the fourth circuit here the district court here aired because overlooked crucial undisputed facts first of all the parties agree that all fraud investigators performed equal work in this case and that category encompasses all three of the e e o c is female claimants as well as four of the six male compared at the e e o c designated at the summary judgment stage of the proceedings it's also district courts failure to recognize that prime official case was incorrect and that alone warrants reversal and remained for further proceedings with the district court did here in  was the district judge looked at factors such as experience and credentials of the males in determining whether those males were appropriate compared or is in the prime aphasia stage of the inquiry and that is not the appropriate because although factors like experience on appeal were we've been instructed by the supreme court and its akins case not to immerse themselves in the particulars of the proof but just to ask overall whether the summary judgment record before the district court justify an award of summary judgment right but in the context of an equal pay act case the burden shifting framework is crucial because explained adequately the differences right it's whether the employer here the maryland insurance administration satisfied its burden of proof which is a burden of both production and persuasion  torrie factors explain the pages for instance and because we're at so your judgment and the maryland insurance administration would have the burden of proof at trial it's an extremely heavy burden to obtain judgment as a matter of law at this stage position from which they were transferred and in the state has said where this prior state experience that gives the employee a bump up at least in the state up of the state civil service pay scale now did did the if it did the brought in at a higher salary than both court our own green who also did not have prior state experience but there is no reason to believe there is no me that you say that about mr pennington but he had experience you say he had no experience but he had experience in arson investigations and good service thirty years as a law enforcement officer right in marlene green i mean this greene was also a law enforcement official i believe for the baltimore city and she didn't get any credit for that service and the notion that  repentance arson investigation credential justifies the higher pay it's just it's not borne out in the record because there is no proof that establishes that that credential actually caused the est not sure that's gender oriented it's best quite a long career i agree and a jury could see it that way but a jury can also reject that in say that the experience of twenty years of law enforcement because of the thirty years in law enforcement is really negligible and cancels each other out and therefore sex is the true reason for the pay differences are there when i got in that i am understanding what you're saying tell me fine i'm correct or not that there isn't any contemporaneous evidence of the reasons for the higher in the record that would support summary judgment in other words looking at those like the third tenth circuit cases that say while there may be reasons that could explain it there are not reasons that do in fact explain contemporaneously in the record and that is what their burden was at the summary judgment stage is that it does that some but it i'm sorry apple is or asking this court to rewrite the h r department concluded that for all investigated and enforcement officers have substantially equal positions but they argue that the  jobs must be identical it's that they are substantially full and they involve equal levels of skill effort responsibility and must be performed performed under similar working conditions so you you would say the district court erred not considering that absolutely and it is your core took for granted that the standard is that the jobs must be the same and that there is an abundance of case law that this would disabuse the district court from that finding and so the evidence of the record for which is jury could find that the jobs were substantially equal is there's ample evidence in that regard much of it comes from the statements in concessions that the maryland insurance administration itself discrimination and that position statement that m i submitted to the s c was predicated on internal job studies by its own human resources specialist in which she thoroughly analyzed the  responsibilities and wanted to do you know why woods why would specialized experience in the area of title insurance not be relevant i mean we are talking about an insurance agent an insurance administration right and it would be irrelevant if there was a there's nothing in mr z you know says resume that supports let alone proves that he had any background in title insurance and there's nothing citations to the appendix that m i a has invoked for that proposition do not support that proposition so i mean there's nothing in here as a yes or no we're saying that there's no reason to believe he did and that it could be interpreted as as a post hoc justification it and we're not deny that such a factor could justify the pay differential but the burden of summary judgment is to prove that that credential actually motivated the pay decision and the evidence of the uncorroborated assertions from counsel into its decision without considering the experience credentials and prior state experience of the female claimants and that just violates the principle that the evidence must be construed in the light most favor that you affirmed the decision of the district court because despite what the federal government believes we believe that there are in fact no material facts in dispute that would temper is there with your case i'm sure these differences could explain but just this record a status is a matter of law that they do in fact explain that's that's my problem so what do you do with that yes and no why the experience that they had in fact justified the increase salary they had greater skill then did