KATHRYN H. VRATIL, District Judge.
Plaintiff asserts Title VII claims against her former employer, the Veterans Administration. Plaintiff alleges that defendant took adverse employment actions against her because of sex, race and national origin and in retaliation for her complaints of discrimination.
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir.1993). A "genuine" factual dispute is one "on which the jury could reasonably find for the plaintiff," and requires more than a mere scintilla of evidence. Liberty Lobby, 477 U.S. at 252, 106 S.Ct. 2505. A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Id. at 248, 106 S.Ct. 2505.
The moving party bears the initial burden of showing that there are no genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Justice v. Crown Cork & Seal Co., 527 F.3d 1080, 1085 (10th Cir.2008). Once the moving party meets its burden, the burden shifts to the nonmoving party to show that a genuine issue remains for trial with respect to the dispositive matters for which she carries the burden of proof. Nat'l
When applying this standard, the Court views the factual record in the light most favorable to the party opposing the motion for summary judgment. Duvall v. Ga.-Pac. Consumer Prods., L.P., 607 F.3d 1255, 1260 (10th Cir.2010). The Court may grant summary judgment if the nonmoving party's evidence is merely colorable or is not significantly probative. Liberty Lobby, 477 U.S. at 250-51, 106 S.Ct. 2505. Essentially, the Court asks "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52, 106 S.Ct. 2505.
The following facts are undisputed or construed in a light most favorable to plaintiff.
Plaintiff is an African-American female who describes her national origin as "African-American American." She is a board certified radiologist. Plaintiff worked at the VA Medical Center in Leavenworth, Kansas from July of 1979 until July of 2008. The VA Medical Center is part of the Eastern Kansas Health Care System ("EKHCS"). During the relevant times, Dr. Jafar Amini, M.D. was Chief of Radiology in Leavenworth and was plaintiff's immediate supervisor. Dr. Muralidhara Rao, M.D. was Service Line Manager for radiology and laboratories, and was plaintiff's second level supervisor. Dr. Rao began working at EKHCS in 1974. He has never worked with a female radiologist other than plaintiff or supervised any other African-American radiologist.
In September of 2004, Dr. Rao removed plaintiff from reading neurological MRIs. Dr. Rao testified that he did so because plaintiff had missed a number of diagnoses involving neurological MRIs and he wanted to improve MRI reports.
On October 11, 2005, Dr. Rao sent each EKHCS radiologist a memorandum with his or her projected Relative Value Unit ("RVU") productivity for 2005.
After she received the memorandum, plaintiff complained to Dr. Rao that her RVU numbers were low because she had fewer opportunities than other radiologists to read certain modalities. On January 19, 2006, Dr. Rao met with plaintiff to discuss how to increase her RVU numbers. They agreed that plaintiff would read all CTs, MRIs and plain films after Dr. Amini left for the day at approximately 2:00 p.m. Dr.
The parties' fact statements contain no details about how the VA determined physician salaries before 2006. It apparently involved a lock-step salary computation based upon job description, tenure and job grade. See Memorandum (Doc. #75-64).
Dr. Rao testified that the Compensation Panel recommended the market pay for each physician based on eight non-discriminatory factors, including years of experience in a speciality or assignment, need for the speciality at the facility, health care labor market for the speciality, board certifications, accomplishments in the speciality, prior VA experience, cost-of-living and other considerations.
On February 27, 2006, EKHCS held a Compensation Panel review of its radiologists. Dr. Rao was the only radiologist on the panel. The Panel made salary recommendations to EKHCS Director Robert M. Malone, Jr., an African-American male from the United States. Malone then set the salary for each radiologist.
In 2006, Dr. Rao was the Service Line Manager for more than 85 radiology and laboratory employees in Topeka and Leavenworth. Dr. Rao also read nuclear medicine and sonography studies. In the Leavenworth radiology department, Dr. Amini, who worked part-time, supervised plaintiff and also performed diagnostic and therapeutic radiology. Plaintiff worked full time and performed only diagnostic work.
In the Topeka radiology department, Dr. Sudhir Arumanla supervised Dr. Rao Chigurupati and Dr. Mark Greenberg, and also performed diagnostic and therapeutic radiology. Dr. Arumanla worked full time. Dr. Chigurupati practiced only diagnostic radiology and worked full time; Dr. Greenberg practiced diagnostic and therapeutic radiology and worked part-time.
Plaintiff was the only female radiologist at EKHCS. Dr. Amini, an Iranian/Middleasterner, is from Iran; Dr. Arumanla and Dr. Chigurupati are Asians from India; and Dr. Greenberg is a Caucasian from the United States.
