[00:00:00] Speaker 02:
Next case is Deborah Blackwell versus the United States, 2024-2190.

[00:00:07] Speaker 02:
Mr. Fallings, good morning.

[00:00:13] Speaker 00:
Good morning.

[00:00:14] Speaker 00:
May it please the court.

[00:00:15] Speaker 00:
Michael Fallings on behalf of the appellant, Deborah Blackwell.

[00:00:19] Speaker 00:
This court should overturn the summary judgment decision the Court of Federal Claims, because there was a genuine dispute of material fact as to the issues presented to the court.

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Whether Deborah Blackwell's duties that she performed via overtime were substantially similar to her male comparator, and whether the government proved its affirmative defense of whether the paid disparity was justified.

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The court weighed multiple factors in determining whether or not Ms.

[00:00:52] Speaker 00:
Blackwell's job duties were substantially similar to her male comparator.

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And they went to the Equal Pay Act standard of skill, effort, responsibility, and working conditions.

[00:01:02] Speaker 02:
Well, the comparator's job was quite different.

[00:01:05] Speaker 00:
I disagree, Your Honor.

[00:01:06] Speaker 00:
I think the court focused more on the position descriptions rather than the actual work performed as Mr. Luchowski.

[00:01:13] Speaker 02:
Did he have more of a desk job?

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He was partly outside.

[00:01:17] Speaker 00:
I disagree with that.

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So as her male competitor, Mr. Luchowski, said in his declaration, the majority of his overtime work was performed via overtime being deployed to field offices to assist with the emergency response.

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As he states in his declaration, however, he was managing those.

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He was doing logistical work.

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He was not actually in the field doing that.

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His work was certainly important, but he was doing, managing, making sure people were in the right place.

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While that was happening, Ms.

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Blackwell was performing Mr. Luchowski's duties within the Houston field office, but she was managing the programs he managed.

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She was performing logistical duties that he did.

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under the same supervisor, but performing his duties.

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But she was not being paid for the work while he was.

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And that is something I think the court disregarded in terms of the working conditions.

[00:02:16] Speaker 00:
The court specifies that Mr. Luchowski performed work outdoors, which that doesn't appear in Mr. Luchowski's declaration.

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I don't even believe that appears in his position description.

[00:02:26] Speaker 00:
That is not supported by the record.

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In fact, he says he was

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managing hotel rooms, ensuring meals were provided to the people he was managing.

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And that's the majority of the overtime work he testifies to.

[00:02:41] Speaker 00:
There is overtime work where I think even the government agrees that they were actually performing together at a conference in 2019.

[00:02:50] Speaker 03:
For purposes of today and for purposes of summary judgment, I think you've agreed that the position description that was

[00:02:58] Speaker 03:
identified by the government can be the one that we proceed with.

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Am I right?

[00:03:03] Speaker 00:
Purpose of today, yes.

[00:03:04] Speaker 00:
I know the government spent some time in its brief saying that we were relying upon the wrong position description.

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I think there was some question as far as the time frame of that position description, but the court relied upon that position description to make its ruling.

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However, I think what I'm also saying is that Mrs. Blackwell's position description and Mr. Luchowski's position description aren't the, you can't look at those position descriptions alone.

[00:03:28] Speaker 03:
I understand your point on that.

[00:03:30] Speaker 03:
I mean, one thing I don't hear you saying is that there's genuine issues and material fact as to what each of these people at Miss Blackwell and the comparator were doing.

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That you're not disputing the facts underlying their job positions.

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You're disputing the factual conclusions made.

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Is that right?

[00:03:54] Speaker 00:
Yes, however, I do want to point out Mrs. Blackwell's position description, as in the record, is I would consider it vague.

[00:04:01] Speaker 00:
She is an expert in immigration.

[00:04:05] Speaker 00:
I don't believe the word immigration appears in her position description.

[00:04:08] Speaker 00:
As Ms.

[00:04:09] Speaker 00:
Blackwell testified in her deposition, her position description was met as far as a vague program manager position, but she does manage programs that include some of the programs that Mr. Luchowski managed.

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As far as the other factors that the court analyzed, the skill, effort, and responsibility, as far as the effort, as the court's law has stated, that goes to mental and physical effort.

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The court agrees that Mr. Luchowski and Mrs. Blackwell had the same mental effort.

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The court disagrees that they had the same physical effort.

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As I was saying earlier, the court essentially says that Mr. Lutowski had more physical effort because he was out in the field when he was deployed to several field offices.

