Babb v. Gibson

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

NORIS BABB,

Plaintiff,

v. Case No. 8:14-cv-1732-VMC-TBM

DENIS McDONOUGH, Secretary,

DEPARTMENT OF VETERANS AFFAIRS,

Defendant.

_______________________________/

ORDER

This matter comes before the Court upon consideration of

Defendant Secretary of the Department of Veterans Affairs’

Motion for Summary Judgment (Doc. # 52), filed on April 11,

2016. Defendant filed a supplemental memorandum in support of

the Motion for Summary Judgment on October 14, 2021. (Doc. #

124). Plaintiff Noris Babb responded on November 5, 2021.

(Doc. # 127). Defendant replied on November 18, 2021 (Doc. #

129), and on November 30, 2021, with leave of Court, Dr. Babb

filed a Sur-Reply. (Doc. # 132). For the reasons that follow,

the Motion is granted in part and denied in part.

I. Background

A. Dr. Babb’s Role as a VA Pharmacist in Geriatrics

Dr. Babb is a clinical pharmacist who is currently

employed at the C.W. Bill Young VA Medical Center. (Doc. # 27

at ¶ 8). At the time of the events in question, she was

approximately 52 years old and was in a GS-12 position. (Id.).

Dr. Babb worked in the geriatric primary care clinic at the

VA from 2006, until June of 2013. (Babb Decl. Doc. # 68-2 at

¶¶ 1, 26). During her time in the geriatrics clinic, she was

part of an “interdisciplinary team.” (Hull Dep. Doc. # 54 at

8:21). One of her supervisors at the geriatrics clinic, Dr.

John Hull, explained: “the interdisciplinary team is a team

of caregivers that work closely together to achieve better

outcomes for complex patients. . . . [T]he idea is that a

group of people working together and sharing information can

achieve success in complex situations much better than a solo

practitioner.” (Id. at 8:23-9:4).

Dr. Hull explained that the patients seen at the

geriatrics clinic were “the oldest of the old” facing “frailty

. . . usually psychosocial problems and a high rate of

dementia.” (Id. at 8:2-10). Dr. Hull noted, “we try to select

patients that have multiple medical, psychosocial and

functional problems, which means that our rate of death is

much, much higher than a regular primary care environment,

and dealing with the issues of death and dying palliative

care.” (Id. at 7:21-25).

At that time, Dr. Babb held an Advanced Scope, which

means that she could perform Disease State Management. (Babb

Decl. Doc. # 68-2 at ¶ 5). Disease State Management entails

a pharmacist independently managing patient care for specific

conditions (diabetes, hypertension, and cholesterol),

including writing prescriptions for these ailments without

consulting a physician. (Id.; Justice Decl. Doc. # 52-2 at ¶

2).

B. Dr. Babb Experiences Tribulations at Work

Starting in 2011, Dr. Babb’s clinic was part of a

national “Patient Aligned Care Team” or PACT program, which

resulted in many staffing changes at the VA. (Doc. # 68-2 at

22; Babb Decl. Doc. # 68-2 at ¶ 8). In 2012 and 2013, the VA

was in the process of implementing national qualifications

standards so that pharmacy employees who spent at least 25%

of their time practicing under an Advanced Scope would be

promoted to a GS-13. (Justice Dep. Doc. # 55 at 63-65; Babb

Decl. Doc. # 68-2 at ¶ 11). Understandably, Dr. Babb ― a GS-

12 pharmacist with an Advanced Scope ― sought such a

promotion.

In June of 2012, Dr. Marjorie Howard, who was Dr. Babb’s

supervisor at that time, ask Dr. Babb whether she would

consider a primary care position in “Module B” of the VA that

had recently been vacated. (Howard Dep. Doc. # 57 at 52:8-

10). Dr. Howard brought up the Module B position because she

did not think that Dr. Babb could meet the 25% requirement

for the GS-13 promotion in geriatrics. (Id. at 54:19-25,

55:19-20). Dr. Babb declined, even though Dr. Babb recognized

that her direct supervisor said that moving to Module B “was

the only way [Dr. Babb] could get a GS-13.” (Babb Dep. Doc.

# 59 at 86:2-3; Doc. # 52-2 at 29). According to Dr. Babb,

treating geriatric patients was her professional calling.

