[00:00:00] Speaker 03:
Our next case this morning is number 24-1429, Borovitcha v. United States.

[00:00:08] Speaker 03:
That is Ms.

[00:00:10] Speaker 03:
Chambers.

[00:00:11] Speaker 00:
Yes.

[00:00:15] Speaker 00:
Good morning, Your Honors.

[00:00:16] Speaker 00:
My name is Anita Chambers and I represent Appellant Megan Borovitchka.

[00:00:20] Speaker 00:
May it please the Court.

[00:00:22] Speaker 00:
Ms.

[00:00:22] Speaker 00:
Borovitchka asked that this Court reverse the lower Court's decision related to her Equal Pay Act claim.

[00:00:30] Speaker 00:
The court need not address the prima facie case as the FDIC waived that argument in lower briefing, and the lower court agreed that the prima facie case has been waived.

[00:00:41] Speaker 00:
So before the court is the affirmative defense under the Equal Pay Act.

[00:00:46] Speaker 00:
Simply put, the FDIC cannot meet its heavy burden to establish an affirmative defense.

[00:00:54] Speaker 00:
Critically, a plausible explanation is not sufficient.

[00:00:57] Speaker 00:
This is not a Title VII case.

[00:00:59] Speaker 00:
This is not a burden of production.

[00:01:00] Speaker 00:
This is the Equal Pay Act with a different standard for the affirmative defense.

[00:01:06] Speaker 00:
In Mickelson v. New York Life Insurance, the 10th Circuit explained that the Equal Pay Act requires an employer

[00:01:13] Speaker 00:
to submit evidence for which a reasonable fact finder could conclude not merely that the employer's pro-offered reasons could explain the wage disparity, but that the pro-offered reasons do in fact explain the pay disparity.

[00:01:27] Speaker 00:
And the court further explained that because it is the employer's burden, the employer must prove at least one affirmative defense so clearly that no rational jury could find to the contrary.

[00:01:39] Speaker 01:
So they said it was for reasons other than sex.

[00:01:43] Speaker 01:
And they put in declarations and evidence with regard to the hiring process and with regard to Mr. Pitt, who's the

[00:01:50] Speaker 01:
Not the comparator.

[00:01:51] Speaker 01:
He's not, I guess.

[00:01:52] Speaker 01:
But whatever.

[00:01:53] Speaker 01:
I'm unclear why that's insufficient.

[00:01:56] Speaker 01:
I mean, I agree with you.

[00:01:58] Speaker 01:
This probably should have come up in the prima facie case, as Judge Bonilla pointed out.

[00:02:03] Speaker 01:
But it didn't.

[00:02:04] Speaker 01:
So you've got it.

[00:02:06] Speaker 01:
But I don't know why the reasons presented weren't sufficient to establish other than sex.

[00:02:14] Speaker 00:
Well, Your Honor, let me address Duane Pitt since you raised him.

[00:02:18] Speaker 00:
First, Duane Pitt should not even be in the discussion at this affirmative defense stage.

[00:02:23] Speaker 00:
Again, we're past the claim of fascist stage.

[00:02:27] Speaker 00:
And also, Duane Pitt was not offered as a comparator for Borovitska.

[00:02:33] Speaker 00:
This was something that the judge selected, and that is something that the court is not allowed to do under the Cook case.

[00:02:41] Speaker 00:
The court must only consider the comparator

[00:02:44] Speaker 00:
from Ms.

[00:02:45] Speaker 00:
Borovitska and again, passed the Freeman-Fascha case, so that should not even be in question.

[00:02:52] Speaker 02:
A few more points on- Do you have any cases or can you cite some cases in that regard?

[00:02:58] Speaker 02:
You're saying that the comparator cannot be submitted by the board.

[00:03:03] Speaker 02:
It's got to be by the partners.

[00:03:05] Speaker 00:
Yes.

[00:03:05] Speaker 00:
That is the Cook case, Your Honor.

[00:03:07] Speaker 00:
I'll get you the site.

[00:03:09] Speaker 00:
It was before this court, March on Cook.

