Moore v. United States

66 F.4th 991

Opinion

Case: 22-1475 Document: 39 Page: 1 Filed: 04/28/2023

United States Court of Appeals for the Federal Circuit ______________________

TIMOTHY MOORE, Plaintiff-Appellant

v.

UNITED STATES, Defendant-Appellee ______________________

2022-1475 ______________________

Appeal from the United States Court of Federal Claims in No. 1:21-cv-01931-CFL, Senior Judge Charles F. Lettow. ______________________

Decided: April 28, 2023 ______________________

PETER BROIDA, Arlington, VA, argued for plaintiff-ap- pellant.

RAFIQUE OMAR ANDERSON, Commercial Litigation Branch, Civil Division, United States Department of Jus- tice, Washington, DC, argued for defendant-appellee. Also represented by REGINALD THOMAS BLADES, JR., BRIAN M. BOYNTON, PATRICIA M. MCCARTHY. ______________________

Before PROST, REYNA, and STARK, Circuit Judges. Case: 22-1475 Document: 39 Page: 2 Filed: 04/28/2023

MOORE, Chief Judge, NEWMAN, LOURIE, DYK, PROST, REYNA, TARANTO, CHEN, HUGHES, STOLL, CUNNINGHAM, and STARK, Circuit Judges, have joined Part II.B of this opinion. PROST, Circuit Judge. Timothy Moore appeals the U.S. Court of Federal Claims’ dismissal of his complaint alleging that his em- ployer, the government, violated the Equal Pay Act (“EPA”), 29 U.S.C. § 206(d). We vacate the dismissal and remand for further proceedings consistent with this opin- ion. I A The complaint alleges the following facts. Mr. Moore, a man, is an Examination Manager at the Washington, D.C. headquarters of the Securities and Exchange Com- mission (“SEC”). The SEC also employs two women Exam- ination Managers (“comparators”) in that same office. Mr. Moore and the comparators perform the same work and have the same jobs, which require equal skill, effort, and responsibility and are performed under similar work- ing conditions. In 2014, the SEC initiated a Pay Transition Program (“Program”) to recalibrate its employees’ pay so that they could receive credit for years of relevant work experience regardless of their SEC hire date. The Program was open to all SEC employees. To be considered for the Program, employees had to apply, which required stating interest and supplying a résumé that included work history, job ti- tles and duties, those jobs’ start and end dates, and whether they were full- or part-time. The open period for Program applications was approximately September 14, 2014, to October 14, 2014. The comparators applied for the Program during this open period. Mr. Moore, however, did not, due to family-related issues then occupying his Case: 22-1475 Document: 39 Page: 3 Filed: 04/28/2023

MOORE v. US 3

attention. The SEC permitted about ten other SEC em- ployees impacted by extenuating circumstances to apply for the Program in November and December 2014, after the Program’s open period had closed. Pay adjustments under the Program began to take ef- fect around June 2015. At that time, the comparators’ sal- aries were increased via the Program. In August and September 2016, Mr. Moore tried to apply for the Program, but the SEC’s personnel director declined to consider him. Since June 2015, the comparators have been paid more an- nually than Mr. Moore. According to the complaint, the SEC lacks justification under the EPA for any Program-related pay differential be- tween him and the comparators because: (1) the Program’s application process was unnecessary, given that the SEC has always had in its records the information it needed to evaluate the proper level of his pay; and (2) the SEC had no valid basis for creating, or not extending, a deadline for any employee to apply for and obtain the Program’s bene- fits. Mr. Moore seeks damages under the EPA greater than $10,000 to account for the past and present pay differential between him and the comparators. B The government moved to dismiss Mr. Moore’s com- plaint under Court of Federal Claims Rule 12(b)(6), relying heavily on our decision in Yant v. United States, 588 F.3d 1369 (Fed. Cir. 2009). In Yant, a group of nurse practitioners at the Depart- ment of Veterans Affairs (“VA”) sued the government, al- leging that it violated the EPA by paying nurse practitioners (around 80% of whom were women) less than physician assistants (around 60% of whom were men) de- spite the jobs’ equivalence. The Court of Federal Claims granted summary judgment for the government, conclud- ing that “the EPA does not contemplate” mixed-gender Case: 22-1475 Document: 39 Page: 4 Filed: 04/28/2023

