TABLE OF CONTENTS

TABLE OF AUTHORITIES.................................................................... iii

STATEMENT OF INTEREST................................................................ 1

STATEMENT OF THE ISSUES............................................................. 1

STATEMENT OF THE CASE................................................................ 2

A. .... Course of Proceedings.................................................................... 2

B...... Statement of Facts.......................................................................... 3

C...... District Court Decision.................................................................. 7

ARGUMENT........................................................................................... 9

IN GRANTING SUMMARY JUDGMENT TO FNGP ON FOCO’S EPA CLAIM, THE DISTRICT COURT MISINTERPRETED THE PRIMA FACIE CASE ELEMENT OF EQUAL “SKILL” AND MISAPPLIED THE EVIDENTIARY BURDENS REGARDING THE “FACTOR OTHER THAN SEX” AFFIRMATIVE DEFENSE............... 9

A. ... This Court has repeatedly held that to determine whether jobs involve equal “skill” for purposes of the prima facie case, the jobs at issue – not the individual employees performing the jobs – must be compared....................................... 11

B. ... On summary judgment the defendant claiming a “factor other than sex” affirmative defense must prove that non-sex reasons actually caused the challenged wage disparity and the plaintiff bears no burden of producing evidence to rebut the defendant’s affirmative defense......................................................................... 14

CONCLUSION........................................................................................ 21

CERTICIATE OF SERVICE

TABLE OF AUTHORITIES

Cases

page(s)

Balmer v. HCA, Inc., 423 F.3d 606 (6th Cir. 2005).............. 8, 14, 18, 19

Beck-Wilson v. Principi, 441 F.3d 353 (6th Cir. 2006)....... 12, 13, 14, 19

Brennan v. Owensboro-Daviess Cnty. Hosp.,

523 F.2d 1013 (6th Cir. 1975).......................................................... 15

Brock v. Ga. Sw. Coll., 765 F.2d 1026 (11th Cir. 1985)....................... 13

Buntin v. Breathitt Cnty. Bd. of Educ.,

134 F.3d 796 (6th Cir. 1998).................................................... passim

Corning Glass Works v. Brennan, 417 U.S. 188 (1974)................ passim

EEOC v. City Council of City of Cleveland, 875 F.2d 863,

1989 WL 54252 (6th Cir. 1989) ................................................ 12, 13

EEOC v. Del. Dep’t of Health & Soc. Servs.,

865 F.2d 1408 (3d Cir. 1989)........................................................... 15

EEOC v. Romeo Cmty. Sch., 976 F.2d 985 (6th Cir. 1992)................. 15

Goodrich v. Int’l Bhd. of Elec. Workers, AFL-CIO,

815 F.2d 1519 (D.C. Cir. 1987) ................................................. 12-13

King v. Acosta Sales & Mktg, Inc., 678 F.3d 470 (7th Cir. 2012)... 17-18

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).................... 19

McLaughlin v. Richland Shoe Co., 486 U.S. 128 (1988)....................... 13

Mickelson v. N,Y. Life Ins. Co., 460 F.3d 1304 (10th Cir. 2006)......... 16

Miranda v. B & B Cash Grocery Store, Inc.,

975 F.2d 1518 (11th Cir. 1992)........................................................ 12

Odomes v. Nucare, Inc., 653 F.2d 246 (6th Cir. 1981)......................... 10

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000)........ 19

Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981).............. 19

Thomas v. Owen Elec. Co-op, Inc., 121 F. App’x. 598,

2005 WL 106802 (6th Cir. 2005) .................................................... 13

Timmer v. Mich. Dep’t of Commerce, 104 F.3d 833 (6th Cir. 1997) 15, 20

Statutes, Regulations, and Rules

29 U.S.C. § 206(d).................................................................................. 1

29 U.S.C. § 206(d)(1).................................................................. 9, 10, 11

29 C.F.R. § 1620.15.............................................................................. 11

29 C.F.R. § 1620.15(a).................................................................... 11-12

Fed. R. App. P. 29(a).............................................................................. 1

