Argument Preview

One case being argued in November at the Federal Circuit attracted an amicus brief. In this case, Boyer v. United States, the Federal Circuit will review a decision by the Court of Federal Claims granting the government’s motion for summary judgment and denying the plaintiff’s motion for summary judgment. Both motions related to a pay discrimination claim under the Equal Pay Act, and the appeal relates primarily to the plaintiff’s argument that the trial court relied only on salary history to establish an affirmative defense. This is our argument preview.

The plaintiff, Leslie Boyer, a pharmacist at Birmingham VA Medical Center, argues in her opening brief that the trial court erred in granting summary judgment in favor of the government on her claim for pay discrimination in violation of the EPA. Boyer contends the Federal Circuit should “join the majority of Circuits and hold that reliance on a prior salary alone is insufficient to establish an affirmative defense” to a claim under the Equal Pay Act. Boyer claims the federal statute the government used to decide her salary “does not authorize reliance on prior pay” alone when determining a new hire’s salary. Instead, Boyer states, the VA Handbook demands the agency “‘consider such things as the number of on duty personnel in the category under consideration and their pay rates’ along with ‘Possible employee . . . relations problems which may result . . . and alternatives to using this authority’ to avoid creating pay inequities.” Boyer argues that, because the government did not consider these factors before setting a salary that created a gender pay disparity, “the trial court erred in finding that the Agency’s purported reliance on the VA Handbook establishes an affirmative defense under the EPA.” Boyer contends the trial court further erred by “failing to recognize that the Handbook requires that prior to using existing pay, the Agency must consider how to avoid creating pay disparities that would violate the EPA.” Boyer also claims “there is no inherent conflict between the federal employee pay-setting statutes, the VA Handbook, and the EPA.” According to Boyer, the Federal Circuit should reverse the trial court’s decision and either enter judgment in favor of Boyer or alternatively remand the case for trial.

In its response brief, the government asserts the Federal Circuit “should find that the United States did not violate the Equal Pay Act and affirm the judgment.” First, the government argues, “[a]n employer may defeat a prima facie Equal Pay Act claim by showing that any pay differentials is ‘based on any other factor other than sex.'” Accordingly, the government argues, its use of “prior pay alone” to determine new pharmacist’s salaries was authorized by Congress. Alternatively, the government contends, “the trial court . . . correctly held that the agency determined that Ms. Boyer and the male comparator possessed ‘superior qualifications,’ in order to depart upwardly from the minimum rate of pay” and only then “considered the candidate’s prior existing salary to determine the step of the initial pay rate.” It argues these actions are “consistent” with both the VA Handbook and related federal statutes. Finally, the government maintains, the Federal Circuit should not adopt “a standard that would preclude consideration of prior pay as a ‘factor other than sex’ affirmative defense to an EPA violation” because Congress intended to allow prior pay to be a “relevant factor in setting initial salaries.”

In her reply brief, Boyer maintains the government’s salary provisions “must be harmonized with the text of the EPA and with its purpose of eliminating wage disparities between similarly situated male and female employees.” Boyer asserts, moreover, that the existence of federal pay statutes and the fact that the VA Handbook references salary history “does not eliminate the requirement that agencies comply with the EPA” or “allow the government to provide lower protections for workers.” According to Boyer, “the EPA does not address what factors employers may consider in setting initial pay,” but instead “insists that employers may not pay male workers a higher salary than similarly situated female workers for similar work.” Boyer rejects the government’s assertion that “there is uncontroverted evidence demonstrating that the Birmingham VAMC considered prior pay, as well as experience and education.” She points to testimony from government employees she says established that “prior pay was the only factor” they considered. Finally, Boyer argues, the government incorrectly shifted the burden to her to prove “intentional discrimination.” Instead, she argues, there is a “heavy” burden on a defendant to “prove its affirmative defense” when a prima facie case of pay discrimination has been established under the EPA.

The National Women’s Law Center and 46 additional organizations filed an amicus brief supporting reversal. Their brief expresses concerns that “relying on salary history perpetuates sex discrimination and the resulting harms faced by all women” and that salary history “is not an objective measure of job-related qualifications.” Their brief also argues gender pay disparities are what the “EPA was enacted to combat.” They further assert “nothing in the federal appointment or pay-setting authorities creates an exemption for the [VA] from the requirements of the EPA.” As a result, they argue, the court should reverse the trial court’s decision.

This case will be argued on Thursday, November 9. We will report on any developments.