[00:00:00] Speaker 02: Our next case is number 22, 1822, a lawyer versus United States. [00:00:06] Speaker 02: Okay, Mr. Smith. [00:00:08] Speaker 02: Good morning, your honors. [00:00:09] Speaker 02: My name is Will Smith and I represent Leslie Boyer, the appellant. [00:00:14] Speaker 02: May it please the court? [00:00:16] Speaker 00: Can I ask you a quick housekeeping question first? [00:00:19] Speaker 00: Yes, ma'am. [00:00:19] Speaker 00: The question I have is much of the appendix before us is marked, I believe, confidential. [00:00:27] Speaker 00: Many documents are marked in yellow. [00:00:29] Speaker 00: that appear to be pleadings or handbooks. [00:00:33] Speaker 00: And I'm wondering, is anything in this appendix confidential? [00:00:37] Speaker 00: Because it appears there's a significant over-designation that's occurred. [00:00:43] Speaker 02: We respected the designations by the government and the trial court in putting the appendix together. [00:00:49] Speaker 02: And I agree with you, Your Honor, when I look at the appendix, the trial court's protective order was very broad. [00:00:56] Speaker 02: And what we attempted to do was comply with that and put the appendix together. [00:00:59] Speaker 00: Just so you know, on appeal, our rules do provide the parties should get together and work out whether confidentiality still exists. [00:01:07] Speaker 00: So in the future, I would recommend doing that for both of the parties. [00:01:12] Speaker 00: And I would like to hear from the government later whether any of this is confidential. [00:01:18] Speaker 04: Why don't we do that now? [00:01:19] Speaker 04: That's a good idea. [00:01:22] Speaker 04: Why is this material more confidential? [00:01:27] Speaker 01: Your Honor, good morning, by the way. [00:01:29] Speaker 01: I think that we could make it into a public appendix and remove the designation. [00:01:35] Speaker 01: I realize there was a protective order, except the PII was all redacted. [00:01:40] Speaker 01: And so in consideration of this court's rules, we should have consulted in advance and had more of it public. [00:01:47] Speaker 04: We'll appreciate that. [00:01:49] Speaker 04: Probably this stuff should not have been marked confidential in the first place. [00:01:53] Speaker 04: So I don't know whether you were the counsel below or not, but in the first instance, care should be taken not to mark things confidential or really harmful. [00:02:06] Speaker 04: Yes, sir. [00:02:06] Speaker 04: All right. [00:02:06] Speaker 04: But so why don't you... [00:02:12] Speaker 04: by the stipulation that the appendix material is not confidential. [00:02:17] Speaker 03: Yes, your honor. [00:02:19] Speaker 04: Yes. [00:02:20] Speaker 04: All right. [00:02:21] Speaker 04: So why don't we start Mr. Smith's time again. [00:02:28] Speaker 02: Thank you, your honor. [00:02:33] Speaker 04: Go ahead. [00:02:34] Speaker 02: Okay. [00:02:35] Speaker 02: May it please the court in this equal payout case, [00:02:38] Speaker 02: The court should hold that prior pay alone may not serve as a differential based on another factor other than sex for purposes of establishing an affirmative defense for the employer. [00:02:48] Speaker 04: So you're not arguing for the Ninth Circuit position or the position that's articulated by the [00:02:55] Speaker 02: In this case, Your Honor, I don't think the court needs to go that far because the record, the undisputed record, we have the undisputed admissions by the decision makers that she boarded, Ms. [00:03:06] Speaker 02: Scafianos, that she's the recommended official, that she boarded everybody pretty much the same except for the prior pay stubs. [00:03:14] Speaker 02: And there's no evidence from the government establishing that anything other than prior pay is responsible for the differential of question here. [00:03:21] Speaker 02: So I don't think Your Honors need to go as far as the Ninth Circuit goes. [00:03:25] Speaker 03: Um, our position is to do some form of statutory interpretation, right? [00:03:30] Speaker 03: Yes. [00:03:30] Speaker 02: Yes. [00:03:30] Speaker 03: So we got to choose something. [00:03:32] Speaker 03: I guess you're saying you, you can win under the ninth circuit understanding or one of the more middle ground circuit understanding. [00:03:40] Speaker 02: Right. [00:03:40] Speaker 02: And then we would point towards the 10th and 11th circuits would say that prior pay alone cannot carry the affirmative defense, but winning combination other factors. [00:03:49] Speaker 02: Prior pay can be considered in combination with other factors. [00:03:52] Speaker 02: And that's the approach you're urging that we adopt here? [00:03:56] Speaker 02: Yes, Your Honor, because I think under that approach, summary judgment for the government was erroneous, and the trial court abused its discretion by denying our motion for summary judgment. [00:04:08] Speaker 02: And the reason for that is, first of all, the sworn admissions in the record from Ms. [00:04:14] Speaker 02: Scaffianos