process itself are not direct evidence of discrimination). His statement is furthermore not evidence of retaliation as to any Plaintiff because it is not evidence of a retaliatory intent. Id.

Thomas’s claim for failure to promote presents a closer question. The claim asserted by Thomas is not a traditional failure to promote claim. Thomas claims that Merrill was appointed to a position at a salary of $70,000 after she had been told that the position would pay $54,830. Thomas has explained that had she known what the position would pay, she would have applied for it. She claims that the salary was increased because Merrill is a man. To understand that Munnerlyn’s statement relates to Thomas’s theory, therefore, the court would have to infer that Thomas was told a different salary than the one ultimately offered because Munnerlyn wanted a male in the business office. The court concludes, therefore, that while Munnerlyn’s statement constitutes some evidence of gender-based discriminatory intent, it is not direct evidence with respect to Thomas’s claim. Wilson, 376 F.3d at 1086.

Plaintiff Johnson, in addition to relying on Munnerlyn’s statement, also notes that she was told by her supervisor, Griggs, that Trenholm discriminates against women and that Munnerlyn had no intention of raising her salary to correct her being underpaid compared to males. The court has examined the evidentiary basis for this argument by Johnson. In her deposition Johnson states that Griggs told her that Trenholm pays females lower than males and that Griggs felt she is being discriminated against because she is female. PI. Ex. # 38 at p. 114: 3-12. In her affidavit, Johnson states that Griggs said that Munnerlyn “is planning to not be truthful about telling you and Pam that he is moving you two to salary schedule C-2.” PI. Ex. # 87 at ¶ 16. Even if the court were to consider these statements, in the face of the Defendants’ hearsay objections, neither one of these statements is by a decision maker about an employment decision. See Standard, 161 F.3d at 1330. The statements may not even constitute stray remarks of discriminatory intent, but may in fact be more correctly characterized as an opinion by a person other than a decision maker. In any event, the court cannot conclude that these statements establish “the existence of discriminatory intent behind the employment decision without any inference or presumption.” Id.

Plaintiff Johnson also points to an additional statement as direct evidence of retaliation. In her affidavit, Johnson states that her supervisor, Griggs, said that she would be glad when the lawsuits are over because it is wasting the school’s money. See PI. Ex. # 87 at ¶ 16. That statement does not, however, meet the standard of direct evidence of retaliation. Id.

Thomas also alludes to a statement by Munnerlyn, objected to by the Defendants as triple hearsay, that complainants were “whining.” That statement, however, if admissible, also is not directly related to any employment decision and cannot be direct evidence. Id.

Having concluded that the evidence pointed to by the Plaintiffs as direct evidence of gender animus and retaliatory animus does not rise to the level of direct evidence, the court will analyze the Title VII and Equal Protection disparate treatment claims, see Stallworth v. Shuler, 111 F.2d 1431, 1433 (11th Cir.1985) (Title VII disparate treatment and § 1983 claims are governed by the same legal analysis), and Title VII retaliation claims, Watkins v. Bowden, 105 F.3d 1344, 1344 (11th Cir.1997), under the traditional McDonnell Douglas framework which applies to circumstantial evidence of discrimination and retaliation cases.

Under this framework, the plaintiff must establish a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). After the plaintiff has established a prima facie case of discrimination, the burden of production is placed upon the employer to articulate a legitimate nondiscriminatory reason for its employment action. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The plaintiff may seek to demonstrate that the proffered reason was not the true reason for the employment decision “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” Id. at 256, 101 S.Ct. 1089; Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir.1997).

2. Disparate Treatment Prima Facie Case Elements

Before the court addresses individual claims, there is a threshold issue which applies to the prima facie cases of the Title VII and Equal Protection disparate treatment claims; namely, the degree of similarity which must be shown between a plaintiff and a comparator to establish a prima facie case of discrimination.

The parties have advanced extensive arguments regarding the prima facie case element calling for a comparison between the job duties of the complainant and the comparator. The Defendants contend that the Plaintiffs must show that a comparator is nearly identical to the Plaintiff for all of the disparate treatment claims. The Defendants cite, among other cases, Johnson v. England, 350 Fed.Appx. 314, 317 (11th Cir.2009) (citing Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir.2004)).