The Panel recommended raising the salary of Dr. Rao, who was Service Line Manager for radiology and laboratories, from $189,957 to $225,000 — an 18.45 per cent increase. Dr. Rao had 31 years of experience with the VA and was board certified in internal medicine and nuclear medicine. Director Malone approved a final
The Panel recommended raising the salary of Dr. Amini, who was Chief of Radiology in Leavenworth, from $181,557 to $220,000 — a 21.17 per cent increase. Dr. Amini had 18 years of experience with the VA and was board certified in radiology. Director Malone approved a final annual salary of $215,000 — an 18.42 per cent increase.
The Panel recommended raising the salary of Dr. Arumanla, who supervised the Topeka radiology department, from $169,957 to $215,000 — a 26.50 per cent increase. Dr. Arumanla had one and a half years of experience with the VA and was board certified in radiology. Director Malone approved a final annual salary of $200,000 — a 17.68 per cent increase.
The Panel recommended raising plaintiff's annual salary from $184,957 to $200,000 — an 8.13 per cent increase. Plaintiff had 26 years of experience with the VA and was board certified in radiology. Director Malone approved a final salary of $195,000, two and one half per cent lower than the recommendation (a 5.43 per cent increase). Malone knew that plaintiff was female, but did not know her race, national origin or prior EEO activity.
The Panel recommended that Dr. Chigurupati's annual salary of $165,957 remain unchanged. Dr. Chigurupati had 19 years of experience with the VA and was not board certified in any speciality. Director Malone approved the Compensation Panel's recommendation.
The Panel recommended that Dr. Greenberg's annualized salary be raised from $161,957 to $190,000, for an increase of 17.32 per cent.
Dr. Rao testified that Drs. Amini, Arumanla and Greenberg performed higher quality work than plaintiff and that Drs. Amini and Arumanla consistently produced more RVUs than plaintiff. Dr. Rao testified that the panel believed that Drs. Arumanla and Greenberg were more likely than plaintiff to leave the Topeka VA, in part because plaintiff had worked for the VA since 1979 and had not indicated that she was likely to seek other employment.
For the fiscal year ending September 30, 2006, Dr. Rao gave plaintiff a "High Satisfactory" performance rating. Doc. #75-22. Dr. Rao noted, however, that plaintiff's 2005 calendar year productivity was only 2,543 RVUs — just over half the annual goal. For the first seven months of 2006, plaintiff produced 1,998 RVUs, which equated to 3,425 RVUs per year. In response, plaintiff asserted that she deserved an "Outstanding" rating, but Dr. Rao did not change her rating.
In the spring of 2006, the VA implemented the new pay system, including Performance Pay as an incentive. Plaintiff's Performance Pay plan for July 1 through September 30, 2006 included only one goal: to produce 1,250 RVUs.
Plaintiff's Performance Pay plan for October 1, 2006 to September 30, 2007 contained six performance goals, including to read 95 per cent of studies within 48 hours — a goal which applied to all radiologists in the EKHCS.
On November 28, 2006, Dr. Rao issued plaintiff a "Written Counseling" for failure to timely respond while she was on call and then falsely denying that the VA had followed proper procedures to contact her. Doc. #75-46. The Written Counseling addressed an incident in October of 2006, when the administrative officer on duty ("AOD") had tried to contact plaintiff to read a patient X-ray. The AOD called plaintiff's home at 10:00 a.m., but the person who answered told the AOD to call plaintiff's government-issued cell phone. When the AOD called the government-issued cell phone "the message received was `user unavailable.'" Doc. #75-48. The AOD also called plaintiff's pager, but plaintiff did not respond. The AOD then called Dr. Rao who also tried to reach plaintiff. By the time plaintiff responded at 1:00 p.m., another doctor had read the X-ray. The AOD told Dr. Rao that "[t]his has occurred several times this year with Dr. Stovall." Doc. #75-33 at 1.
On November 1, 2006, Dr. Amini told plaintiff that he expected her to promptly respond when she was on call. Plaintiff responded in writing as follows:
Doc. #75-47. Dr. Rao reviewed telephone logs from the hospital and plaintiff's government-issued cell phone and concluded that the AOD had attempted to reach plaintiff at her home phone, her government cell phone and by pager.
On November 20, 2006, plaintiff requested approval from the Core Pit Committee for $3,500 for advanced training for multi-slice cardiovascular CTs. The VA policy allowed each physician up to $1,000 per year for training. Plaintiff had already received her allotment of training for that year and she had received CT training from the Philips Company. The Committee denied plaintiff's request for training.
At noon on Saturday, February 17, 2007, plaintiff was on call when she was notified to read CT scans of an emergency room patient. Technical problems delayed the download to plaintiff's home computer, and by 2:00 p.m. only half of the images had transferred. Dr. Ferrell, the ER doctor, called to ask plaintiff to come to the hospital. Plaintiff responded, "I have a life" and told him that she was not coming in because she had been at the hospital late the night before. Doc. #75-28. Nearly six hours after the CT, plaintiff gave Dr. Ferrell a verbal reading. Dr. Ferrell later told Dr. Rao that plaintiff's reading missed acute appendicitis and was grossly inadequate.
