excuse me your honor my red light is currently on it will start up and the minute you start talking if it please the court counsel and all those present this case is about whether or not paying ms pamela murphy as a police dispatcher a different wage then a male dispatcher violates the federal equal pay act even if there is a collective bargaining agreement the truncated version of the undisputed facts is that pamela murphy worked part time for two municipalities you hypes know for like ten both of whom have mutual aid with ohio state university for emergency response she also was employed part time by the ohio state university police department as a dispatcher while continuing to work part basis for the differential was experience the argument is by the apple e that experience i met i'm talking about you is there any is there any dispute on your client's part that the reason that they have advanced is experience now is there any dispute about whether experience is a factor other than  so in order to get around that you then argue as i understand it that they really should have used other factors that presumably would be beneficial to your client as opposed to just experience night you kno ok what i miss my argument is that as they have decided defined experience which is not defined in the collective bargaining agreement but as the director of human resources defined it is that it is merely time on the clock and it involves no analysis of the prior performance of any particular duties whatsoever in other words it is an assignment of i  get that and you're right i forgot that so when they say experience and they interpret it to mean just time on the clock that that's what they did right correct so what is your authority that says that they can't define experience that way and fall within one of the exceptions to the equal pay act requirement but i think you use c vs j c penney says that there has to be some it can't be any reason just just merely reason there has to be some legitimate business recent in my inquiry into director hunters so there has to be a legitimate business reason to define experience the way they define it or there has to be a legitimate business reason which in this case is experience the latter your honor well they've come forward with a legitimate business reason that's experience so what's your authority that says that they that they have to define it the way your client would prefer they defined it well they've articulated experience and experience in order to differentiate a justification and pay has to mean something it is not a beer word is not a word in a vacuum therefore inquiry into what experience what d they mean by experience and what do they consider as part of a legitimate business reason is certainly fair game in terms of number one so it's not a legitimate business reason to define experience as it seems to me the word could logically be defined as the amount of time on the job correct that's not that's not legitimate and we haven't heard it do we have any case that says that for the no for the purpose of seniority of the collective bargaining agreement the definition of experience does not exist the collective bargaining agreement for the dispatcher's includes no seniority wage other than for the first three years of employment in which case is a fifty cent step after that all collective bargaining unit compensation is paid on the basis of merit performance or benefits and is not dependent upon any seniority or experience whatsoever within the division therefore when you look at what the employer is saying is experience you have to look at whether or not as we've argued title seven and number one under title seven we can argue whether or not there reason this pretext to show another words because they have one criteria they use after three years and a different criteria during essentially the probationary period that then is evidence of pretext it is evidence that they can have different conditions in a probationary period or that's going to be then evidence of pretexts that is not it no you don't you can have different conditions during a probationary period in fact it's quite common to have conditions in a probationary period what is uncommon about this particular case and it does not appear anywhere in the the briefing but for the most part probationary periods in a three year period for advancing in wages is common among law enforcement agencies and dispatchers what we're looking at here is whether or not the particular issue involved is experience from the standpoint that it supports the difference in pay and here it doesn't why because there was nothing in the collective bargaining agreement after the first three years which critics people for experience they could get the experience when they're with the university but after that there is no experience let me ask you what i hope will be one other question that i'll try to try to resist it i don't do very well at that it's it seems to me that if you're right and that they can't define experience the way they defined it and that they have to take all of these other things into account culture geographic exposure so on and so forth that actually increases the chances of pay disparities based upon sex because you've turned it then into such a subjective measure that how could that ever be what any government agency was seeking or put another way if if they were required to take into account all of those factors that you've just set forth ignoring the fact that you've cleverly set them forth because you think they favor your particular client how would then any anybody like a court ever way whether they've actually applied this long laundry list of factors fairly absent a consideration of sex well the laundry list as you put it your honor was not asked for the what i was doing in making those inquiries of director hunter was to see and to narrow down what definition of experience was that he used at his discretion to hire  matthew robinson at the highest salary they'd ever pay to dispatcher and in answering those questions arriving at the at the final statement as to whether or not experience under title seven is  pretext or