Beck-Wilson v. Principi

• Decision Date: 17 March 2006
• Docket Number: No. 04-4010.,04-4010.
• Citation: 441 F.3d 353
• Parties: Laura BECK-WILSON et al., Plaintiffs-Appellants, v. Anthony PRINCIPI, Secretary of Veterans Affairs, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

441 F.3d 353

Laura BECK-WILSON et al., Plaintiffs-Appellants, v. Anthony PRINCIPI, Secretary of Veterans Affairs, Defendant-Appellee.

No. 04-4010.

United States Court of Appeals, Sixth Circuit.

Argued: September 21, 2005.

Decided and Filed: March 17, 2006.

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ARGUED: John F. Burke III, Mansour, Gavin, Gerlack & Manos Co., LPA Cleveland, Ohio, for Appellants. Lynne H. Buck, Assistant United States Attorney, Cleveland, Ohio, for Appellee. ON BRIEF: John F. Burke III, Mansour, Gavin, Gerlack & Manos Co., LPA, Cleveland, Ohio, for Appellants. Lynne H. Buck, Assistant United States Attorney, Cleveland, Ohio, for Appellee.

Before: DAUGHTREY, MOORE, and McKEAGUE, Circuit Judges.

OPINION

KAREN NELSON MOORE, Circuit Judge.

The plaintiffs are seventeen current and former nurse practitioners ("NPs") employed by the Department of Veterans Affairs ("VA") at the Cleveland Veterans Affairs Medical Center ("VAMC") in Brecksville, Ohio. The plaintiffs brought suit against the VA under the Equal Pay Act ("EPA"), 29 U.S.C. § 206(d) et seq., alleging that, as predominantly female NPs, they are paid at a lower rate than the predominantly male physician assistants ("PAs") for performing jobs of equal skill, effort, and responsibility under similar working conditions. Plaintiff Laura Beck-Wilson also brought a wage-discrimination claim under Title VII, 42 U.S.C. § 2000e et seq. Although the district court held that plaintiffs had established a prima facie case of wage discrimination under the EPA, it granted summary judgment to the VA because it concluded that the VA had established its affirmative defense that "a factor other than sex," the separate statutory-based pay scales, was responsible for any sexually discriminatory difference in pay. We agree with the district court's conclusion that plaintiffs established a prima facie case under the EPA, but because we conclude that plaintiffs have raised a genuine issue of material fact regarding the reason for the pay differential between predominantly female NPs and predominantly male PAs, we REVERSE the district court's grant of summary judgment to the defendant and REMAND for further proceedings consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

The Cleveland VAMC consists of two hospitals and thirteen clinics in northeast Ohio, and its facilities treat almost 82,000 veterans per year. Within the VAMC medical system, nurse practitioners and physician assistants are medical practitioners who provide care to veterans. Within the Cleveland VAMC, nurse practitioners are over 95% female, and physician assistants are over 85% male. NPs are registered nurses ("RNs") with advanced training and are required to have a master's degree. The VA's functional statement for an NP requires that a candidate be certified as a nurse practitioner by the American Nursing Association and be licensed by the state as a registered nurse. An outgrowth of the historically female-dominated profession of nursing, NPs have traditionally been female. PAs, in contrast, are not required to have a bachelor's or master's degree. PAs must have graduated from an approved allied health program, where they are trained in patient assessments, histories and physicals, treatments, and technical skills. The VA's functional statement for a PA requires a minimum of two years of working experience either as a PA or in a similar primary healthcare provider position. If hired after 1993, a PA must be certified by the National Commission of Certification of Physician Assistants. As a profession, PAs find their roots within the military, where they were historically trained in a technical field to assist physicians. Traditionally PAs have been male.

NPs and PAs working at the VAMC (and other VA hospitals) are compensated according to Congressionally-determined pay scales, codified in two different statutory frameworks. NPs and other nurses are paid on a nursing pay scale, as outlined by the Nurse Pay Act of 1990, 38 U.S.C. § 7451. The Nurse Pay Act creates a nurse locality pay system, which ensures that the VA is not a pay leader in a given local market, but that its nurses are paid competitively. 38 U.S.C. § 7451(d)(3)(E). The system contains five grade levels (Nurse I — Nurse V) and a range of basic pay for each. In order to maintain competitive pay for VA nurses, the Nurse Pay Act authorizes facility directors to adjust rates of pay for covered positions to amounts comparable to the corresponding non-VA positions in the local labor market, so long as adjustments do not exceed the highest beginning rates for corresponding non-VA positions. A nurse's starting salary is determined by the Nursing Professional Standards Board ("NPSB"), and a nurse or supervisor can later request that the NPSB adjust an individual's placement on the pay scale to reflect a promotion or higher educational degree. Most NPs at the Cleveland VAMC are categorized as Nurse III on the locality pay system, which as of 2002 meant a top pay rate of $75,871 annually. Some NPs are categorized at the lower Nurse II rate, which in 2002 had a top pay rate of $64,600 annually.

