Nazinitsky v. Integris Baptist Medical ( 2021 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 21, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
ALLISON NAZINITSKY,
Plaintiff - Appellant,
v. No. 20-6076
(D.C. No. 5:19-CV-00043-R)
INTEGRIS BAPTIST MEDICAL (W.D. Okla.)
CENTER, INC., d/b/a NAZIH ZUHDI
TRANSPLANT INSTITUTE,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before PHILLIPS, MURPHY, and McHUGH, Circuit Judges.**
_________________________________
Dr. Allison Nazinitsky was paid less, but purportedly worked harder, than three of
her more experienced male colleagues. She claims that this arrangement violated the
Equal Pay Act (“EPA”), 29 U.S.C. § 206(d), and Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq. The district court dismissed these claims on summary
judgment. On appeal, Dr. Nazinitsky challenges this ruling. We affirm the district court.
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
**
The unredacted briefs and appendix filed under seal with provisional
permission from the clerk’s office will remain sealed. The unredacted Order and
Judgment is also sealed.
BACKGROUND
In 2015, INTEGRIS Baptist Medical Center, Inc. d/b/a Nazih Zuhdi Transplant
Institute (“Integris”) hired Dr. Nazinitsky for a two-year term as a transplant-infectious-
disease physician, her first physician position after her residency and fellowship. Her
desired compensation was $250,000. Integris provided this in base compensation
($225,000 in base salary and $25,000 for medical-director services) and, additionally,
offered a second-year performance bonus of up to $25,000.1 Integris set this
compensation after reviewing an opinion letter from Navigant, an independent consulting
firm, regarding the market compensation for a physician of Dr. Nazinitsky’s specialty,
experience, and skills.
Dr. Nazinitsky left Integris after the two-year term, choosing not to renew her
contract after learning of staff misconduct allegations made against her. About a year
later, she filed an administrative proceeding with the Oklahoma Attorney General’s
Office and the Equal Employment Opportunity Commission, charging discrimination,
and the next year, she filed this lawsuit.
1
We base this description on the employment agreement. The parties dispute
whether this was Dr. Nazinitsky’s total compensation. See, e.g., Appellee’s Answer
Br. at 16 (arguing that Dr. Nazinitsky’s first-year compensation was $262,500 and
her second-year potential compensation was $312,500). But this issue isn’t material.
Fed. R. Civ. P. 56(a) (“The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”); Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th
Cir. 2010) (“An issue of fact is material if under the substantive law it is essential to
the proper disposition of the claim or defense.” (citations and internal quotation
marks omitted)). Regardless of how the issue is resolved, for the reasons below, no
reasonable factfinder would find for Dr. Nazinitsky.
2
In relevant part, Dr. Nazinitsky claims that Integris violated the EPA and Title VII
by engaging in wage discrimination.2 She compares her pay to a then-fourteen-year
Integris family-medicine physician, a then-seven-year Integris nephrologist (kidney
specialist), and a then-ten-year Integris cardiologist, whose base salaries were between
roughly $300,000 and $660,000 and whose total compensations were between roughly
$370,000 and $750,000.3 According to Dr. Nazinitsky, the men’s compensations ranged
from the 70th to over the 90th percentiles of the market-compensation ranges for their
respective specialties. In contrast, she calculates that she earned at between the 40th and
60th percentiles for hers. She argues that this pay disparity must have resulted from sex
discrimination because she worked harder than the male physicians.
The district court dismissed Dr. Nazinitsky’s claims on summary judgment. We
review under 28 U.S.C. § 1291.
DISCUSSION
I. Standard of Review
“We review a grant of summary judgment de novo and apply the same legal
standard used by the district court.” Timmons v. White, 314 F.3d 1229, 1232 (10th Cir.
2003) (citation omitted). We will affirm “if the movant shows that there is no genuine
2
Dr. Nazinitsky brought several additional Title VII claims, which the district
court dismissed on summary judgment. On appeal, Dr. Nazinitsky hasn’t challenged
these rulings.
3
The parties dispute whether we should compare base or total compensations.
Much like the base-compensation dispute, we needn’t resolve this issue because
either way, no reasonable factfinder would find for Dr. Nazinitsky.
3
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “We view the evidence and make inferences in the light most
favorable to the non-movant.” Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th Cir.
2010) (citation omitted).
