there's a mass exodus clark so you could even sit down if you  this court and construe facts that inference is against the plaintiff instead of in her favor the only issue before this court today is whether plaintive presented sufficient evidence of a primal case under the equal pay act and adequate or accurate comparative no your honor the district court's really focused on the fact that they were had different subspecialties were in different departments and perform different sorts of there's disputes about the duties i'll get to those first let me talk with the departments in the lab and this court said that where comparisons were made a most professors within a division based on rank tenure status years of service and degree held that was sufficient evidence skill effort or responsibility for it to be a jury issue as to whether a criminal justice professor and a psychology professor were comparable here we have evidence that dr cure alone today performed specialized medicine  in two respects one internal medicine board certification was a requirement for her position in the president's council the records conclusion she she could not identify a single treatment that she ministered at the center technician was incapable of performing well they have they had that that is correct that is true your honor however they have not identified a single procedure performed by any of her comparing errors that were not or could not have been performed by a in her declaration specify that particularly radiology and dermatology were very technician driven that dermod even internal medicine that they were technicians the perform tasks they didn't specify was special procedures the doctor palm the performed were didn't seem to be of the sort that a technician could perform and dr came out to say that some of the procedures in his internal matter since practice were and could be performed by technicians there is no specification cardiology there is no nothing in the affidavit saying he treated in patients there is nothing in the affidavit saying that he conducted rounds it says he was involved in teaching but that was disputed by the chair of the board and there was no evidence  dr fox conducted research as opposed to managing the research institute for dr pomo that chart the affidavit again says he cites and procedures doesn't specify whether any of them performed  by technicians it says he had in patient responsibility which is management of the unit at dr goldstein's deposition in trying to explain why dr palmer was paid more than the women in internal medicine dr goldstein said while dr actually focuses on outpatients and it's the women in internal medicine who focus on in patients the affidavit does not say that dr pollack conducted rounds which is in the chart and with respect to research  that is that is what dr fox has fight too but there is no testimony as to whether any of those cannot be performed by technicians dr care montt they testify that the receiver is done in internal medicine which she has knowledge of she's board certified they could be performed by  technicians and under this and you know with supervision by aides as well not just us in trying to understand the the record dr paul is an internal medicine specialist correct and that is what he practiced correct i'm reading this record to be that your client is certified in internal medicine but she wasn't practicing as a specialist she was giving general practitioner care and my wrong about these two things your honor one the e p a regulations talk about the skill required for position upon her specialized knowledge of internal medicine in treating the president's counsel patients and morning there carol specialists was she also a long way of answering judge livingston's question yes i think am i think there that there is it's not straightforward but when it comes to the president's counsel in rebuilding taishan she was certified they don't have what sort of education that she had certification in the specialized area being certified in  court also looked at you know in terms of the department versus department that eleven there was no evidence that different departments had different pay structures or that that accounted for pay differences here we have the same evidence if department was something they drove the compensation one would expect that all cardiologists all internal medicine doctors were paid more than doctor care month if we're saying she doesn't account for internal medicine but the women in those department were paid less than dr caramel day it's only when you look within departments that had men and women that you see that the men were paid more than the women and that the reasons given for that are all over the place i would urge the judges to look at dr goldstein's deposition testimony at ca four o five to four eighteen it's like a guessing game as to why one person makes more than another why does dr paul make more than the women in internal medicine well i think he works more days per week well is that a factor in setting compensation no well then what is it really well i think it's because he because he does outpatient and they do inpatient which is contrary to the chart i would also point out that dr goldstein the honour's we believe this case is not controlled by the eleven merits college case we believe it's controlled by the port authority case and if you look at that case which i know you're familiar with that case makes it clear that lawyers a lawyers and lawyers and doctors are not doctors and doctors in fact the only three differences i think between that case and this case in term what the law is is that first it was lawyers and doctors second that was on a twelve  six motion this one is after eight depositions thousands of pages everybody salary in the whole place was evaluated were objection we made it will be six motion and we lost it because there were no compared tours at all in the original complaint we've been a motion to dismiss their complaint there was an amended complaint using two doctors from the nine ninety i arrest form we moved to dismiss against that by the by the narrowest of margins judge fail us said i'm going to allow discovery because the cases indicate these cases all turn on the facts and she probably has probably a correct decision with ended all the extensive discovery all the facts were eliminated counsel is says the linchpin in this case who is dr goldstein he wasn't the linch the linchpin in this case was the plaintiff's testimony the plaintiff gave a deposition were she made all the admissions that fall into the very questions you've been asked your you've been answering are this plaintiff in this case saw one or two patien as the v i p concierge of the president's counsel her job was to defined as unique in the closest thing we have to a job description when she got that job and i showed it to her at a deposition and that age twenty eight twenty nine it's a memo that was sent to the entire animal medical center community by the chief of medicine and it says the first line is this new position is unique there's confusion about what montes going to do some putting this memo to make it clear to everybody this is two thousand and two pages see a twenty eight dash eight twenty nine the third paragraph starts off by saying as the facilitator of care dr kermit will serve as the conduit to all specialists and services of the hospital for her patients the major objective of this position is to relieve our busy specialists of the burden of providing frequent communication to these important but often demanding clients these are people who pay a special significant amount of money to get special treatment at the animal medical center and their point of contact  general practitioner primary care physician for the president's counsel in that other person is a man and he makes a different amount of money than she does the the lavin case that that  and so there were several admissions by her first when i showed her this memo and asked her it was an accurate description in two thousand and two what her duties were she said yes i said in two thousand and twelve when you left had your duties changed in any way from those described in this memo and she said the only changes were done at the bottom