                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-2096


BARRY A. HARRISON; WESLEY T. ROACH; DWAYNE M. HAWKINS,

                Plaintiffs - Appellants,

           v.

SOUTH CAROLINA DEPARTMENT OF MENTAL HEALTH,

                Defendant - Appellee.



Appeal from the United States District Court for the District of
South Carolina, at Columbia.    Joseph F. Anderson, Jr., Senior
District Judge. (3:12-cv-01754-JFA)


Argued:   May 12, 2015                     Decided:   July 7, 2015


Before SHEDD, DUNCAN, and HARRIS, Circuit Judges.


Vacated and remanded by unpublished opinion. Judge Harris wrote
the opinion, in which Judge Shedd and Judge Duncan joined.


ARGUED:   James Paul Porter, J. LEWIS CROMER & ASSOCIATES, LLC,
Columbia, South Carolina, for Appellants.       Vance J. Bettis,
GIGNILLIAT, SAVITZ & BETTIS, LLP, Columbia, South Carolina, for
Appellee. ON BRIEF: James Lewis Mann Cromer, J. LEWIS CROMER &
ASSOCIATES, LLC, Columbia, South Carolina, for Appellants.


Unpublished opinions are not binding precedent in this circuit.
PAMELA HARRIS, Circuit Judge:

        Barry   Harrison    and     two     colleagues      appeal    the     grant   of

summary     judgment       to     their     employer,       the      South     Carolina

Department of Mental Health (“DMH” or “the Department”), on race

discrimination and retaliation claims under Title VII of the

Civil     Rights    Act    of     1964.          Harrison    and     his     colleagues

(collectively, “plaintiffs”) settled a prior race discrimination

suit against the Department in 2010.                    They now allege that a

number of actions taken by DMH since then — including refusing

to   consider      them   for     job     assignments    and      giving     raises   to

similarly situated DMH employees but not to them — constitute

discrimination on the basis of their race and retaliation for

their prior lawsuit.            While we affirm the district court’s grant

of summary judgment to DMH in most respects, we remand certain

claims    related    to    the    challenged       raises    for    further     factual

development.



                                            I.

                                            A.

      Barry     Harrison,        Wesley     Roach,    and    Dwayne        Hawkins    are

maintenance workers for the South Carolina Department of Mental

Health.     Each has worked for DMH for approximately thirty years

and holds the title Trade Specialist IV (“TS-IV”), with “IV”

indicating rank.          Harrison, Roach, and Hawkins are generalists,

                                            2
performing    painting,         carpentry,          electrical,      and   plumbing      work

for the Building Maintenance section of DMH’s Physical Plant

Services department as needed.

       In 2009, Harrison, Roach, and Hawkins, who are black, filed

a lawsuit accusing DMH of discriminating against them on the

basis of their race in their pay and in failing to promote them

(the “2009 lawsuit”).              The parties agreed to settle the suit on

December     30,    2010.           The    settlement         agreement         (the    “2010

settlement”) called for DMH to make two forms of payments to

Harrison,    Roach,       and   Hawkins.            First,    DMH    agreed      to    make    a

single     $100,000       lump-sum       payment       that    was    to    be    split       by

Harrison, Roach, and Hawkins after they paid their attorneys’

fees   and   costs.         Second,       DMH       agreed    to    increase     the    men’s

salaries     by    $4,000    per     year,      pending       approval     by    the    South

Carolina Budget and Control Board’s Office of Human Resources.

This increase was made retroactively effective from 2006, and

will extend until 2016 — more specifically, until the January

31, 2016, date on which the men agreed to resign from their jobs

with DMH.

       The 2010 settlement did not, however, mark the end of these

workers’     concerns       about     racial         discrimination        at    DMH.         In

response to a budgetary shortfall, DMH’s Physical Plant Services

department, where the plaintiffs work, underwent a significant

reorganization       in     July    of    2011.        DMH    consolidated        its     four

                                                3
existing maintenance shops into two, and gave many employees new

responsibilities         or    transferred      them   to    different           locations.

Specifically,      the        Department     transferred         two        of       the     four

supervisors of its pre-consolidation maintenance shops, all of

whom    were    white,    into    the   supervisor      positions            for       the    two

consolidated shops.             The two remaining shop supervisors were

then    given    different       supervisory       roles,     one       as       a    building

manager    and    the    other    as    a   supervisor      at     an       energy         plant.