“The moving party has both the initial burden of production on a motion for
summary judgment and the burden of establishing that summary judgment is appropriate
as a matter of law.” Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010)
(citation and internal quotation marks omitted). “[T]he movant need not negate the non-
movant’s claim, but need only point to an absence of evidence to support the non-
movant’s claim.” Id. (alteration in original) (citation omitted). “If the movant carries this
initial burden, the nonmovant may not rest on its pleadings, but must bring forward
specific facts showing a genuine issue for trial as to those dispositive matters for which it
carries the burden of proof.” Id. (citation omitted). “An issue of fact is genuine if the
evidence is such that a reasonable jury could return a verdict for the non-moving party on
the issue.” Nahno-Lopez, 625 F.3d at 1283 (citation and internal quotation marks
omitted). “An issue of fact is material if under the substantive law it is essential to the
proper disposition of the claim or defense.” Id. (citation and internal quotation marks
omitted).
II. Legal Background
Put simply, the EPA prohibits pay discrimination based on the recipient’s sex. 29
U.S.C. § 206(d).
4
To establish a prima facie case of pay discrimination under the EPA, a
[female] plaintiff must demonstrate that: (1) she was performing work which
was substantially equal to that of the male employees considering the skills,
duties, supervision, effort and responsibilities of the jobs; (2) the conditions
where the work was performed were basically the same; [and] (3) the male
employees were paid more under such circumstances.
Riser v. QEP Energy, 776 F.3d 1191, 1196 (10th Cir. 2015) (citation and internal
quotation marks omitted).
Once the plaintiff has made a prima facie case, “the burden of persuasion then
shifts to the defendant to prove that the wage disparity was justified by one of four
permissible reasons,” Mickelson v. N.Y. Life Ins., 460 F.3d 1304, 1311 (10th Cir. 2006)
(citation omitted): “(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,” Riser, 776 F.3d at 1198 (quoting 29 U.S.C. § 206(d)(1); and
then citation omitted). “To meet this burden, an employer must submit evidence from
which a reasonable factfinder could conclude not merely that the employer’s proffered
reasons could explain the wage disparity, but that the proffered reasons do in fact explain
the wage disparity.” Id. (citation and internal quotation marks omitted). “At the summary
judgment stage, this means an employer must prove at least one affirmative defense so
clearly that no rational jury could find to the contrary.” Id. (citation and internal quotation
marks omitted).
Title VII similarly prohibits “discriminat[ing] against any individual with respect
to his compensation . . . because of such individual’s . . . sex.” 42 U.S.C. § 2000e–
2(a)(1). But for Title VII claims (unlike for EPA claims), “a plaintiff has the ultimate
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burden of proving her employer intentionally discriminated against her.” Riser, 776 F.3d
at 1199 (citation omitted). “A plaintiff can establish this by either direct evidence or
circumstantial evidence that creates an inference of intentional discrimination.” Id. Dr.
Nazinitsky attempts to do the latter.
We assess claims based on circumstantial evidence under the burden-shifting
framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Riser, 776 F.3d at 1199–1200 (citation omitted). Under this framework,
[f]irst a plaintiff must establish a prima facie case of pay discrimination. If
the plaintiff succeeds, the burden shifts to the defendant to articulate a
legitimate, nondiscriminatory reason for its actions. If the defendant does so,
the burden shifts back to the plaintiff to show that his or her protected
characteristic was a determinative factor in the defendant’s employment
decision or that the defendant’s explanation was merely pretextual.
Id. at 1200 (citation and internal quotation marks omitted). To establish a prima facie
case, a female plaintiff alleging sex discrimination “must show she occupie[d] a job
similar to that of higher paid males.” Id. (citation and internal quotation marks omitted).
At the next step, the defendant’s “burden is exceedingly light; the defendant must merely
proffer non-gender based reasons, not prove them.” Sprague v. Thorn Ams., Inc., 129
F.3d 1355, 1363 (10th Cir. 1997) (citation and internal quotation marks omitted). At the
last step, a plaintiff may show pretext “by revealing weaknesses, implausibilities,
inconsistencies, incoherences, or contradictions in the employer’s proffered reason, such
that a reasonable fact finder could deem the employer’s reason unworthy of credence.”
DePaula v. Easter Seals El Mirador, 859 F.3d 957, 970 (10th Cir. 2017) (citation
omitted).
