          Case: 15-10003    Date Filed: 09/21/2015   Page: 1 of 13


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-10003
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 8:13-cv-01809-MSS-TBM

LILLIAN LIMA,

                                              Plaintiff - Appellant,

versus

FLA. DEPARTMENT OF CHILDREN AND FAMILIES, et al.,



                                              Defendant - Appellee.

                       ________________________

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

                           (September 21, 2015)

Before JORDAN, ROSENBAUM and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Lillian Lima appeals the district court’s order granting partial summary

judgment and entering final judgment in favor of the Florida Department of Children

and Families on her discrimination claim under the Equal Pay Act, 29 U.S.C. §§

206(d) and 215(a)(3). Ms. Lima argues that the district court erred in concluding that

she did not establish a prima facie case under the Equal Pay Act. She contends that the

district court mistakenly found that (1) she failed to show her job was substantially

similar to the job of her alleged comparator, and that (2) she failed to demonstrate that

DCF’s justification for the pay deferential was pretextual. After a review of the record

and the parties’ briefs, we affirm.

                                           I

      Florida agencies use class titles—usually broad and generic titles—to designate

employees in agency human resource systems. There may be two individuals under

the same class title who perform very different jobs and tasks.

      Ms. Lima began her career with DCF in 2007 as an “Operations Review

Specialist” with an annual salary of $59,999.94. DCF hired Ms. Lima for their

independent living department because of her experience in youth development

programs.

      Ms. Lima created an initiative called “Breaking the Cycle.” She introduced the

initiative to the then-Secretary of DCF, George Sheldon, in late 2010. She also

proposed the creation of a new department, the Office of Minority Affairs, to


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implement the initiative and suggested that she be given the working title of “Director

of the Office of Minority Affairs.” Mr. Sheldon approved of the idea but wanted to

wait until after the holidays before implementing any changes. Over the holidays,

however, Mr. Sheldon resigned as Secretary of DCF.

      David Wilkins became the new Secretary of DCF. When Secretary Wilkins

began his tenure with DCF in January of 2011, Ms. Lima informed him of her

proposal to Mr. Sheldon to create the Office of Minority Affairs and her desire to be

promoted to “Director of the Office of Minority Affairs.” One of Secretary Wilkins’

objectives as the new Secretary of DCF was to improve the public image of the

agency, which had suffered several public scandals regarding the competence of DCF

employees. In March of 2011, he created the Office of External Affairs and hired John

Davis as its Director. Mr. Davis was given an annual salary of $84,999.98, and his

responsibilities included proactively combating DCF’s negative publicity through

marketing and communications. Mr. Davis’ class title was “Operations and

Management Consultant Manager.” His working title was “Director of External

Affairs,” and he reported directly to the DCF Chief of Staff, Vivian Mytretus.

      As Director, Mr. Davis focused on creating positive press for DCF by

promoting some of the statewide programs and by working directly with DCF’s public

information officers. Additionally, Mr. Davis was tasked with developing the Office

of External Affairs by creating new programs such as the “Camps for Champions,” a


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summer camp reuniting foster children with their siblings. The Office of External

Affairs also implemented Ms. Lima’s “Breaking the Cycle” initiative.

       In June of 2011, DCF assigned Mr. Davis supervisory responsibilities and

changed his class title from Operations and Management Consultant Manager to

“Senior Management Analyst Supervisor.” His salary and working title remained the

same. That same month, Ms. Lima was told by her supervisor that she would be

transferred to the Office of External Affairs and that her old position had been

eliminated due to departmental budget cuts. She would begin to report to Mr. Davis,

who was the Director of the Office of External Affairs.

      In July of 2011, DCF changed Ms. Lima’s class title to Operations and

Management Consultant Manager. Her annual salary remained the same at

$59,999.94. As Operations and Management Consultant Manager, Ms. Lima was

tasked with focusing on youth development with an emphasis on culturally specific

programming. She continued to develop the “Breaking the Cycle” initiative and began

working on obtaining the contracts necessary to implement the program. Ms. Lima

also performed other duties at Mr. Davis’ request, such as representing DCF on

assigned committees and workgroups.