groups with such a substantial portion of the “putatively preferred” gender in the lower-paid category and the “pu- tatively disadvantaged” gender in the higher-paid cate- gory. Yant v. United States, 85 Fed. Cl. 264, 272 (2009). On appeal in Yant, we affirmed—but for a different reason. We first articulated the usual standard for an EPA claimant’s prima facie case: showing “that an 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.” Yant, 588 F.3d at 1372 (cleaned up) (quoting Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974)). But we then added an extra el- ement to the claimant’s prima facie case—namely, a show- ing that the pay differential “is either historically or presently based on sex.” Id. And we affirmed the summary judgment because the claimants had failed to raise a tria- ble issue of fact on this element. Id. at 1374 (“Because the Yant plaintiffs fail to raise a genuine issue of material fact that the pay differential . . . is based on sex, they have failed to make a prim[a] facie case.”); see also id. (reasoning that, because the claimants failed to make such a showing, “the ratios of males to females are irrelevant”). The government’s motion in this case argued that Yant compelled dismissing Mr. Moore’s complaint. It noted the complaint’s acknowledgement that the Program was open to all employees and that it created a pay differential be- tween Mr. Moore and the comparators given Mr. Moore’s failure to timely apply for the Program. The government also noted the complaint’s lack of allegations that any dif- ferential was based on sex. The government therefore ar- gued that Mr. Moore had not met Yant’s prima facie element of showing that any differential was based on sex. See Def.’s Mot. to Dismiss Pl.’s Compl. at 7–10, Moore v. United States, No. 1:21-cv-01931 (Fed. Cl. Nov. 29, 2021) (quoting and citing Yant throughout), ECF No. 5. Reiter- ating Yant in its reply, the government insisted that the Case: 22-1475 Document: 39 Page: 5 Filed: 04/28/2023

MOORE v. US 5

Court of Federal Claims was “required to follow Yant, as it is binding precedent”; that “post Yant, the [c]ourt no longer has the authority to infer that sex discrimination occurred simply because there is a difference in pay between men and women in jobs requiring similar skills, effort, and re- sponsibility”; and that “Yant applies to all EPA cases in the [c]ircuit.” Def.’s Reply to Pl.’s Resp. to Def.’s Mot. to Dis- miss at 4, 5, 7, Moore v. United States, No. 1:21-cv-01931 (Fed. Cl. Jan. 14, 2022), ECF No. 10. The Court of Federal Claims relied on Yant to dismiss the complaint for failing to state an EPA claim. Moore v. United States, 157 Fed. Cl. 747 (2022). The court observed that Mr. Moore had the burden to “show[] that discrimina- tion based on sex exists or at one time existed,” id. at 750 (alteration in original) (quoting Yant, 588 F.3d at 1373), and that it could “not ignore binding authority from the Federal Circuit,” id. at 750 n.3 (referencing Yant). And, after noting both (1) the complaint’s acknowledgements that the Program was open to all employees but, unlike the comparators, Mr. Moore didn’t timely apply for it, and (2) that the complaint “does not claim that the difference in pay for equal work is the result of past or present discrim- ination based on sex,” the court concluded that Mr. Moore did “not state a prima facie violation of [the EPA], 29 U.S.C. § 206(d)(1).” Id. at 750 (cleaned up). Mr. Moore timely appealed. We have jurisdiction un- der 28 U.S.C. § 1295(a)(3). II We review de novo the Court of Federal Claims’ Rule 12(b)(6) dismissal of a complaint for failure to state a claim. E.g., Creative Mgmt. Servs., LLC v. United States, 989 F.3d 955, 961 (Fed. Cir. 2021). Our discussion has three parts. First, we consider whether, assuming Yant is good law, its prima facie stand- ard is applicable in this case (it is). Second, we consider en Case: 22-1475 Document: 39 Page: 6 Filed: 04/28/2023