The analysis of individual claims in this case already requires voluminous discussion, so the court is loath to engage in an involved discussion of this issue. It appears, however, that a stricter standard of comparison has developed in two types of employment claims, Equal Pay Act claims and violation of work rules claims.

Under the Equal Pay Act, the Plaintiff must show that the employer pays different wages to employees of opposite sexes for equal work on jobs the performance of which requires equal skill, effort, and responsibility and which are performed under similar working conditions. See Beavers v. Am. Cast Iron Pipe Co., 975 F.2d 792, 795 (11th Cir.1992). The Equal Pay Act requires a plaintiff to meet a “fairly strict” burden of proving she did “substantially similar” work for less pay. Id. If she can do so, the burden shifts to the defendant to prove an affirmative defense. By contrast, Title VII requires a plaintiff to show a more “relaxed standard of similarity” between the jobs, but the burden never shifts to the defendant. Id.', Alexander v. Chattahoochee Valley Community College, 325 F.Supp.2d 1274, 1293 (M.D.Ala.2004). The Eleventh Circuit has held that “Title VII incorporates a more relaxed standard of similarity between male and female-occupied jobs, thus plaintiff is not required to meet the exacting standard of substantial equality of positions set forth in the Equal Pay Act.” Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1529 (11th Cir.1992). Under Eleventh Circuit law, therefore, the standard for comparators for an Equal Pay Act claim is greater than that for a Title VII claim. Because the standard of review under the Equal Protection Clause is the same as that under Title VII, Cross v. State of Alabama, 49 F.3d 1490, 1507-08 (11th Cir.1995), the Equal Pay Act claim comparator standard is also greater than an Equal Protection comparator standard.

The other line of case law with a more stringent comparator standard has developed in the context of termination or disparate treatment based upon violation of work rules cases, wherein the court must “evaluate ‘whether the employees are involved in or accused of the same or similar conduct and are disciplined in different ways.’ ” Burke-Fowler v. Orange County, Fla., 447 F.3d 1319, 1323 (11th Cir.2006).

The Eleventh Circuit’s Wilson v. B/E Aerospace, Inc., 376 F.3d 1079 (11th Cir.2004) seems to have created some confusion because it broadly stated that to prove disparate treatment, a plaintiff must show that a possible comparator is similarly situated in all relevant respect and is nearly identical to the plaintiff. Wilson, 376 F.3d at 1087. That statement was, however, made in the context of evaluating a claim for termination where the employee had been terminated for insubordination. Id. at 1085; see also White v. ThyssenKrupp Steel USA, LLC, 743 F.Supp.2d 1340, 1348 n. 12 (S.D.Ala.2010) (stating “Wilson, however, involved an employee terminated for misconduct, ... and the Eleventh Circuit has long used the ‘nearly identical’ test in that narrow context.”). It is not at all clear, therefore, that Wilson intended to set a comparator standard for other types of disparate treatment claims not involving violation of work rules. Since Wilson was decided, however, as the Defendants have pointed out, there have been unpublished Eleventh Circuit cases which cite to the strict comparator standard in the context of other claims, such as pay claims. See, e.g., Hill v. Emory Univ., 346 Fed.Appx. 390 (11th Cir.2009), cert. denied, — U.S. —, 130 S.Ct. 1737, 176 L.Ed.2d 212 (2010). In addressing the various claims presented in this case, particularly the pay claims, the court will bear in mind the different formulations of the prima facie case.

The court also notes that under the Wilson formulation, if “a plaintiff fails to show the existence of a similarly situated employee, summary judgment is appropriate where no other evidence of discrimination is present.” Wilson, 376 F.3d at 1092 (citing Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997)) (emphasis in original).

3. Statute of Limitations

At various points, the Plaintiffs have argued that a four-year statute of limitations governs their § 1983 claims. The case cited by the Plaintiffs for this proposition, Jones v. RR Donnelley & Sons Co., 541 U.S. 369, 371, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004), held that a four year statute of limitations applies to a cause of action based solely on a posU-1990 statute that establishes a new cause of action. Id. at 383, 124 S.Ct. 1836. The § 1983 claims in this case are for violations of the Equal Protection Clause, not a post-1990 statute. The Plaintiffs argued that their § 1983 claims have a four-year statute of limitations because they are § 1981 claims. As noted above, however, while 42 U.S.C. § 1981 is referred to in the Fourth Amended Complaint, and referred to by both parties at various points in their briefs, all of the claims asserted by the Plaintiffs are for gender discrimination or retaliation based on claims of gender discrimination. See Doc. # 63. Only claims of race discrimination, and not claims of gender discrimination, are cognizable under § 1981. See, e.g., Runyon v. McCrary, 427 U.S. 160, 167, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976). Therefore, the only § 1983 claims are gender discrimination claims under the Equal Protection Clause, which have a two-year statute of limitations. See Baker v. Birmingham Bd. of Educ., 531 F.3d 1336, 1337 (11th Cir.2008); Jones v. Preuit & Mauldin, 876 F.2d 1480, 1483 (11th Cir.1989).