Harrison,      Roach,    and    Hawkins     testified       that    they         would       have

applied    for    any    of    these    four    positions     had       DMH          made    them

available to applicants.

       While the four maintenance shop supervisors had a higher

rank than the plaintiffs, the plaintiffs claim that DMH also

officially or unofficially promoted three white employees with

the same TS-IV position and rank as them: one who was made a

preventive maintenance supervisor in the heating, ventilating,

and air conditioning unit; another who took on new supervisory

responsibilities; and a third who became a supervisor over the

plumbing unit.          According to the plaintiffs, the first two of

these     “promotions”          were     granted       without          a        competitive

application process; the third, they say, was advertised as open

only to current members of the plumbing unit, which they claim

unfairly excluded general maintenance workers who nevertheless

had extensive plumbing experience, such as themselves.                                However,

                                            4
the first two of the alleged promotions did not come with an

increase in pay or rank, and the plaintiffs admit that they

never actually applied for the position in the plumbing unit, or

spoke to their human resources manager about whether they could

apply.

       In September 2011, less than a year after the settlement of

the 2009 lawsuit, DMH gave salary raises to all TS-IVs with

fifteen or more years of experience except for Harrison, Roach,

and Hawkins (the “September 2011 raises”).               It is undisputed

that this raise was based at least in part on a “compression”

study DMH had undertaken before the 2010 settlement, showing

that the salaries of certain experienced employees, including

TS-IVs, were lagging behind statewide averages for comparable

workers.        According to DMH, the three plaintiffs were excluded

because the $4,000 annual salary adjustment they received as

part of the 2010 settlement was, in effect, a compression-based

raise itself, so that a second raise would be redundant.                    DMH

managers    involved     with   authorizing   the   September   2011   raises

testified that the salary adjustment given to Harrison, Roach,

and Hawkins was a benchmark and “accelerant” for the 2011 raises

given to other TS-IVs.          Harrison, Roach, and Hawkins, however,

deny     that    they   understood   the   salary    adjustment   to   be    a

correction for salary compression.            The text of the settlement

agreement makes no reference to a compression study, and does

                                      5
not explain the nature of the $4,000-per-year adjustment or how

the figure was calculated.

     The plaintiffs now allege that these raises were allocated

in   a   discriminatory    and     retaliatory           manner,   and    that   they

produced a new pay imbalance among TS-IVs.                     Using salary charts

that DMH provided in discovery, they calculate that in 2012,

Harrison, Roach, and Hawkins were paid on average $950 less than

white    TS-IVs   with   comparable       experience,       and    $160   less   than

other black TS-IVs.       In 2013, they find, black TS-IVs were paid

on average $1,000 a year less than white TS-IVs, and Harrison,

Roach, and Hawkins were paid $1,100 less than white TS-IVs and

$100 less than other black TS-IVs.

                                      B.

     Claiming that in these and other matters DMH discriminated

against them on the basis of race and retaliated against them

for bringing their 2009 lawsuit, Harrison, Roach, and Hawkins

brought   an   action    under    Title       VII   in   the   District    of    South

Carolina in June 2012.           The plaintiffs amended their complaint

in December 2013 in order to incorporate events that occurred

after filing.       DMH moved for summary judgment, and in August

2014, a magistrate judge filed a report and recommendation that

summary judgment be granted to DMH on both the discrimination

and retaliation claims.



                                          6
     The magistrate judge agreed with the plaintiffs that they

had administratively exhausted their Title VII claims, including

their disparate pay claims, by adequately presenting them to the

Equal Employment Opportunity Commission (“EEOC”).                                But on the

merits,    the       magistrate      judge   concluded            that    the    plaintiffs’

claims    failed,       whether      considered     under         the    so-called      direct

proof method or under the burden-shifting framework set out in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

     As    to    the     September       2011     raises,         the    magistrate       judge

determined       that    the     $4,000-per-year         adjustment            provided       the

plaintiffs      by    the    2010    settlement        was    in    fact    a    compression

raise,    and    that    the     three    plaintiffs         were       excluded      from    the

round    of     compression       raises     awarded         in    September       2011      only

because they already had received such raises.                                 Moreover, the

magistrate       judge      noted,    some   of    the       TS-IVs      who    did    receive

raises    in    2011     were    black.      As    a    result,          according     to     the

magistrate judge, the plaintiffs had not made out a triable case

that denial of the September 2011 raises was either retaliatory

or discriminatory.

