good morning your honour's i'm elizabeth appearing on behalf of the plaintiff appellant trevor schleicher and i'd like to reserve four minutes for rebuttal by this case is about an employer who paid a female six hundred ninety four thousand dollars less than a male even though they were part performing the same work and then the employer reduced the males rate in violation of the equal pay act now the district court in this case found that even though there was a prima fascia violation that ultimately the pay disparity was based on a factor other than sex allegedly because the female sales employee susan piotrowski personally chose the lower pay scheme now that conclusion is wrong for several reasons first of all whether or not there was truly a choice is a disputed fact which is why this case should reach a jury there is conflicting testimony in the record about whether or not she really had a choice in two thousand and nine but no this would make more sense if you were representing her are there other cases where somebody who's making more  alleges that there's a violation of the statute and succeeds this case is unusual because it is a male who has brought this know it's unusual because the person who brings it is making more than the comparables so i'm asking you are there other cases where that's where that's been done successfully no there hasn't been a case that with these specific facts but what this employer did that violated the equal pay act was she reduced the males well i understand that that normally can be a violation of the equal pay act but it's only a violation if in fact the original disparity was a violation right so you've got to convince us that the that he has that he will succeed on a claim of a violation of equal pay point he is making seven hundred thousand dollars more than she is right we have to prove that there was a violation but not necessarily that he was making less we have to show that there was a pace scheme in place and that there was a wage disparity it's not the plaintiff's burden to show that it was based on sex that would be under a title seven claim where the plaintiff would have that burden but in this case there is evidence that this pay disparity was based on sex and that's because the c e o for three and a half years consciously decided to make out a check to a male and female performing identical work and she paid the male sure that both employees were offered two options as to how to be paid and that the female chose to give get the one hundred thousand dollars salary guaranteed plus ten percent of the profit pool and that the male employee chose to get no guaranteed but twenty percent profit pool is that not what the evidence shows that's correct that is the choice that was made in two thousand and nine but when the disparity occurred later this female was not given a choice she wasn't asked in two thousand and ten would you like to be paid differently when the employer is there any necessity that the that everybody gets to choose again there is that in the employment contract or anywhere else there is no legal requirement or contractual requirement to do that but if the defendant's argument is that she was given a choice we have to ask ourselves why she really given a choice when the pay disparity existed in two thousand  thousand and eleven two thousand and twelve or two thousand and thirteen already made her choice she made or bad she has to lie and i can understand if she showed up and was complaining about this how we might find a violation but but he's rolling dough at this point what what is he this problem even though he may have been the beneficiary of more money it still doesn't mean that he should be denied his right to earn that compensation and not have his pay reduced in violation of the law if you have an initial violation where there is a pay disparity but what we're trying to decide is there an initial violation and it appears here that it was based on a choice that they made in zero nine or ten whichever whichever that was if it had been two men that were faced with that choice and one of them went one way and one of them with the other there wouldn't be any question at all the only reason you're in here is because we have a moose male in the other one was female but what difference does that make if the choice was not premised on gender the initial choice was not premised on gender but ultimately the o made a choice to continue to pay a male and a female vastly different we just did that even though the female ask for treatment like the male during two thousand and ten or eleven or twelve or thirteen no but there's no requirement that she do so under the law there is simply a requirement that the male and female who are performing the same work be paid equally and they weren't and that is very clear in this record current depending on hypothetically how the company did the plaintiff my means are the female might have made a good choice and certainly the female was risk averse when she made the initial choice and she wanted to guarantee of  hundred thousand dollars she might have thought that the extra ten percent of the profit pool that the male was going to make was not likely to be equal or greater than one hundred thousand and then and  there's no record evidence is there tell me if i'm wrong that the female ever asked to be paid according to the male's method of being paid right that the female never asked but again there's no obligation under the law that she ask  i understand where your concern is because in certain situations a male may have an entree into negotiations or discussions that a female might not that's a fair consideration but what we have before us is our record and that's what we have to look to so when i know there's some question about what miss piotrowski said at the beginning but i think that was have a single mother i cannot afford to run a risk your client testified for she wasn't going to touch that with a ten foot pole and isn't there testimony in the record from her that said yeah i knew he was making more money and i think he made a good choice more power to me so do we have anything in the record that would indicate that there was an improper disparity based on six yes that's true that that testimony exists but there's also testimony from the female sales employee herself saying that