                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-1146


SHANA L. MARON, a/k/a Shana L. Kennedy; ERIN HOFBERG; GETRA
HANES,

                Plaintiffs - Appellants,

           v.

VIRGINIA POLYTECHNIC INSTITUTE AND STATE UNIVERSITY,

                Defendant - Appellee.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.     James C. Turk, Senior
District Judge. (7:08-cv-00579-JCT)


Argued:   December 4, 2012                 Decided:   January 31, 2013


Before NIEMEYER, KEENAN, and DIAZ, Circuit Judges.


Affirmed in part, reversed in part, and remanded by unpublished
per curiam opinion.


ARGUED: Nicholas Woodfield, THE EMPLOYMENT LAW GROUP, PC,
Washington, D.C., for Appellants.    Marvin Hudson McClanahan,
BREWSTER, MORHOUS, CAMERON, CARUTH, MOORE, KERSEY & STAFFORD,
PLLC, Bluefield, West Virginia, for Appellee.     ON BRIEF: R.
Scott Oswald, THE EMPLOYMENT LAW GROUP, PC, Washington, D.C.,
for Appellants.   Kay K. Heidbreder, Mary Beth Nash, VIRGINIA
POLYTECHNIC INSTITUTE & STATE UNIVERSITY, Blacksburg, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

       This    appeal    addresses    certain   employment     discrimination

claims brought by three employees against their former employer.

Shana Maron, Getra Hanes, and Erin Hofberg alleged that Virginia

Polytechnic      Institute    and     State   University     (Virginia    Tech)

violated the Equal Pay Act (EPA), 29 U.S.C. § 206(d), by paying

female employees less than male employees performing the same

work   (wage     claims).     Maron    also   alleged   that   Virginia   Tech

retaliated against her in violation of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e-3(a), based on her reports

of sex discrimination (retaliation claim).

       In a jury trial, at the close of the evidence, the district

court determined that Hofberg’s wage claim was time-barred and

entered judgment as a matter of law in favor of Virginia Tech on

that claim.       The jury returned verdicts in favor of Maron and

Hanes on their wage claims, awarding them $25,000 and $15,000,

respectively,      and   awarding     Maron   $61,000   on   her   retaliation

claim.        After considering Virginia Tech’s post-trial motions,

the district court set aside the verdicts, entering judgment as

a matter of law on Maron’s retaliation claim and granting a new

trial on the wage claims of Maron and Hanes.                   A second jury

trial resulted in a judgment in favor of Virginia Tech on those

wage claims.



                                        3
       On appeal, the plaintiffs challenge the district court’s

decision to set aside the jury verdicts in the first trial, and

the court’s entry of final judgment on Hofberg’s wage claim.

Upon   our    review,     we   reverse    the       district     court’s      entry    of

judgment as a matter of law on Maron’s retaliation claim, affirm

the court’s award of a new trial on Maron’s and Hanes’ wage

claims, and affirm the court’s entry of judgment as a matter of

law on Hofberg’s wage claim on the basis that it was time-

barred.



                                         I.

       The evidence regarding the wage claims and the retaliation

claim showed that Maron began working at Virginia Tech in March

2006   as    an   Assistant      Director      of   Development      for    Fine      and

Performing    Arts,     with     an   annual   salary      of    $49,000.      Maron’s

salary increased to $57,225 when she changed positions and began

raising funds for the College of Engineering.

       In May 2006 and in October 2006, Virginia Tech hired both

Hofberg and Hanes as Regional Directors of Major Gifts.                            Both

Hofberg and Hanes were paid $53,500 annually.

       The plaintiffs presented evidence that three male employees

of   Virginia     Tech,    who    were   hired       for   the    same   or    similar




                                          4
fundraising positions as the plaintiffs 1 (male comparators), were

paid higher annual salaries, between $61,000 and $67,000.

