Statement of Interest

Congress charged the Equal Employment Opportunity Commission (“EEOC” or “Commission”) with administering and enforcing the Equal Pay Act of 1963, 29 U.S.C. § 206(d) (“EPA”). This appeal raises an important question about the correct allocation of the parties’ respective burdens of proof in an EPA wage-discrimination case.

Here, the district court granted summary judgment to the defendant, concluding that because the defendant had met its burden to establish an affirmative defense, the burden of proof then shifted to the plaintiff to show that the defendant’s explanation for the pay disparity is in fact pretextual. This was error. Under the EPA, the burden of proof as to the statute’s affirmative defenses always remains with the defendant, and never shifts to the plaintiff to disprove as “pretext” the defendant’s explanation. In so analyzing the case, the district court applied a legal standard that is at odds with the EPA as well as the jurisprudence of this Court and the Supreme Court.

Given the importance of the correct interpretation of the EPA to the EEOC’s ongoing enforcement efforts, the EEOC respectfully offers its views on these issues to this Court. As a federal agency, the Commission is authorized to participate as amicus curiae in the courts of appeals. Fed. R. App. P. 29(a)(2).

Statement of the Issue[1]

Whether the district court erred in analyzing the plaintiff’s EPA claim when it shifted the burden of proof to the plaintiff to establish that the defendant’s explanation for the pay disparity is pretextual.

Statement of the Case

1. Statement of Facts[2]

Plaintiff-Appellant Dr. LeThenia Joy Baker first began work for Defendant-Appellee Upson Regional Medical Center (“URMC”) in March 2015.[3] District Court Docket No. (“R.”) 37 at 2. At that time, Baker had two and a half years of practice as a physician and had no certifications or fellowships. Id.

Between March and June 2015, Baker worked for URMC under a temporary contract. Id. at 2-3 & n.1. On June 15, 2015, Baker and URMC entered into a new employment contract for Baker to work as a full-time physician. Id. at 3. Baker’s new contract with URMC provided her a base salary, a signing bonus, payment of her moving expenses, and student loan reimbursement. Id.

Additionally, the contract enabled Baker to earn bonus compensation by performing particular services or procedures. Id. at 5. The amount of bonus compensation was based upon point values—“working relative value units,” or “wRVUs”—established by the Centers for Medicare and Medicaid Services for such activities. Id. at 5 & n.5. This wRVU-bonus-pay plan provided Baker with bonus pay of $5 for every wRVU she accumulated above 6,548; $10 for every wRVU above 7,203; and $20 for every wRVU above 7,923. Id. at 6. The attorneys representing Baker and URMC negotiated this plan, and URMC asserted that it structured Baker’s wRVU bonus pay in this manner so she could “ramp up” her practice as a new OBGYN, lowering the threshold for her to earn bonus compensation. Id.

During Baker’s tenure at URMC, one of her colleagues was Dr. Nicholas Psomiadis. Id. at 2, 6-7. Like Baker, Psomiadis had previously worked for URMC under a temporary contract and in August 2015 he began working for URMC under a full-time contract. Id. at 2, 6. At that time, Psomiadis had been in practice for between fifteen and seventeen years and was Board certified. Id. at 6-7. URMC expected that Psomiadis would serve as a mentor for Baker. Id. at 7.

Psomiadis negotiated his contract with URMC, and his compensation differed from Baker’s. Psomiadis’s base salary was $305,000, as compared to Baker’s base salary of $260,000. Id. at 5. In addition, the wRVU bonus structure was significantly different for Psomiadis, paying him $40 for every wRVU above 3,990 accumulated in each half of the year. Id. at 9.

In September 2017, Baker contacted two URMC officials regarding her bonus pay plan, informing them that she believed her wRVU bonus pay rate was lower than that of most other surgical subspecialists. Id. at 8. URMC’s officials stated they would look into Baker’s concerns, and met with her to discuss them. Id. In December 2017, URMC began drafting an amendment to Baker’s contract. Id. Ultimately, on August 23, 2018, she executed the agreed-to amendment to her contract, in which her bonus-pay plan was changed to mirror Psomiadis’s. Id. at 8-9.

In July 2020, Baker filed suit against URMC under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and the EPA, alleging sex- and race-based pay discrimination under Title VII and sex-based pay discrimination under the EPA. R.1. URMC moved for summary judgment on all of Baker’s claims, arguing in relevant part that any pay disparities between Baker and Psomiadis under their initial contracts arose due to their different levels of experience, not Baker’s race or sex; and any disparities between Baker’s and Psomiadis’s pay after Baker and URMC amended her contract were due to the different contract terms Baker negotiated with URMC. See generally R.24-2. Baker responded that URMC had failed to present evidence supporting its explanation for the disparity between her and Psomiadis’s bonus plans. See generally R.35.

