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Heatherly v. University of Alabama Board of Trustees

United States District Court, N.D. Alabama, Western Division

July 17, 2018




         This case is before the court on the Motion for Summary Judgment filed by Defendant the Board of Trustees of the University of Alabama (“UA” or “Defendant”). (Doc. # 38). The Motion is fully briefed, and the parties have filed evidentiary submissions. (Docs. # 39, 40, 48, 49, 50). After careful review, the court concludes that the Motion (Doc. # 38) is due to be granted.

         I. Relevant Undisputed Facts[1]

         Plaintiff Amy Heatherly (“Heatherly” or “Plaintiff”) is employed by Defendant as the Director of Human Resources for UA. (Doc. # 40-8 at p. 39). On February 17, 2016, she filed a Complaint, seeking an injunction, equitable relief, and damages for alleged (1) sex/gender discrimination under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (“Title VII”); (2) gender discrimination under Title IX, 20 U.S.C. § 1681 (“Title IX”); (3) violation of the Equal Pay Act, 29 U.S.C. § 206(d) (“EPA”); and (4) retaliation under Title VII, Title XI, and the Fair Labor Standards Act, 29 U.S.C. § 215(a)(3) (“FLSA”).[2] (Doc. # 1). The court dismissed Plaintiff's punitive damages request and retaliation claim on June 9, 2016. (Doc. # 18). Below, the court discusses the Rule 56 record related to UA's compensation structure, Heatherly's employment with UA, Heatherly's purported comparators, and the expert studies and opinions presented by the parties.

         A. UA's Compensation Structure

         UA has a staff pay grade structure chart that helps to direct the pay of staff employees.[3](Doc. # 40-6 at p. 26). UA's Compensation and Classification area, which has been under Heatherly's administration since 2006, determines the pay grade for staff jobs. (Doc. # 40-6 at ¶ 2). Under this pay policy, to determine the appropriate pay grades for staff jobs, the Compensation and Classification group examines knowledge and experience, job complexity and creativity, impact on the institutional mission, internal and external contacts, discretion exercised, physical demands, and working conditions. (Id. at ¶ 2, p. 17-23). After evaluating those factors and reviewing the pay grades for the jobs in the same reporting channel, the Compensation and Classification group assigns a staff job a pay grade. (Id. at ¶ 2). Because each pay grade encompasses jobs performing widely different functions from multiple departments across UA, each pay grade is construed to include a wide salary range along with an associated minimum, first quartile, midpoint, third quartile, and maximum salary rates for each grade. (Id. at ¶ 3, p. 26). The jobs at issue in this case are classified in pay grade 62. (Id. at ¶ 4).

         UA generally awards merit increases annually to recognize employees' job performances and contributions to the institution. (Id. at ¶ 5). UA's President allocates money to a merit pool that is established by applying a predetermined percentage to base salaries university-wide. (Id.). Next, the budget allocation for each department is decided by determining a percentage of base salaries in that department. (Id.). After the department heads make a recommendation for the allocation of funds based on employee performance, the department heads' supervisors review the merit decisions and may suggest adjustments, if warranted. (Id.).

         As the Director of Human Resources, Plaintiff directly reports to Associate Vice President for Human Resources, who is currently Dr. Nancy Whittaker (“Whittaker”). (Doc. # 40-12 at ¶ 2). Whittaker's other direct reports are Travis Railsback (“Railsback”), the Director of Human Resources; David Bertanzetti (“Bertanzetti”), the Director of Benefits; and George Tutt (“Tutt”), the Director of Payroll. (Id.). In turn, Whittaker directly reports to Dr. Lynda Gilbert (“Gilbert”), the Vice President of Financial Affairs and Treasurer at UA. (Id. at ¶ 1).

         Gilbert's direct reports, such as Whittaker, make recommendations to her regarding merit increases, and Gilbert approves, increases, or decreases these recommendations. (Doc. # 40-6 at ¶ 7). Gilbert does not always consider evaluations when making pay decisions because she may view an employee differently than the person conducting the employee's evaluation. (Id. at ¶ 9). Gilbert indicates that she examines market competition, the importance of the employee's service to UA, the number of individuals supervised by the employee, the employee's performance, the quality of the customer service provided by the employee, and the financial responsibility of the employee's position when determining a merit increase. (Id. at ¶ 7). However, Plaintiff disputes that Gilbert examines market competition and performance when making these decisions. (Doc. # 48 at ¶ 9).

