For the last four years, the union representing workers at the Department of Veterans Affairs at the Central Arkansas Veterans Healthcare System has been fighting for their female physicians to receive equal pay as their male counterparts. And this week, the union filed an appeal with the United States Court of Appeals for the Federal Circuit to overturn prior case law and offer fair compensation for those female physicians under the Equal Pay Act.
AFGE Local 2054 first filed Gayle Gordon and Teresa Maxwell v. United States of America in 2014 after the union discovered that Drs. Gordon and Maxwell were earning approximately $14,000 annually less than their male colleagues.
The discrepancy first came to light after Dr. Gordon learned her husband – who works in the same role at the same facility – was earning more than his wife, despite him having less experience. Further investigation found several more male physicians were out-earning their female counterparts throughout the medical center, and the union has been fighting for Gordon and Maxwell since.
“This case is a cut-and-dry example of how women are unable to earn equal pay as their male colleagues,” said AFGE Local 2054 President Barbara Whitson-Casanova. “Drs. Gordon and Maxwell serve our veterans and save lives in our emergency room here in North Little Rock, but because they’re women, and fall under Title 38, they have been vastly underpaid for years.”
“We have been fighting to correct this negligible treatment of both doctors since 2014, and I’m thrilled we’ve filed another appeal that will hopefully set a new precedent that will help women earn equal pay as men going forward nationwide in the federal government,” added Whitson-Casanova.
Improperly shifting the burden of proof
The original case received a summary judgment in February 2017, when Judge Robert H. Hodges Jr. ruled that “the reason for this apparent disparity remains unclear and essentially unexplained by the parties.”
Whitson-Casanova says that the Equal Pay Act simply requires that the plaintiffs proved a prima facie case by proving male physicians were paid more – shifting the burden of proving one of the Equal Pay Act’s affirmative defenses to the defendant. So Local 2054 appealed.
On appeal to the United States Court of Appeals for the Federal Circuit in the fall of 2018, the three-judge panel upheld the lower court’s ruling, stating that prior case law – Yant v. United States – showed that “plaintiffs bear the burden of showing that the complained-of pay differential is based on sex.”
However, one of the three on the panel, Judge Jimmie V. Reyna, wrote that Yant “improperly shifts the burden from the employer to disprove discrimination to the plaintiff to prove discrimination.” Reyna added, “Such a shift is improper under the statute and at odds with Supreme Court precedent and the law of other circuits.”
Whitson-Casanova says Judge Reyna’s dissent helps show there was an Equal Pay Act violation, and it encouraged her to appeal the case.
“Even with the tremendous strain on our resources stemming from the President’s union-busting executive orders, we knew this case was worth pursuing,” she said. “All our doctors should be paid based on their expertise, skill, and experience, but that’s just not happening here. Instead, the women are being paid less, and it’s just not right. We will keep fighting for them until we prevail and make them whole after years of unfair treatment and lost wages.”