Gordon v. United States ( 2018 )

United States Court of Appeals
for the Federal Circuit
______________________
GAYLE GORDON, TERESA MAXWELL,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
______________________
2017-1845
______________________
Appeal from the United States Court of Federal
Claims in No. 1:12-cv-00208-RHH, Senior Judge Robert
H. Hodges, Jr.
______________________
Decided: September 7, 2018
______________________
JAMES EDGAR NICKELS, Nickels Law Firm, Sherwood,
AR, argued for plaintiffs-appellants.
KARA WESTERCAMP, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for defendant-appellee. Also
represented by CHAD A. READLER, ROBERT EDWARD
KIRSCHMAN, JR., CLAUDIA BURKE.
______________________
Before REYNA, LINN, and CHEN, Circuit Judges.
2 GORDON v. UNITED STATES
REYNA, Circuit Judge.
This is an Equal Pay Act case. Plaintiffs-Appellants
Dr. Gayle Gordon and Dr. Teresa Maxwell, women physi-
cians in the Department of Emergency Medicine of the
Central Arkansas Veterans Healthcare System in Little
Rock, Arkansas, filed claims under the Equal Pay Act.
The Court of Federal Claims entered summary judgment
in favor of the United States and denied summary judg-
ment to Appellants because they failed to raise a fact
issue that the difference in pay is presently or historically
based on sex. Yant v. United States, 588 F.3d 1369 (Fed.
Cir. 2009). We affirm.
I. BACKGROUND
Pay for doctors employed at VA hospitals is governed
by 38 U.S.C. § 7431 (the “VA Pay Bill”). Under this
statute, pay consists of three components: base pay,
market pay, and performance pay. Id. § 7431(a). Base
pay depends on experience with standard step increases
based on tenure. Id. § 7431(b). Market pay is determined
on a case-by-case basis and reflects various factors, in-
cluding the physician’s level of experience, the need for
the physician’s specialty at the particular facility, the
relevant health care market, and any board certifications.
Id. § 7431(c). Performance pay is paid when the physician
achieves certain goals and performance objectives pre-
scribed by the Secretary of Veterans Affairs. Id.
§ 7431(d).
The VA Pay Bill outlines a standardized process for
physician compensation and separates physicians into
different pay tables based on different specialties. Id.
§ 7431(e)(1)(B). Each pay table has a minimum and
maximum range of compensation.
The VA Pay Bill requires a pay panel to meet at least
once every two years to determine market compensation
for an individual physician, but it may also convene if
GORDON v. UNITED STATES 3
there is a change in status. Id. § 7431(c)(5); J.A. 82–83.
New pay tables are issued by the Veterans Health Admin-
istration (“VHA”) national office every one to two years,
and pay panels must consider the then-current pay table.
Because the ranges in pay tables, i.e., minimum and
maximum salaries, generally increase every year, later-
hired physicians may have higher salaries than physi-
cians hired before them, which will then be corrected
when the pay panel next convenes.
Appellants Dr. Gayle Gordon and Dr. Teresa Maxwell
are women physicians in the Department of Emergency
Medicine at the Central Arkansas Veterans Healthcare
System (“CAVHS”) in Little Rock, Arkansas. Both Dr.
Gordon and Dr. Maxwell were hired in 2008 as staff
physicians in the emergency department for an annual
pay of $195,000, slightly less than the maximum allowed
by the pay table. J.A. 14. One year later, their pay had
increased to reflect step increases in their base pay. As of
November 2010, they were both due for pay panels to
adjust their market pay. A pay panel did not convene for
Dr. Gordon at that time. On December 21, 2010, a pay
panel convened for Dr. Maxwell and recommended an
increase in base pay and market pay. At that time, under
CAVHS procedure, the pay panel’s recommendation went
to Dr. Margie Ann Scott, CAVHS Chief of Staff, for ap-
proval.
