Labor & Employment Law Daily Wrap Up, DISCRIMINATION—PAY—Fed. Cl.: Postal Service employee paid less than male colleagues advances EPA claim, (May 1, 2025)

By Kathleen Kapusta, J.D.

Although the Postal Service used its promotional pay calculator to set the salary ranges for all three employees, the pay calculator set the employee’s maximum permissible salary based solely on her prior pay.

Citing the Federal Circuit’s 2024 decision in Boyer v. United States, the U.S. Court of Federal Claims found the Postal Service failed to show it made any inquiry into whether a female employee’s prior pay was based on sex at the time of her promotion. Nor did it show that it relied on her prior pay together with another permissible factor to justify the pay differential between the employee and her two male colleagues. In addition to denying summary judgment against her EPA claim, the court also found that a trial was necessary to determine whether the Postal Service willfully violated the EPA (Urban v. United States, No. 20-1600 (Fed. Cl. Apr. 30, 2025)).

The employee began working as a rural carrier associate in 2004 and from 2007 to 2013, she worked in a part-time flexible position. During this period, she was a union member and was paid on a bargaining pay scale.

Salary history. In 2013, she began working as a field sales representative, which was paid on the Executive Administrative Schedule (EAS). For this EAS-17 position, her salary was $52,731. The employee believed she was not slotted into the appropriate EAS grade at the time. In 2014, she was promoted to EAS-19 with a salary of $57,039. By early 2016, her salary was $58,180.

Around that time, the employee applied for an EAS-20 training instructor position. During her interview with the selecting official, she told him she felt she “wasn’t slotted in properly” when she moved onto the EAS scale and was “looking for proper compensation for the position” because she was “at a very low end of the scale for EAS.”

Pay calculator. The selecting official promoted the employee and two male colleagues. He used the Postal Service’s promotional pay calculator to determine the range of salaries he could offer them. He inputted the employee’s prior $58,180 salary as a field sales representative, her EAS-19 grade level, and the new EAS-20 grade level into the pay calculator, which determined that she was eligible to receive an increase of 3-10 percent or an annual salary between $59,925 and $63,998. This was $8,264 less than the minimum salary of one of her male colleagues and $17,619 less than the other’s minimum salary for the same position.

Once the selecting official established the permissible salary ranges for the three individuals, he set each applicant’s salary within that percentage range. He then recommended his chosen number to his manager for approval. In doing so, he relied on the applicant’s “experience as well as the interview process” and their resume. For the employee, he recommended that she receive what he then believed was the maximum 10-percent increase based on her prior work experience and her “very good grasp of the ability to deliver content.” He also recommended an 8-percent increase for one of her colleagues and the maximum allowable salary for the other.

Boyer. When the employee learned of the pay disparity, she sued under the EPA. In March 2023, she filed a Consent Motion to stay briefing pending the Federal Circuit’s resolution of Boyer, which the court granted. In 2024, the Federal Circuit, in Boyer, held that the “EPA prohibits reliance on prior pay unless (1) the prior pay itself is not based on sex, or (2) an additional permissible factor ‘other than sex’ is present to assure a factfinder that the ‘other factor’ of prior pay is indeed ‘other than sex’ (i.e., not a proxy for sex).”

Prior pay alone. Moving for summary judgment, the Postal Service argued that the pay disparity was based on “any other factor other than sex.” Citing Boyer, the court explained that an employer can rely on prior pay alone as a “factor other than sex” if it demonstrates that “the prior pay itself is not based on sex.” Here, the court observed, the Postal Service did not show that it made any inquiry into whether the employee’s prior pay was based on sex at the time of her promotion. The selecting official testified that he used her prior salary to set her new salary but did not know if her prior salary was based on sex. Moreover, his manager did not claim to know whether the employee’s prior salary was unaffected by sex discrimination when she approved the salary recommendation, stating only that the employee’s promotional salary was “based on HR policy and her salary at the time of the offer.”