the them to the plaintiffs in this case in addition to that i would also note that there justify her request for qantas selo by mentioning his certified fraud examiner designation she did not mention that right exactly so this is sort of a late breaking thought it seems to me maybe perhaps a post talk rationalization oh i would i would say if you if you look at the advertisements that were issued from the fraud unit it's said specifically that first there it mentioned that there was a salary range right rapers was talking about the reasons the hiring decisions were made  tenement doesn't state it in her memo it could well be the reason but does this record support it at this stage well i think it does if you look at her memo it says in fact that he has understanding they were hired at grade fifteen step two and that was two steps lower than female and two of the plaintiffs and it was and i thought that rogers who i think it's my recollection is he was one of the complainant was also earning a higher salary and some of the some of the male but all that is correct your honor measure rogers was given to step five because he transferred from a different unit within the m i a so that was how can you help us then mr dorsey following up on judge wilkinsons question which of the i want to your question first and then i want to get back to your person too because there are several other alleged compared years with these they say they didn't have some same salary but i believe they're wrong in that regard so i'll get back to that dancer your hard as full time employees so again they would have received a bump up with regard to their salary in that regard as well but getting back to your question work before you leave judge king and question you've taken those four comparative and your what's your general point you want to make with respect to the general point is that they they had increased skill as a result of their prior background and so as a result now taking the take the situation of pennington and zeroes who are the ones who are the ones that were appointed or pointed to by a had twenty years experience now what do you say about that so the differential between mr pennington and the plan of says that a mr pennington had arson inspections or in addition to having a longer period there are an awful lot of very high priced insurance claims that come when people lose their home or whatever and it's as a result of  so it would stand to reason would it not if mr pennington had not only thirty years law enforcement experience but experience as an arson investigator that  having that that would be highly relevant to what an insurance of ministration would want to have because we're all familiar with the fact that people very unfortunately in order to collect insurance probes set fire to they also that it doesn't have to be a home it to be a barn it could be something but it happens and it happens not infrequently and they were seemed to want somebody with the kind of complainants lack now tell me why experience in the area of title insurance is important so this is this is relating to the the the compared hers who are not within the fraud example under attend one twenty six a one of the insurance articles a producer can have this his license revoked if he violates any provision of the insurance or so the producers are going to need to know that again the skill level is going to be very different with regard to specifically with regard to title insurance producers that is a very specialized area that frankly not that many people understand there's a whole series of regulations that apply to title insurance in particular your report is you know it's just you can take judicial notice of it it's important for an insurance agency to have special people who are specialized in certain kind of an insurance agencies worked and you want that kind of expertise you want it we want it and we want to be able to pay for it all right so what you're saying is that these justifications are apparent from the record in the sense that many of them were  required by state law either in order to make a salary match or in order to to provide a bump up from the fact that there was prior state experience at this that there are neutral gender of federal power and federal investigations into that's our interest when it occurs should incur with a stronger case than this one a state itself has a remedies for state law remedies for this kind of gender discrimination and so the question is should the reach of federal power and so i'm asking you to because there is a federalism dimension and you know we really do live within a federal system here think that can be a factor especially given the fact that you know we have a salary system that is on its face a gender neutral that in this particular case you know there were eleven fraud investigators who are all supersede the same pay as two of the plaintiffs in this case and that's a factual correction that i need to make with regard to something that the said you know she said all the received also explanations in terms of the particular specialties that some of the mayo hires brought to the us plus you also have situations where  of way should be subject to this kind of zero federal incursion and you know and and i think this structural feature of our constitution is as if there is a great determining difference just so they were not saying in fact that the producers of prison fortune does fraud insurance that's a separate job in fact carl harrison is very clear about that  groden who is the deputy commissioner who had been both so sick commissioner for producer enforcement and also had been in charge of the fraud unit also testified about the fact that the jobs are different jobs so it really is a fair comparison to compare it and they're not substantially equal to the to the position of the fraud fraud unit didn't a judge i mean what happened to the test is substantially similar in this case so i would say that they're not substantially similar at all because in fact they're very different jobs you know it's if you look for example you know a math teacher in