                                                    [DO NOT PUBLISH]


          IN THE UNITED STATES COURT OF APPEALS

                FOR THE ELEVENTH CIRCUIT           FILED
                 ________________________ U.S. COURT OF APPEALS
                                                    ELEVENTH CIRCUIT
                                                       JUNE 21, 2012
                        No. 10-15106
                                                        JOHN LEY
                  ________________________
                                                         CLERK

               D. C. Docket No. 5:06-cv-01208-SLB

KENDRA HALL,

                                                      Plaintiff-Appellee,

                             versus

SIEMENS VDO AUTOMOTIVE,

                                                    Defendant-Appellant.


                  ________________________

                        No. 10-15107
                  ________________________

               D. C. Docket No. 5:06-cv-01208-SLB

KENDRA HALL,

                                                      Plaintiff-Appellant,

                             versus

SIEMENS VDO AUTOMOTIVE,
                                                                         Defendant-Appellee.

                               ________________________

                      Appeals from the United States District Court
                         for the Northern District of Alabama
                             ________________________

                                       (June 21, 2012)

Before EDMONDSON, ANDERSON and FARRIS,* Circuit Judges.



PER CURIAM:



       This case involves alleged pay discrimination. Claims under Title VII of the

Civil Rights Act and the Equal Pay Act (“EPA”) are involved.

       Plaintiff -- a black woman -- became an employee of Defendant when

Defendant purchased the plant at which Plaintiff worked. At the time of the

purchase, Plaintiff’s salary was lower than comparable white male employees.

This discrepancy continued even after Plaintiff complained to Defendant, began

receiving raises, and brought this action alleging several pay-discrimination-

related claims. A jury returned a verdict finding gender-based pay discrimination



   *
    Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.

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in violation of Title VII and the EPA. The district court denied judgment as a

matter of law and entered judgment against Defendant. We affirm.



                                 BACKGROUND



      Plaintiff Kendra Hall (“Hall”) is a black woman hired by DaimlerChrylser in

1998 to work as an engineer at a plant in Huntsville, Alabama. In the Spring of

2004, the Huntsville plant was sold to Defendant Siemens VDO (“Siemens”). At

the time of the sale, Plaintiff was a Quality Planner and was making approximately

$54,000 annually. As part of the Huntsville plant purchase, Siemens agreed to

maintain the salary of all legacy employees at the plant for one year from the date

of transfer. Plaintiff was covered by this promise. Her annual salary remained

approximately $54,000 through the Spring of 2005 when Siemens announced a

plant-wide raise.

      Spring 2005 marked the first time Plaintiff complained to Siemens about her

compensation. Plaintiff told Siemens that she was the lowest paid Quality Planner

and complained that she was the only Quality Planner being paid according to

“Grade 8” instead of “Grade 9” on the salary scale.




                                         3
      Siemens conducted an investigation in response to Plaintiff’s complaints.

That Plaintiff’s pay differential had no reasonable basis in the Spring of 2005 is

undisputed. Shortly after the investigation, Plaintiff was given an almost ten

percent raise and was upgraded to “Grade 9.” (Siemens also began a Performance

Improvement Plan (“PIP”) for Plaintiff that was designed to address alleged

deficiencies in Plaintiff’s performance. The deficiencies carried the potential for

Plaintiff to be terminated. Plaintiff completed the PIP without serious incident or

consequence.) After these steps were taken, Plaintiff was being paid

approximately $61,000 annually.

      Even after these corrective acts by Siemens, Plaintiff complained to

management that she was still paid less than other Quality Planners. She then

filed an Equal Employment Opportunity Commission (“EEOC”) action in

November 2005 and this civil action in June 2006. The parties agree that raises --

approaching ten percent annually -- were given to Plaintiff after the filing of the

EEOC action and were continued after the filing of this civil action. By trial,

Plaintiff’s annual salary was approximately $78,000.

      Plaintiff’s civil complaint alleged these discriminatory violations:

discrimination on race and gender in violation of Title VII of the Civil Rights Act

of 1964 (“Title VII”), 42 U.S.C. § 2000e-2(a)(1); discrimination based on race in

                                          4
violation of the Civil Rights Act of 1991, 42 U.S.C. § 1981 (“section 1981”); and

discrimination in pay in violation of the EPA, 29 U.S.C. § 206(d)(1). The

complaint also alleged other violations: retaliation in violation of Title VII;

intentional infliction of emotional distress in violation of Alabama state law; and

negligent training/hiring/retention in violation of Alabama state law. Defendant

moved for summary judgment, and the district court granted summary judgment to

Defendant on several of Plaintiff’s claims. The discrimination claims were

allowed to proceed.

        In preparation for trial, the district court rejected a motion in limine filed

by Defendant that focused on admission of information about the PIP. At trial, the

court sustained Batson1 challenges to two of Defendant’s peremptory challenges

of potential jurors.

      At the end of the trial, the jury returned a verdict finding no race

discrimination, but finding liability for gender-based pay discrimination under

Title VII and the EPA. Defendant’s motions for judgment as a matter of law were

then denied, and the district court entered judgment for $58,000 against

Defendant.




