Gordon v. United States

United States Court of Federal Claims
No. 12-208 C
(Filed Under Seal: February 28, 2017)
(Reissued: March 15, 2017)

_________________________________
GAYLE GORDON, M.D. and
TERESA MAXWELL, M.D., Cross-Motions for Summary
Judgment; Gender-based Pay
Plaintiffs, Bias; Yearly Salary-Range Tables;
Retention Incentive Pay
v.

UNITED STATES OF AMERICA,

Defendant.
_______________________________

James E. Nickels, Esquire, Nickels Law Firm, Sherwood, AR, for plaintiffs.

Kara M. Westercamp, Esquire, United States Department of Justice, Civil Division,
Washington, DC, for defendant.

OPINION AND ORDER

Hodges, Senior Judge.

This is an Equal Pay Act case. Plaintiffs are female doctors who work in the Department
of Emergency Medicine at a Veterans Administration Hospital in Arkansas. Doctors Gayle
Gordon and Teresa Maxwell believe that they are victims of gender discrimination, primarily for
two reasons: (1) they did not receive raises in 2009 when a male doctor who was hired about the
same time received an annual raise; and (2) they did not receive raises in 2010 commensurate
with those obtained by male doctors in the same department.

A male colleague hired around the same time as plaintiffs in 2008 received a pay raise
one year later, though Dr. Gordon and Dr. Maxwell were not eligible for market pay increases
until 2010;1 they received only step increases for longevity. Either the male colleague, Dr.

The parties filed no proposed redactions to the sealed Opinion filed on February 28, 2017. The
Opinion is reissued this date, unsealed.
1
Market pay is a subset of the total pay received by a physician which reflects the recruitment or
retention incentives necessary to compensate that physician for their employment. Several
factors are taken into account when determining market pay, including experience, the needs of
Iftikhar Ali, was not subject to a probationary period, or he received a market pay raise
notwithstanding the probation; the record does not say.

Male doctors in the same department doing the same or similar work as plaintiffs
obtained raises during 2010, but plaintiffs did not. Defendant alleged that the reason they did not
get raises then was they did not meet a disputed requirement that doctors submit their current
resumes for consideration by their pay panels. Dr. Gordon may not have provided her resume in
the proper form. Dr. Maxwell submitted her resume and her pay panel recommended a raise to
$212,000. However, the raise was rescinded because it did not receive final approval until after
the Obama Administration imposed a pay freeze in December of 2010.

Pay panels were charged with the responsibility of reviewing doctors’ records to decide
whether to recommend raises for them. The panels relied on current resumes in part to make
those judgments. Defendant contends that plaintiffs’ failure to provide required career
information caused delays that resulted in their not receiving raises prior to implementation of
the freeze. Plaintiffs allege that the requirement for updated resumes was a pretext that allowed
the VA to discriminate against plaintiffs on the basis of gender. Alternatively, plaintiffs stated
that they did submit the required information to their pay panels in a timely manner.

Defendant insists that plaintiffs’ resumes, if submitted, did not reach appropriate
personnel for delivery to the pay panels; the pay panels could not consider raises for plaintiffs
prior to the freeze for that reason. All or most of the male doctors provided the required
information to their pay panels on a timely basis, and they received raises in 2010 before the
freeze.

Several issues important to application of the Equal Pay Act remained uncertain after
briefings by the parties, and we sought supplemental arguments to enlighten various legal and
factual issues. Counsel made conscientious efforts to address these concerns, and their responses
provided valuable clarifying information.

Plaintiffs have not shown that discrimination was the reason for Dr. Ali’s raise one year
after being hired, or for the VA’s delays in processing their raises in time to avoid the pay freeze.
For reasons discussed more fully below, we must grant defendant’s motion for summary
judgment and deny plaintiffs’ cross-motion.

