me take your time obviously got lots of paper to bundle up so you need more associates she was the only professional woman at the five acoustic facility where she worked and it was a minute only environment where managers were unfamiliar with working with women in that environment she was consistently paid well below her male peers even those performance of c into worse than she most vocal was not worth the expense when he was presented with a salary increase recommended by ms focus to supervisors and human resources however when he needed coffee at a meeting he found misspoken to be his most valuable employee and i think the briefing in title seven sex discrimination because your stuff about talking about getting coffee sounds like sex discrimination as opposed to the equal pay claim of whether she was doing the same kind of job and whether there were other factors that is in general if you think about sex discrimination as you're being treated worse than a really comparable male as opposed to equal pay is really exactly the same kind of job so can you distinguish that and what you're really claiming as opposed to the atmospherics well i mean we have both claims i mean the court this court has been clear that if we prove the e p a case if we prove that you performance of stange legal work that they have not met their firm of defenses we also survive on the title seven claim for pay discrimination so really the supreme court has recognized that there are cases where you won't have an exact comparative or in those cases a plain of can move forward on an equal pay case based on sort of traditional title seven mcdonnell douglas framework and in my view and what we've done we've focused on is is the e p a portion because i think we satisfy those requirements but the environment in the way that she was treated so differently than her male peers i think also it's independently give rise to a title seven claim even if she were not deemed to be doing substantially worse and here's is there reason that you focus not on what what i would have thought going in would be comparative ors that is the kind of people who were hired at the same time who had the same level of education experience who came out of fairest state and whatever but i understand that's not what you're doing you're saying she went in to an area where there were other people who were had the same title but had more experience might have been better people might not but that again sounds more like sex and here's really in sex discrimination you're saying well i'm really better than him and should have gotten some some good treatment or as normally if you have an office full of associates of law firm associates they may get paid different amounts some of them may have been there three years some may have been there for years some of the may do better business some may not right well i mean i think that we chose the comparatives because under the equal pay act it's the question of what job are you doing in our position is that regardless of his focus experience or education or those of her comparing that when she was the jobs that we have that she was doing with the same as her other people and i think it's very clear when you  only get you by the prime facie case so let's assume that you met the prime official case looking at the read the information that we have on the record for these other folks that you're comparing her to they all seem to have had substantially more experience than she so why is that not a valid other fact it is a valid other factor but the key is that on an affirmative defense unlike a title seven burden shifting where they nearly have merely have to articulate a difference defendant's burden is to prove the affirmative defense that these purported differences actually justify the pay disparity and under timur resent you see they have to prove that sex played no part in the disparity in the seventh circuit recently addressed very similar situations how do you prove that is and is not the classic crew being a negative that is if if there is no evidence in the record that sucks played a part do you just get it you might say the is sound to me like what is what i call residual theory to say that oh yes they might have more experience but that's only worth ten thousand and yes they might be a little better but that's only worth ten thousand and there's too big a difference so you have to prove piece by piece not just prove that there's a factor other than some right i think they have to prove i mean i think looking the best answer i think is to look at the king versus the cost of case because in that case what judge easterbro held was specifically that defendant had quote articulated education experience as potentially explanatory variables without proving that they actually account for the differences in this case if you look at the factual record all of their evidence is after the fact deposition testimony they went through after the fact and said look here is the differences between the various employees and so these justifier deface the so you're saying are you saying that under the equal pay act you have to have a matrix or an algorithm or something that explains every bit of hay that you can't say this guy's been here for twenty five years we're not going to cut his a in half as this youngster starts coming up on him right now and in fact that would be prohibitive of e p a to cut his pay and have to to equivocate you have to rise the woman raise the woman up you don't have to have a major even if he even if he's not really worth it if he's not worth it then you can cut his pay but if you're just doing it to  find to show that his vocal was not actually paid appropriately and i think the key fact is that she was never on the piece skill so defendants have pay scales and a jury at least a jury could find that they do in the in those piece calles they presumably set a range that accounts for the difference in education and experience in this foco in only ms foco was never put on the appropriate peace deal for the job that she says she when you say only