Fed. R. Civ. P. 56(c)(1).......................................................................... 20

Other Authorities

EEOC Compliance Manual Chapter 10: Compensation Discrimination,

No. 915-003 (Dec. 5, 2000); available at

http://www.eeoc.gov/policy/docs/compensation.html 11-12, 14, 17, 18

STATEMENT OF INTEREST

The U.S. Equal Employment Opportunity Commission (“EEOC” or “Commission”) is the federal agency charged with enforcing our nation’s federal prohibitions on employment discrimination, including the Equal Pay Act of 1963 (“EPA”), 29 U.S.C. § 206(d). In granting the defendant’s motion for summary judgment on the plaintiff’s EPA claim, the district court misinterpreted and misapplied key legal principles. Given the EEOC’s enforcement interest in promoting the proper interpretation of this federal statute, the Commission respectfully offers its views to this Court. See Fed. R. App. P. 29(a).

STATEMENT OF THE ISSUES [1]

1. To create a prima facie case of sex-based wage discrimination under the EPA, a plaintiff must show that she and her male comparator(s) were working in jobs requiring equal “skill.” Did the district court err, in concluding that the positions in question here did not require equal “skill,” by failing to compare the objective requirements of the jobs in question, and by comparing the unique personal qualifications of the individual employees holding the jobs instead?

2. If the plaintiff establishes a prima facie case under the EPA, the defendant can avoid liability if it proves that the wage disparity was due to “any other factor other than sex.” This is an affirmative defense, and the defendant has the burden to prove by a preponderance of the evidence that the non-sex factor(s) it articulates actually caused the wage disparity at issue and sex played no role. Did the district court err in concluding that the defendant met this evidentiary burden as a matter of law, and in requiring the plaintiff to “provide” evidence creating a genuine dispute about the defendant’s affirmative defense to survive summary judgment?

STATEMENT OF THE CASE

A. Course of Proceedings

Plaintiff-Appellant Nicole Foco filed suit against Defendant-Appellee Freudenberg-NOK General Partnership (“FNGP”) in the U.S. District Court for the Eastern District of Michigan, alleging that FNGP had violated the EPA (among other statutes). R.1 at ¶¶ 68-75.^{^[2]} FNGP moved for summary judgment. R.21. Foco opposed the motion. R.27. The district court held a hearing on FNGP’s motion, and later granted it. R.50. On August 31, 2012, the district court entered final judgment against Foco on all claims. R.51. Foco then filed this timely appeal. R. 52.

B. Statement of Facts^{^[3]}

FNGP produces advanced sealing products used in the automotive industry.^{^[4]} R.50 at 2. Foco worked for FNGP as a student intern in 2002 and 2003. Id. On July 1, 2004, FNGP hired Foco as a Test Engineer. Foco worked as a Grade 6 on the FNGP salary scale, with a starting salary of $42,000. Id. On July 1, 2005, Foco received a two percent raise to $42,840, and on April 1, 2006, she received a ten percent raise to $47,124. Id.

On January 1, 2007, Foco was promoted to Application Engineer, becoming the only female Application Engineer. R.50 at 2. In that position, Foco was supervised by an Account Manager and her duties were to provide technical support and information to customers.^{^[5]} Id. She remained in that position through 2008. Id.

Foco states that, based on FNGP’s job description, the established pay scale for Application Engineers began at Grade 8.^{^[6]} R.50 at 3. Foco remained at Grade 6. Id. at 2-3. Foco also asserts that in addition to higher pay, male Application Engineers received a car and cell phone allowance and were eligible for bonuses. She did not receive any of those benefits. Id.

