dissenting.
I dissent from that part of the majority’s opinion that affirms the district court’s grant of summary judgment for the defendant on the federal Equal Pay Act (EPA) claim, 29 U.S.C. § 206. Forsberg contends that the defendant violated the EPA by paying Maintenance Administrators (MAs) less than Test Desk Technicians (TDTs). MAs are predominantly women; they are paid according to the G-8 clerk rate. TDTs, by contrast, were predominantly male. Classified as “craft” workers, TDTs earned over one hundred dollars per week more than MAs.
As the majority Recognizes, the critical question for Forsberg’s EPA claim is whether the Test Desk Technician (TDT) job is “substantially equal” to the Maintenance Administrators’ (MA) job. At 1413. Two jobs are “substantially equal” if they *1423require equal skill, equal effort, equal responsibility, and are performed under similar working conditions. 29 C.F.R. § 1620.14(a) (1987). The majority concludes that the skills required for the MA position are not, as a matter of law, substantially equal to those demanded by the former TDT position and thus affirms the grant of summary judgment. At 1411. I disagree, and would hold that Forsberg has raised genuine issues of fact regarding the substantial equality of the two positions.
The majority only reached one of the four criteria necessary to establish that two jobs are substantially equal under the EPA — the criterion of skill. In finding that the MA job does not require skill substantially equal to the TDT job, the majority relies primarily on the MA’s inability to operate the TDT testboard, and determines that, therefore, “the MA job obviously does not require the analytical, ‘puzzle-solving’ skills that the TDT job requires.” At 1416. However, the fact that the MAs are not trained to operate the testboard or perform the exactly identical tasks required of the TDTs does not necessarily mean, as the majority indicates, that the jobs do not demand substantially equal skill. Such reasoning would preclude a finding of substantial equality whenever technological advances lead to the use of updated equipment in a given job. The EPA regulations do not comport with this view. 29 C.F.R. § 800.123 expressly states that “the performance of jobs on different machines or equipment would not necessarily result in a determination that the work so performed is unequal within the meaning of the statute if the equal pay provisions otherwise apply_” Accepting defendant’s argument, as the majority does, could lead to absurd results. For example, as plaintiffs point out, a bus driver who operates a modern vehicle with an automatic transmission, and does not know how to drive a manual bus, would not hold a job “substantially equal” to a bus driver of an earlier era who could and did drive a bus with a manual transmission.
Defendants dispute the aptness of the bus driver analogy; they argue that, in fact, the TDT and MA positions do require distinct skills. But our job is not to choose between these two assessments of the jobs. On a motion for summary judgment, it is enough that the plaintiff has presented evidence that supports a finding of “substantial equality.” Anderson, 106 S.Ct. at 2507. Plaintiff has met that burden here. She has provided testimony by affidavits, from a variety of sources,1 that the two jobs do involve substantially equal skill. Moreover, the majority opinion itself raises an issue regarding the degree to which the two jobs differ in their need for analytical problem solving skills.. The majority notes that “it is through this report [produced by the MLT-2 computer, the machine that ultimately replaced the testboard used by the TDTs] that an MA first learns that a customer is having trouble with his or her telephone line. The MA then analyzes the report and answers the MLT-2’s recommendation.” At 1412 (emphasis added). Similarly, the TDT, after performing the manual tests, “would then analyze the results and dispatch a crew to solve the problem.” At 1411.
The majority’s discussion of the other sub-factors relevant to determining substantial equality of skill — education, training, and experience — likewise demonstrates that these issues are disputed. At 1414. The majority’s factual determination that the two jobs require different skills was *1424inappropriate on a motion for summary judgment. Given this conflicting evidence the trier of fact, not the court, should decide whether the jobs of TDTs and MAs are substantially equal. Spaulding, 740 F.2d at 697.
Because the majority found that the TDT and MA jobs did not require substantially equal skill, it never reached the question of whether Forsberg raised a genuine issue of fact regarding the three other criteria — effort, responsibility, and working conditions — necessary for finding substantial equality under the EPA. I believe Fors-berg raised a genuine issue of fact regarding each of these factors. Plaintiff presented evidence in her affidavits that disputed defendant’s contention that, in terms of effort, MAs produce less and run fewer tests than TDTs. As for responsibility, plaintiff introduced testimony that MAs “analyze, diagnose, and cure customers’ telephone malfunctions on the basis of reports produced by their machines....,” as did TDT's. Finally, PNB apparently does not dispute the equality of working conditions for the two positions.
Forsberg has raised genuine factual issues regarding each criterion required under the EPA to establish “substantial equality” of jobs. For the reasons set forth above, I dissent.
. The majority refused to consider the affidavit of Forsberg’s expert, Dr. Rollins, because Fors-berg did not specifically call the court’s attention to it in her opposition to defendant’s motion for summary judgment. However, plaintiff had presented the affidavit to the court on the class certification issue. Rule 56(c) allows for grants of summary judgment based on documents "on file” with the court. Fed.R.Civ.P. 56(c). Moreover, in its opposition to defendant’s motion for summary judgment, Forsberg stated that she “relies on all factual submissions currently before the Court, in the form of deposition testimony, affidavits, summaries of facts in other memoranda.” Plaintiffs Reply Brief at 3. For this reason, I believe the majority erred in failing to consider this affidavit. However, even without this affidavit, plaintiff has raised a genuine issue of fact on the substantial equality of skill required of TDTs and MAs based on the other evidence presented.