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Bekkem v. McDonald

United States District Court, W.D. Oklahoma

July 21, 2017

ANUPAMA BEKKEM, Plaintiff,
v.
ROBERT A MCDONALD, SECRETARY, U.S. DEPARTMENT OF VETERANS AFFAIRS, Defendant.

          ORDER

          JOE HEATON U.S. DISTRICT JUDGE

         Plaintiff Anupama Bekkem, M.D., sued Robert A. McDonald, Secretary of the United States Department of Veterans Affairs, asserting employment discrimination claims under Title VII of the Civil Rights Act of 1964 and a claim under the Equal Pay Act ("EPA"), 29 U.S.C. § 206(d). The court previously dismissed several of plaintiff s claims, including her EPA claim.[1] Defendant now seeks summary judgment on plaintiffs remaining claims for pay discrimination based on gender and retaliation.[2]

         Summary judgment is appropriate only "if the movant shows that 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). "A genuine dispute as to a material fact 'exists when the evidence, construed in the light most favorable to the non-moving party, is such that a reasonable jury could return a verdict for the non-moving party.'" Carter v. Pathfinder Energy Servs.. Inc., 662 F.3d 1134, 1141 (10th Cir. 2011) (quoting Zwygart v. Bd. of Cntv. Comm'rs, 483 F.3d 1086, 1090 (10th Cir.2007)). Having considered the submissions of the parties in light of this standard, the court concludes defendant's motion should be granted.

         Background[3]

         The background and circumstances pertinent to plaintiffs claims are largely undisputed. Since 2006, plaintiff, an Asian-Indian, Hindu female, has worked as a primary care physician in ambulatory care at VAMC-OKC, the Veterans Health Administration health network for veterans, which has several facilities in Oklahoma City and elsewhere in the region. Dr. Malatinszky, as the Medical Director of Primary Care, was plaintiffs immediate supervisor from 2008-2012. He then became the Chief of Ambulatory Care and plaintiffs second-line supervisor, and Dr. Ramirez, the Deputy Chief of Ambulatory Care, became plaintiffs immediate supervisor. During this time period, Dr. Huycke was the Chief of Staff.

         Plaintiff was in charge of a four person team, referred to as a PACT team or teamlet. The physician led the team, which include a registered nurse ("RN"), a licensed practical nurse ("LPN") and a clerk. Plaintiff, although the leader of the team, did not supervise the team members and lacked the authority to transfer or discipline them.

         Pay

         A VAMC-OKC's primary care physician's total pay has multiple components: (1) base pay, determined by length of service with the Veteran's Administration, (2) market pay, which reflects recruitment/retention needs for the specialty or assignment of a particular physician and includes factors such as level of experience, need for the specialty, board certifications, and accomplishments, (3) performance pay, which recognizes the achievement of specific goals and may not exceed the lower of $15, 000 or 7.5% of annual pay, and (4) retention, relocation and recruitment pay.

         A compensation panel, comprised of a diverse group of men and women from different medical services, determines the physicians' pay. Because the panel meets weekly, its composition varies. The panel makes a pay recommendation and the VAMC-OKC Medical Director then makes a final compensation decision. The director can accept, reject or alter the panel's recommendation. Because the physicians' hiring dates differ, their pay determinations are similarly staggered.

         From January 1, 2011, to December 31, 2013, a federal pay freeze was in effect. Although the freeze did not prohibit increases in market pay, regional leadership communicated to VAMC-OKC that it should not be raised, absent extraordinary circumstances. VAMC-OKC increased a physician's market pay during the freeze if the doctor's duties or responsibilities increased. The agency also increased the market pay of some male and female physicians during the freeze as the result of converting prior retention pay to market pay due to a policy change regarding retention pay. The change did not result in an increase in total pay, "only the source of the various components of pay." Doc. #121-2, p. 6, ¶¶ 31-32.[4]

         The Secretary is required both by statute and the VA Handbook to review the market pay of VA physicians at least once every 24 months. 38 U.S.C. §7431(c)(5);[5] see Doc. #139-4. However, Ann Davidson, the Chief of Human Resources for VMAC-OKC, testified that VMAC-OKC did not always conduct pay panel reviews "within the obligatory two-year period, because management felt there was no reason if there could effectively be no change to market salaries." Doc. #121-2, p. 5, ¶27. Ms. Davidson stated that "[b]oth males and females, in many different services (i.e., more than Ambulatory Care), did not receive timely bi-annual compensation panel review." Id.

