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Bekkem v. Wilkie

United States Court of Appeals, Tenth Circuit

February 12, 2019

ANUPAMA BEKKEM, Plaintiff - Appellant,
ROBERT WILKIE, Secretary, U.S. Department of Veterans Affairs,[*] Defendant-Appellee.


          Amber L. Hurst (Mark Hammons with her on the reply brief), of Hammons, Gowens & Hurst, Oklahoma City, Oklahoma, for Plaintiff-Appellant.

          Scott Maule, Assistant U.S. Attorney (Robert J. Troester, Acting U.S. Attorney, and Tom Majors and Daniel J. Card, Assistant U.S. Attorneys, with him on the brief), Oklahoma City, Oklahoma, for Defendant-Appellee.

          Before LUCERO, McKAY, and MATHESON, Circuit Judges.

          McKAY, Circuit Judge.

         Plaintiff Anupama Bekkem brought this action against her employer, the Department of Veterans Affairs, based on numerous instances of discrimination and retaliation she allegedly experienced while working as a primary care physician for the VA in the Oklahoma City area. The district court dismissed some of her claims under Rule 12(b)(6) and granted summary judgment in favor of Defendant on the remaining claims. On appeal, Plaintiff seeks reversal of the district court's ruling as to four of her claims, all of which arise under Title VII of the Civil Rights Act of 1964: (1) gender discrimination based on unequal pay; (2) retaliation based on the VA's choice of a different physician to fill a medical director position after Plaintiff had made protected complaints of discrimination; (3) retaliation based on a written reprimand she received after sending an email complaining of discrimination in physician pay; and (4) discrimination because of race, sex, color, national origin, and/or religion based on the same written reprimand. The first three of these claims were disposed of on summary judgment; the final claim was dismissed under Rule 12(b)(6) for failure to state a plausible claim for relief.


         Because Plaintiff raises a claim regarding her pay, it is necessary as an initial matter to briefly describe how VA physicians' pay is calculated. The salaries of VA physicians are "governed by a complex scheme of statute, regulation, VA handbooks, and internal agency guidance and rules." (Appellant's App. at 366.) A VA physician's annual salary includes three components: (1) base pay, which is determined solely by "the physician's length of service with the VA"; (2) market pay, which is based on an individualized assessment of several factors including the physician's experience and accomplishments, the needs of the facility where the physician is assigned, and the applicable healthcare labor market for the physician's specialty or assignment; and (3) performance pay, which is based on the achievement of performance objectives set by management and may not exceed the lower of $15, 000 or 7.5% of the physician's combined base pay and market pay. (Id. at 367.) See 38 U.S.C. § 7431. A physician may also receive an additional discretionary payment of retention pay, relocation pay, and/or recruitment pay in certain circumstances. (Appellant's App. at 367-68.)

         Under the applicable statute and VA policy, a physician's market pay should be reviewed at least once every two years by a compensation panel, which makes salary recommendations to the medical director of the regional VA healthcare system. 38 U.S.C. § 7431(c)(5); (Appellant's App. at 368-69). The regional medical director is the ultimate decisionmaker on the question of physician pay and may thus accept, reject, or alter the compensation panel's recommendations. Compensation panels are composed of a diverse group of men and women from different medical services. These panels meet weekly, and the particular panel members participating in each week's review may vary. Compensation panels do not review all VA physicians' market pay at the same time, but rather conduct individual pay reviews that "tend to be spread out due to scheduling demands, efficiency, and need." (Appellant's App. at 369.)

         Plaintiff began working for the VA healthcare system in 2006. Following a compensation panel review, she received a market pay increase in May 2009. On January 1, 2011, the federal government instituted a pay freeze that would last for three years. Due to the freeze, VA officials were instructed that market pay adjustments to physicians' salaries could only be granted "under exceptional circumstances." (Id. at 565.) Given this guidance, the regional Oklahoma City VA network "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." (Id. at 370.) Both male and female doctors from various medical services did not receive timely biennial compensation panel reviews during the pay freeze. The VA presented evidence that, due to the staggered nature of the biennial compensation reviews, "those physicians who received a compensation panel review closest to the implementation of the pay freeze tended to have higher market pay," while those-like Plaintiff-whose last review had occurred further before the pay freeze "tended to have their lower pre-review salary locked in for the full three years of the pay freeze, which resulted in some pay discrepancies in all of the various services." (Id.) Moreover, the competitive labor market and the fact that newly hired physicians were not locked in to an existing salary meant that newly hired physicians were sometimes brought in at salaries that exceeded many of the longer-term physicians' salaries, contributing to the pay discrepancies across the various medical services. According to the VA's uncontested expert evidence, "[t]here [wa]s no statistically significant difference in the . . . market pay of female and male primary care physicians" employed in the regional VA healthcare system throughout the relevant time period. (Id. at 378.)

