an analysis of whether their compensation package was appropriate for someone doctor he's experience in  salary which we agree with and that ended up being the base salary and it was based on a relocation package which was never part of the actual contract but as part of the actual contract was a bonus that was only available in the nd year and that are not really specified in the contract and the only clear thing in the contract says that it's only available beginning in the nd year of the two year term it's another thing i think that's kind of important and maybe a little in comparing the compensation among the specialties that are issue here your clients compensation even if they all had the same experience would be nd so what she's saying is even taking account for that specialty difference i should be paid the same percentage of ranges within a specialty correct that's correct one of two things should be true either x doctors he doesn't account for that i can for now the difference in experience she just got out american school before she took this job right that's correct judge and it's and single one of these guys has fourteen years experience so her argument is if he gets paid at the th percentile of is specialty i should be paid at the th percentile in my specialty is that your argument sort of i think the argument more specifically is that the reason for the pay disparity to be in total experience how are they going to get some sort of a compensation for that experience it's going to be the longer you're here the more you move up the percentile and saying it's logically sure i think there's there is a that could be the reason but it is not in fact of the reason in this case and the record and that's what the nicholson case says that's that's the law of this of the circuit is that the reason for the pay disparity is not that it could be a reason but just common sense out the window well i mean i think that there's a certainly experience could play a factor but there's nothing that says that an infectious disease physician is no more valuable to the hospital and if she was less experienced in fact the per production the trigger she was there was on the higher range of her specialty and we're being asked about that what does that matter we're talking about the salar that before she had any experience wary so why does that matter of all sure i mean i think it just goes to show that the pay disparity if it proves out to pay disparity was it was unjustified because she was more report it does fiftieth's to th percentile which would mean that she would have been paid in the same percentiles warner characters in fact exactly indicates that it takes into consideration experience is one of the factors if that w salary range that she was actually she was in fact paid in the th percentile as she didn't have the experience that would put her in the higher ranks they ended up paying her of differen it's well i mean i guess time in the judge murphy can i mean if i'm i'm just graduated from medical school and i apply for a job i think it is rational and reasonable to assume that i would be paid differently than somebody who has fifteen years of experience in that specialty sure and if you don't back to the mickelson standard the that could very well could be a response i think market factors could be a reason and i think experience could be a reason but there's nowhere in the record other than this statement and the navigant letter that says that her inexperience wasn't loose with the facts there because the guy that you call the most experienced actually was gone for six years and wasn't in this the for that whole fourteen years so i mean you know we need to be fair the nd year was the only year that she was eligible for the bounce now there is some other non clinical compensation like the medical directors that is not part of the opposition package as her desired compensation when she applied for this job the base plus the bonus would be equal to her desire compensation and she was never paid so the base is less but the base plus the bonus yes would be equal so her desire compensation and doesn't what she asked for in her desired compensation which i'm avoiding saying because it feel indicate that she understood that because of her lack of experience she couldn't have desired compensation that was consistent with people in other specialties that had been working for a decade in that specialty higher compensated specialties for over a decade were getting compensated sure it's nowhere near the ninety percent i thought so her expectations were reasonable based on her and her experience i think they were in the low rent the lower end of the ranch and she was their st year so yeah i think they're reasonable but again there's nothing in the record that says the integris decided to pay less because  are they after ends in the letter from the expert that they hired to analyze the compensation which again was the compensation package that was not actually the one that she entered into common sense and logic simply answer the questions and the questions in this case are are whether or not there was a pay disparity either under the equal pay act or under title seven when dr compares herself to the three male compare nurse that she selected to make that comparison and in this case the evidence offered by checkers in the record about the respective medical specialties of these fo doctors and about the levels of experience as a practicing physician of these four doctors clearly met the burden of proof that integris needed to meet to prove the affirmative defense under the equal  burden of proof is not as has been suggested by doctrine as an excuse chancel the burden of proof is simply that the employer must offer evidence that  proffered p r o f e r d e d reasons could explain the wage disparity and that they do in fact explain the weight disparity so if the evidence is strong enough that no rational jury could find to the contrary then the district court is proper to grant summary judgment now in this matter integris did offer evidence that did explain the disparity in pay d and even offered evidence that showed that her medical specialty of infectious disease was the th rated medical specialty when compared with yeah they are compared to yours that being a doctor who has  cardiology with with chronic heart failure specialty a doctor with