[00:03:13] Speaker 00:
Cook v. United States, 85, Federal Claims, 325, 2008.

[00:03:18] Speaker 00:
And that stands for the proposition that the comparator should only be, the only comparators that should be used are from Ms.

[00:03:25] Speaker 00:
Borovich and not the defendant and certainly not the lower court.

[00:03:31] Speaker 02:
Back to some of your... Is it also the case that the arguments concerning comparators

[00:03:36] Speaker 02:
the dueling arguments between the claimant and the board, that they can only be made in a prima facie aspect of the proceeding?

[00:03:47] Speaker 00:
Yes, Your Honor.

[00:03:48] Speaker 00:
I agree that the analysis of comparators could only be used in the prima facie case.

[00:03:53] Speaker 00:
And we don't even need to review that in this case, because the FDIC waived that argument.

[00:03:58] Speaker 00:
The court agrees with that.

[00:03:59] Speaker 00:
So the fact that one alleged comparator who

[00:04:04] Speaker 00:
Borovitska did not even identify as a comparator is being used.

[00:04:07] Speaker 01:
So who did she identify as the comparator?

[00:04:09] Speaker 00:
Well, again, Your Honor, well, she identified 10 other comparators in her complaint.

[00:04:15] Speaker 00:
But we don't even need to, males who earned higher pay than she did at the FDIC.

[00:04:21] Speaker 00:
But we're past the prima facie case.

[00:04:24] Speaker 00:
So we don't even need to go into the comparators.

[00:04:26] Speaker 00:
We're at the stage where the FDIC needs to provide

[00:04:29] Speaker 00:
an affirmative defense as to the reasons why 10 or more males at the FDIC were paid at a higher rate.

[00:04:36] Speaker 03:
The theory was it was a feature other than sex because these other people had federal experience that she didn't have.

[00:04:46] Speaker 00:
Yes, Your Honor.

[00:04:49] Speaker 00:
On the prior federal experience, there's a number of problems with that.

[00:04:52] Speaker 00:
First is that

[00:04:55] Speaker 00:
That just simply can't be true, because as Dwayne Pitt, for example, had a lot of prior federal experience, but he was not paid as much as some of the other individuals cited in the case.

[00:05:07] Speaker 00:
Second, there's no policy.

[00:05:08] Speaker 00:
There's nothing in the record.

[00:05:09] Speaker 00:
There's nothing in the deposition testimony.

[00:05:11] Speaker 00:
There's no policies about what is prior federal experience.

[00:05:16] Speaker 00:
The directive, which is in the appendix that was in effect upon hiring, talks about relevant experience.

[00:05:23] Speaker 00:
The FDIC has made this into a federal sector experience, but there's nothing that explains what is federal sector experience, what's the criteria that is used to evaluate federal sector experience.

[00:05:38] Speaker 00:
And if we look at the time of when the FDIC issued Ms.

[00:05:44] Speaker 00:
Borovitsch-Gecker pay and the emails between the decision makers in HR and that there's

[00:05:49] Speaker 00:
three, maybe less than five.

[00:05:51] Speaker 00:
I can give those to the court.

[00:05:53] Speaker 00:
That's an appendix 935, 854, and 865.

[00:05:59] Speaker 00:
There is no reference there to federal sector experience.

[00:06:02] Speaker 00:
Now, there is a reference to federal sector experience in EEO affidavits, which happened months afterwards, once Ms.

[00:06:08] Speaker 00:
Borovich had filed.

[00:06:09] Speaker 01:
But there's no dispute that's what the job was.

[00:06:12] Speaker 01:
And there's no dispute that your client didn't have any experience in federal sector labor issues and that the other candidates did.

[00:06:22] Speaker 00:
Well, I would somewhat disagree with that, because Miss Borovitschka worked at a private law firm doing employment law.

[00:06:30] Speaker 00:
She was not a federal government employee, but she was doing employment law under the same statutes in the private sector as she was in the federal sector.

[00:06:40] Speaker 01:
Is that really the case?

[00:06:40] Speaker 01:
I mean, I'm burdened with some experience as a labor lawyer in one of my careers.