         Following a compensation panel review before the freeze was imposed, plaintiff received a market pay increase on May 8, 2009, resulting in a salary of $160, 664. Neither Dr. Malatinszky nor Dr. Huycke participated in that decision. Her next compensation panel review was in July 2012. At that time she received an increase in her base pay because of her longevity with the VA. While Dr. Malatinszky proposed the 2012 panel review, neither he nor Dr. Huycke participated in the panel's deliberation or its decision. When the pay freeze expired, plaintiff was the subject of two compensation panel reviews in March and April 2014, which Dr. Malatinszky proposed and which the Medical Director approved. Plaintiffs market pay was increased more than $20, 000 from $60, 907 to $82, 013.

         A review of the salaries of all non-supervisory primary care physicians working at VAMC-OKC from 2009 through May 2016 did not reveal any "statistically significant gender disparity in pay" either in the aggregate or in an individual year. Doc. #121, p. 12, ¶27. Each year, while there were male primary care physicians who made more market and total pay than plaintiff, there were some who made less.

         Retaliation

         Plaintiff received an overall evaluation score of HIGH SATISFACTORY on her 2013 proficiency report, which was the same score she had received in 2009, 2010, 2011 and 2012. While she was eligible for a performance award of $12, 652 in 2013, if she met certain identified goals, defendant awarded plaintiff only $6, 500, asserting that she had not met the required goals.

         In September 2012, plaintiff transferred to the North May Avenue satellite clinic from the main clinic in downtown Oklahoma City where she had worked since 2006. In early 2013, Cathy Nale was assigned as the RN to plaintiffs PACT team. Ms. Nale made disparaging comments to plaintiff, to other staff and to patients about the fact that plaintiff is Indian and has a dot on her forehead which reflects that she is a married Hindu female. Plaintiff testified that she was offended by Ms. Nale's comments, because she is a female of the Hindu religion from India. She stated that, despite her complaints to Drs. Ramirez and Huycke, nothing was done to stop Ms. Nale's harassment.

         The LPN on plaintiffs PACT team left in June 2013 and was not replaced for several months.[6] Plaintiff said she was told that LPNs from different teams would assist as needed "when they had time." She stated the help she received from other LPNs was minimal and the team vacancy created a burden for her, making it much more difficult for her to care for her patients. It is undisputed that staffing shortages are common and that it can take several months and sometimes up to a year to replace an RN or LPN.

         New patients generally are assigned by non-clinical coordinators and staff. Dr. Malatinszky testified that periodically he reviewed the panel sizes and, with Dr. Ramirez and coworkers, made "decisions on who receives new patients on the panel, who gets new patient[s] assigned to the panel." Doc. #139-7, pp. 28-29. Plaintiff testified that, after she initiated her EEO complaint, she was assigned an increased number of "unassigned patients." She assumed that her colleagues did not experience a similar increase because they "never told [her] about it." Doc. #121-5, p. 17. She also alleges that, because Dr. Ramirez "cherry picked" patients when plaintiff moved to the North May location in September 2012 and took over his panel, she was assigned "sicker" patients.

         Around May 24, 2013, plaintiff initiated contact with an EEO counselor, alleging numerous acts of gender, race/national origin and religious discrimination committed by several management officials, including Drs. Malatinszky and Huycke. Plaintiff testified that Dr. Malatinszky was "very upset" because she had filed an EEO complaint. Doc. #139-17, pp. 14-15. She testified during her deposition that he told her, after she had initiated contact with an EEO counselor but before she had filed a complaint, that he did not want her to continue with it. See Id. at pp. 14-16. She later clarified her earlier testimony, stating that she had inferred that that was what Dr. Malatinszky meant. Doc. #143-5, pp. 3-5. Plaintiff also stated that Dr. Malatinszky was "micromanaging [her] actions and keeping [her] uncomfortable" and not allowing her to do her job properly. Doc. Doc. #139-17, p. 15. In mid-June, Dr. Ramirez denied plaintiffs request to earn extra pay to perform C & P examinations on patients.

