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April 30th, 2023 | Issue #15-03
We offer legal reference books and audiovisual training on federal civil service, equal employment, and labor law, for attorneys, unions, arbitrators, managers, and agency personnel offices. A small business for over 39 years.
Read the full archive of over 100+ News and Case Alerts online at:
New Dewey Books In 2023
This encyclopedic text features summaries of federal sector arbitration awards addressing significant issues and major arbitration principles from 1999 through 2022. Awards are arranged by topic. Principles includes a table cross-referencing arbitrators to the awards they have issued. (more details)
Updated annually, this encyclopedic guide condenses MSPB and Federal Circuit decisions from 1999 through early 2023 into concise, usable summaries. Cases are arranged by subject matter areas and further categorized alphabetically. The MSPB Reference Materials free download and an index and table of cases rounds out this research tool. (more details)
In two volumes, Updated annually, the FLRA Guide is a complete research tool on unit determinations, negotiability and the collective bargaining process, unfair labor practices, and constraints on arbitration. The Guide includes discussion of cases, laws, and litigation practice before the FLRA and its reviewing courts. (more details)
Updated annually, the EEO Guide, written by Natania Davis with Ernie Hadley, Founding Author, offers the most comprehensive analysis of federal sector EEO decisions, litigation practice, statutes, regulations, policies, guidance, and practical advice available to practitioners. (more details)
It seemed simple enough. A comparator-based Equal Pay Act complaint against the SEC, where the appellant, an exam manager, was paid less than a couple female comparators. The wage disparity arose when SEC, years before the disparity was discovered by the appellant, invited SEC personnel to participate in a program designed to align salaries of current employees with the income they would likely receive in the private sector. Because the appellant did not timely apply for the recalibration of salaries, his pay increased with routine cost of living adjustments, while his colleagues, the comparators, who pursued the salary adjustment program, received substantial increases in base pay.
It led to an EPA suit in the Court of Federal Claims, where federal sector EPA cases are lodged if a judicial remedy is sought—with the exception of claims of less than $10,000, and those can be placed in federal district courts.
The Equal Pay Act is straightforward. Under 29 USC 206(d):
(1) No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (I) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex: Provided, That an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee.
Or so it appeared under the analysis of Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974):
The Act's basic structure and operation are similarly straightforward. In order to make out a case under the Act, the Secretary must show that an employer pays different wages to employees of opposite sexes "for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions."
But the Federal Circuit, in a decision looking to a few comments by legislators when the EPA was enacted, Yant v. United States, 588 F.3d 1369 (Fed. Cir. 2009) (Judge Prost concurring), involving something akin to a class-action EPA case involving mixed-gender groups of physicians assistants and nurse practitioners working for the VA, determined that a prima facie case had to show that the wage discrimination was based on sex, historically or presently.
Based on Yant, in the Moore case, the Claims Court dismissed the case for lack of a prima facie showing of an EPA violation because Moore had not alleged that the disparity in pay at SEC was based on sex under the Yant formulation.
What Appellant Moore argued to the Federal Circuit on appeal from dismissal of his complaint in the Claims Court was that Yant was distinguishable based on the nature of his case and the Yant plaintiffs: for Moore, a straightforward comparator-to-comparator case; in Yant what amounted to a class-action of a group of people in different but similar occupations, with an average salary being less for the female NPs than for the male PAs. But, Moore also argued that Yant was wrongly decided because it added a showing of causality to the EPA prima facie case that had no basis in the language of the EPA or the Supreme Court’s analysis in Corning Glass Works.
In its decision, the Federal Circuit placed the issue of the elements of an EPA comparator case, sua sponte, before the entire court, that is, en banc. And the court decided to overrule the burden of proof formulation in Yant to square the law with that of the Supreme Court and each other circuit appellate court that had, in private sector cases, followed the approach that a prima facie EPA violation is made out by demonstrating disparity among comparators of different sexes who are paid at dissimilar rates for work of the same nature, in the same location, and in the same working conditions.
The Moore decision explained:
In Yant, this circuit added an extra element to an EPA claimant’s prima facie case—namely, a showing that the pay differential “is either historically or presently based on sex.” Yant, 588 F.3d at 1372. This extra element is problematic for a few reasons—all related. First, it’s simply extraneous in view of the Supreme Court’s articulation of an EPA claimant’s prima facie case. Second, it violates the principle that “the EPA does not require . . . proof of intentional discrimination.” . . . Having to prove—on top of a pay differential across sexes for equal work—that the differential is “based on” sex is tantamount to having to prove that it’s because of sex, which is tantamount to having to prove intentional discrimination. Third, it misallocates the EPA’s burdens. Once an EPA claimant carries the burden on the (properly understood) prima facie case, it becomes the employer’s burden to prove—as an affirmative defense—that the pay differential has a permissible non-sex-based justification.
. . .
We therefore take this opportunity to bring this circuit in line with our sister circuits and the Supreme Court. To make out a prima facie EPA case, a claimant bears the burden to “show that an employer pays different wages to employees of opposite sexes ‘for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.’” Corning Glass, 417 U.S. at 195 (quoting 29 U.S.C. § 206(d)(1)). Yant is overruled to the extent it is inconsistent with the foregoing.
So, Mr. Moore’s case returns to the Claims Court, its litigation course to evolve.
Moore v. United States, Fed. Cir. 2022-1475 (4/28/2023 Precedential) (with order adopting decision of panel en banc).
New Dewey Books In 2023
The MSPB Guide is a complete research tool for Board cases, laws, procedure, and litigation practice and is the seminal text on this complex area of the law. Major topics include jurisdiction, appeals, discovery, hearings, evidence, PFRs, adverse actions and discipline, nexus and mitigation, substantive offenses, performance cases, RIFs, prohibited personnel practices, retirement, attorney fees, settlement, remedies, and judicial review.(more details)
Prehearing and post-hearing motions, as well as rules of motion practice are studied in this newly updated practical and helpful guidebook. The authors examine motions presented to the Board and the Commission separately, paying special consideration to how to most effectively use motions for the desired result. (more details)
Designed for all who work on conduct and performance issues and those who litigate cases, this book serves as a quick reference to federal employment litigation questions. Answers are provided in an easy to read and thorough manner. (more details)
An authoritative examination of the FMLA, this book includes citations and analysis of governing statutes, regulations and case law. (more details)
The Dewey Publications Podcast
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