[00:06:45] Speaker 01:
And there's a difference.

[00:06:47] Speaker 01:
I mean, I guess private firms might have engaged federal employees to do that.

[00:06:52] Speaker 01:
But I don't think there's any indication in the record that we were dealing with other than private sector labor law, which is not the same statute as federal sector labor law.

[00:07:01] Speaker 00:
There are some differences, for sure, like the ADA versus the Rehab Act that might apply to federal employees.

[00:07:07] Speaker 00:
But for example, Title VII and its application in the case law, there's a lot of overlap.

[00:07:12] Speaker 00:
And you're right that she did she was not a she did not previously work for the government.

[00:07:17] Speaker 00:
She worked as in a private law firm doing employment law again, though that that defense does not work because if if federal

[00:07:28] Speaker 00:
sector experience really was something that the FDIC values, and that's why they pay certain employees more.

[00:07:34] Speaker 00:
And they would have paid Dwayne Pitt more, because all of his experience was related to federal sector.

[00:07:38] Speaker 00:
I mean, the lower court judge in oral argument made that same point.

[00:07:42] Speaker 00:
So it just simply does not hold up that it was because of federal sector experience.

[00:07:47] Speaker 00:
And if you look at the appendix of the emails between the decision makers when they're deciding where to, how much to pay.

[00:07:56] Speaker 03:
As a legal matter, the fact that Pitt was treated differently means that they can't rely on federal sector experience.

[00:08:06] Speaker 03:
I don't quite follow that.

[00:08:09] Speaker 00:
Well, I'm saying that the argument of federal sector experience as being an affirmative defense is really not supported in the record.

[00:08:17] Speaker 00:
Dwayne Pitt is one example of that because if this was a true policy of the FDIC that

[00:08:23] Speaker 00:
administers equally to all employees, then it would have paid Duane Pitt more because he has a lot of federal experience.

[00:08:29] Speaker 00:
And they would have paid him more than, for example, Sam Brooks, but they didn't.

[00:08:33] Speaker 00:
And again, we're talking about Duane Pitt, but I would argue that that shouldn't even be argued at this point.

[00:08:40] Speaker 00:
Additionally, there are certain pay setting directives that are in the record.

[00:08:43] Speaker 00:
There's the directive, the circular 2220.

[00:08:46] Speaker 00:
And that talks about prior pay, and it talks about relevant experience, but again, nothing about prior federal experience.

[00:08:58] Speaker 00:
Judge Proce, did I address your questions?

[00:09:02] Speaker 00:
Okay.

[00:09:03] Speaker 00:
So going back, the burden here is that the FDIC has to show that it's not that something could have explained the wage disappearance.

[00:09:16] Speaker 00:
disparity, it's that it did in fact explain the wage disparity.

[00:09:20] Speaker 00:
And the FDIC's argument about prior federal experience simply do not meet that heavy burden.

[00:09:28] Speaker 00:
And if we look in the record, there's a lot of documentation and there's a lot of policies and various procedures and guidelines that the FDIC has submitted, but those are really all after the fact.

[00:09:41] Speaker 00:
So if we really look at the emails with HR, there's an email from HR

[00:09:46] Speaker 00:
among the HR department where the HR representative looked at the policy that was in place, the directive, and found that the FDIC could have paid Ms.

[00:10:00] Speaker 00:
Borovitschka a higher amount without having to request a pay exception to kind of match her or get near to her prior salary.

[00:10:08] Speaker 00:
And so the HR representative sent that to the decision makers and then there's no

[00:10:13] Speaker 00:
There's no discussion in emails.

[00:10:17] Speaker 00:
There's deposition testimony that there was no meetings about what happened or the decision makers reviewing any other policies.

[00:10:26] Speaker 00:
And so the FDIC could have easily placed Ms.

[00:10:30] Speaker 00:
Borovitschka at a higher pay rate, but it did not.

[00:10:33] Speaker 00:
And there's nothing in the contemporaneous record that talks about prior federal experience with Wayne Pitt.

