All right, Ms. Pinagos. All right, Ms. Pinagos. In 1963, the Equal Pay Act was enacted into law as a part of the new frontier program. The EPA abolished wage disparity based on sex in an effort to end the gender pay gap. Five decades later, on its website, the Department of Labor reports that women still earn 19 to 23 percent less than men and women. You need to talk a little more slowly. I can't understand you. Five decades later, the Department of Labor reports that women still earn approximately 20 percent less than men and that wage gap. Okay, you know, we're not a jury. You have issues in your case. If you want to present a case, then you tell us what the issues in your case are and what the record is in your case. One of the interesting and other points, all right? This case is about one of the four limited defenses to strict liability under the EPA. The fourth defense factor, other than sex, this case is not simply about negotiations for salary. This case is about as unique because it is about the opportunity to negotiate that is disparately provided between the men and the women. In this case, the facts are uncontested. Both employees were interviewed and hired at the same time by the same team of five college managers. The female is equally or better qualified in all respects as reflected by her six-page resume compared to the male's two-page resume. They work in the same job side by side and remain there today. They work for the same supervisor. This is more than the three EPA's three-promethasia elements. We rely on the seven principal cases that we cite at our brief pages 24 through 35
. All of these seven cases from this circuit and two others affirm that negotiation cannot be a factor other than sex. This trend continues. We submitted a rule 28J letter in July. Young blood versus George Wallace College. I'm not sure you have to bite off that big a bite. Do we have to find that negotiations aren't a factor other than sex or do we have to find only that in this case because she was given a different set of rules for negotiating. You're not allowed to negotiate, but this guy over here is that that cannot prove the defense or be part of the defense at least on some re-judgment. Isn't that all we need to deal with? The latter's leave for another day whether some brilliant guy who can really negotiate well can run past a woman who can't or whatever. Yes, it is the latter. Absolutely. This case is not about... That's why I said this case is not simply about negotiations. This case is about disparately providing negotiations. It sounds like a title of a seven-case, but it's not. It's a textbook EPA case. But there was a difference here, which is that the man came back and gave a counter offer and your client didn't. Each was given the same offer at the time the office... The man told he's not allowed to negotiate
. Could she finish that answer please? The March 6th email from the manager in HR does not say he rejected the offer. It was never rejected. There's no evidence of that. What she says is, quote, he has asked to negotiate salary. D. Woody and her at the David uncontested says, I asked to negotiate salary and was told there is no negotiations. By a man who has copied on the March 6th email 21 days before she accepted the offer. Someone could have said, if you be procedures and policies that the college didn't follow where they consider all of these different considerations. The key fact here is that D. Woody was offered the job on March 6th as was Mr. Corp. And then they started comparing all of Mr. Corp's qualifications, the six factors. He speaks Spanish. He was in the military. He has the biggest skill set. He has been with us for 12 years. He is better than all of the other candidates. Mr. Woody at that time was not a candidate. She was not free. She had gotten her offer
. He could not be comparing Mr. Corp. to Mr. Woody. Because she was already okay. Again, they don't seem to be arguing that the salary differential is justified by anything other than the negotiation. That's why to me, this is almost like a law school hypothetical. Because you almost never have people that are actually totally equal in every single credential. Their argument is simply he negotiated she didn't. I thought your argument was the rules were different. He was allowed to negotiate him. I'm misunderstanding that. No, that is absolutely right. I don't know why we keep tracing off in these other directions. Don't know what Corp said. But the only record evidence is two statements. I asked to negotiate since D. Woody. Mr. Corp. has asked to negotiate salary. The next day they start negotiating with them
. Let's pay him 53. Let's pay him 56. She was told no. By the man Mr. Little, who was to be her supervisor. He said HR will not allow any negotiations. This is it. She had to think about it for 21 days while they negotiated with the mail. Why couldn't they say, hey, wait a minute. Mr. Little, I told her no. Maybe we should negotiate with her too. Twice. The March 7th email, the March 26th email. The college states this pushes internal equity because we have already offered the woman at 41. I want to get clear. This is an affirmative defense. So right? The burden is on the college college. And so if we were to reverse here, that just sends it back for whatever trial, you know, whatever. In other words, I could still prevail on the defense, which is saying as a matter of law, you haven't proved that this negotiation was the factor. I believe if this court finds that it was desperately provided, the college only has one, when they answered this lawsuit, they had no defense. They did not plead the fourth defense
. It wasn't until we filed a motion that they amended their pleadings and pledged the fourth defense. The only question for the district court is, do they have a defense to strict liability? If this court says you can't desperately provide negotiations, you have no defense. The case is over. We're just talking about damages. I'm just agreeing that they desperately provided. I mean, they're saying yes, we told Mrs. Woody she couldn't negotiate, but we told Mr. Corridor he could. Or are they just saying, okay, that's her story. We have to accept that for some reason. The only record evidence, and that's all we can look at, is Washington, Seymour, and the March 7th email that all say he asked to negotiate, and here we go. The records uncontested, they didn't dispute the Woody statement. The one statement she has on the first page of her affidavit, I asked to negotiate salary. Seymour, and I was told no. There are two, as I said, our position in this case is that any comparison, and I have the, let's go. I have handed the, your Honor, the chronological record evidence charts, two pages, it's got red printing on it, and it is verbatim from... It's really not very attentive of you to walk up here with Manala Fodors and hand them in at the last minute, and then I've got to sit here and sort all those out while we're trying to hear or argument. As far as I'm concerned, I'm going to ignore your handouts. The chronology chart is out of pages two through four of a balance reply brief. It is a side-by-side mirror image of the facts in this case, what happened between February and when they first began the job in April