banc whether Yant’s prima facie standard is good law (it is not). Third, we consider whether affirming the dismissal on grounds independent of Yant is appropriate (it is not). A Initially, both parties argue on appeal that Yant’s prima facie standard doesn’t apply here because this case doesn’t involve the same mixed-gender-group fact pattern as did Yant. See, e.g., Appellant’s Br. 38 (“Yant does not dictate application to comparator-to-comparator[] cases of the analysis for a mixed-gender quasi-class action . . . .”); Appellee’s Br. 11–12 (arguing that Yant “was highly de- pendent on its unusual facts” and that, given the factual differences between Yant and this case, Yant “is of limited relevance”). 1 We are unpersuaded. The court in Yant spoke broadly of the prima facie standard governing EPA cases, never suggesting that its standard applied only in cases present- ing the same fact pattern. If anything, the Yant court dis- claimed reliance on that case’s particular facts. See Yant, 588 F.3d at 1374 (reasoning that, because the plaintiffs failed to “demonstrate[] past or present discrimination based on sex,” “the ratios of males to females are irrelevant” (emphasis added)). And indeed, we have applied Yant’s prima facie stand- ard in a case involving factual allegations much more sim- ilar to this case than to Yant. In Gordon v. United States,

1 This differs markedly from what the government told the Court of Federal Claims. There, the government maintained not only that Yant was highly relevant, but also that Yant’s prima facie standard “applies to all EPA cases in the [c]ircuit.” Def.’s Reply to Pl.’s Resp. to Def.’s Mot. to Dismiss at 7–8, Moore v. United States, No. 1:21-cv-01931 (Fed. Cl. Jan. 14, 2022) (emphasis added), ECF No. 10; see also supra pp. 4–5. Case: 22-1475 Document: 39 Page: 7 Filed: 04/28/2023

MOORE v. US 7

903 F.3d 1248 (Fed. Cir. 2018), vacated on other grounds, 754 F. App’x 1007 (Fed. Cir. 2019), two women physicians with the VA sued the government, alleging that it violated the EPA by paying certain men physicians more for equal work. Relying on Yant, we affirmed the Court of Federal Claims’ summary judgment for the government because the women physicians had “point[ed] to no evidence that the pay differential complained of was based on sex, either historically or presently.” Id. at 1254 (citing Yant, 588 F.3d at 1372); see also id. at 1252 (“This court’s decision in Yant . . . further requires that, as part of the prima facie case, an EPA plaintiff bears the burden of showing that discrimination based on sex exists or at one time existed.” (cleaned up)). 2 Accordingly, assuming Yant’s prima facie standard is good law, that standard applies in this case and would com- pel affirmance. B3 We now consider en banc whether Yant’s prima facie standard is good law. We conclude it is not. The EPA states in relevant part:

2 Although we vacated our opinion in Gordon due to the parties’ subsequent settlement and stipulated dismis- sal, see 754 F. App’x 1007, we are aware of nothing that would call into question the cited reasoning in that opinion. See Hadley v. United States, 229 Ct. Cl. 591, 594–95 (1981) (observing that, despite an opinion’s vacatur, its reasoning may still “remain[] valid”). 3 Part II.B of this opinion has been considered by an en banc court formed of MOORE, Chief Judge, NEWMAN, LOURIE, DYK, PROST, REYNA, TARANTO, CHEN, HUGHES, STOLL, CUNNINGHAM, and STARK, Circuit Judges. Case: 22-1475 Document: 39 Page: 8 Filed: 04/28/2023

No employer having employees subject to any pro- visions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establish- ment for equal work on jobs the performance of which requires equal skill, effort, and responsibil- ity, and which are performed under similar work- ing conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit sys- tem; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differen- tial based on any other factor other than sex . . . . 29 U.S.C. § 206(d)(1). Nearly fifty years ago, the Supreme Court described the EPA’s basic operation as “straightforward.” Corning Glass, 417 U.S. at 195. To make out a prima facie EPA case, a claimant bears the burden to “show that an em- ployer 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 per- formed under similar working conditions.’” Id. (quoting 29 U.S.C. § 206(d)(1)). Every other circuit articulates an EPA claimant’s prima facie case the same (or materially the same) way as the Supreme Court. E.g., McMillan v. Mass. Soc’y for the Prevention of Cruelty to Animals, 140 F.3d 288, 298 (1st Cir. 1998); Belfi v. Prendergast, 191 F.3d 129, 135–36 (2d Cir. 1999), abrogated on other grounds by Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); Stanziale v. Jargowsky, 200 F.3d 101, 107 (3d Cir. 2000); EEOC v. Md. Ins. Admin., 879 F.3d 114, 120–21 (4th Cir. 2018); Plemer v. Parsons-Gilbane, 713 F.2d 1127, 1136–37 (5th Cir. 1983); Buntin v. Breathitt Cnty. Bd. of Educ., Case: 22-1475 Document: 39 Page: 9 Filed: 04/28/2023

