Bekkem v. Wilkie
915 F.3d 1258
| 10th Cir. | 2019Background
- Bekkem, a VA primary care physician, sued the Department of Veterans Affairs alleging Title VII claims for (1) gender-based pay discrimination (market pay component) covering Sept. 2011–Mar. 2014, (2) retaliation for non-selection as North May clinic medical director, and (3) retaliation and discrimination based on a September 2013 written reprimand for email conduct.
- VA physician pay comprises base pay (tenure-based), market pay (individualized assessment reviewed biennially by a compensation panel), and performance pay; a federal pay freeze (2011–2013) limited market pay adjustments except in narrow exceptions.
- Plaintiff’s 2012 compensation-panel review increased base pay but not market pay; she later sent multiple emails (Aug. 2013) complaining about colleagues’ pay and workplace conflict, and received a reprimand on Sept. 30, 2013.
- After the freeze ended, Bekkem received >$20,000 market‑pay increase following panel reviews in early 2014. The North May director job (posted Nov. 2014) had two qualified applicants: Bekkem and the physician who had acted as the clinic lead for two years; that lead physician was selected in Mar. 2015.
- The district court dismissed some discrimination claims (Rule 12(b)(6)) and granted summary judgment for VA on remaining claims; Bekkem appealed three summary‑judgment rulings and the dismissal of the reprimand‑based discrimination claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bekkem proved gender pay discrimination (market pay) during the pay‑freeze period | Supervisor withheld earlier panel recommendation or market‑pay increase due to gender bias | Pay disparities resulted from timing of biennial reviews and the federal pay freeze, plus narrow exceptions (additional duties or recharacterized pay) | Affirmed: VA provided legitimate nondiscriminatory reasons; Bekkem failed to show pretext |
| Whether non‑selection for North May medical director was unlawful retaliation | Non‑selection was retaliatory (past EEO activity; supervisor animus) | Selection based on merit: other candidate had been acting clinic lead and scored higher; no causal link to protected activity | Affirmed: no causal connection; temporal gap and stronger qualifications of chosen candidate defeat inference of retaliation |
| Whether reprimand for emails (including FOIA‑summary email alleging pay disparities and suggesting bribery) was retaliatory | Reprimand was retaliation for protected EEO activity and alleging discrimination | Reprimand was legitimate discipline for accusing colleagues/organization of bribery and for inappropriate conduct | Reversed/Remanded: factual disputes (timing, wording, motive) permit a jury to find VA’s non‑retaliatory explanation pretextual |
| Whether reprimand‑based discrimination claim plead plausibly (Rule 12(b)(6)) | Complaint alleged similarly situated nonprotected colleagues sent similar emails and were not disciplined | Allegations were conclusory, lacking factual detail to plausibly link reprimand to protected characteristics | Affirmed dismissal: amended complaint failed to plead sufficient facts to state a plausible discrimination claim; denial of further amendment not an abuse of discretion |
Key Cases Cited
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (burden‑shifting framework for discrimination claims)
- Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000) (prima facie case plus falsity of employer’s reason can permit inference of discrimination)
- Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013) (but‑for causation standard for retaliation)
- Morgan v. Hilti, Inc., 108 F.3d 1319 (10th Cir. 1997) (adaptation of prima facie McDonnell Douglas elements)
- Khalik v. United Air Lines, 671 F.3d 1188 (10th Cir. 2012) (pleading standard for employment discrimination claims)
- Ward v. Jewell, 772 F.3d 1199 (10th Cir. 2014) (circumstances to infer retaliatory motive; limitations of temporal proximity)
- Anderson v. Coors Brewing Co., 181 F.3d 1171 (10th Cir. 1999) (three‑month gap insufficient alone to infer causation)
- Bones v. Honeywell Int’l, Inc., 366 F.3d 869 (10th Cir. 2004) (retaliation causation requires more than speculation)
- Adler v. Wal‑Mart Stores, Inc., 144 F.3d 664 (10th Cir. 1998) (summary judgment standards and waiver for unsupported arguments)
- Iqbal v. Ashcroft, 556 U.S. 662 (2009) (complaint must plead facts plausibly suggesting liability)
- Hwang v. Kan. State Univ., 753 F.3d 1159 (10th Cir. 2014) (insufficiency of conclusory similarly situated allegations)
- Montes v. Vail Clinic, Inc., 497 F.3d 1160 (10th Cir. 2007) (employer’s light burden in McDonnell Douglas second step)
- Orr v. City of Albuquerque, 531 F.3d 1210 (10th Cir. 2008) (court must view evidence in totality when assessing pretext)
- Young v. Dillon Cos., 468 F.3d 1243 (10th Cir. 2006) (standard for showing pretext: reasons so weak/incoherent a jury could reject them)
- Stover v. Martinez, 382 F.3d 1064 (10th Cir. 2004) (pretext analysis)
- Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231 (10th Cir. 2013) (pleading must allow reasonable inference of legally relevant facts)
- Wilkerson v. Shinseki, 606 F.3d 1256 (10th Cir. 2010) (review standard for denial of leave to amend)