from the United States Court of Federal Claims in No.
1:12-cv-00208-RHH, Senior Judge Robert H. Hodges, Jr.
Edgar Nickels, Nickels Law Firm, Sherwood, AR, argued for
Westercamp, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, DC, argued
for defendant-appellee. Also represented by Chad A. Readler,
Robert Edward Kirschman, Jr., Claudia Burke.
Reyna, Linn, and Chen, Circuit Judges.
an Equal Pay Act case. Plaintiffs-Appellants Dr. Gayle Gordon
and Dr. Teresa Maxwell, women physicians in the Department of
Emergency Medicine of the Central Arkansas Veterans
Healthcare System in Little Rock, Arkansas, filed claims
under the Equal Pay Act. The Court of Federal Claims entered
summary judgment in favor of the United States and denied
summary judgment to Appellants because they failed to raise a
fact issue that the difference in pay is presently or
historically based on sex. Yant v. United States,
588 F.3d 1369 (Fed. Cir. 2009). We affirm.
doctors employed at VA hospitals is governed by 38 U.S.C.
§ 7431 (the "VA Pay Bill"). Under this
statute, pay consists of three components: base pay, market
pay, and performance pay. Id. § 7431(a). Base
pay depends on experience with standard step increases based
on tenure. Id. § 7431(b). Market pay is
determined on a case-by-case basis and reflects various
factors, including the physician's level of experience,
the need for the physician's specialty at the particular
facility, the relevant health care market, and any board
certifications. Id. § 7431(c). Performance pay
is paid when the physician achieves certain goals and
performance objectives prescribed by the Secretary of
Veterans Affairs. Id. § 7431(d).
Pay Bill outlines a standardized process for physician
compensation and separates physicians into different pay
tables based on different specialties. Id. §
7431(e)(1)(B). Each pay table has a minimum and maximum range
Pay Bill requires a pay panel to meet at least once every two
years to determine market compensation for an individual
physician, but it may also convene if there is a change in
status. Id. § 7431(c)(5); J.A. 82-83. New pay
tables are issued by the Veterans Health Administration
("VHA") national office every one to two years, and
pay panels must consider the then-current pay table. Because
the ranges in pay tables, i.e., minimum and maximum salaries,
generally increase every year, later-hired physicians may
have higher salaries than physicians hired before them, which
will then be corrected when the pay panel next convenes.
Dr. Gayle Gordon and Dr. Teresa Maxwell are women physicians
in the Department of Emergency Medicine at the Central
Arkansas Veterans Healthcare System ("CAVHS") in
Little Rock, Arkansas. Both Dr. Gordon and Dr. Maxwell were
hired in 2008 as staff physicians in the emergency department
for an annual pay of $195, 000, slightly less than the
maximum allowed by the pay table. J.A. 14. One year later,
their pay had increased to reflect step increases in their
base pay. As of November 2010, they were both due for pay
panels to adjust their market pay. A pay panel did not
convene for Dr. Gordon at that time. On December 21, 2010, a
pay panel convened for Dr. Maxwell and recommended an
increase in base pay and market pay. At that time, under
CAVHS procedure, the pay panel's recommendation went to
Dr. Margie Ann Scott, CAVHS Chief of Staff, for approval.
December 17, 2010, it was announced that the VHA Central
Office was initiating a pay freeze and that effective that
same day, there would be no increases approved for any
physicians' pay in anticipation of a forthcoming
presidential mandate. J.A. 52. To comply with the pay freeze,
Dr. Scott did not approve the December 2010 pay panel's
recommendation to increase Dr. Maxwell's market pay (as
well as total pay). J.A. 52.
early 2012, Dr. Gordon and Dr. Maxwell each filed complaints
with the Equal Employment Opportunity Commission
("EEOC") regarding what they believed to be unequal
compensation. Dr. Gordon alleged that on February 1, 2012,
she became aware that her pay was less than similarly
situated male physicians that she worked with. J.A. 108-09.
Dr. Maxwell, in her complaint filed in April 2012, alleged
she "was subjected to an ongoing violation of the Equal
Pay Act by being paid lower than male emergency room
physicians." J.A. 117. Both Dr. Gordon and Dr. Maxwell
identified several male doctors whom they alleged were
similarly situated individuals employed as emergency
department physicians that were being paid more than them.
Both Dr. Gordon and Dr. Maxwell contended that sex was a
factor in being paid less. J.A. 114, 122. In November 2012,
an EEOC officer concluded that Dr. Gordon and Dr. Maxwell
could not prove by a preponderance of the evidence that the
reasons for the salary differences were pretextual, or that
unlawful discrimination was the reason for the alleged
disparate pay. J.A. 108-24.
pay freeze remained in place until December 2013. As required
by the VA Pay Bill, pay panels continued to meet during the
pay freeze, but could not recommend increases in market pay.
In November and December 2013, before the pay freeze lifted,
pay panels convened for Drs. Gordon and Maxwell. J.A. 53. For
both doctors, the pay panel recommended no change in the
market pay rate because their roles and duties had not
changed. Both doctors received increases ...