2. District Court Decision

The district court granted URMC’s motion for summary judgment. R.37 at 1. With respect to Baker’s EPA claim regarding her bonus pay, the court began by describing the governing analytical framework, stating that “[t]o prove her prima facie case” a plaintiff must show that the 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.” Id. at 15 (citation omitted).

Once a plaintiff establishes her prima facie case, the court continued, the burden shifts to the employer “to prove by a preponderance of the evidence that the pay differential was justified under one of the four affirmative defenses in section 206(d)” of the EPA. Id. (citation omitted). The court added that “[t]his burden is heavy ‘because the defendants must show that the factor of sex provided no basis for the wage differential.’” Id. (quoting in part Irby v. Bittick, 44 F.3d 949, 954 (11th Cir. 1995) (citation omitted)). It then noted that only the fourth EPA affirmative defense—that the pay differential is based upon “any other factor other than sex”—was at issue here. Id. at 14-15.

Next, the court stated, “[i]f the defendant overcomes the burden, ‘the plaintiff must rebut the explanation by showing with affirmative evidence that it is pretextual or offered as a post-event justification for a gender-based differential.’” Id. at 15-16 (quoting in part Irby, 44 F.3d at 954 (citing Schwartz v. Fla. Bd. of Regents, 954 F.2d 620, 623 (11th Cir. 1991) (per curiam))). According to the court, “[i]f [the] plaintiff is able to create the inference of pretext, there is an issue which should be reserved for trial.” Id. at 16 (quoting Irby, 44 F.3d at 954).

Applying this framework to Baker’s claim, the court noted that “[n]either party” had argued that Baker failed to establish a prima facie case, and that the dispute on summary judgment centered on whether URMC compensated Psomiadis more favorably than Baker “due to a factor other than sex.” Id. The court identified URMC’s explanation for the pay differential as “(1) [URMC] offer[ed] Plaintiff a tiered compensation structure [that] allowed her to ramp up her practice and earn bonuses at a lower threshold, which is desirable for a new physician starting their practice; and (2) the initial bonus structure was the result of contract negotiations between Plaintiff, her attorney, and Defendant.” Id. at 17.

Rejecting Baker’s assertion that URMC presented no evidence in support of these explanations, the court stated that the URMC corporate witness’s “deposition testimony affirmatively establishes that Plaintiff’s bonus structure resulted from negotiations between the parties and Defendant provided a tiered structure specifically designed to allow her to ramp up in her practice.” Id. at 18. According to the court, Baker did not offer any evidence that her bonus compensation plan was lower than Psomiadis’s because of her sex, while URMC adduced “uncontroverted evidence” that “establishe[d]” it offered Psomiadis “a different bonus structure based on factors other than sex such as his greater experience.” Id. at 23. From this, the court concluded that URMC had “satisfie[d] its burden to rebut Plaintiff’s prima facie case and that a reasonable jury could not disagree.” Id.

“Consequently,” the court stated, “the burden shifts back to Plaintiff to provide affirmative evidence showing that Defendant’s explanation is pretextual or offered as a post-event justification for her EPA claim to survive summary judgment.” Id. (citing Irby, 44 F.3d at 954 (citing Schwartz, 954 F.2d at 623)). Observing that in her summary-judgment briefing Baker had “omitted any argument as to pretext,” the court concluded that Baker “necessarily failed to demonstrate that Defendant’s offered explanation constitutes pretext or a justification after the fact.” Id. at 23-24. The court then dismissed her EPA claim.[4] Id. at 24.

Summary of the Argument

The district court erred in its analysis of Baker’s EPA claim when it shifted the burden of proof to her to show that URMC’s explanation for the pay disparity was pretextual. In an EPA suit, each party bears a particular burden of proof—the plaintiff to establish a prima facie case of pay discrimination, and the defendant to establish a statutory affirmative defense to liability for the pay disparity. This understanding of EPA claims is well grounded in the statute and has long been supported by the decisions not only of this Court, but of the Supreme Court and other circuit courts.

Nevertheless, the district court here imposed an additional burden of proof on the plaintiff, requiring her to disprove as “pretext” the defendant’s explanation for the pay disparity. This analytical approach to EPA claims is inconsistent with the statute and prior controlling precedent. The district court also erred in relying on this Court’s decision in Irby v. Bittick rather than earlier, controlling circuit precedent, as support for this additional “pretext” requirement. Irby’s “pretext” approach is irreconcilable with the EPA, and to the extent that it conflicts with binding precedent, this Court should not follow it.

