and Submitted February 17, 2017 San Francisco, California
from the United States District Court for the Eastern
District of California Michael J. Seng, Magistrate Judge,
Presiding D.C. No. 1:14-cv-00423-MJS
Michael Gary Woods (argued) and Timothy J. Buchanan,
McCormick Barstow Sheppard Wayte & Carruth LLP, Fresno,
California, for Defendant-Appellant.
M. Siegel (argued) and Kevin Brunner, Siegel & Yee,
Oakland, California, for Plaintiff-Appellee.
Barbara L. Sloan (argued), Attorney; Margo Pave, Assistant
General Counsel; Jennifer S. Goldstein, Associate General
Counsel; P. David Lopez, General Counsel; Office of the
General Counsel, Washington, D.C.; as and for Amicus Curiae
Equal Employment Opportunity Commission.
Before: A. Wallace Tashima and Andrew D. Hurwitz, Circuit
Judges, and Lynn S. Adelman, [*] District Judge.
panel vacated the district court's order denying the
defendant employer's motion for summary judgment on a
claim under the Equal Pay Act.
defendant conceded that it paid the female plaintiff less
than comparable male employees for the same work. The
defendant sought to establish the affirmative defense that
this pay differential was based on a "factor other than
sex" by showing that its pay structure was based on
employees' prior salaries. The panel held that under
Kouba v. Allstate Ins. Co., 691 F.2d 873 (9th Cir.
1982), prior salary alone can be a "factor other than
sex" if the defendant shows that its use of prior salary
was reasonable and effectuated a business policy. The panel
remanded the case for further proceedings, with instructions
that the district court evaluate the business reasons offered
by the defendant and determine whether the defendant used
prior salary reasonably.
ADELMAN, District Judge:
plaintiff, Aileen Rizo, is an employee of the public schools
in Fresno County. After discovering that the County pays her
less than her male counterparts for the same work, she
brought this action under the Equal Pay Act, 29 U.S.C. §
206(d), Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e-5, and the California Fair Employment and
Housing Act, Cal. Gov. Code § 12940. When the
County moved for summary judgment, it
conceded that it paid the plaintiff less than comparable male
employees for the same work. However, it argued that this
result was lawful because the pay differential was
"based on any other factor other than sex, " an
affirmative defense to a claim under the Equal Pay Act. This
other factor was prior salary, and the district court
concluded that when an employer bases a pay structure
"exclusively on prior wages, " any resulting pay
differential between men and women is not based on any other
factor other than sex. Rizo v. Yovino, No.
1:14-cv-0423-MJS, 2015 WL 9260587, at *9 (E.D. Cal. Dec. 18,
2015). Based on this conclusion, the district court denied
the County's motion for summary judgment.
district court candidly recognized that its decision
potentially conflicted with this court's decision in
Kouba v. Allstate Insurance Co., in which we held
that prior salary can be a factor other than sex, provided
that the employer shows that prior salary "effectuate[s]
some business policy" and the employer uses prior salary
"reasonably in light of [its] stated purpose as well as
its other practices, " 691 F.2d 873, 876- 77 (9th Cir.
1982), and thus certified its decision for interlocutory
appeal under 28 U.S.C. § 1292(b). We permitted that
appeal and authorized the County to appeal from the order
denying summary judgment.
conclude that this case is controlled by Kouba. We
therefore vacate the district court's order and remand
with instructions to reconsider ...