she did you look at what happened to these other youngsters who were pay scale but i had the same question the judge box has that i don't think you're answering the company says that they paid all entry level people the same regardless of sex and you don't ever respond to that so i assume you accept that to be true we're not protesting that so if men and women who come out of college and start at this company all start at the same pay then basically your claim is yeah but she was better than everybody she wasn't doing entry level work she jumped up into a higher classification and she should have been making the same as people with ten or twenty years that's essentially argue that since you were are you but under the e p a that is your is there any is there any support for that sort of whole chart out of the people's salaries and there's a woman who's making less who have no college degree who is below the pay scale in the region that shows ranges from fifty five to one hundred in two thousand dollars that the men are vague and basically just easterbrook is like there's no evidence in the record that supports their birth and so that sort of goes to the jury to see what happens with with her pay and i think the key here is that the sets of the e p a sets up sort of prima facie make a pr case and they have to justify the disparity and the focus on the equal work there's no evidence that she was ever paid the same that there's any applications engineer to pay this amount and i believe there are specific testimony i think from tom ran one of her supervisors that he was not aware of any applications engineer ever making less than fifty thousand dollars a year which misspoken did and so when you talk about the actual job duties performed she was unique ok counsel have just added the king versus the cost of case i see it may please to court my name is susan starr represent the equal employment opportunity commission as amicus i'm not an expert on the record but i think when you're talking about the initial pay i believe that had to do with a position that's really not at issue here is when she initially started it was about technical engineers and they were all started at the at the same pay but i think the point of the king case but that does demonstrate that at least out of the box it doesn't look like this is a typical company in the e e o c world that you think is discriminating right out of the box on sex i agree with you i think that to start off it's important to remember this is summary judgment and then we're talking here about the affirmative defense the defendant has to prove that no reasonable jury could possibly find that sex was a factor and setting the spade disparity and the pay disparity is kind of two factors one is the initial pay disparity and the other as the court and king recognized it's the main maintenance of that hey disparity so maybe there was some justification and having some pay disparity initially they cite the educational differences and the experience differences but as the king indicated those are predictors kind of like when you take your l s a t s to get into law school those are predictors on how you will do in law school but once you're in law school this is from the king decision when you're in law school then it's about how you perform and when you're in your job the economic theory is it's about what that performance is worth in the marketplace so at over time if you see two people that are performing the same or in this case the woman performing much better than the men if sex is not a factor the salaries would tend to converge and that's i take it in a certain sense they did converge in the sense that she was getting larger pay raises it just she still remain quite far so then he would have the question under these circumstances does the does the equal pay act require what i said an algorithm a formula that absolutely defines why this person is paid different from that person i don't think it's me when it's an individual basis i mean i analogize me because i am a lawyer you know you go into a law firm and some young associates do very perform very good work in some old partners or old ford center being overpaid but you don't normally have to justify that on a line by line basis that's essence your case would clearly be a lot stronger if some other young male hot shot came into this and suddenly gets paid one hundred thousand u s what you've got are these people who have been there for a long time and that's where that's where the disparity is really is that i guess that's where the disparity is this is the defendant's burden of proof this is a strict liability statute this isn't like the normal federal discrimination statutes this statute different once we get to this discussion we've already established that the equal pay act has been applied violated that she was a woman was paid less for doing the same work so the defendant is liable now the defendant fascia case has been made no your honor does not if it's under the minimum wage provision of the fair labor standards act this is a very different statute part of the problem is using that term prima facia case because i think it a gender skin fusion but to well it is there it's like if you pay but it is than using the term violated if there is a legitimate factor other than sex then there's no violation if it's an affirmative defense all right affirmative defense is a little bit different so they have to prove you're right at the end of that we don't we're not at the end of the day yet so but at this juncture of an equal pay act violation has been established understand it in this case you want to make sure that experience is not being used in connection with the establishment the prime official case it's just the job duties and the skills required exactly and then secondly you're concerned about language that you don't like that talks about that arguably talks about who has the burden of proof in connection with the special factors right and then you say you don't take a position on anything else the made and whether or not there was a kind the