[00:10:38] Speaker 00:
I will admit that later on in the EEO proceedings, the affidavits,

[00:10:42] Speaker 00:
that is in there along with a lot of other arguments that the FDIC later came up with.

[00:10:47] Speaker 00:
But because of this is the EPA, because of the heavy burden of the affirmative defense, the analysis should stop there that the FDIC did not meet its burden.

[00:10:57] Speaker 00:
Happy to answer any other.

[00:10:58] Speaker 03:
Want to save the rest of your time?

[00:11:00] Speaker 00:
Yes, I'll take your time.

[00:11:01] Speaker 00:
Thank you.

[00:11:03] Speaker 03:
Ms.

[00:11:03] Speaker 03:
Kim?

[00:11:21] Speaker 04:
May it please the court, after two years of discovery at the agency level and child court since this case began in 2021, nothing has changed.

[00:11:32] Speaker 04:
Ms.

[00:11:32] Speaker 04:
Borovitska fails to rebut the FDIC's ample showing that gender neutral factors under its pay setting policy caused differences in pay.

[00:11:42] Speaker 01:
I'm just not clear of how this went down.

[00:11:44] Speaker 01:
In her prima facie case, she's supposed to establish comparators.

[00:11:49] Speaker 01:
and she identified comparators and the government didn't challenge those comparators?

[00:11:57] Speaker 01:
Didn't challenge her inability to make?

[00:11:59] Speaker 01:
So where does that leave you in terms of your burden than otherwise?

[00:12:02] Speaker 01:
Do you have to go through every other, everyone she alleged was a comparator and show that the differences were for reasons other than sex?

[00:12:11] Speaker 01:
Or why are we left with just Mr. Pitt?

[00:12:14] Speaker 04:
Your honor, we are not just left with

[00:12:16] Speaker 04:
Mr. Pitt, and comparator is a term of art, where Mr. Pitt's pay, not himself, is not being shown to exclude Ms.

[00:12:31] Speaker 04:
Barabouche as comparators, but is being shown to explain that in light of her comparators, that it is highly relevant.

[00:12:42] Speaker 04:
His comparator will pay

[00:12:44] Speaker 04:
is highly relevant to the government's affirmative defense.

[00:12:49] Speaker 04:
And that explains differences in pay with her alleged comparators.

[00:12:54] Speaker 04:
And it's highly relevant for four reasons.

[00:12:58] Speaker 04:
Because first, the same hiring managers affirmatively considered Mr. Pitt's pay when considering Ms.

[00:13:05] Speaker 04:
Borovitskaya's final offer.

[00:13:07] Speaker 04:
Second, Mr. Pitt's pay was just set a month prior.

[00:13:11] Speaker 04:
Third,

[00:13:12] Speaker 04:
Both were hired into the same labor and employment and administration section, or least for short, field unit council position.

[00:13:21] Speaker 04:
And fourth, the hiring managers sought to avoid a huge disparity of their starting salaries.

[00:13:30] Speaker 04:
And in fact, determined that $10 above.

[00:13:33] Speaker 02:
When you consider the structure of the Equal Pay Act

[00:13:38] Speaker 02:
And for example, also in the county of Washington versus Gunter that discusses the codified exceptions, the four codified exceptions that the government assumes, right?

[00:13:50] Speaker 02:
The burden passes to the government if there's a problem if I see a case, the burden now passes to the government and they have four exceptions to meet their burden.

[00:14:00] Speaker 04:
That's correct, Your Honor.

[00:14:01] Speaker 02:
The government has... And none of those involve analysis or comparison.

[00:14:05] Speaker 04:
Right, as this court most recently explained in Boyer, all that is required under the catch-all fourth exception is a differential based on any other factor other than sex.

[00:14:20] Speaker 04:
And that entails showing first the existence of an alleged other factor, and that that factor must, as a factual matter, show that it is other than sex.

[00:14:33] Speaker 04:
And those factors here

[00:14:34] Speaker 04:
are not only prior pay, but relevant employment history, thorough sector experience, and, as a child court, correctly determine, critically, the base salary of a recent hire into an identical role.