On December 17, 2010, it was announced that the
VHA Central Office was initiating a pay freeze and that
effective that same day, there would be no increases
approved for any physicians’ pay in anticipation of a
forthcoming presidential mandate. J.A. 52. To comply
with the pay freeze, Dr. Scott did not approve the Decem-
ber 2010 pay panel’s recommendation to increase Dr.
Maxwell’s market pay (as well as total pay). J.A. 52.
In early 2012, Dr. Gordon and Dr. Maxwell each filed
complaints with the Equal Employment Opportunity
4 GORDON v. UNITED STATES
Commission (“EEOC”) 1 regarding what they believed to
be unequal compensation. Dr. Gordon alleged that on
February 1, 2012, she became aware that her pay was less
than similarly situated male physicians that she worked
with. J.A. 108–09. Dr. Maxwell, in her complaint filed in
April 2012, alleged she “was subjected to an ongoing
violation of the Equal Pay Act by being paid lower than
male emergency room physicians.” J.A. 117. Both Dr.
Gordon and Dr. Maxwell identified several male doctors
whom they alleged were similarly situated individuals
employed as emergency department physicians that were
being paid more than them. Both Dr. Gordon and Dr.
Maxwell contended that sex was a factor in being paid
less. J.A. 114, 122. In November 2012, an EEOC officer
concluded that Dr. Gordon and Dr. Maxwell could not
prove by a preponderance of the evidence that the reasons
for the salary differences were pretextual, or that unlaw-
ful discrimination was the reason for the alleged dispar-
ate pay. J.A. 108–24.
The VHA pay freeze remained in place until Decem-
ber 2013. As required by the VA Pay Bill, pay panels
continued to meet during the pay freeze, but could not
recommend increases in market pay. In November and
December 2013, before the pay freeze lifted, pay panels
convened for Drs. Gordon and Maxwell. J.A. 53. For both
doctors, the pay panel recommended no change in the
1 The EEOC is a separate avenue of relief for an
Equal Pay Act claim. An individual alleging an Equal
Pay Act violation may go directly to court or file an EEOC
charge. See generally Ledbetter v. Goodyear Tire & Rub-
ber Co., 550 U.S. 618, 640 (2007) (noting that “the [Equal
Pay Act] does not require the filing of a charge with the
EEOC or proof of intentional discrimination”), superseded
by statute on other grounds, Lilly Ledbetter Fair Pay Act
of 2009, Pub. L. No. 111-2 (2009).
GORDON v. UNITED STATES 5
market pay rate because their roles and duties had not
changed. Both doctors received increases in base pay in
accordance with their longevity. Both Dr. Maxwell’s and
Dr. Gordon’s increases were subsequently approved.
After the pay freeze lifted in December 2013, pay pan-
els convened in February 2014 for Dr. Gordon and Dr.
Maxwell to award the delayed market pay increase that
they would have received in 2010 but for the pay freeze.
Both doctors received increases in market pay to make
their compensation “more in line with other emergency
department physicians.” J.A. 54. With this post-freeze
market pay increase, both doctors were restored to the
middle of the emergency department salary spread.
J.A. 22.
In October of 2011, Dr. Gordon and Dr. Maxwell
brought suit in the Court of Federal Claims (“Claims
Court”), alleging that the pay discrepancies between
Appellants and their male colleagues violated the Equal
Pay Act (“EPA”). 2 Gordon v. United States, 130 Fed. Cl.