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But as I stated earlier, I believe that's incorrect analysis as he actually, when he was outside of the Houston field office, we don't disagree with that, but he wasn't in the field doing physical work.

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And again, I'm not trying to minimize the work he did.

[00:05:10] Speaker 03:
My question is, what does the law say

[00:05:13] Speaker 03:
About when you're looking at someone's position Are you looking at what they do or what they might be required to do in the event of an emergency?

[00:05:21] Speaker 00:
The law says you look at the performance of the job duties and in this and for this case You're really comparing comparing the overtime work between the individuals, so you can't just look at the position description especially when you're speaking in this case about the overtime work to

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And so I think, really, you have to look at what Mr. Luchowski states he did in his declaration.

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And you also have to look at Mrs. Blackwell's deposition, Mrs. Blackwell's declaration as well, to determine what, over time, was done.

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And I think a summary judgment, I think that was incorrect finding to find, based on those facts, that dispute effect about what they did versus what Mr. Luchowski did.

[00:06:03] Speaker 03:
What about after a prima facie case is

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presented, then the court went on to address whether that was fairly rebutted or not by determining that the government adequately explained, raised an affirmative defense that would explain that any pay deferential was not on the basis of sex.

[00:06:25] Speaker 03:
Instead, they said it was on the basis of statute, that is,

[00:06:29] Speaker 03:
that her job fell under Title V, whereas his job fell under a different provision that included an award of overtime.

[00:06:37] Speaker 00:
Yes.

[00:06:38] Speaker 00:
I don't think it's disputed that the government can't just rely upon her position being a non-COPRA regulation than what Mr. Luchowski does.

[00:06:48] Speaker 00:
I think the argument that the court was going to with the government has said is that Mrs. Blackwell didn't prove she did overtime, nor was she ordered or approved for overtime.

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However, in the depositions of her managers, they state that she was contacted after hours, that they weren't exactly aware of how often she was contacted.

[00:07:08] Speaker 03:
Am I wrong?

[00:07:09] Speaker 03:
That's not the basis for the ruling in this case was that her overtime was not ordered or approved, right?

[00:07:17] Speaker 03:
I mean, you're familiar with the Lesko case, I would think.

[00:07:20] Speaker 00:
Well, it is, Your Honor.

[00:07:21] Speaker 00:
The court in its decision specifically says that, and supports what the government argued, that Mrs. Blackwell was not ordered or approved for overtime.

[00:07:31] Speaker 00:
That's what the court says.

[00:07:33] Speaker 00:
And we disagree with that.

[00:07:34] Speaker 00:
We disagree that she was not ordered or approved.

[00:07:37] Speaker 00:
We actually say she was ordered and approved for overtime.

[00:07:40] Speaker 00:
And in fact, in her grievance that she submitted prior to filing this lawsuit, she makes that argument.

[00:07:46] Speaker 00:
And when she discovered the issues as far as discovering her mail computer was getting paid, a sum of at least $45,000, she raised this issue and she said, I've been working, you know, I've actually copied you on correspondence.

[00:07:59] Speaker 00:
You know other individuals within our agency contact me after hours, and I should be approved for that overtime.

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And her supervisors alleged that they didn't know she was working overtime, which I think that's an improper finding to make at summary judgment.

[00:08:16] Speaker 03:
The court also determined... What was the evidence that she presented on the orders and approvals?

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I understand it goes back multiple years.

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Did she have emails for every single week of the three years, or how did that work?

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So when she presented her grievance, her supervisors asked her for the evidence, which I think probably caught her off guard because she thought they knew that she was working overtime.

[00:08:42] Speaker 00:
Nevertheless, she did attempt to obtain the email evidence and the phone records.

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She had trouble.

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She states that she really wasn't able to obtain those records from the agency's office, not until during this litigation

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when we, after we filed a motion to compel to obtain those records.

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And we've submitted an affidavit with those emails stating what the overtime she did was worked.

[00:09:05] Speaker 00:
The court found that wasn't sufficient evidence though, that by her own affidavit, you can't find that she did the work.

[00:09:11] Speaker 00:
But I would submit that the overtime work is proven by her mail compared to by his own affidavit.

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and through testimony.

[00:09:18] Speaker 00:
We don't really, in this case, have individuals testifying that certain people did work in this case.

[00:09:24] Speaker 00:
We have people saying, well, this is the overtime we did, and Mrs. Blackwell saying, this is the overtime I did.