defendant in fact relied on the factors that site now having assumed all of that when we get down to the question of ignore the private fishy case you've got a man and a woman doing the same job one has a lot more experience than the other you seem to say that at that point there has to be a detailed analysis of why that additional experience justifies paying more money to do the same it's not a detail analysis the defendant has to prove why did you make up exactly now the only thing that you cite for that proposition that in other words you can't pay somebody more merely based upon their experience is this came decision from the seventh circuit from which you really don't quote and then you immediately go to your compliance manual so are there any other cases that say that two people doing the same job one has won your experience one has ten years experience but they seem to both be equally adapt adept at doing the job that you can't pay the one more simply because that person has more experience in other would you have to justify something more than just the existence of more experience you have any case that says no and that's well that's not exactly our position our position is the defendant just has to prove that and in this case it that if the defendant proves it's education and experience then the defendant has met its affirmative defense proof that one had more experience or proves that the more that the additional experience allowed them to add more value to the job that in that time that they said pay that they actually in fact relied on that that they looked at that that they turn to that not after the fact looking back going hey there's some differences here that's the reason that they in the moment did not rely on sex in the moment they said no we're going to pay more for experience we're going to pay more for  education their educational background and that's the reason an employer can do that so in other words you don't the employer just simply asked to first of all i don't know how you prove that you actually did it based on experience but ignore that for just  the employer can prove that the pay differential is based on experience even if they can't cooperate or are established that that experience provided additional value to the company that's ok yes and so here how does one prove that you justified the pay differential based upon experience when he was in the facts in this case isn't there isn't any dispute that these folks had a lot more experience so how do you prove it beyond having somebody community testify we're paying them more because they had more experience maybe i'm just curious notes maybe mail maybe showing other people look this is how we treat all incoming people so what why is that why is a person coming along saying we paid them more because they had more experience why is that testimony was that there is that testimony in the record here is there not i think that i'm not an expert on the record i believe five from remember reading them in the brief so why why isn't that adequate proof in the e e o c is mine we prove things in cases every day around this country by somebody coming in and testifying met a fact the rules say that's the best test that's the best evidence oftentimes i guess if it showed a really link between what was happening at the time of the decision as opposed to a post hoc jumps if occasion that would be enough and i mean i'd have to look at the precise language of what exactly said in the record as to whether or not that doing apparently day in day out to meet this contemporaneous requirement that you're saying exists where do you go to find what it is that you have to do if you're an h r person at the time of the yearly monthly weekly hourly i don't know where to go to find out what the standards are to go to find the standards are the the general standard is that you have to show that you're relying on something other than sex whether that you show that through contemporary to contemporaneous notes comparatives but some reason to so that somebody can look at that and go off course that's the reason for it so then you really are seen i would i would say an algorithm but you have to have contemporaneous reasoning for every person's salary when this woman moved from test technician to applications engineer she was making some amount of money they paid her somewhat more but they didn't say and because she only has one year experience in this job we're not going to pay her as much as mr yoder and the difference is thirty thousand and there's twenty years difference and that's why we did they need contemporaneous notes of that sort not just saying she used to make so much we're moving around we're going to pay or a little more we don't have any other local comparative or there's not a male right next door that we have to negotiate well in this case there is the fact of the this pay scale that she was outside of the pay scale in terms of underneath the pay scale for each of these joppa zisha and though there are some argument about was every that's why i ask with were all these other young people always quote on the pay scale because right they argue that they were not and i didn't see a contravention of that and similarly if you say we need to pay you know mr x more because he was making seventy thousand across was what is the source or are our argument that we relied on one gender factors are from a defense and the source quite simply is the testimony of the managers who were involved in both the hiring decisions and the decisions about whether to increase  by how much to increase pay for all these individuals every year tom ram was the vice president of sales hawkins was the vice president of engineering and medical conny puir was the president of d n a the entire division all three at one point or another were involved at various hiring decisions for these individuals and the decisions about whether to increase or by how much to increase their salaries there's no better source for that evidence could we have had contemporaneous notes sure but we present testimony of individuals