UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-2371

SHARON LYNN DAVIS,

Plaintiff - Appellant,

v.

TOWN OF TAZEWELL, VIRGINIA,

Defendant - Appellee.

Appeal from the United States District Court for the Western District of Virginia, at Abingdon. James P. Jones, District Judge. (1:18-cv-00030-JPJ-PMS)

Submitted: December 28, 2020 Decided: January 21, 2021

Before MOTZ, KING, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas E. Strelka, L. Leigh R. Strelka, N. Winston West, IV, STRELKA LAW OFFICE, PC, Roanoke, Virginia, for Appellant. W. Bradford Stallard, Karissa H. Range, PENN, STUART & ESKRIDGE, Abingdon, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

In 2015, the Town of Tazewell, Virginia (“the Town”), hired Sharon Lynn Davis

for the position of Town Treasurer. Less than two years later, the Town Manager, Todd

Day, demoted Davis, prompting her to resign. According to Davis, her demotion and

constructive discharge resulted from Day’s discriminatory animus toward women, as

evidenced by, among other things, her lower salary relative to another department head,

Travis Barbee. The Town, on the other hand, considered the demotion justified based on

Davis’ frequent salary complaints and her unauthorized decision to leave early from an

important meeting.

Following her resignation, Davis commenced this action against the Town, alleging

gender discrimination and retaliation in violation of Title VII of the Civil Rights Act of

1964, as amended (“Title VII”), 42 U.S.C. §§ 2000e to 2000e-17. The district court granted

summary judgment to the Town, and, for the reasons that follow, we affirm.

“We review de novo a district court’s grant or denial of a motion for summary

judgment, construing all facts and reasonable inferences therefrom in favor of the

nonmoving party.” Gen. Ins. Co. of Am. v. U.S. Fire Ins. Co.,

(4th Cir.

2018). Summary judgment is appropriate “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).

2 Under the familiar McDonnell Douglas ∗ framework, a plaintiff alleging

discrimination bears “the initial burden of proving . . . her prima facie case by a

preponderance of the evidence.” Abilt v. Cent. Intelligence Agency,

(4th

Cir. 2017). If the plaintiff makes this showing, “[t]he burden of production then shifts to

the employer to . . . provide some legitimate, nondiscriminatory reason for the adverse

employment action.” Sharif v. United Airlines, Inc.,

(4th Cir. 2016)

(internal quotation marks omitted). If the employer satisfies this requirement, “the plaintiff

resumes the burden of persuading the factfinder that the employer’s proffered explanation

is merely a pretext for discrimination.”

“To establish a prima facie case of gender discrimination, a plaintiff must show:

(1) membership in a protected class; (2) satisfactory job performance; (3) adverse

employment action; and (4) that similarly-situated employees outside the protected class

received more favorable treatment.” Gerner v. Cty. of Chesterfield,

(4th

Cir. 2012) (ellipsis and internal quotation marks omitted). Under the fourth prong, “the

plaintiff must provide evidence that the proposed comparators are not just similar in some

respects, but similarly-situated in all respects.” Spencer v. Virginia State Univ.,

(4th Cir.) (internal quotation marks omitted), cert. denied,

(2019).

Relevant considerations include “whether the employees (i) held the same job description,

(ii) were subject to the same standards, (iii) were subordinate to the same supervisor, and

(iv) had comparable experience, education, and other qualifications—provided the

∗ McDonnell Douglas Corp. v. Green,

(1973).

3 employer considered these latter factors in making the personnel decision.”

(internal

quotation marks omitted).

Relying on Barbee as her sole comparator, Davis underscores that she received a

much lower salary than Barbee, even though they occupied equivalent positions in the

Town’s chain of command. But unlike Davis, Barbee had previously worked in local

government, an experience that Day found highly desirable. In addition, Barbee enjoyed

substantial leverage in the hiring process, as he filled a position that had been vacant for

roughly six months, thereby allowing him to request a highly competitive salary.

Conversely, Davis, who overlapped with the outgoing Town Treasurer, felt that she could

not negotiate her salary because the Town had been considering another candidate. Thus,

in light of the candidates’ prior experience, the competition for their respective positions,

and the opportunity—or lack thereof—to negotiate compensation, we conclude that Davis

was not similarly situated to Barbee. Consequently, Davis cannot establish a prima facie

case of gender discrimination.

Turning to Davis’ retaliation claim, “[a] prima facie case of retaliation requires

proof that: (1) the plaintiff engaged in protected activity, (2) she suffered an adverse

employment action, and (3) there was a causal connection between the protected activity

and the adverse action.” Ray v. Int’l Paper Co.,

(4th Cir. 2018).

According to Davis, Day demoted her because she registered a genuine grievance

concerning gender-based pay disparity. Davis, however, fails to identify any evidence

substantiating her claim that, in complaining to Day, she intimated her belief that he was

engaging in unlawful discrimination. And although Davis suggests otherwise, we cannot

4 agree that gender bias is part and parcel of any employment dispute involving unequal

treatment of coworkers who happen to be of the opposite sex. Thus, because Davis has not

shown that she tied her salary complaints to accusations of gender discrimination, we

conclude that she fails to establish that she engaged in a protected activity, thereby

defeating her retaliation claim.

Accordingly, we affirm the district court’s judgment. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials

before this court and argument would not aid the decisional process.

AFFIRMED

5