Argument

I. In an EPA suit, the plaintiff is not required to disprove the defendant’s asserted affirmative defense.

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). “The [EPA] also establishes four exceptions—three specific and one a general catchall provision—where different payment to employees of opposite sexes ‘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.’” Corning Glass Works v. Brennan, 417 U.S. 188, 196 (1974); 29 U.S.C. § 206(d)(1).

While both Title VII and the EPA prohibit sex discrimination in pay, “[t]he burdens of proof are different under the two laws.” Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1526 (11th Cir. 1992). In County of Washington v. Gunther, 452 U.S. 161, 170-71 (1981), the Supreme Court acknowledged the differences between sex-based unequal pay claims under Title VII and the EPA. The Court recognized that “[t]he structure of Title VII litigation, including presumptions, burdens of proof, and defenses” was “designed differently” than the EPA’s fourth affirmative defense, given the differences between Title VII’s “broadly inclusive” prohibition on discrimination and the narrower approach reflected by the fourth affirmative defense to the EPA. Gunther, 452 U.S. at 170-71. Accordingly, a different proof scheme applies to claims brought under each statute.

For EPA claims, the plaintiff “must meet the fairly strict standard of proving that she performed substantially similar work for less pay.” Miranda, 975 F.2d at 1526. To establish a prima facie case, a plaintiff must show “that her employer has paid different wages to male and female employees for equal work, as described in the first part of the Act.” Mitchell v. Jefferson Cnty. Bd. of Educ., 936 F.2d 539, 547 (11th Cir. 1991) (citing EEOC v. White & Son Enters., 881 F.2d 1006, 1009 (11th Cir. 1989)).

Importantly, under the EPA, “[t]he plaintiff is not required to prove discriminatory intent on the part of the defendant.” Miranda, 975 F.2d at 1533 (citation omitted); see also Mitchell, 936 F.2d at 547 (“The plaintiff is not required to prove intentional discrimination, just that the employer pays unequal wages for equal work, as defined in the Act.”). As such, the EPA “prescribes a form of strict liability: Once the disparity in pay between substantially similar jobs is demonstrated, the burden shifts to the defendant to prove that a ‘factor other than sex’ is responsible for the differential.” Miranda, 975 F.2d at 1533. Once that burden of proof has shifted, “[i]f the defendant fails, the plaintiff wins,” Miranda, 975 F.2d at 1533, as “[t]he risk of nonpersuasion is borne by the employer,” Meeks v. Computer Assoc. Int’l, 15 F.3d 1013, 1018 (11th Cir. 1994). Accordingly, for EPA claims, once a plaintiff establishes a prima facie case, and the factfinder has determined whether or not the defendant has proven an affirmative defense, the analysis is at an end. See Meeks, 15 F.3d at 1018.

In contrast with the EPA, however, under Title VII “there is a significant difference . . . as to both elements and burdens of proof.” Meeks, 15 F.3d at 1019. In a Title VII disparate-treatment suit the plaintiff bears the burden of proof throughout the proceeding, and if the plaintiff establishes her prima facie case the defendant only bears a burden of production to explain its conduct, not to prove its actions were lawful. Id. at 1018-19. Thus, “[i]f the evidence is in equipoise on the issue of whether a salary differential is based on a ‘factor other than sex,’ the plaintiff is entitled to judgment on her EPA claim,” but under Title VII “the employer prevails” because “[u]nder Title VII, the risk of nonpersuasion always remains with the plaintiff.” Id. at 1019 (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993).

Of particular relevance here, “[u]nder Title VII . . . the plaintiff must prove that the employer had a discriminatory intent.” Id.; see also Hicks, 509 U.S. at 506 (noting the central purpose of the framework provided in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), for analyzing Title VII disparate-treatment claims is “sharpen[ing] the inquiry into the elusive factual question of intentional discrimination”); Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 n.8 (1981) (“In a Title VII case, the allocation of burdens and the creation of a presumption by the establishment of a prima facie case is intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination.”). To that end, the McDonnell Douglas framework for Title VII claims requires the plaintiff—who, unlike an EPA plaintiff, bears the burden of proof at all times—to rebut the defendant’s explanation with proof that such explanation is a pretext for discrimination. Meeks, 15 F.3d at 1019; Burdine 450 U.S. at 255-56.

