           Case: 16-13265   Date Filed: 02/27/2017   Page: 1 of 11


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 16-13265
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 4:15-cv-00388-RH-CAS



PATRICIA N. KALU,
SUSAN LINDER-WYATT,

                                                          Plaintiffs-Appellants,

                                 versus

FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES,

                                                          Defendant-Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      ________________________

                            (February 27, 2017)

Before ED CARNES, Chief Judge, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
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       Plaintiffs Patricia Kalu and Susan Linder-Wyatt are female nurse

practitioners at Florida State Hospital, which is overseen by defendant Florida

Department of Children and Families. They make nearly $20,000 a year less than

a particular male nurse practitioner with the same responsibilities. 1 They sued the

Department, contending that that pay disparity violates the Equal Pay Act, 29

U.S.C. § 206(d)(1), and the district court granted summary judgment in favor of

the Department. This is Kalu and Linder-Wyatt’s appeal.

                                                I.

       The Hospital is located in Chattahoochee, Florida, a small town on the

Georgia border. It is responsible for housing and caring for persons who have been

found to be not guilty by reason of insanity or who were incompetent to stand trial.

Because of its isolated location, its difficult patient population, and its limited

budget for employee compensation, it has trouble attracting well-qualified

candidates. Kalu and Linder-Wyatt work in the Hospital’s Forensic Unit, which is

divided into two sections: “Forensic Admissions,” which admits male patients and

cares for them until they reach a certain point of stability, and “Forensic Central,”




       1
          All four nurse practitioners relevant to this case — Kalu, Linder-Wyatt, Michael Peel,
and Brian Ham — are “advanced registered nurse practitioners.” The differences between
“advanced registered nurse practitioners” and “nurse practitioners” have no bearing on this case,
so for the sake of brevity we will refer to all four as “nurse practitioners.”

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which admits female patients and houses stable patients of both sexes.2 Nurse

practitioners in the two sections have the same responsibilities.

       According to Dr. Josefina Baluga, the Hospital’s executive medical director,

she staffs the Forensic Unit on a “global” basis. That means that she looks at how

many employees with the authority to prescribe medication — namely, physicians

and nurse practitioners — are in the Forensic Unit as a whole. She can move

prescribing providers between Forensic Central and Forensic Admissions based on

need, but she has to have a certain minimum number of prescribing providers in

the Forensic Unit or one (or both) of its sections will be understaffed.

       This case involves the salaries of three nurse practitioners in the Forensic

Unit. Kalu worked at the Hospital for a total of eight years before leaving to work

at the Florida Department of Corrections. While working at the Department of

Corrections she earned $77,000 a year. When she returned to the Hospital two

years later, she requested a 10% raise; that request was denied, so she once again

made $77,000 at the Hospital. She later benefitted from a Department-wide $1000

pay increase, bringing her total compensation to $78,000 a year at the time of this

lawsuit. The other plaintiff, Linder-Wyatt, came to the Hospital in 2008 from the

private sector. Her starting salary was $77,250 a year, but she received the same

Department-wide raise as Kalu, increasing her annual wage to $78,250 at the time

       2
         We refer to Forensic Central and Forensic Admissions together as the “Forensic Unit”
for ease of understanding, although it does not appear that the Hospital itself uses that term.
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of this lawsuit. Michael Peel is a male nurse practitioner who previously worked

for seven years at the Hospital with an annual salary of $75,000. In 2013 he

started working at the Florida Agency for Persons with Disabilities, where he

received a 10% pay raise, bringing his salary to $84,975.

      In 2014 another nurse practitioner in Forensic Central, Brian Ham, left for a

private-sector job. Dr. Baluga testified that his departure, combined with the

impending retirement of Dr. Dong, a physician in the Forensic Unit, created a

“critical need” for another prescribing provider in the Unit. In the meantime, Kalu

transferred to Forensic Central for personal reasons. She filled Ham’s old position,

but the transfer created a new vacancy in Forensic Admissions.

      In order to fill that critical need promptly, Dr. Baluga reached out to Peel.