         In August 2013 plaintiff sent three emails to Dr. Malatinszky and others. On August 19 plaintiff responded to an earlier email from Dr. Malatinszky regarding the need for provider coverage at the Ardmore VA facility due to the loss of two staff physicians. On August 27 plaintiff responded to another email from Dr. Malatinszky. In his email, Dr. Malatinszky confirms that he met earlier that day with plaintiff and informed her that, because of a "dysfunctional environment in [her] teamlet, " apparently due to plaintiffs relationship with the RN (Cathy Nale) assigned to her teamlet, she was being assigned to the main facility of the OKC VAMC. Doc. #121-12, p. 2. Plaintiffs third email was also sent on August 27. In it she complained of pay discrimination.

         In August 2013, as just mentioned, defendant moved plaintiff back to the main downtown VA clinic. Plaintiffs transfer was a lateral move which did not involve a change in work conditions or duties. She returned to the same team and room where she had previously worked a year earlier. Plaintiff asserts that, contrary to defendant's normal procedure, she was not given administrative leave to make the transition as she had been when she transferred in 2012. She testified that the transfer caused a hardship because there was less accessible parking and it was not a desirable location for her. Doc. #139-17, p. 6.

         On September 5, 2013, plaintiff filed her formal complaint of discrimination with the EEOC. The next day plaintiff received a proposed reprimand from Dr. Malatinszky, which he issued after consulting with human resources to confirm that the behavior alleged in the reprimand violated VA codes of conduct. The proposed reprimand was based on the three August emails plaintiff had sent. It stated:

The specific reasons for your proposed reprimand are as follows:
Inappropriate Conduct
Specification 1: On or about August 27, 2013 you exhibited inappropriate conduct in an email that you sent to me and multiple other employees. In the email you stated to me, among other things, "I was already a U.S. citizen the day I started at this job, unlike you who used the VA to get your visa paperwork done. . . . Ms. Nale is lazy and vindictive. . . The physician management has no backbone, and all you are interested in is dumping work on the rank and file, and padding your paychecks...."
Specification 2: On or about August 19, 2013 you exhibited inappropriate conduct in an email that you sent to me and multiple other employees. In the email you stated to me, among other things, "So we have to cover at Ardmore CBOC because you in the physician management couldn't do your jobs right So how come you need us to help you now, with something you and the rest or [sic] leadership team messed up? You all can fix your mess-ups by going to Ardmore yourself and taking care of the patients there..."
Specification 3: On or about August 27, 2013 you sent an inappropriate email to several employees who you labeled "Colleagues." In the email you alleged various complaints regarding the pay of physicians at this facility. In your email you made an allegation by stating, "Maybe some money changed hands to make this happen?"

Doc. #121-10, p. 1. Plaintiff was given the opportunity to respond before Dr. Huycke issued the reprimand on September 30, 2013.[7]

         Plaintiff asserts that the following January, while she was in India on Family Medical Leave Act leave, Drs. Malatinszky and Huycke refused to notify her that she was required to renew her VA clinical privileges. Because they were copied on the email sent by the VA Credentialing Office, she contends Drs. Malatinszky and Huycke were aware plaintiff had been sent the email and also were aware that, because she was out of the country, she would not have received it. Plaintiff states that if she had failed to renew her privileges, she would have been terminated.

         Two physicians - plaintiff and Dr. Legg-Jack - applied for the medical director position for the North May VAMC-OKC location. In January 2015, both applicants participated in a Performance Based Interview ("PBI"). Each panel member scored Dr. Legg-Jack higher than plaintiff. After the interview plaintiff complained to Dr. Malatinszky that the panel members had asked about her EEO activity. She testified that they spent 30 minutes out of a 45 minute interview quizzing her about her EEO complaints. Dr. Malatinszky requested that a second PBI panel be constituted. Plaintiff asserts that he agreed to form a second panel only after she refused his demand to withdraw her name from consideration for the position. She testified he said:

you better - because of the history with Cathy Nale at the North May clinic, you better withdraw your consideration for North May director and if you don't, I'm going to do in my power to - to, you know, sabotage that. I will never make you to be the director. And even if you become one, we're going to ...

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