TABLE OF AUTHORITIES.................................................................. ii
STATEMENT OF INTEREST............................................................... 1
STATEMENT OF THE ISSUES............................................................ 2
STATEMENT OF THE CASE.............................................................. 3
A. Statement
of Facts....................................................................... 3
B. District
Court’s Decision.......................................................... 12
ARGUMENT....................................................................................... 15
I. The
plaintiffs adduced sufficient evidence to support a reasonable jury finding that
USSF violated the EPA by compensating them at a lower rate of pay to perform
the same job as the men’s team.................................................................. 15
II. The
plaintiffs’ evidence would support a reasonable jury finding of actionable pay
discrimination under Title VII...... 34
CONCLUSION.................................................................................... 38
CERTIFICATE OF COMPLIANCE................................................... 40
CERTIFICATE OF SERVICE
Cases
Am.
Bankers Ass’n v. Gould, 412 F.3d 1081 (9th Cir. 2005)................ 20
Bartelt
v. Berlitz Sch. of Languages of Am., 698 F.2d 1003 (9th Cir. 1983)...................................................................................................... 35
Bence
v. Detroit Health Corp., 712 F.2d 1024 (6th Cir. 1983)........ 19, 20
Bostock v. Clayton Cnty., Ga., 140 S. Ct. 1731 (2020).......................... 35
Bulthuis v. Rexall Corp., 789 F.2d 1315 (9th Cir. 1985)...................... 21
City
of L.A., Dep’t of Power & Water v. Manhart, 435 U.S. 702
(1978) 37
City
of Pomona v. SQM N. Am. Corp., 750 F.3d 1036 (9th Cir. 2014) 21
Cnty.
of
Washington v. Gunther, 452 U.S. 161 (1981)......................... 36
Corning Glass Works v. Brennan,
417 U.S. 188 (1974)........................ 34
Dominguez-Curry v. Nev. Transp. Dep’t,
424 F.3d 1027 (9th Cir. 2005)............................................................................................................... 21
Ebbert v. Nassau
Cnty.
No. 05-CV-5445, 2009 WL
935812
(E.D.N.Y. March 31, 2009)..................................................... 13,
24-25
EEOC v. Health
Mgmt. Grp.,
No. 5:09-CV-1762, 2011 WL 4376155
(N.D. Ohio Sept. 20, 2011)................................................................ 19
EEOC v. Kettler
Bros., Inc.,
Nos. 87-3069, 87-3083,
1988 WL 41053
(4th Cir. 1983) (unpub.).................................................................... 26
Frank
v. United Airlines,
Inc., 216 F.3d 845 (9th Cir. 2000)................ 37
Freyd
v. Univ. of Or.,
990 F.3d 1211 (9th Cir. 2021)........................... 36
Kauffman v. Manchester Tank & Equip. Co., No. 98-35218, 1999 WL 1103357 (9th Cir. Dec. 3, 1999)
(unpub.)................................... 21, 22
Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)............................................................................................................... 20
McGinest v. GTE Serv. Corp., 360 F.3d 1103 (9th Cir.
2004).............. 21
Miller v. Int’l Revenue Serv., 829 F.2d 500 (4th
Cir. 1987)................. 29
Morgan v. United
States Soccer Fed’n,
Inc., No. 2:19-cv-1717,
2019 WL 7166978 (C.D. Cal. Nov. 8, 2019)..................................... 24
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)............................... 35
Primiano
v. Cook, 598 F.3d 558 (9th Cir. 2010)................................... 21
Rebel Oil Co. v. Atl. Richfield Co., 51 F.3d 1421, 1436 (9th Cir. 1995) 22
Reza v. Pearce,
806 F.3d 497 (9th Cir. 2015)........................................ 15
Rizo v. Yovino, 950 F.3d 1217
(9th Cir.) (en banc), cert. denied,
141 S. Ct. 189 (2020).................................................................... 17,
34
Stanley
v. Univ. of S. Cal.,
178 F.3d 1069 (9th Cir. 1999)................... 17
T.W.
Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n,
809 F.2d 626
(9th Cir. 1987).................................................................................... 21
Thibodeaux-Woody
v. Houston Cmty. Coll., 593 F. App’x 280
(5th Cir. 2014).................................................................................... 33
Trans
World Airlines, Inc., v. Thurston, 469 U.S. 111, 121 (1985)...... 37
United States v. CB & I Constructors, Inc.,
685 F.3d 827 (9th Cir. 2012)............................................................................................................... 29
Zetwick v. Cnty. of Yolo, 850 F.3d 436 (9th Cir. 2017)........................ 15
Statutes
Equal
Pay Act, 29 U.S.C. § 206(d)(1)............................ 1, 16, 17, 24,
36
29 U.S.C. § 206(d)(2)....................................................................... 33
Title
VII of the Civil Rights Act, 42 U.S.C. §§ 2000e.......................... 1
42 U.S.C. §§ 2000e2(a)(1).......................................................... 34,
35
42 U.S.C. § 2000e-2(h).................................................................... 36
Other Authorities
29
C.F.R. § 1620.10............................................................................... 18
29
C.F.R. § 1620.12(a).......................................................................... 18
29 C.F.R. § 1620.23......................................................................... 17,
33
EEOC Compliance
Manual, § 10-IV (Dec. 2000), available at https://www.eeoc.gov/laws/guidance/section-10-compensation-discrimination#10-IV%20COMPENSATION%20DISCRIMINATION...................................................................... 18
Fed.
