[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 15-11378

Non-Argument Calendar

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D.C. Docket No. 1:13-cv-00195-ODE

DENISE DIMINO, 

 Plaintiff-Appellant,

 versus

GEORGIA DEPARTMENT OF ADMINISTRATIVE SERVICES, 

 Defendant-Appellee.

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Appeal from the United States District Court

for the Northern District of Georgia

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(November 12, 2015)

Before TJOFLAT, HULL and MARCUS, Circuit Judges.

PER CURIAM:

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Denise Dimino appeals from the district court’s order granting summary 

judgment to her former employer, the Georgia Department of Administrative 

Services (“DOAS”). Relevant to this appeal, Dimino alleged that DOAS 

discriminated against her by paying her less than similarly situated male employees

in violation of the Equal Pay Act (“EPA”), 29 U.S.C. § 206(d), and Title VII of the 

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

We review a district court’s grant of summary judgment de novo, viewing 

all of the evidence in the light most favorable to the non-moving party. Vessels v. 

Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th Cir. 2005) (per curiam). 

Summary judgment is appropriate when there is no genuine dispute of material fact

and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 

56(a).

I.

The purpose of the EPA “is to prevent and combat gender discrimination in 

the provision of wages.” Hundertmark v. Fla. Dep’t of Transp., 205 F.3d 1272, 

1275 (11th Cir. 2000) (per curiam). The statute requires equal pay for men and 

women who perform jobs for the same employer in the same establishment that 

require substantially equal skill, effort, and responsibility under similar working 

conditions. 29 U.S.C. § 206(d)(1); see also Hundertmark, 205 F.3d at 1275. We 

use a burden-shifting framework to determine whether, under the EPA, an 

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employer illegally discriminated against an employee on the basis of that 

employee’s sex. Irby v. Bittick, 44 F.3d 949, 954 (11th Cir. 1995). 

The plaintiff establishes a prima facie case under the EPA by showing that 

“the employer paid employees of opposite genders different wages for equal work 

for jobs [requiring] 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 and citations omitted). “The plaintiff need 

not prove that the job held by her male comparator is identical to hers; she must 

demonstrate only that the skill, effort, and responsibility required in the 

performance of the jobs are ‘substantially equal.’” Miranda v. B & B Cash 

Grocery Store, Inc., 975 F.2d 1518, 1533 (11th Cir. 1992) (quoting 29 U.S.C. 

§ 206(d)(1)). A plaintiff therefore fails to make a prima facie case of unequal pay 

if the job responsibilities of her alleged comparator were greater than her own. See 

Waters v. Turner, Wood & Smith Ins. Agency, Inc., 874 F.2d 797, 799–800 (11th 

Cir. 1989) (per curiam). Although job titles are given some weight in the analysis, 

they alone are not dispositive as to the degree of similarity between different jobs’

responsibilities. Mulhall v. Advance Sec., Inc., 19 F.3d 586, 592 (11th Cir. 1994). 

Once the plaintiff makes out a prima facie case, the employer must prove by 

a preponderance of the evidence that the pay differential is justified by one of the 

exceptions set forth in the EPA. Irby, 44 F.3d at 954. The four affirmative

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defenses an employer can show are “(i) a seniority system; (ii) a merit system; (iii) 

a system which measures earnings by quantity or quality of production; or (iv) a 

differential based on any other factor other than sex.” 29 U.S.C. § 206(d)(1). The 

burden of proof regarding these defenses is “a heavy one” because the employer

“must show that the factor of sex provided no basis for the wage differential.” 

Mulhall, 19 F.3d at 590. Further, the employer must show that none of the 

decisionmakers, whether in middle or upper management, were influenced by 

gender bias. See Anderson v. WBMG–42, 253 F.3d 561, 566 (11th Cir. 2001). If 

the defendant meets its burden under the EPA, “the plaintiff must rebut the 

explanation by showing with affirmative evidence that [the employer’s affirmative 

defense] is pretextual or offered as a post-event justification for a gender-based 

differential.” Irby, 44 F.3d at 954.

As an initial matter, there is no merit to Dimino’s claim that the magistrate 

judge and district court failed to consider the evidence in the light most favorable 

to her. A review of the record shows that the court cited to relevant evidence in the 

record when considering the facts, viewing them in the light most favorable to 

Dimino. Moreover, we find no error in the district court’s conclusion that Tom 

Provancher is not a proper comparator because he and Dimino were not engaged in 

equal work. Provancher’s title was that of “officer,” Dimino’s was “supervisor.” 