Accordingly, the district court erred in its analysis of Baker’s EPA claim by conflating the burdens of proof and corresponding analytical frameworks applicable to EPA and Title VII claims. See Meeks, 15 F.3d at 1020 (recognizing that the circuit held in Miranda that “the elements and burdens of proof differ under the EPA and Title VII,” and holding that “we are convinced that our decision in Miranda not only binds us on this issue but has the added merit of being correct”). Although the district court initially identified the parties’ respective burdens under the EPA correctly—indeed, citing both Miranda and Meeks (see R.37 at 15-16)—it subsequently relied on Irby to require Baker to prove that URMC’s explanation was pretextual, as the McDonnell Douglas framework requires for Title VII suits. See R.37 at 15-16, 23. But under the proper EPA analysis, “the defendant always bears the burden of proving that its proffered reason is the true basis for the pay differential.” Buntin v. Breathitt Cnty. Bd. of Educ., 134 F.3d 796, 799 n.7 (6th Cir. 1998). There simply is no “pretext” burden of proof for plaintiffs in EPA cases.

We note that the approach to EPA claims this Court had taken prior to Irby, in decisions such as Mitchell, Miranda, and Meeks, is consistent with the approach taken in a majority of other circuits. See, e.g., Rizo v. Yovino, 950 F.3d 1217, 1223 & n.4 (9th Cir. 2020) (en banc) (recognizing that under the EPA, “[n]o showing of pretext is required,” and identifying decisions in agreement from the First, Third, Fourth, Sixth, and Eighth circuits); King v. Acosta Sales & Mktg., Inc., 678 F.3d 470, 474 (7th Cir. 2012) (holding in EPA suit that the district court “made a legal error” when it only required the employer to “articulate . . . potentially explanatory variables, without proving that they actually account for the [pay] difference,” and placed the burden on the plaintiff to prove that such explanations were pretextual).

II. This Court should not view Irby as controlling precedent regarding the proper analytical framework for EPA claims.

While the district court relied on Irby for its “pretext” analysis, Irby’s analytical approach to EPA claims is inconsistent with both the EPA itself and this Court’s earlier, controlling precedent. In Irby, the court initially defined the EPA burdens of proof in accordance with, and citing to, Mitchell, Meeks, and Miranda. Irby, 44 F.3d at 954. It correctly stated that “[o]nce a prima facie case is demonstrated, to avoid liability the employer must prove by a preponderance of the evidence that the differential is justified by one of four exceptions set forth in the EPA.” Id. (citations omitted). However, Irby then imposed an additional burden of proof on the plaintiff, stating that “[w]hen the defendant overcomes [its] burden, the plaintiff must rebut the explanation by showing with affirmative evidence that it is pretextual or offered as a post-event justification for a gender-based differential.” Id. (citing Schwartz v. Fla. Bd. of Regents, 954 F.2d 620, 623 (11th Cir. 1991) (per curiam); Hodgson v. Behrens Drug Co., 475 F.2d 1041, 1045 (5th Cir. 1973)). This was error. Apart from its citation to Schwartz and Hodgson, Irby provided no analysis or explanation for its deviation from earlier circuit precedent, such as Miranda and Meeks. See id.

Moreover, neither Schwartz nor Hodgson supports Irby’s addition of a “pretext” stage to EPA claims. Schwartz, a per curiam decision issued after Mitchell, cited Brock v. Georgia Southwestern College, 765 F.2d 1026, 1036 (11th Cir. 1985) (overruled on other grounds by McLaughlin v. Richland Shoe Co., 486 U.S. 128 (1988)), for the proposition that “[i]f the employer establishes that the disparity is justified by one of [the EPA’s statutory] exceptions then the plaintiff must come forward with affirmative evidence that indicates that the proffered reason for the disparity is actually a pretext for sex discrimination.” Schwartz, 954 F.2d at 623.

But Brock neither held nor suggested that a plaintiff’s burden under the EPA includes a showing that the defendant’s explanation was pretextual. Instead, it merely observed, in a footnote, that one of the defendant’s explanations for the pay disparity “appears pretextual in light of the facts.” Brock, 765 F.2d at 1036-37 & n.23. Regarding the legal standard, however, the Brock court consistently emphasized that under the EPA “the [defendants] hold the burden of proving . . . that [their explanation] is not just an ex post facto attempt to find differences between male and female [employees] and then use those differences to explain unequal pay”). Id. at 1037 n.23. Accordingly, Brock does not support Schwartz’s—or Irby’s—imposition of a “pretext” burden of proof upon EPA plaintiffs.

