Bekkem v. Wilkie
915 F.3d 1258 (2019)
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Rule of Law:
An employer's disciplinary action that explicitly references an employee's protected activity as a basis for the discipline, even if combined with other legitimate reasons, can create a genuine issue of material fact for a jury to determine if the employer's stated non-retaliatory motive is pretextual under Title VII.
Facts:
- Anupama Bekkem, a physician at the Department of Veterans Affairs (VA), began working for the VA in 2006.
- In May 2013, after experiencing workplace conflicts, Bekkem contacted an Equal Employment Opportunity (EEO) counselor to complain about a hostile work environment and discrimination based on sex, national origin, race, color, and religion.
- On August 27, 2013, Bekkem sent several emails to numerous VA employees, including one titled 'Information received by filing a FOIA request related to my EEO action related to Ambulatory Care Physic[i]ans' pay.'
- This email asserted that '[f]emales seem to be paid less than males' and 'Foreign Born or non-white physicians make less than white physicians,' and it also contained a speculative allegation of bribery ('Maybe some money changed hands to make this happen?').
- On the same day, August 27, 2013, Bekkem's supervisor sent her a letter proposing a written reprimand.
- The proposed reprimand listed three specifications, the third of which cited the August 27 email because in it Bekkem 'alleged various complaints regarding the pay of physicians at this facility' and 'made an allegation by stating, "Maybe some money changed hands to make this happen?"'
- On September 30, 2013, the VA Chief of Staff issued a final reprimand to Bekkem for the same reasons stated in the proposal.
Procedural Posture:
- Anupama Bekkem sued her employer, the Department of Veterans Affairs, in the U.S. District Court, alleging multiple Title VII claims.
- The district court dismissed Bekkem's discrimination claim related to a reprimand under Rule 12(b)(6) for failure to state a plausible claim.
- The district court denied Bekkem's request for leave to amend her complaint regarding the dismissed discrimination claim.
- The district court later granted summary judgment in favor of the Department of Veterans Affairs on all of Bekkem's remaining claims, including unequal pay and retaliation.
- Bekkem (Appellant) appealed the district court's dismissal and summary judgment rulings to the U.S. Court of Appeals for the Tenth Circuit, where the Department of Veterans Affairs was the Appellee.
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Issue:
Does issuing a written reprimand that explicitly references an employee's protected complaints about discrimination, alongside other potentially legitimate reasons for discipline, create a genuine issue of material fact as to whether the employer's stated non-retaliatory reason is pretextual under Title VII?
Opinions:
Majority - McKay, Circuit Judge.
Yes. A written reprimand that explicitly references an employee's protected complaints, even when presented alongside a legitimate reason for discipline, is sufficient to allow a reasonable jury to find the employer's explanation is pretextual. The VA argued it reprimanded Bekkem solely for the bribery allegation and that mentioning her pay complaints was merely for context. However, the court found this was not the only plausible explanation. Given that the reprimand was proposed on the same day as the protected email and its text explicitly identified her 'complaints regarding the pay of physicians' as a basis, a jury could reasonably infer that the supervisor's true motive was to punish her for alleging discrimination. This creates a genuine dispute of material fact regarding pretext, making summary judgment on this retaliation claim inappropriate. The court affirmed the lower court's grant of summary judgment on Bekkem's other claims, finding she failed to show pretext for her unequal pay claim and failed to establish a causal connection for her failure-to-promote retaliation claim.
Analysis:
This decision underscores the critical importance of how employers document disciplinary actions. By including an employee's protected activity—her complaints about discriminatory pay—in the text of the reprimand, the employer created direct evidence linking the adverse action to the protected activity. This substantially weakened the employer's ability to prevail on summary judgment by arguing its motive was purely legitimate. The case serves as a practical lesson for employers to carefully craft disciplinary notices, focusing exclusively on the specific, non-retaliatory misconduct at issue and avoiding any language that could be interpreted as penalizing an employee for engaging in protected opposition to discrimination.
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