                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                        September 19, 2017
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
CYNTHIA A. CASALINA,

      Plaintiff - Appellant,

v.                                                          No. 16-2264
                                                (D.C. No. 1:13-CV-00535-KG-WPL)
RICK PERRY, in his capacity as the                           (D. N.M.)
Secretary of Energy,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before TYMKOVICH, Chief Judge, BALDOCK and HOLMES, Circuit Judges.
                 _________________________________

      In this pay discrimination case, brought under the Equal Pay Act (EPA), 29 U.S.C.

§ 206(d), Cynthia A. Casalina appeals from a district court order that entered summary

judgment in favor of the Secretary of Energy. We exercise jurisdiction under 28 U.S.C.

§ 1291 and affirm.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                    BACKGROUND

       Because the parties are familiar with the factual contours of Casalina’s

employment, we provide only a short synopsis. In August 2008, Casalina began working

at the Los Alamos Field Office (LAFO) of the National Nuclear Security Administration

(NNSA), which is within the Department of Energy. She was hired as a safety and

occupational health manager and worked alongside Dean Decker, a general

engineer/physical scientist. They “both perform[ed] tasks related to safety and health of

equal complexity” and they “split work assignments 50/50.” Aplt. App. at 134.

       In 2010, Casalina complained of pay disparity, prompting the LAFO to order a

desk audit of her position. Two classification specialists conducted the audit and reported

their findings in January 2011. They concluded that the positions involved shared

responsibilities, but required different educational backgrounds and professional

experiences:

       [W]hile the two safety positions are similar in occupational safety and
       health program management responsibilities, they are not identical. They
       differ in both design and function of the positions, insofar as Mr. Decker’s
       position was designed to function as a General Engineer/Physical Scientist,
       and it does in fact function in that manner; and Ms. Casalina’s position was
       designed as a safety and health program manager without the requirement
       for professional knowledge of engineering or the physical sciences.
Aplee. Suppl. App., Vol. I at 82-83. Consequently, the classification specialists

concluded that Casalina’s position was properly classified as an “Occupational Safety

and Health Management Series at the GS-14 grade level.” Id. at 83.

       In 2014, Casalina filed suit. She alleged that the Secretary violated the EPA by

paying her “approximately $35,000 less annually than [he] pa[id] Mr. Decker” for work

                                             2
“requir[ing] equal skill, effort and responsibility” and performed under similar

conditions. Aplt. App. at 16. “[T]he EPA prohibits a disparity in pay between men and

women ‘except where such payment is made pursuant to’” a prescribed affirmative

defense. Mickelson v. N.Y. Life Ins. Co., 460 F.3d 1304, 1312 (10th Cir. 2006) (quoting

29 U.S.C. § 206(d)(1)).

       On the Secretary’s motion for summary judgment, the district court determined

that Casalina had raised a triable issue of fact as to whether the work she performed was

substantially equal to the work Decker performed. But despite that prima facie showing

of pay discrimination, Casalina could not, the district court said, overcome the

Secretary’s affirmative defense that the pay disparity resulted from a factor other than

sex. Specifically, the district court noted that Decker was paid more because of his

“greater total years of experience, his longer tenure as a federal governmental employee,

and [his] placement in the Excepted Service pay plan.” Id. at 101. Accordingly, the

district court granted the Secretary’s motion, prompting this appeal.

                                      DISCUSSION

       We review de novo a district court’s order granting summary judgment. Koch v.

City of Del City, 660 F.3d 1228, 1237 (10th Cir. 2011). Summary judgment is

appropriate if “there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

       The Secretary does not contest on appeal that Casalina has met her summary

judgment burden of raising a prima facie EPA case by showing that “she was performing

work which was substantially equal to that of [Decker],” Riser v. QEP Energy, 776 F.3d

                                             3
1191, 1196 (10th Cir. 2015) (internal quotation marks omitted). Instead, the Secretary

raises the affirmative defense that the pay “differential [was] based on any other factor

other than sex.” Id. at 1198 (internal quotation marks omitted). To succeed, the

Secretary must clearly prove that the wage differential is in fact explained by the reasons

given so that no rational trier of fact could find to the contrary. Id. at 1198. Casalina

may “rebut[ ] the [Secretary’s] EPA defense[ ] by showing pretext.” Brownlee v. Gay &

Taylor, Inc., 861 F.2d 1222, 1224 (10th Cir. 1988). The record supports the Secretary’s

“other than sex” affirmative defense.

       First, when Casalina was hired to work at LAFO, she had roughly sixteen years of

experience as an industrial hygienist for the federal government. Decker, on the other

hand, brought twenty-two years of that type of experience to LAFO when he was hired as

a general engineer/physical scientist. Moreover, Decker had a more extensive

educational background in the physical sciences. And by the time Casalina was hired in

2008, Decker had accumulated twenty-seven years of relevant experience compared to

her sixteen years. “[A]n employee’s prior experience is a factor ‘other than sex’ for

purposes of the Equal Pay Act.” Mickelson, 460 F.3d at 1312.