who have personal knowledge about the reasons behind why those decisions were made of these are being characterized repeatedly as post hoc rationalization zz did they testify as to the basis of their decisions at the time they made the decision absolutely they testify that at the time they made these decisions that's why they decided that a specific person would get a specific salary while we have example dean biondi was a person that tom ram hired as an account manager biondi had excellent ties with chrysler v n a wanted to market to chrysler that's one of the larger reasons why he got a very high salary because of his value to the organization of the next point i want to address is this notion that you would expect salary disparities to converge within a short period of time and for that plaintiffs rely upon the king versus acosta case that notion is present in other cases but based on my reading it's present in cases only where the in experience is very small we're talking five years or less that is not our case our case the disparity was very large if you're talking about someone with no experience versus ten fifteen twenty twenty five years of experience to put that in terms of lawyers if i have fifteen years of experience i'm a partner in a law firm or i'm not working there anymore for not a partner but that's the difference the central claim  someone who has who has a brand new associate arguing that the e p a entitles that person to the same pay or similar pay as someone who is a partner in a law firm that's not what the e p a requires another interesting point well there was quite a disparity in in experience for all except biase and biase had two years experience as an agent and it but b s e is the guy that negotiated higher absolutely he negotiated during the terms of his employment a higher rate of pay and interestingly enough he is also a person who left the company claiming he was not being paid fairly back to my point on king vs acosta there is an interesting passions there that talks about disparities between men and women and the court makes the observation that if there a experience difference and you're saying that justifies the level of the pay you would expect the salaries to converge if if women on average are performing as good as men now keep in mind that king versus a cost it was a case where we're talking about three years difference in experience not ten fifteen or twenty but that passage is illustrative because that's exactly what we did here with miss focus pay if you looked at what a charge to do or pay for you look at how rapidly it was increased and the percentages by which  increased she received far more rapid and significant raises an all of her comparable male peers we're talking thirty six percent over the life of her employment versus males who received on average two to three percent per year i am not sure what i would do this information anyway but do you know whether she left this job to become an account engineer at another company or a different job judge i don't recall whether she became an account manager at the job she went to i do know she obtained the salary that she thought she should be making with us with that job that's the sixty seven thousand that's correct because that sixty seven thousand is considerably less than perkins prince b s e and beyond it is and i think it's reflective of the difference  so the from your point of view the difference is there are there clearly were factors other than sex the question is just how much they should have weighed in the sense that she she she went and was happy  record supports that with less then her complera tours headed your company but she did get a good bit more than she had of your company i would agree with that except for i don't know whether she was happy with that job  but he hasn't sued them not that i'm aware of back to the prime officialdom is that was going to be the original starting point of my argument because i just want to make clear that judge he absolutely followed the law he took a look at the controlling case the corning glass works case versus brennan he articulated that standard he looked at the code of federal regulations and looked at what that required a plaintiff to provide for their prime facia case and he looked at the definition of substantially equal work and that is it's important to focus on this jobs the performance of which requires equal skill effort and responsibility and which are performed under similar working conditions the judge looked at t applied and concluded that plaintiff had not met her premise will her hear me the least as far as the prima fascia part of the irgc human how do you distinguish between jobs requiring in different amounts of skill and the skill level of the people performing the job clearly the people had more experience there's some dispute about how well each of them was doing the job but wasn't the job bein done the same job at the at the applications engineer  manager is different than focusing on the applications engineer i would answer that plaintiff failed to place enough evidence into the record to demonstrate that those jobs were the same i would also agree with you that the private facia test of the e p a does not require the plaintiff to prove equality of skill education and experience between the individuals in the jobs but i also don't believe judge he did that because if you look at the way his opinion float he articulated the correct test he made findings under that test and only then did he discuss and describe experience and education among the individuals in those jobs i know your reading is the only one that matters but my reading of that is that judge d cited that merely as with so how how did he distinguish the jobs that were being done there in the in order to defeat the promise to defeat the prime apush case he needs to doesn't he need to say that the job being performed was different i think he can either say the job performed as being different or  plaintiff failed to produce enough evidence to demonstrate that the jobs were the same because it