       The plaintiffs also presented evidence regarding statements

made by Robert Bailey, Senior Regional Director for Major Gifts,

who supervised both Hanes and Hofberg.                      In April 2007, Maron

expressed an interest in leaving her fundraising position for an

open    position     with   Major    Gifts.        According       to    Maron,   Bailey

asked      her   what   salary     she    expected    to    receive       if   she   were

offered the position.             Maron answered $68,500, because that was

the salary earned by the male employee who previously held the

position.        Maron testified that Bailey responded, “[The previous

male employee] was the head of his household and had mouths to

feed,      and    that’s    why    we     paid    [him]     what    we     paid      him.”

       Maron     also   testified        that    Bailey    told    her    that    hiring

someone like Maron who was “young, newly married” and in “child-

bearing years” would be a “liability,” because the person might

“[be] out [of work] for a significant amount of time.”                               Maron

ultimately withdrew her candidacy for the position with Major

Gifts.       Maron reported this conversation to a human resources

representative and to various supervisors.



       1
       The parties stipulated before trial that the various
positions held by the plaintiffs and the male comparators
constituted the “same job” for purposes of the EPA.



                                            5
       In its defense, Virginia Tech presented evidence regarding

three     other      male    employees      who    held     fundraising             positions

similar to those held by the plaintiffs and who were paid less

than the plaintiffs.            The evidence showed that these four male

employees       received     salaries       of    between    $34,000        and      $48,000

annually.       Evidence also was presented that an additional male

employee holding a similar position earned $49,500 annually.

       Supervisors      overseeing        the    fundraising       staff       at   Virginia

Tech testified concerning the hiring process and the manner in

which an employee’s salary is determined.                         Elizabeth Flanagan,

the    Vice    President     for    University      Development          and    University

Relations      at    Virginia      Tech    and    the   final     decision-maker         for

establishing salaries for all employees working as fundraisers,

stated that individual salary determinations necessarily involve

some    subjectivity,        because      fundraisers       are    hired       to    develop

personal relationships with donors.

       Flanagan and several other supervisors testified regarding

the     gender-neutral       factors       they    consider        in    making        salary

recommendations        and    decisions.          Those    factors       included       fund-

raising       experience,     sales       experience,      and     advanced         degrees.

According       to   Thimothy      Corvin,       Associate       Vice    President       for

Development, an applicant’s experience in work involving sales

shows     critical     skill       development      that     is     an     indicator      of

potential success in fundraising.

                                             6
     All three plaintiffs eventually left their positions with

Virginia Tech.       Hofberg’s employment with Virginia Tech ended in

August 2006, while Hanes and Maron departed in April 2008 and

October 2008, respectively.



                                      II.

     On appeal, the plaintiffs argue that the district court

erred: (1) in setting aside the jury verdict in favor of Maron

on her retaliation claim and entering judgment as a matter of

law in favor of the defendant; (2) in setting aside the jury

verdict in favor of Maron and Hanes on their wage claims and

awarding   a   new    trial   on   those    claims;   and    (3)    in   entering

judgment as a matter of law on Hofberg’s wage claim.                 We address

these arguments in turn.


                                      A.

     We begin with Maron’s retaliation claim and her argument

that the district court erred in setting aside the jury verdict

in her favor and in granting Virginia Tech’s post-trial motion

for judgment as a matter of law on that claim.                    We review the

district court’s decision de novo, viewing the evidence in the

light   most   favorable      to   Maron,    and   drawing    all    reasonable

inferences     in    her   favor   without    weighing      the    evidence   or

assessing the witnesses’ credibility.              See Anderson v. G.D.C.,


                                       7
Inc., 281 F.3d 452, 457 (4th Cir. 2002).                        Judgment as a matter

of law is warranted only when the evidence has failed to provide

a legally sufficient basis on which a jury could have rendered

its verdict in favor of the non-moving party.                          Fed. R. Civ. P.

50.

      The relevant portion of Title VII prohibits discrimination

against    any        employee    who    “has       opposed   any     .    .       .    unlawful

employment practice.”             42 U.S.C. § 2000e-3(a).                 To establish a

prima facie case of retaliation, Maron was required to show that

she: (1) engaged in a protected activity; (2) her employer acted

adversely against her; and (3) the protected activity and the

adverse action were causally connected.                         See Holland v. Wash.