Dimino admits that she reported to Provancher, and the record supports the 

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conclusion that Dimino reported only to Provancher. Provancher’s duties included 

development and implementation of the risk-management liability program;

identification and negotiation of premiums, coverage, and deductibles;

management of DOAS staff; and revaluation and recommendation of Georgia’s

liability coverage. Dimino’s duties included supervising, directing, and auditing 

third-party administrator Broadspire; managing the claims-handling process; 

settling claims up to $250,000; and acting as a liaison with the state attorney 

general’s office. She did not directly supervise any DOAS employees. In light of 

this evidence, the district court properly concluded that Dimino and Provancher 

were not engaged in substantially equal work. See Waters, 874 F.2d at 799–800.

We disagree, however, with the district court’s conclusion that Ed Finnegan 

was not a comparator; based on the evidence submitted, Dimino at least presented 

a genuine issue of material fact on this point. During the time Finnegan worked as 

State Auto Insurance Program Officer, he oversaw auto liability claims, handled 

customer-service issues, developed programs, and supervised subrogation and 

indemnification.1

 Finnegan supervised two DOAS employees. His program had a 

budget of about $10 million. Dimino supervised six third-party contractors. Her 

program had a budget of about $30 million. Chris Risley, who was the Director of 

 1

 Finnegan transferred to Director of Fleet Management in July 2010. Dimino does not argue 

that this position was equal work. Rather, she limits her claim regarding Finnegan to his position 

as Auto Program Officer.

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the Risk Management Division, which housed Provancher’s, Finnegan’s, and 

Dimino’s positions, thought that work done by Finnegan and Dimino was similar,

and the two should have been paid roughly the same amount. Risley’s testimony 

makes it at least debatable whether Dimino and Finnegan were engaged in equal 

work. See B & B Cash Grocery, 975 F.2d at 1534 (“If reasonable minds could 

differ on the inferences arising from undisputed facts, then a court should deny 

summary judgment”). 

Nevertheless, DOAS was entitled to summary judgment because it offered 

an affirmative defense that Dimino cannot show is pretextual. According to 

DOAS, the State Personnel Administration (“SPA”) determines the classifications 

for jobs based on duties, requirements, and qualifications, and it set a range of pay 

within each pay grade. DOAS had no control over this process. Dimino’s job 

classification as a “supervisor” was not the same as Finnegan’s, an “officer,” and 

the different titles entail different pay scales. Thus, DOAS did not have the 

authority to pay Dimino the same salary as Finnegan. 

To rebut this defense as pretext, Dimino points to comments by DOAS 

Assistant Commissioner Sherrie Southern that Dimino needed “polish” and that 

she did not embody Southern’s idea of a “professional woman.” But Dimino 

cannot show that these comments are evidence of pretext. Cf. Anderson, 253 F.3d 

at 566 (explaining that the employer must show that none of the decisionmakers, 

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whether in middle or upper management, were influenced by gender bias). 

Southern approved Dimino’s promotion despite her concerns that Dimino lacked 

polish both verbally and in terms of her dress. And Southern denied that Dimino’s 

sex played any role in the decision.2

 Moreover, DOAS submitted statistics 

showing that 74 of its 124 employees were female, including several in leadership 

positions. Since January 1, 2011, DOAS had promoted 24 employees, 18 of whom 

were women. And three of the five highest paid employees were women. In light 

of this evidence, Dimino cannot show that DOAS’s alleged affirmative defense 

was pretext, and DOAS was entitled to summary judgment on Dimino’s EPA 

claim.

II.

Title VII prohibits an employer from discriminating against an individual by 

paying that individual less on the basis of sex. 42 U.S.C. § 2000e–2(a)(1). A 

plaintiff may prove such a discrimination claim either by showing direct evidence 

of discrimination or by indirect evidence, in which instance the familiar

McDonnell Douglas burden-shifting framework applies.3

 Damon v. Fleming 

 2 Dimino argues for the first time on appeal that even if Southern did not set the applicable pay 

grade, she did have the authority to determine Dimino’s salary within the grade. Dimino then 

alleges that the discrimination is evident by Southern’s decision to set Dimino’s pay in the 

middle of the pay grade rather than the high end. Because she raises this argument for the first 

time on appeal, we need not address it. See, e.g., Hurley v. Moore, 233 F.3d 1295, 1297 (11th 

Cir. 2000) (per curiam). 3 A plaintiff can also create a triable issue of fact concerning an employer’s discriminatory intent 

by presenting “a convincing mosaic of circumstantial evidence that would allow a jury to infer 

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Supermarkets of Fla., Inc., 196 F.3d 1354, 1358 (11th Cir. 1999) (citing 

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 

668 (1973)). To make a prima facie case of wage discrimination under Title VII, 

the plaintiff must show that she is a member of a protected class, she received 

lower wages than similarly situated comparators outside the protected class, and 

she was qualified to receive a higher wage. Cooper v. S. Co., 390 F.3d 695, 734–

35 (11th Cir. 2004), overruled on other grounds by Ash v. Tyson Foods, Inc., 546 

U.S. 454, 457, 126 S. Ct. 1195, 163 L. Ed. 2d 1053 (2006).