at the time in two thousand and nine when the male employee was hired she testifies that she didn't have the choice at that time and that was i thought there was an explanation in your opposing counsel briefing that explained exactly what deposition i believe deposition question that was responsive to and that was not responsive to the question of whether mr piotrowski to head of a list risky alternative and that her testimony was consistent but that she and wanted a less risky alternative that's true but at in her position testimony if you read it it says that at about the schleicher was hired she didn't have the choice and that was a moment where the truth slipped out and it's for a jury to decide if that was credible or not credible and whether the defendants explanation applies or whether she was talking about the two thousand and nine time period where travers liker came on board and there is evidence of is sex based discrimination not that the plaintiff has that burden at this point to prove that but there is evidence you have a o who quarter after quarter after quarter sees that a male is earning sometimes eighty thousand dollars more in one paycheck than a female and she decides the very next quarter to write another check and then another quarter comes along and she writes another check where she pays a male significantly more that is a conscious sex based decision to pay a male more than a woman who is performing the same exact work and i'd also like to mention that there has been a jury trial last week the verdict to come out but it is the plaintiffs position that the plaintiffs trevor schleicher should have an opportunity to present his equal pay act claim because they were different claims with different burden of proof so that there was a jury trial on what topic it was on the state based claims because in this case the district court declined to exercise supplemental jurisdiction so it was and the procuring cause issue and a michigan elliot larson civil rights act gender discrimination claim this was in state court yes and what was the  outcome the the jury found in favor of the defendant but again this this equal pay act claim present a different issue with different burdens of proof for the plaintiffs and the plaintiffs should have an opportunity  nothing in michigan law which is the good of the equal the michigan elliot larson civil rights gender discrimination case mears title seven which has we know that i'm asking you if there is an equivalent  was just the closest would be the gender discrimination claim under the michigan elliot larson civil rights act for pay discrimination and that does not resolve the issue before us it's our position that it's close to but it does have a different burden of proof and we would not have to prove that there was discrimination directed at the mail in this case if it were to reach a trial and that is why we believe that the the morning your honor be able to sign it interrupts you can we talk a little bit about the state equivalence here i'm now concerned about whether this whether the issue is already been civil rights act claim which was premised on the change in his compensation and our first argument was that rest judicata apply because of the decision in from judge borman in this case and there is zero a plethora of case law that says that disposes of the state law claiming for reasons i can't explain to you the state law judge did not agree with us on that so if the state law claims in this case were disposed of i will say after twenty two minutes of deliberation the jury found in favor of my client and all the claims by it but the part of the elliott larson case that went on in state court had to do with the on equal with the disparity in the pick disparity in the wage thing that we're talking about here exact same set of facts and which in what is interesting what's always been interesting to me about this claim is that on the e p a side to prove that the male was discriminated against and and all the evidence they presented to your honor's is and it's a medically extremely weak but nonetheless it's designed to show that merissa panko the c e o of preferred solutions that in the years when the male was making a ton of money the female had an equal pay act problem and the male can raise that because when the when this is realized the company remedy is the equal pay act problem that the female had been suffering by reducing the wages of the male and so the male suffers for the last year in two thousand and thirteen when he's being paid less which is an improper remedy if there was an equal pay act violation but then his elliot larson claim is that when the company decided to pay him they they were discriminating against him on arson grounds all of them when i write that i th of what you're writing on the employee everything you said is true the proof designed to prove those things are in get on the be the normal case if you will and to judge daughtry's earlier question i am not aware of a single case on this fact pattern but i would suspect that when congress and acted the section of the statute that plaintiff is suing under the normal case would be and will just pick a female because it's usually the female who is paid last the females be paying fifty grand a year the male is being paid one hundred grand a year the female employee learns of the discrepancy goes to her employer and says this is ridiculous we're doing the exact same job i'm being paid fifty thousand dollars less and there's evidence the employer is aware of this and has intentionally paid the female less and in response to that says yes you're right so i'm going to go to the male and i'm going to reduce him from one hundred to fifty that's how i'm going to remedy my why isn't that what happened here except for the fact that it's the male who's saying for the year two thousand and thirteen when you reduce my pay to equal the lower female pay i was wrong during that year he's not complaining about the other years of course because he was paid six hundred thousand as a pa compared to two hundred thousand mind you judge moore no one complained about anything neither the plaintiffs complained he was making too much and the female plaintiff the soupy atrocity didn't complain it's very clear she never complained about any discrepancy  the main issue here is how do