is plain as a burden at that stage all right what what did the plaintive do here that wasn't enough that is she she gave the titles she gave some statement as to what was being done what didn't she do she what didn't she do your honor she did not provide evidence as to the remaining definition of substantially equal work i think she provided testimony from that quote same job same responsibilities that very conclusory statement in that that addresses responsibility absolutely but she did not address the element of equal skill she did not address whether the two jobs required of the equal skill that it is what the job requires not how well you're doing it right if we're both plumbers and i'm really good amarin you're a crappy plumber but were both good enough not to be fired then the job requires the same thing doesn't yes so long as you and i put enough evidence into the record to demonstrate that's what the job requires we know the job titles aren't enough because the court or federal regulation says that what plan to fail to do is to provide evidence showing that the jobs required equal skill equal effort and were performed under similar working conditions that's where the failing was all we have is limited evidence in a conclusion fashion on the level of responsibility that does your op requires so you would say that she needed to say what i interacted with other companies answering questions at a given level and that was the same level that these other folks did yes or that i was  office three days a week and on the field two days a week and everybody else was the same yes the focus is on actual duties at the prime official stage of the job and i think that could have been solved easily with deposition questions or in a rugged tories asking those with personal knowledge to explain what it is they were doing and i think that's all it would require but we don't have that here along the same lines and i don't want to get over into the question of who's been it was let's just put that aside for just a second you know that prince manage the what you describe as the global forward account and beyond he had these strong contacts at chrysler i would have expected from somebody in this case if it was true that she is an account manager you suggest that she's sort of on a test period doesn't he really have the title and we gave her some small little things to see how she did i would have expected some point somebody would have put into the record that she was managing a book a business worth one hundred thousand dollars and all these guys that were getting paid a lot more were managing a book of business versus a million dollars or profitability figures or net revenues or something that illustrated that particularly when you get two years special circumstances case that her she wasn't the title was arguably the same and what that person did was the same but what they actually did in practice given the accounts they were assigned to was vastly different but we don't find any of that here you're correct judge we do not have that level of specificity in the record we do have testimony that the accounts that but your and your argument is that the failure there is herb's not yours yes because that goes to the prime of those differences in part are also relevant to the affirmed premonition burden is always on a low bar and all of the fields that we that we address here why why it is why is that level of specificity required in connection case that's what i think we see as concern i understand your point and i think they do not have to go into a very great level of detail but they do have to show that the actual duties are the same but one she said if you want to rely upon your h r people saying well we paid these other people more because they had more experience and that testimonies enough why isn't her testimony enough at the private facial level to say i was doing the same thing that all the boys were doing i why does why is why is are heavier burden on her case to put in more specificity than you have to put i understand the tension between the two requirements and your your point judge but i think she does have to articulate exactly what they are doing it doesn't need to be an incredible  that she just didn't articulate what the underlying value of those accounts were to the company but is there is there some requirement that she has to do that no i don't think there's any requirement that she needs to demonstrate the the value of the accounts but the fact is the complexity and the skill required in the job is driven by the types of accounts that they were working on and plaintiff never provided evidence to show that her accounts require the same level of skill and complexity that princes accounts did and you didn't think that was important enough to put in it when we got to your advanced i also want to make the point that even assuming for the sake of argument the judge he did use the incorrect analysis the keys and i don't think he did for all the points i mentioned before plaintiffs still didn't meet that burd not with regard to either the application is near position or the account manager position one of the important thing to keep in mind in the case is played as counsel makes the point that nicole focal was the only person in v n a who earned under fifty thousand dollars and that that point standing alone might seem to carry some weight but when you understand the context is it doesn't seem so abhorrent and the context is focal was the only person at d n a hi directly out of college with no prior experience and it would be like a law firm with all fifteen twenty twenty five year partners with one associate hired directly out of law school but what about maybe i missed a step in the record i thought that they had hired some other maybe some males out of terrorist state of about the same time is that that they were no longer with the company or they were not in her purse precise division but you're correct your honor they hired several other males  university with that same or similar plastics engineering technology degree all were