R. App. P. 29(a)(2)......................................................................... 2
Ninth
Cir. Jury Instructions Comm., Manual of Model Civil Jury Instructions (2017
ed.; last updated Mar. 2021)............................. 30
Congress charged the Equal Employment
Opportunity Commission (EEOC) with administering and enforcing the Equal Pay
Act, 29 U.S.C. § 206(d)(1) (“EPA”), and Title VII of the Civil Rights Act
of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”). This case raises
important questions under both statutes.
The district court held that the plaintiffs,
current and former members of the senior U.S. women’s soccer team (WNT) and
reigning World Cup champions, could not establish a prima facie case of pay
discrimination under the EPA or Title VII because they earned more overall than
members of the senior U.S. men’s soccer team (MNT) from 2015-19. Although the
WNT’s expert calculated that the women’s team would have earned millions more during
that period had they been paid under the terms of the MNT’s collective
bargaining agreement, and the undisputed record evidence shows the unequal availability
of bonuses to the women in nearly all game categories, the district court threw
out both claims on summary judgment. In so ruling, the court deemed the
plaintiffs to have rejected proposals never offered to them, relied on several legally
irrelevant factors, conflated one element of an affirmative defense with the
plaintiffs’ prima facie case, and generally credited the defendant’s evidence
over the plaintiffs—all without resolving pending motions challenging various
aspects of the expert reports. This Court should correct these errors.
Because the EEOC has a strong enforcement
interest in the proper analysis of pay discrimination claims under the EPA and
Title VII, it offers its views to the Court pursuant to Federal Rule of
Appellate Procedure 29(a)(2).
1. Whether the district court erred in holding
that the plaintiffs could not establish a prima facie case of discrimination
under the EPA where they offered evidence that their rate of compensation was
lower than the MNT’s, but they earned more in total because they won
significantly more—and more important—games than the MNT, including two World
Cup tournaments.
2. Whether the district court erred in granting
summary judgment to the defendants on the plaintiffs’ Title VII disparate-pay claim
where a reasonable jury could find that the women would have earned $64 million
more had they been working under the MNT’s collective bargaining agreement.
Defendant United States Soccer Federation, Inc.
(USSF) is a not-for-profit, tax-exempt corporation whose purpose is, inter
alia, to develop and promote soccer in the United States. 3-ER-381-82. USSF
employs the WNT and the MNT to play in international games and tournaments. 6-ER-1193.
Both teams play “friendlies,” which are exhibition games played outside of any
recognized soccer competition (6-ER-1203); Federation Internationale de
Football Association (FIFA) World Cup-qualifying and tournament games; and
various other tournaments. 3-ER-383-87. The WNT, but not the MNT, also competes
in the Olympic Games and associated qualifying matches. 3-ER-383. Men’s Olympic
soccer is an age-restricted, under-23 tournament, so the MNT, as a senior team,
is not eligible to play. 3-ER-398.
The two teams have separate unions and are
governed by separate collective bargaining agreements (CBAs).3-ER-399; Opening Brief for Plaintiffs-Appellants (Opening-Br.)
10 n.4. While the terms of the respective agreements differ, both CBAs provide
for two basic kinds of compensation for the players: (1) one or more forms of
base pay for participating in games, not tied to outcome; and (2) variable pay
in the form of performance bonuses. 4-ER-763; 4-ER-667; 4-ER-807-809. On the
WNT, the form of base pay varies depending on whether a player is contracted or
non-contracted. Contracted players receive annual base salaries plus
benefits including health insurance, maternity leave, severance and injury
protection, and childcare allowances, regardless of how many games they play.4-ER-721, 733-34. Non-contracted WNT players and all
MNT players receive game appearance fees pursuant to a “pay-to-play”
arrangement, in which they are paid for games for which they are selected. 4-ER-783;
4-ER-731; 3-ER-401. In 2015 and 2016, the WNT had twenty-four contracted
players (4-ER-659), twenty in 2017, nineteen in 2018, and eighteen in 2019.
4-ER-721. There is no limit on the number of WNT non-contracted players
eligible for a particular roster. 4-ER-722. (There are no contracted MNT
players.)
For all games other than World Cup matches,
the non-contracted women players received appearance fees of at most $3,240 per
player before 2017, and up to $4,000 per game since 2017, while the MNT players
received $5,000 per game. 4-ER-660 & 4-ER-700; 4-ER-763; 4-ER-807. For World
Cup games, non-contracted women earned up to $3,240 before 2017 and $4,500
since 2017 per game. 4-ER-660 & 4-ER-700; 4-ER-763. The MNT players
received $6,875 per game. 4-ER-807. Although the contracted women did not
receive a per-game appearance fee on top of their salaries, the highest-paid salaried
women earned a per-game average of $4,000 from 2015-19, with health insurance
and other benefits worth under $250 per player per game.
The $4,250 the salaried players earned was lower than the MNT per-game earnings
of $5,000 to $6,875. 4-ER-807; see also Opening-Br. 47 (Table 2).
With respect to variable, performance-based
pay, both the WNT’s and the MNT’s CBAs allow players to earn performance
bonuses for individual games, with the amounts varying by the type of game,
FIFA ranking of the opponent, and the game result (i.e., winning or tying). The
record reflects that bonuses available to the WNT were lower in nearly every
instance, whether for winning a friendly, placing well or winning tournaments,
or qualifying and performing well in the World Cup. See Opening-Br. 41
(Table 1); 4-ER-667; 4-ER-763; 4-ER-807-09.
During the class period (2015-19), the WNT was
more successful as a team than the MNT. The MNT played in eighty-seven games, winning
forty-six (52.9%), tying sixteen (18.4%), and losing twenty-five (28.7%). 2-ER-97.