      Ms. Lima inquired about receiving a raise in her new position as Operations and

Management Consultant Manager and was directed to submit her request to Mr.

Davis, her new supervisor. Ms. Lima asked Mr. Davis for a 25% increase in salary to


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compensate her for her new duties. Mr. Davis told her that he would need to speak to

Ms. Myrtetus, who controlled the budget. Mr. Davis explained to Ms. Lima that it

would be difficult for her to receive a pay raise when DCF was experiencing budget

cuts. Ms. Myrtetus denied Ms. Lima’s request for a raise. Ms. Lima then e-mailed

Secretary Wilkins regarding her pay raise. He told Ms. Lima she would need to “prove

her worth” before receiving a raise because the budget was tight.

      Ms. Lima received the written job description for her position as Operations and

Management Consultant Manager later that month, which included many of the

original tasks and responsibilities that Ms. Lima had drafted, but Ms. Myrtetus added

additional tasks and responsibilities. The additional tasks involved representing DCF

on assigned committees, workgroups, taskforces, and performing other duties relayed

by Mr. Davis. She also gave Ms. Lima the working title of “Manager of Minority

Relations.” Ms. Lima explained to Ms. Myrtetus that because her new position carried

the title of “Manager,” rather than “Director” she felt the new job was an unwarranted

demotion and that she was under the impression, after having spoken to Secretary

Wilkins about her proposal in January of 2011, that she would be promoted to the

status of “Director.” Ms. Myrtetus, however, explained that because Ms. Lima was

now reporting to Mr. Davis, who was classified as a “Director,” Ms. Lima could not

also be classified as a “Director” under DCF’s management structure.




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      When Ms. Lima later refused to perform her duties as Operations and

Management Consultant Manager, she was terminated in August of 2011. In May of

2013, Ms. Lima filed suit against DCF and Secretary Wilkins asserting, amongst other

claims, that Secretary Wilkins and DCF violated the Equal Pay Act by paying her less

than Mr. Davis, a male employee whose job was substantially equal to hers, when

they both held the title of Operations and Management Consultant Manager.

      In November of 2014, the district court partially granted the defendants’ motion

of summary judgment, because it concluded that Ms. Lima had failed to establish a

prima facie case under the EPA. The district court found that Ms. Lima had failed to

prove that her job was “substantially similar” to that of her alleged comparator, Mr.

Davis, and that the defendants had successfully met their burden in establishing that

the difference in pay was based on a factor other than gender. Ms. Lima’s other claims

proceeded to trial, but the jury found in favor of the defendants. Ms. Lima now

appeals the district court’s November 2014 order granting partial summary judgment

on her EPA claim.

      She argues that the she presented a proper prima facie case and that the

defendants failed to meet their burden of establishing that the pay differential was not

based on gender. Ms. Lima, on appeal, relies heavily on the deposition testimony of

DCF’s classification compensation manager to establish that their jobs were

substantially similar and that Mr. Davis was not performing additional tasks, such as


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developing an outreach strategy, until after he was promoted to Director in June of

2011. Finally, she contends that the district court applied the wrong burden-shifting

test when it concluded that defendants had met their burden in establishing a

nondiscriminatory reason for the pay differential.

                                          II

      We review a district court’s grant of summary judgment de novo, viewing all of

the facts in the light most favorable to the non-moving party. Vessels v. Atl. Indep.

Sch. Sys., 408 F.3d 763, 767 (11th Cir. 2005). Summary judgment is appropriate only

when there is no genuine dispute as to any material fact, and the moving party is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56 (c); Benson v. Tocco, Inc.,

113 F.3d 1203, 1207 (11th Cir. 1997). “If no reasonable jury could return a verdict in

favor of the nonmoving party, there is no genuine issue of material fact and summary

judgment will be granted.” Beal v. Paramount Pictures Corp., 20 F.3d 454, 459 (11th

Cir.1994).