     The       magistrate       judge    similarly       rejected         the    plaintiffs’

claim of pay disparities based on race and retaliation following

the September 2011 raises.                 Those claims, the magistrate judge

determined, rested on inadequate data concerning historical wage



                                             7
payments, based on the plaintiffs’ own calculations and offered

without the necessary context.

      None of the plaintiffs’ other allegations presented close

questions, according to the magistrate judge.                         The allegations

related     to   the     restructuring        of    the   Physical     Plant   Services

department, the magistrate judge reasoned, should be treated as

“failure to promote” claims, which require a plaintiff to show

that there was an “open” position for which he qualified but was

not selected.            The reshuffling of the four pre-consolidation

maintenance shop supervisors into different supervisory roles,

on the other hand, amounted to lateral transfers rather than the

filling of “open” positions.                  Likewise, as to the plaintiffs’

allegations           that     they     were        unlawfully        excluded        from

consideration for other positions, the magistrate judge found

either    that     the    position     in   question      was   not    an    opening    or

promotion, that the plaintiffs had failed to attempt to apply,

or   that    the      plaintiffs      could       not   establish     that   they     were

qualified.       Finally, the magistrate judge found that none of the

other DMH actions of which the plaintiffs complained rose to the

level of a change in the terms of employment or a “materially

adverse” action, as required to state a claim for discrimination

or retaliation under Title VII.

      In September 2014, the district court issued an opinion

responding       to      the   plaintiffs’         specific     objections       to    the

                                              8
magistrate judge’s report and affirming the magistrate judge’s

reasoning on each point.          The district court then adopted the

magistrate judge’s report and recommendation in full and granted

summary judgment to DMH on all claims.               This appeal followed.



                                     II.

     We review the district court’s grant of summary judgment de

novo, and we view the facts in the light most favorable to the

plaintiffs, as the non-movants.           See Stuart v. Camnitz, 774 F.3d

238, 244 (4th Cir. 2014).

     Title VII prohibits employment discrimination on the basis

of an employee’s membership in a protected class and retaliation

based   on   an   employee’s    opposition      to    “any    practice     made   []

unlawful” by Title VII, including participation in a Title VII

“investigation,        proceeding,    or        hearing.”             42    U.S.C.

§§ 2000e-2,-3.     Whereas the types of employment actions that may

be challenged in a discrimination suit are limited in kind by

the text of § 2000e–2(a) to those affecting the “compensation,

terms, conditions, or privileges of employment,” any “materially

adverse” employment action — one that could have “dissuaded a

reasonable    worker     from    making    or    supporting       a    charge     of

discrimination”      —   is     actionable      in     a     retaliation     suit.

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68

(2006).

                                      9
        On appeal, the plaintiffs contend that the district court

erred in granting summary judgment to DMH because they have made

out a triable case of both these forms of Title VII violations,

primarily in connection with raises, wages, and promotions.                                 For

the    reasons       given    below,    we    affirm      the     district      court      with

respect      to      most    of   the   plaintiffs’            claims    but    remand      for

additional        fact-finding      regarding       claims       related       to   the    2011

raises and subsequent pay disparities.

                                              A.

        We begin with the many respects in which we affirm the

district court’s decision.                 As described above, the plaintiffs

have challenged a series of personnel decisions, alleging that

DMH    failed     to    promote    them      or    to    consider       them   for   various

positions in violation of Title VII.                     We agree with the district

court that the plaintiffs have failed to make out a case of

either discrimination or retaliation in connection with those

decisions, and that DMH is entitled to summary judgment on the

claims.

       As the district court explained, many of the positions for

which    the      plaintiffs      allege     they       were    passed    over      were    not

“open” positions, as required to show disparate treatment in

promotions.          See Evans v. Techs. Applications & Serv. Co., 80

F.3d 954, 959 (4th Cir. 1996); see also McDonnell Douglas, 411

U.S.    at     802     (addressing      rehiring         of    discharged       employees).

                                              10
Instead, the unrefuted evidence shows that the personnel actions

in     question       were    lateral      transfers      necessitated        by       the

restructuring     of     the    Physical     Plant     Services       department,       in

which existing shop supervisors, senior to plaintiffs, remained

shop    supervisors      or    assumed     new   supervisory      roles.          As    the

district      court    held    and   the    magistrate        judge    explained        in

detail, these lateral transfers cannot give rise to a failure to

promote claim.