604 (2017). Their discrimination case relied partly on
evidence relating to Dr. Iftikhar Ali, another CAVHS
physician who was hired at about the same time as Appel-
lants to an identical position making the same salary, but
received a pay raise after one year that Appellants did not
receive. Id. at 606–07. Their case also relied on the fact
that Dr. Gordon and Dr. Maxwell did not receive their
biannual raises in 2010, while male doctors in the same
2 Appellants initially filed suit in the Eastern Dis-
trict of Arkansas. See Gordon v. Dep’t of Veterans Affairs,
No. 4:11-cv-00734-BSM (E.D. Ark. Oct. 5, 2011). The case
was subsequently transferred to the Court of Federal
Claims. See Gordon v. United States, No. 1:12-cv-00208-
RHH (Fed. Cl. Mar. 30, 2012); Gordon v. Dep’t of Veterans
Affairs, No. 4:11-cv-00734-BSM, Dkt. No. 12 (E.D. Ark.
Jan. 27, 2012) (order transferring case).
6 GORDON v. UNITED STATES
department had. The parties filed cross-motions for
summary judgment, with the Government arguing that
Appellants had failed to prove a prima facie case of an
EPA violation, or alternatively, that the disparities in pay
were due to reasons other than sex. The Claims Court did
not expressly analyze whether Dr. Gordon and Dr. Max-
well had established a prima facie case of salary discrimi-
nation under the EPA, and instead concluded that they
had “not shown that discrimination was the reason for Dr.
Ali’s raise one year after being hired, or for the VA’s
delays in processing their raises in time to avoid the pay
freeze.” Gordon, 130 Fed. Cl. at 606. Dr. Gordon and Dr.
Maxwell appeal. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(3).
II. DISCUSSION
We review a decision of the Claims Court granting
summary judgment de novo. Ladd v. United States, 713
F.3d 648, 651 (Fed. Cir. 2013). Rule 56(a) of the Rules of
the United States Court of Federal Claims states that
summary judgment is appropriate “if the movant shows
that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of
law.”
To make a prima facie case of an EPA violation, a
plaintiff must show that the employer paid employees of
opposite sexes different wages for equal work for jobs that
require “equal skill, effort, and responsibility, and which
are performed under similar working conditions.” 29
U.S.C. § 206(d)(1); Corning Glass Works v. Brennan, 417
U.S. 188, 195 (1974). This court’s decision in Yant v.
United States further requires that, as part of the prima
facie case, an EPA plaintiff bears the burden of showing
“that discrimination based on sex exists or at one time
existed.” 588 F.3d 1369, 1373 (Fed. Cir. 2009). Once an
employee in an EPA case establishes a prima facie case of
salary discrimination, the burden of persuasion shifts to
GORDON v. UNITED STATES 7
the employer to prove that the wage disparity was justi-
fied by one of four permissible reasons: (1) a seniority
system; (2) a merit system; (3) a pay system based on
quantity or quality of output; or (4) a disparity based on
any factor other than sex. 29 U.S.C. § 206(d)(1).
We begin with Appellants’ prima facie case of salary
discrimination. Appellants must demonstrate that the
CAVHS pays different wages to employees of the opposite
sex; that the employees perform equal work on jobs re-
quiring equal skill, effort, and responsibility; and that the
jobs are performed under similar working conditions. See
Corning Glass Works, 417 U.S. at 195. Concerning
whether the CAVHS pays different wages to employees of
the opposite sex, Appellants point to Dr. Iftikhar Ali,
whom they alleged was hired to an identical position as
Appellants and initially paid the same salary. Dr. Ali
received a market pay raise from the VA after only one
year, whereas Appellants had only received step increases
in base pay for their first two years, without any increase
in market pay. J.A. 15. Appellants also point to a pay
table identifying ten male ER physicians who were paid
more than they were. J.A. 22. In light of Dr. Ali and the
pay table, Appellants have raised a genuine issue of
material fact as to whether the CAVHS pays different
wages to employees of the opposite sex.