(Babb Decl. Doc. # 68-2 at ¶ 10).

In August of 2012, the service agreement between the

pharmacy and the geriatrics clinic was being renegotiated.

(Williams Dep. Doc. # 56 at 6:2-5). Dr. Babb worked with Dr.

Hull and others in the geriatrics clinic on a separate draft

service agreement that supported Dr. Babb’s use of an Advanced

Scope in the geriatrics clinic performing Disease State

Management. (Id. at 17:2-10). However, the service agreement

that was ultimately signed did not call for Dr. Babb to

perform Disease State Management, and in February of 2013,

Dr. Babb’s Advanced Scope was removed. (Babb Dep. Doc # 59 at

35:6-9; Wilson Dep. Doc. # 53 at 16:17).

Dr. Leonard Williams is the Chief of Geriatrics and

Extended Care at the VA, Bay Pines. (Williams Dep. Doc. # 56

at 4:15-17). He was the person who decided that Dr. Babb

should not perform Disease State Management on VA geriatric

patients. (Id. at 18:14-19). In his opinion, Dr. Babb’s role

as a geriatrics pharmacist was to check for dangerous drug

interactions and answer patient and caregiver questions about

medications because geriatric patients are often prescribed

multiple medications. (Id. at 13:1-7).

Dr. Williams provided several reasons for omitting Dr.

Babb’s provision of Disease State Management from the service

agreement. As Dr. Williams explained, “[m]any times in very

frail, elderly patients we don’t need to treat their

hypertension or we don’t need to treat it aggressively as you

would through [Disease State Management] protocols, because

basically the damage that was going to be done by high blood

pressure by that time was done.” (Id. at 11:22-12:1). And “it

could be injurious to the patient” to try to control

conditions such as high blood pressure through Disease State

Management in the geriatrics department. (Id. at 12:3).

Dr. Williams indicated that a geriatrics pharmacist

needed to be available to “let the patient know of significant

potential side effects and what to look for” and “see [a]

patient before they left the clinic and make sure that the

patient or the caregiver understood what we were doing.” (Id.

at 13:19-24). If Dr. Babb was performing Disease State

Management consultations with patients, “she wouldn’t be able

to work in the essential role of a clinical pharmacist or

consulting pharmacist in the geriatric clinic; and that is

one of seeing the patients and going over what was usually a

very complicated and long list of medications, and looking to

see if there were any obvious possibilities of drug/drug

interactions, that the physician should have known about.”

(Id. at 12:22-13:7).

In September of 2012, Dr. Babb sought to participate in

a multi-day training, but Dr. Howard specified that Dr. Babb

could not attend because (1) Dr. Babb had patients scheduled

at the time of the training and Dr. Babb’s attendance of the

course would therefore impact patient care, (2) Dr. Babb would

not benefit from the training because she already had

knowledge of the information being presented, and (3) it was

too late to register for the program. (Doc. # 52-3 at 59).

In October of 2012, Dr. Howard and Dr. Babb discussed

Dr. Babb’s “mid-term evaluation,” where Dr. Babb received

“fully successful” instead of “outstanding” in mentoring.

(Babb Decl. Doc. # 68-2 at ¶¶ 14-15). Dr. Babb filed a

grievance with respect to her score, and eventually the “fully

successful” was “upgraded” to reflect “outstanding,” but Dr.

Babb “felt belittled that she [was treated] this way.” (Id.

at ¶¶ 15-16).

C. Dr. Babb is not Selected for Anticoagulation

At the time Dr. Babb realized that her Advanced Scope

was in jeopardy, she started asking for training in

anticoagulation, but that training was not provided. (Babb

Dep. Doc. # 59 at 9:4-7, 116:1-3). The anticoagulation clinic

was understaffed, and the physician managing that clinic

testified that they could never keep up with the patients’

demands for anticoagulation. (Stewart Dep. Doc. # 60 at 60:2-

16).

When a position was opened in anticoagulation, Dr. Babb

applied. A three-member panel comprised of Dr. Kim Hall, Dr.