we get to this disparity because there is a disparity and i think all three of you has have acknowledged in one form or fashion that the reason we get to where we get is because of the way that the pay structure is designed and the choice they were there was absolutely undeniable proof that both of them were offered the same exact pay structure one hundred thousand dollars with ten percent of the profits or zero base and twenty percent what i understand your opponent to be arguing in the oral argument is that the female was not given a choice in years twenty ten twenty of in two thousand and twelve to shift to what the male was making to shift to the mechanism that the male was utilizing well is that what is the evidence in the record because we're on summary judgment and you have the burden right you have the burden i will i will defer to what judge daughtry said on this is there is no requirement that she go back and here's the absurdity of the argument that they're making to remedy the wrong she would have had to strip soupy atrocity of her guaranteed base salary which is the specific reason wouldn't the remedy of the employer be to say to the female each year or whatever the time period is when people can make choices you know that joe is making making up names you know that joe is making more than you are under his mechanism do you want to shift to his mechanism and then mary can say no i don't want to shift your honor and then say yes i realize now i made a bad judgment i can say definitively there is no case that suggests that that is required  and i'll point out another but why should it be required under the equal pay act i'll grant you that probably there are no cases because for example in the first quarter of two thousand and ten m more than the plaintiffs so with the app point was she supposed to go to the male plaintiffs and say your female counterpart just made more than you in this quarter are you sure you want to stick with the deal you made because it might not work out it is as you may recall from our briefing we argued that there are two affirmative defenses at play here based on factors other than sex but there's also this quantity in quality of production and we cite this diamond vs t rowe price case and it shows the reason that we have a disparity and the reason that in one quarter someone makes last and someone makes more is because there is a portion of the compensation scheme that's tied directly to the profitability of this particular portion of the company's business and r whether the plaintiffs here would actually lose that much money but switching to the a base and a percentage because how much he makes depends on what's in the pipeline to arm but and not to understand from the other case that in fact he did end up making less than mrs piotrowski did so when the change takes place there now an equal footing so they're making the exact same amount from july one of thirteen until he's fired on december three and he ended up making about just over thirty one thousand dollars l under the the revised compensation scheme than he did under the original would have from a yes now this is not in the record but to illustrate the point had he not been terminated and had he worked all of last year he would have made more under the compensation scheme that ms piotrowski selected and they are that's the fundamental flaw in this case is that it is is this i think i can say other than this diamond versus t rowe price case every e p a case that i'm aware of there is an objective difference between what the male and female are making and there is no doubt how that's going to play out in the future one of them is being paid more and one of them is being paid less and it's typically hourly rate or it's your salary on of them starts of a lot of higher salary in there and then it goes out that's how they play out there's there's there is an objective difference it's not that merely p cuz i'm my all can go in and access an upper level of management and negotiate a better way than a woman who does the exact same work that claims everything up and there's no violation there are if i and i don't want to be a vase about i want to make sure understand your question there are numerous cases where courts have recognized that negotiation that is supported by objective fact i i come from a different geography were you know we make more money here than here i have greater experience i have specific experience on sticks and exactly in that type of a setting it we would have a problem potentially  these compensation structures were not offered to both of them and i say potentially because it you know at that point it's hypothetical because the focus of this is what's interest the focus of e p a to establish a prime aphasia case which we really haven't focused on because i think the affirmative defenses are so strong the person bringing the claim has to establish a lower wage a lower wage and as of the day that the respective compensation schemes are selected there's only one thing we know for sure and that is soupy atrocities going to make one hundred thousand dollars the female is has a one hundred thousand guarantee that the only thing we know so i submit to you who has the lower wage on the day that they select these respective compensation schemes i would say you could make a very good argument that it was the female that well you might be in trouble if you were representing is your first name sue yes  if after a year or so she saw that the plaintiff was making a good deal more than she was and went to the c e o and said i want to on that plan i made a bad judgment and the woman said no i'm not going to let you change your mind i would agree that yes there any evidence at all in the record that the female worker did go to the c e o and ask for treatment like the male worker the evidence is unequivocal that she never requested a page change now you're your opponents there's no requirement that under the e p a that she the female worker request a page change how do you respond i would say there's no legal requirement that she do that the because again it does is it i think we we're we have to focus on is probably and i think maybe the question is is there some obligation on the c e o when she sees this disparity to dump some money on the woman well that's your ad isn't that the to solicit