The next facet of the prima facie case is whether the
male employees performed equal work on jobs requiring
equal skill, effort, and responsibility, and whether the
jobs were performed under similar working conditions. A
“bird’s eye” comparison based on the same general duties
cannot establish equal work. Wheatley v. Wicomico Cty.,
390 F.3d 328, 333–34 (4th Cir. 2004) (“We decline to hold
that having a similar title plus similar generalized re-
sponsibilities is equivalent to having equal skills and
equal responsibilities.”). Job titles or job classifications
are not necessarily determinative in determining whether
work is substantially equal for purposes of an EPA claim;
8 GORDON v. UNITED STATES
rather, the controlling factor is the actual job duties of
Appellants and their comparators. See Santiago v. United
States, 107 Fed. Cl. 154, 161 (2012). Importantly, “jobs
need not be identical in every respect before the Equal
Pay Act is applicable.” Corning Glass Works, 417 U.S. at203 n.24.
Here, Appellants point to Dr. Ali, who was hired at
the same time and for the same position as Appellants, as
an example of a male employee performing similar job
duties under substantially the same working conditions.
Appellants additionally point to a statement from Dr.
James Rasch, head of the ER department, as evidence
that the male doctors were performing substantially
similar work; Dr. Rasch stated that “basically [ER physi-
cians] all do the same type of work, but their qualifica-
tions may—there may be some variation in their
qualifications.” J.A. 23. Appellants also point to Chief of
Staff Dr. Margie Scott’s statement that “[t]he work pro-
vided by each of the physicians within the emergency
department I would agree is equal in amount and sched-
uling. I’m not aware of any differences in the work
schedules.” J.A. 24.
The Government contends that Appellants incorrectly
rely on three doctors—Drs. Kyser, Rayaz, and Snod-
grass—because these doctors either are in a supervisory
role, and thus have additional duties and responsibilities,
or have a different role and less responsibility. Appellee’s
Br. 22, 25–26. This is an affirmative defense argument.
Assuming the Government is correct, Appellants have
alleged the existence of the seven other male doctors,
including Dr. Ali, who Appellants allege are paid more
than Appellants for substantially equal work. See, e.g.,
Appellants’ Opening Br. 11. The Claims Court made no
finding as to whether these male doctors are proper
comparators.
GORDON v. UNITED STATES 9
To survive summary judgment, Appellants need only
raise a genuine issue of material fact as to whether the
male doctors are comparators. The Claims Court effec-
tively highlighted that evidence relating to Dr. Ali raises
a genuine issue of material fact. Gordon, 130 Fed. Cl. at
611 (“Dr. Ali, a male colleague who was hired at the same
time as plaintiffs, received a raise after his first year of
employment while plaintiffs[] were ineligible for raises
until 2010. The reason for this apparent disparity re-
mains unclear and essentially unexplained by the par-
ties.”); see also U.S. EEOC v. Md. Ins. Admin., 879 F.3d
114, 122 (4th Cir. 2018) (“The undisputed facts in the
present record establish that each claimant earned less
than at least one male comparator performing substan-
tially equal work. These undisputed facts alone satisfy
the EEOC’s prima facie burden.”). 3 The record shows that
Appellants have raised a fact issue that CAVHS employ-
ees of different sex performing equal work on jobs requir-
ing equal skill, effort, and responsibility under similar
working conditions were paid differently.
To make their prima facie case, however, Appellants
must also establish that the pay differential between the
similarly situated employees is “historically or presently
based on sex.” Yant, 588 F.3d at 1372. Appellants point
to no evidence that the pay differential complained of was
based on sex, either historically or presently. Instead,
3 To be clear, merely identifying one comparator
alone may not necessarily establish a prima facie case of
an EPA violation in every case. See, e.g., Brousard-
Norcross v. Augustana Coll. Ass’n, 935 F.2d 974, 979 (8th
Cir. 1991) (affirming summary judgment and finding that
“a submissible Equal Pay Act claim has not been estab-
lished” where “the plaintiff’s salary is marginally smaller
than one comparator and marginally larger than another
comparator”).
10 GORDON v. UNITED STATES
Appellants argue that the evidence of clear pay disparities
between Appellants and the similarly situated male
doctors permits a fact finder to draw an inference that
discrimination based on sex exists or existed. Reply Br.
