                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                      2009-5093

                                    ANN THOMAS,

                                                       Plaintiff-Appellant,

                                           v.

                                  UNITED STATES,

                                                      Defendant-Appellee.


      Ann Thomas, of Atlanta, Georgia, pro se.

       Carrie A. Dunsmore, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for defendant-appellee. With
her on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson,
Director, and Steven J. Gillingham, Assistant Director.

Appealed from: United States Court of Federal Claims

Judge Lynn J. Bush
                     NOTE: This disposition is nonprecedential.


     United States Court of Appeals for the Federal Circuit

                                     2009-5093

                                   ANN THOMAS,

                                                         Plaintiff-Appellant,

                                         v.

                                  UNITED STATES,

                                                         Defendant-Appellee.


        Appeal from the United States Court of Federal Claims in 07-CV-212,
                                Judge Lynn J. Bush.
                         __________________________

                          DECIDED: November 4, 2009
                          __________________________


Before MAYER, LOURIE, and RADER, Circuit Judges.

PER CURIAM.

      Ann Thomas appeals the judgment of the United States Court of Federal Claims

which: (1) denied her motion for summary judgment under the Equal Pay Act, 29 U.S.C.

§ 206 (2006), and (2) granted the government’s motion for summary judgment on the

basis of its affirmative defense of a merit system of pay. Thomas v. United States, 86

Fed. Cl. 633 (2009). We affirm.

      Thomas is employed as a GS-12 Unemployment Insurance Specialist (“UI

Specialist”) for the Department of Labor (“DOL”) in its Atlanta regional office.   She

claims that the agency violated the Equal Pay Act by paying her at a lower pay grade
than three male UI Specialists who are paid at the GS-13 level. She alleges that these

three male employees have positions that require “equal skill, effort, and responsibility,

and which are performed under similar working conditions” as her position. 29 U.S.C.

§ 206(d)(1).

      The trial court found that genuine issues of material fact regarding whether

Thomas’ position was substantially equal to the jobs of her alleged comparators

precluded granting summary judgment in her favor. The court concluded, however, that

there were no genuine issues of material fact as to whether the pay differential was

based upon the DOL’s merit system of pay, which is a statutory affirmative defense to

an Equal Pay Act claim. Thomas, 86 Fed. Cl. at 640-41 (citing 29 U.S.C. § 206(d)(1)).

The court therefore granted the government’s motion for summary judgment and

dismissed Thomas’ claim.

      We review a grant of summary judgment by the Court of Federal Claims de novo.

Suess v. United States, 535 F.3d 1348, 1359 (Fed. Cir. 2008). Summary judgment is

appropriate where there are no genuine issues of material fact and the moving party is

entitled to judgment as a matter of law. Id. Thomas presents a general complaint about

DOL’s hiring and promotion system, alleging that it is not systematic or organized as

required of a merit-based system, and that the agency recently promoted two women to

the GS-13 level only because it was seeking a defense against her discrimination suit.

We find these contentions unpersuasive.

      The government presented uncontroverted evidence that Thomas reached the

top of her career ladder, and had been promoted as far as she could be without

participating in a competitive hiring process. It also showed that the three alleged male




2009-5093                                   2
comparators were awarded their GS-13 positions through hiring processes in which

Thomas did not compete. Although Thomas apparently competed for two other GS-13

positions in her regional office, she was determined not to have been the most qualified

candidate for the positions. The fact that these positions were ultimately awarded to

other female candidates seriously undermines Thomas’ contention that her non-

selection was the result of gender discrimination. Thomas contends that the DOL’s

system of hiring and promotion is not merit-based, but she fails to produce evidentiary

support for her contentions. The government presented cogent evidence that the DOL’s

merit system “was an organized and structured procedure by which employees were

evaluated systematically and in accordance with predetermined criteria.” Raymond v.

United States, 31 Fed. Cl. 514, 518 (1994). As the trial court correctly determined, any

alleged pay differential fell into the Equal Pay Act’s merit system exception. Disposition

of her case through summary judgment was therefore appropriate.




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