[00:09:31] Speaker 00:
So I would submit to the court that the court's ruling was incorrect even on that issue as well, that Mrs. Blackwell was able to rebut the government's affirmative defense, that she performed overtime work, and she was approved for overtime work.

[00:09:47] Speaker 00:
uh...

[00:09:50] Speaker 00:
As far as the case law, I just wanted to address that.

[00:09:54] Speaker 00:
I don't believe either side submitted case law that necessarily changes the factual analysis here.

[00:10:03] Speaker 00:
But I do want to address two cases, the Martin versus US case that we submitted in our brief.

[00:10:09] Speaker 00:
The Martin versus US case, although it was not decided in summary judgment, the court still found that the employees were substantially similar because they managed

[00:10:20] Speaker 00:
similar programs.

[00:10:23] Speaker 00:
I also want to address the case that the government produced in its brief, the Santiago case.

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And the Santiago case, the government proffered that this case supports that Mr. Luchowski did additional duties that makes it different.

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But in the Santiago case, the employees were, one employee was a non-supervisor employee and the other comparator was a supervisor employee.

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And the court found that the additional supervisory duties makes those jobs different.

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The court also noted in that case the plaintiff was actually compensated.

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So I think that case makes it different than Ms.

[00:11:01] Speaker 00:
Blackwell's case.

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If the court doesn't have any other questions, I'll yield the rest of my time for rebuttal.

[00:11:09] Speaker 02:
We'll save it for you.

[00:11:12] Speaker 02:
Ms.

[00:11:12] Speaker 02:
Solani.

[00:11:21] Speaker 01:
Good morning, Your Honors.

[00:11:22] Speaker 01:
May it please the Court.

[00:11:23] Speaker 01:
We heard a lot of counsel statements this morning that he disagrees with the Court's conclusions.

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However, the standard is not whether counsel disagrees, but whether there's a genuine dispute of a material fact.

[00:11:38] Speaker 01:
And Ms.

[00:11:38] Speaker 01:
Blackwell has failed to establish that there is.

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I will begin by addressing the incorrect position description, because for the first time in her reply brief, Ms.

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Blackwell raised the issue that this position description upon which we relied is incorrect because it contained a 2019 date in there.

[00:12:02] Speaker 03:
It's my understanding that they're not contesting that anymore.

[00:12:05] Speaker 01:
If that's the case, then even more reason to affirm the trial court's decision, Your Honor, because throughout her briefing, Ms.

[00:12:14] Speaker 01:
Blackwell relied on an incorrect position description.

[00:12:18] Speaker 01:
And but the arguments that the government... You think we're supposed to look at more than just the position description?

[00:12:25] Speaker 01:
Absolutely, Your Honor.

[00:12:27] Speaker 01:
The arguments that the government made before the trial court regarding the duties of Ms.

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Blackwell and Mr. Luskowski was primarily based on her description of her own duties in her deposition and in her statements made pursuant to the desk audit.

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as well as Mr. Luskowski's own declaration.

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We heard counsel state that Mr. Luskowski's declaration does not support the contention that pretty much all of the overtime that he performed was while he was deployed and outside of his office.

[00:13:02] Speaker 01:
I think the declaration itself proves that that is not the case.

[00:13:06] Speaker 01:
Additionally, both of his supervisors, Mr. Murdoch and both of his supervisors testified that his overtime, the majority of his overtime occurred while he was deployed.

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In fact, one of the supervisors testified that Mr. Luskowski, even though it's likely that, even though they knew that he monitored emails outside of his normal tour of duty,

[00:13:31] Speaker 01:
and he probably fielded some calls that he had never requested overtime for that type of work.

[00:13:38] Speaker 01:
He was never approved and he never received overtime for that type of work.

[00:13:42] Speaker 01:
So Ms.

[00:13:43] Speaker 01:
Blackwell's arguments in her brief and today that the overtime that he performed was in his office doing similar type of work that she performed,

[00:13:53] Speaker 01:
Again, she claims her overtime work was answering phone calls and responding to emails.

[00:14:00] Speaker 01:
That's just plainly contradicted by the record.

[00:14:03] Speaker 03:
His overtime work may have been while he was deployed, but it was also in an office, not outside.

[00:14:10] Speaker 03:
I'm not quite sure I understood what the argument was, but do you have a response to that?

[00:14:15] Speaker 01:
Well, Your Honor, if we look at the totality of the work that he performed, and as the trial court acknowledged, in many of those... Let me be more specific.