Catherine Sypniewski, and Dr. Robert Stewart conducted the

interview. Dr. Hall provided detailed testimony about the

interview, remembering that Dr. Babb used unprofessional

language (such as “crap” and “screwed up”) and harshly

criticized other medical providers, which made Dr. Hall

question whether Dr. Babb would be a good fit for the busy

anticoagulation department where good communications skills

were a top priority. (Doc. # 52-2 at 141). Dr. Sypniewski

explained that the candidates that were selected had

“significantly more experience” in anticoagulation when

compared to Dr. Babb. (Doc. # 52-2 at 152). Dr. Stewart

confirmed that Dr. Babb’s anticoagulation experience was

“nowhere near” the experience of the selected candidates.

(Doc. # 52-2 at 160).

Dr. Babb interviewed poorly due to “anxiety and stress,”

admitting “that was the worst interview of my life.” (Babb

Dep. Doc. # 59 at 115:22-24, 124:23). Dr. Babb has conceded

that she did not have any direct experience independently

managing anticoagulation patients. (Id. at 119:17-19). Dr.

Babb was notified that she was not selected for the

anticoagulation position on April 23, 2013. (Doc. # 27 at ¶

10(l)). Two younger pharmacists, Dr. Sara Grawe (age 26) and

Dr. Amy Mack (age 30), scored highest at the interview and

were selected for the anticoagulation positions. (Doc. # 52-

2 at 160).

During these and other staffing changes at the VA,

someone sent an anonymous and “vulgar” letter to Dr. Gary

Wilson. (Babb Decl. Doc. # 68-2 at ¶ 22). An Administrative

Investigation Board was initiated to determine who sent the

troubling letter. On April 8, 2013, Dr. Keri Justice testified

at the Administrative Investigation Board that Dr. Babb was

one of the “mow-mows” – the “squeaky wheels” who are “never

happy, always complaining.” (Doc. # 68-2 at 140). In the same

Administrative Investigation Board, Dr. Wilson testified that

he believed Dr. Babb “felt that [she was] discriminated

against over age and sex.” (Doc. # 68-2 at 122). Dr. Babb

“was really upset that anyone would think [she is] such a low

person to do something like” send an anonymous letter

complaining about others in a vulgar manner. (Babb Decl. Doc.

# 68-2 at ¶ 22). However, it is not disputed that 26 employees

were questioned about the origins of the troubling letter,

including Drs. Trask and Truitt. (Doc. # 70-1 at 15).

D. Dr. Babb “Floats” after Module B Transfer Denied

Dr. Babb requested a lateral transfer to Module B to

work as a Clinical Pharmacy Specialist (the position that she

previously rejected) in an effort to secure a GS-13 promotion,

but at that point, and with the passage of approximately nine

months, it was too late. (Babb Decl. Doc. # 68-2 at ¶ 21).

Dr. Justice denied Dr. Babb’s request to be transferred to

Module B on April 24, 2013. (Id.). Notably, a younger

pharmacist, Dr. Natalia Schwartz, also sought to be

transferred to Module B, but management already decided that

the position would not be filled. (Doc. # 52-2 at 185).

Dr. Babb continued in the geriatrics clinic after her

Advanced Scope was removed, but she was “extremely

depressed.” (Babb Dep. Doc. # 59 at 46:21-23). She “had gone

from being a happy team player to someone that just came in,

closed the door to [her] office, and left at 4:30.” (Id. at

47:12-15). Dr. Babb felt like she was in “a very difficult

work environment” and that “[i]t was probably the lowest point

of [her] professional career.” (Id. at 47:21-48:1).

Dr. Babb requested to move to the “float pool” in April

2013 and began “floating” in June 2013. (Doc. # 52-3 at 11;

Babb Dep. Doc. # 59 at 129:11-12). Around that time, Dr.

Babb’s then supervisor, Dr. Robert Stewart, received two

complaints about Dr. Babb. (Stewart Dep. Doc. # 60 at 52:11-

12). The first complaint was that Dr. Babb was rude to a

patient. (Babb Dep. Doc. # 59 at 142:21-23). The second

complaint claimed that Dr. Babb was not available to her co-

workers at the clinic. (Id. at 143:4-5). Dr. Babb learned

about these complaints when she opened a sealed envelope that

Dr. Stewart had mistakenly left on her desk (Stewart Dep.