. Every single thing is identical except Woody's column is blank. There is no negotiations because at the top of the page it says, I asked to negotiate and I was told no. And then negotiations continue. They both accept, she accepts one day before he does, they start the next week. We believe there is no intellectually honest way to allow wage disparity when we have mirror images not only in the lack of negotiation, but if you look at the skills comparison chart, which is pages seven through eight of our reply brief, when we take all of the six factors that the college sets out in its March 26th, we think for these six reasons he's better than the other candidates, not Woody. If you look at the skills, her six page resume is for every single thing that the college looked at, she is equal or for better. This is not a skills comparison case. If we reverse the summary judgment on the EPA claim, is that mandate, why couldn't we affirm it on the gender discrimination claim? Is it your position that you can't have one without the other? No, it is not our position. We believe that the gender discrimination is separate apart based on gender related remarks made by Mr. Little. There was no pending motion on these, the district court dismissed them, so is Pante. The two claims are side by side, although they're parallel and they have the same four defenses, the damage model is different. And so there are different facts. Wage disparity is a Title VII claim, but she also has additional ones that the court dismissed. And for that reason, we would ask that our motion for summary judgment on the affirmative defense be granted that the college's motion that was granted be reversed and that the gender related claims, Mr. Little's, the statements that are in footnote, it's in the brief footnote 47, I believe. The litany of statements that those be sent back to the district court for the first time. I think it's a consideration. All right, you've saved time for your vote. Good morning and may it please the court. My name is Susan Oxford. I represent the Equal Employment Opportunity Commission as Mika's Curie
. I am this case. Judge Haines, yes. The only issue before this court is whether the college offered the opportunity to negotiate equally to two candidates. Otherwise, our virtually identical and it is it is rare to have a situation like this where two people are hired to perform not just similar jobs, but the same job who come to the employer with virtually identical qualifications and who result with such a great disparity in their pay. Despite the fact that the college acknowledged the quote internal equity concerns at the time it was. And so I want to be clear we don't have to decide whether the concept of negotiating in general could be an other than sex factor. We just in this case to reverse would have to find that the rules were different that a woman was given a set of rules where she just wasn't allowed to play the game. Whereas the man was allowed to play the game so of course he makes a better score. Absolutely. And this court doesn't need to decide whether the plaintiff would ultimately prevail on that, but on summary judgment as an affirmative defense this was the college's burden to establish beyond any reasonable doubt. That no reasonable juror could fail to agree with the college's defense and the evidence is plainly adequate for jury to find to the contrary. With respect to the title seven claim. Can I just ask you to represent the EOC and so I want to get a sort of a national view here. I mean to what degree if the woman is given a different set of rules we're not going to let you play in the same basketball court, but we'll still we'll let him play in this court. How much is she required to protest that because it seems like the argument is well she accepted her boss her boss to be's statement that you cannot negotiate and maybe she should have gone and argued to somebody else or doesn't see and she wanted aggressive enough or whatever. How does that play in here? I mean help me with that. In this instance she was not required to do any more than she did because she was speaking to the director of the corporate college she was being hired she and quarter were both being hired to work at the corporate college. This was their future boss and he was not just a low level manager at the college, but someone who she could presume understood the rules and he spoke unequivocally. And so and said absolutely there is no possibility of negotiation. He did not say I'm not sure we need to check with HR I'm not the person to ask so given the circumstances here where he spoke unequivocally and gave her no room to think that he didn't represent the universities at the college's absolute policy. And furthermore where the policy itself is informal and unwritten according to the college so there was no way she could have just gone online and and determined or picked up a handbook and seen that this was available to her under these circumstances it was no need for her to go further and press the issue. And the district court seemed to think it was it was significant that she spoke to someone who did not himself have the authority to approve a higher salary and that quarter spoke to Don Washington from HR