[00:14:48] Speaker 04:
That recent hire was Duane Pitt.

[00:14:51] Speaker 04:
This is supported by affidavits of hiring managers Christine Esquivar and Judith Thompson, deposition testimony of the hiring manager Thompson, deposition testimony of the human resource specialist Diane McKee,

[00:15:04] Speaker 04:
contemporaneous emails amongst human resources personnel and contemporaneous emails between human resources personnel and hiring managers.

[00:15:14] Speaker 04:
As such, both Ms.

[00:15:16] Speaker 04:
Borovishka and Mr. Pitts' pay, regardless of gender, were set at the low but appropriate and permissible range for the corporate grade 15 council position.

[00:15:28] Speaker 04:
Gender neutral factors under FDIC's pay setting policy

[00:15:32] Speaker 04:
indeed explain why Ms.

[00:15:34] Speaker 04:
Borovitska's pay was higher than Mr. Pitt's, but lower than her alleged comparators.

[00:15:39] Speaker 04:
This is because, beyond a candidate's highest prior pay, the FDIC values federal sector experience.

[00:15:48] Speaker 04:
And Ms.

[00:15:48] Speaker 04:
Borovitska had very little, if not none, despite her high law firm salary and private sector experience.

[00:15:55] Speaker 04:
As a Leeds Field Unit Council, the job posting indicated Ms.

[00:15:58] Speaker 02:
Borobichka was expected to provide expert advice on federal... Her experience now, was that in federal, before the federal employment statutes?

[00:16:11] Speaker 04:
Her experience was...

[00:16:13] Speaker 04:
only in the private sector.

[00:16:16] Speaker 02:
I understand that, but she practiced law in the private sector in the employment field.

[00:16:22] Speaker 04:
Yes, that is correct.

[00:16:24] Speaker 04:
And that was taken account for and credited for.

[00:16:26] Speaker 02:
What I'm asking is, was her practice before state courts or was it before federal agencies?

[00:16:34] Speaker 04:
She testified in her deposition, Judge Raina, that

[00:16:40] Speaker 04:
She had no experience before the MSPB and the FLAA, and her EEOC experience was limited to... Correct.

[00:16:48] Speaker 02:
But I guess what I'm trying to get at is she had significant experience in the private sector representing clients before the federal agencies on employment matters.

[00:16:58] Speaker 02:
So she had experience in a field related to the field involved in the case.

[00:17:07] Speaker 02:
That's under the Equal Pay Act.

[00:17:10] Speaker 02:
So what I'm asking is, was her experience found to have been restricted because she was an employment attorney in private practice and did she practice before federal agencies?

[00:17:33] Speaker 04:
It was not restricted and her experience was very little in terms of

[00:17:40] Speaker 04:
experience before the relevant job description that was required of her, which was to practice before the FLRA, the EEOC, the MSPB.

[00:17:50] Speaker 04:
The 30B6 witness, Eric Gould, even testified that most of the counsel and liens have cases that are before these federal agency bodies, like the MSPB or the EEOC.

[00:18:03] Speaker 04:
But she even

[00:18:05] Speaker 04:
testified in her deposition that her EEOC experience was limited to about 10 cases on behalf of companies, of which the complaints were either dropped or resolved short of a hearing, and she had no federal government experience except the summer college internship at the White House.

[00:18:21] Speaker 04:
Due to her lack of experience, one of the hiring managers who interviewed Ms.

[00:18:25] Speaker 04:
Borobitschka and reviewed her written application stated in a contemporaneous email

[00:18:30] Speaker 04:
through the hiring manager, Estavar, quote, in my 25 years in this section, we have never selected an external candidate who has not had experience in federal sector labor and employment EEO at any level, end quote.

[00:18:42] Speaker 04:
And that Ms.

[00:18:43] Speaker 04:
Moravica, quote, did not appear knowledgeable at all about such basics as FLRA and MSKB, end quote.

[00:18:50] Speaker 04:
As a result, the hiring manager strongly recommended

[00:18:53] Speaker 04:
against selecting Ms.