       With respect to the supervisory job in the plumbing unit,

we   again    agree    with    the   district     court   that    plaintiffs           have

failed to make out a case.            It is undisputed that the plaintiffs

did not apply or attempt to apply for that position, and that is

enough to defeat their claims as a matter of law.                      See Evans, 80

F.3d at 959 (plaintiff must have applied or “sought to apply”

for position to make out claim under Title VII).                        And we agree

with the district court that the plaintiffs have failed to show

that    the   grant     of    additional     responsibilities          to   two    other

employees      constituted       promotions       or    the     filling      of        open

positions.

       Finally, we agree with the district court that on the facts

alleged in this case, none of the other actions of which the

plaintiffs complain, unrelated to promotions or to the pay and

raise issues we turn to next, affect the “terms, conditions, or

status of employment” as required to make out a discrimination

                                           11
claim under Title VII, or constitute the kind of “materially

adverse” action sufficient to give rise to a retaliation claim.

                                                 B.

        We    turn   now    to   the     September            2011    raises,          and   to    the

plaintiffs’ retaliation claim in connection with those raises.

According      to    the    plaintiffs,           by    awarding      the        September        2011

raises to every TS-IV employee other than the three of them, DMH

retaliated against them for bringing their earlier 2009 race-

discrimination suit against the Department.                             On this claim, an

award    of    summary      judgment     to       DMH    was    premature,          because        the

issue    cannot      be    decided     as    a     matter       of    law    without         further

factual development regarding the 2010 settlement.

      This is an unusual case, in that most of the facts required

to make out a retaliation claim are not in dispute.                                           First,

there is no question that in bringing their 2009 lawsuit against

DMH for failure to promote and pay discrimination based on race,

the   plaintiffs        engaged     in   exactly         the     kind       of    activity        that

Title    VII    protects      against        a    retaliatory          response.             See    42

U.S.C. § 2000e-3 (protected activity includes participation in a

Title    VII    “investigation,          proceeding,            or    hearing”);         Price      v.

Thompson, 380 F.3d 209, 212 (4th Cir. 2004); see also Gilbert v.

Napolitano,       670     F.3d   258,       263       (D.C.    Cir.     2012)      (“[B]ringing

discrimination            charges    undoubtedly              qualifies           as     protected

activity.”).         Second, DMH admits that the 2010 settlement of

                                                 12
that lawsuit is the reason that the plaintiffs did not receive

the September 2011 raises.         Indeed, that is the whole theory of

DMH’s   defense    on    this    claim:    that   because   the     plaintiffs

received pay adjustments as a result of their 2009 litigation

against the Department, they were not given additional raises in

2011.    That     is    enough   to   satisfy     the   “but-for”    causation

required of a retaliation claim.            See Univ. of Texas Sw. Med.

Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013).               And finally, it

is clear that if DMH deprived Harrison, Roach, and Hawkins in

2011 of a raise given to all other similarly situated employees,

then that would be a “materially adverse” employment action for

purposes of Title VII’s retaliation provision.               See Burlington

Northern, 548 U.S. at 68 (action taken in response to protected

activity constitutes prohibited retaliation if it is “materially

adverse” in that it could have “dissuaded a reasonable worker

from making or supporting a charge of discrimination”).

     As the case comes to us now, then, the key question is

whether Harrison, Roach, and Hawkins actually were deprived of

the September 2011 raises, or whether, as DMH argues, they in

fact received the September 2011 raises, in the form of the pay

adjustments that were part of the 2010 settlement.                  It is only

with the benefit of appellate briefing and argument that the

critical nature of that question becomes clear.                As a result,

what turns out to be a core factual dispute about the nature of

                                      13
the parties’ 2010 settlement agreement was never squarely joined

in the proceedings below.

     On    the   one   hand,   it   appears      to   be   undisputed   that   the

September 2011 raises for the plaintiffs’ fellow TS-IVs were

prompted    at   least    in   part       by   long-standing      DMH   concerns,

predating the 2009 lawsuit, regarding “salary compression,” or a

lack of differentiation between the salaries of experienced and

inexperienced      employees        that       left    experienced      employees

undercompensated relative to statewide averages.                   And multiple

DMH managers testified that the $4,000 annual salary adjustment

received by the plaintiffs pursuant to their 2010 settlement

also was designed to correct for salary compression, and was

thus effectively an early version of the same compression-based

raises that other TS-IV employees received in September 2011.

     On the other hand, the plaintiffs insist that they did not

understand the settlement agreement that concluded their 2009

lawsuit    to    incorporate        pay    raises     adjusting      for   salary

compression.      In his deposition, Harrison expressly denied that

the pay adjustment provided for in the settlement agreement was

the equivalent of the compression-based September 2011 raises.