. The court failed to appreciate that Don Washington also had no authority to approve a higher salary but he simply passed it along to the person who did and director little to whom would he made her request. He would have known and a jury could find on this record that he would have already known but if he didn't by the time he started receiving the copies of the emails that HR was sending to see more saying that quarter is requesting to negotiate a higher salary little was copied on all those emails he knew that this was available he knew it was underway with respect to the other candidate. He a jury could find under these circumstances that the college failed to treat two candidates disparately based on their gender so in response I think it was Judge Barkstill who asked what does this do to the title seven claim on these facts this is a classic case of disparate treatment under title seven in addition to a classic equal pay act claim so we believe that there is. I think that's what you disagree with what I understood counsel for the plaintiff to say understood her to say that gender discrimination was based on the comments and now you're saying it's not based on the comments it's based on the fact that she wasn't allowed to negotiate. I believe what plaintiff's counsel is arguing is that the comments are what would allow a jury to infer that the motive for what Mr. Little did director little was based on gender bias but the actual disparate treatment is the way they were doing it. Yes I see I have no further time the court has no further questions. Thank you Dr. Fritting we appreciate the participation of the EEOC and I also want to thank you for focusing on the facts of the case and not trying to give us some big overview of what's happening all across the country or whatever. All right Mr. Bradshaw. May it please the court. Good morning your honors. Miles Bradshaw counsel for Houston Community College. I would point out that one item and probably the biggest item of this case and how you're going to decide this case to judge Haynes point is what what is what is the court's job here the thing that's being overlooked is this is a new vote review of the summary judgment this court can look at all the evidence that was presented in fact the parties agreed that all the evidence presented cross motions would be considered for all purposes. We can affirm on any basis that's in the record of this case. Absolutely to judge Haynes point you don't have to make a very you don't have to make the ruling that negotiation is in and of itself a factor other than sex. Now I would argue that there are some cases out there and there's a good reason to do that in fact judge Smith state that last comment again about. I negotiation in and of itself. Right I think the court could go two ways here they could rule that yes negotiation in and of itself is a factor other than sex under the number four defense. Judge Smith in the resident case I believe alluded to that and said that any one of the defenses would suffice under the fourth defense. There's a case there are many cases a particular case that specifically held the same thing is the day case
. I'm sorry. The day versus Bethlehem Central School District case Western District, Pennsylvania 2008. The court ultimately held and they specifically said look the legislative history has been interpreted as being a broad catch all defense. An exception and it braces limitless numbers of factors so long as they don't involve sex. And it said and I quote thereby persuading this court that negotiation could be considered a factor other than sex. And that's a case out of the Western District of Pennsylvania. Most of the cases out there that would support our case hold that negotiation plus one other factor is enough to be a factor other than sex. The flip side in this negotiation she was told she couldn't negotiate the other man was told the man was told he could negotiate or they didn't refuse to negotiate. And then we've got the subsequent comments by the very man that was dealing with the plaintiff that possibly a reasonable jar could take were discriminatory. So possibly that's a genuine dispute a material fact over whether it was based on the reason of sex that she did not she was not allowed to negotiate. In response to your honor I would say that the evidence is there is evidence in there that both parties were given the opportunity to negotiate. When Don Washington contacted each party he contacted them on the same day by telephone and they were each at that point they were each offered the opportunity to negotiate. People don't want the evidence shows on that where she was offered the opportunity to negotiate by Washington because she was made an offer of employment at a particular salary. But he didn't expressly say but this is a negotiation role. Most employers don't your honor with all due respect. But she asked little who's going to be her boss I'd like to negotiate and for the purposes of the summary judgment you have to accept is true what she says about that. It is not HR makes these rules it is not negotiable that's the I think of my law clerks my law clerks are told this is the salary you know you have one year after law school or something this is the salary they're not going to call a president Obama or something and say we want more. I mean it's weird to me to say to this woman you cannot negotiate this is a non-negotiable thing and then hold it against her that she didn't know she should have caught someone else. That's what I don't understand about your argument. There are there are many cases out there your honor where plaintiffs put forth a notion that they asked if they could negotiate or they asked could I maybe get a little higher salary which you consider my experience. And the courts have said that's not a counter offer and they have said on the other hand where other individuals have demanded and said I will not come work for you unless you pay me $2,000 more. That's the difference there
. Do you have another case where the person was told you are not allowed to negotiate not just it's open ended here's $41,000 and we just left it open ended but it's $41,000 I'd like to negotiate no it is non-negotiable that's it. Do you have another case like this. There I cannot think of the name of the case but there is one other case where they weren't offered salaries at the same time the female was already working there and she was compared to a predecessor and when she three years earlier negotiated her salary they were told or she asked if she could negotiate and they said no that's your salary. Then the guy came in later the predecessor and in fact negotiated his salary I cannot recall the case. I want to be very clear on this point you stated that Washington told both of them that they could negotiate when I asked you about it you said well he made one of opening offer and that that is sufficient but he did not expressly say to her this is negotiable. That is correct he did not. All right thank you. So did anybody counterman what little you have