BACKGROUND
Dr. Gordon and Dr. Maxwell were hired by the Veterans Administration in 2008 to
medical staff positions in the Emergency Room of a Little Rock, Arkansas hospital. An initial
compensation panel assessment set their total annual pay at $195,000. Subsequent pay panels
recommended increasing their total compensation to $197,721 the following year, in October
2009, reflecting step increases in their base pay. The VA advised plaintiffs that they would be

the hiring facility, the regional market for practitioners, professional certifications, and other
factors. See 38 U.S.C. §7431(c)(2), 38 U.S.C. §7431(c)(5)(A-F).

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eligible for market pay raises after two probationary years.2 Doctors Gordon and Maxwell were
to be reviewed by new pay panels biennially thereafter, beginning in November 2010.

Dr. Ali is a male doctor in plaintiffs’ department who was hired at about the same time as
plaintiffs, at the same salary. He received a market pay raise from the VA after one year, while
plaintiffs had only step increases for the first two years. This was an event of alleged disparate
treatment complained of by plaintiffs to support their case against the VA for discrimination on
the basis of gender. Plaintiffs’ attorney characterized Dr. Ali’s raise in 2009 as “the first equal
pay violation” in the case.

Dr. Ali’s employment at the VA was important to plaintiffs’ case not only because of the
2009 raise but also because they learned that he may not have provided a current resume to his
2009 pay panel. Defendant has emphasized repeatedly the importance of delivering current
career information to pay panels before a doctor could be considered for a raise.

Near the end of plaintiffs’ second year as emergency room physicians, hospital officials
asked them to submit updated resumes so their pay panels could review their credentials. For
reasons that remain unclear, Dr. Gordon may have resisted this requirement for a time, as did Dr.
Maxwell. As a result, Dr. Gordon’s pay panel did not meet before a coincidental pay freeze
became effective on December 17, 2010.3

Dr. Maxwell ultimately submitted a current resume in time for her pay panel to meet on
December 21, and the panel recommend that her salary be raised to $212,000. However, pay
panel recommendations were subject to final approval by the Chief of Staff, Dr. Margie Scott.
Dr. Scott thought that she had no choice but to reject the raise for Dr. Maxwell because the
freeze had become effective on December 17.

Plaintiffs’ first post-freeze pay panels met on February 18, 2014, about 60 days after the
Administration lifted the pay freeze on December 23, 2013. Exec. Order No. 13655, 78 Fed.
Reg. 80,451 (Dec. 23, 2013). The pay panels acknowledged that plaintiffs’ pay was low relative
to other physicians in their department, and recommended increases in their total pay to
$216,747.

APPLICABLE LAW
Congress passed the Equal Pay Act to provide a cause of action for gender discrimination
in the workplace. See 29 U.S.C. §206. Section 206(d)(1) states, “[n]o employer . . . shall
discriminate . . . between employees on the basis of sex . . . for equal work on jobs the
performance of which requires equal skill, effort, and responsibility, and which are performed
under similar working conditions . . . .” The Act includes exceptions for circumstances in which

2
The issue of plaintiffs’ two-year probation was mentioned only tangentially in a declaration; it
was not discussed substantively by either party in their briefs.
3
The Obama administration imposed a government-wide freeze on pay raises in 2010, and
extended it several times between 2011 and 2013. See Exec. Order No. 13561, 75 Fed. Reg.
81,817 (Dec. 22, 2010); Exec. Order No. 13594, 76 Fed. Reg. 80,191 (Dec. 19, 2011); Exec
Order No. 13635, 78 Fed. Reg. 649 (Dec. 27, 2012); Exec. Order 13641, 78 Fed. Reg. 21,503
(Apr. 5, 2013).
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disparate wages are paid “pursuant to (i) a seniority system; (ii) a merit system; (iii) a system
which measures earnings by quantity or quality of production; or (iv) a differential based on any
other factor other than sex . . . .” 29 U.S.C. §206(d)(1).

Plaintiffs’ legal theories in support of their Equal Pay Act claim are scant and relatively
undeveloped. They contend that the VA used pretext and subterfuge to mask intentional sex
discrimination, referring to defendant’s request that they submit current resumes for
consideration by their pay panels. They charge that defendant “lied” when the VA told Dr.
Gordon that she did not submit a current resume in time for her raise to be considered, because
Dr. Maxwell “did not receive a market pay raise despite submitting her resume on time.” This
assertion is incomplete and therefore misstated and misleading. Dr. Maxwell submitted her
resume and was recommended for a raise to $212,000. That raise was denied later solely because
of the pay freeze.

