[00:00:00] Speaker 04: case that you get an additional request from the court. [00:00:03] Speaker 04: So I'm going to look at it about that. [00:00:06] Speaker 04: I'm not sure what we're going to do yet. [00:00:09] Speaker 04: All right, thank you. [00:00:12] Speaker 04: The next case is Gordon versus US 17-1845. [00:00:49] Speaker 04: Mr. Nichols, and you reserve three minutes of time for rebuttal, correct? [00:00:55] Speaker 04: Okay, we're ready for you to proceed. [00:01:18] Speaker 03: I think what this case is about is whether the appellants in this case put forth a prime efficient case. [00:01:27] Speaker 03: We feel certain that they did. [00:01:30] Speaker 03: These two female physicians were not paid at the same rate as their male counterparts in the emergency department. [00:01:38] Speaker 03: That is clear. [00:01:39] Speaker 03: And I cannot come up with a logical reason for that other than [00:01:48] Speaker 03: sex discrimination under the Equal Pay Act. [00:01:52] Speaker 03: Now, the Equal Pay Act, as was mentioned in the Rizzo case that just came out a few weeks ago, night circuit case, confirmed that the Brennan decision should be, it's a remedial statute, and it needs to be considered in these cases. [00:02:11] Speaker 02: Also the... Is there any evidence in the record [00:02:15] Speaker 02: to show that Dr. Ali's raise was because he was a man? [00:02:22] Speaker 03: Does an employer normally say, yes, I'm going to give this money, this raise, to this man because he's a man? [00:02:30] Speaker 03: You don't see that. [00:02:33] Speaker 03: It's just when employers make that statement, if that was the case, then all employers would say, we didn't discriminate. [00:02:45] Speaker 02: Well, we know. [00:02:46] Speaker 02: Is there any evidence? [00:02:48] Speaker 03: I think the evidence is the women were historically paid lower wages than the men, ER doctors. [00:02:59] Speaker 02: Now you're looking to the comparators. [00:03:01] Speaker 03: Yes. [00:03:02] Speaker 02: I'm looking to Dr. Ali. [00:03:04] Speaker 03: OK. [00:03:05] Speaker 02: That argument, you made the argument that he got the raise. [00:03:08] Speaker 03: He did. [00:03:09] Speaker 02: And that they didn't get the raise, and therefore that suggests that there's some [00:03:14] Speaker 03: Well, Dr. Alley started in, I believe, 2008. [00:03:19] Speaker 03: And in 2009, he was provided an increase. [00:03:26] Speaker 03: Now, he was a probationary employee like my clients were probationary employees. [00:03:32] Speaker 03: There's no indication in the record that I could see that would indicate he should be upgraded in salary. [00:03:43] Speaker 03: But he was. [00:03:44] Speaker 03: And the two female physicians were not. [00:03:48] Speaker 03: So I think the prima facie case is, well, that was based on discrimination. [00:03:55] Speaker 03: Because we showed the comparison. [00:03:56] Speaker 04: Isn't the prima facie case based on pay discrimination? [00:04:01] Speaker 04: And then the case equal pay case as a whole is based on gender or sex discrimination? [00:04:07] Speaker 04: Yes. [00:04:08] Speaker 04: In your view, did the claims court apply the proper framework [00:04:12] Speaker 04: in reaching this decision? [00:04:18] Speaker 04: Well, I'd say no, that's why I'm here. [00:04:20] Speaker 04: Explain then to us the error. [00:04:25] Speaker 03: The error was we put forth evidence that the men were paid more than the women doing the same job. [00:04:35] Speaker 03: They were all ER physicians. [00:04:39] Speaker 03: They had the same types of duties. [00:04:41] Speaker 03: And yet you had this pay disparity there. [00:04:44] Speaker 03: And I think it's the agencies that they need to show that, under the Equal Pay Act analysis, that they have to show one of those four affirmative defenses. [00:05:02] Speaker 03: And the burden is on them, on those affirmative defenses. [00:05:06] Speaker 01: Let's assume for the moment that when it comes to the [00:05:11] Speaker 01: the denial of a pay raise in 2010 was due to the executive order installing a pay freeze. [00:05:24] Speaker 01: And so the denial of the opportunity for a pay raise in 2010 was not due to gender and the government put forward a strong basis for [00:05:37] Speaker 01: the denial of those pay raises in 2010 because it was due to a gender neutral pay freeze across the board. [00:05:44] Speaker 01: Then, as I