to accept that what she says that little told her it is non-negotiable period end of story. Did anybody counterman that is there any evidence that anybody else said anything different. We did not we did not present any evidence to dispute that allegation. What we presented was evidence that Mr. Little had no authority to make such a representation that she simply that was a conversation they had during the interview process. It was before she was even given an offer. I think another point that goes to that point is that HCC really has a very systematic approach to the way it hires employees. I think that is the way HCC is going to be charged with what director Little may have told the plaintiff is through apparent authority. There is no manifestation by HCC that he had such authority. The problem that you have is that you are affirmative defense. We are not here to discuss whether contractually she has some cause of action for breach of contract. That is where this whole apparent authority would come from. We are looking at whether you have proved as a matter of law that there was a factor other than sex that played out into this textbook case of disparate pay for the same people doing the same job with the same credentials. You all have happened upon this negotiation thing. Now the question is, were these people playing a game under the same rules? Or was one handcuffed behind her back told to go make a free throw? The other guy was just giving a ball and told to go make a free throw. That is the question to me on a summary judgment on your affirmative defense. I am not talking about trial. That is a whole other story. But just your affirmative defense on summary judgment. I think the court should look at it the way the district court looked at it. And that was it took the thing about this case that is different than many other cases is the fact that both employees were offered the same salary at the same time for the same job. At that moment they both had the opportunity to counteroffer. If you hold, well I guess we are not talking about that point, but they both had the opportunity to counteroffer. She accepted what she was offered. He did not. As to the male applicant, correct me, you know the record better than I do. But so my recollection is that he came back with a specific counteroffer and that part of the justification for that was that he was offered. He was already making a salary that was almost as high as what he ultimately was offered. Those are my words, but tell me what the record shows. I am not trying to make the record myself. You are absolutely correct, your honor. He was already an employee at HCC and he made $52,000 as his salary, which ultimately ended up being the salary that he was offered by HCC. The same salary he was already making. There are a number of cases out there that say that can be a factor other than sex. What someone made in a previous salary, as long as that is not the only factor, which turns me to this comparison of these two individuals resumes. I think that has been somewhat misrepresented. I think the record is very clear and if you can go back and look, Quarters resume is at 2
. That is the question to me on a summary judgment on your affirmative defense. I am not talking about trial. That is a whole other story. But just your affirmative defense on summary judgment. I think the court should look at it the way the district court looked at it. And that was it took the thing about this case that is different than many other cases is the fact that both employees were offered the same salary at the same time for the same job. At that moment they both had the opportunity to counteroffer. If you hold, well I guess we are not talking about that point, but they both had the opportunity to counteroffer. She accepted what she was offered. He did not. As to the male applicant, correct me, you know the record better than I do. But so my recollection is that he came back with a specific counteroffer and that part of the justification for that was that he was offered. He was already making a salary that was almost as high as what he ultimately was offered. Those are my words, but tell me what the record shows. I am not trying to make the record myself. You are absolutely correct, your honor. He was already an employee at HCC and he made $52,000 as his salary, which ultimately ended up being the salary that he was offered by HCC. The same salary he was already making. There are a number of cases out there that say that can be a factor other than sex. What someone made in a previous salary, as long as that is not the only factor, which turns me to this comparison of these two individuals resumes. I think that has been somewhat misrepresented. I think the record is very clear and if you can go back and look, Quarters resume is at 2.17-227. What is it, 205-216? And looking at them, there are at least five differences that I can see with regard to Quarters experience. I think this is what gets you over the hurdle of having to hold well, yes, negotiation is the only thing we have, and that is a factor other than sex. It is not the only thing you have. Mr. Quarter, educationally, he had, they were almost identical, four years, each master's degree, but Mr. Quarter also had an advanced degree in psychology for what is worth. Mr. Quarter had been in HCC since 1999 through 08 when they were both hired as an HR trainer for nine years, and that is when he was making the $52,000 salary. He had also been a trainer as a senior medical trainer in Saudi Arabia for three years prior to that. He had given training to Envy Anderson for two years, HR training. And he was also a training specialist for Prairie View A&M for three years prior to coming to his new job with HCC. On the other hand, Ms. Woody, and he was an adjunct professor for HCC for many years, as was Ms. Woody an adjunct professor. In addition to that, she had been an instructor at the micro-center in Houston, keyboarding and other software program type classes. She had been a substitute teacher at Houston ISD. She had been an executive secretary and administrative assistant, a sales assistant, and she claimed to be self-employed, and that was kind of an interesting situation. And one of the reasons, well not one of the reasons, but she claimed to be self-employed in three different resumes that she's presented. She presented it three different ways. On the one hand, she presented that she was self-employed from 94 to 98. Another time when she reapplied for another position, she presented that this self-employment was from 1994 to 2002