transplant a for ology specialty a doctor with hospitalised intensivist specialty so on that basis alone her medical specialty came in number four then you look at the evidence that was offered by integris about the level experience here doctor has in his uncontested she was just out of her fellowship program just out of medical school she had never held a job as a physician or compensation at a medical practice or at the hospital but you because she wants to compare herself with this is the kind of evidence that was a vision by this court in the mc mickelson case where the evidence is just so clear and so strong and the logic is so preeminent that there just can't be no other explanation that couples with the fact of where we are with the facts as was pointed out dr nasm is he provided that desired compensation bonus so this is without the bonus because when you look at the navigant letter which is in the record and this is particularly on the page in the record will receive a sign on bonus a significant amount and a medical education bonus both of those are going to be paid to her when she representative puts that factor in with the base compensation to arrive at that figure that he had baez's catholic out bone that this figure for  your one compensation potential posts are in the fifty percent to seventy five percent range for positions in the blended criteria of her specialty and when you drill into it further you see that blended means not just your one infectious disease doctors but doctors with experience so she's actually being benefit somewhat but she is being put in what kath bone understands as a fifty percent to seventy five percent range for year one and then when you add the bonus potential she moves to the seventy five to ninety percent range for year two this is for physician who is just out of her fellowship program so when you really look and compare like factors with like factors here you're left with just one conclusion one even with this pivot in argument the doctor has an escape our attorneys are arguing today about why was she down here at the forty percent which she was even with that there wasn't a percentage pay disparity that was defined between her and then let's compare tours they were all in that year to being in the seventy five to ninety percent range number two  in the nd year that is correct ok so i think that paragraph is dealing with the one that was her will call her signing bonus that you said was forgiven month after month if she completed the full two years then keep all of it in my understanding that correctly that's correct and she didn't complete the two years and she didn't keep oh ok but i think the bonus that judge murphy is talking about is the bonuses she qualified for as of her nd year that is different and she did not get that bonus did she and he did and in the record this is in kathak our bones affidavit she felt like she should have maxed out on her bonus the persons who reviewed her for the bonus felt like she shouldn't have backed out in part because of some of the performance issues that were dealt with and briefed on the other issues that have been abandoned on this appeal but the dispute here was not whether or not she received qualified for and received that amount of the bonus just that she claimed she should have gotten one hundred percent of what she could have qualified for and integris in its business judgment decided that based on her performance for two thousand and seventeen which included many factors some of which included those issues that that that dealt with her interactions with other people south ambers and other people that she would be entitled to and would be paying the bonus she just wouldn't be paid one hundred percent bonus that's where the dispute is there's no evidence in the record anywhere one of the considerations for are you yes so under her employment agreement the army use were not part of the consideration for her based compensation they were part of the consideration for the incentive bonus so it was a factor a category that was considered and determined in that compensation structure so you're saying use it in that boat who what she was offered or do we do it the basis of what she we see be is she's not even arguing so much about the amount of the base compensation or bonus compensation her argument now that she's pivoted to a reply brief is why was i put in  a forty percent and our position is she wasn't put in at a forty percent based on what navigant advised us she was being put in at a fifty to seventy five percent  that the parties both in our briefs cited to an outdated arents i want to give the court the current c f r citation for that that is found that twenty nine and c f are section equal pay act the term wages includes all payments made to or on behalf of an employee as renumeration for employment the term includes all forms of conversation compensation irrespective of the type of payment whether pa periodical he or deferred until a later date and whether called wages salary profit sharing expense account monthly minimum bonus that the compensation proposed for dr nasm is he was properly within the market criteria for a person for a physician of her experience which the report concludes with that reference of her experience and that navigate considered experience so that it's not even an issue and to wrap up i would just simply say common sense and logic and the information that integri offered to the district court court clearly show that the determining factors here were not doctored as misty's gender the determining factors here or the medical specialties and the levels of experience these other doctors she tried to compare herself to just simply had a different medical specialty that was higher rated in the market and they had considerably more experience than she had when she started at integris we ask that you have firm the district court's decision in the mickelson case the court reversed the summary judgment finding in favor of the defendant and remanded it because there was no contemporaneous documentation that showed that experience was actually considered it could be a consideration but it just bumped up into approximately the th percentile i think of her specialty and those other doctors when you factor in all of their extra compensation on top of their base salary they are bumped up even further and that's