[ DO NOT PUBLISH] 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. USCA11 Case: 21-12854 Date Filed: 07/15/2022 Page: 1 of 122 Opinion of the Court 21

- 12854

____________________ Appeal fro m the United States District Court for the Southern District of Florida D.C. Docket No. 9:19

- cv

- 81292

- RAR

____________________ Before G RANT , L AGOA , and B RASHER , 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”)

. S he 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 Ri ghts 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 Operati ng Officer (“COO”) ; Mike Viola, Chief Sales Officer, (“CSO”); and Joel Steigelfest, Chief Information Officer (“CIO”). Paychex acquired Oasis in December 2018. In granting summary USCA11 Case: 21-12854 Date Filed: 07/15/2022 Page: 2 of 1221

- 12854 Opinion of the Court 3judgment, 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,

s he argues that summary judgment was not proper on her EPA claims for pay discrimination because there was a genuine dispute of mate rial fact as to whether she identified proper comparators and showed Defendants’ justifications for pay differences were pretext. Third, s he argues that summary judgment was not proper on her Title VII claim for pay discrimination because there was a genu ine 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 Gr p, , Inc. , 389 F.3d 1339, 1353 (11th Cir. 2004). Each party must disclose the names o f individuals who likelyhave 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. USCA11 Case: 21-12854 Date Filed: 07/15/2022 Page: 3 of 124 Opinion of the Court 21

- 12854
26(a)(1)(A)(i). The parties are required to supplement incompleteRule 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 harm less.” 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 todisclose 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 s ubstantially 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. , 891F.3d 911, 919 (11th Cir. 2018) (quotation marks omitted). Summary judgment is ap propriate 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). USCA11 Case: 21-12854 Date Filed: 07/15/2022 Page: 4 of 1221

- 12854 Opinion of the Court 5 The EPA prohibits employers from discriminating against their emp loyees 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 (11 th 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 p aid 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 j ob 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, Control ler was substantially similar to her position as Vice

President, Administration. Id. at 595. We noted that the USCA11 Case: 21-12854 Date Filed: 07/15/2022 Page: 5 of 126 Opinion of the Court 21

- 12854

Controller was primarily responsible for the company’s economic well

- being but was also responsible for administrative functions, and while Mul hall 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 esta blishes 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 affirmativedefenses 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 o f 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 mor e experience.” Id. at 955. If an employer shows that a pay differential is justified based on one USCA11 Case: 21-12854 Date Filed: 07/15/2022 Page: 6 of 1221

- 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 offe red 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 mat erial 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 p rimary job duties of each position are different.
Even if sh e 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 Calicchiofailed to sufficiently rebut Defendants’ explanation for the pay difference bec ause 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 indivi dual with respectto [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 showi ng to permit a reasonable jury USCA11 Case: 21-12854 Date Filed: 07/15/2022 Page: 7 of 128 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, theburden 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 showthat 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

- oc cupied jobs, but a plaintiff has the burden of proving an intent to discriminate on the basis of sex.” Id. Inorder to prove that an employer treated a similarly situated individual outside of the employee’s protected class more favorably, the employee m ust 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 USCA11 Case: 21-12854 Date Filed: 07/15/2022 Page: 8 of 1221

- 12854 Opinion of the Court 9
poli cies, 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. Gr p. , 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 Do uglas framework, aplaintiff 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 susp icious timing, ambiguousstatements, 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 summaryjudgment on her Title VII pay discrimination claim. Accordingly, she abandoned any challenge to her Title VII discrimination claims with respect to her USCA11 Case: 21-12854 Date Filed: 07/15/2022 Page: 9 of 1210 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. Defendants offered valid justifications for the differences in pay, and there is no genuine dispute of materi al 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 intention al 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 e mploy 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 (1 1th 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). USCA11 Case: 21-12854 Date Filed: 07/15/2022 Page: 10 of 1221

- 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) (quotation m arks 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 (11t h 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 hi red).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 plai ntiff 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, USCA11 Case: 21-12854 Date Filed: 07/15/2022 Page: 11 of 1212 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 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.

S ummary judgment was also proper on Calicchio’s retaliation claim wi th 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 mettheir burden of explaining the legitimate, nonretaliatory justification . Defendants viewed Calicchio as an HR executive and the position as a business operations role , and t here is no genuine dispute of material fact that the justification is not pretextual. Accordingly,

we affirm as to this issue.
AFFIRMED. USCA11 Case: 21-12854 Date Filed: 07/15/2022 Page: 12 of 12