.17-227. What is it, 205-216? And looking at them, there are at least five differences that I can see with regard to Quarters experience. I think this is what gets you over the hurdle of having to hold well, yes, negotiation is the only thing we have, and that is a factor other than sex. It is not the only thing you have. Mr. Quarter, educationally, he had, they were almost identical, four years, each master's degree, but Mr. Quarter also had an advanced degree in psychology for what is worth. Mr. Quarter had been in HCC since 1999 through 08 when they were both hired as an HR trainer for nine years, and that is when he was making the $52,000 salary. He had also been a trainer as a senior medical trainer in Saudi Arabia for three years prior to that. He had given training to Envy Anderson for two years, HR training. And he was also a training specialist for Prairie View A&M for three years prior to coming to his new job with HCC. On the other hand, Ms. Woody, and he was an adjunct professor for HCC for many years, as was Ms. Woody an adjunct professor. In addition to that, she had been an instructor at the micro-center in Houston, keyboarding and other software program type classes. She had been a substitute teacher at Houston ISD. She had been an executive secretary and administrative assistant, a sales assistant, and she claimed to be self-employed, and that was kind of an interesting situation. And one of the reasons, well not one of the reasons, but she claimed to be self-employed in three different resumes that she's presented. She presented it three different ways. On the one hand, she presented that she was self-employed from 94 to 98. Another time when she reapplied for another position, she presented that this self-employment was from 1994 to 2002. You know, all of this argument you're making now is not in your brief. In your brief, you spend about one page saying alternatively, the male comparator's negotiation and his higher qualifications just quite a higher salary. But I'm looking back through this and I'm not seeing any of this. Suppose, you know, you do say he's more qualified, but certainly didn't brief that adequately. I understand you, hon. I think I just suggest a 12-hour conversion, you know, you realize that you better come up with something else today because it wasn't looking real good on a summary judgment. I will say this, Your Honor, it was in our reply brief at the, or our reply motion at the district court stage. We don't look at what's in the district court motion. We look at what you briefed to us. Let me ask you this. If we were to reverse on the summary judgment on the affirmative defense, what in your view would happen procedurally next? Your opponent says cases over, do you have a different view? My disagree, I think it would be vacated and remanded for further consideration. What? We have a trial on the defense. Okay. Yes. And so that, then all this other junk could be brought in as well, this other stuff about the... Right, we can dig deeper. We can avoid an employee in 1994 or not or whatever, and the jury could consider whether that really was the reason. Because it's still true, even if she was self-employed in 1994 or not, that if the reason was sex, then you got a problem, right? Sure. Because you're defenses because of something else. And this is why this case is so interesting to me, because you always feel like only in law school is everybody like completely every single thing they did in their life was exactly the same
. You know, all of this argument you're making now is not in your brief. In your brief, you spend about one page saying alternatively, the male comparator's negotiation and his higher qualifications just quite a higher salary. But I'm looking back through this and I'm not seeing any of this. Suppose, you know, you do say he's more qualified, but certainly didn't brief that adequately. I understand you, hon. I think I just suggest a 12-hour conversion, you know, you realize that you better come up with something else today because it wasn't looking real good on a summary judgment. I will say this, Your Honor, it was in our reply brief at the, or our reply motion at the district court stage. We don't look at what's in the district court motion. We look at what you briefed to us. Let me ask you this. If we were to reverse on the summary judgment on the affirmative defense, what in your view would happen procedurally next? Your opponent says cases over, do you have a different view? My disagree, I think it would be vacated and remanded for further consideration. What? We have a trial on the defense. Okay. Yes. And so that, then all this other junk could be brought in as well, this other stuff about the... Right, we can dig deeper. We can avoid an employee in 1994 or not or whatever, and the jury could consider whether that really was the reason. Because it's still true, even if she was self-employed in 1994 or not, that if the reason was sex, then you got a problem, right? Sure. Because you're defenses because of something else. And this is why this case is so interesting to me, because you always feel like only in law school is everybody like completely every single thing they did in their life was exactly the same. And yet here we have pretty much everything is the same except for gender. And so that strikes me as if you're going to come in and say because of sex, you may prove, convince a jury that it wasn't. Well, it was another factor. It was this thing. She was a self-employing, he won, or whatever. But you've got to... It's a matter of law to say that's true. Strikes me is very, very odd here. Because I mean, you can always find something that's different. You know, she wore a more professional attire or less professional type. Somebody's always different. And this is the history of discrimination in our country is sometimes it's overt because you're a woman, I'm not going to hire you, then it gets more subtle. Well, you weren't as professionally dressed as the other guy. You're not as aggressive, you're not as forceful. And so we really have to scrutinize that stuff and it just doesn't strike me the summary judgments a good place for that. But at the same time, I think you might go, we don't trial, I'm not saying that. If the jury just believed her story about whether she was told that she couldn't negotiate and all that. But is that really a summary judgment? I think it can be, Your Honor, because in this case, like you said, the facts are so..