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III. The EPA Claim
After the district court assumed arguendo that Dr. Nazinitsky had made a prima
facie case, the EPA claim turned on whether Integris had sufficiently proven any
defenses. Addressing this, the court ruled that all reasonable factfinders would conclude
that the wage disparity was based on these factors other than sex: “(1) a bona fide,
gender-neutral pay classification system based on marketplace value [of physicians’
medical specialties], and (2) employee experience.” Appellant’s App. vol. 2 at 445.
Dr. Nazinitsky’s challenge to this ruling on appeal fails. For one, she has admitted
that the market value of the physicians’ medical specialties accounts for the pay disparity
in part. The market compensation for cardiologists, nephrologists, and family-medicine
physicians was higher than that for infectious-disease physicians. By the district court’s
and our calculations, the difference in market value accounts for roughly forty percent of
the difference between Dr. Nazinitsky’s compensation and the male comparators’.
Second, no reasonable jurors would find other than that relative experience
explains the remaining pay differential (i.e., why Dr. Nazinitsky was paid at a lower
percentile of the market-compensation range for her specialty than the male comparators
were of theirs). Common sense tells us as much here. Dr. Nazinitsky was a first-year
physician and is comparing herself to physicians with at least seven years’ more
experience.4 Cf. Mickelson, 460 F.3d at 1313 (commenting that, when one higher-paid
4
This fact distinguishes this case from those Dr. Nazinitsky has cited on
appeal. See Mickelson, 460 F.3d at 1312–14 (regarding a comparator with less
7
comparator has significantly more experience, “we might well conclude that . . . no
rational trier of fact could conclude other than that his experience was the determinative
factor in setting his salary”). But our decision rests on more than good sense alone.
Integris employees have affirmed that Dr. Nazinitsky’s relative experience affected her
pay, and the Navigant opinion letter reflects that experience is a factor in setting
physician compensation.
Dr. Nazinitsky argues that this explanation can’t be right because physician
compensation must be correlated to personal productivity.5 Purportedly, this premise is
supported by certain regulations on physician compensation and the fact that “the fair
market surveys” Navigant considered included productivity data. Appellant’s Opening
Br. at 17; see Appellant’s Reply Br. at 5–6 (citing 42 C.F.R. §§ 411.354(d)(1), 411.357).
But we disagree. See, e.g., Appellant’s App. vol. 2 at 314 (listing qualifications,
contributions, and skills as other factors relevant to determining physician
compensation).6 The regulations cited don’t stand for this proposition, see 42 C.F.R.
relevant experience than plaintiff); EEOC v. Md. Ins. Admin., 879 F.3d 114, 117–19,
122–23 (4th Cir. 2018) (addressing disparities in starting salaries).
5
Relying on one of our unpublished orders, the district court treated this
argument as rebuttal and shifted the burden to Dr. Nazinitsky to show that Integris’
defenses were pretextual. See, e.g., Appellant’s App. vol. 2 at 448 (citing Casalina v.
Perry, 708 F. App’x 938, 941 (10th Cir. 2017) (unpublished)). Even if we may
question whether this follows Mickelson, 460 F.3d at 1311 (“the employer’s burden
in an EPA claim is one of ultimate persuasion” (citation omitted)), we needn’t
resolve this issue because Dr. Nazinitsky’s argument wholly lacks merit.
6
One of these surveys is described as follows: “[This survey] focuses on the
individual compensation and productivity of physicians and other clinical staff,
8
§§ 411.354(d)(1), 411.357, and even though the Navigant letter suggests that
productivity is one factor relevant to setting pay, this doesn’t mean that Dr. Nazinitsky’s
point is correct or that any reasonable factfinder would find for her.
IV. The Title VII Claim
In connection with the Title VII claim, the parties have repeated the foregoing
arguments. Accordingly, assuming arguendo that Dr. Nazinitsky has made a prima facie
Title VII case (as the district court did), we find that Integris has articulated legitimate,
non-discriminatory reasons for the pay disparity. And, for the reasons above, no
reasonable factfinder would find them pretextual.
CONCLUSION
Therefore, we affirm the district court.
Entered for the Court
Gregory A. Phillips
Circuit Judge
starting salaries of new residents and experienced new hires, as well as salaries for
physician leadership, nurse practitioners, and physician assistants.” Compensation
Survey, AMGA, https://www.amga.org/performance-improvement/best-
practices/benchmarking-surveys/compensation-survey/ (last visited Apr. 9, 2021).
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