[00:18:54] Speaker 04:
Borovicka over another candidate.

[00:18:57] Speaker 04:
As a matter of fact, Ms.

[00:18:58] Speaker 04:
Borovicka has less federal sector experience than all of her alleged comparators.

[00:19:03] Speaker 04:
This is supported by the answer to the complaint, responsive to interrogatories, standard form 50s of the comparators, which reflect the length of their federal service, the detailed review by the trial court of Ms.

[00:19:18] Speaker 04:
Borovicka's alleged comparator, Samuel Brooks,

[00:19:20] Speaker 04:
through his pay exception memo, which also shows that the mean length of federal service in 2016 amongst Lee's counsel was 14 years.

[00:19:29] Speaker 04:
And importantly, Ms.

[00:19:30] Speaker 04:
Borovitska's lack of federal sector experience compared to her alleged competitors was uncontroverted below.

[00:19:36] Speaker 04:
Instead, to rebut the FDIC's affirmative defense, Ms.

[00:19:39] Speaker 04:
Borovitska argued pretext in the form of

[00:19:43] Speaker 04:
contradictory testimony and shifting explanations, and now an appeal adds post hoc rationalization and pretext in the form of three sexist comments allegedly made by the hiring manager, Ms.

[00:19:58] Speaker 04:
Esfavar.

[00:19:59] Speaker 04:
But the trial court exhaustively considered all of these arguments to include a three and a half hour marathon session oral argument, and again upon Ms.

[00:20:09] Speaker 04:
Boroviska's motion for reconsideration.

[00:20:13] Speaker 04:
and found these arguments mirrorless and unsupported by actual evidence.

[00:20:20] Speaker 04:
In the end, Ms.

[00:20:21] Speaker 04:
Borovitska failed to rebut the FDIC's affirmative defense.

[00:20:28] Speaker 04:
And Judge Bonilla at the trial court clarified that he did not consider evidence with regard to the distinction between the headquarters and field unit offices.

[00:20:41] Speaker 04:
that that was neither determinative or material in his decision.

[00:20:47] Speaker 04:
As such, all of these arguments were considered.

[00:20:51] Speaker 04:
Borovica lacked federal sector experience, and due to her lack of federal sector experience, among other gender-mutual factors to include her prior pay and to avoid a huge disparity with a recent hire and to an identical role, her pay was set at the low but appropriate and permissible

[00:21:11] Speaker 04:
range pursuant to the FDIC's gender-neutral pay setting policy.

[00:21:16] Speaker 04:
Gender-neutral factors, in fact, explain differences in pay.

[00:21:21] Speaker 04:
This court should therefore affirm the trial court's decision.

[00:21:27] Speaker 03:
OK.

[00:21:27] Speaker 03:
Thank you, Ms.

[00:21:28] Speaker 03:
Camp.

[00:21:30] Speaker 03:
Ms.

[00:21:30] Speaker 03:
Chandler.

[00:21:41] Speaker 00:
Council raises the issue about the timing of a recent hire, saying that Dwayne Pitt was recently hired before Ms.

[00:21:52] Speaker 00:
Porewiczka.

[00:21:54] Speaker 00:
This is really, again, an argument that does not work.

[00:21:58] Speaker 00:
Antonier White is another FDIC employee who was hired seven months later and was given a base salary of over $10,000 more.

[00:22:11] Speaker 00:
the FDIC's position that because someone was recently hired, it happens to be Dwayne Pitt, we're going to tether Ms.

[00:22:22] Speaker 00:
Borovitch's pay to Dwayne Pitt, it just simply doesn't make sense because the FDIC is doing, they're applying its policies to the advantage of males.

[00:22:32] Speaker 00:
When a male needs to match his higher previous pay, it will use the directive, the 22201.

[00:22:38] Speaker 00:
When Ms.

[00:22:39] Speaker 00:
Porowiczka is trying to explain that she made a lot more in the private sector, it does not do that.

[00:22:46] Speaker 00:
It provides her $10,000 more than the base.