. And yet here we have pretty much everything is the same except for gender. And so that strikes me as if you're going to come in and say because of sex, you may prove, convince a jury that it wasn't. Well, it was another factor. It was this thing. She was a self-employing, he won, or whatever. But you've got to... It's a matter of law to say that's true. Strikes me is very, very odd here. Because I mean, you can always find something that's different. You know, she wore a more professional attire or less professional type. Somebody's always different. And this is the history of discrimination in our country is sometimes it's overt because you're a woman, I'm not going to hire you, then it gets more subtle. Well, you weren't as professionally dressed as the other guy. You're not as aggressive, you're not as forceful. And so we really have to scrutinize that stuff and it just doesn't strike me the summary judgments a good place for that. But at the same time, I think you might go, we don't trial, I'm not saying that. If the jury just believed her story about whether she was told that she couldn't negotiate and all that. But is that really a summary judgment? I think it can be, Your Honor, because in this case, like you said, the facts are so... are relatively clear compared to most cases that you might consider. And when you look at the defense and that it's a catch all defense and is there for a reason, it's there to allow for negotiation, to allow to look beyond the idea that all person should be paid in an equivalent manner and equivalent pay, regardless of the other reasons. It's there for a reason. And here, as the court pointed out below, the opportunities to obtain a particular salary were equal. They were offered the same salary at the same time. One side of the differential was established when she accepted that offer. I don't want to go back over the... I mean, if she said she wasn't given the same rules for negotiation, it's hard for me to say he's such a much greater negotiator when he's allowed to and she's not. I mean, you're a better basketball player if you're allowed to play than if somebody's not. Michael Jordan is benched, he's not as good a player as you if you're allowed to play. And he's not. About addressing the gender discrimination and whether even if we were burst on the EPA claim, the gender discrimination claim could be affroned. Well, the title seven claim was dismissed because of the fact that the court below found the EPA defense and that that is tied in through the benediment into the title seven. And so that was the reason it was also summarily dismissed. I think if the comments, the alleged comments are the basis for the title seven sex discrimination, they don't rise. There's many cases in this circuit. They don't rise to the level of even creating a primafacial case. But there are evidentiary of this guy's mindset in telling her a different set of rules. You would agree with that. I mean, I agree that they don't create a hostile environment by themselves
. are relatively clear compared to most cases that you might consider. And when you look at the defense and that it's a catch all defense and is there for a reason, it's there to allow for negotiation, to allow to look beyond the idea that all person should be paid in an equivalent manner and equivalent pay, regardless of the other reasons. It's there for a reason. And here, as the court pointed out below, the opportunities to obtain a particular salary were equal. They were offered the same salary at the same time. One side of the differential was established when she accepted that offer. I don't want to go back over the... I mean, if she said she wasn't given the same rules for negotiation, it's hard for me to say he's such a much greater negotiator when he's allowed to and she's not. I mean, you're a better basketball player if you're allowed to play than if somebody's not. Michael Jordan is benched, he's not as good a player as you if you're allowed to play. And he's not. About addressing the gender discrimination and whether even if we were burst on the EPA claim, the gender discrimination claim could be affroned. Well, the title seven claim was dismissed because of the fact that the court below found the EPA defense and that that is tied in through the benediment into the title seven. And so that was the reason it was also summarily dismissed. I think if the comments, the alleged comments are the basis for the title seven sex discrimination, they don't rise. There's many cases in this circuit. They don't rise to the level of even creating a primafacial case. But there are evidentiary of this guy's mindset in telling her a different set of rules. You would agree with that. I mean, I agree that they don't create a hostile environment by themselves. Somebody's going around saying, well, I think the woman shouldn't make as much because the man's a breadwinner and this kind of stuff. That may not be a hostile environment, but does it is evidentiary of his mindset in telling her she not letting go she. Those types of comments might be, but not the comments we have in this case. He said, you remind me of my mother. He called her blonde and he called her Dini. And that's it. Okay, well, let's have an entry of his mindset. I agree it's by itself not actionable. I think, well, I don't know if she accepts the clarification of the EEOC attorney, but that I think is a different position. What about the retaliation? Is that out of the case? Yes, I think it is because the retaliation is the