Doc. # 60 at 53:14-24; Babb Dep. Doc. # 59 at 141:1-19). Dr.

Babb faced no discipline or counseling for these events, and

she testified that these events did not affect her performance

appraisal. (Babb Dep. Doc. # 59 at 140:19-20). Dr. Babb

testified that she enjoyed the camaraderie of the other

pharmacists in the float pool (Id. at 130:14-15);

nevertheless, she filed an informal EEOC complaint on May 6,

2013. (Babb Decl. Doc. # 68-2 at ¶ 24).

E. Dr. Babb Applies to Two GS-13 Positions

Dr. Babb continued to apply for GS-13 positions. In late

2013, Dr. Babb applied for a GS-13 position, but it was

offered to a younger pharmacist, Dr. Hetal Bhatt-Chugani.

(Babb Dep. Doc. # 59 at 128:23-129:1; Doc. # 68-2 at 87:24-

88:1). However, in early 2014, two GS-13 positions were

posted: (1) a PACT assignment split between Modules B and D

(this was the previously vacant position in Module B combined

with another vacancy in Module D) and (2) a half

anticoagulation and half Palm Harbor clinic position. (Doc.

# 52-3 at 29; Babb Dep. Doc. # 59 at 134:11-12).

The job announcement for the PACT position split between

Modules B and D stated that the position was comprised of

“Four 9 hour shifts Tuesday through Friday 7:00 am – 4:30 pm

with a 4 hour shift Saturday 8:00am-12:00pm [with] Nights,

weekends and holiday on a fair and equitable rotation

schedule.” (Doc. # 52-3 at 30). In March of 2014, Dr. Babb

was informed she was selected for the PACT position split

between Modules B and D. (Babb Dep. Doc. # 59 at 176:17-22).

On April 2, 2014, Dr. Justice submitted paperwork to

facilitate Dr. Babb’s promotion to GS-13. (Doc. # 52-3 at 45-

46). Dr. Justice marked “excellent” on all of the forms and

made handwritten comments stating that “Dr. Babb is an

excellent practitioner with a broad knowledge of clinical

pharmacy. She is great with patients!” (Id.). A VA Director

approved Dr. Babb’s promotion in August of 2014. (Doc. # 52-

3 at 49-50).

After Dr. Babb started working in her new position, she

felt she was being treated unfairly with respect to holiday

pay. “After reviewing her time cards, later, and time cards

of other employees she learned that due to the scheduling,

she was only entitled to four hours Holiday pay for each of

the five legal federal Holidays on a Monday . . . [h]owever,

other employees were being paid the full amount of a holiday.”

(Doc. # 27 at ¶ 10(p)). Dr. Babb testified, “after I found

out about the Monday federal holiday issue, I was very upset

about that.” (Babb Dep. Doc. # 59 at 139:20-21). The VA

offered to permanently change her schedule such that she would

receive eight hours of holiday pay for the Monday legal

holidays, but Dr. Babb declined. (Doc. # 52-3 at 144).

F. Related Prior Litigation and EEOC Activity

On February 26, 2013, Donna Trask and Anita Truitt (both

VA pharmacists) filed an age and gender discrimination suit

against the VA. (Case No. 8:13-cv-536-MSS-TBM (M.D. Fla.

2013)). In connection with those proceedings, Dr. Babb sent

statements in support of Drs. Trask and Truitt by email to an

EEOC investigator on April 26, 2012, May 10, 2012, and May

11, 2012. (Doc. # 27 at ¶ 5; Babb Dep. Doc. # 59 at 112:23-

113:1). She also provided deposition testimony in support of

Drs. Trask and Truitt on March 24, 2014. (Doc. # 68-2 at 38).

Dr. Babb testified in this case that “my whole career

had changed after I had been a witness in the Truitt and Trask

case. That up until then pharmacy administration had been in

support of me.” (Babb Dep. Doc. # 59 at 48:15-17). Dr. Babb

specified that after she “participated in the EEO activity

for Drs. Truitt and Trask, [her] career took a turn in a bad

direction.” (Id. at 112:17-19). Along the same lines, Dr.

Babb testified: “Everything that happened in disqualifying me

was after I testified in the Truitt and Trask case; and Truitt

and Trask were discriminated against because they were older

females.” (Id. at 110:13-16).