Foco’s supervisor, Jen Lange, testified that in January 2007, Foco’s salary “was approximately half of what some other Application Engineers made.” R.50 at 3. Human Resources manager Michelle Tomaszek told Lange that Foco’s salary was at “the wrong pay level” and “at the rock bottom of salary, rock, rock bottom” and that she was the “only Application Engineer that doesn’t have Flex Drive allowances.” Id. at 3-4 (quoting Lange’s deposition). Lange also testified that Tomaszek stated, “‘fix this’ because ‘otherwise you would open the door for a harassment case by basically denying the employee certain things that other Application Engineers . . . companywide received as a standard package. And the fact that Nicole is a female makes it even worse now that just [sic] does not look right.’” Id. at 4 (quoting Lange’s deposition). Sometime thereafter, Foco was promoted to a Grade 7, and received a six percent pay increase from $47,124 to $49,951, a bonus, and car and cell phone allowances. Id. However, Lange testified that the raise was insufficient to correct the gross pay disparity. Id.

Lange testified that Foco and male Application Engineers who reported to him as part of his team, including Joe Lak, Paul Fernandez, and Kip Yoder, “performed the same job functions; ‘same job responsibilities, just different clients.’” R.50 at 5. These men had more experience as Application Engineers than did Foco.^{^[7]} Id. at 12. However, Lange testified that Foco’s job performance was superior to the men’s performance. Lange stated that Lak’s performance was “significantly substandard,” but his salary was $88,320. Id. at 5. Yoder earned $88,500. Id.

FNGP asserts that in 2008 the company imposed a freeze on salary increases, but that in October of that year, Foco’s salary was increased to $53,447. R.50 at 5. Between 2009 and 2010, FNGP’s employees generally received pay cuts of between seven and fifteen percent. Id. In March 2009, Foco requested a salary review from HR. Id. FNGP later increased her salary by seven percent to $57,188. Id. at 5-6. Nevertheless, even after these raises, Foco still was earning substantially less than other male Application Engineers had been earning one to two years earlier.[8]

Foco asserts that in January 2009, she began functioning as an Account Manager (even though she retained the title of Application Engineer). R.50 at 6. Foco reported to Tom Ramm, who also supervised three male Account Managers – John Prince, Gary Perkins, and Bilal Bazzi. Id. These male Account Managers earned salaries between $79,000 and $110,000. Id. at 6, 9. Foco was assigned several small, inactive accounts to gain experience. Id. at 6, 10. The three male Account Managers working under Ramm “were to generate sales, manage commercial issues, and build relationships with high level decision makers.”^{^[9]} Id. at 9.

In April 2010, Foco left FNGP to take a position with another company paying $67,000 plus an annual bonus. R.50 at 7.

C. District Court Decision

The district court granted summary judgment for FNGP, holding that Foco’s EPA claim “fails as a matter of law.” R.50 at 9. The court initially held that Foco failed to establish a prima facie case as to the Account Manager position because her job “did not require substantially similar skill or responsibility to that of her male counterparts . . . .” Id. The district court held that the evidence demonstrated that Foco “performed maintenance duties on small inactive domestic accounts . . . of small value” and only had “low level customer contacts” with “no supervisory responsibility.” Id. at 10. By contrast, the court stated, FNGP demonstrated that the male comparators’ core duties “were to generate sales, manage commercial issues, and build relationships with high level decision-makers” on large, high-level accounts on which they were “responsible for commercial profitability” and had supervisory responsibilities. Id. at 9, 10.

The court then focused on the “experience and training . . . relevant to assessing ‘skill’ under the EPA,” noting that two of the three comparator Account Managers had significantly greater experience than did Foco. R.50 at 11. The court also noted that their respective educational backgrounds could account for some of the pay discrepancy. The court reasoned that Foco’s engineering technology degree was considered less valuable “by the market and at FNGP” than the mechanical engineering degree held by the three male Account Manager comparators. Id. at 11 n.2. According to the court, that was “a factor” in setting plaintiff’s compensation. Id.