MOORE v. US 9

134 F.3d 796, 799–800 (6th Cir. 1998); Fallon v. Illinois, 882 F.2d 1206, 1208, 1211 (7th Cir. 1989); Taylor v. White, 321 F.3d 710, 715–16 (8th Cir. 2003); Rizo v. Yovino, 950 F.3d 1217, 1222 (9th Cir. 2020) (en banc); Mickelson v. N.Y. Life Ins. Co., 460 F.3d 1304, 1311 & n.5 (10th Cir. 2006); Irby v. Bittick, 44 F.3d 949, 954 (11th Cir. 1995); Goodrich v. Int’l Brotherhood of Elec. Workers, AFL-CIO, 815 F.2d 1519, 1522–24 (D.C. Cir. 1987). In Yant, this circuit added an extra element to an EPA claimant’s prima facie case—namely, a showing that the pay differential “is either historically or presently based on sex.” 4 Yant, 588 F.3d at 1372. This extra element is prob- lematic for a few reasons—all related. First, it’s simply ex- traneous in view of the Supreme Court’s articulation of an EPA claimant’s prima facie case. Second, it violates the principle that “the EPA does not require . . . proof of inten- tional discrimination.” Ledbetter v. Goodyear Tire & Rub- ber Co., 550 U.S. 618, 640 (2007), superseded on other grounds by statute, Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5. Having to prove—on top of a pay differential across sexes for equal work—that the dif- ferential is “based on” sex is tantamount to having to prove that it’s because of sex, which is tantamount to having to prove intentional discrimination. Third, it misallocates the EPA’s burdens. Once an EPA claimant carries the burden on the (properly understood) prima facie case, it becomes

4 This move was noted at the time. See Yant, 588 F.3d at 1375 (Prost, J., concurring in the result) (not- ing that “the majority imports a novel requirement into the plaintiff’s prima facie case”). It has been noted since. See Gordon, 903 F.3d at 1256–57 (Reyna, J., additional views) (noting that “Yant decidedly changed th[e] standard by re- quiring, as part of the prima facie case, evidence that the pertinent pay differential is based on sex,” and that “[n]o other circuit imposes such a requirement on the plaintiff”). Case: 22-1475 Document: 39 Page: 10 Filed: 04/28/2023

the employer’s burden to prove—as an affirmative de- fense—that the pay differential has a permissible non-sex- based justification. See Corning Glass, 417 U.S. at 195–96, see also 29 U.S.C. § 206(d)(1) (providing four permissible non-sex-based justifications for paying different sexes dif- ferently for equal work—i.e., “where such payment 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” (emphasis added)). Given these problems with Yant’s extra prima facie el- ement, it’s perhaps unsurprising that the government—by far the most frequent (and perhaps the only) employer that comes before this circuit facing an EPA claim—declines to defend this aspect of Yant on appeal. Oral Arg. at 42:40–43:07 (“We don’t necessarily agree with Yant all the way . . . . [S]ome of it has to deal with what the plaintiffs are required to do at the opening part of their case. In terms of saying that there has to be a showing of past or present discrimination, we don’t necessarily agree with that part.”); 5 see Appellee’s Br. 11–12 (declining to embrace Yant, instead arguing that the Court of Federal Claims “did not need to apply Yant” to dismiss the complaint). We therefore take this opportunity to bring this circuit in line with our sister circuits and the Supreme Court. To make out a prima facie EPA case, a claimant bears the bur- den to “show that an employer pays different wages to em- ployees of opposite sexes ‘for equal work on jobs the performance of which requires equal skill, effort, and re- sponsibility, and which are performed under similar work- ing conditions.’” Corning Glass, 417 U.S. at 195 (quoting

5 No. 22-1475, https://oralarguments.cafc.uscourts. gov/default.aspx?fl=22-1475_02062023.mp3. Case: 22-1475 Document: 39 Page: 11 Filed: 04/28/2023