understand your case, your case would then boil down to Dr. Ali, who was hired in 2008, just like Dr. Gordon and Dr. Maxwell. [00:05:57] Speaker 01: But is there ever been a case where one data point in which one male employee was getting [00:06:07] Speaker 01: paid more than a female employee is enough to make a case for a violation of the Equal Pay Act? [00:06:17] Speaker 03: I would say yes, because I think the cases have said that one example is enough. [00:06:25] Speaker 01: What cases are those? [00:06:26] Speaker 03: I'd have to go back, but having one comparator has been sufficient in Equal Pay Act litigation. [00:06:35] Speaker 03: So if that's what you [00:06:37] Speaker 03: want to describe Dr. Ali as that one, then if we're left with one, then that's sufficient under the EPA. [00:06:48] Speaker 03: But we think there's more than one. [00:06:50] Speaker 03: And we had one doctor who even had less responsibility in the emergency room. [00:07:03] Speaker 03: He only handled the non-urgent. [00:07:07] Speaker 03: patients, and yet he's making more. [00:07:12] Speaker 03: And then another one was claimed that he was a supervisor. [00:07:20] Speaker 03: Well, supervisory status, if that's what you want to call it, did not occur until 2012, but yet they're trying to go back to justify their earlier pay discrepancies. [00:07:35] Speaker 04: So this case involves summary judgment, correct? [00:07:38] Speaker 03: Yes. [00:07:38] Speaker 04: I like the standards. [00:07:40] Speaker 04: You would have to show just one disparity in pay, or you could just show just one disparity in pay in order to show that there's a genuine issue up until a fact. [00:07:50] Speaker 04: Yes, sir. [00:07:51] Speaker 04: Now let me ask you a question. [00:07:53] Speaker 04: Didn't the case of Yont just change all of this for you? [00:07:57] Speaker 03: Well, I think Rizzo questions whether Yont does that. [00:08:05] Speaker 03: I think in Yont, you had groups within groups. [00:08:09] Speaker 03: You had nurse practitioners and you had physician assistants. [00:08:14] Speaker 03: And both those groups had men and women in them. [00:08:18] Speaker 03: And I believe in our case. [00:08:21] Speaker 04: I guess what I'm getting to is in Yont, it took it a step further and said that to get beyond summary judgment, you had to just show more than disparity in pay. [00:08:32] Speaker 04: yet to show an actual intent to discriminate on the basis of sex? [00:08:38] Speaker 03: I think the proper framework for the EPA is for the agency or the employer. [00:08:47] Speaker 03: It's not like a Title VII where the burden shifts back and forth. [00:08:52] Speaker 03: It's equal pay. [00:08:53] Speaker 03: The burden is on the employer to show that they did not discriminate. [00:08:59] Speaker 04: The question is at what point does that burden shift? [00:09:04] Speaker 04: I think you're right that there's a burden shifting involved. [00:09:08] Speaker 04: But doesn't Yon change the point or the pivot point where that burden shifts? [00:09:15] Speaker 04: It makes it solely from disparity in pay and turns it into disparity in pay plus and intent to discriminate. [00:09:28] Speaker 03: I would question whether, based on the Rizzo case, if the court should blindly follow Yaak, because that case dealt with comparison of groups of nurses and groups of physician assistants. [00:09:47] Speaker 03: We're just dealing with physicians in one department, and it's easier to compare those. [00:09:56] Speaker 03: You're not mixing [00:09:59] Speaker 03: Like in Yonah, I think they had a national pay scale and regional pay scales. [00:10:04] Speaker 03: We were just dealing with what's going on in the emergency department at the Central Arkansas Veterans Healthcare System. [00:10:16] Speaker 03: And we made the prima facie case. [00:10:20] Speaker 03: We rebutted enough of the facts for summary judgment. [00:10:28] Speaker 03: The court needs to accept our evidence as being true. [00:10:38] Speaker 03: And I don't think they have in this particular case. [00:10:41] Speaker 03: So one thing about this case is that Gordon and her husband, [00:10:55] Speaker 03: who is a comparator work there. [00:10:58] Speaker 03: And what started this case is when they compared their paychecks and the husband was making, I think, about $14,000 more a year than she was. [00:11:09] Speaker 03: Now they've got a daughter. [00:11:11] Speaker 