The district court did not agree that Drs. Trask and

Truitt were discriminated against and granted summary

judgment in favor of the VA on March 19, 2015. (Case No. 8:13-

cv-536-MSS-TBM at Doc. # 101). The Eleventh Circuit affirmed

in a published decision. Trask v. Sec’y, Dep’t Veterans Affs,

822 F.3d 1179 (11th Cir. 2016).

Dr. Babb also participated in her own protected

activity. She verbally opposed age and gender discrimination

in a lengthy conversation with Dr. Justice on February 8,

2013. Dr. Babb requested that her union representative be

present at the February 8, 2013 meeting where she voiced her

complaints to Dr. Justice, but the representative failed to

appear. (Doc. # 68-6 at 86). In addition, Dr. Babb filed an

informal EEOC complaint on May 6, 2013, and also initiated

this lawsuit.

G. Comments on Age, Gender, or EEOC Activity

Dr. Babb alleges Dr. Howard asked when Dr. Babb planned

to retire in March of 2012. (Id. at 130:19-20). Dr. Howard

does not remember asking Dr. Babb this question. (Doc. # 52-

3 at 57). Dr. Babb had a negative relationship with Dr. Howard

and called Dr. Howard “Cruella” and other names in emails to

her colleagues because Dr. Babb felt Dr. Howard was “harsh in

meetings” and “wasn’t gentle and friendly.” (Babb Dep. Doc.

# 59 at 161:9-16; Doc. # 59 at 216).

In addition, when a co-worker asked Dr. Babb if she had

seen the movie “Magic Mike,” Dr. Justice remarked that the

movie was geared toward middle-aged women, which made Dr.

Babb upset. (Babb Dep. Doc. # 59 at 62:13-19). Dr. Babb

testified that she would not have been worried if Dr. Justice

called the movie a “chick-flick,” but she felt “middle-aged”

was not an appropriate comment. (Id. at 62:20-24). When Dr.

Justice referred to Dr. Babb as a “mow mow,” Dr. Babb thought

that Dr. Justice was calling her a “grandma.” (Id. at 62:3-

7).

Dr. Babb does not recall any other comments about her

age or gender and she has never heard any comments about her

EEOC activity. (Id. at 61:24-62:11, 113:15-18, 121:12-16,

132:5-7). Dr. Babb also revealed during her deposition that

she “took it all personally” and she “couldn’t stop crying.”

(Id. at 183:23-184:8).

H. Dr. Babb Files Suit

Dr. Babb initiated this action on July 17, 2014. (Doc.

# 1). She filed the operative complaint – the Third Amended

Complaint - on December 19, 2014. (Doc. # 27). The Third

Amended Complaint contains the following counts: retaliation

(Count I), gender and age discrimination (Count II), a hostile

work environment based on gender and age and a retaliatory

hostile work environment claim(Count III), and injunctive

relief (Count IV). The VA then sought summary judgment (Doc.

# 52), which this Court granted on Counts I, II, and III (Doc.

# 83). Relying on Eleventh Circuit precedent, this Court

analyzed Dr. Babb’s Title VII retaliation and discrimination

claims (Counts I and II) under the McDonnell Douglas burden-

shifting framework. This Court found that although Dr. Babb

had established a prima facie case under the statute, the VA

proffered non-pretextual reasons for the adverse employment

actions, and Dr. Babb could not point to any weaknesses,

implausibilities, or flaws in the VA’s employment

justifications.

This Court then analyzed Dr. Babb’s hostile work

environment and retaliatory hostile work environment claims

(Count III) under Gowski v. Peake, 682 F.3d 1299 (11th Cir.

2012), which requires that a plaintiff show harassment that

is “severe or pervasive” to establish either a hostile work

environment or a retaliatory hostile work environment claim.

Analyzing Dr. Babb’s adverse employment outcomes under the

Gowksi standard, this Court determined that the events

underlying Dr. Babb’s claims were not sufficiently “severe or

pervasive” to be actionable. This Court thus granted summary

judgment to the VA on both Dr. Babb’s hostile work environment

claim and her retaliatory hostile work environment claim.

