Nazinitsky v. Integris Baptist Medical

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 21, 2021
• Docket: 20-6076
• Status: Unpublished

Opinion

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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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

5 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

6 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). 9