And the language of the settlement agreement describes neither

the nature of the annual salary adjustments nor the way in which

the $4,000 figure was calculated, shedding no light on whether

$4,000 per year over ten years represents a compression-based

                                          14
adjustment, as DMH would have it, or simply the price DMH was

willing to pay in exchange for settling each plaintiff’s 2009

race-discrimination claim. 1

     We do not think that the critical question of whether the

parties’    2010   settlement   agreement      effectively   granted    the

plaintiffs the same compression-based raise that other employees

received in September 2011 can be resolved as a matter of law on

the record as it now stands.        The interpretation of settlement

agreements is governed by general principles of contract law.

See Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177,

211 (4th Cir. 2009); Pee Dee Stores, Inc. v. Doyle, 672 S.E.2d

799, 802 (S.C. Ct. App. 2008).          Application of those principles

requires evidence that is missing from this record — evidence

contemporaneous    to   the   signing    of   the   settlement   agreement,

     1   The relevant portion of the settlement agreement reads:

     Subject to approval by the South Carolina Budget and
     Control Board’s Office of Human Resources, SCDMH will
     increase each of Plaintiff’s current salaries by Four
     Thousand Dollars ($4,000) annually, retroactive to
     June 2, 2006, and will pay each of Plaintiffs backpay
     associated with the retroactive salary increase, less
     applicable    taxes,    employee    contributions  to
     retirement, and other required withholding. . . . If
     the South Carolina Budget and Control Board’s Office
     of Human Resources approves the retroactive salary
     increases authorized by this paragraph, SCDMH will
     make required employer contributions to the South
     Carolina Retirement System on behalf of each of
     Plaintiffs to account for the retroactive adjustment
     in Plaintiffs’ respective salaries. J.A. 174.



                                   15
bearing on both parties’ understanding of its terms.                                   DMH has

presented       deposition         testimony       regarding            the     Department’s

current view of what was intended in 2010, when the settlement

agreement was negotiated.                 But the DMH managers who testified

provided       no    evidence      that     this       view       was     memorialized         or

communicated        at    that     time,    or     that     it     was       shared    by     the

plaintiffs.         Indeed, with candor that we appreciate, DMH’s able

lawyer conceded at argument that there is no evidence in the

present record indicating that the plaintiffs understood the pay

adjustments         provided       in      their       settlement             agreement        as

compression-based raises.

       Accordingly,        we    believe    there      is     a    need      for     additional

factual       development        regarding       the    2010       settlement’s          salary

adjustment and its relationship, if any, to the September 2011

raises.       On remand, DMH will have the opportunity to present

evidence contemporaneous to the settlement agreement regarding

how    the    $4,000      annual    salary       adjustment        was       calculated       and

showing      that   the    adjustment      was     understood           by    both    sides    to

address salary compression; the plaintiffs, for their part, may

present evidence that in 2010 the parties did not mutually agree

that    the    salary      adjustment       provided        for     by       the     settlement




                                             16
agreement was in the nature of a compression-based raise. 2                         If

after further development the issue is ripe for decision as a

matter of law, then the district court of course may grant a

subsequent summary judgment motion.

                                         C.

      Finally,      we    address      the    plaintiffs’       claim     that     the

September 2011 raises had ongoing and impermissible effects on

wages, reintroducing a race-based disparity in pay between black

and white workers generally, and also generating a disparity

between the plaintiffs’ wages and those of other black TS-IVs

that is indicative of retaliation.                 In support of their claim,

the plaintiffs proffered a statistical analysis of salary charts

for fiscal years 2012-13 and 2013-14 that, they say, shows white

TS-IVs earning more than black TS-IVs generally, and both white

and black TS-IVs earning more than Harrison, Roach, and Hawkins

specifically.

      Preliminarily, we agree with the district court that the

plaintiffs properly exhausted this claim by pleading it in their

EEOC charge.        DMH argues otherwise, pointing to the fact that

the   EEOC    charge     refers   expressly     only   to    the    September     2011

raises,      and   not    to   wages   in     2012   or     2013.     But    as    the

plaintiffs’        counsel     clarified      at     argument,      the     two   are

      2If there is no evidence of a meeting of the minds on this
point, the district court can address that issue.