a science teacher those are the score to said those are different jobs and in fact while they're both investigators in this case the jobs that they do are very different jobs that's why i pointed you use my visual aid in terms of the scope the skill level for the producers is a very different thing just pros who actually had a producer's license and you know the records in here is that if that's a difficult thing so he actually knew of the the entire value in what he was supposed quote perform substantially equal work share a single quote primary purpose end quote rank equally on all factors well that's not what you're saying here so  were important skill is a different skill and under the equal pay act that is not an appropriate comparable because again a math teacher in a science teacher or are not the same or not the same job me that carrying on to a slightly different point you're trying to make the argument because some males were paid less that they don't have an equal pay act case and that's not their burden their burden if i'm correct it's a show that there is a male compared or who perform substantially equal work who is paid more is not correct so that i was in fact that others were paid less does not mandate summary judgment in your favor  they've talked about the other compared to ours within the fraud unit you know these nine compared but they all were given the same salary based on the same grade step and if i can tell young i think is a good example of that he was hired on july first of two thousand and nine at forty four thousand six hundred ten dollars subsequent to that there was a salary reduction across the board as a result  than than mr young's starting salary forty three thousand four hundred five but and here's the important point on that day when she was hired her salary and mr young salary were exactly the same and that is true the male hires were paid less than a mess rogers or some of the other female clients there so with respect to mrs rogers she came in in two thousand and five as an investigator in the property has with the unit and she was making thirty six thousand dollars and then was hired into the fraud unit in two thousand and eleven making forty six thousand dollars but in that interim time in two thousand within the organization then has rogers so the notion that her salary which was nine hundred dollars more than their starting salary four years earlier undermines the equal pay thousand dollars more than she was so i think it's a person a person analysis in individuals must be compared to other individuals of the opposite sex you're saying i substantially people work and that they're there for alex repairs i don't think this court necessarily has to reach that issue to reverse the grant of summary judgment because there is a jury could certainly find a violation just comparing we dealing with here well it's a little unclear from the record and i has identified about twenty eight fraud investigators in the record it's pointed to one specifically in its brief todd young who is paid the total universe how many employees are we dealing with it's not clear in the record other than there were two hundred ninety pin positions in all of the units which i believe was four separate units and i'm just not in position to know and so you ok this one's paid less and this was paid less than that one and i would be surprised if our sifting through two hundred ninety people if i could find a large number of male plain s who could bring in equal pay act playing but it wouldn't be any good because you can if you can be so selective i could pick this miss and now i'm you know it's it's not that hard to do but the point is these differences that you point to if there were no explanations for them and then there time you give an explanation you know it's it's it's not all mornings post hoc good either it's true or  true and it's relevant or it's not relevant content cello for example was a certified fraud examiner ok certifications mean something now did any of the claimants if it's a preferred designation wouldn't it be something that the agency was entitle to take into account certainly and again it's something that could justify the pain differential but the jury would not blind well it's a gender neutral explanation based on a are preferred experience and if you're considering the evidence in the light most favorable to you know you might as well be an insurance commission i mean one one of the one of the things that troubles me is i don't doubt that there are cases that could be brought i would just think and hope that before a state sovereign interest is in and is compromised in this way that it would be a stronger case than this because i think as an explanation not an off the wall explanation but an explanation that is highly relevant to the exact kind of work that this agency is charged with doing the the problem here is i realize it is so you know it's so objectionable to even refer to the state sovereign interest the and everything but it is important in terms of our federal system and i would think that you would have a stronger case than one in which there are gender neutral explanations for what happened here and in which the comparatives did not all collapse your honor i think what you're suggesting is some sort of eleventh amendment interest that would elevate states to a different standard under the equal pay act or any other player described as saying they do have a str and recognize place within their constitutional system that there are state remedies and that ultimately it bottoms out on whether you have a strong enough case to justify what you're doing i understand your honour's concern it was not something that was brought up in any form in the litigation and so i'm not fully prepared to talk about it but i do think from my reference to constitutional structure i understand the concern is just that m i a has never a certain respect for constitutional structure would have suggested a course of coercion i understand your honor is concerned i'm speaking only for myself does the court have any additional questions i can talk about