         B. Heatherly's Employment with UA

         Heatherly has worked for UA during two different time periods: first, from 1995 until 2002 when she held various Human Resources positions, and, second, from September 2006 to present serving as the Assistant Director of Human Resources and later the Director of Human Resources. (Doc. # 40-8 at p. 8, 11, 108). In 1995, Heatherly applied for a job at UA as a compensation manager; however, she was ultimately hired as a compensation analyst and was responsible for evaluating positions, determining pay grades, and performing desk audits. (Id. at p. 8). After about a year of working as a compensation analyst, Heatherly became the Employee Relations Manager following the departure of the previous Employee Relations Manager. (Id.). Approximately a year later, Plaintiff was promoted to Assistant Director of Human Resources. (Id. at p. 9). Heatherly briefly served as the Associate Vice President of Human Resources until UA hired Charlotte Harris (“Harris”) as a permanent employee to fill the role.[4] (Id. at p. 9-10). In September 2002, Plaintiff resigned from UA to accept a job with the City of Hoover. (Id. at p. 10-12).

         In September 2006, Harris informed Plaintiff that UA had an opening for a position as Assistant Director of Human Resources. (Id. at p. 13-14, 108). Harris waived the normal recruitment process and offered Plaintiff the position immediately. (Id. at p. 14-15, 108). Plaintiff's starting annual salary was $76, 000. (Id. at p. 15, 108-09). She received a raise at the end of her first six months in that position that increased her annual salary to $80, 000. (Id. at p. 15-16, 109). As Assistant Director of Human Resources, Heatherly was responsible for the employee relations partners group, staff training and development, and recruitment and compensation. (Id. at p. 15). In August 2007, Plaintiff was promoted to Director of Human Resources and received a pay increase of $10, 000, raising her salary to $90, 000. (Id. at p. 17, 110). By August 2008, the following areas reported to Heatherly: Classification and Compensation, Human Resources Partners, Learning and Development, the Assistant Director of Human Resources, and the Human Resources person in facilities. (Id. at p. 19, 76, 140). In 2008, UA implemented a freeze on merit increases, meaning that there were no increases coinciding with the 2008 performance evaluation process. (Doc. # 40-6 at ¶ 8).

         In July and August 2008, Heatherly, along with one of her direct reports Bill Wharton (“Wharton”), investigated claims made by UA employee Deborah Minor (“Minor”) against her supervisor David Wilson (“Wilson”). (Docs. # 40-8 at p. 19-20, 153-54). On August 5, 2008, Heatherly and Wharton sent Minor a letter notifying her that they found her claims to be unsubstantiated and that Human Resource's investigation into the matter was concluded. (Id. at p. 19-20, 153-54). On August 6, 2018, Minor responded to that letter by email and asked if she needed to refile one of her complaints. (Id. at p. 20, 154). That same day, Heatherly responded to Minor, “We found no substantiation of your complaints . . . and therefore our inquiry has been concluded. No. further communications on this matter will be responded to by Human Resources.” (Id.). Also on that day, Wilson informed Heatherly that he wished to terminate Minor. (Id. at p. 20-21, 156). Heatherly told Wilson that the decision to terminate Minor was his but that Minor would inevitably take legal action to fight her termination. (Id. at p. 20, 22-23, 157). Heatherly provided input about the letter notifying Minor of the termination of her employment. (Id. at p. 20, 157). On December 8, 2008, Minor filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”) challenging her termination. (Docs. # 40-6 at ¶ 10; 40-7 at p. 253). UA later settled Minor's lawsuit. (Doc. # 40-6 at ¶ 10).

         Following the Minor employment situation, Gilbert became concerned about Heatherly's judgment.[5] (Doc. # 40-6 at ¶ 11). Because of concerns with Heatherly's ability to recognize certain risks, Heatherly's job duties were reallocated effective May 1, 2009.[6] (Docs. # 40-6 at ¶ 11; 40-8 at p. 157). In her new role, Heatherly no longer supervised Human Resources Partners who were regularly involved in making employee relations decisions, and she was no longer involved in employment relations decisions. (Doc. # 40-6 at ¶ 11). Rather, she led the compensation area, was in charge of a competency modeling initiative, and assumed Human Resources duties involving affirmative action and EEOC compliance activities. (Docs. # 40-6 at ¶ 11; 40-8 at p. 157). Although Heatherly retained her title as Director of Human Resources and her salary remained the same, only Classification and Compensation reported to her. (Docs. # 40-6 at ¶ 11; 40-8 at p. 19). Railsback became Assistant Director of Human Resources and assumed the majority of Heatherly's former duties. (Docs. # 40-6 at ¶ 11; 40-8 at p. 19, 157).