1. The First Eleventh Circuit Appeal

Dr. Babb appealed the grant of summary judgment to the

Eleventh Circuit, which reversed and remanded on Babb’s

gender discrimination claim but affirmed on everything else.

The Eleventh Circuit found that this Court erred by applying

the McDonnell Douglas test rather than the Quigg motivating

factor test to her “mixed motive” gender discrimination

claim. Babb v. Sec’y, Dep’t of Veterans Affs, 743 F. App’x

280, 286 (11th Cir. 2018). The Eleventh Circuit remanded the

claim to this Court for evaluation under the Quigg motivating-

factor test. Babb, 743 F. App’x at 286.

Reviewing Dr. Babb’s age and gender discrimination

claims, the Eleventh Circuit addressed Dr. Babb’s contention

that this Court erred in applying the McDonnell Douglas

framework to her ADEA age-discrimination. The Court noted

that if it “were writing on a clean slate, [it] might well

agree.” Id. at 287. Nevertheless, the Eleventh Circuit noted

that it was bound to its decision in Trask v. Secretary,

Department of Veterans Affairs, 822 F.3d 1179 (11th Cir.

2016), by prior-panel-precedent. Babb, 743 F. App’x at 287.

Because the Eleventh Circuit in Trask applied the McDonnell

Douglas standard to a federal-sector ADEA claim, the Court

explained that it was bound by its determination there. Id.

The Eleventh Circuit then reviewed this Court’s findings

under the McDonnell Douglas standard, finding no reversible

error and affirming the grant of summary judgment as to Dr.

Babb’s ADEA age discrimination claim. Id. at 290–291.

Finally, evaluating Dr. Babb’s hostile work environment

and retaliatory hostile work environment claims under the

Gowski standard, the Eleventh Circuit found that Dr. Babb had

not raised a genuine issue of material fact, thus affirming

this Court’s grant of summary judgment as to that claim.

2. The United States Supreme Court

The Supreme Court granted certiorari on the question of

whether the federal-sector provision of the ADEA required Dr.

Babb to prove that age was a but-for cause of a challenged

personnel action.

The Supreme Court explained that Section 633a(a)’s terms

required a plaintiff to show only that “age discrimination

plays any part in the way a decision is made[.]” Babb v.

Wilkie, 140 S. Ct. 1168, 1178 (2020) (“Babb I”) (emphasis

added). The Court held that the “free from any discrimination”

language means that personnel actions must be made in “a way

that is not tainted by differential treatment based on” a

protected characteristic. Id. at 1174. Thus, to prevail on an

age discrimination claim under the ADEA, a plaintiff must

show that age is “a but-for cause of discrimination—that is,

of differential treatment—but not necessarily a but-for cause

of a personnel action itself.” Id. at 1173.

3. The Eleventh Circuit’s Subsequent Decisions

Following the Supreme Court’s decision in Babb I, the

Eleventh Circuit reversed and remanded on Dr. Babb’s age and

gender discrimination claims and affirmed on Dr. Babb’s Title

VII retaliation, hostile work environment, and retaliatory

hostile work environment claims.

The Eleventh Circuit then granted Dr. Babb’s petition

for rehearing on the issues of (1) whether the Supreme Court’s

decision in Babb I necessitated a re-examination of the

Eleventh Circuit’s previous rejection of her Title VII

retaliation claim and (2) whether the intervening Eleventh

Circuit decision Monaghan v. Worldpay US, Inc., 955 F.3d 855

(11th Cir. 2020), undermined the previous rejection of her

retaliatory hostile work environment claim. Babb v. Sec’y,

Dep’t of Veterans Affs., 992 F.3d 1193 (11th Cir. 2021) (“Babb

II”).

Beginning with Dr. Babb’s Title VII retaliation claim,

the Eleventh Circuit found that the Supreme Court’s decision

in Babb I “undermined Trask to the point of abrogation.” Babb

II, 992 F.3d at 1200. The Eleventh Circuit explained that the

Supreme Court’s analysis of the ADEA’s language informs its

reading of Title VII. Id. (citing Gomez-Perez v. Potter, 553

U.S. 474, 487 (2008)). The Eleventh Circuit thus held that

the Babb I “differential treatment” standard for evaluating

the federal-sector provision of the ADEA also applied to Title

VII retaliation claims. Id.

