Boyer v. United States
| Decision Date | 25 March 2022 |
| Docket Number | 20-438 C |
| Parties | LESLIE BOYER, Plaintiff, v. THE UNITED STATES, Defendant. |
| Court | U.S. Claims Court |
Reissued: April 20, 2022 [*]
Jon C Goldfarb, Wiggins Childs Pantazis Fisher & Goldfarb, LLC of Birmingham, AL, for Plaintiff.
Kara M. Westercamp, Trial Attorney, Commercial Litigation Branch Civil Division, Department of Justice, of Washington, D.C., for Defendant.
This case is brought by Plaintiff Leslie Boyer, a female clinical pharmacist at the Veterans Affairs Medical Center of Birmingham, Alabama ("BVAMC"), who alleges gender discrimination in violation of the Equal Pay Act ("EPA"). Plaintiff's claim arises out of her discovery, three years after her hiring, that a male coworker in the same position ("Male Comparator"), who Plaintiff alleges has less experience than her, was hired after her with a higher starting pay rate. The justification for the pay differential forms the crux of this dispute.
Plaintiff, in moving for summary judgment, asserts that BVAMC willfully violated the EPA by relying on prior salary alone in determining pay rates. The government, in cross-moving for summary judgment, concedes Plaintiff has established a prima facie case under the EPA; however, it asserts as an affirmative defense the use of a "factor other than sex" in determining Plaintiff's and Male Comparator's pay rates, citing the statutory and regulatory authorities that govern federal pay determinations.[1] For the reasons that follow, the Court denies Plaintiff's motion for summary judgment and grants the government's cross-motion.
As is evident from the briefs in this case, what constitutes the factual record in this case appears to be uncontested.[2] The parties, however, put genuine issues of material fact in dispute by the markedly different conclusions they draw from the evidence in the record. An overview of the relevant hiring process, Plaintiff's and Male Comparator's appointments, and the proceedings to date is necessary to understand Plaintiff's claim.
Generally, new hires (or "appointments") in the federal government are made at the minimum rate of pay (or "step") for the appropriate grade of the individual under the General Schedule ("GS") system. See 5 U.S.C. § 5333. In order to depart from the minimum step, an agency must justify the step increase it intends to offer the individual. Id. In pertinent part, 5 U.S.C. § 5333 provides that, pursuant to regulations, federal agencies may appoint an individual above the minimum step "for such considerations as the existing pay or unusually high or unique qualifications of the candidate, or a special need of the Government for his services . . . ." Id.
Although Plaintiff and Male Comparator, as pharmacists, were hired pursuant to 38 U.S.C. § 7401(3) (and not title 5), 5 U.S.C. § 5333 () is nonetheless relevant to the application of the EPA in this case. Some, but not all Department of Veterans' Affairs ("VA" or "Department") employees, are hired pursuant to title 5 and, therefore, are directly covered by § 5333. Moreover, the Veterans Health Administration ("VHA")-a component of the Department-uses specific policies and procedures to make a new appointment and to justify a departure from the minimum step of a grade that track nearly verbatim § 5333's grounds. VA Handbook 5007/51, Part II, Chapter 3 provides that "[a]uthorized individuals may, after considering an individual's existing pay, higher or unique qualifications, or special needs of VA, appoint [certain employees] . . . at rates of pay above the minimum rate of the [highest applicable rate range for the] appropriate grade." See ECF No. 43 at 4 ("Gov.'s Mot. Summ. J.") (citing ECF No. 44 at 18 ("Appx")).[3] To do so, the VA considers the following "Criteria for Pay Determinations":
Appx 19. Thereafter, "the selecting official is required to 'forward the recommendation for appointment above the minimum rate of the grade to the appropriate professional or similar standards board.'" Gov.'s Mot. Summ. J. at 5 (quoting Appx 20). "The board will consider this information when making a formal recommendation regarding the candidate's qualifications, and recommended grade and step upon appointment." Appx 20. Such board recommendations "may serve as the justification to support an appointment above the minimum rate of the grade." Id. Furthermore, "[a] brief narrative . . . should be included which provides pertinent information regarding the basis of the recommendation as it relates to the candidate's existing rate of pay, recent salary history or competing job offer, higher or unique qualifications or special needs of the VA." Id.