         In 2009, Gilbert made the determination that Heatherly should not receive a merit increase during the next merit increase process; however, that year there was a freeze on merit increases, so no employees received merit increases. (Doc. # 40-6 at ¶ 12). In 2010, Harris recommended that Heatherly receive a 3.5% merit increase, but Gilbert did not approve any increase in Heatherly's salary. (Id.). Gilbert states (and, to be clear, Plaintiff disputes) that this decision was based on Heatherly's handling of the Minor situation. (Id.).

         In 2011, Heatherly received a 5% merit increase, which increased her salary to $94, 500. (Doc. # 40-8 at p. 29, 110). In 2012, Heatherly received a 3% increase, which increased her salary to $97, 335. (Docs. # 40-8 at p. 31-32; 40-9 at p. 13). In 2013, Gilbert had extra money for merit increases and asked Harris if employees in her department needed salary adjustments. (Doc. # 40-7 at p. 46). Harris recommended that three employees, including Heatherly, receive salary adjustments. (Docs. # 40-7 at p. 46, 156-57; 40-9 at p. 15-16). Specifically, Harris requested that Heatherly receive a $7, 000 to $10, 000 salary increase because Heatherly's salary was lower than other employees in pay grade 62 in the Financial Affairs Department. (Docs. # 40-7 at p. 47, 156-57; 40-9 at p. 15). Gilbert approved both a 3% raise and a $7, 000 salary increase for Heatherly. (Docs. # 40-7 at p. 155-57; 40-9 at p. 13-15). With this raise, Heatherly's salary was increased to $107, 255.08. (Docs. # 40-7 at p. 158; 40-9 at p. 13).

         In the summer of 2014, Heatherly assisted in launching a new recruiting software for UA. (Docs. # 40-7 at p. 61; 49-1 at ¶ 31). After the software was implemented, Gilbert received complaints from individuals, who were both internal and external to UA, because they were not able to utilize the software. (Docs. # 40-6 at ¶ 14; 40-7 at p. 61). Gilbert called Whittaker, who by that time had become the Associate Vice President of Human Resources following Harris's retirement, and told her to fix the problem because individuals could not apply for positions at UA. (Docs. # 40-6 at ¶ 14; 40-7 at p. 61).

         In August 2014, Whittaker recommended to Gilbert that Heatherly receive a 3% merit increase. (Doc. # 40-6 at ¶ 14). Gilbert did not believe that Heatherly should receive any merit increase because of Heatherly's handling of the recruiting software and complaints that Gilbert had received about Heatherly's customer service. (Id.). Plaintiff counters that there are no contemporaneous records to substantiate Gilbert's claim that her handling of the software program created a debacle. (Doc. # 48 at ¶ 30). And, based upon this lack of records, Plaintiff disputes Gilbert's rationale for reducing Heatherly's suggested merit increase. (Id.). Ultimately, Gilbert agreed to provide Heatherly with a 1% merit increase in 2014, which increased her salary to $108, 327. (Docs. # 40-6 at ¶ 14; 40-8 at p. 33, 110).

         On August 18, 2014, Heatherly emailed Whittaker claiming that she had not been treated favorably in receiving a 1% merit increase when the merit increase pool was 3%. (Docs. # 40-8 at p. 33-34; 40-9 at p. 18). Heatherly noted that she had not received an evaluation for the 2013 through 2014 period and that she had not been informed of any performance issues. (Doc. # 40-9 at p. 18). She also stated that she did not believe that she was being compensated fairly compared to males. (Id.). After receiving the email, Whittaker met with Heatherly and explained that the 1% merit increase was a result of customer service concerns. (Doc. # 40-8 at p. 35). Heatherly next met with both Gilbert and Whittaker about her 1% salary increase, and Gilbert informed Heatherly that she had decided that Heatherly would not receive a higher merit increase because of customer service issues. (Docs. # 40-6 at ¶ 15; 40-8 at p. 35). Heatherly claims that neither Whittaker nor Gilbert gave her any specifics of what these purported customer service issues involved. (Doc. # 40-8 at p. 35).