Similarly, the Fifth Circuit in Hodgson did not even suggest that an EPA plaintiff must prove the defendant’s explanation is a “pretext” for unlawful conduct. The Hodgson court addressed an EPA claim challenging the pay disparity between the defendant’s male and female employees who were performing substantially the same work in four separate job categories. See Hodgson, 475 F.2d at 1043-44. The court of appeals addressed in some detail the defendant’s “bona fide training program” explanation for the pay disparity in one category of jobs, but it concluded that the training program at issue did not in fact constitute a “factor other than sex” defense to liability. Id. at 1046-47. Hodgson did not discuss in detail the analytical framework applicable to EPA claims, or otherwise indicate that a plaintiff was required to rebut a defendant’s showing by proving the explanation was untrue. See generally id. at 1043-52.

Because Irby conflicts with prior circuit precedent, and offers no meaningful support for imposing a “pretext” burden of proof upon EPA plaintiffs, this Court should not consider Irby controlling authority under its prior-panel rule. “It is the firmly established rule of this circuit that each succeeding panel is bound by the holding of the first panel to address an issue of law, unless and until that holding is overruled en banc, or by the Supreme Court.” United States v. Hogan, 986 F.2d 1364, 1369 (11th Cir. 1993) (citation omitted); see also United States v. Steele, 147 F.3d 1316, 1318 (11th Cir. 1998) (en banc) (citing Hogan, 986 F.2d at 1369) (same). This Court’s “adherence to the prior-panel rule is strict,” and “when there are conflicting prior panel decisions, the oldest one controls.” Monaghan v. Worldpay US, Inc., 955 F.3d 855, 862 (11th Cir. 2020) (citing, e.g., Cohen v. Office Depot, Inc., 204 F.3d 1069, 1072 (11th Cir. 2000)); see also United States v. Dailey, 24 F.3d 1323, 1327 (11th Cir. 1994) (“When there is no method for reconciling an intracircuit conflict of authority, ‘the earliest panel opinion resolving the issue in question binds this circuit until the court resolves the issue en banc.’” (quoting in part Clark v. Hous. Auth. of Alma, 971 F.2d 723, 726 n.4 (11th Cir. 1992)). Irby post-dates Mitchell, Miranda, and Meeks, and its “pretext” analysis cannot be reconciled with that earlier precedent. Thus, the district court (like Irby itself) should have followed this Court’s pre-Irby opinions and not required Baker to demonstrate pretext.[5]

Finally, we note that other circuits have criticized Irby’s imposition of a pretext requirement for EPA plaintiffs. See Rizo, 950 F.3d at 1223 & n.4 (9th Cir. 2020) (recognizing that under the EPA, “[n]o showing of pretext is required,” and identifying Irby as a contrary, minority view); Buntin, 134 F.3d at 799 n.7 (6th Cir. 1998) (criticizing Irby, stating that “[w]e disagree with [its] characterization of the plaintiff's and defendant’s respective burdens under the EPA. The Eleventh Circuit improperly shifts the burden of persuasion to the plaintiff on the affirmative defense issues. . . . The EPA plaintiff . . . never bears the burden of persuasion regarding the affirmative defenses.”).

Conclusion

For the foregoing reasons, the Commission respectfully requests that the Court vacate the grant of summary judgment to URMC and remand the case to the district court for further proceedings.

Respectfully submitted,

CHRISTOPHER LAGE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ELIZABETH E. THERAN

Assistant General Counsel

s/ James M. Tucker

JAMES M. TUCKER

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St. NE, Rm. 5NW10P

Washington, D.C. 20507

(202) 921-2554

James.Tucker@EEOC.gov

[1] The EEOC takes no position on any other issue in this case.

[2] Because the Commission takes no position on any disputed facts in this case, we rely here on the factual recitation in the district court’s summary-judgment decision.

[3] Baker spelled her first name “Lathenia” in her complaint, and that spelling is reflected in the official caption for this appeal. However, Baker spelled her first name “LeThenia” in her summary judgment briefing below and in her opening brief on appeal. In this brief, we use the latter spelling of her name, except on the cover page where we use this Court’s official caption.

[4] The court also ruled that, because Baker only responded to URMC’s arguments regarding her bonus pay claims, she had abandoned her Title VII race discrimination claims, as well as her Title VII or EPA unequal-pay claims beyond her bonus-pay claim. Id. at 14.

[5] Based on this same reasoning, Schwartz also should not be considered controlling authority on the “pretext” question in EPA suits. Mitchell and Brock precede Schwartz, and Schwartz conflicts with them by shifting the burden of proof to the plaintiff to show the defendant’s explanation for the pay disparity is pretext. See supra pp. 17-18.