      The Equal Pay Act prohibits sex-based discrimination in the workplace. 29

U.S.C. § 206(d)(1). See Hundertmark v. Fla. Dep’t of Transp., 205 F.3d 1272, 1275

(11th Cir. 2000) (“[The purpose of the EPA] is to prevent and combat gender

discrimination in the provision of wages.”). It dictates that men and women in the

same establishment who perform jobs that require substantially equal skill, effort, and




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responsibility under similar working conditions be paid equally. § 206(d)(1). See also

Hundertmark, 205 F.3d at 1275.

      We utilize a burden-shifting framework to determine whether, under the EPA,

an employer illegally discriminated against an employee based on gender. Irby v.

Bittick, 44 F.3d 949, 954 (11th Cir. 1995). The plaintiff must first establish a prima

facie case under the EPA. Mulhall v. Advance Sec., Inc., 19 F.3d 586, 590 (11th Cir.

1994) (citing Schwartz v. Fla. Bd. of Regents, 807 F.2d 901, 907 (11th Cir. 1987)). To

establish a prima facie case, the plaintiff must show that “the employer paid

employees of opposite genders different wages for equal work for jobs [requiring]

equal skill, effort, and responsibility, and which are performed under similar working

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

      Although “the plaintiff need not prove that her job and those of her comparators

are identical[,] . . . the standard for determining whether jobs are equal in terms of

skill, effort, and responsibility is high.” Mulhall, 19 F.3d at 592 (internal quotation

marks and citations omitted). The plaintiff needs to establish that “an employer pa[id]

different wages to employees of opposite sexes for equal work on jobs the

performance of which requires equal skill, effort, and responsibility, and which are

performed under similar working conditions.” Arrington v. Cobb Cnty., 139 F.3d 865,

876 (11th Cir. 1998) (internal quotation marks and citations omitted). “The plaintiff

need not prove that the job held by her male comparator is identical to hers; she must


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demonstrate only that the skill, effort, and responsibility required in the performance

of the jobs are substantially equal.” Miranda v. B&B Cash Grocery Store, Inc., 975

F.2d 1518, 1533 (11th Cir. 1992) (internal quotation marks omitted). A plaintiff

therefore fails to make a prima facie case of unequal pay if the job responsibilities of

her alleged comparator were greater than her own. See Waters v. Turner, Wood &

Smith Ins. Agency, Inc., 847 F.2d 797, 799–800 (11th Cir. 1989) (“[T]he [employee]

failed to [establish] a prima facie case of unequal pay because the job responsibilities

of [her] male comparators were greater than her job responsibilities.”). Although job

titles are given some weight in the analysis, they are not dispositive. Mulhall, 19 F.3d

at 592.

      Once an employee has established a prima facie case under the EPA claim, the

burden shifts to the employer to show by a preponderance of the evidence that the

differential in pay is justified because it was “based on any [other] factor than sex.” 29

U.S.C. § 206 (d)(1). See also Mulhall, 19 F.3d at 590 (citing Brock v. Ga. Sw. Coll.,

765 F.2d 1026, 1036 (11th Cir. 1985)). We have found in the past that such factors

include “unique characteristics of the same job; . . . , an individual’s experience,

training, or ability; [and] . . . special exigent circumstances connected with the

business.” Irby, 44 F.3d at 955 (quoting Glenn v. Gen. Motors Corp., 841 F.2d 1567,

1571 (11th Cir 1988)).




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      If the employer establishes a nondiscriminatory reason by a preponderance of

the evidence, the burden shifts back to the employee to demonstrate that the

employer’s offered explanation is pretextual or otherwise offered as an after-the-fact

justification for a gender-based difference. See Irby, 44 F.3d at 954. If the employee

fails to meet this burden, summary judgment in favor of the employer is appropriate.

