[DO NOT PUBLISH]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 summary 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 retaliation 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 Resources 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 Petrovsky.

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 pretext. Third, she argues that summary judgment was not proper on 

her Title VII claim for pay discrimination because there was a genuine 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 complained 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. Bearint 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 information, 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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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 violates Rule 26(a) or (e) is precluded from using the undisclosed witness unless the failure to disclose the witness “was substantially justified 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 prejudice 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 judgment, “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). Summary 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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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 burdenshifting 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 employees 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 omitted). 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. Although job titles are entitled to some weight in making this evaluation, they are not dispositive. Mulhall, 19 F.3d at 592.

In Mulhall, we held that the plaintiff met her burden of establishing a prima facie case by showing the position of Vice-President, Controller was substantially similar to her position as VicePresident, 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 compared 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 secondarily; 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 system; (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 provided no basis for the wage differential.” Irby, 44 F.3d at 954. Although 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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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 comparator’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 judgment 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 difference because she does not identify affirmative evidence and instead 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 employment, because of [her] . . . sex.” 42 U.S.C. § 2000e-2(a)(1). A plaintiff asserting intentional discrimination claims under Title VII 

“must make a sufficient factual showing to permit a reasonable jury 

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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, nondiscriminatory 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 unlawful 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 burden of proving an intent to discriminate on the basis of sex.” Id. In 

order to prove that an employer treated a similarly situated individual 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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policies, have the same supervisor, and share the plaintiff’s employment 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 reasonable 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 reasonable 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 convincing mosaic of circumstantial evidence that would allow a jury to 

infer intentional discrimination.” Lewis, 934 F.3d at 1185. This includes evidence that demonstrates suspicious timing, ambiguous 

statements, and other conduct from which an inference of discriminatory 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 On appeal, Calicchio challenges only the district court’s grant of summary 

judgment on her Title VII pay discrimination claim. Accordingly, she abandoned any challenge to her Title VII discrimination claims with respect to her 

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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. Defendants 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 facie case by showing a convincing mosaic of intentional discrimination. 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 employee because she engaged in statutorily protected activity. 42 

U.S.C. § 2000e-3(a). Absent direct evidence of retaliation, we employ the McDonnell Douglas burden-shifting framework when analyzing 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 activity; (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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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) (quotation 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 employer must clearly explain the non-retaliatory reasons for its actions, 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 reason “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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1030 (11th Cir. 2000) (en banc). And in rebutting the employer’s 

nonretaliatory reason, the plaintiff must show that, but for her protected conduct, the employer would not have taken the alleged adverse 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 Calicchio 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 retaliation claim with respect to the denial of consideration for the role of 

Director of PEO Centralized Services with Paychex. While Calicchio established a prima facie claim of retaliation, Defendants met 

their burden of explaining the legitimate, nonretaliatory justification. Defendants viewed Calicchio as an HR executive and the position 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. 

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