They did not qualify for the 2018 World Cup. 5-ER-978. During the same time
frame, the WNT played 111 games—winning ninety-two (82.9%), tying twelve
(10.8%), and losing only seven (6.3%). 2-ER-98; 5-ER-906-08. They won several
major tournaments and qualified for and won two consecutive World Cups, in 2015
and 2019. 5-ER-906-08.
Table 1:
WNT/MNT
Performance Records During Class Period
|
|
Total
Games
|
Won
|
Tied
|
Lost
|
World
Cups/
Quals./Tournament
Wins
|
|
WNT
|
111
|
92
|
12
|
7
|
2/2/2
|
|
MNT
|
87
|
46
|
16
|
25
|
1/0/0
|
The plaintiffs’ expert, economist Finnie B. Cook, concluded
that from 2015-19, WNT players earned a lower rate of pay than MNT players,
considering all compensation and fringe benefits. 6-ER-1085; 2-ER-102-3. She calculated
that the women would have earned $63,822,242 more working under the MNT CBA than
under their own,
and that each named plaintiff made almost 70% less than she would have if USSF
had paid her according to the same CBA terms as the men. 6-ER-1086; 2-ER-99. Cook’s
analysis assumes equal pay for each type of game, so the hypothetical player
could be male or female—the calculation is what that person would make under
the men’s contract if he/she won X games and Y tournaments. 2-ER-98-99. Cook
valued the fringe benefits included for the contracted players and found it did
not make up for the difference in the larger bonus rate paid to the men. 2-ER-102-03.
After adjusting for the differences in the two contracts, Cook then calculated
the gap between what the women would have made under a CBA equal to the men’s
and what they earned over the class period. 2-ER-103-04.
USSF’s expert, accountant Carlyn Irwin, used a
different approach. Based on USSF compensation spreadsheets, she computed the
total earnings paid to each team from 2015-19, combining fixed pay such as
salaries and appearance fees with variable bonus pay, then dividing by the
number of games each team played in the class period. 4-ER-608-10. As a result,
she concluded, “USSF paid more to members of the WNT and the WNT Players
Association both in total and on a per game basis.” 4-ER-617. According to
Irwin, USSF paid WNT players $24,502,863 to play 111 games from 2015-19, for an
average of $220,747 per game, while it paid MNT players $18,499,615 to play 86
games, an average of $212,639 per game. 4-ER-618. Irwin also determined that,
during the class period, USSF paid more than $1 million to the four
highest-paid women but less than $650,000 to the four highest-paid MNT players.
4-ER-619-20.
USSF also submitted the reports of economist
Justin McCrary, who compared the WNT’s and MNT’s CBAs. 3-ER-416. McCrary
concluded that the CBAs were “qualitatively different from one another” and opined
that neither contract is “systematically better,” with each reflecting tradeoffs
and different risk levels. 3-ER-416, 419-20, 438, 441, 443. McCrary asserted
that the value of the fixed payments the WNT players receive offset the more variable
performance pay that the MNT players may receive. 3-ER-423. McCrary emphasized
that the men would have earned more under the WNT CBA from 2017-19 if they (the
men) performed as they did. 3-ER-420, 439.
The plaintiffs submitted a rebuttal report from
Cook to respond to Irwin’s and McCrary’s methodology and conclusions. Cook
explained that, because Irwin failed to consider the significant difference in
the teams’ respective performances in her calculation of average pay per game,
Irwin’s comparison provides no basis for assessing whether the WNT players were
paid at a lower rate than the MNT players. 2-ER-97. In response to McCrary’s
suggestion that the men’s and women’s pay structures and amounts were too difficult
to compare, Cook countered that, because the CBAs detail the fixed and
performance-based payments to each team, she was able to calculate backpay
damages based on the WNT players’ lower rate of pay “with reasonable economic
certainty.” 2-ER-101. As to her own methodology, Cook explained that her
approach—calculating what the members of the WNT would have earned under the
MNT CBA both collectively and individually and comparing it with their actual
earnings—accounted for the number and type of games the WNT played and the
level of success they achieved. 2-ER-101-04.
WNT players Alex Morgan, Megan Rapinoe, Carli
Lloyd, and Becky Sauerbrunn filed charges with the EEOC in April 2016. 4-ER-623-38.
During the contract negotiations leading to the 2017 WNT CBA, the WNT’s union
explicitly requested compensation from USSF equal to the MNT players. 5-ER-847.
Union Executive Director Rich Nichols emailed USSF’s General Counsel as
follows: “[W]e want the SAME PAY PER GAME compensation as the MNT. This is a
legal requirement and we should not even have to bargain for the USSF to comply
with the law.” 4-ER-639. Nichols added that the WNT’s “demand for ‘equal pay’
is literal; we want at least the same per game WNT Player compensation enjoyed
by the MNT.” Id. USSF refused the WNT union’s demands for the same pay
structure with the same amounts for game bonuses; an attorney for USSF cited
“market realities.” 5-ER-1036; 5-ER-857. Instead, USSF offered the WNT the same
pay-to-play structure as the MNT, with equivalent appearance fees but not the
same dollar amounts for bonuses. 5-ER-834-35. Prior to these negotiations, the
per-game bonuses available under the MOU were even lower compared to the MNT
for all categories of games. 4-ER-667; 4-ER-700.
The EEOC issued right-to-sue letters (6-ER-1172,
1177, 1182, 1187), and the WNT players filed their complaint in March 2019 alleging
EPA and Title VII violations. 6-ER-1211-13. The district court certified two
classes of plaintiffs under Title VII and conditionally certified the
plaintiffs’ collective action under the EPA in November 2019. 6-ER-1132-33;
Opening-Br. 17 n.7.