and two of the three [00:04:18] Speaker 02: professional standards boards members who are common to the pace-setting decisions of both the plaintiff and her comparator established that she, Ms. [00:04:26] Speaker 02: Scafianos, testified. [00:04:27] Speaker 02: I boarded everybody, but everybody, you know, the same except for the current paces, essentially. [00:04:34] Speaker 00: And we have the other... It's undisputed, isn't it, that everybody, I think, is in agreement that when viewing the facts in favor of Dr. Boyer, the [00:04:45] Speaker 00: it was a reasonable inference to say that prior pay was the only reason for the deferential, right? [00:04:53] Speaker 00: Yes, Your Honor. [00:04:53] Speaker 00: So you don't need to get in to all of this, right? [00:04:55] Speaker 02: Well, but we also have moved for summary judgment, Your Honor, and we believe that after Moore especially makes clear that the plaintiff does not have to prove discriminatory intent. [00:05:07] Speaker 02: The government conceded the prima facie case here, which means that the burden is on the government to prove that it relied on [00:05:15] Speaker 02: on some that the differential came from another factor other than sex and in the holding that we're asking for is that that prior pay cannot be that other by itself cannot be that other factor other than sex. [00:05:29] Speaker 04: But suppose we adopt that position we agree with the canton 11 circuits or other courts that have adopted this middle position what do you want us to do [00:05:42] Speaker 02: I think the judgment below should be reversed, and the summary judgment should be entered for the plaintiff, because given that Moore reiterates that the burden is on the government to prove its affirmative defense, that means that when the party without [00:06:01] Speaker 02: the burden of proof. [00:06:02] Speaker 03: Should we remand it, though, back to the claims court, for the claims court to reevaluate the competing summary judgment motions under the proper understanding of the statute, the DPA statute? [00:06:15] Speaker 02: I don't think so, Your Honor, because even under Yant, Yant said that the burden is on the government to prove its affirmative defense. [00:06:22] Speaker 02: And Yant was the case that [00:06:24] Speaker 02: that used to say in the circuit that the plaintiff had to prove intentional discrimination as part of the prima facie case. [00:06:30] Speaker 02: But here, prima facie case was conceded. [00:06:33] Speaker 02: And so even though Moore changed the landscape significantly, I think within the context of this case, there was error even under Yant because the trial court below failed to hold the government to its burden of proof in establishing the affirmative defense. [00:06:49] Speaker 04: Okay, but you can't appeal the denial of the summary judgment motion. [00:06:53] Speaker 04: in the district or the Court of Federal Claims has some discretion to deny a summary judgment motion and have a trial. [00:07:05] Speaker 04: Wouldn't we be better off remanding, as Judge Chen suggests, to have the judge consider whether to grant summary judgment, to have further discovery, to have a trial or whatever? [00:07:20] Speaker 02: Well, Your Honor, [00:07:21] Speaker 02: We are up here on cross motions for summary judgment. [00:07:23] Speaker 02: And it is, you're correct, an abusive discretion standard. [00:07:27] Speaker 02: But Rule 56 says that summary judgment shall be granted. [00:07:30] Speaker 02: And so under that standard, it is an abusive discretion when the trial court says, well, plaintiff has not developed the record that they're seeking to obtain summary judgment on. [00:07:42] Speaker 02: So therefore, plaintiff, you can't have summary judgment. [00:07:43] Speaker 02: But the burden wasn't on the plaintiff to develop the record. [00:07:46] Speaker 02: The burden was on the government. [00:07:48] Speaker 02: to put forth evidence if the government disagreed that prior pay alone was the reason for the pay disparity. [00:07:54] Speaker 02: The burden was on the government to come forward with evidence that some decision maker considered something else at summary judgment, and they didn't do that. [00:08:04] Speaker 02: What we have essentially in the summary judgment record are first of all the admissions by two of the three members of the Pharmacy Standards Board. [00:08:11] Speaker 02: by Ms. [00:08:12] Speaker 02: Scafianos. [00:08:13] Speaker 04: And then we have the... I thought there was subsequent deposition testimony that sort of rolled some of that back. [00:08:22] Speaker 02: No, Your Honor. [00:08:23] Speaker 02: The admissions came straight from the depositions that were taken as part of the administrative EEO investigation. [00:08:31] Speaker 02: That's the undisputed record that we have here. [00:08:34] Speaker 03: Or maybe there was some claims court analysis that Ms. [00:08:36] Speaker 03: Scafianos wasn't actually the decision maker. [00:08:39] Speaker 03: So even if she said certain things, that's not really