4. Qualified Immunity

Qualified immunity is a protection designed to allow government officials to avoid the expense and disruption of trial. Ansley v. Heinrich, 925 F.2d 1339, 1345 (11th Cir.1991). Once it is established that a defendant was acting within his discretionary authority, the court must determine whether “[tjaken in a light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). “[I]f a constitutional right would have been violated under the plaintiffs version of the facts,” the court must then determine “whether the right was clearly established.” Wood v. Kesler, 323 F.3d 872, 878 (11th Cir.2003).

Requiring that a constitutional right be clearly established means that liability only attaches if “[t]he contours of the right [violated are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” United States v. Lanier, 520 U.S. 259, 270, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997). In other words, a defendant is entitled to “fair warning” that his conduct deprived his victim of a constitutional right. Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002).

The Defendants have asserted qualified immunity as a defense to the claims in Count VI of the Fourth Amended Complaint against Munnerlyn and Byrne in them individual capacities.

B. Title VII disparate treatment and § 1983 Equal Protection Claims

Each of the Plaintiffs have asserted Title VII disparate treatment and § 1983 Equal Protection claims as to which the Defendants have moved for summary judgment. The court will address together each of the Plaintiffs’ claims arranged by type of claim, beginning with claims for failure to promote, then addressing pay claims, and then other terms and conditions claims.

Before turning to the individual claims of the Plaintiffs, the court notes that the characterization of the Plaintiffs’ claims sometimes has posed difficulty. This is particularly true with respect to the Plaintiffs’ failure to promote and wage claims because, with the exception of Plaintiff Thomas, the Plaintiffs are not asserting traditional failure to promote to a different position claims, but are instead contending that their positions should have been increased to a higher wage level. If the characterization makes a difference, for example in terms of limitations period, the court has characterized the claims in the light most favorable to the non-movant. At no point has the court intended to preclude any Plaintiff from proceeding on all theories timely advanced.

1. Failure to Promote

To establish a failure to promote claim, a plaintiff must show (1) that she belongs to a protected class, (2) that she applied for and was qualified for a promotion, (3) that she was rejected despite her qualifications, (4) that other equally or less qualified persons outside of the class were promoted. Brown v. Ala. Dep’t. of Transp., 597 F.3d 1160, 1174 (11th Cir.2010). The comparators for the fourth prong must be “similarly situated in all relevant respects.” Id. (quoting Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997)). The court turns now to each of the claims for failure to promote asserted pursuant to Title VII and the Equal Protection Clause. See Abel v. Dubberly, 210 F.3d 1334, 1338 (11th Cir.2000) (applying the same analysis to Title VII and Equal Protection claims based on the same facts).

a. Thomas’s Failure to Promote Claim

Thomas’s claim is for failure to promote to the Operations Accountant position ultimately filled by Billy Merrill. Thomas has claimed that she was effectively denied a promotion because the Defendants misrepresented the salary which would be paid in an attempt to dissuade her from applying, and ultimately hired a man to perform the job at a much higher salary than that offered to Thomas. Thomas states in her brief that she was offered the Operations Accountant job at a salary of $54,830, but informed Munnerlyn that she did not want the position because the salary was lower than her current salary. She argues that Munnerlyn continued to represent to her that the pay would not be higher than $54,830, but then hired Merrill at $70,000.

The Defendants contend that they are entitled to summary judgment on Thomas’s failure to promote claim because Thomas did not apply for the position and she was not qualified for the position which was ultimately filled. The Defendants’ challenge to Thomas’s ability to establish a prima facie case is based on two basic premises: one, that the evidence does not support the argument that Thomas was dissuaded from applying by the representation of the salary, and two, that the job ultimately filled by Merrill was not the same job initially offered to Thomas.