Homes, Inc., 487 F.3d 208, 218 (4th Cir. 2007).                           The parties do

not   materially         dispute       that    Maron     engaged      in       a       protected

activity     by       filing     informal      and     formal     complaints            of    sex

discrimination.          Rather, the central focus of their dispute is

whether Maron presented sufficient evidence from which a jury

could conclude that Virginia Tech acted adversely against Maron,

and that any such action occurred as a result of her protected

activity.

      To qualify as an adverse action under the anti-retaliation

provision     of        Title     VII,    the        employer’s       action           must     be

“materially       adverse”        to     the       employee     and    be      capable          of

dissuading        a     reasonable       employee        from     complaining                about

                                               8
discrimination.         Burlington No. & Santa Fe Ry. Co. v. White, 548

U.S. 53, 68 (2006).             A materially adverse action is not limited

to one that affects terms or conditions of employment; however,

“petty       slights,    minor       annoyances,        and     simple     lack    of     good

manners” do not qualify as adverse actions, because such actions

typically would not deter an employee from complaining.                                 Id. at

64, 68.

       In     the    present     case,    Virginia           Tech     asserts     that     the

district court correctly determined that the trial record did

not   contain       evidence     allowing     a       jury    to    conclude     that    Maron

suffered a materially adverse action.                          Virginia Tech contends

that,    at    most,    a    jury    could    have      found      that   Maron    suffered

“petty slights.”         We disagree with Virginia Tech’s arguments.

       Viewing the evidence in the light most favorable to Maron,

we    hold    that     the    jury    could   have       concluded        that    Maron    was

subjected to actions capable of dissuading a reasonable employee

from complaining about discrimination.                        We base this conclusion

on three sets of circumstances that occurred after Maron engaged

in    the      protected       activity       of       filing       complaints      of     sex

discrimination.

       The     first    set     of    circumstances          arose     while     Maron     was

employed to raise funds for the College of Engineering.                                     In

February      2008,     Maron    received         a    disciplinary       memo    from     her

supervisor      concerning       her     repeated       email       communications        with

                                              9
Flanagan regarding personal issues.                    After Maron received this

memo, Flanagan met with Maron regarding the email communications

and other matters.        Maron testified that during the meeting with

Flanagan,    Flanagan     told       her   that    in    addition       to   the   email

communications, Maron otherwise had “shown very poor judgment,”

and that she needed to “stop pursuing the things that [she was]

pursuing or [Maron would] ruin [her] career in a very public

way.”   According to Maron, Flanagan warned that if Maron wished

to keep her job, she “needed to become invisible” and “stay off

the radar for the next six months at a minimum.”                        Maron further

maintained that Flanagan stated she would be “watching [Maron]

very, very closely.”

     In addition, Maron testified that her supervisor advised

her that he did not “know what [Maron] did, but whatever [she]

did, [she] really pissed [Flanagan and Corvin] off,” and that

they “had it out for [her].”               Although the record also contains

evidence     that    Flanagan        was    frustrated      with    Maron’s        “poor

judgment”    related     to    her    work      with    donors,    we    nevertheless

conclude    that    a   jury   could       have   found:    (1)    that      Flanagan’s

statements    threatening        to    terminate        Maron’s    employment       were

based on Maron’s complaints of sex discrimination; and (2) that

such statements constituted a materially adverse action because

they could have dissuaded a reasonable employee from making or



                                           10
reporting an incident of discrimination.                       See White, 548 U.S. at

68.

       Maron      also       presented           evidence       of      two      additional

circumstances         that     the        jury       could   have      determined        were

materially adverse actions on the part of Virginia Tech.                                 That

evidence related to: (1) Maron’s work performance in fundraising

for the College of Engineering; and (2) actions allegedly taken

by Virginia Tech while Maron was ill and unable to work.