6–7. This court in Yant, however, held that plaintiffs bear
the burden of showing that the complained-of pay differ-
ential is based on sex; allowing a plaintiff to satisfy this
requirement merely through an inference drawn from the
statutory elements of the prima facie case under the EPA
is not sufficient. Thus, because Appellants fail to estab-
lish a prima facie case of an EPA violation, 4 summary
judgment is appropriate.
4 The Government further argues that, even if Ap-
pellants had successfully established their prima facie
case, the Claims Court correctly found the pay discrepan-
cy to be, at least partly, based on a factor other than sex.
Appellee’s Br. 31. Specifically, the record reflects that the
VHA pay freeze that lasted from December 2010 to De-
cember 2013 prevented Appellants from receiving market
pay raises during that period that would have brought
them closer to their male peers. The Government asserts
that, but for the pay freeze, the pay panel’s recommended
pay increase for Dr. Maxwell in 2010 would have made
her pay equal to three of the male comparators on which
she relies. See J.A. 22, 52.
We note that the pay freeze does not explain why Dr.
Ali received a raise in 2009, a year earlier than the simi-
larly situated and simultaneously hired Appellants were
even considered for a raise. As noted above, the Claims
Court recognized that the Government provided no expla-
nation in the record for Dr. Ali. Gordon, 130 Fed. Cl. at
611. Even so, the evidence in the record does not support
a finding that the delay in Dr. Gordon’s and Dr. Maxwell’s
raises, as opposed to Dr. Ali’s early raise, was based on
sex. Yant, 588 F.3d at 1372.
GORDON v. UNITED STATES 11
AFFIRMED
COSTS
No costs.
United States Court of Appeals
for the Federal Circuit
______________________
GAYLE GORDON, TERESA MAXWELL,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
______________________
2017-1845
______________________
Appeal from the United States Court of Federal
Claims in No. 1:12-cv-00208-RHH, Senior Judge Robert
H. Hodges, Jr.
______________________
REYNA, Circuit Judge, additional views.
I write separately to express my belief that this
court’s holding in Yant v. United States, 588 F.3d 1369(Fed. Cir. 2009), should be revisited and the requirement
that plaintiff prove, as part of their prima facie case
under the Equal Pay Act, that the pay differential is
presently or historically based on sex be reversed. The
Yant requirement that a plaintiff bringing suit additional-
ly show that the complained-of difference in pay is pres-
ently or historically based on sex improperly shifts the
burden from the employer to disprove discrimination to
the plaintiff to prove discrimination. Such a shift is
improper under the statute and at odds with Supreme
Court precedent and the law of other circuits.
2 GORDON v. UNITED STATES
In its seminal case on the Equal Pay Act, 29 U.S.C.
§ 206(d) et seq. (“EPA”), the Supreme Court in Corning
Glass Works v. Brennan characterized the EPA as “broad-
ly remedial,” and instructed courts to construe and apply
it “so as to fulfill the underlying purposes which Congress
sought to achieve”—namely, to “remedy what was per-
ceived to be a serious and endemic problem of [sex-based]
employment discrimination in private industry.” 417 U.S.
188, 195, 208 (1974). The EPA’s basic structure and
operation is “straightforward”: the plaintiff first carries
the burden of showing 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 simi-
lar working conditions.” Id. at 195. To establish a prima
facie case of wage discrimination under the EPA, “it is
merely necessary that the plaintiff show that an employer
paid different wages to employees of the opposite sex for
substantially equal work.” Molden v. United States, 11
Cl. Ct. 604, 610–11 (1987). Once the plaintiff has put
forth this prima facie case, the burden shifts to the em-
ployer “to show that the [pay] differential is justified
under one of the Act’s four exceptions.” Corning Glass
Works, 417 U.S. at 196.