The Eleventh Circuit then addressed the effect of the

intervening Monaghan decision on Dr. Babb’s retaliatory

hostile work environment claim. Id. at 1206. The Court

explained that although Dr. Babb had not distinguished

between her hostile work environment claim based on age and

gender and her hostile work environment claim based on

retaliation, the subsequent Monaghan decision clarified that

different standards governed each claim. Id. at 1206-07. As

the Eleventh Circuit explained, Gowski had incorrectly

grafted the “severe or pervasive” standard onto retaliatory

hostile work environment claims by packaging it as a hostile

work environment, rather than a retaliation, claim. Id. at

1207.

The Eleventh Circuit held that the correct standard to

apply to retaliatory hostile work environment claims was that

set by Burlington Northern & Santa Fe Railway Co. v. White,

548 U.S. 53 (2006) and Crawford v. Carroll, 529 F.3d 961 (11th

Cir. 2008). Burlington and Crawford held that to prevail on

a retaliation claim, an employee must demonstrate the

complained-of action “might well have dissuaded a reasonable

worker from making or supporting a charge of discrimination.”

Crawford v. Carroll, 529 F.3d at 974 (quoting Burlington

Northern, 548 U.S. at 68)). The Eleventh Circuit concluded

that after Monaghan, the “severe or pervasive” standard is no

longer applicable to retaliatory hostile work environment

claims and directed this Court to evaluate Dr. Babb’s claim

under the correct Burlington Northern-Crawford-Monaghan

standard. Id. at 1209.

Now, on remand, this Court reconsiders Dr. Babb’s claims

under the proper standards — Babb I for Counts I and II and

Crawford for Count III. Although Babb II only addressed Dr.

Babb’s Title VII retaliation claim, the Babb I differential

treatment standard applies to claims of gender discrimination

arising under the federal-sector provision of Title VII. See

Durr v. Sec’y, Dep’t of Veterans Affairs, 843 F. App’x 246,

247 (11th Cir. 2021) (noting that the Babb I standard applies

to Title VII discrimination claims and remanding to the

district court to evaluate age and gender discrimination and

retaliation claims under the Babb I standard). Thus, Babb I

governs Dr. Babb’s Title VII age and gender discrimination

claims as well as her Title VII retaliation claim.

With respect to Count III, Babb II requires this Court

to revisit only Dr. Babb’s retaliatory hostile work

environment claim, not her hostile work environment claim

based on age and gender. Gowski is still applicable to hostile

work environment claims based on age and gender post-Monaghan

and thus Babb II does not disturb this Court’s finding on Dr.

Babb’s hostile work environment claim.

II. Legal Standard

Summary judgment is appropriate “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.” Fed.

R. Civ. P. 56(a). A factual dispute alone is not enough to

defeat a properly pled motion for summary judgment; only the

existence of a genuine issue of material fact will preclude

a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247–48 (1986).

An issue is genuine if the evidence is such that a

reasonable jury could return a verdict for the non-moving

party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742

(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ’g

Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if

it may affect the outcome of the suit under the governing

law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.

1997). The moving party bears the initial burden of showing

the court, by reference to materials on file, that there are

no genuine issues of material fact that should be decided at

trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260

(11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986)). “When a moving party has discharged its

burden, the non-moving party must then ‘go beyond the

pleadings,’ and by its own affidavits, or by ‘depositions,

answers to interrogatories, and admissions on file,’

designate specific facts showing that there is a genuine issue

for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,

593–94 (11th Cir. 1995) (quoting Celotex, 477 U.S. at 324).

If there is a conflict between the parties’ allegations

or evidence, the non-moving party’s evidence is presumed to

be true and all reasonable inferences must be drawn in the

non-moving party’s favor. Shotz v. City of Plantation, 344

F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder

evaluating the evidence could draw more than one inference

from the facts, and if that inference introduces a genuine

issue of material fact, the court should not grant summary

judgment. Samples ex rel. Samples v. City of Atlanta, 846

F.2d 1328, 1330 (11th Cir. 1988). But, if the non-movant’s

response consists of nothing “more than a repetition of his

conclusional allegations,” summary judgment is not only

proper, but required. Morris v. Ross, 663 F.2d 1032, 1034

(11th Cir. 1981).