decisive in terms of whether or not prior pay alone was how she had her salary set. [00:08:54] Speaker 02: But that, again, goes back to the burden of proof, Your Honor. [00:08:56] Speaker 02: If the government was going to contend that Ms. [00:08:59] Speaker 02: Scafianos was not at least the de facto decision maker, [00:09:02] Speaker 02: The burden was on the government to put affidavits forward at summer judgment, to put evidence forward that some other decision maker considered something else beyond prior pay alone in differentiating these two candidates. [00:09:15] Speaker 02: I encourage your honors to look at the appendix, page 126 to 129, and 390 to 393. [00:09:22] Speaker 02: These are essentially the documentation of the two pay setting decisions. [00:09:27] Speaker 02: It begins with Ms. [00:09:28] Speaker 02: Scottianos' memo to the board. [00:09:30] Speaker 02: and she's admitted under oath that she boarded everybody the same except for current pay stubs. [00:09:37] Speaker 02: If you look at the memo that the board wrote, the board action document, it's a two page document, you'll see that it's essentially Ms. [00:09:44] Speaker 02: Scafianos' memo cut and pasted and forwarded onto the approving authority for review. [00:09:50] Speaker 02: Again, nothing differentiating except saying step seven or step 10 is recommended to most closely match current salary. [00:09:58] Speaker 02: And then you'll see the approving authority [00:10:01] Speaker 02: The approving authority review, the only evidence that's in the record from the government on what the approving authority did in reviewing this is a check mark and a signature and a date. [00:10:10] Speaker 03: Just so I understand how you think the VA should have operated here under the law, when they hired Dr. Boyer, was it wrong for them at that time to hire her at 115K? [00:10:26] Speaker 03: Or was the real problem when they, half a year later, [00:10:30] Speaker 03: hired the male comparator at $126, then they should have leveled up Dr. Boyer at that time from her prior set pay of $115,000 up to $126,000. [00:10:46] Speaker 03: Or should they alternatively just said, whoops, we cannot hire this male comparator at $126,000. [00:10:52] Speaker 03: The best we can do for him is $115,000. [00:10:55] Speaker 02: Your Honor, I think obviously the pay disparity that's cognizable under the EPA didn't come into existence until the comparator was hired. [00:11:05] Speaker 02: But what the agency should have done is follow the procedures in the VA handbook, which say that here are the things you have to consider. [00:11:11] Speaker 03: But could you just answer my hypothetical? [00:11:14] Speaker 03: We have an example in front of us. [00:11:16] Speaker 03: What should have happened that didn't happen in that fact pattern? [00:11:21] Speaker 02: And I think in that fact pattern, when she's hired at the salary that she's hired at, they have to look at who's there. [00:11:28] Speaker 02: And they'll see Miss Boyer's there at this salary. [00:11:30] Speaker 02: They have somebody of equal experience coming in. [00:11:33] Speaker 02: And they have to consider that she is making less than they want to pay him. [00:11:38] Speaker 02: And so I think that you're right. [00:11:39] Speaker 02: They would have to hire him at a lower salary unless they... Or increase her salary? [00:11:44] Speaker 02: Or increase her salary, correct. [00:11:46] Speaker 02: One of the two. [00:11:48] Speaker 02: You know, the remedy section of the EPA talks about how you remedy. [00:11:51] Speaker 02: You don't remedy an EPA violation by reducing a current employee's salary. [00:11:55] Speaker 02: It doesn't speak directly to what you do with a prospective hire. [00:11:59] Speaker 02: But the EPA is not meant to punish one group over another. [00:12:04] Speaker 02: You're supposed to raise salaries to the level to equalize them. [00:12:10] Speaker 00: Well, the cases you were talking about, the 10th and 11th circuit cases, I believe some of them refer you [00:12:16] Speaker 00: the phrase job-related factors when they look at the other factors that are affirmative defenses and say, what these have in common is they're job-related. [00:12:26] Speaker 00: Do you adopt that? [00:12:27] Speaker 00: If you do, what is your understanding of job-related? [00:12:31] Speaker 02: I think job-related is not the best word to describe what's really going on here. [00:12:35] Speaker 02: If you look at the affirmative defenses and it's essentially seniority, merit, production, and then the other factor other than sex, but those first three things are all things [00:12:46] Speaker 02: that legitimately make the employer values the comparator more than the plaintiff if they have more seniority, if they have better merit, if they have more production. [00:12:55] Speaker 02: The affirmative defenses are all related to explanations for why the employer actually values the comparator more than the plaintiff. [00:13:02] Speaker 00: Well, you could say looking at the employee's