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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12854
Non-Argument Calendar
____________________
DOLORES CALICCHIO,
Plaintiff-Appellant,
versus
OASIS OUTSOURCING GROUP HOLDINGS, L.P.,
PAYCHEX NORTH AMERICA, INC.,
OASIS OUTSOURCING HOLDINGS, INC.,
OASIS OUTSOURCING GROUP HOLDINGS, GP, LLC,
OASIS OUTSOURCING ACQUSITION CORPORATION, et al.,
Defendants-Appellees.
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2 Opinion of the Court 21-12854
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:19-cv-81292-RAR
____________________
Before GRANT, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM:
Dolores Calicchio appeals the district court’s grant of sum-
mary judgment to defendants Oasis Outsourcing Group Holdings,
L.P.; Oasis Outsourcing Holdings, Inc.; Oasis Outsourcing Group
Holdings, GP, LLC; Oasis Outsourcing Acquisition Corp.; and
WRI II, Inc. (collectively “Oasis”); as well as Paychex, Inc. and
Paychex North America, Inc. (jointly “Paychex”). She asserted
claims for pay discrimination under the Equal Pay Act of 1963
(“EPA”), 29 U.S.C. § 206(d), and gender discrimination and retalia-
tion under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e-2(a)(1) and 2000e-3(a).
Calicchio was hired by Oasis to be its Chief Human Re-
sources Officer (“CHRO”). Oasis’s executive team consisted of
Mark Perlberg, Chief Executive Officer (“CEO”); Kelley Castell,
Chief Operating Officer (“COO”); Mike Viola, Chief Sales Officer,
(“CSO”); and Joel Steigelfest, Chief Information Officer (“CIO”).
Paychex acquired Oasis in December 2018. In granting summary
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21-12854 Opinion of the Court 3
judgment, the district court struck the declaration of Vilma Petrov-
sky.
On appeal, Calicchio first argues that the district court
abused its discretion in striking Petrovsky’s declaration. Second,
she argues that summary judgment was not proper on her EPA
claims for pay discrimination because there was a genuine dispute
of material fact as to whether she identified proper comparators
and showed Defendants’ justifications for pay differences were pre-
text. Third, she argues that summary judgment was not proper on
her Title VII claim for pay discrimination because there was a gen-
uine dispute of material fact that similarly situated male employees
were paid more than her based on her gender. Finally, she argues
that summary judgment was not proper on her Title VII retaliation
claim because there was a genuine dispute of material fact as to
whether she was denied further employment because she com-
plained about gender pay gap issues.
I.
We review the exclusion of a witness based on a violation of
Federal Rule of Civil Procedure 26 for an abuse of discretion. Bear-
int ex rel. Bearint v. Dorell Juvenile Grp,, Inc., 389 F.3d 1339, 1353
(11th Cir. 2004).
Each party must disclose the names of individuals who likely
have discoverable information, along with the subjects of that in-
formation, that the party may use to support its claims or defenses,
unless the use would be solely for impeachment. Fed. R. Civ. P.
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4 Opinion of the Court 21-12854
26(a)(1)(A)(i). The parties are required to supplement incomplete
Rule 26(a) disclosures. Fed. R. Civ. P. 26(e)(1). A party who vio-
lates Rule 26(a) or (e) is precluded from using the undisclosed wit-
ness unless the failure to disclose the witness “was substantially jus-
tified or is harmless.” Fed. R. Civ. P. 37(c)(1). In determining
whether an undisclosed witness should be excluded under Rule
37(c), courts typically consider “the explanation for the failure to
disclose the witness, the importance of testimony, and the preju-
dice to the opposing party.” Romero v. Drummond Co., 552 F.3d
1303, 1321 (11th Cir. 2008).
Here, the district court did not abuse its discretion in striking
Petrovsky’s declaration. Petrovsky was not timely disclosed as a
witness, and the nondisclosure was neither substantially justified
nor harmless. Petrovsky’s declaration also was not used solely for
impeachment, as Calicchio used it to support an element of her
prima facie claims. Accordingly, we affirm as to this issue.
