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Gordon v. United States

United States Court of Appeals, Federal Circuit

September 7, 2018

GAYLE GORDON, TERESA MAXWELL, Plaintiffs-Appellants
v.
UNITED STATES, Defendant-Appellee

          Appeal from the United States Court of Federal Claims in No. 1:12-cv-00208-RHH, Senior Judge Robert H. Hodges, Jr.

          James Edgar Nickels, Nickels Law Firm, Sherwood, AR, argued for plaintiffs-appellants.

          Kara 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.

          Before Reyna, Linn, and Chen, Circuit Judges.

          Reyna, Circuit Judge.

         This is 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.

         I. Background

         Pay for 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).

         The VA 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 of compensation.

         The VA 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.

         Appellants 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.

         On 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.

         In early 2012, Dr. Gordon and Dr. Maxwell each filed complaints with the Equal Employment Opportunity Commission ("EEOC")[1] 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.

         The VHA 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 ...


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