Trial News

A female physician’s complaint that she was subjected to gender discrimination resulting in a lower salary than her male colleagues has a nondiscriminatory explanation, according to the Tenth Circuit—her lower salary was due to a government pay freeze. However, the court found that whether she was unlawfully retaliated against for complaining of the disparity is a question for a jury to decide. (Bekkem v. Wilkie, 2019 WL 545687 (10th Cir. Feb. 12, 2019).)

Anupama Bekkem began working as a primary care physician for the Veterans Affairs Department in the Oklahoma City area in 2006. As a VA physician, her pay was calculated using three components: base pay determined by length of service, market pay determined by an individual assessment, and performance pay for achievement of certain objectives.

The VA is obligated under 38 U.S.C. §7431(c)(5) and VA policy to review market pay every 24 months through a pay panel review. Bekkem received a pay increase in 2009 following such a review. However, the federal government instituted a three-year pay freeze in January 2011, during which the VA did not conduct biennial pay panel reviews. The pay freeze ended in December 2013, and Bekkem’s supervisor and a pay panel recommended two raises in March and April 2014 that increased her market pay by more than $20,000.

In 2012, prior to receiving the market pay raises, Bekkem was transferred from the VA’s main Oklahoma City clinic to a satellite clinic in the Oklahoma City area. There, she developed a poor relationship with a registered nurse, resulting in both parties complaining to the Equal Employment Opportunity Commission of a hostile work environment. Bekkem also sent a series of emails to VA employees and her manager complaining about her workload, the way her manager handled her conflict with the nurse, and her pay as compared to other physicians. Management issued a reprimand in response to Bekkem’s emails and transferred her back to the VA’s main campus in 2013 to separate her from the “dysfunctional environment.” Bekkem later applied for a medical director position at the satellite clinic but was not selected for the job.

In 2015, Bekkem sued the VA, claiming, among other things, gender discrimination based on unequal pay and retaliation based on the reprimand and the VA’s failure to hire her for the medical director position. The trial court granted the defendant summary judgment.

Reviewing the trial court’s decision de novo, the Tenth Circuit concluded that Bekkem presented no evidence of direct discrimination based on gender. The court then considered whether the plaintiff had presented indirect evidence that raised a genuine issue of material fact as to her discrimination claim under the burden-shifting framework in McDonnell Douglas Corp. v. Green (411 U.S. 792 (1973)). The court found that while Bekkem had adequately shifted the burden to her employer “to offer a legitimate nondiscriminatory reason for its employment decision” as required under Morgan v. Hilti, Inc. (108 F.3d 1319 (10th Cir. 1997)), the VA had responded with sufficient nondiscriminatory reasons for the pay discrepancy. The government pay freeze had prevented the VA from adjusting Bekkem’s market pay, the court said, and only those physicians who took on additional responsibilities or had certain pay components (such as relocation pay) recategorized as market pay received increases during the freeze. The court rejected Bekkem’s arguments that the VA’s explanation of the pay disparity is pretextual, finding no questions of fact for a jury.

As to Bekkem’s failure-to-hire retaliation claim, the Tenth Circuit affirmed, finding that the plaintiff failed to meet the burden of showing that “the desire to retaliate was the but-for cause of the challenged employment action.” Univ. of Texas Sw. Med. Ctr. v. Nassar (570 U.S. 338 (2013).) The court relied on the plaintiff’s testimony that she had been passed over for the position due to her history with the satellite clinic nurse and not her EEOC complaint.

However, the court disagreed with the trial court’s evaluation of Bekkem’s unlawful retaliation claim. Bekkem’s emails that triggered the reprimand letter included, along with the pay disparity claim, an accusation that a male doctor had bribed the VA to continue paying him while he was away on a fellowship. Although the VA argued it had a legitimate nonretaliatory reason for reprimanding Bekkem, defending itself from an accusation of criminal bribery, the Tenth Circuit held that the reprimand letter was overbroad. The reprimand addressed Bekkem’s dispute with the nurse, her schedule complaints, and her pay inequality complaints in addition to the bribery accusation. The court reversed and remanded this retaliation claim, concluding that a reasonable jury could find the VA’s explanation of the reprimand letter to be pretextual.        

San Francisco attorney Lori Andrus, who has represented women in other gender pay gap and retaliation cases, said “the holding in Bekkem v. Wilkie isn’t all bad.” Andrus was pleased with the court’s conclusion that “the supervisor’s reprimand on the same day that the plaintiff emailed her colleagues about her discrimination claim and the reprimand’s reference to the plaintiff’s ‘complaints regarding the pay of physicians’ was enough to show that a reasonable jury could find the VA’s explanation of the action to be pretextual.” However, Andrus added, “The Tenth Circuit made it clear that retaliatory acts generally need to be close-in-time to the protected activity. Actions taken three months later won’t suffice.”