II.
We review de novo a district court’s grant of summary judg-
ment, “construing all facts and drawing all reasonable inferences in
favor of the nonmoving party.” Jefferson v. Sewon Am., Inc., 891
F.3d 911, 919 (11th Cir. 2018) (quotation marks omitted). Sum-
mary judgment is appropriate when the record evidence shows
that “there is no genuine dispute as to any material fact” and the
moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a).
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21-12854 Opinion of the Court 5
The EPA prohibits employers from discriminating against
their employees by paying their employees at different rates for the
same work based on sex. 29 U.S.C. § 206(d)(1). We use a burden-
shifting framework to analyze sex discrimination claims brought
under the EPA. Mulhall v. Advance Sec., Inc., 19 F.3d 586, 590
(11th Cir. 1994). Under the EPA framework, the plaintiff bears the
initial burden of establishing a prima facie case of discrimination in
pay based on sex. Id. A plaintiff can establish a prima facie EPA
discrimination claim “by showing that the employer paid employ-
ees of opposite genders different wages for equal work for jobs
which require equal skill, effort, and responsibility, and which are
performed under similar working conditions.” Steger v. Gen. Elec.
Co., 318 F.3d 1066, 1077-78 (11th Cir. 2003) (quotation marks omit-
ted). The plaintiff’s initial burden is “fairly strict,” requiring her to
show that she performed “substantially similar” work for less pay.
Miranda v. B&B Cash Grocery Store, Inc., 975 F.2d 1518, 1526 (11th
Cir. 1992). In comparing whether the plaintiff’s job is substantially
similar to that of the alleged comparator, the focus is on the main
duties of each job, not on the individual employees holding those
jobs, or on incidental or insubstantial job duties. Id. at 1533. Alt-
hough job titles are entitled to some weight in making this evalua-
tion, they are not dispositive. Mulhall, 19 F.3d at 592.
In Mulhall, we held that the plaintiff met her burden of es-
tablishing a prima facie case by showing the position of Vice-Presi-
dent, Controller was substantially similar to her position as Vice-
President, Administration. Id. at 595. We noted that the
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Controller was primarily responsible for the company’s economic
well-being but was also responsible for administrative functions,
and while Mulhall was primarily responsible for administration,
monetary concerns permeated all aspects of her position. Id. at
594. Further, we noted that both positions required great effort,
but a jury could conclude Mulhall’s position required more effort
because she was responsible for more diverse components com-
pared to the relatively homogenous job tasks of the controller. Id.
Finally, we reasoned that the difference in responsibilities: that
“one vice president manages money primarily and people second-
arily; the other manages people and things primarily and money
secondarily,” was not sufficient to conclude the positions were not
substantially similar. Id. at 595.
If the plaintiff establishes a prima facie case, the employer
may avoid liability by proving, by a preponderance of the evidence,
that the pay differential is justified based on one of four affirmative
defenses outlined in the EPA: (i) a seniority system; (ii) a merit sys-
tem; (iii) a system which measures earnings by quantity or quality
of production; or (iv) a differential based on any factor other than
sex. Irby v. Bittick, 44 F.3d 949, 954 (11th Cir. 1995); 29 U.S.C.
§ 206(d)(1). The defendants “must show that the factor of sex pro-
vided no basis for the wage differential.” Irby, 44 F.3d at 954. Alt-
hough the prior salary of an employee cannot solely justify a pay
disparity, “there is no prohibition on utilizing prior pay as part of a
mixed-motive, such as prior pay and more experience.” Id. at 955.
If an employer shows that a pay differential is justified based on one
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21-12854 Opinion of the Court 7
of the four affirmative defenses outlined in the EPA, the plaintiff
must rebut the explanation by showing with affirmative evidence
that the employer’s offered explanation is pretextual or otherwise
offered as a post-event justification for a gender-based difference.
Id. at 954.