Plaintiffs also accused defendant of lying for telling Dr. Gordon that she would not be
eligible for a raise for two years because she was subject to probation. This claim was not true,
they contend, because Dr. Ali received a market pay raise after only one year. Dr. Ali’s raise
after one year does not show that defendant lied about Dr. Gordon’s two-year probation. The
record does not show whether Dr. Ali was ever subject to the same two-year probation as Dr.
Gordon, or to a lesser probation.4 The probation issue was not otherwise argued, was irrelevant
on this record, and certainly was not the basis for a “lie.”

The affirmative defenses accorded defendants in an Equal Pay Act case include “a
seniority program.” Plaintiffs attack the VA’s claim that certain male doctors in the emergency
department received higher salaries because they were supervisors or had supervisory
experience. Those doctors’ higher salaries provided evidence of discrimination because plaintiffs
were not aware that the doctors had duties different from those performed by other doctors in the
emergency room. One plaintiff did not know that a male doctor was her own supervisor.
Plaintiffs themselves had supervisory duties before working at the VA, they state, but were not
given credit for that experience.5

Affidavits submitted by the VA establish that supervisors in plaintiffs’ department of the
hospital had additional duties and responsibilities despite plaintiffs’ not being aware of them. See
Marshall v. Dallas, 605 F.2d 191, 195 (5th Cir. 1979) (“Wage differentials can be justified when
employees perform important differentiating tasks, even if they do not spend large amounts of
time performing those tasks.”).

Plaintiffs must show that higher-paid employees were “comparators” before they can
establish discrimination on the basis of pay differentials; that is, their salaries were less than
those of employees of the opposite sex whose duties are “virtually identical” to plaintiffs’ own.

4
Plaintiffs did not argue that the possibility of Dr. Ali’s not being subjected to a probation,
similar to those applied to plaintiffs, was proof of disparate treatment and gender discrimination.

5
Plaintiffs’ complaining that they were not credited with supervisory experience offers
unintentional support for management’s emphasis on the need for resumes that are current and
complete; pay panels could not have known of such experience if the doctors did not include it
on their resumes.

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Brennan v. City Stores, Inc., 479 F.2d 235, 238 (5th Cir. 1973). Initially, plaintiffs did not
identify male doctors whose duties could be considered comparable to plaintiffs’ for purposes of
the Equal Pay Act. They explained in a reply brief that all male doctors in the department were
comparators for the purposes of this law. Meanwhile, defendant contends that no male doctor in
the case was a comparator under the Act.6 We have not addressed the issue of comparators in
depth because the decision in this case renders it moot.

AGENCY PROCEDURES
Pay for doctors employed at Veterans Administration hospitals is governed by 38 U.S.C.
§7431. That statute outlines discrete tiers of employment containing varying levels of
administrative or professional responsibility and describes the types of pay that comprise annual
salary. Subsidiary pay tables define ranges of pay for doctors depending on their specialty or
field of practice, including emergency medicine. Plaintiffs qualified as staff physicians practicing
emergency medicine when hired. This designation placed them within Tier 1 of Pay Table 2, and
established a salary range of $90,000 — $200,000.

VA Handbook 5007 describes procedures for setting and administering pay for doctors.
Base pay is determined principally by experience, and standardized step increases recognize an
employee’s longevity or tenure with the agency. Market pay is determined by a combination of
factors, including experience practicing a given specialty, regional and national rates of pay for
other practitioners in that specialty, academic experience, board certifications, a facility's specific
practitioner needs, and other case-by-case considerations. The Handbook authorizes pay
incentives to recruit or retain a doctor, or to compensate his or her relocation to the area.

Pay panels consisting of at least three doctors, a managerial chair, and a human resources
representative recommend salary levels based on these factors. They convene at the initial point
of hire and at least once every other year thereafter. Senior staff at the facility have final
authority to approve the pay panels’ recommendations.

