seven and equal pay act claims when the academy hired cheryl kellogg in two thousand and six the executive director david williams said her salary at thirty two thousand dollars which was lower than males that were hired around the same chains when she asked why this amount was so low dr williams told her it was because she didn't need any more money because he knew her husband worked all say the district court err when it ignored this statement ruling that the statement was made outside the statute of limitations and therefore hell could not rely upon it to establish her claims this is a direct violation of the paycheck a cruel rule and lead better fair pay act which includes nothing in this law is intended for klute or limit and agree person's right to introduce evidence of an unlawful hiring practice that has occurred outside the tiling time for filing a charge of discrimination this court has regarded the lead better act as removing the lead better decision as an obstacle for applying a paycheck rule rule which it is apply to paycheck discrimination cases beyond simply ti similar to resources ice cream specialties in that case and african american ploy it learned over three years after the fact that his white coworkers had been given a raise and he had not the raises were issued and dollars days before the filing of his charge of discrimination like reese kellogg's has evidence that hurst pay was established discriminatorily and like reese that evidence was outside the time for filing white research she continued to receive pay paychecks including within time so described a seems to suggest otherwise are you are you saying that was wrongly decided or there's a way to narrow it how would we treat that act no it didn't does not that is true your honor but in gross this court has extended the paycheck a cruel rule to claim such as nine hundred and eighty three dollars claims and opined that it would apply to disability discrimination claims as well lilly ledbetter act applies to title seven cases so how are you seeking to use that here you're not seeking to get damages back to two thousand  when she was hired correct you're just seeking to use the evidence from dr williams when she was st hired to precisely damages that are within the statute of limitations precisely  and she was actually hired in two thousand and six but you're absolutely right we're only seeking damages within the realm of statute of limitations relying upon the discriminatory pay decision that occurred prior tuesday action stations and in this case williams was the sole decision maker when it came to setting sounds unlike other cases that have been analyzed by this court there was no rule of law or policy that a term and how he sets out and  other cases that have been reviewed by this court the academy has not offered any contemporaneous evidence about why william said kalak salary went when he said all of that is comes from these declarations that he offered in she had been making when she started this job for purposes of summary judgment your honor with regard to her evidence that williams told her at the time that he was going to pay or any more money than that because her husband at ball state and based on her evidence the of williams discriminatory comment that was issued at the time that he made the decision that's up to the jury to decide if they want to believe williams is evidence and his statements that he relied on these other factors and he relied on her prior salary and i think a jury could go with that or they could lead tell us evidence this is what she testified william said at the time and again there's no contemporaneous evidence that the academy has offer that he did based those salaries on a five percent increase parse out and that's all in his declarations there or they were created with the assistance of counsel specifically in defense of this suit and this part is repeatedly held that remarks this support and inference of unlawful bias motivated the decision maker in those remarks were made by the decision maker around the time and in reference to the adverse actually complaining i would put to the court that this is the exact type of situation  meant to remedy it's a proactive tool it was specifically designed to correct salaries based on the outmoded belief that women should be paid less than men it's a systemic problem that we need to remedy this is side and that's what  says i don't have any lower starting salary because of her sex based on her evidence in addition to that she has compared her evidence that the district court refused to consider other males that were hired at the same time  reduce close to the defendant in multitude of ways they were all listed i will i will submit other than capers they were all listed on her witness list who were responded to in discovery all of these who would have let their a question  regardless the point that we want to make is that it's whether they have notice of it not specifically how they got it through in iraq it sort of all of these compared listed on witness list they were disclosed to kellogg through the discovery stated in an amended complaint ignores the importance and purpose of the discovery process and reno versus rolls royce proration were judge sara evans parker made it a point to address the employer's argument about limiting compares based on deposition testimony according to judge our players should be entitled to rely on evidence brought to light during the discovery process to advance the claims and a lack of personal knowledge regarding which mails could be appropriate compares the time of the deposition of or any of qualifications were when they were hired what their salary was i mean that would include john marsh who prior to working at the academy for the previous ten years had been to director of a museum at grissom airforce and we think that a jury decides to weigh this evidence in terms of not only williams as discriminatory comment you made at the time but what he paid other males around the same time and because of because of those reasons we feel that this report aired when it failed  confront it when it violated the paycheck rule by failing to consider kellogg's discriminatory evidence of leaves discriminatory statement you just wouldn't consider all of her compared or evidence based on the fact of holding