Here, the district court did not err in granting summary
judgment for Defendants because Calicchio failed to raise a dispute
of material fact that Mayotte, Castell, Steigelfest, or Viola were
valid comparators. There is no genuine dispute that the compara-
tor’s positions were substantially similar to Calicchio’s because the
primary job duties of each position are different.
Even if she established a valid comparator, summary judg-
ment was still proper. Defendants met their burden of showing
pay differences were based on factors other than sex, and Calicchio
failed to sufficiently rebut Defendants’ explanation for the pay dif-
ference because she does not identify affirmative evidence and in-
stead relies on subjective testimony. Accordingly, we affirm as to
this issue.
III.
Under Title VII, it is unlawful for an employer to “discharge
. . . or otherwise to discriminate against any individual with respect
to [her] compensation, terms, conditions, or privileges of employ-
ment, because of [her] . . . sex.” 42 U.S.C. § 2000e-2(a)(1). A plain-
tiff asserting intentional discrimination claims under Title VII
“must make a sufficient factual showing to permit a reasonable jury
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8 Opinion of the Court 21-12854
to rule in her favor.” Lewis v. City of Union City, 918 F.3d 1213,
1217 (11th Cir. 2019) (en banc). A plaintiff “can do so in a variety
of ways, one of which is by navigating the now-familiar three-part
burden-shifting framework established by the Supreme Court in”
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Id. Under
this framework, the plaintiff has the burden to establish her prima
facie case. Id. If the plaintiff makes out her prima facie case, the
burden then shifts to the employer to articulate a legitimate, non-
discriminatory reason for its actions. Id. If the employer meets
that burden, then the burden shifts back to the plaintiff to show
that the employer’s proffered reasons were merely pretext for un-
lawful discrimination. Id.
Title VII and the EPA have different burdens of proof. “A
plaintiff bringing an EPA claim must meet the fairly strict standard
of proving that she performed substantially similar work for less
pay,” but need not show discriminatory intent. Miranda, 975 F.2d
at 1526. Under Title VII, “there is a relaxed standard of similarity
between male and female-occupied jobs, but a plaintiff has the bur-
den of proving an intent to discriminate on the basis of sex.” Id. In
order to prove that an employer treated a similarly situated indi-
vidual outside of the employee’s protected class more favorably,
the employee must show that she and her proffered comparators
were similarly situated in all material respects. Lewis, 918 F.3d at
1224. Generally, a similarly situated comparator will engage in the
same basic conduct as the plaintiff, will be subject to the same
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21-12854 Opinion of the Court 9
policies, have the same supervisor, and share the plaintiff’s employ-
ment or disciplinary history. Id. at 1227–28.
A plaintiff can show pretext by demonstrating weaknesses,
implausibility, inconsistencies, incoherencies, or contradictions in
the proffered reason for the employment action such that a reason-
able factfinder could find them unworthy of credence. Springer v.
Convergys Customer Mgmt. Grp., Inc., 509 F.3d 1344, 1348 (11th
Cir. 2007). If the proffered reason is one that may motivate reason-
able employers, however, the plaintiff must “meet it head on and
rebut it” instead of merely quarreling with it. Id. at 1350.
In the alternative to the McDonnell Douglas framework, a
plaintiff can survive summary judgment if she presents “a convinc-
ing mosaic of circumstantial evidence that would allow a jury to
infer intentional discrimination.” Lewis, 934 F.3d at 1185. This in-
cludes evidence that demonstrates suspicious timing, ambiguous
statements, and other conduct from which an inference of discrim-
inatory intent might be drawn; systemically better treatment of
similarly situated employees; and that the employer’s justification
is pretextual. Id.