Yant imposes an extra-statutory requirement onto the
EPA plaintiff’s prima facie case. As noted by then-Circuit
Judge Prost in her concurrence, the decision in Yant
“imports a novel requirement into the plaintiff’s prima
facie case in granting summary judgment.” Yant, 588
F.3d at 1375 (Prost, J., concurring) (emphasis added).
Before Yant, the EPA simply required a plaintiff to show
wage discrimination between employees of different sex—
i.e., that employees of different sex were paid differently
for the same work under substantially similar conditions.
Yant requires not only that the plaintiff show wage dis-
crimination, but also sex discrimination—i.e., that the
reason for the difference in pay is due to sex.
GORDON v. UNITED STATES 3
Yant concerned a mixed-sex group of plaintiffs. Nurse
practitioners employed by the United States Department
of Veterans Affairs brought suit under the EPA alleging
that, as predominantly female nurse practitioners, they
were paid at a lower rate than the predominantly male
physician assistants, performing jobs of equal skill, effort,
and responsibility under similar working conditions.
Yant v. United States, 85 Fed. Cl. 264, 266 (2009). The
summary judgment record revealed that the plaintiffs’
class was composed of 80% females, while the higher-paid
physician assistants were 40% female. Id. at 272. The
Court of Federal Claims granted summary judgment for
the Government, concluding that although a group of
plaintiffs does not have to be exclusively one gender to
bring an EPA claim, the Yant plaintiffs had failed to
establish their prima facie case; broadly, the fact that
almost half of the putatively disadvantaged sex partici-
pated in the higher-paid group was sufficient to deny
liability at summary judgment because the plaintiffs
failed to establish that the employer paid different wages
to employees of opposite sexes. See id.This court affirmed on different grounds. Relevant to
this court’s analysis was the fact that the two positions at
issue were on different pay scales, one national (the
physician assistant pay scale) and one regional (the nurse
practitioner pay scale). The differing pay scales resulted
in the salary for nurse practitioners exceeding that of the
physician assistants in some parts of the country, and vice
versa in other parts. Yant, 588 F.3d at 1373. The court
concluded that “the pay differential between [nurse prac-
titioners] and [physician assistants] is based on two
separate pay scales,” and that the plaintiffs “did not
present any evidence that the decision to pay [physician
assistants] on a national scale and [nurse practitioners]
on a regional scale had any basis in sex, historically or
presently.” Id. The majority acknowledged that EPA
plaintiffs need not present proof of discriminatory intent,
4 GORDON v. UNITED STATES
but explained that they must nevertheless make a show-
ing that wage “discrimination based on sex exists or at
one time existed” as part of their prima facie case. Id.The court concluded that the plaintiffs had failed to
establish a prima facie case of such discrimination be-
cause “[m]ere reliance on gender ratios of two groups [of
employees] does not establish discrimination based on
sex,” and because petitioners presented no evidence that
the wage differential between the two employee groups
was based upon sex. Id. at 1373–74. Because the plain-
tiffs failed “to raise a genuine issue of material fact that
the pay differential between [nurse practitioners and
physician assistants] is based on sex,” this court found
that the plaintiffs “failed to make a prime [sic] facie case.”
Id. at 1374.
Prior to Yant, once a plaintiff established a prima fa-
cie case under the EPA, discrimination based on sex was
presumed. E.g., Cooke v. United States, 85 Fed. Cl. 325,
342 (2008) (“Once the plaintiff has met this initial burden,
‘the statute presumes discrimination and requires defend-
ant to proffer successfully an affirmative defense’ based
on one of the statute’s four exceptions.” (emphasis added)
(quoting Moorehead v. United States, 84 Fed. Cl. 745, 747
(2008))); see also Brinkley-Obu v. Hughes Training, Inc.,
36 F.3d 336, 344 (4th Cir. 1994) (“Under the Equal Pay
Act, the plaintiff creates a presumption of discrimination
when she establishes a prima facie case.”). In other
words, the prima facie case of a pay differential between
similarly situated employees of different sex itself consti-
tutes evidence of discrimination based on sex.