Based on his previous experience at the Hospital, she knew that he was

comfortable with its location and its patient population, and he had had an

“excellent” employment record during his previous tenure there. Peel said he

would consider returning to the Hospital, but only if he received a 10% pay raise

(on top of the 10% increase he had received when he started working at the

Agency for Persons with Disabilities). After that conversation, Dr. Baluga posted

the job vacancy and Peel was the only applicant. As a result, Dr. Baluga submitted

a request to the Department to hire Peel with a 10% raise, which would result in an

annual salary of nearly $95,000. In her “Justification for Salary Action”

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explaining her request, she stated that the vacancy was for a “very hard-to-fill

position,” that Peel was the only applicant, and that the caseload per prescriber was

increasing due to Ham’s departure and Dr. Dong’s imminent retirement. The

request was granted and Peel began working in Forensic Admissions.

      The result was that there were three nurse practitioners in the Forensic Unit:

Kalu and Linder-Wyatt, who made around $78,000 each, and Peel, who made

almost $95,000. Kalu and Linder-Wyatt sued the Department, contending that the

pay disparity between the two female nurse practitioners on the one hand and the

male nurse practitioner on the other violated the Equal Pay Act.

      Claims under the Act are analyzed using a burden-shifting framework. First,

the employee must present a prima facie case that the Act has been violated.

Steger v. Gen. Elec. Co., 318 F.3d 1066, 1077–78 (11th Cir. 2003). Once the

employee does that, the burden shifts to the employer to show that there is a

permissible reason for the pay disparity. Id. at 1078. If the employer is successful,

the burden shifts back to the employee to show that the reasons offered by the

employer are “pretextual or offered as a post-event justification for a gender-based

differential.” Id.




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       In ruling on the Department’s motion for summary judgment, the district

court found that Kalu and Linder-Wyatt had made out a prima facie case,3 but that

the pay disparity was based on factors “other than sex” and that the Department’s

stated reasons for the disparity were not pretextual. As a result, the district court

granted summary judgment in favor of the Department.

                                              II.

        “We review the district court’s grant of summary judgment in [Equal Pay

Act] cases de novo.” Irby v. Bittick, 44 F.3d 949, 953 (11th Cir. 1995).

“Summary judgment is properly granted if there are no genuine issues of material

fact and the moving party is entitled to judgment as a matter of law.” Id. We must

“constru[e] all facts and draw[ ] all reasonable inferences in favor of the

nonmoving party.” Jones v. UPS Ground Freight, 683 F.3d 1283, 1292–93 (11th

Cir. 2012).

                                              A.

       Kalu and Linder-Wyatt contend that the district court was wrong to find that

the Department had shown that factors “other than sex” created the pay disparity

between them and Peel. Under the Act, a pay disparity is permitted if it results

from “(i) a seniority system; (ii) a merit system; (iii) a system which measures

earnings by quantity or quality of production; or (iv) . . . any other factor other than

       3
       The Department does not challenge the district court’s finding that Kalu and Linder-
Wyatt made out a prima facie case.
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sex . . . .” 29 U.S.C. § 206(d)(1); Steger, 318 F.3d at 1078. The employer must

carry the burden of showing that “the factor of sex provided no basis for the wage

differential.” Id. “Although an employer may not rely on a ‘general practice’ as a

factor ‘other than sex,’ it may consider factors such as the unique characteristics of

the same job; . . . an individual’s experience, training or ability; or . . . special

exigent circumstances connected with the business.” Id. (citation and some

quotation marks omitted).

       Here, the Department presented evidence that factors “other than sex”

caused the disparity. Specifically, it showed that Peel’s salary was a result of

exigent circumstances: a critical need for more prescribing providers in the

Forensic Unit at the time of Peel’s hiring combined with the complete absence of

any other applicant and Peel’s unequivocal position that he would not return to the

Hospital without a 10% pay increase. Unless the Department’s explanation was

pretextual, those exigent circumstances were a permissible reason for the pay

disparity. Accordingly, the district court’s finding that the Department carried its

burden was correct.

                                            B.

       Kalu and Linder-Wyatt also contend that the reasons for the disparity offered

by the Department were pretextual, so summary judgment in the Department’s

favor was not appropriate.

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                                               1.

      They first argue that there was no “critical need” in Forensic Central when

Peel was hired. If true, that would undermine an important explanation for hiring

Peel at all. Kalu and Linder-Wyatt point out that, technically, Kalu was the one

who replaced Ham in Forensic Central; if the need in Forensic Central really had

been so critical, Kalu (not Peel) would have received the raise. But Dr. Baluga

testified that she staffs the Forensic Unit on a “global” basis, so it did not matter

whether Ham specifically left Forensic Central or Forensic Admissions, or whether

Kalu took his old job. What mattered was that in the wake of Ham’s departure, the

total number of prescribing providers in the Forensic Unit had decreased by one

(and it would soon decrease by two when Dr. Dong retired). As a result, Kalu’s

moving to Forensic Central did nothing to fill the Forensic Unit’s critical need — it

may have ameliorated the understaffing problem in Forensic Central, but it created

an understaffing problem in Forensic Admissions. The problem was understaffing

of prescribing providers, not which part of the Forensic Unit they were in.