03: How can they explain to their daughter why daddy is making more money than mama for doing the same job? [00:11:18] Speaker 03: I think it's as simple as that. [00:11:20] Speaker 03: And I think we put forth enough evidence to show pay disparity [00:11:25] Speaker 03: under the Equal Pay Act. [00:11:27] Speaker 03: And the court and the agency failed to prove otherwise. [00:11:35] Speaker 03: The proof is on the agency. [00:11:36] Speaker 03: In this particular case, not so much on us. [00:11:40] Speaker 03: We put forth enough evidence to show, and our comparators were appropriate. [00:11:49] Speaker 03: And also the chief of staff and [00:11:54] Speaker 03: And the chief employer, the supervisor, admitted that the duties and everything were the same. [00:12:05] Speaker 01: The chief of staff and the head of the department, they're both women, right? [00:12:11] Speaker 03: No. [00:12:12] Speaker 03: The chief of staff is Margie Scott, and she is a woman. [00:12:17] Speaker 03: And then I think Dr. James Roche, who has passed away, [00:12:25] Speaker 01: I'm referring to Dr. Edith Fraley. [00:12:28] Speaker 03: Fraley was a supervisor at one point over the folks, and the sad thing about it, she's female, and all the doctors were making more than she was, and she was supervising them. [00:12:45] Speaker 03: So that's how that came about. [00:12:53] Speaker 04: I think a while ago when I was talking about Yont, I said that Yont required an intent to discriminate, but actually just required to show discrimination, not an intent. [00:13:07] Speaker 04: What is the citation of the Rizzo case you keep referring to? [00:13:12] Speaker 03: Rizzo just came out a few weeks ago, and I put in notice that we would be supplementing the record at oral argument. [00:13:23] Speaker 03: Court of Appeals for the Ninth Circuit. [00:13:27] Speaker 03: It was April 12th, 2018. [00:13:30] Speaker 03: I have a Lexus site, 2018usapp.lexus8882. [00:13:48] Speaker 04: You're into your rebuttal time. [00:13:49] Speaker 04: Do you want to continue? [00:13:50] Speaker 04: Do you want to save your time? [00:13:51] Speaker 03: I'll save my time. [00:13:52] Speaker 04: Okay. [00:13:53] Speaker 04: Thank you. [00:13:58] Speaker 04: Councillor Westerkamp. [00:14:04] Speaker 00: Good morning and may it please the court. [00:14:05] Speaker 00: I thought I would just address some of the points that my opposing council made. [00:14:10] Speaker 00: So the main thing here is that over a course of approximately four years of discovery, [00:14:15] Speaker 00: The plaintiffs actually took no depositions during that time period. [00:14:20] Speaker 00: And then in addition, their interrogatories directed no specific interrogatories towards any of the doctors. [00:14:26] Speaker 00: And then in addition, when it came to the summary judgment briefing, never actually identified comparators. [00:14:33] Speaker 00: And so the government in our response and our cross-motion went through and explained why certain doctors were not comparators, such as the two gentlemen that were supervisors, where they had [00:14:43] Speaker 00: The plaintiffs had conceded at their depositions that I believe it's Drs. [00:14:48] Speaker 00: Ryas and Snodgrass were their supervisors, and so therefore they were on a different pace bill. [00:14:53] Speaker 01: And then in addition... I thought the opposing counsel said, I believe it's Dr. Snodgrass wasn't really a supervisor until 2012, and all of the real issues are 2009, 2010. [00:15:04] Speaker 00: That's what they allege, but again, didn't actually take any depositions and try and point to, as I'm sure Your Honors are familiar with, the SF50s and [00:15:14] Speaker 00: some of the different things in the personnel files. [00:15:16] Speaker 00: But we have affidavits that say that he was a supervisor during that time period. [00:15:21] Speaker 00: And then in addition, when it comes to Dr. Gordon's husband, the reason why he made more when he was hired was because there was a different pay table that the VA was using. [00:15:32] Speaker 00: And importantly, at no time has the plaintiffs actually alleged that the actual VA pay schedule discriminates based on gender. [00:15:42] Speaker 00: And so he, therefore, just by virtue of the fact that he was hired two years later, was hired at a different pay table. [00:15:47] Speaker 00: And that's the sole explanation for why he was making more