On March 7, 2007, Dr. Rao issued plaintiff a Proposed Admonishment because of her "rude, unprofessional and unacceptable response." Doc. #75-27. Plaintiff replied that the digital system had repeatedly malfunctioned. She admitted that she
On April 17, 2007, plaintiff sent the Field Information Security Officer a request to "store, transport and utilize VA sensitive information outside protected environments."
Shortly before July 16, 2007, Dr. Rao learned that plaintiff had directed a radiology clerk to prepare CDs containing patient studies. Dr. Rao asked the clerk to stop preparing the CDs because of restrictions regarding transfer of patient medical records. Dr. Rao's Administrative Officer, Jeannie Idol, then told ISO Hatcher that plaintiff was asking for disks with sensitive information and that Dr. Rao did not know why.
Murphree contacted Dr. Rao and told him that Weldon had instructed her to interview plaintiff and confiscate the CDs. On July 16, 2007, Murphree went to the radiology department in Leavenworth. Dr. Rao introduced Murphree as the Privacy
When plaintiff finished her work, Murphree followed plaintiff to her office, and said "Give me the CDs." Murphree told plaintiff that she was there at the Director's request and needed to know if plaintiff had authority to burn the CDs. Plaintiff told Murphree to leave so she could make a phone call. Murphree continued to ask plaintiff about the CDs in a very rude and aggressive manner. Murphree tried to grab the briefcase that plaintiff was holding, grabbed plaintiff's arm and then yelled when plaintiff pulled her briefcase back. In response to the raised voices, Idol arrived and told plaintiff that Murphree had orders from administration to get into her office. VA security officers arrived, and at that point, plaintiff had pushed Murphree out of the office. The officers directed everyone to come out, but plaintiff quickly shut the door, pinching Murphree's hand between the door and the jamb. When the officers got the door open, Dr. Rao had just arrived and asked plaintiff to cooperate.
The security officers escorted plaintiff to the security office, where plaintiff gave the CDs to the VA Police Chief and returned to her office. There, she found Murphree reviewing her podiatry teaching records for original hard copy medical records. Murphree removed approximately eight documents from plaintiff's office, verified that two were original medical records and returned them to the original medical record files.
Following the incident on July 16, 2007, plaintiff took medical leave. Her physician, Dr. E. Kent Stevenson, determined that beginning July 23, 2007, plaintiff was totally temporarily disabled. Dr. Stevenson diagnosed plaintiff with PTSD and identified the incident of July 16, 2007, as "clearly causing her extreme distress," stating that it "has lead to insomnia, bad dreams [and] anxiety." Doc. #96-15. Five months later, on December 14, 2007, Dr. Stevenson determined that plaintiff could return to work on January 3, 2008. Id.
Plaintiff's Proficiency Reports for 1999 to 2006 were all positive, with no ratings below Satisfactory. On November 13, 2007, Dr. Amini issued a Proficiency Report for plaintiff for the period of October 1, 2006, through September 30, 2007. Doc. #75-19. He gave plaintiff an overall rating of Satisfactory, a High Satisfactory in Clinical Competence and Education Competence, and a Low Satisfactory for the "Personal Qualities" element. The "Personal Qualities" element considers the employee's "emotional stability, dependability, relations with staff and community, eliciting cooperation, handling groups and adherence to ethical standards." Id. at 1. The Proficiency Report, which Dr. Rao approved, specifically noted "several incidents that occurred in this rating period result[ing] in a rating of low satisfactory." Id. Dr. Rao explained that the incidents included (1) the written counseling on November 28, 2006, regarding plaintiff's false statements about efforts to contact her while she was on call, (2) plaintiff's failure to properly read the CT of Dr. Ferrell's E.R. patient with appendicitis and (3) plaintiff's failure to comply with VA policies regarding CDs with patient medical information and her failure to cooperate with the investigation on July 16, 2007.
When plaintiff returned to work on January 3, 2008, she had 238 plain films to
On January 4, 2008, plaintiff confirmed that she had taken the CDs off the VA campus. Plaintiff stated that she had directed the clerk to burn CDs of certain patient files with interesting cases to use for teaching podiatry residents.
Plaintiff admitted that the only possible authorization to transport the CDs off VA premises was the memorandum dated April 17, 2007 and the email from Mr. Hatcher. On March 7, 2008, Dr. Amini issued plaintiff a memorandum of Written Counseling. The Written Counseling stated that "[s]pecific written authorization is required to carry information off-station," and that plaintiff "failed to meet my expectations with regard to safeguarding confidential materials." Doc. #75-25.