Both parties moved for summary judgment. 6-ER-1239-40.
Each party also moved to exclude some portion of the other side’s expert
testimony (6-ER-1239; 6-ER-1248), but the court did not address any of these
motions before ruling on summary judgment.
The district court granted summary judgment to
USSF. 1-ER-25. The court concluded that the WNT failed to establish a prima
facie case under the EPA because it did not show that the reason that it was
paid more than the MNT was “due solely, or in material part, to the WNT working
more than the MNT.” 1-ER-22. Citing the calculations in Irwin’s expert report, the
court stated, “[i]t is undisputed that, during the class period, the WNT played
111 total games and made $24.5 million overall, averaging $220,747 per game. By
contrast, the MNT played 87 total games and made $18.5 million overall,
averaging $212,639 per game. Based on this evidence, it appears that … the WNT
both played more games and made more money than the MNT per game. Under these
circumstances, it is not ‘absurd’ to consider the total compensation received
by the players.” Id. (citing Ebbert v. Nassau Cnty., No.
05-CV-5445, 2009 WL
935812, at *3 (E.D.N.Y. March 31, 2009)).
The court acknowledged that the plaintiffs
were paid lower per-game bonuses for friendlies, World-Cup-related games, and
other tournaments. In the court’s view, however, a finding that the unequal
bonuses violated the EPA “ignores other benefits received by the WNT players,
such as guaranteed annual salaries and severance pay—benefits the MNT players
do not receive.” Id. The court explained, “[t]o consider these bonus
provisions in isolation would run afoul of the EPA, which expressly defines
‘wages’ to include all forms of compensation, including fringe benefits.” Id.
The court held that the plaintiffs could not establish they were paid less than
the MNT players “solely by reference to these bonus provisions.” Id.
Without ruling on either party’s motion
regarding the experts, the court rejected the plaintiffs’ expert evidence that
they would have made $64 million more under the MNT’s CBA than they did under
their CBA, noting the defendant’s evidence that the MNT would have made more
under the women’s CBA than they did under theirs. 1-ER-22-23. The court
stated, “merely comparing what each team would have made under the other team’s
CBA—is untenable in this case because it ignores the reality that the MNT and
WNT bargained for different agreements which reflect different preferences, and
that the women explicitly rejected the terms they now seek to retroactively
impose on themselves.” 1-ER-23.
The court pointed out that the WNT requested
bonuses equivalent to those received by the MNT, but USSF refused because the
WNT “was asking for all of the upsides of the MNT CBA (namely higher bonuses)
without any of the drawbacks (e.g., no base salary).” Id. According to
the court, the WNT rejected a pay-to-play proposal “similar” to the MNT CBA in
favor of “some element of” guaranteed compensation. Id. Under the
circumstances, the court said, comparing the CBAs both “fails to account for
the choices made during collective bargaining” and “ignores the economic value
of the ‘insurance’ that WNT players receive under their CBA.” Id. The
court surmised that it was difficult to quantify the benefit the women gained from
a guaranteed salary but emphasized there is “indisputably economic value” to such
a contract. 1-ER-23-24. Thus, the court concluded, the evidence was
insufficient to create a factual issue for trial on the EPA claim. 1-ER-25.
On the Title VII claim, the court stated only
that its holding under the EPA that the plaintiffs failed to demonstrate a
triable issue as to pay discrimination applies equally to the Title VII claim. 1-ER-25.
“[W]hat
is required to defeat summary judgment is simply evidence ‘such that a
reasonable juror drawing all inferences in favor of the respondent could return
a verdict in the respondent’s favor.’” Zetwick v. Cnty. of Yolo, 850
F.3d 436, 441 (9th Cir. 2017) (quoting Reza v. Pearce, 806 F.3d 497, 505
(9th Cir. 2015)). Put simply, the WNT offered sufficient evidence to
support a finding that they received a lower rate of pay to perform the same
job as the MNT.
A trier of fact could find that the respective CBAs, on their
faces, show an overtly sex-based wage system with unequal appearance fees and
bonuses for nearly every category of game. Plaintiffs’ expert Cook calculated that the WNT would
have made nearly $64 million more from 2015-19 had they been able to secure the
same contract as the men. This evidence, if believed by a jury, establishes
that USSF paid its men and women players unequal rates of pay that, absent a
defense, would violate both the EPA and Title VII.
The EPA makes it unlawful for an employer to
“pay[ ] wages to employees … at a rate less than the rate at which he 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). Once
the plaintiff has made this showing, the employer can avoid liability only by
proving that the different payment to employees of opposite sexes was made
pursuant to one of four statutory “exceptions”: “(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.” Id.
Establishing any of these defenses requires an employer to “prove ‘not simply
that the employer’s proffered reasons could explain the wage disparity,
but that the proffered reasons do in fact explain the wage disparity.’” Rizo v. Yovino, 950 F.3d
1217, 1222 (9th Cir.) (en banc), cert. denied, 141 S. Ct. 189
(2020) (citation omitted). The creation of unequal rates of pay through
the collective bargaining process does not qualify as an exception or
constitute a defense available to an employer for violations of the Act. 29 C.F.R.
§ 1620.23.
To
prove an EPA violation, the WNT players had the burden of establishing a prima facie
case of discrimination by showing that employees of the opposite sex were paid
different wages for equal work. Stanley v. Univ. of S. Cal., 178
F.3d 1069, 1073-74 (9th Cir. 1999). At this stage of the litigation, it is
undisputed that the respective team members perform substantially equal work.
Opening-Br. 15 & 27 n.8. Thus, the only issue before this Court is whether
the WNT players met their prima facie burden of demonstrating that their rate
of pay is less than that of the MNT players.