her to a heightened pleading standard by saying that she needed to include them in her amended complaint or because of a deposition snippet of deposition testimony where she was interrupted when she started to talk about these things that redirected back to mix parents become apparent that the defense or the element wants to focus this case on and because the court failed to recognize that the the district court rather failed to recognize kellogg's evidence of pretext that she had ample education or she had ample experience in the education field and that the cademy has offered shifting explanations for why i paid or less they said salary compression david williams offered to declarations one says well i base compensation on experience of prior salary after pointed out her response rate that that didn't explain why she was paid less than males hired around the same time as are you off nd declaration highlighting the reason tang and other instructors out it's also important in your honest to point out that there is no contemporaneous evidence at all that this is what williams lied about the contemporaneous evidence is what keller testified that he said to or at the exact time he said herself and for these reasons john we would replace that this argument that judge baker got it right and in a sense ms kellogg in her deposition got it right to meaning simply that she's she's the architect of her own complaint and if you look at the history she grumbled about pay a lot of people in teaching grumble about pay and i understand why but she didn't believe she was the victim of sex discrimination until she knew it less mcfarren who was teaching team teaching with her the same thing as she was teaching and when she found out in two thousand and seventeen what he was paying a series of events happened very quickly in which she complained to the dean then she complained to the e e o c and then this lawsuit started and i was examining her and i asked her if her claim and i'm paraphrasing somewhat but it's in docket forty nine dash three page nineteen of her transcript is your claim based upon the fact that you believe your face should have been equal to mix parents my claim is we were doing the same job and we should have been paid equitably here's the important question is there anyone else in addition to less mcfarren whose pay you compared to your own and believed it's evidence of unfair treatment because you said in the brief that the court district court held her to a heightened pleading standard that's not what happened here what judge baker did was based upon our argument that this is what she said in her deposition he went and looked at her compl see if her amended complaint alleged other comparative course i did or any cases that you found that says a complaint has to identify the comparatives no that would be a heightened deposition is why why in the world does it make sense to read the plaintiff to answer that question and an employment discrimination case as saying i was only looking at an experiment and i hereby forfeit all other evidence produced in discovery by the defendant well your honor is her case and i believe she had been there there's the comparison to we'll talk about it in a moment as time permits are these two thousand and six men only reason i say that is this just strikes me i've  seen sham affidavit cases as my colleagues here have and this is very different in that this is this is not an attempt to manipulate the evidentiary record or to walk back you know a clear statement in deposition the light was red when the car went through it's not that i just have a hard time reading that answer your description of it's perfectly accurate but i have a hard time reading it as the plaintiffs say and i forfeit the discovery record especially when the information about pay and was within your client's control not the plaint and that is if i may i'd like to talk about that too that is the history and purpose of the fair pay act as i understand it and i think i'm not sure that we explained this as well in our brief as we could have these specific and i'm quoting from the opinion page eight hundred and fifty three the specific type of claims that he's talking about payroll accrual claims are the employer is paying different wages or providing different benefits to similarly situated employers furthermore full yard could recover after two years of back pay so long as the unlawful plan and practice occurred during the two dollars your charge filing period is similar to or related to the unlawful compensation practices that occurred outside that period so what we're looking at here if we go back to two thousand and six are really two different things one is a field what the dea keller referred to it as or coerce as well three male instructors who were hired at the same time she was let's do a comparison to see those those individuals are not facts drawing all inferences in favor of the plaintiff and under our law are these three other men who were hired are not similarly situated what the court did hear a say i'm not going to consider them and even go into that analysis as to whether or not they're similarly situated because of her deposition the answer because she didn't complete that they were prepared years those are two very different things i agree however i believe it's six male instructors that cohort in no way are they similarly situated miss keller this court could remain and it's a judge baker for further fact finding on that matter and the decision will still be the same briefly this is it pages fourteen and fifteen of our brief john marsh there are three gentlemen hired in two thousand and six alone with miss kellogg john marsh at eighteen years of teaching at ball state at the university level university professor ship teaching award twice and the dean citation for meritorious service that's not comparable to five years of teaching in this college had at the northwest community college in pa wyoming is the other male he had thirty five years of teaching experience three master's degrees and all but dissertation for his ph d in physics so yes mr cleveland's right there is this school if you appropriate in other words she's complaining in two thousand and seventeen that she is doing equal work to mr mcferrin but she's not receiving the same wages i think that