current job performance. [00:13:06] Speaker 02: Right, and the current job performance. [00:13:10] Speaker 02: pay could be a proxy for that, but pay is not really what the employer values. [00:13:14] Speaker 02: No employer says, go out and find me the most highly paid pharmacist in Huntsville, so I can say that I employ the most highly paid pharmacist in Huntsville. [00:13:23] Speaker 02: I mean, nobody says that. [00:13:24] Speaker 02: Nobody values how I pay for itself. [00:13:26] Speaker 00: It's more like experience or certain education might be something an employer values. [00:13:34] Speaker 02: Right, and that's how I would look at it, Your Honor, is look at it in terms of what does the employer actually value, because that gives the employer the discretion to say, this is what we value. [00:13:43] Speaker 02: We're not imposing our view on the employer, we're allowing the employer to come forward and prove why it actually values one employee more than the other. [00:13:51] Speaker 04: But the whole theory of 53-33 and the [00:13:57] Speaker 04: veteran statute, is that in terms of what the employee has to be paid to convince the employee or the prospective employee has to be paid in order to convince that employee to join and to justify something above the base rate, you consider the prior salary. [00:14:16] Speaker 02: And that is a factor other than sex, right? [00:14:21] Speaker 02: No, Your Honor. [00:14:22] Speaker 02: It's not a factor other than sex. [00:14:24] Speaker 02: when you're looking at it through the EPA. [00:14:26] Speaker 02: And we're dealing with two different statutory regimes. [00:14:29] Speaker 04: Wait a moment. [00:14:29] Speaker 04: If it's not a factor other than sex, how can it be considered? [00:14:34] Speaker 02: Because the EPA doesn't say anything about what an employer, about the discretion that an employer has in general. [00:14:40] Speaker 02: What the EPA says is if you create a wage disparity, you can't justify it by reference to prior salary. [00:14:46] Speaker 02: And there's no, you know, these are two statutes that one statute gives- You're taking it together with other factors? [00:14:52] Speaker 04: I'm sorry, sir? [00:14:52] Speaker 04: Even taken together with other factors, because I understood other courts of appeals to recognize that you can consider prior pay together with other factors in making hiring decisions under the Ninth Circuit, right? [00:15:07] Speaker 02: Right, except for the Ninth Circuit, the 10th and the 11th both say that as long as the employer considers some other factor, they can take prior pay into account, and I think [00:15:15] Speaker 02: You know, in the context of Ms. [00:15:18] Speaker 02: Boyer's case, that makes sense. [00:15:20] Speaker 02: But here they didn't. [00:15:21] Speaker 02: We've got undisputed evidence showing that they were even with regard to everything, and that the only thing special that justified a departure was the current pay stubs. [00:15:32] Speaker 02: But the employer has the discretion, the agency has the discretion to consider all these factors when they're setting pay. [00:15:39] Speaker 02: But they also have the ability to constrain that discretion to avoid creating [00:15:45] Speaker 02: disparities that would violate the EPA except with reference to prior pay. [00:15:51] Speaker 02: And I think the VA handbook is a great example of how the employer could have avoided the situation because the VA handbook, contrary to the trial court's reasoning, the VA handbook actually instructs the VA to look at the number of current employees in the position and their pay [00:16:09] Speaker 02: uh... to look at uh... possible employee relations problems that might arise uh... and which is very consistent with the approach of the of the new revised uh... regulation that we that we noticed to the court that will we'll notice the proposed rulemaking yes the proposed rule uh... which again shows that would essentially adopt the ninth circuit position wouldn't it well except that it's not all it's it's it would it it would [00:16:39] Speaker 02: essentially create a situation where it would not be possible to rely on prior pay and then therefore create a pay disparity that would violate the Ninth Circuit standard. [00:16:47] Speaker 02: Again, the proposed regulation is not an EPA regulation, it's a pay setting regulation. [00:16:53] Speaker 02: And it goes in and it may be an overcorrection in the sense that it does this across the board without reference to, hey, you just can't use this to justify a pay disparity. [00:17:08] Speaker 03: Before you go, you're running out of time. [00:17:10] Speaker 03: Maybe you can help me with one thing. [00:17:14] Speaker 03: I'm trying to understand some of the case law from circuit courts, what I'll call the middle ground circuits, which talk about how you can consider prior pay along with a mix of other factors. [00:17:28] Speaker 03: Do they explain exactly how to think about how you would analyze the prior [00:17:35] Speaker 03: factor