at least looking at whether or the jobs are the same or not the final question i think that that cements all of this is under the circumstances if mr robbins would have communities a part time or not mr robbins had nine years experience one year down time as a marion county rule this the sheriff's department record how would you have assessed him in terms of determine his starting pay what would that have been and the reply was you would have gone through the same process again with his experience we probably would have bought him in just a little bit lower than whatever the lowest paid full timer was in other words there's an entire inconsistency here as to what his experience has based on the interpretation of mr hunter arbitrary and capricious based on whether or not he is titled a full timer or titled a part time or was there a rationale then given for paying robbins what he was paid the rest now was his experience and again going back through that can complete inquiry as to what constitutes experience it finally boiled down to this there was nothing else that was shown other the ad and i believe i actually asked the question and i were just time on the clock yes that's the only thing that we considered and in that case what you end up doing is that we have a situation where the equal pay act unix design in its purpose is is really supposed to cure those differences and pay for the same job isn't the time i can control myself for a long it isn't time on the job the least discriminatory way that you can do it that m as far as taking out age race sex national origin anything else if you're looking solely at time on a job about looking soley at not getting sued  i'm sorry your honor you lost me there i interrupted you isn't using only time on the job the least possible discriminatory way that you could do it now the least possible discriminatory way that you could do it would be that everybody that came in the door would with that particular employer would be treated with regard to the experience with that employer at that job position so you could you could start everybody out who's starting out as a dispatcher at the exact same pay rate i see no i see no reason why you could not get in under this collective agreement even in fact that is the rule that's the norm the exception is at the discretion of the director that higher wage can be paid that discretion is based on his definition of experience and experience a believe i did the case of this one one of the briefs that i'd submitted either my merit or reply is that who's most likely coming out of a part time environment what's the class of person is most likely coming out of a part time environment most likely in today's world it is a female so for that reason it's has a disparate impact if you're if the way it's interpreted here and i'm out writing a disparate impact claim here now i'm just raising the issue it is because i was asked a question that leading to that direction thank you good morning christina coral i'll be have a state university so let me start out by kind of piggybacking on a point the judge mckee and that is the fact that we have in this case which is kind of unusual for an employment lawyer like me we have in this case a provision in an employment contract a collective bargaining agreement that for once actually is completely objective you know we that work in the employment area don't often have cases where i'm standing in front of you talking about the fact that the term in the contract really is not open to interpretation by anyone the other issue that we typically don't have in cases that we have in this case is the fact that this is a negotiated term and a collective bargaining agreement and really you don't have to take ohio state's word for the interpretation of the contract because the fraternal order of police agrees with us so the employee union agrees that the definition of experience in the contract is actual experience working as a public safety dispatcher will suppose that because of historic reasons meant or because of discrimination by other and it is not meant that there were virtually no women who had ever been prior dispatcher's and therefore women were going to be getting lower salaries based on the subjective factor in your c b but because of the history work treatment of women how would you address that while you hypothetical be absolutely correct if there was actually evidence in this case that that was true then your hypothetical could potentially priya create a disparate impact argument unfortunately for the purposes of this case there was no disparate impact argument made there was no evidence put forth at the trial court level that this actually did have a disparate impact on women as a matter of fact i wanted to make sure that i brought the a list of dispatchers from ohio state and out of half of the dispatchers in ohio state a woman so we just don't do the do we know is there record evidence as to whether the women started at lower salaries than the men well yeah there is there is evidence in the record and this is the evidence the evidence is there is no evidence some women started a higher salary than she did and some women  started at a lower salary than pamela murphy did some men started at a higher salary than pamela murphy murphy did and some men started a lower salary than pamela murphy did so when you're talking about evidence that could potentially form a case for disparate impact there just isn't any evidence because it's it's even li spread across the board evenly spread across the board and you know quite frankly as i stated before that this is just one of those cases where you know you want to attract as an employer competent experienced employees so it certainly makes sense from a business reason to pay experienced employees more than those that not only have no experience that but that you have to train so when you're an employer and you're thinking about ok how do we attract candidates how do we as judge mckeague say how do we make sure we don't get sued you know i almost can't think of a last objectionable method by which to measure incoming employees then how much of experience have you actually had