we feel the straits well how much different those two people were when the university art this how do you respond to the argument that mr cleveland has advanced on behalf of miss kellogg that this kind of this fits the allegations here and the and the theory of proof fits within i think what he terms the exception or the carve out in our courts lauderdale opinion i don't i don't agree with that i don't understand that it does i don't understand lauderdale said it essentially left room in the future for a case where you could you know if there was evidence that there was  discrimination it was discovered later that the ruling in lauderdale might have been different or in a future case if that were true that might have been different again applying this test from mcdonald trial i expect based upon the briefing of the parties here that you would argue on behalf of the academy that yes her wages were lower than mr mix fans of course they were they were lower because of compression in the market and they were also lower because she started at a lower pay rate kind of an interview later the point is that fair isn't that what your argument would be saying that the academy's evidence translates to a financial delta between kellogg and experiment that's what they're saying and that that delta is justified by a meaningful disparity in experience why couldn't she come back and say let's call that delta x x but i don't think it's fully x i think there's something baked in there and that something baked in there is an ongoing effect of gender based discrimination from the beginning why is that improper as well but ensure it matter not as a statute of limitations matter now you may it sounds like you may win or you know who knows what the jury would do but why is it in part in an improper evidentiary argument well i mean there have to that he'll testify to that i assume she already did i believe she will do william statement is a discreet act i don't think the wm statement is of the character of an an entitles one to waive the left under twelve years and on that basis file the claim that she did in this case but it's directly relevant to the starting salary here and your affirmative defenses are in part relying on that starting salary and it seems that you can't come in at a minimum you can't come in and say as an affirmative defense well she's paid a lower here because when she started in two thousand and six her stat we started out lower but say the evidence about dr williams alleged statement can't come in test that well williams a statement needs to be remembered in context in mr cleveland and i don't think that dress this but it's miss kellogg's own testimony when she says that william said she wanted forty thousand dollars and he said i can't pay you that or i will be paying you as much as life ph d s which is a gender neutral to reason for his decision and then  thinks it was just off handed but we can't make that determination you know i understand and i don't dispute that the her testimony is the statement the statement was made and therefore at this stage of the proceedings it has to do you agree that it again i know it's an allegation and you and dr williams dispute that it was said but do you agree that dr williams the statement is relevant and would be a seven not to a claim made in two thousand and seventeen i think that the statute of limitations for her to act upon that you begin to run at that time as compared to fair pay act like greece that mr cleveland mentioned where you don't know when you mean you may never i mean it may take years before you know what your colleagues of a different gender are paid that's the reason why the st pay act exists i based on a legitimate mission of the evidence what's your answer to that yet sinise question then well your honor i understood the question to be could it come   it's more in the nature of that straight remark i don't believe that that alone is sufficient to get by the summary judgment standard your honor thank you counsel thank you only limits the amount of damages that she can collect them as as mr shockley stated in his brief to you all this would create a bonanza if it were to be allowed and that's simply not the ca and likely this court doesn't have to make that decision because congress already codified that and what better act and decisions already been rendered in the paycheck rule rule those factors are potentially weighed and we're not talking about collecting aside louis lead better than any anything about pay check or cruel my interpretation of the argument that you're advancing from an evidentiary is perspective is that she wants to use dr william statement to robot in part the evidence that she expects would come from the academy and in particular from the pay the doctor or mr mcferrin was making absolutely there are and we think that this is an issue that would be frankly unfair if williams is allowed to offer a declaration stating well this is why i paid her what i paid her back in two thousand and six when i made sage and that the academy has forwarded that is an argument to say it's not it's not pay discrimination because i decided based on these factors that we're all outside statue limitations whether it's experiments pay or kellog and then converse lee saying that kellogg can't use her evidence to assist to as you say rebut that statement by dr williams so this is sufficient evidence and it's not the only evidence that she offered and frankly it's she doesn't rely exclusively on this statement but i can say unequivocally if that's all the evidence she had i think that would preclude summary judgment but that's not all the evidence that she has and a couple of things you know the record is clear kellogg perceived this statement to be discriminatory at the time she was threatening terminations she continued to complain about it and so the statement that she didn't perceive this to be says pay discrimination until experience hired is just is not supported by the record the other thing your honor that i want to address is that most favorable to kellogg she had more than five years teaching experience i know that's how the academy wants to frame the argument and that's what dr leaves wants to state and his declaration but you know like most favorable to kellogg she had much more than five years of teaching