The Defendants state that according to her deposition, Thomas did not apply for the position because of the additional duties, not the salary. The Defendants state that Thomas initially claimed that she turned down the position because the salary was lower, but then admitted in her deposition that she knew she would be able to earn overtime in the new position. The Defendants argue that when confronted with this information in her deposition, Thomas admitted that she did not apply for the position because of the duties. The Defendants have urged the court to find that Thomas’s contradictory affidavit testimony is a sham, and due to be stricken under Van T. Junkins and Associates, Inc. v. U.S. Indust., Inc., 736 F.2d 656, 657 (11th Cir.1984).

Even without considering Thomas’s affidavit, the court finds that there is a question of fact, based solely on her deposition testimony, and the testimony of Munnerlyn, and a reasonable jury could conclude that Thomas chose not to apply for the Operations Accountant position because of the salary as represented by Munnerlyn. Thomas states in her deposition that she wrote Griggs a letter when she heard that the Defendants were going to hire an operations accountant and told her that she would be a good fit for the position. PL Ex. # 51 at p. 74: 13-20. She states that initially the position was not advertised, but when it was advertised, she did not apply for it because she was assured that the position would not pay more than what her current salary was at the time. Id. at p. 77: 8-19. When asked whether she had the opportunity to apply for the position once it was advertised as a C salary position, Thomas answered that she did have the opportunity to apply, but did not “[b]e-cause of the salary.” Id. at p. 83: 7. Munnerlyn also stated that when the job was advertised on the C schedule, there was no indication of specific amount the job would pay. PI. Ex. # 8 at p. 276: 1-4. He stated that prior to Merrill being hired at $70,000, no one knew the position would pay more than $55,000. Id. at p. 281: 9-14. Thomas states in her deposition that after the position was advertised as a C-3 salary position, she asked Munnerlyn again how much the position paid and he “assured me that it was only going to pay fifty-four eight thirty.” PI. Ex. # 51 at p. 72: 20-73:4. Munnerlyn testified that Thomas told him that she was not going to accept the position because she could make more in overtime. PL Ex. # 8 at p. 272: 10-13. He further stated that he understood that “she did not want the job at that pay.” Id. at 273: 20-21. Regardless of the factor that the possibility for overtime played a part in her consideration, Thomas has presented sufficient evidence through deposition testimony to create a question of fact as to whether she did not apply because of the salary represented to her by Munnerlyn.

“The ‘application’ requirement is designed to prevent imposition of civil rights liability on an employer for lacking sufficient clairvoyance and omniscience to divine an employee’s unarticulated desire for a vacant job.” Garrison v. Travel Centers of America, No. 4-429-WS, 2005 WL 1711884, at *11 (S.D.Ala. July 20, 2005). There are circumstances, however, under which the application requirement is not strictly applied. For instance, if a position is not posted, an employer has a duty to consider all those who reasonably might be interested in a promotion, as well as those who heard of the opening and expressed an interest. Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1133-34 (11th Cir.1984). Clearly, Thomas met this burden with respect to the original Operations Accountant position before it was advertised.

Under the circumstances of this case, the court concludes that there is at least a question of fact which excuses Thomas’s application requirement for the position even once it was advertised. See Lockridge v. Board of Trustees of University of Arkansas, 315 F.3d 1005, 1011 (8th Cir.2003) (plaintiff who does not formally apply “must make every reasonable attempt to convey his or her interest in the job to the employer before he or she may prevail on a discrimination claim”). Thomas’s testimony is that after the position was advertised, she inquired about the salary from Munnerlyn and was told that the salary would be at the level which he understood she did not find acceptable. Munnerlyn has stated that he knew she did not want the position at that salary. PL Ex. # 8 at p. 273: 20-21. The court concludes, therefore, that viewing the evidence in a light most favorable to the non-movant, Thomas adequately expressed interest in the position, but made it clear she was not interested in the position if it paid the salary which had been represented to her by Munnerlyn. See Stubblefield v. Trinity Industries, Inc., 961 F.Supp. 1553, 1558 (M.D.Ala.1997) (stating “the Plaintiffs have at least created an issue of fact as to whether they were precluded from applying for positions by Trinity’s actions.”) (citing Taylor v. Hudson Pulp and Paper Corp. 788 F.2d 1455 (11th Cir.1986)). Viewed in a light most favorable to the non-movant, the court concludes that the evidence creates sufficient issues of fact so that the fact that Thomas did not apply for the position does not defeat her prima facie case.