money than his wife. [00:15:53] Speaker 04: One of the concerns I have is looking at the opinion of the Court of Federal Claims. [00:15:59] Speaker 04: And that's whether the court actually applied the appropriate framework. [00:16:05] Speaker 04: Can you address that issue? [00:16:06] Speaker 04: I mean, I don't think I even saw the word prima facie in the opinion. [00:16:11] Speaker 00: Yes, I can, Your Honor. [00:16:12] Speaker 00: And so it's on page 17 of the appendix where the court said that we have not addressed the issue of comparators in depth because the decision in this case renders it moot. [00:16:24] Speaker 00: And so it does appear that the court, just for purposes of looking at the government's affirmative defense, maybe just presumed that the plaintiffs had met the prima facie case, however, did not actually analyze whether they had. [00:16:37] Speaker 00: And again, this court has to know a review. [00:16:39] Speaker 00: And by virtue of the fact that the appellants have made this an issue, the court should, of course, examine whether they have met their prima facie case. [00:16:47] Speaker 00: And then, at least when it comes to the rest of the framework, although I understand that reading this opinion, it's a little confusing as to what the court did, the court then did go on to- It does seem that the court also concedes the point that there is a showing of disparity in pay. [00:17:04] Speaker 04: At least they got that far. [00:17:06] Speaker 00: In the sense that- [00:17:08] Speaker 00: The court did look at what the different allegations were, like, for instance, with Dr. Kaiser. [00:17:14] Speaker 00: And the court also examined Dr. Ali. [00:17:16] Speaker 00: And that's at page 19 of the record, where the court, for instance, said that, again, the record does not show how this pay raise in 2009 came about. [00:17:27] Speaker 00: And it kind of went through some different things that maybe it could have been this, maybe it could have been that, except, again, no depositions. [00:17:35] Speaker 04: Doesn't that raise a genuine material? [00:17:38] Speaker 04: Doesn't that raise an issue? [00:17:40] Speaker 04: It gets you beyond so many judgment? [00:17:42] Speaker 00: No, I don't believe so, Your Honor, because when it comes to Dr. Ali, I think the big elephant in the room, as Your Honor Judge Chen pointed out earlier, was the pay freeze, where once that happened, no doctors... Well, there's that. [00:17:55] Speaker 04: I mean, the pay raise, but the showing was that Dr. Ali got paid more. [00:18:00] Speaker 04: In 2009. [00:18:00] Speaker 00: In 2009, but then in 2010, Dr. Maxwell was approved up to $212,000, except Dr. Scott, the chief of staff, was mandated to deny that. [00:18:10] Speaker 01: To put a finer point on it, why, I mean, one could argue there was unequal treatment between the man, Dr. Ali, and the women, Drs. [00:18:18] Speaker 01: Gordon and Maxwell, because they were all hired in 2008. [00:18:24] Speaker 01: the same salary and then for whatever reason in 2009, Dr. Ali but not Drs. [00:18:30] Speaker 01: Maxwell and Gordon received the pay bump and then for whatever reason [00:18:36] Speaker 01: The women doctors had to wait till 2010 to get in front of a pay panel. [00:18:40] Speaker 01: And then I agree that pay freeze prevented the bump from happening in 2010. [00:18:46] Speaker 01: But why was it that the women doctors didn't get the same bump up in 2009 like Dr. Ali did? [00:18:54] Speaker 01: I think that's the question. [00:18:56] Speaker 01: That maybe is the elephant in the room. [00:18:58] Speaker 01: What's your response? [00:18:59] Speaker 00: My response to that is that there's no evidence in the record that he was subject to the same probationary period. [00:19:04] Speaker 00: And more importantly, as the trial court noted, he did have more professional achievements than the plaintiffs. [00:19:12] Speaker 00: For instance, he came from a level one trauma center. [00:19:14] Speaker 00: He was actually board certified in emergency. [00:19:16] Speaker 04: You have the court appears to be juggling facts and weighing out facts. [00:19:22] Speaker 04: Once the court starts doing that, doesn't that get you beyond semi-total? [00:19:28] Speaker 00: Not in this instance, because again, it is a genuine dispute of material facts. [00:19:32] Speaker 00: And so what we have here is while [00:19:34] Speaker 00: He got a pay