Steger, 318 F.3d at 1078–79.

                                              A

      The district court did not err in granting summary judgment in favor of DCF.

Ms. Lima failed to establish a prima facie case of gender discrimination under the

EPA, because she failed to show that her job was “substantially similar” to Mr. Davis’

job. Ms. Lima asserts that Mr. Davis’ responsibilities were unclear, and she was not

fully aware of what Mr. Davis’ duties were when he began at DCF as Operations and

Management Consultant Manager. Therefore, a reasonable jury could conclude that he

did not assume any additional tasks from those Ms. Lima had when she was

Operations and Management Consultant Manager, until he was promoted to Director.

The record, however, reflects the contrary.

      In support of her contention that she and Mr. Davis had substantially similar

jobs, Ms. Lima relies heavily on the deposition testimony of DCF’s classification

compensation manager, who explained the Operations and Management Consultant

manager job description. The classification compensation manager also testified that


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both Mr. Davis and Ms. Lima held the same classification title of Operations and

Management Consultant Manager, albeit at different times. Although Ms. Lima and

Mr. Davis briefly held the same class title of Operations and Management Consultant

Manager at different times, we have held this is not dispositive. See Mulhall, 19 F.3d

at 592 (holding that although class titles are a relevant part of the inquiry as to whether

two individuals had substantially similar jobs, it is not the end of inquiry). DCF’s

management structure, moreover, reveals that the class title of Operations and

Management Consultant Manager did not necessarily reflect equal positioning within

the Department. For example, when Mr. Davis held that class title, he reported

directly to Ms. Myrtetus, DCF’s Chief of Staff, but when Ms. Lima held the title, she

reported directly to Mr. Davis, the Director of the Office of External Affairs.

      The record here reflects that Mr. Davis’ assigned tasks and objectives during his

tenure as Operations and Management Consultant Manager were different than those

of Ms. Lima when she held the position. The record shows that Mr. Davis, unlike Ms.

Lima, was charged with improving the current community–based programs by

comparing them to each other and replicating the effective methods he discovered

when he was Operations and Management Consultant Manager. Mr. Davis also served

as the head of the Office of External Affairs and was charged with leading that office,

implementing Secretary Wilkins’ objectives, and improving DCF’s negative publicity.

Additionally, Mr. Davis was responsible for everything that came out of the Office of


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External Affairs. Mr. Davis’ job responsibilities, in short, were greater than Ms.

Lima’s. See Evans v. Books–A–Million, 762 F.3d 1288, 1298 (11th Cir. 2014).

Although Ms. Lima argues that a reasonable jury could find that Mr. Davis did not

perform those tasks until after his promotion, she fails to offer any evidence

suggesting this was the case.

      When Ms. Lima assumed the position of Operations and Management

Consultant Manager, she performed none of the larger tasks carried out by Mr. Davis.

Although both Mr. Davis and Ms. Lima were involved in minority affairs and the

development and implementation of community outreach programs like “Breaking the

Cycle,” Mr. Davis’ job involved additional responsibilities. See Evans, 762 F.3d at

1298 (holding that “the employee could not show similarity of work between her and

the alleged comparator because she never performed the additional tasks for her

alleged comparator performed”). Accordingly, Mr. Davis is not a valid comparator.

We therefore hold that the district court did not err in concluding that Ms. Lima failed

to show a prima facie case under the EPA.

                                               B

      As we find that the district court did not err in holding that Ms. Lima failed to

establish a prima facie case under the EPA because she and Mr. Davis did not hold

substantially similar jobs, we need not address whether the district court applied the




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wrong burden shifting standard, when it held that Ms. Lima had failed to rebut the

defendants’ nondiscriminatory justification for the pay differential.




                                         III

      We affirm the district court’s partial grant of summary judgment on Ms. Lima’s

EPA claim.



         AFFIRMED.




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