The relevant board in the instant case is the Veterans Integrated Service Networks 7 Pharmacy Professional Standards Board ("VISN 7 Board" or "Board"), which has the responsibility "to advance the professional standards of pharmacy by determining eligibility for employment and grade qualifications for GS-14 level positions or lower grades where a local Board cannot be convened." Appx 35. Moreover, the VISN 7 Board "will, where necessary, make recommendations for appointment, reassignment, retention, promotion and special within-grade advancements consistent with the aforementioned grade levels." Id. Pursuant to the VISN 7 Board's policy:
Any request should be submitted to the designated Human Resources Representative at the local Medical Center. The HR Representative or designee will ensure that all of the appropriate documentation, such as the license, application, and where needed, [Official Personnel Folder], are available. The Representative will then forward the request and file to the Chair of the Local Board or the Chair of the VISN Board, who will determine and convene the necessary members to act on the request. The Board's recommendation, along with the supporting documentation, will be returned to the originating HR Office for final approval by the Medical Center Director.
Id. In short, the selecting official sends a recommendation for an individual's appointment, grade, and step to the Board, which then "act[s] on the request" and presents its recommendation "for final approval" to the Medical Center Director.
Plaintiff earned her doctorate in pharmacy in 1999. ECF No. 46 at 6 ("Pl.'s Mot. Summ. J."); see also Appx 67. She worked as a staff pharmacist at Pay-Less Pharmacy from 1999 to 2000, Rite Aid Pharmacy from 2000 to 2002, Huntsville Hospital from 2002 to 2005, and Walgreens from 2005 to 2007. Id. In 2007, Plaintiff accepted a position as a pharmacy manager at Kroger Pharmacy, a position in which she remained part time until her move to BVAMC.[4] Pl.'s Mot. Summ. J. at 6-7. Finally, Plaintiff worked as a staff pharmacist at the State of Alabama-North Alabama Regional Hospital in Decatur, Alabama, from 2011 until shortly before BVAMC hired her in 2015. Appx 67.
In February 2015, Plaintiff applied for a position as a clinical pharmacist with BVAMC. Gov.'s Mot. Summ. J. at 6 (citing Appx 59-66). In her application, Plaintiff listed her salary at North Alabama Regional Hospital as "105, 000.00 USD Per Year" and her salary at Kroger Pharmacy as "120, 000.00 USD Per Year." Id. at 6-7 (citing Appx 63).[5]
Prior to her start, Plaintiff exchanged a series of emails with Monica Sfakianos, Associate Chief, Pharmacy Service, concerning a range of topics, including an official start date and salary with BVAMC. Appx 71-73. On June 9, 2015, Plaintiff emailed Sfakianos stating: Appx 71. Plaintiff continued:
Also, Ramona mentioned that I could send copies of my W-2 forms or payroll stubs from Kroger and the State [of Alabama] and she would pass the information along to the review board that I have worked two jobs the last four years. Kroger did not pay me a premium rate for the hours I worked. I have asked around and it is a very conservative rate . . . . I would like to know if this is acceptable with you for her to communicate this salary information to the review board for me.
Id. In reply the same day, Sfakianos said:
Id. The next day, Plaintiff responded with:
Monica, I faxed information confirming my salary and hourly rate from Kroger. Please let me know you received it. Does it matter to the board that my current employer is Kroger instead of the State of Alabama? I really appreciate you getting this information to them and I look very forward to working with you and the VA!
Appx 72.
On July 7, 2015, Sfakianos sent a memorandum to the Board recommending Plaintiff's appointment to BVAMC,...
To continue reading
Request your trial