ARGUMENTS
A. Could the VA have given plaintiffs market raises during the freeze to bring their
salaries more in line with their male colleagues?

Defendant contends that the freeze effectively prohibited all pay increases for physicians
employed at the hospital. The extent of these restrictions and whether exceptions could be made
are strongly disputed by the parties and not entirely resolved by this Opinion. Plaintiffs contend
that the following language taken from a VA Management Letter permits some raises during the
freeze:

“While the Annual Pay Ranges for Physicians and Dentists will not be increased
during the pay freeze, individualized market pay adjustments within the frozen
ranges are permitted. However, consistent with the spirit of the President's

6
Plaintiffs’ contention that everyone is a comparator and defendant’s claim that no one is, seem
highly unlikely given the facts of this case. Neither assertion contains more than negligible
support or discussion; both are conclusory.
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 memorandum regarding the pay freeze, management officials should make market
pay adjustments in a prudent manner based on strategic needs.”

U.S. Dep’t of Vet. Affairs, Dep. Asst. Sec’y for Human Res. Mgmt., “Human Resources
Management Letter No. 05-11-06: Pay Administration Guidance Regarding the Freeze on Pay
Adjustments for Certain Federal Civilian Employees”, §3(c)(1) (June 2, 2011). Defendant
highlights one part of the Management Letter to show that the Letter “prohibits" raises during the
freeze: “[M]anagement officials should make market pay adjustments in a prudent manner based
on strategic needs.” (Emphasis ours.) Defendant explains that the term, “strategic needs,” has a
special meaning that relates to the pressures of recruitment and retention, and potentially other
management concerns. For a manager to be “prudent,” he or she must consider all of a number of
other factors.7

B. The Resume Requirement

An important contested issue in the case is whether current resumes were necessary for
the pay panel to meet and consider doctors’ raises. Lack of current resumes for plaintiffs’ pay
panels was the reason defendant gave for plaintiffs’ substantially lower salaries compared to
those of male doctors during the period of this lawsuit. According to defendant, the resume
requirement was the "procedural mechanism that initiates the review of a physician's pay.”

The record offers little support for defendant’s assertion that pay panels could not meet
without having received current resumes in advance. VA Regulations require that pay panels
review doctors’ resumes in making recommendations for raises, and provide that doctors are
responsible for updating their resumes. Certainly, resumes would supply important information
for pay panels to consider. However, this does not necessarily establish that pay panels were
required to have current resumes before they could meet. Plaintiffs see no reason why the panels
could not have used earlier resumes they submitted for earlier raises.8

Plaintiffs asserted that some male doctors were considered for raises by their pay panels
even though they did not provide current resumes in advance.9 Defendant’s contention that such
information was a necessary adjunct to the pay panels’ consideration of raises for plaintiffs was a
pretext or a “subterfuge.” As a result, defendant could not use its otherwise gender-neutral
resume requirement to show that male and female doctors were treated the same.

7
In addition to standard criteria for assessing adjustments to market pay, the Letter directs that
increases in market pay address: essential skills unique to the individual employee; the scarcity
of alternative hires in the individual’s specialty or within the local labor market; the availability
and quality of candidates; salaries paid for similar specialties within the local labor market; or
other situations or unique circumstances which indicate a market pay increase is necessary.
8
We surmised that perhaps pay panels needed current resumes in case they contained negative
information before recommending pay raises. No one argued this possibility, however.
9
Plaintiffs’ evidence for this assertion amounted to a review of all male doctors’ personnel files
to determine that more raises were approved during the applicable period than resumes were
found. Such a method for supporting plaintiffs’ conclusion was not particularly persuasive. The
resumes generally did not include dates of submission.
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 Defendant claimed that an authorized government employee asked repeatedly for current
resumes from plaintiffs and did not receive them in time for consideration by the pay panels. Dr.
Gordon argued that she delivered “credentials” to the pay panel as early as June 2010, but no
direct evidence supports this contention. The record contains a letter from the hospital’s
Credentialing Committee advising that her contract had been renewed. However, this letter does
not in itself prove that she delivered the credentials to the Committee or that they were received.
We can assume that her representations in this regard are true for the purposes of ruling on
summary judgment, but whether the credentials packet contained her resume remains unclear.