The court next held that Foco could not establish “that she performed equal work to Application Engineers.” R.50 at 11. After ruling that Foco “must demonstrate what her specific job duties were and show her male counterparts’ duties were equal to hers,” the court then found that the “comparators worked on different accounts requiring different effort and time.”^{^[10]} Id. at 12. “Furthermore,” the court reasoned, Foco’s male comparators “had years of experience in this position at FNGP or at a competitor.” Id. The court also emphasized that two of the three comparators had different educational backgrounds than Foco. Id. After cataloguing the experience and educational background of each, the court summarily concluded, “[t]hus, no question of fact exists as to whether plaintiff performed equal work to that of her male counterparts.” Id.

Finally, the court held, citing Balmer v. HCA, Inc., 423 F.3d 606 (6th Cir. 2005) as support, that even if Foco had made out a prima facie case, her claim nonetheless could not survive summary judgment because “she fail[ed] to provide any evidence” to demonstrate that a fact question exists on FNGP’s affirmative defense. R.50 at 12 (citing 423 F.3d at 612). According to the court, “the pay differential between plaintiff and her male comparators was based on experience, education, expertise, prior salary, negotiations, market value, and the need to attract particularly well-qualified candidates – all legitimate non-gender factors.” Id.

ARGUMENT

The EPA makes it unlawful for an employer to discriminate between employees on the basis of sex by “paying wages to employees . . . at a rate less than the rate at which [it] pays wages to employees of the opposite sex . . . for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions . . . .” 29 U.S.C. § 206(d)(1). To establish an EPA violation, a female plaintiff has the burden to prove a prima facie case that the employer has paid her less than it has paid a male worker (or male workers) for equal work. See Corning Glass Works v. Brennan, 417 U.S. 188, 195-97 (1974). However, Congress did not intend through use of the phrase “equal work” to require “that the jobs being compared be identical.” See Buntin v. Breathitt Cnty. Bd. of Educ., 134 F.3d 796, 799 (6th Cir. 1998) (internal citations omitted). Rather, there need be only “substantial equality of skill, effort, responsibility and working conditions.” See Odomes v. Nucare, Inc., 653 F.2d 246, 250 (6th Cir. 1981).

If the plaintiff establishes her prima facie case, the defendant can avoid EPA liability by proving by a preponderance of the evidence that the wage differential is justified under one of four statutory affirmative defenses. That is, an employer may pay unequal wages to members of the opposite sex for equal work if it pays the wages pursuant to (1) a seniority system; (2) a merit system; (3) a system measuring pay by the quantity or quality of production; or (4) a differential based on “any other factor other than sex.” 29 U.S.C. § 206(d)(1). Because these are affirmative defenses, the defendant bears the burden of proof on them. See Corning Glass Works, 417 U.S. at 197; see also Buntin, at 800 n.7 (The plaintiff “never bears the burden of persuasion regarding the[se] affirmative defenses.”) (emphasis in original).

In granting summary judgment for FNGP on Foco’s EPA claim, the district court committed key legal errors at both the prima facie case and affirmative defense steps of the analysis. First, in determining whether Foco had shown that the Application Engineer and Account Manager jobs require equal “skill” for purposes of the prima facie case, the district court erroneously compared the unique personal qualifications of Foco and her male counterparts, instead of evaluating the objective requirements of the positions at issue. Second, the district court allowed FNGP to merely articulate factors that may have justified the wage disparities in question, rather than require FNGP to prove as a matter of law that it in fact relied upon “factors other than sex.” At the same time, the district court, contrary to the Supreme Court’s and this Court’s case law, placed a burden of production on Foco to rebut FNGP’s affirmative defense to survive summary judgment. Given these legal errors, the district court’s ruling should be reversed.

A. This Court has repeatedly held that to determine whether jobs involve equal “skill” for purposes of the prima facie case, the jobs at issue – not the individual employees performing the jobs – must be compared.