      Kalu and Linder-Wyatt attack that explanation by asserting that Dr. Baluga

does not actually staff on a global basis. They point to a paragraph in Dr. Baluga’s

affidavit in which she stated that Ham’s departure and Dr. Dong’s retirement

“le[ft] the Forensic Central Unit very short-staffed.” (Emphasis added). But in the

same paragraph of her affidavit she stated that her goal was “ensur[ing] that an

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adequate number of prescribing providers were on staff” because she “assigns staff

to cover patients’ needs, wherever they are located.” (Emphasis added). Her

phrasing may be odd, but the overall point is clear: departures in the Forensic Unit

as a whole created a global need for prescribing medical staff. Again, Kalu’s

transfer could not fill that need. 4

       In addition, Kalu and Linder-Wyatt assert that statements they made in their

depositions created a genuine issue of material fact as to whether there was a

critical need for another nurse practitioner in the Forensic Unit when Peel was

hired. The record does not support that assertion. As an initial matter, none of the

testimony they cite — with one exception — goes to the need for an additional

prescribing provider in Forensic Unit as a whole.

       The one exception is Linder-Wyatt’s statements during her deposition that

“there was not” a critical need in Forensic Admissions and that “[t]here was a

need, but not a critical need” in Forensic Central after Ham left and before Peel

was hired. But if a nonmoving party’s contradictory evidence “is merely

colorable, or is not significantly probative, summary judgment may be granted.”

Bailey v. Allgas, Inc., 284 F.3d 1237, 1243 (11th Cir. 2002). Linder-Wyatt


       4
          Along the same lines, Kalu and Linder-Wyatt claim that Dr. Baluga’s “Justification for
Salary Action” requesting a raise for Ham (before he left) indicates that there was a critical need
only in Forensic Central. If anything, that letter cuts against their argument, as it states only that
Ham worked in “Forensic Services,” a term that seems to encompass both Forensic Central and
Forensic Admissions. That suggests that the Forensic Unit as a whole would lose a nurse
practitioner. The letter does not specifically mention Forensic Central or Forensic Admissions.
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worked in only one of the two forensic sections and had no experience staffing the

Forensic Unit, nor did she have the responsibility that Dr. Baluga did for ensuring

that patients were receiving the legally mandated standard of care. Though her

personal observation about the workload in the Forensic Unit may provide “some

evidence,” that “is not sufficient for denial of summary judgment” unless there is

“sufficient evidence favoring the nonmoving party for a jury to return a verdict for

that party.” Id. Linder-Wyatt’s conclusory statements, without any specifics or

supporting evidence, are not enough to create a “genuine issue for trial.” See id.

(emphasis omitted).

      The upshot is that Dr. Baluga’s testimony established why there was a

critical need in the Forensic Unit at the time of Peel’s hiring, and why the higher

salary for Peel was necessary; Kalu and Linder-Wyatt failed to rebut that evidence.

The district court correctly found that there was no genuine issue of material fact

that the explanation was pretextual.

                                          2.

      Kalu and Linder-Wyatt’s other argument is that the Department did not have

a policy of “automatically” offering a 10% pay raise to employees transferring

from another agency. As such, they assert that Peel should not have received a

10% pay raise for transferring from the Agency for Persons with Disabilities. But

the Department does not claim that Peel received his raise automatically because

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he was transferring from another agency. Instead, the Department provided the

raise because there was a critical need to fill the vacancy, Peel was the only

applicant, he was well qualified, and he would not take the job without the raise.

The absence of a general policy of offering raises automatically on the basis of

transferring from outside the Department is beside the point.

                                         III.

      Peel benefitted from good timing, but good timing is gender-neutral. It is a

factor “other than sex.” Kalu and Linder-Wyatt did not put forward evidence

creating a genuine issue of fact that the Department’s offered reasons were

pretextual. As a result, the district court’s grant of summary judgment in favor of

the Department is due to be affirmed.

      AFFIRMED.




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