raise in 2009, but there's nothing in the record indicating that that was on the basis of gender discrimination. [00:19:40] Speaker 04: In 2009, he was being paid more. [00:19:46] Speaker 04: And then you have to get into the inquiry, why? [00:19:49] Speaker 04: Isn't the why the material fair? [00:19:53] Speaker 00: Well, but in this instance, there was no discovery on that question. [00:19:56] Speaker 00: And again, this was something where discovery lasted for about four years, and there were no depositions taken. [00:20:02] Speaker 00: And then in addition, [00:20:04] Speaker 00: When it comes to the testimony that a prison counsel referred to, that was actually before the EEOC, which similarly found that there was no violation of the Equal Pay Act because they hadn't violated it. [00:20:19] Speaker 00: And again, Dr. Rash did pass away a couple of years ago, and he was actually overseeing all of the primary care [00:20:28] Speaker 01: Let's try to approach the question a little differently. [00:20:32] Speaker 01: As I understand Yant, in order to make a prima facie case, the plaintiff has to come forward and show that the pay differential between men and women is based on sex. [00:20:46] Speaker 01: That's what Yant says. [00:20:47] Speaker 01: Correct. [00:20:49] Speaker 01: Corning doesn't quite see it like that. [00:20:51] Speaker 01: But let's just assume for the moment, Yant didn't exist. [00:20:56] Speaker 01: And so all we had was Corning. [00:20:58] Speaker 01: And Corning, step one for Prima Fascia, just says, is there a pay differential between men and women? [00:21:06] Speaker 00: Well, but I would say, Your Honor, that Corning actually, and this was mentioned in Yant, where this court noted in Corning that this case, however, is completely devoid of the historical discrimination at issue in Corning Glassworks. [00:21:17] Speaker 00: And so again, I think even with Corning Glassworks, this case is devoid. [00:21:22] Speaker 00: of any historical discrimination occurring between the two plaintiffs and the rest of the doctors in the emergency room. [00:21:29] Speaker 01: And again, the doctor that... I guess, but just stay with me in my hypothetical. [00:21:35] Speaker 01: We're in a pretend land, we're not in reality. [00:21:37] Speaker 01: Pretend land would be Corning says [00:21:41] Speaker 01: just to meet your prima facie case, all you have to do is prove that there's a paid difference between men and women. [00:21:49] Speaker 01: Let's just say, for sake of argument, that's what Corning says. [00:21:52] Speaker 01: I know you feel differently, and that's fine. [00:21:57] Speaker 01: I guess the question here would be, under that pretend world, would doctors Gordon and Maxwell have met their prima facie case? [00:22:07] Speaker 00: Under that pretend world? [00:22:09] Speaker 00: Sure. [00:22:09] Speaker 01: Because of Dr. Ali? [00:22:11] Speaker 00: Uh, well, if they were able to show comparators, but again, um, they, they didn't actually go through that exercise. [00:22:18] Speaker 00: But I want to know why you said sure in response to my hypothetical. [00:22:21] Speaker 00: Well, if, if they could show comparators, if they could do that, then yes, that could make a prima facie case. [00:22:28] Speaker 01: Okay. [00:22:28] Speaker 01: Why isn't Dr. Ali alone a prima facie case in this hypothetical context? [00:22:33] Speaker 00: Um, well, I guess in what he was hired as part of his hiring, he actually moved from Houston. [00:22:39] Speaker 00: And so part of his pay. [00:22:41] Speaker 00: was actually built in for moving and travel expenses. [00:22:45] Speaker 00: And so that's another factor of that where he was different than the other two doctors because they came from other hospitals within Little Rock. [00:22:50] Speaker 01: Would that go maybe into step two where the government then has the burden to come up with a rebuttal case for why Dr. Ali ultimately received that bump up in 2009 for a gender neutral basis? [00:23:07] Speaker 00: Yes, that could go into step two. [00:23:08] Speaker 01: Okay. [00:23:09] Speaker 01: I guess getting back to my question, it would sound like you're saying that the plaintiffs in the hypothetical context would have, in fact, met their burden to make a prima facie case. [00:23:23] Speaker 00: That's possible. [00:23:26] Speaker 01: Because one data point is enough? [00:23:28] Speaker 00: Yes, and I also cannot