The EPA itself defines neither “wages” nor
“wage rate.” The EEOC’s interpretive regulations define the term “wage ‘rate,’”
as used in the EPA, to be “the standard or measure by which an employee’s wage
is determined and is considered to encompass all rates of wages whether
calculated on a time, commission, piece, job incentive, profit sharing, bonus,
or other basis.” 29 C.F.R. § 1620.12(a). “Wages,” in turn, include “all
forms of compensation irrespective of the time of payment, whether paid
periodically or deferred until a later date, and whether called wages, salary,
profit sharing, expense account, monthly minimum, bonus, uniform cleaning
allowance, hotel accommodations, use of company car, gasoline allowance, or
some other name.” 29 C.F.R. § 1620.10; see also EEOC Compliance
Manual, § 10-IV (Dec. 2000), available at https://www.eeoc.gov/laws/guidance/section-10-compensation-discrimination#10-IV%20COMPENSATION%20DISCRIMINATION.
As the Sixth Circuit explained in Bence v. Detroit Health Corp.,
“Comparison of pay rates entails measuring the amount of pay against a common
denominator, typically a given time period or quantity or quality of output.”
712 F.2d 1024, 1027 (6th Cir. 1983) (emphasis added); see also EEOC
v. Health Mgmt. Grp., No. 5:09-CV-1762, 2011 WL 4376155, at *3 (N.D. Ohio
Sept. 20, 2011) (to properly compare
pay rates court must measure the amount of pay against a common denominator)
(citing Bence). Moreover, “it is necessary to identify the proper
factor by which to measure rate of pay. This must be a practical inquiry which
looks to the nature of the services for which an employer in fact compensates
an employee.” Bence, 712 F.2d at 1027. In Bence, the employer compensated the
employees primarily for selling gym memberships. Id. at 1028. Women were paid a lower commission rate
than men, but they earned as much in total salary because female sales managers
were made to sell gym memberships to women, and more women bought memberships. Id.
The Sixth Circuit held that Bence established a prima facie case under the EPA
because “[e]valuation of the employer’s compensation on a ‘per sale’
basis makes it apparent that it paid female managerial personnel at a lower
rate than their male counterparts. This is precisely what the Equal Pay Act
forbids.” Id. at 1028.
The district court concluded that the WNT players
failed to establish a prima facie case under the EPA because, according to USSF
expert Irwin, USSF paid the women more in total and per game when total
compensation was divided by number of games each team played. This ruling was incorrect for
two reasons. First, the district court made a legal error on summary judgment
by choosing to credit the defendant’s expert and reject the plaintiffs’—with
barely any analysis, and without even ruling on the parties’ pending motions
challenging various aspects of the expert reports. As a matter of basic summary-judgment
law, the court was required to view the evidence and draw all reasonable
inferences in the light most favorable to the nonmoving party (here, the plaintiffs).
See, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986); Am. Bankers Ass’n v. Gould, 412 F.3d 1081, 1086
(9th Cir. 2005). As this Court has observed, “‘at this stage of the litigation, the judge does not weigh
disputed evidence with respect to a disputed material fact…. These
determinations are within the province of the factfinder at trial.’” Dominguez-Curry v. Nev. Transp. Dep’t, 424 F.3d 1027, 1036 (9th Cir. 2005) (quoting T.W. Elec.
Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630-31 (9th Cir.
1987)); see also McGinest v.
GTE Serv. Corp., 360 F.3d 1103, 1124 (9th Cir. 2004) (it is axiomatic that disputes about material facts must be resolved at
trial, not on summary judgment).
In
evaluating proffered expert testimony, this Court has stated repeatedly, the
trial court is “a gatekeeper, not a fact finder.” City of Pomona
v. SQM N. Am. Corp., 750 F.3d 1036, 1043 (9th Cir. 2014) (quoting Primiano
v. Cook, 598 F.3d 558, 565 (9th
Cir. 2010)). “A district court may disregard an expert’s opinion offered in
opposition to summary judgment if the opinion is legally insufficient to create
a material issue of fact for trial.” Kauffman v. Manchester Tank &
Equipment Co., No. 98-35218, 1999 WL 1103357, at *2 (9th Cir. Dec. 3, 1999)
(unpub.) (citing Bulthuis v. Rexall Corp., 789 F.2d 1315, 1317-18 (9th
Cir. 1985) (per curiam) (as amended)). This Court considers an expert’s opinion
legally insufficient “if it ‘is not supported by sufficient facts to validate
it in the eyes of the law, or when indisputable record facts contradict or
otherwise render the opinion unreasonable….’” Id. (quoting Rebel Oil
Co. v. Atl. Richfield Co., 51 F.3d 1421, 1436 (9th Cir. 1995)). Here, the
district court made no such finding with respect to Cook’s expert analyses, nor
did it have any basis to do so.
Second, in crediting the defendant’s expert analyses, the district
court simply chose to look past some obvious analytical errors that, a jury
could find, rendered them unreasonable. Irwin added together total
compensation from 2015-19, both fixed and variable, and then divided it by the
number of games played. Thus, she concluded, the WNT played 111 total
games and made $24.5 million overall, averaging $220,747 per game, while the
MNT played 87 total games and made $18.5 million overall, averaging $212,639
per game. See 4-ER-618; 1-ER-22. But, as Cook explained, by assuming all
games are equal, whether World Cup or friendly, Irwin ignored the WNT’s greater
success as a team and the
fact that the WNT had to be significantly more successful than the MNT for its
players to earn the same pay. A jury could agree with Cook that this
assumption rendered Irwin’s calculations flawed.