The Defendants also argue that the position ultimately given to Merrill was not the same position offered to Thomas because changes were made in the position over time, and a new advertisement was made, with new applications each time. In response to the Defendants’ argument that there was a change in the position, which appears to be an argument both that Thomas did not apply for the new position and that she was not qualified for the position, Thomas points to Munnerlyn’s deposition testimony.

Munnerlyn testified that there was an Operations Accountant Position advertised on the E Salary Schedule in 2004 and that that was the position Thomas held. PI. Ex. # 8 at p. 265: 22-268: 18. Munnerlyn stated that he discussed the new Operations Accountant job with Thomas and understood that she did not want the job with only a $5,000 increase. Id. at p. 273: 14-21. Munnerlyn further testified that the fact that the person hired, Merrill, had a CPA made him no better qualified for the position than someone who did not have a CPA. Id. at p. 279: 13-17. When asked if he considered Thomas to be a person who could move up to be in a key position at Trenholm, Munnerlyn answered, “Yes. And she could apply for this job.” Id. at p. 281: 1-8. He elaborated, stating that after they decided not to merely do a reorganization, but to fully advertise the job, “the requirements for the job in terms of education are the same. Renoda Thomas could have applied for this job, also, but she didn’t.” Id. at p. 283: 13-16.

In Alexander v. Chattahoochee Valley Cmty. Coll., 325 F.Supp.2d 1274 (M.D.Ala.2004), the defendants created a new position which included the job functions of the position the plaintiff held. The court reasoned, applying Batey v. Stone, 24 F.3d 1330 (11th Cir.1994), that evidence that the plaintiff performed many of the duties of the new position was sufficient to establish a prima facie case. Alexander, 325 F.Supp.2d at 1282.

In the instant case, the evidence before the court creates a question of fact as to whether, even if the position was changed before being listed as a C-3 Salary Schedule position, Munnerlyn considered Thomas to be qualified for that position.

To the extent that there were differences in the position, the court cannot conclude that such differences preclude Thomas from establishing a prima facie case. Even assuming that the strict Wilson comparator standard would apply to Thomas’s claim, the Eleventh Circuit noted that if “a plaintiff fails to show the existence of a similarly situated employee, summary judgment is appropriate where no other evidence of discrimination is present.” Wilson, 376 F.3d at 1092 (emphasis in original) (citing Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997)). In this case, there is evidence of discriminatory intent in the form of Munnerlyn’s statement that he set Merrill’s salary, after representing a different salary to Thomas, in part because “a male would be nice to have in the business office.” PI. #8, p. 277: 4-16.

The court concludes, therefore, that there are sufficient questions of fact, which a reasonable jury could resolve in Thomas’s favor, so that a prima facie case of failure to promote exists in this case.

The reasons articulated by the Defendants “for hiring Billy Merrill and setting his annual salary at $70,000,” Doc. # 194, are that the decision was based on Merrill’s qualifications “in light of the needs of the college,” id. at 29, and his status as a CPA. The Defendants argue, and present evidence from Munnerlyn’s deposition, that he did not consider gender in making the selection of Merrill. The Defendants further argue that the fact that Munnerlyn initially expressed a desire to keep the salary of the Operations Account position in the $55,000 range does not prevent him from negotiating a higher salary when the duties of the position have been modified significantly over time. The Defendants argue that Thomas cannot disprove the legitimate reasons articulated for Merrill’s selection.

Munnerlyn’s deposition testimony about his reason for setting Merrill’s salary at $70,000 has been previously set out in full, but, as noted, includes a statement by him that “We needed some other — -a male would be nice to have in the business office.” PI. Ex. #8, p. 277:4-16. This statement by Munnerlyn is circumstantial evidence of an intent to discriminate on the basis of gender in the selection of the Operations Accountant position. Furthermore, a reasonable jury could interpret this testimony to mean that Munnerlyn’s stated reliance on Merrill’s CPA and interview qualifications were not the true qualifications relied upon, but that gender was a substantial motivation in Merrill’s selection. See Wilson, 376 F.3d at 1089 (statements, including a statement which was circumstantial evidence of discriminatory intent, which undermined the stated reliance on relative qualifications was sufficient to establish pretext). Summary judgment is, therefore, due to be DENIED as to Thomas’s failure to promote claims.

