In Yant v. United States, No. 08-CV-077 (Fed. Cir. December 14, 2009), the U.S. Court of Appeals for the Federal Circuit affirmed the grant of summary judgment for the employer by holding that an employee will not prevail on an Equal Pay Act claim without showing that the pay differential between men and women is currently or historically based on sex discrimination. The Equal Pay Act is designed to eliminate pay differentials based on sex. The law is unsettled on whether an employee must prove discriminatory intent in order to satisfy his or her initial burden of proof under the Equal Pay Act.

The plaintiffs were current and former nurse practitioners (NPs) employed by the Department of Veterans Affairs. They alleged that the agency had violated the Equal Pay Act by paying the predominantly-male group of physician assistants (PAs) more than the predominantly-female group of NPs, despite performing jobs of equal skill, effort, and responsibility under similar working conditions. From 2004 to 2008, females accounted for approximately 78 percent to 81 percent of NPs and 40 percent to 44 percent of PAs.

Historically, NPs and PAs were paid on the same national scale. However, after 1991, the NP and PA pay scales were determined regionally and nationally, respectively. In some areas of the country, NPs were paid more than PAs. Interestingly, some male PAs have sought relief under the Equal Pay Act in an area where NPs were paid more than PAs. The Court of Federal Claims found that it had jurisdiction over the plaintiffs’ claim, but found summary judgment in favor of the agency because the gender ratios did not support liability under the Equal Pay Act.

The Federal Circuit affirmed summary judgment, but not based on the lower court’s reasoning. Instead, the Federal Circuit determined that the plaintiffs failed to establish an Equal Pay Act violation because they did not prove the past or present existence of discrimination based on sex. In particular, the Federal Circuit stated there was no showing that the post-1991 changes in the pay scales of NPs and PAs were based on sex discrimination. Moreover, the plaintiffs did not demonstrate that the post-1991 pay scales were a perpetuation of pay differentials rooted in sex discrimination. The Federal Circuit contemplated, but did not find, evidence suggesting that the employer was hiring female PAs to avoid liability under the Equal Pay Act.

In light of uncertainty about an Equal Pay Act plaintiff’s burden of proof, the Federal Circuit emphasized that the burden is on the employee to prove that a payment practice is based on current or historical sex discrimination although one judge dissented on this point. Moreover, the Federal Circuit found that mere reliance on gender ratios of two groups does not establish sex-based discrimination. The Federal Circuit has attempted to draw a distinction between "discriminatory intent" and "discrimination based on sex." The Federal Circuit’s Yant decision may have made Equal Pay Act cases more difficult to claim by limiting the type of adequate proof and by heightening the initial burden of proof for employees.

Update on Eligibility for Sensitive Position

The following updates a FEDweek article published December 9, 2009:

In Crumpler v. Department of Defense, 2009 MSPB 233 (December 18, 2009), the Merit Systems Protection Board (Board) decided to reopen the employee’s appeal and vacate its decision (Crumpler v. Department of Defense, 2009 MSPB 224 (November 2, 2009)) which found that the Board was prohibited from reviewing the reasons underlying an agency’s removal of an employee from a "non-critical sensitive" position based on the employee’s ineligibility to access classified information. The Board recognized that its November 2, 2009, decision "marked a momentous change in the law." The Board’s actions were motivated by its desire to provide the Office of Personnel Management the opportunity to explain its views on regulations it promulgated regarding procedural rights for federal employees. The Board may establish a procedure for obtaining the views of interested parties in addition to OPM.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com