Fundamentally, USSF compensates its teams
primarily for playing soccer games. Both quantity of games—the total
number—as well as quality of games—the importance, opponent ranking, and
results of those games—account for what the teams earn. Thus the CBAs for both teams have two “measures
of work”: (1) base pay for making the roster and playing in games, whether
described as appearance fees or annual salary, and (2) performance bonuses, which
function like commissions, for performing well in those games. This
compensation system is analogous to a salesperson who earns an hourly,
biweekly, or yearly wage as well as variable commissions that depend on success,
which can result from talent, industriousness, or a combination of factors.
Although the bonus structures at issue here are more complicated than a fixed
commission rate per sale, the same principle applies. Where one employer pays
men and women different base compensation and different bonuses to perform the
same job, that compensation structure violates the EPA, regardless of the total
compensation earned by each team. See 29 U.S.C.
§ 206(d)(1) (forbidding employer from paying employees “at a rate less
than the rate at which [it] pays wages to employees of the opposite sex”).
Somewhat incongruously, the district court
then appears to have become confused about Ebbert v. Nassau County, a
case it once understood. In its 2019
class-certification order, the court used Ebbert correctly to reject
USSF’s argument that a female employee’s greater
annual compensation vis-à-vis similarly-situated males will defeat her EPA
claim, regardless of whether she receives a lower rate of pay. “[C]ourts
interpreting the EPA and (to a lesser extent) Title VII have explicitly
rejected this argument—for good reason. To hold otherwise would yield an ‘absurd
result,’ as this would mean not only that ‘an employer who pays a woman
$10 per hour and a man $20 per hour would not violate the EPA… as long as
the woman negated the obvious disparity by working twice as many hours[,]’ but
also that a woman in this scenario would not even have standing to challenge
the complained-of practice in the first place. Congress simply could not have
intended such a result.” Morgan v. United States Soccer Fed’n, Inc.,
No. 2:19-cv-1717, 2019 WL 7166978, at *4 (C.D. Cal. Nov. 8, 2019) (quoting Ebbert,
2009 WL 935812, at *3).
It is unclear why the court later decided that
the same passage in Ebbert supports the view that a
total-compensation method of comparison is appropriate on summary judgment,
where it was not at the class-certification stage. Ebbert itself was a
decision denying summary judgment on an EPA claim. See 2009 WL 935812,
at *7. Perhaps the confusion stemmed from the district court’s myopic focus on
the specific quantitative discrepancy discussed in Ebbert—one sex making
more money than the other because it worked more hours at a lower rate. The
court then rejected Ebbert as inapposite once the record did not bear
out a similar difference in hours worked between WNT and MNT players. See
1-ER-22. The flaw in that reasoning is that, even assuming the district court
were correct that the WNT players did not necessarily work more hours, its
analysis ignored the quality of the women’s output—i.e., their significantly
larger number of high-profile games played and won, including two World Cup
championships.
In an earlier EPA and Title VII case
consistent with Ebbert, EEOC v. Kettler Brothers, Inc., Nos. 87-3069, 87-3083, 1988 WL 41053, at *2 (4th
Cir. Apr. 27, 1988) (unpub.), the Fourth Circuit reversed the district
court’s grant of summary judgment to the defendant. The company conceded that
the sales manager jobs were the same. Sales managers were paid a minimum base
salary plus a commission for each house sold; male sales managers were paid a
higher commission rate than women. Although some men with the company made more
than some women, the highest-paid
woman earned more than two male comparators. The district court ruled
that a comparison of gross earnings showed no discriminatory difference in pay
between female and male sales managers. Id. at *1. In reversing summary judgment, the court of
appeals acknowledged that the higher-grossing woman claimant made more in total
earnings, but pointed out, “to achieve her higher earnings,” she “had to sell more houses at a lower
commission rate than the men.” Id. at *2. As in Kettler Brothers,
if game bonuses for winning are like commissions earned per sale, WNT players had
to be the best in the world to earn a salary comparable to MNT players.
The base pay-to-play structure that applied to MNT players and
non-contracted women players on the WNT as well as the bonuses USSF set for
tying or winning games are directly comparable. The bonuses for both WNT and MNT players
depended on the ranking of the opponent played, and salaried and non-salaried
women players are treated the same for bonuses. Cook calculated that the WNT players
would have made millions more under the MNT CBA. A jury could credit her relative
valuation of the two contracts.
Instead of allowing a jury to make this factual determination, the
district court minimized the unequal game bonuses on the face of the
CBAs, opining that a finding that unequal bonuses violate the EPA “ignores
other benefits received by the WNT players, such as guaranteed annual salaries
and severance pay—benefits the MNT players do not receive.” 1-ER-22. In so
ruling, the court appears
to have implicitly embraced the assumptions detailed in USSF expert McCrary’s
report, summarized supra at 9. Somewhat contradictorily, the
court declared that fixed pay has an “indisputable” economic value compared to
performance pay, while using the purported difficulty of calculating that
economic value to justify characterizing the respective CBAs as incomparable
yet functionally equivalent. 1-ER-23-24. The court also appears to have endorsed McCrary’s view that it
was somehow relevant to the case that, had the MNT players been paid
under the terms of the WNT’s CBA, they would have made more than they did under
their own CBA. 1-ER-22.
The court’s uncritical acceptance of McCrary’s
expert analysis over Cook’s repeated some of the same errors it made with
respect to Irwin. Again, the court substituted its view of the evidence for
that of a factfinder, without resolving the parties’ pending motions regarding
the experts’ respective methodologies. While it may well be true that a guaranteed salary, versus
pay-to-play, has some additional, intangible economic value, it would be the
jury’s job to assess that value and to decide whether it compensated for the
overt inequities in the terms of the two CBAs, along with the $64 million
difference in potential compensation. Moreover, that determination would be based
on evidence, not just a vague sense that the value existed. Cf. Shultz v.