Foco alleges that FNGP violated the EPA by paying her less than it paid male Application Engineers and Account Managers. To succeed on this claim, it is her burden as the plaintiff to establish a prima facie case – including that she and her male comparators performed equal work.

As the statute itself suggests, this showing of equal work includes a showing that the jobs being compared involve equal “skill.” See 29 U.S.C. § 206(d)(1); see also 29 C.F.R. § 1620.15. Thus, Foco had the burden to demonstrate that the work FNGP required her to perform as an Application Engineer and as an Account Manager and the work FNGP required her male comparators to perform in those same positions required equal skills. “Skill” in this sense “includes consideration of such factors as experience, training, education, and ability” and “must be measured in terms of the performance requirements of the job.” 29 C.F.R. § 1620.15(a); see also EEOC Compliance Manual Chapter 10: Compensation Discrimination, No. 915-003, at 10-IV.E.2.a. (Dec. 5, 2000), available at http://www.eeoc.gov/policy/docs/compensation.html (“Two jobs require equal skill for purposes of the EPA if the experience, ability, education, and training required are substantially the same for each job.”).

Critically, this Court has emphasized that “‘[a] plaintiff establishes a prima facie [EPA] case by comparing the jobs held by the female and male employees, and by showing that those jobs are substantially equal, not by comparing the skills and qualifications of the individual employees holding those jobs.’” Beck-Wilson v. Principi, 441 F.3d 353, 362-63 (6th Cir. 2006) (quoting Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1533 (11th Cir. 1992) (citation omitted)) (emphasis added). According to this Court, “the comparison at the prima facie stage is of the jobs and not the employees,” and “‘only the skills and qualifications actually needed to perform the jobs are considered.’” Beck-Wilson, 441 F.3d at 363 (quoting Miranda, 975 F.2d at 1533). As this Court has previously explained, only “the skills actually required by [the comparable] jobs, not the abilities of the persons currently in those positions are relevant [and] it is the job as a whole, not just selected aspects of it that must form the basis for comparison.” EEOC v. City Council of City of Cleveland, 875 F.2d 863, 1989 WL 54252, at *5 (6th Cir. 1989) (unpublished) (quoting Goodrich v. Int’l Bhd. of Elec. Workers, AFL-CIO, 815 F.2d 1519, 1524 (D.C. Cir. 1987)); see also Brock v. Ga. Sw. Coll., 765 F.2d 1026, 1032 (11th Cir. 1985) (“It is important to bear in mind that the prima facie case is made out by comparing the jobs held by the male and female employees and showing that these jobs are substantially equal, not by comparing the skills and qualifications of the individual employees holding those jobs.”) (emphasis in original) (citations omitted), ), overruled on other grounds, McLaughlin v. Richland Shoe Co., 486 U.S. 128 (1988). But see Thomas v. Owen Elec. Co-op, Inc., 121 F. App’x. 598, 2005 WL 106802 (6th Cir. 2005) (unpublished) (without citing City Council, rejecting plaintiff’s argument that focus should be on the “skill required to do the job” rather than “qualifications and skills of the persons holding the job”).

The district court here concluded that Foco had not established a prima facie case in part because she had not shown that her jobs and the jobs of her male comparators involved equal skill. But in coming to this conclusion, the court looked at Foco’s unique education and experience and contrasted it with that of her male comparators. Rather than compare whether the jobs required equal skills, the court instead compared whether Foco and the comparators themselves possessed equal skills. Under this Court’s precedent, this was legal error.