adverse employment for the retaliation is the lower salary, which was set at the time she was higher. She's claiming the conduct, the retaliatory conduct was after I complained about this, my salary remained low. That just doesn't, there's no causation. I'm thinking her, and again, I'm certainly be wrong. I thought the retaliation she claimed was that her ratings went from exemplary to professional. That was another basis, your honor, that was summarily dismissed. And that was done prior to her complaining to the company about something else that would possibly be the protected activity. So the causation might be missing. Correct. I think ultimately, as a denovo review, you can look at the record and see that the evidence is there, that at least two factors negotiation, as well as credentials are there for the decision to have not or to fall under the fourth defense. I think you could also go further and establish a guideline for this circuit, for employers and employees alike, that negotiation or negotiation plus one is a factor other than sex under the right set of facts. Thank you, and my time is up. All right, thank you, Mr
. Somebody's going around saying, well, I think the woman shouldn't make as much because the man's a breadwinner and this kind of stuff. That may not be a hostile environment, but does it is evidentiary of his mindset in telling her she not letting go she. Those types of comments might be, but not the comments we have in this case. He said, you remind me of my mother. He called her blonde and he called her Dini. And that's it. Okay, well, let's have an entry of his mindset. I agree it's by itself not actionable. I think, well, I don't know if she accepts the clarification of the EEOC attorney, but that I think is a different position. What about the retaliation? Is that out of the case? Yes, I think it is because the retaliation is the adverse employment for the retaliation is the lower salary, which was set at the time she was higher. She's claiming the conduct, the retaliatory conduct was after I complained about this, my salary remained low. That just doesn't, there's no causation. I'm thinking her, and again, I'm certainly be wrong. I thought the retaliation she claimed was that her ratings went from exemplary to professional. That was another basis, your honor, that was summarily dismissed. And that was done prior to her complaining to the company about something else that would possibly be the protected activity. So the causation might be missing. Correct. I think ultimately, as a denovo review, you can look at the record and see that the evidence is there, that at least two factors negotiation, as well as credentials are there for the decision to have not or to fall under the fourth defense. I think you could also go further and establish a guideline for this circuit, for employers and employees alike, that negotiation or negotiation plus one is a factor other than sex under the right set of facts. Thank you, and my time is up. All right, thank you, Mr. Bradshaw. Ms. Pinoggus, you saved time for a bottle. You accept that clarification that you're not claiming that these comments are independently actionable, but rather that they're evidentiary of the disparate claim. I'm not claiming that. I'm only claiming that the paragraph 16 of our complaint, footnote 105, lists out a lot more than what Mr. Bradshaw said, princess Dingey, you remind me of my mother blonde when she's African American. And then the text messages about you know what to do, let your husband work. You know, when you're here, you're saying. These comments are not, you're not claiming that they are a create a hostile environment, claiming that they're evidentiary of his mindset in setting up a different set of rules or whatever. We are, the EPA does not require intent, but it welcomes it. Mr. Little's 21-day silence. The fact that he made these statements indicates his mindset that he kept silent because she's born. Okay. What is the relevance of these remarks? The relevance is that a jury could infer that she was not given the opportunity to negotiate with Mr. Little because he had a gender bias mindset. That's it. HCC sites. And what are you using to benefit damage wise or other from the gender discrimination claim? I mean, is it offer some sort of remedies that the EPA claim doesn't? Yes. I mean, I think it was pled because of the statements. It was not our major cause of action
. Bradshaw. Ms. Pinoggus, you saved time for a bottle. You accept that clarification that you're not claiming that these comments are independently actionable, but rather that they're evidentiary of the disparate claim. I'm not claiming that. I'm only claiming that the paragraph 16 of our complaint, footnote 105, lists out a lot more than what Mr. Bradshaw said, princess Dingey, you remind me of my mother blonde when she's African American. And then the text messages about you know what to do, let your husband work. You know, when you're here, you're saying. These comments are not, you're not claiming that they are a create a hostile environment, claiming that they're evidentiary of his mindset in setting up a different set of rules or whatever. We are, the EPA does not require intent, but it welcomes it. Mr. Little's 21-day silence. The fact that he made these statements indicates his mindset that he kept silent because she's born. Okay. What is the relevance of these remarks? The relevance is that a jury could infer that she was not given the opportunity to negotiate with Mr. Little because he