MOORE v. US 11

29 U.S.C. § 206(d)(1)). Yant is overruled to the extent it is inconsistent with the foregoing. C We lastly consider whether to affirm the complaint’s dismissal on grounds having nothing to do with Yant. We decline to do so. Although the government argues that Yant-independent grounds warrant dismissal, see, e.g., Oral Arg. at 17:30–32 (“We don’t have to touch Yant at all . . . .”); Appellee’s Br. 11–12 (arguing that the Court of Federal Claims “did not need to apply Yant” to dismiss the complaint), the government’s arguments in this regard have not been adequately developed in this appeal (nor, seemingly, in the Court of Federal Claims). Because the Court of Federal Claims relied on Yant to dismiss the com- plaint, and because Yant’s prima facie standard is no longer good law, we believe the appropriate course is to va- cate the dismissal and remand for further proceedings con- sistent with this opinion. If, on remand, the government again pursues a Rule 12 motion, it will be able to develop its Yant-independent arguments, and the Court of Federal Claims will be able to review the complaint free of Yant’s prima facie standard. Additionally, the Court of Federal Claims may wish to provide Mr. Moore an opportunity to amend his complaint, now that he knows he no longer needs to meet Yant’s requirements. Before remanding, however, we address a misconcep- tion that has become evident on appeal—one that may be relevant to the government’s suggestion that Mr. Moore “plead[ed] [his] way out of court.” See Oral Arg. at 25:00–18. Both the government and the Court of Federal Claims seem to believe that the complaint affirmatively states that the pay differential was not based on sex. See, e.g., Appellee’s Br. 12 (“[T]he complaint plainly states that the reason for the wage difference was because of the [Pro- gram]; and not because of sex/gender.” (emphasis added)); id. at 15 (“[Mr. Moore] alleges that the complained of wage Case: 22-1475 Document: 39 Page: 12 Filed: 04/28/2023

differential was not based on sex . . . .” (emphasis in origi- nal)); Moore, 157 Fed. Cl. at 750 (stating that “the com- plaint affirmatively acknowledges that no sex-based discrimination caused the difference in pay”). The com- plaint does not do so. To be sure, it alleges that the reason for the pay differential is one that’s seemingly unrelated to sex—i.e., Mr. Moore didn’t timely apply for the Program. But identifying the reason for the pay differential as one that doesn’t seem based on sex is not the same as conceding that the differential was not based on sex. Nowhere does the complaint do the latter. Appellee’s App’x 1–7; accord Reply Br. 17 (“[Mr.] Moore does not concede or agree that the salary differentials were not because of, on account of, or the result of sex under the EPA.”). 6 To be clear, we ex- press no view on the merits of any “pleaded yourself out of court” argument that might be developed on remand

6 We further note that the complaint alleges that the SEC lacked an acceptable business reason for (1) requiring Program applications at all, and (2) creating, or not extend- ing, a deadline for any employee to apply for and obtain the Program’s benefits. Appellee’s App’x 6 ¶ 17. These allega- tions may be relevant to the EPA’s fourth statutory affirm- ative defense—a pay differential “based on any other factor other than sex.” 29 U.S.C. § 206(d)(1). Some circuits have held that the statutory “any other factor other than sex” must be job-related or related to a legitimate business rea- son. See, e.g., Belfi, 191 F.3d at 136; EEOC v. J.C. Penny Co., 843 F.2d 249, 253 (6th Cir. 1988); Rizo, 950 F.3d at 1227. Other circuits have been less willing to restrict what qualifies as “any other factor other than sex.” See, e.g., Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1462 (7th Cir. 1994); Taylor, 321 F.3d at 717–20. Our circuit has not waded into this debate, and we are in no position to do so today. We simply note the issue in the event it becomes relevant. Case: 22-1475 Document: 39 Page: 13 Filed: 04/28/2023

MOORE v. US 13

(whether as to this complaint or any amended one). We simply observe that, as currently written, the complaint it- self does not affirmatively state or concede that the pay dif- ferential was not based on sex. III We have considered the parties’ remaining arguments and find them unpersuasive. Because the Court of Federal Claims’ dismissal relied on Yant, which is now overruled, and because we decline to affirm on any Yant-independent grounds, we vacate the dismissal and remand for further proceedings consistent with this opinion. VACATED AND REMANDED COSTS Costs to appellant.