Wheaton Glass Co., 421 F.2d 259, 263-64 (3d Cir. 1970) (reversing district
court judgment where court made no finding of economic value of male employees’
flexibility in when they worked, the criterion district court had found
justified a ten percent wage differential).
Juries are routinely asked to value intangible benefits across a
wide spectrum of court cases, and there is no reason to think that exercise
would have been any less feasible in this case. Cf., e.g., United States v. CB & I Constructors, Inc., 685 F.3d 827, 836-37 (9th Cir. 2012) (affirming jury
award of intangible environmental damages for negligently set fire; observing
“[e]nvironmental harm shares characteristics with other noneconomic damages in
that they are ‘subjective, non-monetary losses.’… Under California law, the
government may recover intangible environmental damages because anything less would
not compensate the public for all of the harm caused by the fire”) (internal
citations omitted); Miller v. Int’l Revenue Serv., 829 F.2d 500, 504
(4th Cir. 1987) (in tax context, noting that “the IRS and the courts have
recognized that ‘economic’ value can be assigned to intangible return benefits
that are difficult to translate into monetary value”); Ninth Cir. Jury Instructions
Comm., Manual of Model Civil Jury Instructions § 5.2 (2017 ed.; last updated
Mar. 2021) (in measuring damages, jury should consider relevant factors
including loss of enjoyment of life and mental, physical, and emotional pain
and suffering); id. § 15.27 (in
assessing damages for trademark claims, jury should consider loss of reputation
and loss of goodwill).
A reasonable jury could reject as a red
herring McCrary’s observation that MNT players would have fared better under
the WNT’s CBA than they did under their own. First, the MNT is not claiming pay
discrimination, so whether they would have fared better under a different
arrangement is not before this Court. Second, the implication of McCrary’s
analysis is that the WNT CBA is more favorable for a team that plays fewer
games and is less successful, which the MNT is relative to the WNT. This does
not make the respective CBAs a wash—rather, it makes them a scheme that
compensates MNT players at a higher rate of pay for a lesser rate of success.
Whether MNT players could make even more for their lesser rate of success under
a different scheme is of no consequence.
A reasonable jury could also find the assessment in Cook’s
Rebuttal Report to be more useful: i.e., calculating what MNT players would
have made under their CBA had they been as successful as the WNT from 2015-19. As
Cook pointed out, “[h]ad the USMNT had success on the field comparable to the
success of the USWNT, and had these USMNT players participated in as many games
as the members of the USWNT during the same period, [the four highest-paid MNT
players] would have been paid substantially more.” 2-ER-99. As to the notion that the women “traded” higher bonuses
for more salaries, the record reflects that the WNT was never offered the same bonus
amounts as the MNT in the first place—one cannot trade away what one does not
have to bargain with. Given the terms of the CBAs and Cook’s contrary conclusions, a
jury would not have to credit any of McCrary’s findings. Thus the district court’s
acceptance of them was erroneous.
Finally, the district court improperly
emphasized what it characterized as the WNT’s decision to “bargain for” its pay
arrangement in its CBA. See 1-ER-23. Although the court purported to
grant summary judgment solely because the plaintiffs failed to establish a
prima facie case of pay discrimination, the court’s suggestion that the women’s
compensation is not different from the men’s “because of sex” would have to be
analyzed under the EPA’s “any other factor other than sex” affirmative defense.
See supra at 16-17. Because the EPA’s affirmative defenses are not at
issue in this appeal, this is not an appropriate ground for affirmance here.
Nonetheless, even if the “any other factor
other than sex” defense were at issue, a reasonable jury could disagree with
the district court’s characterization that WNT players solicited or welcomed
their current pay arrangement. Even the court acknowledged that the WNT was
offered the MNT pay-to-play structure, but not equivalent dollar amounts
in bonuses. 1-ER-11, 23.
The WNT offered evidence that the women players demanded equal pay,
including equal bonuses, but USSF rejected that early in the negotiations. See
supra at 10-11. See also Thibodeaux-Woody
v. Houston Cmty. Coll., 593 F. App’x 280,
284 (5th Cir. 2014) (a different approach to salary negotiation was not a
factor other than sex where the female plaintiff was told she could not
negotiate her salary while her male comparator was allowed to make a
counteroffer; court held a reasonable jury could reject the employer’s defense
because it discriminatorily applied its negotiation policy).
In any event,
the WNT’s union could
not bargain away its members’ rights under the EPA, which specifically provides that no
labor organization “shall cause or attempt to cause” a covered employer to
violate the statute. 29 U.S.C. § 206(d)(2). Nor is it relevant that the
terms of two CBAs—the men’s and the women’s—are at issue. The basic
principle that the collective bargaining process cannot justify wage
disparities remains the same. See 29 C.F.R. § 1620.23 (“The establishment by collective bargaining or inclusion in a
collective bargaining agreement of unequal rates of pay does not constitute a
defense available to … an employer ….”). Additionally, “[a]ny and all
provisions in a collective bargaining agreement which provide unequal rates of
pay in conflict with the requirements of the EPA are null and void and of no
effect.” Id.
USSF was fortunate that WNT players were willing
to play, and succeed, under the terms of their CBA. But the EPA provides that an
employer cannot pay its women employees less simply because they are willing to
work for less. Rizo, 950
F.3d at 1222-23 (internal citations omitted) (recounting that in Corning
Glass Works v. Brennan, 417 U.S.