       Maron testified that while working to raise funds for the

College of Engineering, she expected to receive a promotion and

a     salary    increase       based       on     her     “benchmark”         achievements.

However, Maron stated that her benchmarks were “spontaneously

changed”       without   cause,      and    that       she   failed    to     achieve    “two

pieces of the benchmarks that were unachievable for anyone,” one

of    which     was   required       of    Maron       and   not     required     of    other

employees.

       With regard to her absence from work due to illness, Maron

presented evidence that she used three months of “sick” leave

permitted       under    the   Family       and      Medical    Leave    Act 2    when    she

contracted       mononucleosis.            Maron        testified     that     during    this

period of sick leave, her supervisors attempted to replace her.




       2
           29 U.S.C. §§ 2601 to 2654.



                                                11
       We recognize that other evidence in the record conflicted

with    Maron’s      testimony    concerning       whether         her   fundraising

benchmarks improperly were altered, and whether her supervisors

had attempted to replace her while she was ill and unable to

work.     However, when construed in the light most favorable to

Maron, her account of these actions, as well as her testimony

regarding    Flanagan’s      warnings,     provided      a    legally      sufficient

basis on which a jury could have concluded that she suffered

materially        adverse   employment        actions    that       were    causally

connected    to      her    earlier      reports    of       sex    discrimination.

Therefore, based on all the above evidence, we conclude that the

district court erred in entering judgment as a matter of law in

favor of Virginia Tech on Maron’s retaliation claim.

       We next observe that Virginia Tech alternatively moved for

a new trial in the district court on the retaliation claim, an

argument not addressed by the district court.                        Under Federal

Rule of Civil Procedure 50, when a court grants a renewed motion

for judgment as a matter of law and has before it an alternative

motion for a new trial, the court “must also conditionally rule

on any motion for a new trial by determining whether a new trial

should be granted if the judgment is later vacated or reversed.

The court must state the grounds for conditionally granting or

denying the motion for a new trial.”               Fed. R. Civ. P. 50(c)(1).

Because     the     district     court     did     not   make       this    required

                                         12
conditional ruling, we remand the case for consideration whether

a new trial should be granted on Maron’s retaliation claim.                         See

Havird Oil Co., Inc. v. Marathon Oil Co., Inc., 149 F.3d 283,

288 (4th Cir. 1998) (citing Mays v. Pioneer Lumber Corp., 502

F.2d   106,     109   (4th   Cir.       1974),     for    the     proposition    that   a

district court’s failure to follow Rule 50(c) is error).


                                              B.

       Maron and Hanes contend that the district court erred in

setting aside the jury verdict on their wage claims, and in

granting a new trial on those claims.                           We review a district

court’s decision to grant a new trial for abuse of discretion.

Nichols v. Ashland Hosp. Corp., 251 F.3d 496, 500 (4th Cir.

2001); see Fed. R. Civ. P. 59(a).

       In ruling on a motion for a new trial, a court weighs the

evidence and considers the credibility of witnesses.                            King v.

McMillan, 594 F.3d 301, 314 (4th Cir. 2010).                       A court will award

a new trial when the verdict was against the clear weight of the

evidence, was based on false evidence, or would result in a

miscarriage of justice.                Id. at 314-15.           The decision to grant

or   deny   a   motion   for       a    new   trial      lies    within   the   district

court’s discretion.          Id.       We will reverse a court’s ruling only

upon “a definite and firm conviction that the [trial] court []

committed a clear error of judgment in the conclusion it reached


                                              13
upon a weighing of the relevant factors.”                     Westberry v. Gislaved

Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999) (citation omitted).

       To establish a prima facie case of sex discrimination under

the EPA, a plaintiff must prove: (1) that her employer has paid

different wages to employees of opposite sexes; (2) that the

employees      hold    jobs    that     require      equal     skill,       effort,    and

responsibility;        and    (3)    that     such   jobs      are       performed    under

similar      working    conditions.           Brinkley    v.       Harbour    Recreation

Club, 180 F.3d 598, 613 (4th Cir. 1999) (citing Corning Glass

Works v. Brennan, 417 U.S. 188, 189 (1974)).                         After a plaintiff

presents a prima facie case, the burden of persuasion and the

burden of production shift to the defendant.                       Id.