The district court’s ruling improperly conflated aspects of the affirmative defense and the prima facie case. While the relative personal qualifications of individual comparators may be relevant to proof of a defendant’s “factor other than sex” affirmative defense, they have no place in the prima facie case analysis. See Beck-Wilson, 441 F.3d at 362-63 (explaining that “[f]actors like education and experience are considered as a defense to an employer’s liability rather than as part of a plaintiff's prima facie case”) (internal quotation marks omitted); see also EEOC Compliance Manual, at 10-IV.E.2 (explaining that while “a difference between the comparators has no bearing on whether the jobs are equal” it “could qualify as a defense to a compensation disparity”); cf. Balmer, 423 F.3d at 612 (defendant met its burden of proving its affirmative defense by presenting substantial evidence that it in fact based its higher pay, in part, on the relative qualifications of the comparators). Therefore, to the extent the district court concluded that Foco failed to establish that she and her male comparators performed substantially equal work because they possessed different degrees or had varying professional experiences, the ruling should be reversed.

B. On summary judgment the defendant claiming a “factor other than sex” affirmative defense must prove that non-sex reasons actually caused the challenged wage disparity, and the plaintiff bears no burden of producing evidence to rebut the defendant’s affirmative defense.

FNGP argued that the pay disparities at issue did not violate the EPA because they were based on “factors other than sex.” The district court agreed, holding that even assuming Foco could make out a prima facie case, she still could not prevail because she had “fail[ed] to provide any evidence demonstrating that a question of fact exists as to whether the ‘difference in pay is due to a factor other than sex.’” R.50 at 12. In reaching this result, however, the district court appears to have misapprehended the plaintiff’s and defendant’s respective evidentiary burdens and the burdens of proof in an EPA case.

Where an employer seeks to defend against an EPA claim by relying on the “factor other than sex” affirmative defense, its burden “is a heavy one.” Brennan v. Owensboro-Daviess Cnty. Hosp., 523 F.2d 1013, 1031 (6th Cir. 1975). To obtain summary judgment on this affirmative defense, the defendant must demonstrate that there is no genuine issue as to whether the difference in pay is due to non-sex factors. See EEOC v. Romeo Cmty. Sch., 976 F.2d 985, 989 (6th Cir. 1992). This Court has stated that an employer must prove that “sex provides no part of the basis for the wage differential” to prevail on summary judgment. See Timmer v. Mich. Dep’t of Commerce, 104 F.3d 833, 844 (6th Cir. 1997). The district court’s granting of FNGP’s motion for judgment as a matter of law can be upheld “‘only if the record shows that [it] established the defense so clearly that no rational jury could have found to the contrary.’” Buntin, 134 F.3d at 800 (quoting EEOC v. Del. Dep’t of Health & Soc. Servs., 865 F.2d 1408, 1414 (3d Cir. 1989)).

Moreover, to affirm, this Court must conclude that FNGP proved as a matter of law “not merely that the employer’s proffered reasons could explain the wage disparity, but that the proffered reasons do in fact explain the wage disparity.” Mickelson v. N.Y. Life Ins. Co., 460 F.3d 1304, 1312 (10th Cir. 2006) (emphasis in original) (internal quotation omitted). FNGP had to respond to Foco’s prima facie showing by proving that the pay disparity between Foco and her male colleagues was actually based on particular non-sex factors. As the Supreme Court has explained, “the question . . . [is] whether [the defendant] carried its burden of proving that the higher rate paid . . . was in fact intended to compensate for [a non-sex based pay differential], or rather constituted an added payment based upon sex.” Corning Glass Works, 417 U.S. at 204 (emphasis added). The district court failed to hold FNGP to this evidentiary standard.

While the district court recognized that the burden “shifted” to FNGP to “show” one of the four statutory defenses, R.50 at 8, 10, it permitted the company to simply make general assertions about a number of factors that might have justified the pay disparity. At bottom, FNGP’s “factor other than sex” defense consisted largely of hypothetical explanations for the salary gap, rather than evidence that the identified factors actually caused the particular pay disparities in question. Nevertheless, the district court summarily concluded that the pay differential between plaintiff and her male comparators was based on “experience, education, expertise, prior salary, negotiations, market value, and the need to attract particularly well-qualified candidates – all legitimate non-gender factors.” Id. at 12. The court did not explain how these criteria led to the profound disparity in pay between Foco and her male colleagues, much less how FNGP had proven as a matter of law that any particular salary decision was actually affected by any of these criteria. See EEOC Compliance Manual, at 10-IV.F.2.a (stating that “the difference in education, training, experience, or ability must correspond to the compensation disparity” and the employer must establish that the asserted gender-neutral factor “in fact explains the compensation disparity”) (emphasis added).