188 (1974), the Supreme Court rejected the “market force theory” in which an
employer can pay willing women less to do the low-wage jobs men refuse even if
“understandable as a matter of economics” because “its [wage] differential
nevertheless became illegal once Congress enacted into law the principle
of equal pay for equal work”).
Section 703(a)(1) of Title VII provides that it
shall be “an unlawful employment practice for an employer … to discriminate
against any individual with respect to his compensation … because of such
individual’s … sex ….” 42 U.S.C. § 2000e-2(a)(1). As this Court has recognized,
Title VII is much broader than the EPA, and Title VII’s statutory scheme covers
claims of sex-based wage discrimination whether or not they also fall under the
EPA. Bartelt v. Berlitz Sch. of Languages of Am., 698 F.2d 1003, 1005-06
(9th Cir. 1983). Whereas the EPA
holds employers strictly liable for a limited subset of sex-based pay
discrimination, Title VII reaches all compensation discrimination that
occurs “because of … sex.” 42 U.S.C. § 2000e-2(a)(1). “Title VII’s message is ‘simple but
momentous’: An individual employee’s sex is ‘not relevant to the selection,
evaluation, or compensation of employees.’” Bostock
v. Clayton Cnty., Ga., 140 S. Ct. 1731,
1741 (2020) (quoting Price
Waterhouse v. Hopkins, 490 U.S. 228, 239 (1989) (plurality opinion)).
Just as in any Title VII disparate-treatment
suit, “[t]he difference in treatment based on sex must be intentional.” Bostock,
140 S. Ct. at 1740. Thus, a
Title VII pay discrimination plaintiff is not required to establish a prima
facie case under the EPA or demonstrate “equal pay for equal work.” Rather,
on summary judgment a plaintiff may either present direct evidence of pay
discrimination or proceed under the McDonnell Douglas burden-shifting
framework (or “circumstantial evidence” approach) typically applied in such
cases to permit a jury to find intentional discrimination. See Freyd
v. Univ. of Or., 990 F.3d 1211, 1228 (9th Cir. 2021).
The Supreme Court has held that Title VII
“incorporate[s] the four affirmative defenses of the Equal Pay Act … for
sex-based wage discrimination claims.” Cnty. of Washington v. Gunther,
452 U.S. 161, 168 (1981) (construing 42 U.S.C. § 2000e-2(h)). In other
words, if a pay differential is based on seniority, merit, quantity or quality
of production, or any other factor other than sex, it is not sex discrimination
under Title VII or the EPA. Id. at 169; 29 U.S.C. § 206(d)(1).
The same evidence that would support a jury finding
in the plaintiffs’ favor on their EPA claim would likewise support a finding
that USSF violated Title VII. A reasonable jury could credit the plaintiffs’
evidence and find that USSF pays its men’s team differently—and better—than its
women’s team pursuant to both CBAs, as well as the MOU that predated the
women’s CBA. WNT players were systematically given lower bonuses for winning
and tying games and placing in tournaments, and even the set base pay for the
two teams was unequal.
The explicit classification by sex of USSF’s
payment schemes to WNT and MNT players is facially discriminatory. See, e.g.,
Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985) (where
employer’s policy distinguishes on its face based on membership in protected
group, it constitutes direct evidence of discrimination); City of L.A.,
Dep’t of Power & Water v. Manhart, 435 U.S. 702, 711 (1978) (“An
employment practice that requires 2,000 individuals to contribute more money
into a fund than 10,000 other employees simply because each of them is a woman,
rather than a man, is in direct conflict with both the language and the policy
of [Title VII]. Such a practice does not pass the simple test of whether the
evidence shows ‘treatment of a person in a manner which but for that person’s
sex would be different.’”) (internal citation omitted); Frank v. United
Airlines, Inc., 216 F.3d 845, 853 (9th Cir. 2000) (“An employer’s policy
amounts to disparate treatment if it treats men and women differently on its
face.”).
The district court therefore erred as a matter
of law in relying on the defendant’s disputed calculations to hold that the
plaintiffs did not “demonstrate[] a triable issue that WNT players are paid
less than MNT players.” 1-ER-25. Insofar as there was any question about which
of the experts’ methodologies or calculations had more merit, that question
should have been resolved either via the parties’ motions regarding the expert
reports or by a trier of fact, not on summary judgment.
For the foregoing reasons, the judgment of the district
court should be vacated and the case remanded for further proceedings.
Respectfully submitted,
GWENDOLYN YOUNG
REAMS
Acting General
Counsel
JENNIFER S.
GOLDSTEIN
Associate
General Counsel
ELIZABETH E.
THERAN
Assistant
General Counsel
s/Julie L. Gantz
JULIE L. GANTZ
Attorney
Equal Employment
Opportunity Commission
Office of General
Counsel
131 M St. N.E.,
5th Floor
Washington, D.C.
20507
(202) 921-2547
julie.gantz@eeoc.gov
I certify that this brief complies with the
type-volume requirements set forth in Federal Rule of Appellate Procedure 29(a)(5)
and Ninth Circuit Rule 32-1. This brief contains 6,977 words, from the
Statement of Interest through the Conclusion, as determined by the Microsoft
Word for Office 365 word processing program, with 14-point proportionally
spaced type for text and footnotes.
s/Julie L. Gantz
JULIE L. GANTZ
Attorney
Equal Employment
Opportunity Commission
Office of
General Counsel
131 M St. N.E.,
5th Floor
Washington, D.C.
20507
(202) 921-2547
julie.gantz@eeoc.gov
Dated:
July 30, 2021