         After Heatherly's meeting with Gilbert and Whittaker, Heatherly sent an email to Gilbert and Whittaker summarizing their meeting. (Id. at p. 36). Gilbert and Whittaker copied and pasted Heatherly's email into a response and “edited” it to reflect their expectations of the behavior that Heatherly needed to exhibit to succeed in her position. (Docs. # 40-6 at ¶ 15; 40-8 at p. 35-36; 40-9 at p. 19-20). Specifically, Gilbert called upon Heatherly to be a “facilitator” and “partner” with departments, rather than a “gatekeeper.”[7] (Doc. # 40-9 at p. 19-20). However, Heatherly does not agree with all of the “edits” that Gilbert and Whittaker made to the email. (Doc. # 40-8 at p. 36).

         In 2015, Heatherly received a 2.25% increase, which increased her salary to $110, 765. (Id. at p. 36, 110). In November 2015, she received a 12.85% increase so that her salary was $125, 000. (Id. at p. 37, 110). Plaintiff received this 12.85% salary increase because Railsback was returning to UA Human Resources (he had previously left Human Resources to work with the UA Division of Student Affairs) and UA wanted to pay Heatherly the same salary as Railsback upon his return to Human Resources. (Doc. # 40-6 at ¶ 16; 40-8 at p. 37). On August 16, 2016, Heatherly's pay was increased 2.75% to $128, 438. (Doc. # 40-8 at p. 37, 110). On August 16, 2017, Heatherly received a 2% increase so that her salary was $131, 006. (Doc. # 40-6 at ¶ 16, p. 40).

         Currently, Heatherly remains the Director of Human Resources over Recruitment, Compensation and Classification, and Student Employment. (Doc. # 40-8 at p. 39). She does not handle faculty recruitment or faculty compensation or classification. (Docs. # 40-8 at p. 40; 40-12 at ¶ 5). She does recruit regional representatives, or recruiters for UA, from different states. (Doc. # 40-8 at p. 49). Although she has a campus-wide role, Heatherly does not serve in any system-wide role.[8] (Docs. # 40-12 at ¶ 5; 40-13 at p. 14). Heatherly describes her duties on a day-to-day basis as follows:

My team, they work with the departments all over campus and they're managing the recruitments of positions that they have that are either new or open in trying to help them locate and find qualified, good candidates. They work with them through the hiring process through salary negotiations. They basically brand the University of Alabama as a place of employment or as the place -- a good place of employment.
We also work with requests to change positions, to reclassify jobs, to create new jobs. And then we also have the student employment function which is involved with posting jobs for students both on campus and off campus and the recruitment of those -- hiring of those individuals.

(Doc. # 40-8 at p. 39). There are currently five people on Heatherly's team. (Doc. # 40-8 at p. 39).

         UA usually has around 1, 300 to 1, 500 staff postings a year. (Id. at p. 40). If Heatherly does not properly perform her job, open positions and operations could be adversely affected. (Id. at p. 45). Additionally, if she misclassifies employees under the FLSA, UA could be faced with lawsuits and regulatory fines that could range from $1, 000 to $15, 000 per incident. (Id. at p. 46).

         Heatherly has received no formal discipline while working for UA, and all of her performance evaluations have been positive. (Doc. # 40-6 at ¶ 9). However, Tony Johnson, UA's Assistant Director of Logistics and Support Services, has complained about disagreements he has had with Heatherly over job classifications. (Doc. # 40-11 at p. 24-26).

         C. Heatherly's Alleged Comparators

         Plaintiff compares her employment with UA with that of three other male employees in the Human Resources Department: Bertanzetti, Tutt, and Railsback. (Doc. # 1 at ¶¶ 32-42). Each of Plaintiff's male comparators are in salary grade 62, report directly to the Associate Vice President of Human Resources, and have director-level positions. (Doc. # 39 at p. 15). The job responsibilities and compensation of Bertanzetti, Tutt, and Railsback are explored in more detail below.