had a gender bias mindset. That's it. HCC sites. And what are you using to benefit damage wise or other from the gender discrimination claim? I mean, is it offer some sort of remedies that the EPA claim doesn't? Yes. I mean, I think it was pled because of the statements. It was not our major cause of action. We are complaining here because the district court dismissed the claim when there was no motion pending. You still employ there. Yes. So are there any damages you could obtain under your Title VII gender discrimination claim that you could not obtain under your EPA claim? I suppose mental anguish type things, but we didn't get that far. We didn't know, we did not discover it. But HCC sites and its brief number of cases were courts have discussed negotiation and answer your question to our tains. Each one of those cases, they were performing a different job, established a different defense, or had greater skills. You asked Mr. Bradshaw if he knew of any case where negotiation was desperately provided. The case he cites in his brief is Dave versus Bethlehem. Out of the Western district of Pennsylvania, it's unpublished. In that case, the school's motion for summary judgment was denied by the district court and the court explained, quote, a reasonable fact finder could view the defendant's testimony that the male insisted on negotiating while the female did not, was in reality the defendant's refusal to negotiate with women while accepting the insistence of the man. I mean, the status subtle, that's the problem with these kinds of cases. And typically it's much more convoluted than this. And I like I said, I just, to me, this seems like such a, I did want to point out there was some discussion about whether she should have jumped up and down and said I wanted to go shade two. Mr. Little, she interviewed her in February. That's uncontested. He told her then the salary is on before she got the offer, the salary will be non-negotiable. So when she spoke to Mr. Wanshee, she was already told that it didn't happen. She didn't have a reason to tell Mr
. We are complaining here because the district court dismissed the claim when there was no motion pending. You still employ there. Yes. So are there any damages you could obtain under your Title VII gender discrimination claim that you could not obtain under your EPA claim? I suppose mental anguish type things, but we didn't get that far. We didn't know, we did not discover it. But HCC sites and its brief number of cases were courts have discussed negotiation and answer your question to our tains. Each one of those cases, they were performing a different job, established a different defense, or had greater skills. You asked Mr. Bradshaw if he knew of any case where negotiation was desperately provided. The case he cites in his brief is Dave versus Bethlehem. Out of the Western district of Pennsylvania, it's unpublished. In that case, the school's motion for summary judgment was denied by the district court and the court explained, quote, a reasonable fact finder could view the defendant's testimony that the male insisted on negotiating while the female did not, was in reality the defendant's refusal to negotiate with women while accepting the insistence of the man. I mean, the status subtle, that's the problem with these kinds of cases. And typically it's much more convoluted than this. And I like I said, I just, to me, this seems like such a, I did want to point out there was some discussion about whether she should have jumped up and down and said I wanted to go shade two. Mr. Little, she interviewed her in February. That's uncontested. He told her then the salary is on before she got the offer, the salary will be non-negotiable. So when she spoke to Mr. Wanshee, she was already told that it didn't happen. She didn't have a reason to tell Mr. Wanshee to do that. You have the problem that if she does go over Mr. Little's head and he's going to be her boss. I mean, I don't think we should say as a matter of law, you should go over your boss's head in order to preserve your right to be paid properly under the law. I believe that the record reflects that Mr. Porter was working the HR department. So maybe that's the reason he asked Ms. Epps, you know, hey, is there a negotiation here? Because they both asked the same question. And so the male applicant was not told at any time that there's no negotiation, is that right? There is no record evidence of that, no. There's no record evidence one way or the other. We didn't do discovery in this case. Why not? We didn't what? Judge Hughes didn't allow discovery. He wanted motions. Well, no, that's what rule 56D is for, that you can ask for discovery. Did you request discovery and or file a rule 56D motion? No, we felt that we had a good summary judgment motion on the inability to have negotiations, it is desperately providing negotiations as a defense that we filed cross motions. We talked about prior salary being a justification for disparity, the young blood case July 1st that was in a rule 28J specifically says that prior salary cannot justify wage disparity. And moreover, prior salary cannot justify ongoing salary disparity year after year after year, particularly here where what is performance is better and she raises more money. By the skills comparison that Mr. Brachael talked about was not the basis of the district court's decision. There was no comparison of skills. All right, your time has expired Ms. Panados in your case is under submission
. The court will take a brief recent