Here, Calicchio failed to raise a dispute of material fact that
the difference in her pay resulted from intentional discrimination.1
1 Onappeal, Calicchio challenges only the district court’s grant of summary
judgment on her Title VII pay discrimination claim. Accordingly, she aban-
doned any challenge to her Title VII discrimination claims with respect to her
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10 Opinion of the Court 21-12854
Even if she met her burden of establishing a prima facie case under
the more lenient Title VII standard, Calicchio cannot show that any
difference in her pay is the result of intentional discrimination. De-
fendants offered valid justifications for the differences in pay, and
there is no genuine dispute of material fact that the justifications
are not pretext. Moreover, Calicchio failed to establish a prima fa-
cie case by showing a convincing mosaic of intentional discrimina-
tion. The evidence relied upon is subjective and would not allow
a jury to infer intentional discrimination. Accordingly, we affirm
as to this issue.
IV.
Title VII prohibits employers from retaliating against an em-
ployee because she engaged in statutorily protected activity. 42
U.S.C. § 2000e-3(a). Absent direct evidence of retaliation, we em-
ploy the McDonnell Douglas burden-shifting framework when an-
alyzing retaliation claims. Brown v. Ala. Dep’t of Transp., 597 F.3d
1160, 1181 (11th Cir. 2010).
A prima facie claim of retaliation under Title VII requires the
plaintiff to show that: (1) she engaged in a statutorily protected ac-
tivity; (2) she suffered a materially adverse employment action; and
(3) there was a causal connection between her protected activity
and the adverse action. Chapter 7 Tr. v. Gate Gourmet, Inc., 683
F.3d 1249, 1258 (11th Cir. 2012). A materially adverse employment
discharge from employment or denial of further employment. See Timson v.
Sampson, 518 F.3d 870, 874 (11th Cir. 2008).
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21-12854 Opinion of the Court 11
action is an action that “might have dissuaded a reasonable worker
from making or supporting a charge of discrimination.” Burlington
Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quo-
tation marks omitted).
To show a causal connection, the plaintiff must show that
(1) the decision-maker knew of her protected activity, and (2) the
protected activity and adverse action were not wholly unrelated.
Shannon v. BellSouth Telecomms., Inc., 292 F.3d 712, 716 (11th
Cir. 2002). If the alleged retaliatory conduct occurred before the
employee engaged in protected activity, the two events cannot be
causally connected. See Cotton v. Cracker Barrel Old Country
Store, Inc., 434 F.3d 1227, 1233 (11th Cir. 2006) (explaining that
there was no causal link between the alleged retaliatory conduct
and the plaintiff’s complaint of harassment where the decision to
decrease the plaintiff’s work hours had been made and conveyed
to the plaintiff when she was hired).
To meet its burden under the intermediate step, the em-
ployer must clearly explain the non-retaliatory reasons for its ac-
tions, but it need not establish those reasons by a preponderance of
the evidence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,
259-60 (1981). Finally, to show pretext, the plaintiff must show that
the employer’s proffered reason is false and that the true reason
was retaliatory. Goldsmith v. Bagby Elevator Co., 513 F.3d 1261,
1277 (11th Cir. 2008). In doing so, the plaintiff must meet the rea-
son “head on” and rebut it and cannot succeed simply by disputing
the wisdom of the reason. Chapman v. AI Transp., 229 F.3d 1012,
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12 Opinion of the Court 21-12854
1030 (11th Cir. 2000) (en banc). And in rebutting the employer’s
nonretaliatory reason, the plaintiff must show that, but for her pro-
tected conduct, the employer would not have taken the alleged ad-
verse action. Tolar v. Bradley Arant Boult Cummings, LLP, 997
F.3d 1280, 1294 (11th Cir. 2021).
As an initial matter, there is no genuine dispute that Calic-
chio was informed that her employment would end before she
raised gender pay gap issues with Perlberg, so she cannot state a
claim of retaliation based on her discharge from employment.
Summary judgment was also proper on Calicchio’s retalia-
tion claim with respect to the denial of consideration for the role of
Director of PEO Centralized Services with Paychex. While Calic-
chio established a prima facie claim of retaliation, Defendants met
their burden of explaining the legitimate, nonretaliatory justifica-
tion. Defendants viewed Calicchio as an HR executive and the po-
sition as a business operations role, and there is no genuine dispute
of material fact that the justification is not pretextual. Accordingly,
we affirm as to this issue.
AFFIRMED.