paid forty two thousand dollars as a starting salary but as such so what's the answer to your saying that she was the only one in v n a is that a division and this was in a different view they were in a different division that's correct entry but i can see why that would be important back in the test engineer phase of her job but then she alleges she became an applications engineer and then an account manager directly by the time she gets to be an account manager what difference does it make what what is the significance of the point that you're making by then she already has seven years and if experience with the company you're right is mia maybe it's five to five years you're right your honor and the significance is number one we're not talking about three or four years difference in experience in similar education we're talking about bass differences and obviously it will take longer in time for her to catch up to people who came out with fifteen twenty or twenty five years experience she had none the other point that i would make to that is we had an h r group who was doing the right thing they were looking at her salary on a consistent basis giving her large increases on a consistent basis to help her sell really get higher to help with that convergence and that's the reason why why did you have available to you and i'll call it the book of business figures because i don't know what else to call it what she was responsible for as an applications engineer in an account manager versus what the boys were doing i i don't know that we have i don't think that was ever developed in the record i don't know what those numbers are i mean we had testimony that they were doing the same job and in doing the same thing in my mind take  an associate and i assume you probably don't generate a lot of business yet you work on things that are hannity for most areas but you're a lawyer and you do research and you appear in court and you type things and all that kind of stuff i do you do you deserve the same pay as a twenty year partner who has a whole bunch of clients and feed you were certainly not your honor but i think that what you're both lawyers you go to law school you're both lawyers exactly but two partners the job you do are the same are they know because they have a they have a development factor too it's but two partners who have different books of business more successful partner in a less successful partner are doing substantially equivalent work to associates maybe one works in higher profile cases than the other one are doing substantially equal work and then on the flip side the difference in the size of the case the difference in the size of the business so all parts of us could so i agree my analogies now are a good one i'm conflating associates and partners but all senior associate should be paid the same that no matter whether one is working on the detroit legal argumentative distinction we have here is that is that number one do you make a prima fascia case by just showing that you're doing the same sort of work even though one of you is doing it at a higher level you can see that they had they have the opportunity to present to these other factors you just think they didn't do it to the summary judgment level right that first and i want to be clear on this is like defendant has come forward with sufficient evidence that a jury didn't analysis using the factors that you would think the company actually rely on and said she should have get an eight thousand dollars raise and be making fifty five thousand dollars h r said that her supervisor in her second little supervisor signed off on that she worked for almost two more years before she ever actually got the raise by which point she was performing account manager duties and so what i'm saying this case did she get any raise at that time not at that exact time she got to in the interim going to raise the next year but not up to fifty five thousand to make fifty five thousand people again we that you have to have some sort of contemporaneous notes in the personnel file are you aware of any authority that cooperate yours and he sees are you it's not my position that they have to have that when seen in this case  it's testimony of a person from h r as to why they did with they did is that enough it's sufficient the record if the record said that was enough and there was in fact misspoke or were on the pay scale that misspoke or on the p c if there were another man who was similar situated paid similarly says what you just said act and it's talks about professors and it's sort of the same thing where she says at the end of the day the thirty thousand dollars difference a jury could find the thirty thousand dollars difference is not sufficient just based on education and experience and she denied summary judgment and i think that is the very important thing i want to emphasize and i'm sorry one of time is that they have prevented presented sufficient evidence that a jury could find for them but we have to that they have not met their burden this focal the only woman is the only one under th if after that study there was something in the record the said well look you know yeah you're probably right but we just haven't got a thousand right now and i'm not going to cut somebody else's salary and i'm not going to close down the division to save the wells would that be enough for them to win or is that valid at all i don't know if i would think that economic thing could be a factor other than sex i would point out that when she left  replacement made forty thousand more so i don't think eight thousand dollars is going to be a big issue and i would also say that and here's my last real quick hypothetical is nothing in the record would be different assuming spoken was actually the low performing senior person and assume she was getting paid way less than joe black who actually was high performing and had no experience and they could come in with the exact same record and say well look mr lack purpose performance was night and day and we paid him more because his performance was night and