         1. David Bertanzetti (Director of Benefits)

         On January 18, 2008, UA offered Bertanzetti a position as the Director of Benefits with a start date in March 2008. (Docs. # 40-8 at p. 41; 40-9 at p. 44; 40-18 at p. 8). Currently, Benefits, Wellness, Healthcare Insurance Administration, and the Human Resources Service Center all report to Bertanzetti. (Doc. # 40-17 at ¶ 3). In 2015 or 2016, Wellness was moved from the Academic Affairs Department to the Human Resources Department and is now under Bertanzetti. (Doc. # 40-18 at p. 11-12). Also, at some point, Healthcare Insurance Administration was also transferred to Bertanzetti. (Id. at p. 12-13). Since June 2009, Bertanzetti has supervised more employees than Heatherly. (Doc. # 40-7 at ¶ 17, p. 42). Throughout his employment with UA, neither Gilbert nor Whittaker have counseled, disciplined, or formally evaluated Bertanzetti. (Doc. # 40-18 at p. 26).

         As the Director of Benefits, Bertanzetti is responsible for UA's in-house administration of numerous benefits programs (including medical, dental, and vision coverage) for UA's faculty and staff. (Docs. # 40-7 at ¶ 4; 40-18 at p. 16). He researches and evaluates the feasibility of new benefits programs and alternative benefit designs, is the major decision-maker in determining whether to implement new plans, is responsible for assisting in the resolution of benefit claim issues, and works with UA's third party administrators, benefits consultants, and vendors to negotiate favorable benefit-related costs and services for UA. (Docs. # 40-17 at ¶ 4; 40-18 at p. 15-16). Bertanzetti, along with the team he oversees, manages over $45.3 million in total medical costs, which cover over 11, 200 employees and their dependents. (Doc. # 40-17 at ¶ 5).

         Although not directly responsible for UA's day-to-day Health Insurance Portability and Accountability Act (“HIPAA”) compliance, Bertanzetti ensures that UA's health plans are in compliance with HIPAA. (Doc. # 40-18 at p. 60). Full compliance is essential because without it UA would be subject to substantial fines for HIPAA violations. (Id.). In addition, he is responsible for the employee assistance program and the flexible spending plans and supervises UA employees who manage these programs on a daily basis. (Doc. # 40-17 at ¶ 7). Bertanzetti also oversees UA's I-9 compliance. (Docs. # 40-17 at ¶ 9; 40-18 at p. 60). Fines range from $200 to $2, 000 for each occurrence if an employer is not I-9 complaint. (Docs. # 40-17 at ¶ 9; 40-18 at p. 60).

         Bertanzetti is responsible for overseeing the management of UA's retirement plan and serves on the system-wide Investment Committee with Mike Boyd (“Boyd”) from UAB, Sandra Partin (“Partin”) from UAH, and Jon Garner (“Garner”) from the UA System. (Docs. # 40-17 at ¶ 6; 40-18 at p. 14). The Investment Committee monitors eighty funds in the retirement plan for changes that impact the plan. (Docs. # 40-17 at ¶ 6; 40-18 at p. 57). As necessary, the Committee adds funds to a watch list, removes funds from the plan, and replaces removed funds with other funds in the appropriate asset class. (Id.). Although other employees attend these committee meetings, Bertanzetti, Boyd, Partin, and Garner are the decision-makers on the Investment Committee and, with the assistance of Sageview's consulting services, manage UA's retirement plan assets which amount to over $2.3 billion. (Docs. # 40-17 at ¶ 6; 40-18 at p. 13-15, 57). Decisions made by the Investment Committee impact all the campuses in the UA System along with the UA System itself. (Doc. # 40-17 at ¶ 6). Bertanzetti also serves on the system-wide Benefits Committee. (Doc. # 40-17 at ¶ 10). Decisions made by the Benefits Committee impact UA, other campuses in the UA System, and the UA System itself. (Id. at ¶ 10).

         Bertanzetti, along with the team he oversees, handled Affordable Care Act (“ACA”) issues for UA for over seven years, including the implementation of ACA regulations. (Docs. # 40-17 at ¶ 8; 40-18 at p. 57). For instance, one of the issues he addressed was the 30/130 Rule which concerned an employer's obligation to offer plans to employees who work 30 hours a week or 130 hours a month. (Docs. # 40-17 at ¶ 8; 40-18 at p. 57). If the 30/130 Rule were not properly followed, UA would be subject to up to $10 million in fines. (Docs. # 40-17 at ¶ 8; 40-18 at p. 57-58). UAH and the UA System adopted the same plan that Bertanzetti and his team implemented at UA. (Docs. # 40-17 at ¶ 8; 40-18 at p. 58). Additionally, under Bertanzetti's leadership, Benefits introduced a first dollar deductible plan in order to increase the cost efficiency of UA's health plan. (Docs. # 40-17 at ¶ 11; 40-18 at p. 59). UAH and the UA System implemented this program as a result of UA's cost savings. (Docs. # 40-17 at ¶ 11; 40-18 at p. 59).