[00:22:49] Speaker 00:
So again, this is an example for Antonia White.

[00:22:54] Speaker 00:
There's nothing in the record.

[00:22:55] Speaker 00:
Well, first, there's no policy that says that the timing of when someone's hired should dictate your pay.

[00:23:02] Speaker 00:
It's just not in the record.

[00:23:04] Speaker 00:
Further, there's no emails.

[00:23:05] Speaker 00:
There's no deposition testimony.

[00:23:07] Speaker 00:
about the timing or about Antonia White being hired and his salary being looked at in terms of timing for Borovitska or Dwayne Pitt.

[00:23:17] Speaker 00:
So that argument is just something that the FDIC has come up with in litigation and is not what was actually used in setting a base pay.

[00:23:28] Speaker 00:
I won't belabor the point on Dwayne Pitt, but I just want to emphasize that under Cook,

[00:23:33] Speaker 00:
shouldn't even be discussing Duane Pitt.

[00:23:36] Speaker 00:
The FDIC's argument cannot be that Duane Pitt won a person as a comparator, and that should be used through the entire case.

[00:23:44] Speaker 00:
We've passed the prima facie case, and it's just simply not a relevant analysis.

[00:23:50] Speaker 00:
Again, with federal experience, as I've made the point before, if it really was that federal experience

[00:23:58] Speaker 00:
was some policy or some metric that the FDIC cared so much about that it applied to all of its employees.

[00:24:04] Speaker 00:
We would see that in some kind of policy or criteria or notes or the emails among the decision makers.

[00:24:10] Speaker 00:
And none of that is there.

[00:24:11] Speaker 00:
So I invite you to look back on the record on 935, 854, and 865.

[00:24:16] Speaker 00:
It's simply not referenced.

[00:24:19] Speaker 00:
And further, if it really were federal experience, then Duane Pitt would have been paid more than other comparators.

[00:24:27] Speaker 00:
And then in terms of federal sector experience, the FDIC itself cannot explain what it means by federal sector experience.

[00:24:37] Speaker 00:
That's because it's not in their policy.

[00:24:38] Speaker 00:
In the directive, it is simply about relevant experience.

[00:24:43] Speaker 00:
And so the decision-makers aren't even aware about exactly what Ms.

[00:24:49] Speaker 00:
Borovitschka did, what her involvement was.

[00:24:51] Speaker 00:
the fact that she did file with the EEOC, a federal agency, and there's no scale or criteria of if that is sufficient.

[00:25:00] Speaker 00:
In sum, the FDIC does not meet its heavy burden on the affirmative defense.

[00:25:04] Speaker 00:
We don't even need to go to the pretext analysis.

[00:25:07] Speaker 00:
What counsel has referred to as testimony and other policies

[00:25:15] Speaker 00:
That was all after the fact.

[00:25:16] Speaker 00:
That was after Ms.

[00:25:18] Speaker 00:
Borovitschka had actually approached the FDIC and Ms.

[00:25:22] Speaker 00:
Borovitschka submitted a declaration where she asked the FDIC, why is my pay lower than males?

[00:25:29] Speaker 00:
He said, we don't know.

[00:25:30] Speaker 00:
And the only policy they pointed to was Directive 2220.1 that was effective at that point, which should have matched her pay to her previous pay.

[00:25:40] Speaker 00:
That was the only thing at the time.

[00:25:42] Speaker 00:
Later, through the EEOC and through the various years of litigation, the FDIC has come up with guidelines, different factors, things that HR admits in its deposition that it did not

[00:25:53] Speaker 00:
doesn't recall if it got training on, doesn't recall if it received.

[00:25:57] Speaker 00:
There is testimony that the two decision makers, Christine Savar and Judith Thompson, did not review any documents or policies and procedures in setting Borovitska's base pay.

[00:26:08] Speaker 03:
And there is testimony from- OK, I think we're out of time.

[00:26:11] Speaker 00:
OK.

[00:26:11] Speaker 00:
Thank you.

[00:26:12] Speaker 03:
Thank you.

[00:26:12] Speaker 03:
Thank you, counsel.