[00:14:25] Speaker 03:
Could you give us some detail on the type of work that he was doing while he was deployed and working overtime?

[00:14:31] Speaker 01:
Sure.

[00:14:33] Speaker 01:
For instance, he responded to emergency situations like hurricane responses, and he sometimes worked from morning to night, 18-hour shifts.

[00:14:43] Speaker 01:
That's corroborated by his supervisor's testimony.

[00:14:48] Speaker 01:
His declaration states deploying to the southern border, for example, when there was a surge in migrants.

[00:15:00] Speaker 01:
So I think he might have performed some work.

[00:15:05] Speaker 03:
And was he required to wear uniform and carry a firearm?

[00:15:08] Speaker 01:
Absolutely, Your Honor, yes.

[00:15:09] Speaker 01:
Yes.

[00:15:11] Speaker 01:
And carry a firearm, the full protective gear, and uniform.

[00:15:24] Speaker 01:
The trial court correctly went through all of the four factors necessary to determine whether the jobs are substantially equal.

[00:15:32] Speaker 01:
And I think

[00:15:33] Speaker 01:
With regard to skill, effort, responsibilities, and the working conditions, there certainly are differences between the type of overtime work performed.

[00:15:44] Speaker 01:
And again, we are looking at the issue is whether the agency failed to compensate Ms.

[00:15:50] Speaker 01:
Blackwell

[00:15:51] Speaker 01:
for overtime work when it compensated a male comparator for performing substantially equal overtime work.

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And the record conclusively shows that she never deployed from her office.

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She claimed to have performed an average of 10 hours of work per week

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from 2018 and forward.

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And that type of work included responding to emails and phone calls.

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Now, she alleges that her supervisors acknowledged that she performed this type of work.

[00:16:27] Speaker 01:
What she points to in the deposition testimony is some acknowledgment by her supervisors that in the time frame of 2010 to 2014, there were instances where

[00:16:37] Speaker 01:
where she and Mr. Laskowski were rotating to field issues that came up after hours.

[00:16:47] Speaker 01:
However, that stopped in 2014 when the agency created a new position and hired a watch coordinator, what they called it.

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So following 2014, that stopped.

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And the time frame that we're concerned with here is September 2018 and forward.

[00:17:01] Speaker 01:
So that's irrelevant.

[00:17:03] Speaker 01:
She also mentioned Hurricane Harvey, I believe, which also is in 2017, again, outside of the relevant time period.

[00:17:11] Speaker 01:
And then the last thing that she mentioned that she performed that was similar to Mr. Loskowski was the

[00:17:17] Speaker 01:
DFO conference in 2019 With regards to that her supervisors acknowledged that she may have worked overtime But they said that she never Put in a request for it they don't know when she arrived and when she left and how many hours she may have potentially worked and you know pursuant to the regulations she has to be

[00:17:38] Speaker 01:
officially ordered and approved.

[00:17:41] Speaker 01:
And she also has to pursue the agency policies, make a request for overtime, and explain how many hours she worked.

[00:17:47] Speaker 01:
And she didn't do that.

[00:17:48] Speaker 01:
But she did receive a cash award for working that day.

[00:17:52] Speaker 01:
And that's supported by the deposition testimony as well.

[00:17:57] Speaker 01:
With regard to the government's affirmative defense, Your Honor, there's no dispute that she's not under the same statutory or regulatory scheme that Mr. Luskowski was.

[00:18:09] Speaker 01:
The agency gave her multiple opportunities to present evidence that she was actually ordered

[00:18:17] Speaker 01:
she officially ordered to perform any overtime, or in fact, they said even just provide us any type of documents, any type of documentation, or whatever evidence to

[00:18:30] Speaker 01:
to substantiate that she worked the hours that she claimed to have worked.

[00:18:34] Speaker 01:
And she failed to do that.

[00:18:35] Speaker 01:
She failed to do that throughout her grievance.

[00:18:39] Speaker 01:
And as of the date of the deposition testimonies of the supervisors, which was in 2022, she still hadn't done that.

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And even before the court, she failed to do that.

[00:18:51] Speaker 01:
So not only did she fail to do that,

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substantiate the hours that she worked.

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She also failed to substantiate that she was officially ordered and approved.

[00:19:01] Speaker 01:
Whereas Mr. Laskowski, there is absolutely no dispute that he followed all of the requirements under the statutory scheme, COPRA.