In June of 2008, Dr. Amini left 88 of his general radiology studies unread before he took leave for several days. Plaintiff read them without assistance from others. She worked 15 hours a day for several days to meet the 48-hour turnaround time without receiving overtime pay or compensatory time. On July 17 and 18, 2008, plaintiff worked 13 hours per day to meet the 48-hour turnaround time. On June 14 and 21, and July 5, 20, 26 and 27, 2008, plaintiff worked weekends so that she could complete 95 percent of her studies within the 48-hour turnaround time. As a VA physician, plaintiff was ineligible for overtime pay or compensatory time and she did not know of any physician who actually received compensatory time or overtime between 2005 and 2008. No one ever directed plaintiff to work weekends or late hours in order to meet the 48-hour turnaround goal.
On June 27, 2008, plaintiff sent an email to Drs. Rao and Amini stating that she had completed a retirement application. Plaintiff retired on July 31, 2008.
Before July of 2008, plaintiff had contemplated retiring as soon as she became eligible. On January 21, 2008, Dr. Stevenson noted that plaintiff said she would have 30 years in July; on February 18, 2008, he noted that plaintiff's goal was to retire; on April 14, 2008, he noted that plaintiff could possibly retire in July of 2008; on May 27, 2008, he noted that plaintiff had indicated that she was going to retire from the VA on July 31, 2008, so
Plaintiff testified that at some point after she first returned to work in January of 2008, she decided to retire. Plaintiff explained that she was feeling the stress of having to work on weekends and be on call, and that she felt stress pain in her arm and had ulcers and gastric upset. Plaintiff testified that she decided that in order to continue to provide the best care possible for her patients without mis-diagnoses, that it would be best for her to retire. She made the decision because of the physical and emotional stress that she was under. Plaintiff stated that she retired because she was afraid of not providing proper patient care. In an employment application on January 7, 2011, plaintiff certified that she had never been discharged from any position for any reason.
Dr. Rao denied that he took any action to force plaintiff to retire. After plaintiff informed Dr. Rao by email that she was retiring, he never had a conversation with her.
On November 18, 2005, Dr. Rao learned that plaintiff had contacted the VA Office of Resolution Management with a complaint of discrimination which named him as the responding management official. On December 20, 2005, plaintiff filed an EEOC charge ("Claim 303") which alleged discrimination based upon gender, race and national origin. Highly summarized, Claim 303 asserted disparate treatment regarding assignment of duties which made it more difficult for plaintiff to achieve the quota of RVUs as compared to her co-workers.
On August 11, 2006, plaintiff filed another EEOC charge ("Claim 822") which alleged discrimination based upon gender, race, national origin and retaliation, and violation of the Equal Pay Act. In short, Claim 822 asserted that on May 17, 2006, the VA gave male doctors higher pay increases than plaintiff.
On December 26, 2006, plaintiff filed a third EEOC charge ("Claim 408") alleging gender, race and national origin discrimination, and retaliation based on (1) her performance pay for 2006; (2) denial of her request to re-allocate accrued annual and sick leave balances; (3) disciplinary actions including a Written Counseling on November 28, 2006; (4) disparate treatment in duty assignments, including a 48 hour turn-around requirement effective December 16, 2006, and peer review process restrictions on December 15, 2006, and (5) denial of her request on November 20, 2006, to attend advance Cardiac CT training.
On January 3, 2009, plaintiff filed a fourth EEOC charge ("Claim 508") alleging gender, race and national origin discrimination and retaliation because defendant (1) assigned plaintiff to "7 days on and 7 days off" on-call coverage in July and August of 2008 while her male counterparts received more days off; (2) forced plaintiff to retire on July 31, 2008; (3) required plaintiff to work 13 hours per day on July 17 and 18, 2008, to meet the 48-hour turnaround time; (4) assigned plaintiff to cover the Leavenworth and Topeka VA hospitals from July 14 at 4:30 p.m. through July 21, 2008 at 8:00 a.m.; (5) failed to provide plaintiff assistance when Dr. Amini was on leave; (6) required plaintiff to work several weekends in the summer of 2008 to meet the 48-hour turnaround time but did not require male radiologists to do so; (7) in June of 2008, failed to provide plaintiff assistance when Dr. Amini took leave for several days; (8) interrupted plaintiff on March 4, 2008, when she was reading high RVU studies;
On November 29, 2010, plaintiff filed this lawsuit.
Plaintiff asserts that defendant discriminated against her on the basis of race, gender and national origin, and retaliated against her for protected activity by taking the following actions: (1) giving her a comparatively low pay raise after the 2006 Compensation Panel; (2) confronting her on July 16, 2007 regarding CDs containing patient information; and (3) constructively discharging her. Defendant argues that it did not take adverse action against plaintiff and that even if it did, it did so for legitimate business reasons and not because of sex, race or national origin or in retaliation for protected activity.