         Plaintiff's supervisor-a physician who supervised Plaintiff first as the Medical Director of Primary Care and then as the Chief of Ambulatory Care-initiated a pay review for Plaintiff in 2012, during the pay freeze. He did not participate in her compensation panel review, which occurred in July 2012 and recommended only an increase in base pay. In accordance with the compensation panel's recommendation and the guidance given to VA management officials regarding implementation of the pay freeze, the regional medical director approved an increase of $3, 267 in Plaintiff's base pay but did not adjust her market pay.

         In September 2012, Plaintiff transferred from the main VA clinic in Oklahoma City to a satellite clinic office that the parties refer to as the North May clinic. In early 2013, Plaintiff began having problems with a registered nurse who had recently been assigned to her four-person team at the North May clinic. Their relationship deteriorated to the point that each of them contacted an Equal Employment Opportunity counselor in May 2013 to complain of a hostile work environment. In her May 2013 contact with the EEO, Plaintiff asserted that she had been subjected to a hostile work environment and discrimination based on her "sex (female), National Origin (India), race (Asian-Indian), color (Brown), [and] religion (Hindu)." (Id. at 72.)

         On August 8, 2013, Plaintiff's supervisor sent an email to several VA physicians, including Plaintiff, about the shifts they needed to fill at a regional clinic that had recently lost two primary care physicians. The attached schedule indicated that Plaintiff's supervisor was scheduled to spend four days working at the clinic, while Plaintiff was scheduled for a single day there. Plaintiff responded to her supervisor's email with her own lengthy email, sent on August 19, 2013, in which she asserted that she should not be required to "cover at [the clinic] because you in the physician management[] couldn't do your jobs right." (Id. at 485.) She stated, "You all can fix your mess-ups by going to [the clinic] yourself and taking care of the patients there. . . . Since I didn't get a $50, 000 raise like you did, I don't think I should be the one to fix your mistakes." (Id.) She further stated that she had "turned down an extra $13, 000 for weekend ER coverage" and was unwilling to now accept an increase in her work load with no compensation. (Id.) Plaintiff copied several VA health-care providers in her response to her supervisor and then forwarded her response to numerous other VA employees as well.

         Plaintiff continued to have problems with the nurse assigned to her team at the North May clinic, and on August 27, 2013, her supervisor sent her an email informing her that the physician management had decided to separate her from the "dysfunctional environment" in her team by transferring her back to the main VA facility in Oklahoma City as of August 29, 2013. (Id. at 490.) Plaintiff responded with an email, also sent on August 27, 2013, which she again forwarded to numerous other VA employees. In this email, she complained about the way her supervisor and other management officials had handled the conflict between Plaintiff and the nurse on her team. She complained that this nurse was "lazy and vindictive," described her as an insubordinate liar, and accused VA managers, particularly her supervisor, of various types of wrongdoing. (Id. at 489-90.) Plaintiff then stated that she would be proceeding with a formal EEO complaint.

         Approximately thirty minutes after sending this email, still on the evening of August 27, 2013, Plaintiff sent another email to numerous VA employees, including her supervisor and other management officials. This email was entitled "Information received by filing a FOIA request related to my EEO action related to Ambulatory Care Physic[i]ans' pay." (Id. at 492.) In this email, Plaintiff explained that she had filed a Freedom of Information Act request to obtain the salary data of physicians employed by the VA regional network in Oklahoma City, which she was attaching to her email for her colleagues to consider. She suggested that the other physicians review this data and draw their own conclusions, and she listed some of the conclusions she had drawn. For instance, she had concluded that "[f]emales seem to be paid less than males" and, "[i]n general, Foreign Born or non-white physicians make less than white physicians." (Id.) She also observed that one male doctor had apparently been paid for two years while he was away pursuing a fellowship, and she asked: "I wonder how we too can get this awesome deal? Maybe some money changed hands to make this happen?" (Id.) She advised her colleagues to "[r]eview the data at your leisure and figure out your worth to the organization." (Id.)

         In a letter dated August 27, 2013, Plaintiff's supervisor informed her that he was proposing a reprimand for inappropriate conduct. He specified three reasons for the proposed reprimand:

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. . . . [The nurse] 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 [the other clinic] 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 [the clinic] 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 ...

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