Once the plaintiff establishes a prima facie case, the burden shifts to the 

employer to present a legitimate, non-discriminatory reason for its action. Rojas v. 

Florida, 285 F.3d 1339, 1342 (11th Cir. 2002) (per curiam). If the defendant 

meets its burden, the presumption of discrimination is rebutted and the employee 

must show that the employer’s reasons were pretext for discrimination. Id. A 

plaintiff may show pretext by pointing to the “weaknesses, implausibilities, 

inconsistencies, incoherencies, or contradictions in the employer’s rationale.” 

Holland v. Gee, 677 F.3d 1047, 1055–56 (11th Cir. 2012) (quotation marks and 

citation omitted). The plaintiff must show that the evidence, when viewed as a 

whole, creates a reasonable inference that the employer engaged in discrimination. 

 

intentional discrimination by the decisionmaker.” Smith v. Lockheed-Martin Corp., 644 F.3d 

1321, 1328 (11th Cir. 2011) (quotation marks omitted). Although Dimino raised this argument 

before the district court, she does not argue that she met this standard on appeal. Thus, she has 

abandoned it. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014).

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Smith v. Lockheed–Martin Corp., 644 F.3d 1321, 1326 (11th Cir. 2011). “In other 

words, the plaintiff has the opportunity to come forward with evidence, including 

the previously produced evidence establishing the prima facie case, sufficient to 

permit a reasonable factfinder to conclude that the reasons given by the employer 

were not the real reasons for the adverse employment decision.” Kragor v. Takeda 

Pharm. Am., Inc., 702 F.3d 1304, 1308–09 (11th Cir. 2012) (quoting Combs v. 

Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997)). Although a comment 

unrelated to the adverse decision may contribute to a circumstantial case for 

pretext, it will usually not be sufficient absent some additional evidence supporting 

a finding of pretext. Scott v. Suncoast Beverage Sales, Ltd., 295 F.3d 1223, 1229 

(11th Cir. 2002).

Here, we agree that summary judgment was proper. First, the standard for 

setting out a prima facie case of wage discrimination under Title VII is less 

stringent that that required under the EPA. Mulhall v. Advance Sec., Inc., 19 F.3d 

586, 598 (11th Cir. 1994). Accordingly, because it is a close call whether Dimino 

established that Finnegan was a proper comparator under the EPA, the same 

analysis applies to the Title VII claim. For the reasons discussed above, the district 

court erred in finding that Dimino could not establish a prima facie case with 

respect to Finnegan. But Dimino’s prima facie case using Provancher as a 

comparator fails for the same reasons as under the EPA. 

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Turning to the second part of the burden-shifting analysis, DOAS proffered 

a legitimate, non-discriminatory reason when it explained that the SPA determines 

job classifications and pay grades. Dimino argues that DOAS failed to meet its 

burden because it did not submit any evidence regarding the SPA guidelines. But 

DOAS submitted deposition testimony and sworn declarations from Risley, 

Townsend, and Southern to explain how salaries were determined. Thus, DOAS 

met its burden.

Moreover, although Dimino argues that DOAS cannot rely on its “honest 

belief” that SPA set salaries, Dimino is mistaken that the law limits “honest belief” 

to cases of misconduct. See Woodard v. Fanboy, L.L.C., 298 F.3d 1261, 1265–66 

(11th Cir. 2002) (explaining that a showing that a defendant has lied about the 

reasons for his acts—that he had a “dishonest belief” in the reasons—can be strong 

evidence that a defendant has acted with discriminatory intent). 

Dimino must show that DOAS’s reason for its salary decision is pretext for 

discrimination on the basis of her sex. Dimino again relies on Southern’s 

statements to meet her burden. But, as discussed above, these statements do not 

show gender bias. Southern approved Dimino’s promotion despite her alleged 

feeling that Dimino was not a professional woman. And Southern testified that 

Dimino’s sex played no role in her decisions. Dimino has offered nothing to show 

that Southern’s comments had any impact on Southern’s salary decision. 

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Accordingly, we AFFIRM the district court’s order granting summary 

judgment.

AFFIRMED.

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