of the page where it says if she has time should produce shall participate in rounds in teaching she said she never did that that is the only change from this description to the time she left and her primary job was in that job less than half of her time was spent as director of rehabilitation and the representation was made that in that job so she's not performing specialty medicine unlike all the alleged compared torre's who are special practicing specialty medicine in fact they've taken away from those other people the obligation to engage in extensive communication with these people of the president's counsel because she's going to do that for everybody and that's going to result in her  different skill as judge fully applying your port authority case where the lawyers work for the same client and the e e o c never alleged what kind of law did they practice because in that decision the court makes it clear that if lawyers are doing complaint cases like i do it's not the same and probably not as important as negotiating multimillion dollar deals there's different skill sets of the decision lists several and see if these lawyers are doing those different practicing those different aspects of the law then they're not performing equal work and in this case that's exactly what we have that the cult closer tace for under the port authority case would be if among the five complera tours one of those brought an equal pay case miscarry montse in my forty years of practicing in the cases i've seen i've never had a plan of say my job is unique in  highly educated highly ranked thirty five doctors including the plaintiffs and your other serious points in the brief i think that we should really be focused on how much revenue is generated by these different departments and by that measure she was doing substantially equivalent work because she was drawing in money for the for the venture is that a correct way to think about these equal pay not at all your i don't actually judge fully a correctly says that that issue of either comparable worth or a contribution from a particular job to the animal medical center is absolutely irrelevant to the equal pay act the only issue relevant really in this case is are the duty substantially rehabilitations you know your honor of courtney rabb who was deposed in this case she's the director of marketing the president's council is a major marketing effort it's where many of the donors come from many of the board of trustees members are members of the president's council and then there's that first in first out tree there right absolutely right or it's like saying the plaza hold the revenue from the plaza hotel comes from our first class concierge we have a special v i p concierge service for particular customers that are repeat you can say that all the revenue that comes from those guests who love this concierge and come back and mention how great that special concierge services that's why they come to the hotel they come to the hotel for a million different reasons all the employees of the hotel contribute to the experience that these people sustain maybe it's because of the specialized medicine that the compared to or she sends to perform the work on the person that puts the stents in the doctor in the dog's heart or the cat's heart the person that the expert that sees fifteen dermatology cases a day and can handle serious dermatology cases for a patient that might be why a president's council person gives us the money to give us there's a whole she is the keeper if you will the greed or the trash person she meets the person and she says i have just the doctor for you to see and i'll be here all day to talk to you and walk you through these procedures and make sure everything's taken care of that's why it's an average of one or two patients a day talking to those owners and making sure the experience at the hospital is good but you can't claim that the millions of dollars that come from their program this is a massive program involves launches that involves events that involves mailing it involves targeting it's a marketing program it's a different skill a doctor i mean it's a bedside manner thing right it's a doctor if this was a law firm and there wasn't one involved in your port authority case but if it was a law firm this would be one of my relationship partners right that meet and greet and go out and entertain and bring me back a client and i do the equal pay act cases for him that's that's that's the situation the doctor came and he's  practicing specialist she's acting as the relationship person for the people in the president's counsel with respect to the rehab there was some indication by my opponent that she actually performs especially medicine there a to be technician run because i have to be at the president's counsel all the time at least four hours a day and often more than that because as you heard from the memo her primary responsibility is to take care of those people so it's a technician run  driven it's actually run by the technicians every single service performed by the rehab center is done according to her testimony by either a technician or a technician supervising and eight when i asked her give me one thing that you've done in the rehab center that a technician doesn't do she couldn't think of one and when i asked her which she's actually done the example she gave me was walking a dog on the treadmill which i said i think even i could do i walk slow enough that i could do that that's all that she said she does she's never done an invasive procedure in this job she doesn't do invasive procedures she's never treated an inpatient it's a hospital it's you this case is very different from port authority in port authority the plaintiffs did not make any reference to the actual content of any of the positions for attorneys at the port authority they also chose comparatives apparently at random and if one looked at the pay practices across the board they undercut a pay discrimination claim the court and defendants tried to construe the facts against the plaintiff for example and supervision the plaintiffs ever deposition was asked about providing written evaluations and said she only did a written evaluation for the coordinator in the president's counsel in other places she and other people testified that on a day to day basis she she supervise the technician and the coordinator of the president's coun and three techs for aides and at the end a doctor in the rehabilitation center and that all technicians formally report to the same person so when they talk about dr shetty overseeing  technicians that's exactly the same as what to do care monterey was doing the revenue it was the linchpin of compensation at the amc the chair of the board who was actually involved in making compensation decisions is employment he was on the compensation committee said that that accounted for fifty to seventy five percent if you look of the of the calculation and then they would look at did this person have other responsibilities as well and were they good citizens and other factors if you look at the documents that they were looking at it listed revenue it listed sometimes with outside surveys did they be sometimes references to we look at other responsibilities but they didn't detail anything else and with respect to revenue the chair of the board also testified for the president's counsel that it was not just the revenue there was in fact the donations which are over five million dollars in two thousand and ten were even more important than the revenue that is what they were looking at in making compensation decisions and the e p a regulations say that in looking at her factors important you look at whether it was something that at that location a factor in setting compensation so teaching and research were not factors that were used to the c e o testified it was among the many things that went into whether somebody was a good citizen or not but it wasn't the linchpin to making compensation that some of her compared made quote significant contributions to research we don't know when they published where they publish frankly even if they've ever published anything it was just a conclusory statement that the court relied upon in finding that they were not comparable to