Plaintiff may establish that defendant acted with discriminatory intent under Title VII either directly, through direct or circumstantial evidence, or indirectly, through the inferential burden-shifting scheme established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Jones v. Okla. City Pub. Schs., 617 F.3d 1273, 1278-79 (10th Cir.2010).
To establish a prima facie case of race, sex or national origin discrimination under Title VII, plaintiff must show that (1) she is a member of protected class; (2) she suffered adverse employment action; and (3) the action took place in circumstances which give rise to an inference of discrimination.
For purposes of a discrimination claim, adverse employment action is a "significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Piercy v. Maketa, 480 F.3d 1192, 1203 (10th Cir.2007) (internal quotation omitted). The Tenth Circuit liberally defines the phrase "adverse employment action." Such actions are not simply limited to monetary losses in the form of wages or benefits. Instead, the Tenth Circuit takes a "case-by-case approach," examining the unique factors relevant to the situation at hand. Jones, 617 F.3d at 1279; see Plotke v. White, 405 F.3d 1092, 1100 (10th Cir.2005) (no rigid rule about what circumstances allow inference of discrimination). Courts have enumerated a variety of circumstances that can give rise to an inference of discriminatory motive, including preferential treatment of employees outside the protected class. Plotke, 405 F.3d at 1100.
Defendant argues that plaintiff did not suffer adverse employment action when she received a lower percentage raise than other radiologists after the 2006 Compensation Panel. Defendant notes that it increased plaintiff's pay, and that plaintiff was the highest paid non-supervisory radiologist in the EKHCS who practiced only diagnostic radiology. Neither party cites a case directly on point. This Court has noted that receiving a lower raise than similarly situated employees can be adverse employment action. Taher v. Wichita State Univ., 526 F.Supp.2d 1203, 1218 (D.Kan.2007) (citing Amro v. Boeing Co., 232 F.3d 790, 798 (10th Cir.2000)). On this record, however, it is not clear that any of the other radiologists were similarly situated to plaintiff.
As to the third element, defendant asserts that plaintiff cannot show a nexus
As noted, Dr. Greenberg and plaintiff were the only non-supervisory certified radiologists. Director Malone adopted the panel recommendation for Dr. Greenberg's salary ($190,000), and adopted the panel recommendation ($200,000) minus $5,000 for plaintiff's salary ($195,000). Dr. Malone was himself African American and at the time he approved plaintiff's salary, he did not know her race, national origin or prior EEOC activity. His decision-making process, seen from the vantage point of what he knew at the time, does not raise an inference of discriminatory intent. Even though in terms of percentages or even absolute dollars, plaintiff received a lower increase than Dr. Greenberg, she still received a higher salary than he did (on a prorated basis). The base pay component of the compensation plan also took into account that plaintiff had longer tenure than Dr. Greenberg. The fact that the plan did not afford greater weight to tenure does not raise an inference of discriminatory intent.
Plaintiff essentially asserts that because she went from earning the highest salary to nearly the lowest salary among board-certified radiologists, she has shown circumstances which give rise to an inference of discrimination. She ignores the fact that the VA adopted an entirely new compensation plan which replaced a compensation plan based primarily on length of service in the VA. The new plan considered three components: (1) length of service in the VA system, (2) market pay, which included eight factors, and (3) performance pay. Plaintiff has produced no evidence that the plan itself was a pretext for discrimination. She does not claim that the Compensation Panel improperly calculated her length of service or that of Dr. Greenberg. In challenging the Compensation Panel's application of the market pay component, which included the VA's assessment of its need to retain her services, plaintiff has not shown direct or circumstantial evidence that any Panel member except Dr. Rao knew her race, national origin or prior EEO activity, or considered those factors in making plaintiff's salary recommendation. Nevertheless, for purposes of summary judgment, the Court assumes for the sake of argument that plaintiff has made the de minimis showing required for a prima facie case of gender, race and national origin discrimination.
Defendant argues that it has set forth legitimate, nondiscriminatory reasons for plaintiff's raise. Defendant asserts that the Compensation Panel followed the directive to determine salary based on nondiscriminatory factors including years of service, years of experience in a speciality or assignment, need for the speciality at the facility, health care labor market for
As to job duties, defendant notes that plaintiff had no supervisory responsibilities, whereas Dr. Rao was the Service Line Manager for EKHCS, Dr. Amini was Chief of Radiology in Leavenworth and Dr. Arumanla was the supervisor in Topeka. Further, Drs. Amini, Arumanla and Greenberg practiced both diagnostic and therapeutic radiology, whereas plaintiff practiced only diagnostic radiology, a lower-paid specialty. Thus, plaintiff was the only non-supervisory board certified radiologist who practiced only diagnostic radiology. She was therefore not similarly situated to any other radiologist. Moreover, Dr. Rao testified that Drs. Amini and Arumanla read more studies and produced higher quality work than plaintiff. Further, the Panel determined that Drs. Arumanla and Greenberg were more prone to leave the VA. Plaintiff, on the other hand, had worked for the VA in Leavenworth for decades and had not indicated that she was likely to seek other employment.