[00:19:11] Speaker 01:
that he was under.

[00:19:14] Speaker 01:
Both supervisors acknowledged that each time he performed the overtime work, he was specifically assigned by his supervisors to do so.

[00:19:22] Speaker 01:
He followed up with contemporaneous requests for overtime.

[00:19:26] Speaker 01:
And then he was paid the following pay period, as was required by the law and the agency's policies.

[00:19:33] Speaker 01:
So even if the court disagrees, which it should not, that the trial court erred in

[00:19:39] Speaker 01:
finding in holding that Mrs. Blackwell failed to establish her prima facie EPA claim, the court nevertheless should affirm on the basis that the agency proved its affirmative defense.

[00:19:52] Speaker 01:
Unless the court has any other questions.

[00:19:55] Speaker 02:
Thank you, counsel.

[00:19:56] Speaker 01:
Thank you.

[00:19:56] Speaker 01:
Thank you, your honor.

[00:19:58] Speaker 02:
Mr. Follings has some rebuttal time.

[00:20:05] Speaker 00:
Thank you.

[00:20:06] Speaker 00:
I do want to address the affidavit by Mr. Luchowski as far as what he did and I guess helpfully clarify what our argument was in his affidavit.

[00:20:19] Speaker 00:
on page appendix 363 of 364, he states, when he was deployed to San Diego, he was coordinating the launching for all personnel in multiple locations, operational supplies and transportation to and from hotels and due to locations.

[00:20:36] Speaker 00:
He also states that he, later in his declaration, supported meetings, coordination of meeting space, catering, and movement of executives from airports to hotels.

[00:20:47] Speaker 00:
There are other paragraphs in this declaration, but as I stated earlier, it does not state that he was in the field outside or outdoors, as the court stated in the lower court.

[00:21:00] Speaker 00:
Our argument is that Ms.

[00:21:02] Speaker 00:
Blackwell, while he was deployed each and every time he states here, she was performing similar duties in the Houston field office, as far as what I'm phrasing, how she phrased in her deposition, logistical work.

[00:21:17] Speaker 00:
She was managing his programs, including the Joint Terrorism Task Force in the field office, yet she was not being paid overtime.

[00:21:26] Speaker 00:
She was working overtime performing those duties.

[00:21:28] Speaker 00:
I do also want to address some of the other factors as far as the skill.

[00:21:35] Speaker 00:
What the court seems to post importance on was that Miss Blackwell didn't graduate from the Federal Law Enforcement Training Center.

[00:21:45] Speaker 00:
She testifies in her deposition she did.

[00:21:47] Speaker 00:
As far as being issued a firearm or wearing a uniform, we don't disagree that Miss Blackwell

[00:21:55] Speaker 00:
didn't wear uniform like Mr. Luchowski, but she did have a uniform.

[00:22:02] Speaker 00:
She was authorized to carry a weapon.

[00:22:05] Speaker 00:
As far as the responsibility factor, as we've argued in our briefs, Mrs. Blackwell was managing programs similar to Mr. Luchowski, especially when he was performing his overtime.

[00:22:20] Speaker 00:
As far as the and I've already discussed the working conditions As far as you know how they were in similar working conditions, and I believe the the court got that wrong as well We we also submit that as far as the grievance was concerned as far as producing information to support her overtime I think would have a fact that the court didn't hear was that

[00:22:48] Speaker 00:
After Mrs. Blackwell supported her, submitted her grievance, and after it was decided upon, her managers then told other individuals to not contact her.

[00:22:58] Speaker 00:
And I believe Mr. Schoenberg testifies in his deposition.

[00:23:02] Speaker 00:
He did that to make sure there wasn't overtime happening.

[00:23:05] Speaker 00:
So I don't even think there really was a disagreement that she wasn't performing overtime.

[00:23:09] Speaker 00:
They just didn't see the evidence they thought they needed to.

[00:23:12] Speaker 00:
Although Ms.

[00:23:13] Speaker 00:
Blackwell has produced those emails during the litigation before the summary judgment decision and submitted a declaration regarding her expertise about how many hours she spent via overtime based on her review of those emails.

[00:23:27] Speaker 00:
If the court does have any other questions, then I will request that the court overrule the summary judgment decision by the lower court.

[00:23:34] Speaker 02:
Thank you, Council.

[00:23:35] Speaker 02:
Thank you to both Councils.

[00:23:37] Speaker 02:
The case is submitted.