doing this job so for purposes that you could you could say probably from the being sued  could say that there are factors that weigh in more than time on the clock more than yours either judge so if you're a dispatcher at a teeny tiny place for instance new york city maybe two years in new york city is worth four years in teeny tiny town true but in this case remember who we have making the decisions the fraternal order of police is the largest law enforcement organization in the united states last i checked they had three hundred  twenty two thousand members in the united states and tell themselves as being the premier organization that understands law enforcement so when the fop comes in and says to ohio state public safety we think that this is a good measure by which to measure employees that are coming in because they were doing their own or they could be rewarding their own but and you know that's actually a very good point thank you and it kind of dovetails into this question about part time employees that was brought up part time employees the reason part time employees are paid differently is because they are not a member of the union it's very simple if they're not a member of the union this part timers they don't get the benefit of the negotiated starting wage so you know i think your question is a good one could be a fact of the provision be to help fop members ultimately it might be but i tell you what it doesn't do it doesn't investigation that was conducted with to go to the perking incident game to apparently what is your what your response in terms of the harmlessness or the lack of a problem from your client standpoint with regard to the delays that were conducted in the investigation surrounding that incident while the this is our problem you know it's kind of damned if you do and damned if you don't when we get this information and we found find out that she has been charged by the columbus police department hey we're going to be investigating this and we're sorry that you're on leave but we were going to investigate this and keep in mind this happened in the fall all right i know what approach her is in a safe room or delicate way to go through a union representative what we could of we could have and i think that our represent our representative that was deposed in the in this case admitted that he said you're right i could have done that i could have done that and we thought about that but we thought it best and the larry the the lapse in time remember this is all this is an investigation that's being handled by another police agency all right so it's all documented by the other police agency they've got witness statements they have police reports filled out this certainly isn't any longer time in between say a criminal being apprehended and proceeding to a criminal trial i mean if you look at it that way this happens in the fall she goes out on f m l a leave the investigation commenced on january ninth you know within weeks of her returning so let's just say for the sake of argument that it's three months in between the time of the actual incident and the investigation starting up you know there's just no evidence there weren't any witnesses  said you know i just don't remember what happened but isn't it possible that had she been aware had the union been aware in her behalf earlier certainly your greed wouldn't recollection structure closer in time to the incident than saved perhaps as long as two or three months later during that period of time wasn't she deprived of that opportunity as a result of the delay in being informed well it's such an investigation was being undertaken i think to answer your question i think that there is a possibility that that could have happened but there's no evidence that that actually did happen she could cheap point specifically to some evidence or some problems with things that information that could have been gathered and so forth that are done there are several things that did she raises in her brief for those it would you care are i i actually don't know what you're referring to you know there there was no evidence from my perspective that was put forth that the delay in this investigation had any effect on the ultimate outcome and in addition really the next question you need to ask then is was the delay for a legitimate business reason or a legitimate reason period or was the delay to punish her in some fashion for taking f m l a leave you know maybe our guy was wrong maybe he was right i don't know but you know i don't think there's any evidence that he's making decisions with the purpose or intent of retaliated against the four lady because she's out on a family leave so you know even if you say hey you know what guys you made a stupid decision you still don't get to that next step of having at least some of events that the the reason given was some sort of pretext an improper attempt to supplement the record on appeal and really whether an arbitrator interpret ing the terms of a collective bargaining agreement decided the issue of cause or not just cause for discipline i don't think has any relationship to a claim for f m l a retaliation having read the arbitration decision i will tell you that it has nothing to do with any decision involving federal employment statutes it has to do with the interpretation of the term just cause and the collective bargaining agreement and i just don't think it has any relevance here based on timing this was not record evidence in the district court that's correct it came out after the district court had already ruled refresh my recollection under the retail ation clauses is this a a a reason or is this a bug for us that we apply this is about four test now and just so you really have to rule out any of these other what you claim to be a legitimate business reasons why you did what you did and say all of this happened because they were mad at her yeah i mean you have to demonstrate there has to actually be evidence but it's not just that you can demonstrate that the reason given was a pretext there's an additional burden that's imposed on the opponent in this case and that is not only that the reason was a pretext