United States District Court, W.D. Oklahoma
HEATON U.S. DISTRICT JUDGE
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. Defendant now seeks summary judgment on
plaintiffs remaining claims for pay discrimination based on
gender and retaliation.
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 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.
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.
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
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
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.
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); 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.
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
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.
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.
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.
on plaintiffs PACT team left in June 2013 and was not
replaced for several months. 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.
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.
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.
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
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.
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
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
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
Doc. #121-10, p. 1. Plaintiff was given the opportunity to
respond before Dr. Huycke issued the reprimand on September
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.
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 ...