A remaining issue with respect to the § 1983 Equal Protection claim based on the failure to promote is the Defendants’ Motion for Partial Summary Judgment on the basis of qualified immunity. (Doc. # 134).

“Since at least 1979 it has been established that the Equal Protection Clause provides ‘a constitutional right to be free from unlawful sex discrimination and sexual harassment in public employment.’ ” Snider v. Jefferson Cmty. College, 344 F.3d 1325, 1331 (11th Cir.2003) (quoting Cross v. Ala. Dep’t of Mental Health & Mental Retardation, 49 F.3d 1490, 1507 (11th Cir.1995)). Having created questions of fact raised by Munnerlyn’s deposition testimony as to whether there was intentional discrimination against Thomas on the basis of gender for purposes of her failure to promote claim, the Motion for Partial Summary Judgment on qualified immunity grounds is due to be DENIED as to Thomas’s Equal Protection claim for failure to promote as against Munnerlyn.

A separate issue is raised by the qualified immunity defense on behalf of Byrne. The theory by which Byrne would be held individually liable for the failure to promote Thomas is so unclear to the court as to prevent the court from properly evaluating whether the law is clearly established as to a claim against Byrne. Accordingly, the court will reserve judgment on that aspect of the Defendants’ Motion for Partial Summary Judgment, (Doc. # 134), and seek additional briefing,

b. Rollins’s Failure to Promote Claim

Rollins states that she has a prima facie case of failure to promote because she applied for and was qualified for a C-2 Salary Schedule promotion on numerous occasions to compensate her for additional duties, but was denied the increased pay that she sought. Rollins contends that she should have been promoted to a level which would have given her a salary of $75,000. Rollins’s theory that she was denied promotions is based on a comparison to male employees whom she states have been given increased pay for additional duties.

At the outset, the court notes that Rollins’s claim for failure to promote is difficult to analyze because it is not a claim that Rollins applied for promotion to a position and another person was promoted. Instead, Rollins contends that she sought a reorganization of her position, with accompanying pay increase, because of additional job duties. Rollins has cited the court to facts that the first pay increase she sought was in 2006, the second in 2007, and the third in 2008. At various points, the Defendants have argued that claims asserted based on actions taken in 2007 are time-barred, because they occurred more than 180-days before Rollins’s EEOC charge and more than two-years before her § 1983 Complaint. The same analysis applies to the extent that Rollins has sought relief for failure to promote under Title VII and the Equal Protection Clause, as opposed to a pay claim, based on her reorganization requests in 2006, and under Title VII for her 2007 request.

In terms of a prima facie case of failure to promote based on the reorganization requests which are not time-barred, the Defendants only dispute that other equally or less qualified persons outside of the class were promoted. They contend that the comparators pointed to by Rollins for the fourth prong are not “similarly situated in all relevant respects.” Brown v. Ala. Dep’t. of Tramp., 597 F.3d 1160, 1174 (11th Cir.2010).

Rollins points to Louis Campbell, Charles Harris, Wilford Holt, Dennis Monroe, Arnold Stringer, Freddie Williams, and Larry Achord as men who were given extra pay through reorganization for extra duties.

Rollins contends that these employees are all similarly situated to her because the process for reorganization at Trenholm is the same for all employees regardless of whether the employee is a director, coordinator, teacher, janitor, or IT specialist. Rollins contends that when additional duties are given to an employee, the proper way to receive a promotion is to submit a request to the President that the position be reorganized at a higher salary level, which then must be approved by the Chancellor.

In this case, when Rollins made her 2007 request for reorganization, she told Byrne of her additional duties, and Byrne asked Latonya Dupree (“Dupree”), Human Resource Director of the Department of PosWSecondary Education to make a recommendation to him. After the review, Byrne increased Rollins’s salary from $51,360 to $55,360.

Even accepting Rollins’s comparator theory, the court cannot conclude that Rollins has established an Equal Protection claim of failure to promote based on her 2007 request. The court has not been provided evidence of the circumstances of those reorganizations, and has certainly not been provided with any evidence that reorganization decisions with respect to those employees were made after a salary survey. There is no evidence before the court that men were treated differently.