While the Postal Service argued that because its pay calculator uses prior federal pay as an input, any discriminatory influences on prior pay are minimal, it admitted it did not inquire into its compliance with the EPA when it designed the current pay system. Nor was the court persuaded by the Postal Service’s assertion that the reasons for the male colleagues’ higher prior salaries “may include [their] longer experience at the Post Office.” It did not provide any supporting evidence for this supposition or establish that the employee’s prior pay was not the result of sex discrimination or that it relied on this justification when it set her promotional pay. Accordingly, the court found the Postal Service failed to show it relied on a finding that the employee’s prior pay was not based on sex.

Another permissible factor. Nor did the Postal Service show that it relied on the employee’s prior pay together with another permissible factor to justify the pay differential, said the court, pointing to the repeated statements by the selecting official and his manager citing prior pay as the reason the employee received a lower salary than her male counterparts. The court also found it significant that the pay calculator set the employee’s maximum permissible salary based solely on her prior pay. Further, the Postal Service conceded that the only factor that influenced her maximum promotional salary was her prior pay.

Prior pay plus. As to the Postal Service’s contention that Boyer permits a “prior pay plus” approach, this term, said the court, does not appear in the Boyer decision. According to the Postal Service, its promotional pay policy aligns with this “prior pay plus” approach because the selecting official relied on factors other than prior pay to set the employee’s final salary after the pay calculator set a ceiling on her salary. But he only considered other factors, including the employee’s experience, after determining the permissible pay range, the court noted, and these other factors were considered entirely separately from prior pay. Thus, there was no evidence indicating her prior pay was “not a proxy for sex.”

Indeed, said the court, the selecting official assessed that the employee was more qualified than one of her male colleagues but still recommended a lower wage based solely on her prior pay. While the court agreed with the Postal Service that it did not have to pay the employee the same as her male colleagues, “the facts show the Postal Service did not ‘actually rel[y] on specific differences in experience or credentials that were material to the work being performed’ to justify the wage disparity,” said the court, finding instead that the Postal Service relied on prior pay alone, even when the employee was more qualified than a male counterpart.

Bona fide business reason. Nor was there any evidence the Postal Service considered “prior pay together with another bona fide business reason” as it considered only her prior pay separately from other factors in determining her maximum salary. Though the selecting official’s evaluation of the employee’s experience after the pay calculator set a ceiling may have reduced the largest possible wage disparity between her and her male colleague, that, said the court, “does not mean setting the ceiling based solely on her prior pay was permissible under the EPA.”

Uniform method. Also rejected was the Postal Service’s contention that the promotional pay calculator is not based on sex since it is bona fide, gender-neutral, used nationwide, and “furthers a business purpose of the Postal Service by having a uniform method for selecting officials to use in promotions.” That, said the court, does not allow an employer to rely on prior pay alone to justify a wage disparity.

Willful violation. Turning to the employee’s assertion that she is entitled to the three-year statute of limitations for calculating damages, rather than the two-year limitations period, because the Postal Service willfully violated the EPA, the court noted that the Postal Service admitted it conducted no assessment into the EPA when it created the pay calculator, among other changes it made at the time. Finding evidence the Postal Service showed reckless disregard for the EPA by making no inquiry at all, the court concluded that a trial was necessary to resolve whether it made an “adequate inquiry” into the EPA when it designed the pay calculator and whether it “acted recklessly, as opposed to unreasonably.”

A trial is also necessary, said court, to determine whether the selecting official’s superiors willfully, rather than merely unreasonably, violated the EPA by failing to make an adequate inquiry into whether the wage disparity between the employee and her male counterparts was lawful.

The case is No. 20-1600.

Judge: Lerner, C.

Attorneys: Michael Gerard Kane (Cashdan & Kane) for Maria Urban. Kara Marie Westercamp, U.S. Department of Justice, for the United States.

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