it dump some money or there is no there is no requirement because in this particular pay structure well there's two reasons let me start with the second one in this particular pay structure as we know  need more than the plaintiffs so it's subject to change quarter to quarter so literally what i supposed plaintiff is asking should be should have been done in this case is that there should have just been agreed to gratuitous payment that wasn't related to the base salary or the profit slash commission that would be number one but number two there are a multitude of cases where the courts have justified or if found that employers are justified in pain males and females differently and there and that never changes over time the female continues to be outpaced by the male but you look at the date in time that the decision is made to determine if the initial setting of the salary complaint in this case i think we would be squarely under section two zero five d one for an employer who is paying a waste differential in violation of this subsection shall not in order to comply with the provisions of this subsection produce the wage rate of employee that goes back to my hypothetical the normal situation i know i'm being paid last and i raise it with my employer and my employer dealings the higher paid opposite sex employee that's not what we have here in any way shape or form and if i can just make abundantly clear in my last forty five seconds i think it's extremely disingenuous to suggest that miss p atrocity did not have a choice the testimonium pages forty six and forty seven is very clear that petrofsky was testifying to is that before the plaintiff was hired she was paid one hundred thousand dollars plus twenty percent commission and after plaintiff was hired and at his suggestion it became not a commission in the sense of you eat what you kill commission based on your own individual work it became a profit pool and it that point there was no choice to keep one hundred thousand plus twenty percent because i presume everyone would have accepted that pay rate because that's higher than than anything either one of them got she said i didn't have a choice to keep my pre plaintive pay structure i had a choice between zero base and twenty percent profits or one hundred thousand base ten percent of the profits and she selected what ultimately ended up being at least for all but one quarter of the less lucrative plan and never complained about it one time not one time to thank you very much thank you very much think to just begin by saying that there is a requirement that when a male and female are paid differently that the employer must correct it and she must do so by raising the female up the fact that the disparity exists there is testimony on the part of the female sales employee where she said that she the fact that trevor was making so much than her made her ill when she talked about it so there is some conflicting testimony on that point and second of all if she wasn't willing to give up the guaranteed hundred thousand dollars but she wasn't asked if she was willing to end the later years when the pay disparity actually occurred what's to prevent her from going to the c e o and saying i've had all of this i can spend it's making me want to change the wage base here but again there's no requirement under the law that she do so and my co counsel here are my opposing counsel was unable to answer that question to say that there was a requirement because there's not and if this court were to accept this personal choice it theory it would push the statute off the cliff because an employer could say well i'm going to hire ten males years later and i'm going to pay them more but you know what female that's ok you can't change your compensation structure because you picked it so that would where as the evidence in this case that the employer did not allow the  female to change her pay structure after twenty nine or twenty ten whatever the year of choice where is that evidence the evidence is that in the later years in from two thousand and nine or two thousand and ten to two thousand and thirteen that she continued to write out these checks paying a male more where is it where is there evidence you have and the employer refuses to allow the claim the female to change she never went back to the female and said would you like to change i see that there is a considerable pay disappears so the employer did not initiate a higher pay for the female but the employer never denied the female a hi has that right but isn't in action a form of denial only if the female doesn't realize that she used getting less she and doesn't object to it i mean she knew she was getting away as you just told me she said it made her ill will make me ill too but i might want that guaranteed hundred thousand dollars that's the point that right but she never was given the opportunity to change her pay structure the employer never had a conversation there was no discussion she simply continued to pay a male significantly more for the same exact work and that's the purpose of the equal pay act it's very simple equal pay for equal work and once there is a disparity the employer must correct it that's what the maricopa case tells us that once an employer is aware of a disparity they must act within a reasonable time to correct that pay disparity and that didn't happen in this case and that is why the lower court should be reversed on this point it would got the statute if we allowed a scenario where a man and a woman are doing the same exact work they even have the same sales experience they worked at the same company prior to joining preferred and yet they did the same work for substantially different amounts of pay we're not talking about a thousand dollar difference so we're talking about six hundred and ninety four thousand dollars differences for a male and a female performing the same work and i would also like to just mention that judged out to you expressed some concern about this state court issue in fallon the court says it is possible that a plaintive could fail to meet its burden of proving a title seven violation and at the same time the employ or could fail to carry its burden of proving an affirmative defense under the equal pay act so it's possible to have a different defense or a different result and that is why