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Legal News
Psychiatrist Wins Equity For IMG Colleagues
Psychiatric News
Volume 39 Number 16 page 15-15

Psychiatrist Harjinder Virdee, M.D., is not one to turn away when she has a chance to right a wrong—or in this case, two wrongs.

In 2000 Virdee challenged a daunting opponent—the U.S. government, specifically the Department of Veterans Affairs Medical Center in Fargo, N.D.—which happened to be her employer. In April she heard a court declare her the victor, but the battle is not yet over.

Virdee's first battle was joined when she learned that international medical graduates (IMGs) working at the Fargo VA hospital under H-1B visas were being paid considerably less than their U.S.-educated colleagues. The second fight ensued when she and another physician were fired after their successful advocacy in the IMG wage-discrimination case.

When an employer files an application with the Department of Labor as a prelude to hiring an H-1B professional, the employer is to certify that it will pay the employee either the same wage it pays others with similar experience and qualifications or the prevailing wage for that type of position in the surrounding area, whichever is higher.

Virdee and internist Rudranath Talukdar, M.D., were representatives to the National Federation of Federal Employees, the union that represents the hospital's physicians, in 2000 and 2001, when the IMG wage complaint was first filed. Virdee was chief steward for the union and eventually became vice president.

Virdee had been acting chief of psychiatry at the Fargo VA hospital in 1998 and 1999, but resigned that post to become a staff physician there because of time pressures and inadequate support staff in the chief's job.

During the nearly three years during which she fought the hospital's discriminatory pay scale for IMGs, both she and Talukdar repeatedly received extremely positive job-performance ratings from their department chiefs, according to the decision, though the relationship between Virdee and the psychiatrist who succeeded her as chief, Ada Kirkman, M.D., "were unfavorable almost from the outset."

In 2001 the tension between Virdee and Kirkman resulted in a physical altercation between the two, the decision says, though the circumstances and severity are not clear.

Virdee was soon reassigned from clinical duties to full-time work in the union office.

In March 2002 the VA was notified that a U.S. Department of Labor investigator found that it had violated the law by "failing to pay wages as required" to H-1B visa holders. It was told to repay about $203,000 in back wages.

In May 2002, after additional disputes between Virdee and her superiors, she was informed that as of June 6, 2002, her services would no longer be needed at the Fargo VA and that her termination was because of" budgetary reasons" and a low workload that could be picked up by other medical staff. Virdee soon learned that the VA was advertising for a physician to fill the slot she was forced to leave.

In July an "unsatisfactory" work evaluation was added to Virdee's personnel file.

Judge Alice Craft, who heard the appeal of Virdee's and Talukdar's termination, ruled that the events involving the wage-discrimination cases the two spearheaded and their firings were close enough in time "to raise an inference of causation."

Craft also emphasized that "both the underlying reason of budget matters, and the particular explanations for selecting Drs. Talukdar and Virdee for termination, lack credibility."

She rejected the suggestion that Virdee's performance as described in the negative job review was a legitimate factor in the firing, noting that neither of the VA's witnesses raised this issue during their testimony on why Virdee was fired, and the negative review wasn't placed in her file until a month after she was let go.

The judge determined that the two physicians who were fired were linked by their union activities on behalf of the IMG staff and that "their conduct was protected by the whistleblower provision" that protects federal employees from losing their jobs for bringing to light charges of abuse, fraud, or discrimination.

Craft ordered the VA to reinstate Virdee in the mental health department at the Fargo VA "or another mutually agreeable facility operated by the VAMC, with the same salary and benefits as if she had no gap in service." She also ordered the VA to pay Virdee back wages from June 6, 2002, and to purge the negative job evaluation from her personnel file.

Virdee told Psychiatric News, however, that the Fargo VA" did not offer us our old jobs back or back pay, but has instead decided to fight us in the courts. They also did not offer to remove the negative proficiency record for me that the judge ordered to be expunged."

The VA is appealing the judge's decision, she noted, on the grounds that the Department of Labor did not have jurisdiction to hear the case because Virdee's VA appointment was a temporary one and because she is not a U.S. citizen.

Virdee said that she decided to fight a government agency on the IMG pay issue because "continuity of care and level of care for veterans can best be rendered if IMG physicians are treated with respect and equal pay, as is the case for other physicians." ▪

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