vis-a-vis these other business-related factors such that it would be within the law of the EPA? [00:17:47] Speaker 03: I mean, is it all just a soup? [00:17:48] Speaker 03: You put it all into a soup and say, well, I consider this, I consider that, and consider the other thing. [00:17:52] Speaker 03: I didn't consider prior pay alone. [00:17:54] Speaker 03: And so because I considered other things, that's good enough. [00:17:59] Speaker 03: Or is there something a little more regimented that puts in tighter [00:18:04] Speaker 03: guardrails to ensure that the prior pay doesn't dominate the equation once you quote-unquote consider other factors? [00:18:12] Speaker 02: Yes, the guardrails would be the drum case, for instance, that we cited from the Eighth Circuit that makes clear that the authority that we cited that makes clear that the employer has to prove that it actually relied on the factors that it's asserting. [00:18:27] Speaker 02: You can't say, oh, here are all these factors we can rely on when in fact prior pay was really the only [00:18:33] Speaker 02: And so that's the employer's burden of proof, is to prove that it valued the employee more, not just to get them, but because they had some characteristic that created value for the employer beyond just, hey, this is what we needed to pay to hire this person. [00:18:52] Speaker 04: Thank you, John. [00:18:53] Speaker 04: OK. [00:18:53] Speaker 04: We'll give you two minutes for rebuttal. [00:18:55] Speaker 04: Appreciate that. [00:18:56] Speaker 04: Thank you. [00:19:00] Speaker 04: Westerkamp. [00:19:07] Speaker 01: Morning, and may it please the court. [00:19:09] Speaker 01: Just to start, Your Honor Judge Chen, with what to do with this case. [00:19:14] Speaker 01: First of all, there's no point to remand because, as the trial court correctly found, in federal law, prior pay alone is an other factor other than sex, affirmative defense. [00:19:25] Speaker 03: And indeed, do you understand the claims court as having done statutory interpretation just for one class of employees, federal employees, that [00:19:37] Speaker 03: That is a different statutory interpretation for factor four of the affirmative defenses compared to non-federal employees? [00:19:47] Speaker 01: Well, I think the question before the court was squarely. [00:19:50] Speaker 01: related to a federal employee. [00:19:52] Speaker 03: Sure, but you're supposed to do one statutory interpretation, period. [00:19:58] Speaker 03: And it seemed like he created a statutory interpretation that's just specific to a certain class of employees, federal employees, that would be separate and different from a statutory interpretation of factor four for non-federal employees. [00:20:13] Speaker 01: But I think that's what the trial court had to do, because he was faced with [00:20:17] Speaker 01: a federal employee with five USC 5333, and a company. [00:20:23] Speaker 03: So then the meaning of factor four, any other factor other than sex, it morphs depending on what type of employee we're considering? [00:20:33] Speaker 01: Well, I think, as the trial court noted in a footnote, he wasn't, and I believe it was at page appendix 30, he wasn't suggesting that these other circuits and how they settled on this issue. [00:20:47] Speaker 01: was in any way incorrect, but just- So your answer is yes. [00:20:50] Speaker 00: Yes, you are saying that there's a different interpretation of this language for federal employees than in other circuits, right? [00:20:57] Speaker 00: Yes. [00:20:58] Speaker 00: OK. [00:20:59] Speaker 00: Do you know of any statute at all in which that has occurred? [00:21:03] Speaker 00: That is, that there's the same language, the same statute, and it applies differently to different people? [00:21:09] Speaker 01: Not off the top of my head, Your Honor, but I do think that an important, as part of this analysis, [00:21:15] Speaker 01: For instance, a private employee, which was the case in the Ninth Circuit Rizzo case, they don't have the benefit of there's a federal statute and the regulations that accompany it, and then VA and the handbook wholesale adopted. [00:21:31] Speaker 01: By the way, I thought it was a state employee in Rizzo. [00:21:35] Speaker 00: I could be wrong, but I thought it was a state employee in which there was state law that was similar to the law that you're relying on in this case with respect to [00:21:45] Speaker 00: setting salary based on prior salary. [00:21:47] Speaker 01: And I believe you're correct, Your Honor. [00:21:48] Speaker 01: It was a state employee. [00:21:49] Speaker 01: But I think here, again, what is important to focus on is that with, in the context of federal employment, Congress itself has stated that there is the list of factors that may be considered in prior pay or existing pay is one of them. [00:22:05] Speaker 01: And that's delineated in the regulation. [00:22:07] Speaker 00: Why is that inconsistent? [00:22:09] Speaker 00: Why couldn't you set somebody's pay based on prior salary? [00:22:14] Speaker 