cite to specific cases. [00:23:32] Speaker 00: But when it comes to the Equal Pay Act, a data point can be enough, Your Honor. [00:23:36] Speaker 00: But then again, that gets to the burden shifting where [00:23:39] Speaker 00: with the government where we went exhaustively through and explained. [00:23:42] Speaker 00: And the trial court also held that the pay panels were not gender discrimination. [00:23:48] Speaker 00: And then the resume requirement was important because the pay panels varied from year to year. [00:23:52] Speaker 00: And as you can imagine, at a VA large hospital, a doctor may not know everyone else, especially in different departments that they're reviewing. [00:24:00] Speaker 00: And when it came to the resume requirement, it actually supports our case where the plaintiffs noted, hey, look, I think it was Dr. Gordon. [00:24:08] Speaker 00: I have supervisory experience, and I wasn't credited with that. [00:24:10] Speaker 00: And the trial court said, well, that's a good reason why the resumes, the hospital needed these in order to make sure that you were being compensated for your work. [00:24:20] Speaker 04: And then, again, one- Isn't it a fact question as to whether a resume was actually required? [00:24:27] Speaker 04: As to, with the meeting, when it- Because Dr. Ali received his raise, or without a, submitting his- [00:24:36] Speaker 00: Well, we actually don't know that, because that, again, wasn't ever questioned. [00:24:43] Speaker 04: This brings me to the next point. [00:24:46] Speaker 04: Once a prima facie case is made, the burden is shifted to the government to show no discrimination, correct? [00:24:54] Speaker 04: You seem to place that burden on the women to show that there is discrimination, but all they have to do at this point is to show there's a material fact that's in dispute. [00:25:06] Speaker 04: The burden shifts to you to show no discrimination. [00:25:09] Speaker 00: That's correct. [00:25:10] Speaker 00: And that's what the government did in this instance, where we explained that again, and these personnel files, none of the, when I actually looked through all of them, it's my recollection that resumes were not even dated. [00:25:22] Speaker 00: And so as you can imagine, you submit a resume and it wasn't indicated when they were submitted. [00:25:28] Speaker 00: But what we had here was our defense and the affirmative defense was that the VA pay bill, [00:25:35] Speaker 00: is applied gender neutrally. [00:25:36] Speaker 00: The pay panels met. [00:25:38] Speaker 00: It supports our case that Dr. Maxwell did receive a raise up to $212,000, which would have been more even than Dr. Kaiser. [00:25:46] Speaker 00: I think he was at 205, except it had to be denied because of the federally mandated pay freeze. [00:25:52] Speaker 00: And then in addition, unfortunately, Dr. Gordon's pay panel did not meet before that pay freeze. [00:25:58] Speaker 00: And so this is all, as the trial court noted, kind of an unfortunate coincidence of timing where [00:26:03] Speaker 00: The pay panels nor the plaintiffs could have known that this was happening or going to happen. [00:26:08] Speaker 04: Was there any evidence that Dr. Lee did not submit his resume, his CV? [00:26:14] Speaker 04: I'm sorry. [00:26:15] Speaker 04: Is there any evidence presented that he did not submit? [00:26:18] Speaker 04: No, there was not. [00:26:19] Speaker 00: No. [00:26:21] Speaker 00: And again, when it came to that pay freeze. [00:26:25] Speaker 04: If there was evidence, then would you say that there was some judgment was not appropriate? [00:26:32] Speaker 00: Again, I didn't follow you. [00:26:35] Speaker 04: If there was evidence submitted that Dr. Ali did not submit his resume, then would we have a material issue of fact and dispute? [00:26:47] Speaker 00: You know, I don't even think with that question there would be. [00:26:49] Speaker 00: Because again, with the pay panels, the resumes were... You're arguing the absence of the information. [00:26:56] Speaker 04: That's the reason why summary judgment was appropriate. [00:26:59] Speaker 04: I'm asking you. [00:27:01] Speaker 04: assuming that there was evidence or that there was evidence, then we could say that some judgment was not proper, correct? [00:27:09] Speaker 04: If there was evidence that he had not submitted a resume? [00:27:12] Speaker 04: Yes. [00:27:13] Speaker 04: Dr. Aline never