The Court finds that defendant has pointed to evidence of a legitimate, non-discriminatory reasons for the decision to give plaintiff a lower pay raise than other radiologists. The burden thus shifts back to plaintiff to show a genuine issue of material fact whether the VA's proffered reasons are a pretext for discrimination.
Plaintiff can present many forms of evidence to establish that defendant's stated reasons are pretextual. Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1230 (10th Cir.2000) (plaintiff need not pursue particular means of demonstrating stated reasons pretextual). A plaintiff typically makes a showing of pretext in one of three ways, with evidence that (1) defendant's stated reason for the adverse employment action was false; (2) defendant acted contrary to a written company policy; or (3) defendant acted contrary to an unwritten policy or practice. Id. Plaintiff can show pretext by revealing "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence." Townsend v. Lumbermens Mut. Cas. Co., 294 F.3d 1232, 1242 (10th Cir. 2002) (citing Morgan, 108 F.3d at 1323).
Plaintiff primarily argues that the Panel's consideration of the likelihood that a physician might leave the VA ran counter to the eight factors it was to consider — in particular, the level of experience — and that "this change was significant and clearly was used to the detriment of [plaintiff]." Plaintiff's Response To Defendant's Motion For Summary Judgment And Suggestions In Opposition (Doc. #96) filed May 3, 2013 at 59-60. Plaintiff also points out that although defendant asserts that she did lower quality work than the other radiologists, in October of 2005 she had received an overall rating of "Outstanding" — the highest possible rating. She also points out that diagnostic radiologists earned an average of only about $4,000 less per year than therapeutic radiologists, and thus the fact that she practiced diagnostic radiology did not justify a large disparity in pay increase. Plaintiff asserts
Defendant argues that plaintiff has failed to demonstrate that its proffered reasons are a pretext for discrimination. Defendant notes that consideration whether a physician might leave is consistent with at least three of the prescribed factors: need for the specialty/assignment at the facility; health care labor market for the specialty/assignment; and other considerations. Defendant points out that Compensation Panel members were trained not to consider race, gender, prior EEO activity and national origin. Defendant also notes that the Panel did not consider the salary percentage increase because that number was not pertinent to its objective: to set a pay rate comparable to what the physician would earn outside the VA. Further, Dr. Malone (an African-American of United States origin) made the ultimate decision and he could not have based his decision on race or national origin because he did not know that plaintiff was an African-American from the United States. Holmes v. Potter, 384 F.3d 356, 362 (7th Cir.2004) (usually, employer's lack of knowledge about protected category rings death knell for discrimination claims). Finally, defendant notes that experience was only one of eight considerations in determining market pay. Further, the Base and Longevity Pay Schedule took into account years of experience, and presumably plaintiff received all of the credit she deserved on that schedule.
Plaintiff points out that although Dr. Malone made the ultimate decision about the new pay rate for each radiologist, he either adopted the Panel recommendation (Drs. Chigurupati and Greenberg) or lowered it by $5,000 (Dr. Amini), $10,000 (Dr. Rao) or $15,000 (Dr. Arumanla).
To establish pretext, plaintiff must show weaknesses, implausibilities, inconsistencies, incoherencies or contradictions in defendant's proffered reasons for its action such that a reasonable fact finder could rationally find them unworthy of credence and therefore infer that defendant did not act for the asserted non-discriminatory reasons. See Jaramillo v. Colo.
Defendant concedes for purposes of summary judgment motion that plaintiff suffered adverse employment action when Murphree confronted her about the CDs on July 16, 2007.
Defendant argues that plaintiff has not shown any nexus between the CD incident and her race, gender or national origin. Plaintiff asserts that when Dr. Rao learned that she was having CDs burned, he should have discussed the situation with her, then told Murphree that plaintiff had authorization to take certain records off premises. She asserts that instead, Dr. Rao "dropped Ms. Murphree off at Dr. Moore-Stovall's office, left and let an avoidable and unfortunate series of events play out." Doc. #96 at 63-64. Plaintiff does not controvert the fact that she was not authorized to burn the CDs or that the VA was justified in issuing the Written Counseling.
Plaintiff claims that the VA constructively discharged her by forcing her to retire on July 31, 2008, after plaintiff endured a "steady stream of conduct" including (1) reassigning high RVU work away from her; (2) instructing her not to read higher RVU work; (3) giving her the lowest salary increase in 2006; (4) giving her no performance pay; (5) refusing her request for training; (6) reducing her performance appraisals from "Outstanding" in 2005 to
Defendant first points out that on January 7, 2011, plaintiff stated in an application for employment that she had never been discharged from any position for any reason. Defendant asserts that plaintiff therefore has admitted that she was not constructively discharged. The fact that plaintiff stated that she had never been discharged, however, does not compel the conclusion that she was not "constructively" discharged.