                                         17
intertwined; the calculations of pay disparity in 2012 and 2013

advanced by the plaintiffs in this suit are intended as evidence

of the retaliatory and discriminatory effects of the September

2011 raises, and not of some independent harm.                     We construe EEOC

charges “liberally” for these purposes, Bonds v. Leavitt, 629

F.3d 369, 379 (4th Cir. 2011), requiring only that the “factual

allegations in the administrative charge [be] reasonably related

to the factual allegations in the formal litigation,” Chacko v.

Patuxent Inst., 429 F.3d 505, 509 (4th Cir. 2005), and like the

district court, we are satisfied that the plaintiffs have met

that standard here.

     Turning     to   the    merits,      the    plaintiffs   framed      their   pay

disparity claims around a series of DMH salary charts, provided

by DMH during discovery, that list the salary, classification,

race,   and    date   of    hire    for   employees     in   the    Physical   Plant

Services      department.          From   that    raw   data,       the   plaintiffs

conducted what they describe as “basic math,” calculating the

averages of the salaries of DMH employees with particular roles,

levels of experience, and race, and then the differences between

those averages.        It is those calculations that the plaintiffs

rely on to show that after the 2011 raises, black TS-IVs were,

on average, paid less than their white counterparts; and that

the plaintiffs, in particular, were paid less than both white

and black comparators.

                                          18
       The    district       court      found   the     plaintiffs’       charts     and

statistical        data     wanting,      and    we     understand       the    court’s

hesitation.        As the magistrate judge explained, there are cases

in which “basic math” is no substitute for expert statistical

analysis, which can ensure that undue weight is not given to

statistically        insignificant        disparities.            See    Moultrie     v.

Martin, 690 F.2d 1078, 1082 (4th Cir. 1982).                            Moreover, DMH

raised       substantial      questions         about    the      failure       of   the

plaintiffs’ data to distinguish between “specialized” TS-IVs —

professionally licensed electricians, plumbers, carpenters, and

the like, who command higher salaries in the job market — and

unspecialized TS-IVs, including the plaintiffs.                          Because that

information        might    have     revealed    legitimate       grounds      for   pay

disparities, it should be accounted for in the data set and

analysis, if possible.             Cf. Matusick v. Erie Cnty. Water Auth.,

757 F.3d 31, 54 (2d Cir. 2014) (Title VII comparators should be

similar in all “material” respects).

       On    the     other     hand,      we    cannot        overlook     DMH’s     own

responsibility for the deficiencies in the plaintiffs’ data set.

The    plaintiffs     are     working,     as    they    must,    from     information

provided to them by DMH in discovery — here, DMH salary charts

that   do    not    identify       or   differentiate         “specialized”     TS-IVs.

And    according      to    the    plaintiffs,        DMH’s    discovery       responses

included no other information that would have allowed them to

                                           19
distinguish among TS-IVs on the basis of level of experience,

education, or skill.

       Courts    often    have    remanded      Title    VII    cases      for    further

factual development when a first round of discovery has failed

to produce information relevant to whether purported comparators

are    “similarly     situated”    to   a    plaintiff,        see,   e.g.,      Bobo    v.

United Parcel Serv., Inc., 665 F.3d 741, 753 (6th Cir. 2012);

Paquin v. Fed. Nat’l Mortg. Ass’n, 119 F.3d 23, 28 (D.C. Cir.

1997), and we think that is the best course to follow here.                              On

remand, the plaintiffs may present, as evidence of disparate

pay,    data    and   calculations      based    on     the   2012–13      and    2013–14

salary charts provided by DMH in discovery, though the district

court is free to impose conditions and safeguards — including a

requirement of expert testimony to contextualize the data — that

it    deems    necessary.        DMH,   in    turn,     may    turn   over       evidence

regarding      pay    differentials     based     on     “specialization,”          along

with any other evidence it considers relevant to identifying the

plaintiffs’      proper     comparators         for     purposes      of    their       pay

disparity claims.



                                        III.

       The district court properly granted summary judgment to DMH

on many of the plaintiffs’ Title VII claims.                            But with the

benefit of appellate briefing and argument, and the refinement

                                         20
of the issues that they bring, we conclude that the plaintiffs’

claims related to the September 2011 raises and subsequent pay

disparities cannot be decided on summary judgment on the record

as   it      now   stands,    and     instead       require   further   factual

development.       We therefore vacate the grant of summary judgment

on   those    claims   and   remand   the    case    for   further   proceedings

consistent with this opinion.

                                                           VACATED AND REMANDED




                                        21
