Federal judge rejects motion to dismiss pay discrimination lawsuit in athletic department

Media Credit: Arielle Bader | Assistant Photo Editor

A federal judge denied Wednesday the University’s motion to dismiss a lawsuit alleging the former athletic director gave preferential treatment to his male staff.

A federal judge denied the University’s motion Wednesday to dismiss a lawsuit alleging officials paid an employee less money on the basis of sex.

The Equal Employment Opportunity Commission filed a lawsuit against GW in September 2017 alleging that Sara Williams, the former executive assistant to former athletic director Patrick Nero, was paid about $40,000 less than a male co-worker who held a similar position. The University motioned to dismiss the case in November 2017 citing a lack of evidence, but a U.S. District Court judge denied the motion, ruling that the EEOC had provided sufficient evidence for the case to move forward.

“Upon consideration of the briefing, the relevant legal authorities and the record as a whole, the Court denies the [10] motion of defendant The George Washington University to dismiss the complaint or, alternatively, stay proceedings,” U.S. District Court Judge Colleen Kollar-Kotelly wrote in the opinion.

University spokeswoman Maralee Csellar said the University was “disappointed” with Kollar-Kotelly’s decision.

“As the court made clear, the EEOC still must prove its case,” Csellar said in an email. “The University looks forward to demonstrating that we acted fairly and lawfully.”

Csellar declined to provide the University’s next steps in the case and whether officials are willing to settle.

Williams, who currently works at GW as an associate within the Business Management and Analysis Group, filed a complaint with the EEOC alleging that during her two years of employment in the athletic department, the University violated the Equal Pay Act and Title VII of the Civil Rights Act, which prohibits employers from discriminating on the basis of sex.

The complaint alleged that Williams received lower compensation for work than her male co-worker, Michael Aresco, the former assistant athletic director for operations, events and facilities.

The complaint also contends she was denied opportunities for career advancement and was treated differently within the workplace because of her sex. Williams alleged that she was told to “perform job duties that Aresco either failed to perform or was incapable of performing” and completed tasks like “running personal errands,” according to the complaint.

Aresco did not return multiple requests for comment and is no longer employed by the University, according to his LinkedIn profile.

Williams declined to comment through Jessi Isenhart, the attorney representing the case. Isenhart said the EEOC was “pleased with the ruling and should be moving forward with the case” but declined to comment on the details of the case.

Two months after the filing of the lawsuit, the University’s lawyers motioned to dismiss the case, saying the EEOC did not provide enough evidence to support claims of pay discrimination. Officials also requested a stay of proceedings, which would have prevented the case from moving forward.

Kollar-Kotelly, the judge, denied the motion and did not grant a stay of proceedings Wednesday, allowing the case to progress.

She said in her opinion that the EEOC and GW disagree that Williams and Aresco had similar enough positions to be paid equally, adding that the EEOC’s claims are “sufficient” for the court to continue pursuing the case without disputing each job description.

“It is sufficient for the Commission to plead that Ms. Williams and Mr. Aresco performed substantially equal work – and yet were paid differently – without getting into the ‘equal skill, effort and responsibility’ or ‘similar working conditions’ aspects,” Kollar-Kotelly wrote in the opinion.

She said the EEOC’s claim that Nero, the former athletic director, gave male employees preferential treatment would need more supporting details as the case moves forward.

“The court finds that the complaint contains sufficient factual content to permit ‘the reasonable inference that the [University] is liable for the misconduct alleged,’” Kollar-Kotelly said in the opinion.

Nero did not return requests for comment.

Nero resigned from his position as athletic director in December 2017. He became embroiled in controversy last November after a Deadspin article alleged that he acted inappropriately toward student-athletes and athletic department staff.

Experts in employment law said that because GW’s motion was denied, the EEOC and the University will collect evidence to support each of their claims.

Deborah Eisenberg, a law professor at the University of Maryland’s Francis King Carey School of Law, said counsel for the University and the EEOC will take depositions – sworn testimony from the other party’s witnesses – and request documents pertinent to the case from each other.

Patricia Wise, a labor and employment lawyer at the law firm Spengler and Nathanson P.L.L., said the University will likely file a motion for summary judgment, which alleges that the plaintiff’s claims or defense will not be successful, to have a second chance at dismissing the case before trial.

“That’s a similar motion telling the court, ‘This case should not go to trial, there’s no basis for this case,’ and the difference is and the reason they get this second bite at the apple is that this time when they file, they will have more actual evidence,” Wise said.

Defendants submit summary judgment motions 90 percent of the time in employment discrimination cases filed in federal district courts with rules similar to the D.C. District Court, according to a summary judgment analysis by the Federal Judicial Center released in 2008.

Wise said lawyers for GW may also attempt to justify the pay discrepancy between Williams and Aresco by illustrating that his skills qualified him for higher compensation during the summary judgment motion.

She said counsel for the University will likely argue that Aresco’s and Williams’ jobs were distinct, and the EEOC’s attorneys will argue that their positions were similar.

Nicole Porter, an employment law professor at the University of Toledo, said a small number of pay discrimination cases go to trial, and if GW files a summary judgment motion and loses, a settlement would be more likely than a trial.

“Most defendants at that stage, even if they don’t think they’ve done anything wrong, are likely to want to settle just to avoid the expense and the uncertainty of the trial,” Porter said.

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