PAs are paid according to the General Schedule ("GS") pay scale established in 38 U.S.C. § 7404. Each PA is classified as Associate, Full, Intermediate, Senior, or Chief pay grades, depending upon that individual's education, experience, and assignment complexity. A PA's starting pay is determined by the Medical Professional Standards Board ("MPSB") based upon experience, qualifications, and credentials. The MPSB also considers subsequent special adjustments based upon a PA's experience and advancement. Assuming their performance is satisfactory, both NPs and PAs receive regular step increases within their pay grade and cost of living adjustments as authorized by Congress.

Congress has enacted several statutory provisions that afford VA officials the discretion to increase the rate of pay for VA health care professionals when necessary. Under Title 38, the Secretary of Veterans Affairs may increase the basic pay of VA health-care personnel¹ where necessary to provide competitive pay, achieve adequate staffing, and to recruit personnel with specialized skills, particularly those who hold skills that are especially difficult or demanding. 38 U.S.C. § 7455(b). The Nurse Pay Act also includes a provision that authorizes the VA to increase the rate of pay for nurses as needed. While normally the maximum rate of basic pay for a grade is 133 percent of the minimum rate of basic pay for that grade, 38 U.S.C. § 7451(c)(1) states that "if the Secretary determines that a higher maximum [pay] rate is necessary with respect to any . . . grade in order to recruit and retain a sufficient number of high-quality health-care personnel, the Secretary may" increase the pay up to a maximum ratio of 175 percent.

In 1990, the Cleveland VAMC adopted a special pay scale for PAs because it was having problems recruiting local candidates for entry-level PA positions. PAs working at the VAMC have continued to receive pay at this special scale since 1990, despite the fact that there has not been a recruitment or retention problem for PAs in recent memory. William Montague, the current director of the Cleveland VAMC, testified that the VAMC has not experienced any difficulty recruiting or retaining PAs since his tenure began in 1997. Nevertheless, Montague has continued to certify to the VA that it remains necessary to pay PAs on an increased pay scale in order to ensure adequate staffing and competitive pay.

In 1999, plaintiff Laura Beck-Wilson learned that her colleague Greg McDonald, a PA, was earning more money for performing the same duties than she did in her role as an NP. Beck-Wilson and McDonald worked side-by-side, and like other NPs and PAs at the VAMC, often covered for one another while on the job. Beck-Wilson found this pay differential particularly disturbing because she and another NP had actually trained McDonald to do his job at the VAMC. Beck-Wilson sought redress within her chain of command; she went before her superiors asking that as an NP she be paid at a rate equivalent to a PA, and cited evidence that other VA facilities had special pay scales for NPs that accomplished wage parity between the two positions. When she brought her complaint to Director Montague, he stated that "he was not here to cure the social ills of society," Joint Appendix ("J.A.") at 189 (Beck-Wilson Dep. at 206); J.A. 427 (Montague Dep. at 39) (recalling conversation and stating he does not deny using similar phrase), but that Beck-Wilson was a nurse, and that was why the pay difference existed. In August 1999, Beck-Wilson filed an administrative complaint with the EEOC, arguing that the pay differential between PAs and NPs violated the EPA. An evidentiary hearing was held in 2000, and in June 2001, an administrative law judge rejected Beck-Wilson's claim, stating that she had not established a prima facie case under the EPA.

In September 2001, Beck-Wilson and eighteen other NPs filed this suit alleging violations of the EPA and Title VII. Plaintiffs allege that they are predominantly female whereas PAs are predominantly male, that as NPs they perform jobs of equal skill, effort, and responsibility as PAs, that as NPs they are higher educated and have received more training than PAs, and that they are paid less than PAs. Plaintiffs argue that the VA's decision to continue paying PAs on the special pay scale while at the same time refusing to create a special pay scale for NPs has resulted in illegal wage discrimination. Even though PAs perform substantially equal work to NPs, defendants pay them on a special pay scale which plaintiffs allege enables PAs to earn up to $10,000 more per year than similarly situated NPs. Plaintiffs point to VA employee Mary Knowles, who is both an NP and a PA, but who chooses not to invoke her greater educational qualifications as an NP because...