       Second, Decker was hired under the Excepted Service Plan, whereas Casalina was

hired—five years after Decker—under a salary plan known as the Demonstration Project.

The former plan was implemented to recruit and retain “no more than 300” “highly

qualified scientific, engineering, and technical personnel . . . without discriminating based

on . . . sex.” Aplee. Suppl. App., Vol. I at 22, 23. The latter plan, which began shortly

before Casalina’s hiring, was implemented to “improve[ ] Federal [human resources]

                                              4
management” by using a “pay-for-performance system.” Id. at 71, 72. It is undisputed

that the two salary plans were designed to achieve different goals in the hiring and

retention of employees. Where a pay differential is not based on sex, but rather, is

“attributable to the existence of two distinct salary programs, neither of which had sex

discrimination as a purpose or as an effect,” the EPA is not violated. Equal Emp’t

Opportunity Comm’n v. Aetna Ins. Co., 616 F.2d 719, 726 (4th Cir. 1980) (footnote

omitted); see also Riser, 776 F.3d at 1198 (“A bona-fide, gender-neutral pay

classification system constitutes a ‘factor other than sex’ under the EPA.”).1

       Third, Casalina’s predecessor, Dave Barber, had six more years of industrial

hygienist experience than Casalina when he was hired. But like Casalina, he was

ineligible for the Excepted Service Plan and was compensated at the GS-14 pay level.

Evidence that a male predecessor “received similar [compensation] treatment” indicates

that the EPA is not violated. Morgado v. Birmingham-Jefferson Cty. Civil Def. Corps,

706 F.2d 1184, 1189 (11th Cir. 1983).

       Casalina maintains that the Secretary’s reliance on the “other than sex” affirmative

defense is pretextual because the Secretary took inconsistent positions in the district court

by claiming on the one hand that she and Decker did not perform substantially equal


       1
         Casalina argues that the Secretary cannot rely on the different salary
classification systems to support the pay differential with Decker because she
performed the same work as Decker. But a pay gap resulting from a salary
classification may properly “be explained by legitimate business-related differences
in work responsibilities and qualifications for the particular positions at issue.”
Riser, 776 F.3d at 1199 (internal quotation marks omitted). Thus, even though there
is a triable issue as to whether Decker and Casalina performed substantially equal
work, it is undisputed that Decker’s qualifications exceeded Casalina’s.
                                             5
work, and on the other hand that Decker’s superior qualifications justified the pay

differential. But Casalina did not raise this argument below, and she has not argued for

the application of plain-error review on appeal. The argument is, therefore, waived. See

Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128, 1130-31 (10th Cir. 2011).2

       Next, Casalina derives pretext from the fact that “no number of years of service in

her position would ever let her achieve the same pay” as Decker. Aplt. Opening Br. at

20-21. While “the size of the pay differential” in an EPA case may be relevant to

“determining whether equal pay is being paid for equal work,” Sims-Fingers v. City of

Indianapolis, 493 F.3d 768, 771 (7th Cir. 2007), Casalina does not explain how

quantifying the pay differential between her and Decker illustrates pretext. Decker was

hired under a different salary plan and he possessed greater experience and education.

Casalina’s inability to match Decker’s pay level through years of service alone does not

reflect on the reason for the wage disparity with Decker. Cf. Kendrick v. Penske Transp.

Servs., Inc., 220 F.3d 1220, 1233 (10th Cir. 2000) (“Our role is to prevent unlawful hiring

practices, not to act as a super personnel department that second guesses employers’

business judgments.” (internal quotation marks omitted)).

       Finally, Casalina asserts that pretext is shown by (1) LAFO’s retracted

determination prior to her current employment that she was qualified for a different

position as a general engineer/physical scientist; and (2) LAFO’s “remov[al] from the

       2
        In any event, the Secretary merely advanced alternate positions: either the
work was different (i.e., no prima facie case); or, if the work was substantially equal,
then the wage disparity was justified by a reason other than sex (i.e., an affirmative
defense). The Secretary’s use of alternate positions within the analytical framework
established for EPA claims does not suggest pretext.
                                            6
initial draft of the desk audit report” of “a suggestion[ ] . . . [to] re-classify her position to

a [higher] pay band,” Aplt. Opening Br. at 10. Casalina contends these facts show her

“educational qualifications” do not justify a pay differential with Decker. Id. at 23. But

these two facts neither indicate a comparable educational background with Decker nor

address Decker’s greater experience.

       Because Casalina has failed to identify a triable issue of fact as to whether the

Secretary’s “other than sex” affirmative defense is merely a pretext for discrimination,

the Secretary was entitled to summary judgment.

                                         CONCLUSION

       The district court’s judgment is affirmed.


                                                 Entered for the Court


                                                 Bobby R. Baldock
                                                 Circuit Judge




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