       To    avoid     liability,       the      defendant         must    establish    an

affirmative      defense      by    a   preponderance         of    the    evidence    and

demonstrate that the wage disparity was based on a permissible

factor listed in 29 U.S.C. § 206(d)(1).                       Brinkley, 180 F.3d at

613.     Those factors include an employer’s use of a seniority

system, a merit system, a system based on production, or an

employer’s application of “any other factor other than sex.”                            29

U.S.C. § 206(d)(1).           In the present case, Virginia Tech asserted

that   the    wage     disparities      identified       by    the       plaintiffs    were

explained by permissible factors other than sex, namely, the

other employees’ education, previous work experience, and prior

compensation.

                                            14
       The district court held that Maron and Hanes established

their prima facie case, but determined that the jury verdict was

against the clear weight of the evidence supporting Virginia

Tech’s affirmative defense.          The court stated:

       Viewing the [] evidence as a whole, it is clear that
       Virginia Tech did not compensate on the basis of
       gender; Virginia Tech compensated on the basis of
       experience.   This comports with testimony from Corvin
       and Flanagan who stated that the best predictor of
       future fundraising success is past sales experience.
       The [] evidence could not be clearer: Virginia Tech’s
       compensation decisions were driven by legitimate,
       gender-neutral concerns.    [Maron and Hanes] produced
       no credible evidence at trial demonstrating that
       “relevant sales experience” was merely a pretext for
       discrimination.    Because the jury’s finding that
       Virginia Tech violated the EPA is against the clear
       weight of the evidence, a new trial is proper.

       Maron and Hanes challenge this ruling, asserting that the

jury verdict in their favor was not against the clear weight of

the evidence.      Maron and Hanes contend that Virginia Tech failed

to produce evidence that the wage disparities “actually” were

based on employees’ experience, and instead showed only that the

wage    disparities       “could     have     been”    based   on    employees’

experience.       According to Maron and Hanes, Virginia Tech could

not establish its affirmative defense without producing evidence

of the actual compensation recommendations made when the male

comparators were hired.          We disagree with these arguments.

       Virginia    Tech    was     not   required     to   produce   the   “best

evidence” to demonstrate that it based compensation decisions on


                                         15
gender-neutral factors.               Rather, Virginia Tech was required to

prove that it was more likely than not that factors other than

gender were used in establishing the salaries of the plaintiffs

and the male comparators.               See Brinkley, 180 F.3d at 613.                       We

agree with the district court’s decision that the clear weight

of    the   evidence      demonstrated        that    Virginia       Tech    proved      its

affirmative defense.

       Virginia Tech submitted evidence of four male employees who

were performing the same work as the plaintiffs but were paid

less than all three plaintiffs, and of one male employee who was

paid less than two of the plaintiffs.                    With regard to the male

comparator evidence submitted by the plaintiffs, two of those

higher-paid       male    employees       had     numerous         years    of     relevant

experience     that      the    plaintiffs      did   not     have,    and       the    third

higher-paid     male      employee      had     earned   a    higher        salary      in   a

previous position.

       Virginia    Tech        also   introduced      testimonial          evidence     from

four supervisors who explained the gender-neutral factors that

they    consider    when       establishing      an   employee’s       salary.           This

testimony was corroborated by the actual hiring recommendations

made involving the plaintiffs, which had been created by Corvin

and    submitted    to    Flanagan.        Those      recommendations            referenced

each   candidate’s       education,      experience,         and    comparable         market

salaries.