Most notably, for example, with respect to the Application Engineer job, the court concluded (albeit in the context of analyzing Foco’s prima facie case) that Application Engineer Lak’s bachelors and masters degrees in engineering and his twelve years of work experience helped explain why FNGP hired him at a significantly higher salary than it was willing to pay Foco. But FNGP failed to justify why this pay discrepancy, in which Lak received approximately double the pay that Foco did, persisted over time. Given that Lak’s immediate supervisor (who was also Foco’s boss) characterized Lak’s performance as “significantly substandard” – indeed said it was “night and day” when compared with Foco’s job performance – a reasonable jury could have concluded that Lak’s degrees and experience did not in fact justify the continuing pay disparity. See King v. Acosta Sales & Mktg., Inc., 678 F.3d 470, 474 (7th Cir. 2012) (holding that as part of its burden “to prove, and not just assert, that education and experience account” for the pay disparity, defendants have to prove why the respective salaries did not converge when the men and women were equally good at their job); cf. EEOC Compliance Manual, at 10-IV.F.2.a (“Moreover, continued reliance on pre-hire qualifications is less reasonable the longer the lower paid employee has performed at a level substantially equal to, or greater than, his or her counterpart.”). However, the district court never required FNGP to justify this lingering and glaring discrepancy.

The district court also appears to have based its summary judgment decision in part on the erroneous assumption that Foco bore an evidentiary burden to rebut FNGP’s (inadequate) affirmative defense showing. The court indicated that after establishing a prima facie case, Foco was required “to provide . . . evidence demonstrating a question of fact . . . as to whether the ‘difference in pay is due to a factor other than sex.’” R.50 at 12. It cited to this Court’s ruling in Balmer v. HCA, Inc., as support. Id. (citing 423 F.3d at 612). But Foco, as the plaintiff in this EPA action, had no burden of proof with respect to FNGP’s affirmative defenses. It is well established that the four statutory defenses to liability under the EPA are in fact affirmative defenses for which FNGP alone bears the burden of persuasion. In Corning Glass Works, the Supreme Court observed that requiring the defendant to prove affirmatively that its reliance on one of the EPA’s statutory exceptions was the actual reason for the pay disparity “is consistent with the general rule that the application of an exception under the Fair Labor Standards Act [(of which the EPA is a component)] is a matter of affirmative defense on which the employer has the burden of proof.” 417 U.S. at 196-97.

Nothing in Balmer, or anything else in this Court’s jurisprudence, is to the contrary. This Court recognized in Balmer that “‘the defendant always bears the burden of proving that its proffered reason is the true basis for the pay differential.’” 423 F.3d 606 (quoting Buntin, 134 f.3d at 800 n.7) (emphasis in original); see also Beck-Wilson, 441 F.3d at 364-65 (“Once a plaintiff establishes a prima facie EPA violation, a defendant bears both the burden of persuasion and production on its affirmative defenses.”). To be sure, this Court in Balmer also noted that if a reasonable jury viewing the defendant’s evidence could only find for the defendant, then – but only then – the plaintiff should bear the burden of producing proof that the defendant’s defense was a “pretext.” Id. But here, FNGP’s own failure of proof as a matter of law obviated any need for Foco to produce evidence of “pretext.”[11]

Foco did point to evidence in the record demonstrating a genuine dispute as to whether the pay disparities at issue were non-sex-based. R.30 at 16-20 (detailing how FNGP’s evidence fails to prove factors other than sex account for gross pay disparity). She thus did precisely what Rule 56 requires her as the non-movant to do. See Fed. R. Civ. P. 56(c)(1); see also Timmer, 104 F.3d at 844 (“While under the [EPA] the plaintiff is not required to prove pretext, she still must come forward with evidence demonstrating the existence of a triable issue of fact.”). The district court committed reversible legal error in ruling otherwise.