00: and then also comply with the EPA by making sure that any differential isn't based on a factor other than sex. [00:22:24] Speaker 01: I don't think it is inconsistent, Your Honor. [00:22:25] Speaker 01: And I do think part of the problem here is that Dr. Boyer was hired, I believe, three months before the male comparator was. [00:22:33] Speaker 01: And so the question was, do you level up or what do you do? [00:22:36] Speaker 01: And at least for federal employment, the appointment statutes and the pay setting authority [00:22:42] Speaker 01: are only applicable at the very day they step in the door or the first time of hire. [00:22:47] Speaker 01: And so there is not a procedure or mechanism to level up, per se. [00:22:53] Speaker 01: And what they did do here. [00:22:54] Speaker 04: Except for the Equal Pay Act. [00:22:56] Speaker 04: I mean, you know, when that was enacted in 1974, if you look at the legislative history, it's pretty clear that the intent was to bring federal employees under the Equal Pay Act and apply the same rules to them as to private employers or state employers or whatever. [00:23:13] Speaker 04: To have a single rule, you've been clear. [00:23:18] Speaker 04: that you're arguing that the rules aren't the same. [00:23:21] Speaker 04: How is that consistent with the 74 statute, which added federal employees to the pay act? [00:23:29] Speaker 01: Well, I think it's consistent, Your Honor, because although the 10th and 11th circuits were mentioned, the 4th and 7th have said prior salary alone can be an affirmative defense, number 4 for the 4th. [00:23:40] Speaker 04: But you're talking about the cases. [00:23:42] Speaker 04: I'm asking, in terms of the 74 statute, how could that be consistent? [00:23:47] Speaker 04: with the 1974 statute amending the Equal Pay Act and federal employees to have a different rule for federal employees than for private employees when the whole purpose of the 74 statute was to create an equal approach. [00:24:05] Speaker 01: Well, I think, Your Honor, there is consistency. [00:24:08] Speaker 01: And as the trial court correctly said, they can be read harmoniously. [00:24:12] Speaker 01: Because even as late as, I believe, the latest revision to the pay setting authority was in 1990. [00:24:20] Speaker 01: And then there's also a separate VA statute, and that's at 7408, that's 38 USC 7408, where that was enacted in 1991, where Congress explicitly said for certain VA employees, pay can be after considering an individual's existing pay. [00:24:40] Speaker 01: higher or unique qualifications. [00:24:42] Speaker 00: If we disagree with your position that a special interpretation applies to federal employees because there's these congressional statutes that say that you can set pay based on prior salary, what is the government's interpretation of a differential based on any factor other than sex, and does it include prior salary? [00:25:04] Speaker 01: The answer is yes. [00:25:05] Speaker 01: And I think, first of all, with the fourth factor, it should always be gender neutral. [00:25:10] Speaker 01: And in this instance, it was applied gender neutrally. [00:25:13] Speaker 01: And I would note that in the record, it shows that although the male comparator was hired at step 10 following Dr. Boyer's appointment at appendix 180, it shows that two other females were hired also at a step 10, again, justified based on prior salary. [00:25:30] Speaker 01: And as there's, although depositions were not taken before the court of federal claim. [00:25:35] Speaker 00: What is, I understand you're answering the context of this case, but is there an interpretation? [00:25:40] Speaker 00: an interpretation of the language. [00:25:41] Speaker 00: I asked you for an interpretation. [00:25:44] Speaker 01: Yes, and I think the interpretation of the language is that with the other factor other than sex, in this particular instance, because Congress has said you can use prior pay alone, the regulations say so, and I would also point to... But how is it inconsistent? [00:26:02] Speaker 04: with the 5333 in the veteran statute to say that you can consider prior pay, but only as one factor. [00:26:11] Speaker 01: It's not inconsistent, Your Honor, because the list is disjunctive and also the proposed regulations. [00:26:18] Speaker 04: You must not have understood my question. [00:26:21] Speaker 04: If we were to adopt the middle ground that the appellant here is urging, why is that inconsistent? [00:26:32] Speaker 04: with 5333 and the veteran statute. [00:26:36] Speaker 04: I'm having difficulty seeing why those statutes can't accommodate the middle round approach to the pay act. [00:26:44] Speaker 01: I think to adopt what Dr. Boyer advocates for would be inconsistent because the pay setting statute itself says existing pay or unusually high or unique qualifications [00:26:55] Speaker 01: And also OPM has spoken to this direct question, where with the supplement authority that was filed on October 30th with the proposed rule, it explicitly