                                           16
     Although   Maron   and   Hanes   presented   evidence    to   support

their theory of the case, their evidence was insufficient to

establish “a definite and firm conviction” that the trial court

committed a “clear error” in determining that the clear weight

of the evidence supported Virginia Tech’s affirmative defense. 3

See Westberry, 178 F.3d at 261.         Thus, we affirm the district

court’s decision granting Virginia Tech’s motion for a new trial

on the wage claims of Maron and Hanes.


                                  C.

     Finally, we address whether the district court erred in

granting Virginia Tech’s motion for judgment as a matter of law

with respect to Hofberg’s wage claim on the basis that her claim

was time-barred.    As previously explained, we review de novo a

district court’s decision to grant such a motion.        See Anderson,

281 F.3d at 457.

     The statute of limitations for a claim alleging a violation

of the EPA is two years.        29 U.S.C. § 255(a).          However, for

causes of action arising from an employer’s “willful violation”

     3
       We find no merit in Maron’s and Hanes’ additional argument
that the district court applied an erroneous legal standard by
stating that the plaintiffs failed to show that the gender-
neutral basis for Virginia Tech’s salary determinations was
“pretext.”    The record establishes that the district court
applied the correct legal framework in this case and did not
engage in the burden-shifting analysis appropriate in the
context of other types of discrimination cases.



                                  17
of the EPA, the limitations period is three years.                          Id.     Hofberg

last was employed by Virginia Tech in August 2006, more than two

years before the complaint in this case was filed in November

2008, and more than two years before Hofberg “opted in” as a

plaintiff      in    December       2008.      Therefore,         Hofberg’s     claim     was

untimely unless she proved that Virginia Tech willfully violated

the    EPA,     triggering       application        of    the     extended      three-year

limitations period.            A willful violation occurs when an employer

knew,   or     showed       reckless     disregard        for     the   fact,     that    its

conduct was prohibited.                See McLaughlin v. Richland Shoe Co.,

486 U.S. 128, 133 (1988).

       After       reviewing    the     record     and    considering      the     parties’

arguments      on    this     issue,    we    agree      with   the     district    court’s

conclusion that there was insufficient evidence from which a

jury could conclude that Virginia Tech willfully violated the

EPA.    See Fed. R. Civ. P. 50.                The present record shows that to

ensure the equitable treatment of its employees, Virginia Tech

engaged       in     annual     reviews       of    the     employment         market    for

fundraisers.          The supervisors responsible for establishing the

salaries      of    these     employees       testified     regarding      the     numerous

gender-neutral         factors         they     considered         in    making        salary

decisions.           Based     on   this      evidence,      we    conclude       that   the

district court did not err in determining that Hofberg failed to

prove    that       Virginia     Tech    willfully        violated       the    EPA.      We

                                              18
therefore affirm the court’s finding that Hofberg’s wage claim

was time-barred and the court’s entry of judgment as a matter of

law in favor of Virginia Tech.



                                          III.

      In sum, we hold that the district court erred in entering

judgment as a matter of law with respect to Maron’s retaliation

claim, because the evidence provided a legally sufficient basis

on   which    a     jury   could   have    concluded       that   Virginia   Tech’s

actions      were    materially     adverse      and      resulted    from   Maron’s

protected activity.           We therefore reverse that portion of the

district      court’s      judgment,      and    remand     for   a   determination

whether a new trial should be granted on that issue.

      We further hold that the district court did not err with

respect to any of the plaintiffs’ wage claims.                    We conclude that

the district court did not abuse its discretion in granting a

new trial on the wage claims of Maron and Hanes, because the

jury verdict was against the clear weight of the evidence.                       We

also conclude that the district court did not err in entering

judgment as a matter of law on Hofberg’s wage claim, because it




                                           19
was time-barred.   Accordingly, we affirm the district court’s

decisions with respect to the plaintiffs’ wage claims. 4


                                                 AFFIRMED IN PART,
                                                 REVERSED IN PART,
                                                      AND REMANDED




     4
       In light of these holdings, we reject the plaintiffs’
argument that they were entitled to liquidated damages as a
result of Virginia Tech’s failure to comply with the EPA in good
faith.



                                20
