APPEAL
FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF OKLAHOMA (D.C. No. 5:14-CV-00996-HE)
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.
I.
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 ...