If plaintiffs thought they delivered the resumes on time, and defendant swears that it
never received them, the resume issue is reduced to a disputed fact that cannot be resolved on
summary judgment. However, no evidence of record suggests that defendant’s representative
received the resumes but did not deliver them in an attempt to discriminate against plaintiffs on
the basis of gender. The importance of a resume requirement to the agency was supported by
affidavits of VA officials who denied any efforts to discriminate.

We are not satisfied that the resume requirement should have been necessary in all
respects, but it was reasonably related to defendant’s expressed agency needs. More importantly,
the requirement was not applied unevenly, and it did not therefore have potential for gender
discrimination.

C. The 2009 Raise for Dr. Ali

The record does not show why or how the VA gave Dr. Ali a pay boost in 2009 rather
than in 2010, when others in the department received raises according to the new pay tables. He
might not have been subject to a probation as Doctors Gordon and Maxwell were, or his
probation might have been for a shorter period. He might have presented a threat to leave for a
higher salary. If a period of probation was required by statue or regulation, plaintiffs did not
argue the point. In fact, neither of the parties argued these possibilities substantively.

Dr. Ali was hired at about the same time as plaintiffs in 2008, and their beginning salary
of $195,000 approached the $200,000 Tier 1 ceiling at the time. While the 2008 hiring of
Doctors Gordon, Maxwell, and Ali appeared to have been an equal hire among the three, this
equality might have been artificially imposed because of the $200,000 Tier maximum. When the
maximum pay for Tier 1 doctors was raised to $220,000 the following year, Dr. Ali qualified for
a higher salary based on his professional achievements and other credentials. His raise in 2009
could have been an effort to take advantage of the new, higher pay tables that year.10

CONCLUSION
The Administration’s pay freeze affected only two doctors in the department
disproportionately, and those two were female. This circumstance understandably created
suspicions of the cause among plaintiffs and their supporters. However, a careful review of the
record shows that the cause was not discrimination, but a coincidence of timing. The two female
doctors in the department, Dr. Gordon and Dr. Maxwell, delayed the VA’s bureaucratic process
long enough to become stranded by an unrelated pay freeze.

10
These possibilities were not argued by the parties, and their validity is not necessary to the
ruling.
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 As documentation expected by the agency was delayed, or was missing entirely, the
window of time for a pay panel to meet and make its recommendation moved closer to late
December 2010, when unbeknownst to either party, the pay freeze would be imposed.11 Factors
unrelated to prohibitions of the Equal Pay Act caused plaintiffs to become subject to the 2010
pay freeze and fall well behind the annual salaries of their male colleagues. Dr. Maxwell’s
recommended raise to $212,000, later rescinded, shows that timely cooperation with VA
requirements would have likely guaranteed substantial raises for both plaintiffs.

Dr. Ali, a male colleague who was hired at the same time as plaintiffs, received a raise
after his first year of employment while plaintiffs’ were ineligible for raises until 2010. The
reason for this apparent disparity remains unclear and essentially unexplained by the parties.
However, no evidence in the record suggests that gender discrimination was the cause of
plaintiffs’ delayed raises; substantial testimony from hospital management emphasizes that it
was not.

Defendant’s Motion for Summary Judgment is GRANTED. Plaintiffs’ Cross-Motion is
DENIED. Plaintiffs’ Motion for Partial Summary Judgment is DENIED. The Clerk of Court will
dismiss plaintiffs’ Complaint. No costs.

IT IS SO ORDERED.

s/Robert H. Hodges, Jr.
Robert H. Hodges, Jr.
Senior Judge

11
Administrative proceedings of the federal Government take time to prep, schedule, hold,
review, and finalize. For example, plaintiffs’ pay panels needed 60 days after the freeze ended to
meet and recommend non-controversial pay increases that defendant agreed were due and
warranted.
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