         Heatherly agrees that the areas Bertanzetti oversees have a larger fiscal impact on UA, compared to the areas she oversees. (Doc. # 40-8 at p. 46). She also agrees that the financial impact that someone's position has on UA is relevant in determining whether jobs are comparable and that the oversight of approximately two billion dollars in assets is a relevant consideration for the comparability of positions. (Id. at p. 44-45). Likewise, Heatherly acknowledges that her job and Bertanzetti's job are “two different jobs” and that she is not qualified to perform Bertanzetti's job and he is not qualified to perform hers. (Id. at p. 47).

         Bertanzetti's starting salary was $90, 000, and his official offer letter stated, “[I]t is expected that your salary will increase to $100, 000 effective August 16, 2008.” (Docs. # 40-7 at p. 38; 40-9 at p. 44; 40-18 at p. 19, 27-28, 73-75). At the time Bertanzetti was hired, Heatherly was also making $90, 000. (Doc. # 40-8 at p. 110). Bertanzetti did not get a $10, 000 increase in 2008 or 2009; further, because no merit increases were given in 2008 or 2009, Bertanzetti also did not receive a merit increase. (Docs. # 40-6 at ¶ 8; 40-8 at p. 42; 40-9 at p. 21). In 2010, Harris recommended a 5.5% increase to raise Bertanzetti's salary to $95, 000; however, Gilbert increased Bertanzetti's pay to $105, 000, which included the 5.5% increase, plus the $10, 000 increase that was mentioned in his offer letter signed by Harris. (Doc. # 40-6 at ¶ 18; 40-9 at p. 4). In 2011, based on Harris's recommendation, Gilbert approved a 5% salary increase (the same percentage increase that Gilbert approved for Heatherly) for Bertanzetti, which increased his salary to $110, 250. (Doc. # 40-6 at ¶ 19, p. 40). In 2012, Harris recommended a 3% increase for Bertanzetti, and Gilbert increased it to 4%.[9] (Doc. # 40-18 at p. 40). In 2013, Harris recommended a $7, 000 to $10, 000 increase in salary for both Bertanzetti and Heatherly because their salaries were low in comparison to other employees in Financial Affairs in the same grade. (Docs. # 40-6 at ¶ 21; 40-8 at p. 32; 40-9 at p. 14-16). Due to the equity issue and Bertanzetti's strong performance, Gilbert approved a 9.1% increase to raise his salary to $125, 099. (Doc. # 40-6 at ¶ 21, p. 40). Bertanzetti received a 4.8% increase for 2014, which increased his pay rate to $131, 100;[10] a 2.17% increase in 2015, which brought his salary to $133, 948; a 2.75% increase in 2016, which increased his salary to $137, 631; and a 2% increase for 2017, which makes his current salary $140, 384. (Doc. # 40-6 at ¶ 22, p. 40).

         2. George Tutt (Director of Payroll)

         Tutt has been UA's Director of Payroll since he was hired in May 2007. (Docs. # 40-6 at ¶ 23; 40-19 at p. 4). As the Director of Payroll, Tutt is responsible for managing UA's payroll (faculty, staff, and student), which is approximately $400 million annually and includes monthly payroll, bi-weekly payroll, and supplemental payroll. (Doc. # 40-19 at p. 4, 11, 51). He also oversees payroll processing, payroll tax filing, processing of third-party payments for garnishments and child support, and other special projects that arise. (Id. at p. 4). Tutt manages numerous employees who are responsible for performing many tasks and has supervised more employees than Heatherly since August 2008. (Docs. # 40-6 at ¶ 24, p. 42; 40-19 at p. 9-14).

         Tutt oversees the submission of tax reports to the federal and state governments and the filing state tax returns in approximately two dozen states that have varying filing requirements. (Id. at p. 39-40). He also supervises the filling and issuance of approximately 12, 000 W-2 Forms that UA issues each year. (Id. at p. 41, 54). Additionally, Tutt is the contact person for an annual payroll audit that is conducted by PriceWaterhouseCoopers each year. (Id. at 36, 39). Tutt played a key role UA's 2010 implementation of a new time and attendance system and has ...

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