states, and this is on the ECF number, but I guess it's within the rule, that the current regulations state that they may consider one or more factors. [00:27:15] Speaker 01: One of these factors is the candidate's existing salary, recent salary history, or salary documented in a competing job offer. [00:27:22] Speaker 01: And OPM itself has said, [00:27:23] Speaker 04: But that's not inconsistent with the middle round. [00:27:26] Speaker 04: You can consider it as a factor. [00:27:29] Speaker 04: The middle round doesn't say you can't consider it at all. [00:27:31] Speaker 04: It says you consider it as a factor. [00:27:34] Speaker 04: And I'm just having difficulty seeing how that's inconsistent with 53-33 in the veterans' statute. [00:27:40] Speaker 01: Well, I think it's inconsistent, Your Honor, because as it states in 5-3-3, as well as the regulation, [00:27:48] Speaker 01: It says or. [00:27:49] Speaker 01: It doesn't say one or more. [00:27:51] Speaker 01: It doesn't say existing pay plus another factor. [00:27:54] Speaker 01: And that's also true in the VA handbook, which is at the appendix pages 78 and 79, where it says candidates existing pay or recent salary history. [00:28:07] Speaker 01: And so it never says in the various statutes or the regulation accompanying the USC 5333, [00:28:18] Speaker 01: that it's existing pay plus another factor. [00:28:21] Speaker 01: And I think that really, as the trial court correctly explained, without having one plus required to do something else, for federal employees, at least when Dr. Borre was hired through the present day until the rule was changed, that agencies may look [00:28:39] Speaker 01: prior pay alone. [00:28:40] Speaker 03: The proposed rulemaking eliminates the ability to look at prior pay when setting federal employees' salary, correct? [00:28:48] Speaker 03: Yes. [00:28:49] Speaker 03: And when does that go into effect? [00:28:52] Speaker 01: Your Honor, comments were due on that, I believe, in June. [00:28:55] Speaker 01: And so I looked online before this hearing. [00:28:57] Speaker 01: And so far, there has not been a final proposal. [00:29:01] Speaker 04: Because they haven't decided what to do, right? [00:29:03] Speaker 01: Correct. [00:29:05] Speaker 01: And so that's still an outstanding question. [00:29:06] Speaker 01: But I would also note that [00:29:09] Speaker 01: And there were other factors. [00:29:11] Speaker 03: So again, Notice of Proposed Rulemaking talks about the pernicious effect of relying on prior pay. [00:29:19] Speaker 03: Does it not? [00:29:20] Speaker 03: It talks about how it observed that many state laws that have eliminated the use of prior pay has seen the wage gap between men and women narrow considerably. [00:29:36] Speaker 01: It does speak to that, Your Honor, and also the trial court. [00:29:39] Speaker 01: had before it, I believe there's an executive order by President Biden announcing that he was asking OPM to look at these things and to look at prior pay. [00:29:48] Speaker 03: Is there some kind of executive order that requires federal agencies to somehow do some kind of intra-office audit periodically to make sure that there is, in fact, equal pay for equal work within different offices of different agencies? [00:30:09] Speaker 01: Not to my knowledge, but I think the closest that gets to it was President Biden's request to OPM to examine salary. [00:30:16] Speaker 01: And I do think that would go to the question here of, as the trial court noted, there was no evidence on this record that historically pay for female pharmacists has been depressed compared to male pharmacists. [00:30:31] Speaker 01: And in addition, Dr. Boyer had stated that she'd accepted this job at a state hospital because it had more perks than benefits. [00:30:39] Speaker 01: Um, but even so, even if, um, and we believe that the trial court was correct, that prior pay alone is an affirmative defense. [00:30:47] Speaker 01: Um, but even so before the EEO, different members of the pharmacy standards board testified that pay, although it may be more of a heavy thumb on the scale. [00:30:58] Speaker 01: that there were other factors considered. [00:30:59] Speaker 01: And it's really more of an algorithm, such as experience, education. [00:31:04] Speaker 01: The male comparator had two different advanced degrees that weren't required. [00:31:08] Speaker 03: But what happened in this particular instance? [00:31:10] Speaker 03: I guess what I'm wondering is, what if we blow up the claims court's interpretation that prior pay alone is good enough? [00:31:18] Speaker 03: Let me say no. [00:31:20] Speaker 03: What else is left here? [00:31:22] Speaker 03: Why shouldn't the plaintiff be granted summary judgment? [00:31:26] Speaker 01: Well, what else is left to you, Your Honor, is that other factors were considered. [00:31:32] Speaker 01: What are those? [00:31:33] Speaker 03: We have more experience, right? [00:31:36] Speaker 01: Yes. [00:31:37] Speaker 01: And again, in the record, it was explained by, for