Rollins argues, in an attempt to establish pretext, that the salary survey that Dupree provided to Byrne was flawed because it included some erroneous salary information. There is no evidence, however, that the 2007 decision was not made in reliance on the salary survey. See Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1266 (11th Cir.2010). Rollins admits that the survey may excuse an initial denial of the raise, see Doc. # 170 at p. 103, but states that a different decision should have been made once mistakes were revealed. The Defendants dispute that Byrne was aware of any flaws. In his deposition, Byrne stated that he had “no indication that the information was flawed.” PI. Ex. # 14 at p. 142: 20-21. The court cannot conclude, therefore, even if there is a prima facie case, that Rollins has undermined the articulated reason, or demonstrated any gender animus on the part of the decision maker, Byrne.

Rollins also sought a pay increase/promotion/reorganization in June, 2008. She requested that her position be moved from the C-3 to the C-2 Salary Schedule based on her performance of additional duties, including duties as the Equal Employment Opportunity officer, working on litigation, overseeing the leave process and other job duties. She asked that her salary be raised from $55,360 to $77,000. Dupree reviewed the request. PI. Ex. # 85 p. 114:8-14. Byrne denied the reorganization request, giving as a reason that he recently approved a salary adjustment for Rollins to bring her salary in line with human resources directors in the ACCS and the most recent request did not identify a significant increase in responsibilities for the new position. PI. Ex. # 14 at p. 139: 13-21.

Rollins again apparently intends to rely on the idea that men who received reorganizations are similarly situated to her because they are governed by the same promotion process. Rollins does not, however, demonstrate that any men were treated differently from her, other than to say that men received higher salaries or reorganizations, while she did not. Furthermore, Rollins has not undermined the articulated reason. Rollins’s disagreement with the wisdom of the reasons given is not sufficient. See Combs v. Plantation Patterns, 106 F.3d 1519, 1543 (11th Cir.1997) (stressing that “federal courts do not sit to second-guess the business judgment of employers”). Summary judgment is, therefore, due to be GRANTED as to Rollins’s failure to promote claims.

c. Johnson’s Failure to Promote Claims

Johnson has alleged separate claims for denial of a promotion, based on denied requests for a reorganization of her job as a C-2 salary position, the first of which occurred in 2007. The sequence of events, as set out in the fact section above, was that Johnson submitted a request for reorganization in June 2007, and asked that she be moved to the C-2 Salary Schedule. Interim President Munnerlyn approved the request and sent it Byrne, but Byrne denied the request. Byrne agreed with the proposition in his deposition that the reason for the denial was it was “more appropriate for a permanent president” to make the decision. Def. Ex. # 14 at p. 179:17-20.

In 2008, after Munnerlyn because the permanent President, Johnson again asked for the reorganization, but did not receive the promotion. Munnerlyn stated that he did not want to make any mid-budget year raises. Def. Ex. # 29 at p. 226: 1-4. He further agreed in his deposition that he “encouraged her to make her request before the next budget year.” Id. at 226: 7-10. Johnson states that the next budget year, Munnerlyn created the Comptroller job and the Operations Accountant position, and hired Merrill to perform some of the duties Johnson would have performed. Johnson states in her affidavit that the money for the increase was in the budget for the year of her request. PI. Ex. # 87 at ¶ 17. The court has not been pointed to a reason for the decision by Munnerlyn not to request the reorganization once he became the permanent President, but notes that Munnerlyn simply states in his deposition that he reconsidered his earlier decision to request Johnson’s reorganization. Def. Ex. # 29 at p. 222: 22-23.

i. 2007 Reorganization Denial

Even if the court were to assume that Johnson established a prima facie case of failure to promote, the court cannot conclude that Johnson has sufficiently established pretext as to this claim, in light of the articulated reason that Byrne wanted the permanent President to make the reorganization recommendation. The ultimate decision maker for this claim is Byrne. Any evidence Johnson has pointed to which purportedly reflects gender-based animus is on the part of Munnerlyn, not Byrne. Johnson has not pointed to any evidence which undermines the truthfulness of Byrne’s reason that he wanted a President, not an Interim President, to make the determination. See Burdine, 450 U.S. at 256, 101 S.Ct. 1089. A plaintiff is not allowed to substitute her business judgment for that of the employer. Chapman v. AI Transport, 229