In the alternative, defendant asserts that plaintiff has not provided facts that support the conclusion that she had no choice other than to resign. "Under the constructive discharge doctrine, an employee's reasonable decision to resign because of unendurable working conditions is assimilated to a formal discharge for remedial purposes. The inquiry is objective: Did working conditions become so intolerable that a reasonable person in the employee's position would have felt compelled to resign?" Keller v. Crown Cork & Seal USA, Inc., 491 Fed.Appx. 908, 915 (2012) (quoting Pa. State Police v. Suders, 542 U.S. 129, 141, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004)); see also Tran v. Trs. of State Colls., 355 F.3d 1263, 1270 (10th Cir.2004) (constructive discharge occurs when reasonable person in employee's position would view working conditions as intolerable and feel she had no other choice but to quit). Under the objective test, "neither the employee's subjective views of the situation, nor her employer's subjective intent with regard to discharging her, are relevant." Tran, 355 F.3d at 1270.
Here, as a matter of law, the actions that plaintiff complains of did not rise to the level of an intolerable situation that left her no choice except to resign. See MacKenzie v. City & Cnty. of Denver, 414 F.3d 1266, 1281-82 (10th Cir.2005) (actions may have made plaintiff unhappy, but not every unhappy employee has actionable claim of constructive discharge). To the extent that plaintiff complains about discipline regarding the CD incident, she has not produced evidence that the discipline was unwarranted. Moreover, although plaintiff asserts that lowered performance reviews helped compel her to resign, negative performance evaluations do not establish constructive discharge without evidence that the reviews set the employee on a "dead-end path towards termination." See Fischer v. Avanade, Inc., 519 F.3d 393, 411 (7th Cir.2008). Further, although plaintiff asserts that the VA made her work environment unbearable by requiring her to work weekends and overtime and by reassigning higher value RVU work to others, a reassignment does not amount to a constructive discharge "unless the proffered employment options would have been so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." Rushton v. City of Warren, 90 Fed.Appx. 912, 917 (6th Cir.2004). A reasonable person
Title VII makes it unlawful for an employer to retaliate against an employee "because [s]he has opposed any practice made an unlawful employment practice by this subchapter." 42 U.S.C. § 2000e-3(a). To state a prima facie Title VII retaliation claim, plaintiff must show (1) she engaged in protected opposition to discrimination, (2) a reasonable employee would have found the challenged action materially adverse and (3) a causal connection between the protected activity and the materially adverse action. Khalik v. United Air Lines, 671 F.3d 1188, 1193 (10th Cir.2012); see Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1176 (10th Cir.2007) (to establish causal connection, plaintiff must show that individual who took adverse action knew of protected activity). If plaintiff so shows, the burden of production shifts to defendant. If defendant offers a legitimate, nondiscriminatory reason for the adverse action, the burden shifts back to plaintiff to demonstrate that the proffered explanation is a pretext for retaliation.
Until recently, a plaintiff could establish causation by demonstrating that retaliation was a motivating factor in the employment act. The Supreme Court recently held, however, that Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action. Univ. of Tex. Sw. Med. Ctr. v. Nassar, ___ U.S. ___, 133 S.Ct. 2517, 2533, 186 L.Ed.2d 503 (2013).
Plaintiff asserts that defendant retaliated against her for EEOC complaints by taking the same employment actions on which she bases her claims of race, gender and national origin discrimination: (1) her
Defendant concedes that plaintiff engaged in protected opposition by filing three EEOC charges: on December 20, 2005 (asserting discrimination in assignment of duties which made it difficult to obtain RVUs); on August 11, 2006 (asserting discrimination on May 17, 2006 when the VA gave male doctors of different races and national origin higher pay increases than plaintiff); and on December 26, 2006 (alleging discrimination as to performance pay, leave balances, multiple disciplinary actions including disparate treatment in duty and denial of training).
Unlike in disparate treatment cases, a materially adverse action for purposes of a retaliation claim need not affect the employee's terms and conditions of employment. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (adverse action for purposes of retaliation claim need not be "adverse employment action" as construed in Title VII discrimination cases). The employer's action must be materially adverse, however, to separate trivial harms from actionable injuries because Title VII does not establish "a general civility code for the American workplace." See Somoza v. Univ. of Denver, 513 F.3d 1206, 1212 (10th Cir.2008) (citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998)). Plaintiff must show that the challenged action could dissuade a reasonable employee from making or supporting a charge of discrimination. Somoza, 513 F.3d at 1214.
As set forth in the analysis of plaintiff's discrimination claim, the Court assumes for sake of argument that plaintiff has set forth evidence that the 2006 salary decision was an adverse employment action. The Court also presumes that it meets the less exacting standard for a materially adverse employment action for a retaliation claim.