instance, Ms. [00:31:44] Speaker 01: Brookshire. [00:31:44] Speaker 01: This is Appendix 279. [00:31:48] Speaker 01: We look at their education, training, and qualifying experience. [00:31:51] Speaker 01: Right. [00:31:51] Speaker 03: So I guess what I'm trying to figure out is what is the [00:31:55] Speaker 03: What is the delta in favor of the male comparator in terms of education or experience? [00:32:00] Speaker 03: Because I'm not aware of any in this particular fact pattern. [00:32:06] Speaker 01: It was explained, Your Honor, that he had, I believe, and this is an appendix 282, he had an MS degree in biological sciences and a BS degree, and those were not required for [00:32:19] Speaker 01: pharmacy school, but that was additional education that he had. [00:32:22] Speaker 00: And so- And she has a PhD, right? [00:32:23] Speaker 01: A PharmD, Your Honor. [00:32:24] Speaker 01: A PharmD. [00:32:25] Speaker 01: Does he have that? [00:32:26] Speaker 01: Yes. [00:32:26] Speaker 01: And that's a requirement. [00:32:27] Speaker 01: That's a basic requirement in order to be a pharmacist at the VA. [00:32:30] Speaker 03: And so- How many more years of experience does she have over him? [00:32:35] Speaker 01: I believe she had seven years of experience. [00:32:38] Speaker 01: More? [00:32:40] Speaker 01: Seven more years. [00:32:40] Speaker 01: Yes, Your Honor. [00:32:42] Speaker 01: And that he, and he again, [00:32:45] Speaker 00: uh... had the different degrees and they also have worked at different places in the past uh... and and with that they worked at different places did anyone say that that mattered in terms of determining other than that he had a higher salary was there anything significant to that that related to the job well that has to be listed in their boarding packet as to where they have worked and i know there's no testimony saying that that was part of the differential [00:33:15] Speaker 00: or the reason for the differential in pay, in other words? [00:33:18] Speaker 01: No. [00:33:19] Speaker 01: And that's correct, Your Honor. [00:33:21] Speaker 01: But even so, again, if the support were to find that prior pay plus something needs to be considered, there is evidence in this record that, again, although prior pay may have been an easier way to board people at a higher rate, that that was considered by the agency in setting the different pay rates for Dr. Boyer and the mail comparator. [00:33:46] Speaker 01: And if there's nothing else, we respectfully request that the court affirm the trial court's holding. [00:33:51] Speaker 04: Thank you. [00:33:54] Speaker 04: Mr. Smith, you have a couple of minutes. [00:34:01] Speaker 02: Thank you, Your Honors. [00:34:02] Speaker 02: I think both sides agree that there's no need for remand in this case, that it turns on this clear legal issue that we've been heading towards all along. [00:34:10] Speaker 02: In terms of [00:34:13] Speaker 02: I believe, Your Honor, you're absolutely correct that the statute means what it means. [00:34:16] Speaker 02: There's no one statute for federal employees. [00:34:19] Speaker 02: The whole idea of this statute is to hold federal employees to the same standards as private employers. [00:34:28] Speaker 02: In terms of the statute itself, we have the word or appearing over and over again, disjunctive. [00:34:42] Speaker 02: It's disjunctive. [00:34:43] Speaker 02: If that were to conflict with the commands of the EPA, it would have to say must. [00:34:50] Speaker 02: They must consider prior pay. [00:34:52] Speaker 02: But it doesn't say that. [00:34:52] Speaker 02: It just says they can consider all these things or, or, or. [00:34:57] Speaker 02: And that sort of disjunctive, permissive structure of the statute just means that the agency is given discretion and that it has the freedom to constrain its discretion in order to comply with the EPA and avoid [00:35:11] Speaker 02: creating a pay disparity that would otherwise be cognizable solely by reference to the prior pay. [00:35:20] Speaker 02: Again, the admissions in this case are unequivocal. [00:35:24] Speaker 02: Ms. [00:35:24] Speaker 02: Scafianos unequivocally admitted that prior pay, that she boarded them exactly the same with reference to nothing special other than their current pay stubs. [00:35:32] Speaker 02: Two of the three pharmacy standards boards gave testimony that experience just goes by the wayside. [00:35:39] Speaker 02: And if you look in the appendix, there's even testimony in the record, Appendix 290, asking human resources, is there a difference in qualifications between Step 7 and 10? [00:35:52] Speaker 02: There's no difference in qualifications. [00:35:54] Speaker 02: Prior pay is the only factor here. [00:35:57] Speaker 02: And because the record undisputably demonstrates that prior pay was the only basis, the plaintiff should be entitled to summary judgment. [00:36:04] Speaker 02: Thank you. [00:36:05] Speaker 04: Okay. [00:36:05] Speaker 04: Thank you. [00:36:05] Speaker 04: Thank both counsel and cases to that.