did submit a resume. [00:27:16] Speaker 00: Then maybe it would not have been appropriate, but here we don't have evidence either way. [00:27:20] Speaker 00: And then in addition, when it came to the resumes, I think the trial court really focused on the resumes for some reason, but the resumes, again, [00:27:31] Speaker 00: were kind of the precursor to a pay panel meeting and may not have been required in all instances. [00:27:38] Speaker 00: Again, the record doesn't reflect either way. [00:27:42] Speaker 02: Any evidence in the record to suggest that the requirement for a resume was in any way gender-based? [00:27:49] Speaker 00: No. [00:27:50] Speaker 00: And the trial court actually held that the resume requirement, and these were at pages 18 through 19, where the trial court, and I'll just quote here, [00:27:59] Speaker 00: More importantly, the requirement was not applied unevenly. [00:28:03] Speaker 00: And it did not, therefore, have potential for gender discrimination. [00:28:07] Speaker 00: And again, the reason why is these pay panels, for every single year that the plaintiffs had pay panels, all of the doctors were different. [00:28:17] Speaker 00: And so they just didn't know everybody at the hospital. [00:28:20] Speaker 00: But then again, once that pay freeze happened, no emergency room doctors received any market pay increases. [00:28:29] Speaker 00: at can be found at page 72 of the record. [00:28:33] Speaker 00: And so that, again, was applied gender. [00:28:38] Speaker 00: And I would also add, too, in 2014, the pay freeze was, and I know I'm almost running out of time here, the pay freeze ended in December 2013. [00:28:45] Speaker 00: In February 2014, as soon as they could, and the hospital did that. [00:28:53] Speaker 01: OK, I just wanted to ask a question about, [00:28:58] Speaker 01: Corning and Yant again. [00:29:00] Speaker 01: So Yant says, to make the prima facie, was the pay differential based on sex? [00:29:09] Speaker 01: And I didn't see Corning say that last phrase in its opinion based on sex. [00:29:17] Speaker 01: So I guess, could you explain to me why Yant is consistent with Corning [00:29:27] Speaker 01: as opposed to putting an additional burden and gloss on what the plaintiff is required to do to make a prima facie case. [00:29:36] Speaker 00: Well, I think, Your Honor, and respectfully, this court, Yant, is this court's opinion. [00:29:42] Speaker 00: No, I understand that. [00:29:43] Speaker 01: I'm just trying to make sure I understand Yant correctly. [00:29:48] Speaker 01: I think you do understand how it fits with Corning. [00:29:53] Speaker 00: Yes. [00:29:54] Speaker 00: Yant did seem to add. [00:29:56] Speaker 00: And I know that Yant had said other courts have held that proof of discriminatory intent is not required to establish a prima facie case. [00:30:03] Speaker 00: But Yant did seem to add an extra level as this court held it. [00:30:08] Speaker 00: But it does require showing that discrimination based on sex exists or at one time existed. [00:30:12] Speaker 00: And again, I don't really think this is the right vehicle of a case to look at Yant necessarily, because again, there [00:30:21] Speaker 00: There were no comparators that were actually discussed at the time. [00:30:23] Speaker 00: And I realized your Honor's right. [00:30:24] Speaker 04: Yes, it doesn't totally apply in this case. [00:30:26] Speaker 00: I mean, I don't really think it does. [00:30:28] Speaker 00: Because I think more importantly, we explained all the affirmative defenses. [00:30:33] Speaker 04: So you're out of time. [00:30:34] Speaker 04: But let me bring you back to this one point. [00:30:37] Speaker 04: Look at appendix 43. [00:30:38] Speaker 04: This is the compensation panel action. [00:30:47] Speaker 04: Yes. [00:30:47] Speaker 04: And under number four? [00:30:51] Speaker 04: It says board certifications. [00:30:54] Speaker 04: It says no CV. [00:30:56] Speaker 04: So isn't that evidence that Dr. Lee did not submit a CV? [00:31:01] Speaker 04: As to what it could be, I am not sure. [00:31:06] Speaker 04: OK, well, but that's a question of fact, isn't it? [00:31:09] Speaker 04: That's a question in dispute. [00:31:11] Speaker 04: That's a genuine issue, a material fact. [00:31:14] Speaker 04: Correct? [00:31:16] Speaker 04: And I asked you a while ago, if I was able to show you [00:31:19] Speaker 04: that there was evidence that