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Rizo v. Yovino

United States Court of Appeals, Ninth Circuit

April 27, 2017

Aileen Rizo, Plaintiff-Appellee,
v.
Jim Yovino, Fresno County Superintendent of Schools, Erroneously Sued Herein as Fresno County Office of Education, Defendant-Appellant.

          Argued and Submitted February 17, 2017 San Francisco, California

         Appeal 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.

          Daniel 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.

         SUMMARY[**]

         Equal Pay Act

         The panel vacated the district court's order denying the defendant employer's motion for summary judgment on a claim under the Equal Pay Act.

         The 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.

          OPINION

          ADELMAN, District Judge:

         The 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[1] 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.

         The 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.

         We conclude that this case is controlled by Kouba. We therefore vacate the district court's order and remand with instructions to reconsider ...


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