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Kennedy v. McDonald

United States District Court, D. South Carolina, Columbia Division

March 29, 2017

Richard M. Kennedy, III, Plaintiff,
v.
Robert A. McDonald, in his official capacity as Secretary of the U.S. Department of Veterans Affairs, Defendant.

          OPINION AND ORDER

          Margaret B. Seymour Senior United States District Judge

         Plaintiff Richard M. Kennedy, III, is a staff anesthesiologist employed at the William Jennings Bryan Dorn VA Medical Center (“Dorn Medical Center”) in Columbia, South Carolina. He brings this action against Defendant Robert A. McDonald, as his official capacity as Secretary of the United States Department of Veterans Affairs (the “VA”), alleging discrimination under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 633a (First Cause of Action) and seeking relief under the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202 (Second Cause of Action).

         In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., this matter was referred to United States Magistrate Judge Kaymani D. West for pretrial handling. On July 1, 2016, Defendant filed a motion for summary judgment, arguing that the VA's method of determining annual pay is consistent with applicable law, that Plaintiff cannot establish disparate impact[1] because he has no evidence of any statistical burden on older physicians, and Plaintiff has shown no waiver of sovereign immunity for a declaratory judgment action such as sought herein. Plaintiff filed a cross-motion for partial summary judgment as to the issues of Defendant's liability under the ADEA and Plaintiff's demand for declaratory judgment. Plaintiff filed a response in opposition to Defendant's motion on July 21, 2016, to which Defendant filed a reply on August 1, 2016. Defendant also filed a response in opposition to Plaintiff's motion on July 21, 2016, to which Plaintiff filed a reply on August 1, 2016.

         The Magistrate Judge issued a Report and Recommendation on December 28, 2016, in which she recommended that Defendant's motion for summary judgment be granted and Plaintiff's motion for partial summary judgment be denied. Plaintiff filed objections to the Report and Recommendation on February 1, 2017, to which Defendant filed a response on February 21, 2017. Plaintiff filed a reply to Defendant's response on March 13, 2017, to which Defendant filed a surreply on March 28, 2017.

         The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight. The responsibility for making a final determination remains with this court. Mathews v. Weber, 423 U.S. 261, 270 (1976). This court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge. 28 U.S.C. § 636(b)(1). This court may also receive further evidence or recommit the matter to the Magistrate Judge with instructions. Id. This court is obligated to conduct a de novo review of every portion of the Magistrate Judge's report to which objections have been filed. Id.

         I. FACTS

         The facts are fully detailed in the Report and Recommendation. Briefly, Plaintiff is paid pursuant to the provisions of the Pay Act (the Department of Veterans Affairs Health Care Personnel Enhancement Act of 2004), which was enacted to address the disparities in pay between physicians and dentists employed by the VA and those in the private and academic sectors. Pursuant to 38 U.S.C. § 7431, the pay of physicians and dentists in the Veterans Health Administration consists of the following three elements: base pay, market pay, and performance pay. At issue in this litigation is the interaction between base pay and market pay.

         Base pay is based upon a longevity pay schedule. For example, a physician or dentist employed by the VA for two years or less is considered to be at step 1; more than 2 years and not more than 4 years, step 2, and so forth. The highest rank a physician or dentist may attain is step 15, after 28 years service with the VA. See § 7431(b)(3). Market pay is “intended to reflect the recruitment and retention needs for the specialty or assignment . . . of a particular physician or dentist” in a VA facility, and is determined on a case-by-case basis. Under § 7431(c)(4),

The determination of the amount of market pay of a physician or dentist shall take into account--
(A) the level of experience of the physician or dentist in the specialty or assignment of the physician or dentist;
(B) the need for the specialty or assignment of the physician or dentist at the medical facility of the Department concerned;
(C) the health care labor market for the specialty or assignment of the physician or dentist, which may cover any geographic area the Secretary considers appropriate for the specialty or assignment;
(D) the board certifications, if any, of the physician or dentist;
(E) the prior experience, if any, of the physician or dentist as an employee of the Veterans ...

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