but also that the real reason was this anti f m l a and a mess or discrimination and there's i don't think there's any first of all any evidence that this is a pretext you know we can debate all day long whether you should do something while she's on a family leave or wait till she gets back i mean you know could debate that all day long and i quite frankly had they called me and asked me that question before they made the decision i'm not sure what i would have told but but the reality is that there is just no evidence of pretext and there's no evidence that any action was taken in this case in retaliation for her taking f m l a leave as a matter of fact that the evidence is that she won on our leave she came back and she still works for us and quite frankly she does a great job for us so you know in this case i just want to point out to the  court that i believe there are were more claims made than actually survive i think i'm i believe i understand that the claim has been waived there is no longer a claim for retaliation based upon her two thousand  filing and i don't believe there's any remaining claim for f m l a interference so unless the panel has any further questions i think you for your time and  i guess i would put it to you this way i asked this question in deposition i'd like you to explain to me in some fashion how miss murphy is prejudiced by an investigation that doesn't start immediately with regard to the witnesses who may provide information that is exculpatory for her and those witnesses who have to wait for four months before they give information which now that information known not only may the exculpatory information have changed but to memories may have failed with regard to the entire incident how was she benefited by that and the answer was at that time the end if you do damned if you don't situation is there any underlying dispute here ignoring what they implement consequences are that she tries to get to a parking lot it's blocked by the police she drives over the curb and around the barrier and disregards an order to stop those fundamental questions disputed here no so what on earth difference does it make whether there were other witnesses other unadorned of fide unknown witnesses or whether somebody zarif recollection was refreshed earlier or later in terms of the basis of ohio state conduct or the police department whoever it was having conducted the investigation because she was also charged with regard to her conduct in the presence of the officer and the way that she responded to the officer and i let me unexpanded ask you about that its core was she not told to stop after she parked her car and she got out of her car and said i got to go to work and she left correct so there's no speed about that dispute about that so the consequences that flow from that are obviously disputed particularly with respect to or employment but what actually happened is not in dispute at all is it you know so what on earth then is the basis of the claim that the most of the pretext because they waited until she came back to work as opposed to investigating it while she's home sick because they had talked to people about the information there was a mitigating circumstance that they had blocked her entrance to her paid for parking place and had not informed any c p d officers that she was the only dispatcher that was going to be coming in for that particular afternoon shift during a no issue ballgame was no dispute about any of that is there at the entrance was blocked she's a dispatcher that was her spot she had to go to work nobody disputes that do it but she has a duty she has a duty to be there on time they knew her duty to report to work for the safety of o s u their police department and the people that they protect outweighs driving around a just partially that has nothing to do with what happened that's just her reasoning and the consequences correct and she was charged she was charged with conduct unbecoming basically conduct unbecoming insubordination with regard to her interaction with that officer and under those circumstances and that's why i submitted his charge by the columbus police no right to come columbus police charged her with disregarding the safety orders of an officer she was found not guilty and then she went to trial found not guilty and then the arbitrator decided that you know that was more warranted a written warning ok for that for those for that information nobody talked to the officer nobody asked the officer what actually had happened to me when i say there's no dispute there's no dispute that as to the facts that we're presently presented by the officer but not those facts that  might may have found out from a proper investigation when was she found not guilty in the columbus police charge was that before her f m l a leave ended or after that was after her f m l a leave and so that proceeding when afterwards yes and it could end up in the arbitration council if i mean is there any dispute about her direction to the columbus police officer to speak with her superior officer a fellow officer who was present by we have explanation of her need to get to the parking lot wasn't that another fact that you included or that or that was important was that she was there any dispute about that no she's she's walking she acknowledges the presence of the officer i don't mind there's simply no factual dispute about what happened right what she did why she did it and the consequences were in question but what happened is not in ohio state doesn't claim that she did something or the police department don't claim that she did something that she denies doing she doesn't say they did something that they deny doing everybody agrees on what happened it's the question of why she did it and the consequences that flow from that is that a correct statement was it wrong it's wrong because the facts that were laid down at the time they occurred as interpreted by the department were facts that were never investigated and brought to the i get all that but never mind and you get an answer yes ok thank you for your argument we thank you both the case will be submitted with the clerk called the next case