CONCLUSION

For the foregoing reasons, the EEOC respectfully submits that the district court’s decision reflects legal error, and that its summary judgment ruling should be reversed.

[1] The Commission takes no position with respect to any other issue presented in this appeal.

^{^[2]} Citations to the record are abbreviated “R.” and refer to the district court docket entry number. Pincites refer to the internal pagination of the document (e.g. Order pages), not to PACER pagination.

^{^[3]} Except where otherwise noted, this brief relies on facts taken from the district court’s opinion. R.50.

^{^[4]} Vibracoustic North America (“VNA”) was a division of FNGP before becoming a corporate subsidiary in April 2010. References to FNGP include VNA. See generally R.50 at 7 n.1 (FNGP’s argument that claims against VNA should be dismissed as moot).

^{^[5]} According to FNGP’s brief on summary judgment, as an Application Engineer, Foco’s core duties “were to present data and make presentations on micro cellular urethane ‘MCU’ and other products, create market studies and sometimes price parts for new business.” R.21 (FNGP’s Brief in Support of Summary Judgment) at 7-8.

^{^[6]} In her response to FNGP’s summary judgment motion, Foco states that according to the official Application Engineer job description, the pay scale range is Grade 8–12. R.30 (Foco’s Response to Summary Judgment) at 2.

^{^[7]} In addition to a masters and a bachelors degree in engineering, Lak had twenty-five years of experience (thirteen working at FNGP). Yoder had a mechanical engineering degree and fifteen years of prior relevant experience (including eleven as an Application Engineer). Fernandez had the same degree as Foco – an engineering technology degree. But Fernandez had eight years of relevant experience before joining FNGP, and four years of experience at FNGP by 2007 when he started working as an Application Engineer. R.50 at 11 n.2, 12.

[8] The district court did not indicate the salaries of the male comparators after 2007-08.

^{^[9]} Prince had a mechanical engineering degree and over twenty-seven years of experience. Perkins held a mechanical engineering degree, and had twenty-five years of experience. Bazzi had a masters and a bachelors degree in mechanical engineering, and over two years of experience as a Sales Engineer before starting as an Account Manager. R.50 at 12.

^{^[10]} The court noted that FNGP had argued that Foco failed to show the actual job duties and skill required of her comparators’ roles. R.50 at 12. However, the court did not itself appear to conclude as much.

[11] The use of the term “pretext” in this EPA context is potentially confusing. The concept of “pretext” is most commonly associated with Title VII intentional discrimination cases, where the plaintiff retains the burden of persuasion at all times and typically meets that burden by showing that the defendant’s asserted legitimate justification for its actions is a coverup (“pretext”) for an invidious motive. See McDonnell Douglas Corp. v. Green, 411 US. 792 (1973); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000). By stark contrast, the EPA does not require a showing of intentional discrimination at all. See Beck-Wilson, 441 F.3d at 360. And it is the EPA defendant’s burden to persuade the factfinder that it acted for a legitimate (non-sex-based) reason. Cf. id. (“The burden shifting under the EPA differs from the Title VII framework, in which a ‘defendant need only assert a legitimate, non-discriminatory reason for the different treatment afforded the plaintiff as compared to her similarly situated male co-workers,’ . . . at which point the burden shifts back to the plaintiff to show pretext.”) (quoting Buntin, 134 F.3d at 799 n.6).

STATEMENT OF INTEREST

STATEMENT OF THE ISSUES[1]

STATEMENT OF THE CASE

STATEMENT OF THE ISSUES [1]