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Moore-Stovall v. Shinseki

United States District Court, Tenth Circuit

September 3, 2013

ERIC SHINSEKI, Secretary of Veterans Affairs, Defendant.


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.[1] This matter comes before the Court on Defendant's Motion For Summary Judgment (Doc. #74) filed February 19, 2013. Defendant seeks summary judgment on all of plaintiff's claims, arguing that (1) it did not take adverse action against plaintiff, (2) to the extent that it did take adverse action, it did so for legitimate business reasons and (3) plaintiff cannot show pretext. For reasons set forth below, the Court finds that defendant's motion should be sustained.

I. Summary Judgment Standards

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 (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. A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Id. at 248.

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 (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 Am. Ins. Co. v. Am. Re-Ins. Co. , 358 F.3d 736, 739 (10th Cir. 2004); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586-87 (1986). As to these matters, the nonmoving party may not rest on her pleadings but must set forth specific facts. Fed.R.Civ.P. 56(e)(2); Matsushita , 475 U.S. at 586-87; Justice , 527 F.3d at 1085. Conclusory allegations not supported by evidence are insufficient to establish a genuine issue of material fact. Jarvis v. Potter , 500 F.3d 1113, 1120 (10th Cir. 2007); see Kidd v. Taos Ski Valley, Inc. , 88 F.3d 848, 853 (10th Cir. 1996).

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. 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.

II. Facts[2]

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.

Productivity Issues

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.[3] Plaintiff's projected annual productivity was 2, 543 RVUs, at the low end of all of the radiologists. Dr. Rao set a goal for each staff radiologist to exceed 5, 000 RVUs in fiscal year 2006.

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. Amini, however, later told the technicians not to let plaintiff read the CTs and MRIs and told plaintiff to leave them for him to read the next day. After the meeting on January 19, 2006, plaintiff did not always read available CTs.

New Salary Determinations In 2006

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).[4] On January 8, 2006, the VA implemented a new pay system for physicians based on three components: (1) base pay determined by years in the VA system[5] (2) market pay based on local salary rates and the VA's need to recruit/retain that particular physician and (3) performance pay for meeting certain goals and objectives. The VA designed the new pay system to recruit and retain qualified physicians by offering competitive pay. To implement the new system, the VA set up Compensation Panels to conduct a market pay review and recommend pay adjustments.

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.[6] The VA instructed Panel members not to consider factors such as race, gender, prior EEO activity and national origin. After the Panel made pay recommendations, the relevant area Director determined each physician's pay, taking into consideration the funding required for all clinical specialties at the particular medical center.[7]

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.[8]

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 salary of $215, 000 - a 13.18 per cent increase.

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.[9] Dr. Greenberg had three years of experience with the VA and was board certified in radiology. Director Malone approved the Compensation Panel's recommendation.

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.

Plaintiff's Performance Ratings

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.[10] Doc. #75-20. If plaintiff met this goal, she could earn an additional $5, 000. Drs. Chigurupati and Greenberg had identical Performance Pay plans. For July 1 through September 30, 2006, plaintiff produced 897.94 RVUs, so she earned no Performance Pay. Drs. Greenberg and Chigurupati also failed to qualify for Performance Pay for that period. Id.

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.

Written Counseling On November 28, 2006

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:

I dispute the accusation by the AOD that she attempted to contact me on the government-issued cell phone.... It is unrealistic for management to expect for me to return calls to doctors when I am on call if I am not notified through the correct channels by the AOD.

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 ...

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