Barry Harrison v. S.C. Dept. of Mental Health

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 3:12-cv-01754-JFA. Copies to all parties and the district court. [999615532].. [14-2096]

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UNPUBLISHED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Vacated and remanded by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.

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PAMELA HARRIS, Circuit Judge:
Barry
summary

Harrison

judgment

and

colleagues

their

to

two

appeal

employer,

the

the

grant

South

of

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,
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performing

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painting,

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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”).
December

30,

The parties agreed to settle the suit on

2010.

The

settlement

agreement

(the

“2010

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

Roach,

$100,000

and

Hawkins.

lump-sum

First,

payment

that

DMH

agreed

was

to

be

to

make

split

a
by

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

and

salaries

costs.
by

$4,000

Second,
per

DMH

year,

agreed
pending

to

increase

approval

by

the

men’s

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.
3

DMH

consolidated

its

four

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existing maintenance shops into two, and gave many employees new
responsibilities
Specifically,

or

the

transferred
Department

them

to

different

transferred

two

locations.

of

the

four

supervisors of its pre-consolidation maintenance shops, all of
whom

were

white,

into

consolidated shops.
then

given

manager

and

Harrison,
applied

Roach,

for

any

supervisory

other
and
of

supervisor

positions

for

the

two

The two remaining shop supervisors were

different
the

the

as

a

one

supervisor

Hawkins
these

roles,

at

testified

that

four

positions

as

an

building

energy

they

had

a

plant.

would

have

made

them

DMH

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.
these

According to the plaintiffs, the first two of

“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.
4

However,

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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.
managers

involved

with

authorizing

the

September

2011

DMH

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.
deny

that

they

Harrison, Roach, and Hawkins, however,

understood

the

correction for salary compression.

salary

adjustment

to

be

a

The text of the settlement

agreement makes no reference to a compression study, and does
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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,

produced a new pay imbalance among TS-IVs.

and

that

they

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

other black TS-IVs.

comparable

experience,

and

$160

less

than

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

Carolina in June 2012.

Title

VII

in

the

District

of

South

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.

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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,

plaintiffs’

claims

the

magistrate

failed,

whether

judge

concluded

considered

that

under

the

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

determined

that

plaintiffs

by

September

raise,
round

and
of

the

the

that

2011

raises,

$4,000-per-year

2010

the

settlement

three

compression

magistrate

adjustment

was

plaintiffs

raises

the

awarded

in

fact

were
in

provided
a

judge

raises

2011

in

noted,
were

some

black.

of

the

September

As

a

TS-IVs

result,

the

compression

excluded

because they already had received such raises.
magistrate

judge

from
2011

the
only

Moreover, the

who

did

according

receive
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

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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.
related

to

the

restructuring

of

the

Physical

The allegations
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.
allegations

that

they

Likewise, as to the plaintiffs’

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

qualified.

plaintiffs

could

not

establish

that

they

were

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’
8

specific

objections

to

the

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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,
§§ 2000e-2,-3.

proceeding,

or

hearing.”

42

U.S.C.

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

discrimination”

—

from
is

making

or

actionable

supporting
in

a

a

charge

retaliation

of

suit.

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68
(2006).
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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.
the

reasons

respect

given

to

additional

most

below,
of

the

fact-finding

we

affirm

the

plaintiffs’

regarding

district

claims

claims

but

related

court
remand
to

the

For
with
for
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

positions in violation of Title VII.

consider

them

for

various

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
10

of

discharged

employees).

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Instead, the unrefuted evidence shows that the personnel actions
in

question

restructuring

were
of

lateral

the

transfers

Physical

Plant

necessitated

Services

by

the

department,

in

which existing shop supervisors, senior to plaintiffs, remained
shop

supervisors

district

court

or

assumed

held

and

new

the

supervisory

magistrate

roles.

judge

As

explained

the
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

failed to make out a case.

district

court

that

plaintiffs

have

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

employees

grant

of

additional

constituted

responsibilities

promotions

or

the

to

filling

two

other

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
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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 racediscrimination suit against the Department.
award

of

summary

issue

cannot

be

judgment
decided

to

as

DMH

a

was

matter

On this claim, an

premature,
of

law

because

without

the

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

Title

VII

engaged

protects

in

exactly

against

a

the

kind

retaliatory

of

activity

response.

that

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

discrimination
activity.”).

F.3d

258,

charges

263

(D.C.

undoubtedly

Cir.

2012)

qualifies

(“[B]ringing
as

protected

Second, DMH admits that the 2010 settlement of
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that lawsuit is the reason that the plaintiffs did not receive
the September 2011 raises.
DMH’s

defense

on

this

Indeed, that is the whole theory of

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

required of a retaliation claim.

the

“but-for”

causation

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
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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

undercompensated relative to statewide averages.

employees

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

compression.

incorporate

pay

raises

adjusting

for

salary

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
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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
1

to

the

signing

of

the

settlement

agreement,

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.

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bearing on both parties’ understanding of its terms.
presented

deposition

testimony

regarding

the

DMH has

Department’s

current view of what was intended in 2010, when the settlement
agreement was negotiated.
provided

no

communicated
plaintiffs.

evidence
at

that

But the DMH managers who testified

that
time,

this
or

view
that

was

it

memorialized

was

shared

by

or
the

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,
factual

we

development

believe

there

regarding

the

is

a

2010

need

for

additional

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

showing

$4,000
that

the

annual

salary

adjustment

adjustment

was

was

understood

by

calculated
both

sides

and
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

16

for

by

the

settlement

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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.
the

EEOC

raises,

DMH argues otherwise, pointing to the fact that

charge
and

plaintiffs’

not

refers
to

counsel

expressly

wages

in

clarified

2

only

2012
at

to

or

the
2013.

argument,

September
But
the

as
two

2011
the
are

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

Services

date

of

hire

department.

for
From

employees
that

raw

in

the

data,

Physical
the

Plant

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.
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The

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district

court

found

wanting,

and

Pg: 19 of 21

the
we

plaintiffs’
understand

charts
the

and

statistical

data

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

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

substantial

questions

about

the

Moultrie

v.

Moreover, DMH

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.
information

might

have

revealed

legitimate

Because that

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
And

do

not

according

identify
to

the

or

differentiate

plaintiffs,

DMH’s

“specialized”
discovery

TS-IVs.

responses

included no other information that would have allowed them to
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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

regarding

necessary.
pay

DMH,

differentials

in

turn,

based

on

may

turn

over

evidence

“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
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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

development.
on

those

stands,

and

instead

require

further

factual

We therefore vacate the grant of summary judgment

claims

and

remand

the

case

for

further

proceedings

consistent with this opinion.
VACATED AND REMANDED

21