  1
   Batson v. Kentucky, 106 S. Ct. 1712 (1986).

                                             5
                                    DISCUSSION



       Defendant contends that the district court erred in not granting judgment as

a matter of law on the gender discrimination claims, that the district court erred in

sustaining the Batson challenges, and that the district court abused its discretion in

allowing certain evidence at trial. Plaintiff cross-appeals, contending that the grant

of summary judgment on the Title VII retaliation claim was error.



                                          I.



       Siemens contends that the district court’s denial of judgment as a matter of law

on the gender discrimination claims was error. Siemens asserts that it is not

responsible for the discriminatory pay differential created by Chrysler and that no

reasonable juror could have found that Siemens discriminated against Plaintiff on the

basis of gender in the light of Siemens’s behavior after taking over the plant,

including giving Plaintiff several raises after she complained about her comparative

pay.

       Siemens contends that the differential in pay between Plaintiff and other

personnel continued after the purchase of the Huntsville plant not because of gender

                                           6
discrimination on Siemens’s part, but rather because of a “factor other than sex:”

Siemens’s internal raise and promotion policies.2 These pay and promotion policies

capped the raise percentage available to personnel -- like Plaintiff -- who did not

change jobs within Siemens: capped at ten percent annually. Siemens argues that,

once the pay differential was brought to its attention, it made concerted efforts within

the constraints of the policies to correct the differential by granting Plaintiff raises

that were at -- or closely approached -- the maximum allowable.

       While the corrective process took several years, Siemens stresses that the large

total raise given to Plaintiff over this period and the proximity of the raises to the top

of the allowed range indicate that Siemens, after taking over the Huntsville plant, was

not committing gender discrimination in continuing to pay Plaintiff less than similarly

situated male personnel.

       We review the denial of a motion for judgment as a matter of law de novo.

Russell v. N. Broward Hosp., 346 F.3d 1335, 1343 (11th Cir. 2003). We will reverse

the denial of a motion for judgment as a matter of law only when no legally sufficient

evidentiary basis exists for a reasonable jury to find against the moving party and the

facts and inferences available in the record point so overwhelmingly in favor of the


   2
    The parties dispute when these policies came into effect; 2005 or 2006. The written policies
carry a January 2006 date, but Siemens contends that the policies were given to the Huntsville
plant and put into effect during 2005.

                                               7
moving party that reasonable people could not arrive at a contrary verdict. See

Ledbetter v. Goodyear Tire & Rubber Co., Inc., 421 F.3d 1169, 1177 (11th Cir.

2005).

      In the light of the facts, Siemens’s position does not require the grant of

judgment as a matter of law to Siemens on either of Plaintiff’s gender discrimination

claims.



                                         A.



      Title VII makes it unlawful for an employer to “discriminate against any

individual with respect to [their] compensation ... because of such individual’s

race, color, religion, sex, or national origin[.]” 42 U.S.C. § 2000e-2(a)(1). We

have established a multi-step burden-shifting method for analyzing Title VII

gender discrimination claims. We have said that “a female Title VII plaintiff

establishes a prima facie case of sex discrimination by showing that she occupies a

job similar to that of higher paid males.” Meeks v. Computer Assocs. Int’l, 15

F.3d 1013, 1019 (11th Cir. 1994). Upon establishment of a prima facie case of sex

discrimination, the burden shifts to the defendant to articulate a legitimate, non-

discriminatory reason for the pay disparity. Id. This burden is not a heavy one;

                                          8
and upon articulation of a non-gender based reason, the plaintiff must demonstrate

by a preponderance of the evidence that the employer had a discriminatory intent

in perpetuating the pay disparity. Id.

      Siemens does not contest that a pay differential existed. For judgment as a

matter of law to be demanded on Plaintiff’s Title VII gender discrimination claim,

Siemens would need to establish that -- based on the record -- no reasonable jury

could have believed that a discriminatory reason was more likely than not the

motivation for Siemens perpetuating the pay differential. The record does not

demand such a conclusion.

      Among other evidence in the record, the evidence about the PIP -- including

evidence about the motivation for the PIP -- combined with the conflicting

evidence about the effective date of Siemens’s raise policies, the length of time it

took Siemens to remedy the pay differential, and Siemens’s having hired or

internally promoted several male quality planners at higher salaries than Plaintiff’s

during 2005 and 2006 is sufficient to allow a jury determination that Siemens

acted with discriminatory intent.




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                                          B.



      The EPA prohibits gender-based compensation discrimination where men

and women are paid different amounts for equal work, in equal jobs, under similar

working conditions -- except where the discriminatory payments are made

pursuant to seniority, merit, or quantity-based compensation systems, or are

“based on any other factor other than sex[.]” 29 U.S.C. § 206(d)(1). Unlike Title

VII, “the EPA establishes a form of ‘strict liability’” because it does not require

discriminatory intent and because the burden is on the defendant to prove that the

demonstrated disparity in pay is the result of “a factor other than sex.” See Meeks,

15 F.3d at 1019.

      For judgment as a matter of law to be demanded on the EPA claim, Siemens

would need to have established -- based on the record -- that no reasonable jury

could have disbelieved Siemens’s proffered “factor other than sex” explanations

for the pay differential between Plaintiff and male employees performing

equivalent jobs. The record does not demand such a conclusion.