Yant decidedly changed this standard by requiring, as
part of the prima facie case, evidence that the pertinent
pay differential is based on sex. Compare Moorehead, 84
Fed. Cl. at 748 (“[T]he Government’s main argument is
that the reasons for any pay disparity are not gender
based. This argument, however, is not pertinent to
whether plaintiff can establish a prima facie case.” (cita-
GORDON v. UNITED STATES 5
tion omitted)), and Molden, 11 Cl. Ct. at 610 (“Defendant
contends that an element of establishing a prima facie
case is that the wage disparities of an Equal Pay Act
violation must be based on sex discrimination. This
contention is not supported by the language of the Act or
from judicial interpretations of the law.”), with Yant, 588
F.3d at 1374 (“Because the Yant plaintiffs fail to raise a
genuine issue of material fact that the pay differential
between [nurse practitioners] and [physician assistants]
is based on sex, they have failed to make a prime [sic]
facie case.”), and Branch v. United States, 101 Fed. Cl.
411, 414 (2011) (“To establish an EPA violation, a plaintiff
must show (1) ‘past or present discrimination based on
sex,’ and (2) that he ‘performed work equal in skill, effort
and responsibility’ to that of a comparator.” (quoting
Yant, 588 F.3d at 1374)).
Yant shifts the burden onto the plaintiff to affirma-
tively prove discrimination, rather than on the employer
to disprove discrimination. The Supreme Court in Corn-
ing Glass made clear that the EPA plaintiff has the
burden of initially showing that the employer pays work-
ers of one sex more than workers of the opposite sex for
equal work. 417 U.S. at 196. After this prima facie case
is established, the burden of both production and persua-
sion shift to the employer to show, as an affirmative
defense, that the pay differential is due to one of four
reasons permitted under the statute, namely a seniority,
merit, or production output system, or any differential
based on a factor other than sex. Id. at 196–97; Brinkley-
Obu, 36 F.3d at 344. “[T]he risk of nonpersuasion rests
with the employer on the ultimate issue of liability,”
Fallon v. Illinois, 882 F.2d 1206, 1213 (7th Cir. 1989), and
accordingly, once the plaintiff raises a prima facie case of
pay discrimination, unless the employer can prove that
“one or more affirmative defenses are applicable . . . , the
plaintiff will prevail.” EEOC v. Md. Ins. Admin., 879 F.3d
114, 120 (4th Cir. 2018).
6 GORDON v. UNITED STATES
Thus, Yant’s requirement that the plaintiff prove that
the complained-of pay differential is based on sex is
nonsensical given the employer’s clear burden under the
statute and Corning Glass to disprove that any pay differ-
ential between employees of opposite sex performing
substantially the same work is based on sex. No other
circuit imposes such a requirement on the plaintiff. See,
e.g., Rizo v. Yovino, 887 F.3d 453, 459 (9th Cir. 2018); Md.
Ins. Admin, 879 F.3d at 120; Mickelson v. N.Y. Life Ins.
Co., 460 F.3d 1304, 1312 (10th Cir. 2006); Stanziale v.
Jargowsky, 200 F.3d 101, 107–08 (3d Cir. 2000); Brinkley-
Obu, 36 F.3d at 344; Plemer v. Parsons-Gilbane, 713 F.2d
1127, 1136 (5th Cir. 1983).
Yant’s requirement that an EPA plaintiff must af-
firmatively prove that a pay differential between employ-
ees of different sexes is historically or presently based on
sex is at odds with the broadly remedial nature of the
EPA to redress wage discrimination between employees of
different sex. Because its holding is counter to the statu-
tory structure, the Supreme Court’s precedent, and the
law of other circuits, I urge this court to consider revisit-
ing this precedent.