As noted in the analysis of plaintiff's discrimination claim, defendant concedes for purposes of summary judgment motion that plaintiff suffered adverse employment action when Murphree confronted her about the CDs on July 16, 2007.
Plaintiff claims that the VA constructively discharged her in retaliation for filing EEOC complaints. Plaintiff notes that she filed charges of discrimination on November 2, 2005, June 26, 2006 and November 9, 2006 before she retired July 31, 2008. She asserts that in retaliation for her protected activity, defendant forced her to retire by subjecting her to a "steady stream of conduct" including the 12 actions on which she bases her constructive discharge discrimination claim.
Plaintiff may show a causal connection with evidence of circumstances which justify inference of retaliatory motive, such as protected conduct followed closely by adverse action. Annett v. Univ. of Kan., 371 F.3d 1233, 1239 (10th Cir.2004). Standing alone, temporal proximity between the protected activity and the retaliatory conduct must be very close in time. O'Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1253 (10th Cir.2001). Otherwise, "plaintiff must offer additional evidence to establish causation." Id. As noted, after Nassar, plaintiff must show that the retaliatory motive was the but-for cause of the adverse action. Here, plaintiff engaged in protected opposition on December 20, 2005, August 11, 2006 and December 26, 2006.
For the sake of argument, the Court assumes that defendant took an adverse employment action when it gave plaintiff a significantly lower pay raise than other board certified radiologists. Plaintiff must therefore establish a causal connection between her EEOC charge on December 20, 2005 and the decision regarding her pay raise.
On November 18, 2005, Dr. Rao learned that plaintiff was going to file an EEOC charge, and she did so on December 20, 2005. Although Director Malone made the final salary determination in June of 2006, plaintiff has presented evidence that he primarily based his decision on the Panel recommendation, and the Panel held its review on February 27, 2006. Dr. Rao participated in the review, and at oral argument plaintiff asserted that as the only radiologist on the Panel, Dr. Rao had a great deal of influence on the Panel recommendation. Plaintiff did not, however, include that assertion in her statement of facts. In any event, plaintiff implicitly relies on a cat's paw argument — that Dr. Rao knew that plaintiff had filed a formal EEOC charge on December 20, 2005, and that on February 27, 2006, to retaliate for her protected conduct, he steered the Panel to recommend a lower raise for plaintiff than other radiologists.
Plaintiff offers no direct evidence that Dr. Rao — who apparently worked with plaintiff without incident for nearly three decades before any of the events described in this case — had a retaliatory motive.
Plaintiff must establish a causal connection between her EEOC charges on December 20, 2005, August 11, 2006 and December 26, 2006 and the July 16, 2007 incident regarding the CDs. More than six months elapsed between plaintiff's EEOC charge on December 26, 2006 and the incident on July 16, 2007; thus, temporal proximity does not raise a genuine issue of material fact regarding causation. Moreover, plaintiff does not controvert the fact that she was not authorized to burn the CDs or that the VA was justified in issuing a Written Counseling. Although plaintiff argues that Dr. Rao somehow orchestrated her confrontation with Murphree, defendant correctly pointed out at oral argument that it was plaintiff's response to Murphree's investigation which created the physical confrontation. No reasonable jury could find any nexus between the CD incident and plaintiff's protected opposition.
Doc. #75-64.
STEP TENURE (in years) SALARY
1 2 or less $ 90,000
2 2 to 4 $ 93,000
3 4 to 6 $ 96,000
4 6 to 8 $ 99,000
5 8 to 10 $102,000
6 10 to 12 $105,000
7 12 to 14 $108,000
8 14 to 16 $111,000
9 16 to 18 $114,000
10 18 to 20 $117,000
11 20 to 22 $120,000
12 22 to 24 $123,000
13 24 to 26 $126,000
14 26 to 28 $129,000
15 more than 28 $132,000
Doc. #77-10.
Memorandum Of Points And Authorities In Support Of Defendant's Motion For Summary Judgment (Doc. #75) filed February 19, 2013, at 21. Plaintiff's response to SOF 51 is "Controverted. The term `based upon non-discriminatory factors' is argumentative and not a statement of fact." Plaintiff's Response To Defendant's Motion For Summary Judgment And Suggestions In Opposition (Doc. #96) filed May 3, 2013 at 10. Defendant replied as follows:
Defendant's Reply In Support Of Its Motion For Summary Judgment (Doc. #103) filed May 31, 2013, at 23-24. The Court finds that defendant's SOF 51 is perhaps argumentative and certainly is conclusory. The Court does not deem SOF 51 uncontroverted and therefore does not consider it in ruling on the motion for summary judgment.
Tabor v. Hilti, 703 F.3d 1206, 1216 n. 4 (10th Cir.2013).
Plaintiff's Response Brief (Doc. #96) at 68.