      Among other evidence in the record, Siemens’s hiring of male personnel at

higher salaries for equal jobs combined with the evidence discussed in analyzing

Plaintiff’s Title VII gender discrimination claim allows a jury determination that

                                          10
Siemens’s “factor other than sex” explanations were not the cause of the

differential treatment of Plaintiff.



                                           II.



         Siemens also contends that the district court erred during jury selection by

preventing, on Batson grounds, Siemens from using its final peremptory challenge

-- and a later-provided replacement challenge -- against two black venire

members: only three black people were prospective jurors. Siemens chiefly argues

that the district court did not follow the proper procedure in applying Batson to the

peremptory challenges in question and that these errors demand the grant of a new

trial.

         Briefly stated, Batson and its progeny establish a three-step process for

analyzing equal protection challenges to a party’s attempted use of peremptory

strikes during jury selection. See, e.g., Central Alabama Fair Housing Center, Inc.

v. Lowder Realty Co., Inc., 236 F.3d 629, 636 (11th Cir. 2000). First, a prima

facie case of discrimination must be established to the trial court’s satisfaction.

Second, after a prima facie case has been found, the party making the peremptory

strike has the opportunity to offer a non-discriminatory explanation for the

                                            11
challenged strike. Third, the trial court -- looking at any proffered non-

discriminatory explanation and at the facts establishing the prima facie case --

must determine whether purposeful discrimination motivated the challenged

strike. See Batson, 106 S. Ct. at 1724; United States v. Hill, 643 F.3d 807, 837

(11th Cir. 2011); Lowder, 236 F.3d at 636.

      The determinations a district court makes in resolving Batson challenges are

largely based on perceived credibility and context; and so a district court’s Batson

determination “must be sustained unless it is clearly erroneous.” Hill, 643 F.3d at

837-38. When reviewing the resolution of Batson challenges, “we give great

deference to the district court’s finding as to the existence of a prima facie case,”

United States v. Stewart, 65 F.3d 918, 923 (11th Cir. 1995); and once a prima

facie case has been found, the determination on a challenged strike’s actual

motivation is treated as “pure factfinding.” United States v. Walker, 490 F.3d

1282, 1291 (11th Cir. 2007).

      We keep in mind all the relevant circumstances, including the subject matter

of the case being tried. And we appreciate the trial judge (an experienced fact

finder) watched the jurors as they replied to the questions put to them. We see no

reversible error in the district court’s handling of the Batson challenges in this

case. The establishment of a prima facie case of discrimination to the satisfaction

                                          12
of the district court is the chief concern of the first Batson step. The district court

here did find -- explicitly in one instance and implicitly in another -- that a prima

facie case of discrimination was present in both contested strikes. Siemens’s

explanations were rejected. Siemens made no timely objection to the process the

District Court was following: no statement to the district court to assist the court

regarding the best procedure to follow or to highlight the lack (as Siemens sees it)

of a complete explanation provided for finding a prima facie case of

discrimination and disallowing the strikes. No new trial is required on these facts.



                                          III.



      Siemens’s final assertions of error are that the district court abused its

discretion (1) in allowing evidence about the PIP to be presented after the

dismissal of Plaintiff’s retaliation claim and (2) in limiting certain parts of

Siemens’s cross-examination of Plaintiff.

      We review district court rulings on admissibility of evidence for abuse of

discretion. Corwin v. Walt Disney Co., 475 F.3d 1239, 1249 (11th Cir. 2007).

The district court was well within its discretion in making the decisions in




                                           13
question and committed no reversible error in making the evidentiary decisions

that it made.



                                          IV.


      In her cross-appeal, Plaintiff asserts that the grant of summary judgment to

Siemens on Plaintiff’s Title VII retaliation claim was error. Establishment of a

prima facie case of retaliation under Title VII requires a plaintiff to show these

things: (1) that plaintiff engaged in activity protected under Title VII; (2) that

plaintiff suffered an “adverse employment action;” and (3) that the “adverse

employment action” was causally connected to the protected activity. Crawford v.

Carroll, 529 F.3d 961, 970 (11th Cir. 2008); see also Brown v. Ala. Dep’t. of

Transp., 597 F.3d 1160, 1181-1182 (11th Cir. 2010).

      Hall contends that she engaged in protected activity beginning in 2005

when she complained about her pay disparity and that the implementation of the

PIP, her transfer to a different supervisor, being sent on business to Mexico, and

the solicitation of negative comments about her work from co-workers were all

“adverse employment actions” taken in direct response to her protected activity.




                                          14
Summary judgment is demanded on Plaintiff’s retaliation claim because the record

fails to indicate a sufficient “adverse employment action.”



                                    CONCLUSION



      We see no reversible error.

      Judgment as a matter of law was properly denied on the gender

discrimination claims, the resolution of the Batson challenges produced no

reversible error, the district court’s evidentiary decisions were no abuse of

discretion, and summary judgment was properly granted on the Title VII

retaliation claim.

      AFFIRMED.




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