a CV was not submitted. [00:31:22] Speaker 04: That would mean that some judgment would be improper. [00:31:25] Speaker 04: And you said yes. [00:31:27] Speaker 00: But again, Your Honor, I think when it came to the CV, the trial court really focused on that. [00:31:31] Speaker 00: And I don't really understand why. [00:31:34] Speaker 00: Because that also stated, so I'm reading from number four. [00:31:37] Speaker 04: Because it was stated as a justification as to the difference in pay. [00:31:42] Speaker 04: OK, so we're out of time. [00:31:43] Speaker 04: Let's go back and hear from the other side. [00:31:47] Speaker 04: Thank you. [00:31:53] Speaker 03: Judge Chen, you've mentioned the pay freeze. [00:31:57] Speaker 03: But I think the wording of the pay freeze itself gave the agency the authority to take care of a potential sex discrimination, EPA violation, that they had the authority to increase the pay based upon that, under the executive order. [00:32:15] Speaker 03: So I don't see the executive order as clearing the agency of its responsibility. [00:32:23] Speaker 03: Because the order itself gave them the authority to award a raise, especially in a case where you're going to take care of some litigation that's going on. [00:32:35] Speaker 01: As I understand it, the hospital didn't give anybody any pay raises during the time of the [00:32:43] Speaker 01: pay freeze, is that right? [00:32:45] Speaker 03: Well, I can't remember the doctor's name, but one doctor did get during that period of time, but it was argued that the process itself ran outside the time frame of the EPA, so I guess went ahead and paid it. [00:33:07] Speaker 03: So I think that the agency did. [00:33:13] Speaker 03: is that they had a notice that a pay freeze was coming, and they implemented it before it actually went into effect, at least for my clients. [00:33:24] Speaker 03: The resumes, I was confused by the claims court decision. [00:33:32] Speaker 03: I couldn't really follow it. [00:33:39] Speaker 03: don't want to be disrespectful, but it's almost like it was constructed out of the whole cloth when you read the whole thing and try to put the pieces together. [00:33:48] Speaker 01: What if the claims court was trying to say there's no mandatory absolute requirement for a pay panel to have [00:33:55] Speaker 01: an employee's resume in front of it when it's trying to determine any pay raise, but it's absolutely reasonable for pay panels to make requests for resumes in order to have all the information available to it to make the most informed decision possible during a pay panel. [00:34:16] Speaker 03: We have a disputed fact over Dr. Gordon. [00:34:19] Speaker 03: She says she turned it in. [00:34:20] Speaker 03: They said they didn't get it. [00:34:26] Speaker 03: So summary judgment, my view would not be appropriate if that's a material fact that needs to be decided because the agency says they didn't get it. [00:34:36] Speaker 03: She says they gave it to him. [00:34:40] Speaker 03: So supervisors, I think they just throw that term around, but these doctors were, except maybe that Dr. Fraley that you mentioned earlier, [00:34:53] Speaker 03: were not supervisors. [00:34:55] Speaker 03: In fact, some of them were members of the union, and the union cannot have supervisors in their union. [00:35:02] Speaker 03: So I think they just used that word just to kind of bootstrap the pay raises that they gave some of these folks. [00:35:12] Speaker 03: One supervisor, he was not performing his physician duties. [00:35:18] Speaker 03: He was working the schedule out. [00:35:21] Speaker 03: Well, that's clerical work. [00:35:22] Speaker 03: That's not supervisory work. [00:35:24] Speaker 03: But yet, they imply that this person is a supervisor and should be compensated at a higher rate because of those supervisory duties. [00:35:34] Speaker 03: Those were clerical duties, not supervisory duties. [00:35:37] Speaker 03: OK, sir. [00:35:37] Speaker 03: Do you want to conclude? [00:35:39] Speaker 03: Yes. [00:35:40] Speaker 03: Just like for this court to send this case back for failure to meet, for the agency's failure to meet its burden, there's disputed [00:35:50] Speaker 03: Material facts here and summary judgment was not appropriate. [00:35:54] Speaker 04: Thank you. [00:35:55] Speaker 04: All right. [00:35:55] Speaker 04: Thank you. [00:35:55] Speaker 04: Thank you party for the argument