III. Analysis

A. Count I – Retaliation

A prima facie case of retaliation requires a plaintiff

to establish that she (1) engaged in statutorily protected

activity; (2) suffered an adverse employment action; and (3)

established a causal link between the protected activity and

the adverse employment action. Malone v. U.S. Att’y Gen., 858

F. App’x 296, 303 (11th Cir. 2021). “In the context of a

retaliation claim, an adverse employment action is one that

‘well might have dissuaded a reasonable worker from making or

supporting a charge of discrimination.’” Id. (citing

Burlington Northern, 548 U.S. at 68 (2006)). To show a causal

connection, the plaintiff needs to show that the protected

activity played some part in the way the decision was made.

Tonkyro v. Sec’y, Dep’t of Veterans Affs., 995 F.3d 828, 835

(11th Cir. 2021) (holding that federal-sector plaintiffs need

not “prove that their protected activity was a but-for cause

of the adverse actions” and remanding the district court to

determine causation under the standard enunciated in Babb I).

Under Babb I, a showing of non-pretextual reasons for an

employment decision is insufficient to defeat a prima facie

case of retaliation. Id. at 1204. As the Eleventh Circuit

explained, “even when there are non-pretextual reasons for an

adverse employment decision . . . the presence of those

reasons doesn’t cancel out the presence, and the taint, of

discriminatory considerations.” Varnedoe v. Postmaster Gen.,

No. 21-11186, 2022 WL 35614, at *3 (11th Cir. Jan. 4, 2022)

(citing Babb II, 992 F.3d at 1199, 1204–05).

While Babb I lessened the burden on federal-sector

plaintiffs asserting Title VII retaliation claims, Dr. Babb

still must “present evidence that her protected activity

played any role in [the adverse action].” Id. (finding the

plaintiff did not meet her burden under Babb I where she

“presented no affirmative evidence of any kind showing that

her EEOC complaint was a factor in her work reassignment” and

argued that “no . . . legitimate reason for the reassignment

existed”).

To prove causation in a Title VII retaliation case,

“[t]he plaintiff must generally establish that the employer

was actually aware of the protected expression at the time it

took the adverse employment action.” Debe v. State Farm Mut.

Auto. Ins., 860 F. App’x 637, 639 (11th Cir. June 8, 2021).

A plaintiff can show a causal connection by showing a close

temporal proximity between her employer’s discovery of the

protected activity and the adverse action, but the temporal

proximity must be “very close.” Thomas v. Dejoy, No. 5:19-

cv-549-TKW-MJF, 2021 WL 4992892, at *10 (N.D. Fla. July 19,

2021) (looking to temporal proximity test post-Babb and

citing Debe). For example, a district court found causation

where “numerous adverse events . . . occurred within weeks

after each of [the plaintiff’s] protected acts.” Norman v.

McDonough, No. 2:20-cv-01765-KOB, 2022 WL 3007595, at *9

(N.D. Ala. July 28, 2022).

Here, the first element of Dr. Babb’s prima facie case

is satisfied because Dr. Babb engaged in protected activity

when she participated in Drs. Trask and Truitt’s employment

discrimination lawsuit. She has also pursued her own claims

against the VA for discrimination and retaliation. In

addition, Dr. Babb verbally opposed what she felt were

discriminatory practices in a lengthy conversation with Dr.

Justice on February 8, 2013.

The second element is also satisfied. Dr. Babb claims

that she faced adverse employment actions when her Advanced

Scope was removed, when she was not selected for the

anticoagulation position, when she was denied a lateral move

to Module B, when a younger pharmacist (Dr. Martinez) was

given a GS-13 position that was not advertised, and when she

was given lower holiday pay. (Doc. # 27 at ¶ 15). This Court

previously found that Dr. Babb experienced adverse employment

actions under the “serious and material change” standard

articulated in Crawford v. Carroll, 529 F.3d 961 (11th Cir.

2008). (Doc. # 83 at 21-22). In Babb II, however, the Eleventh

Circuit clarified that Title VII retaliation claims require

only a showing that an employment action “might have dissuaded

a reasonable worker from making or supporting a charge of

discrimination.” Babb II, 992 F.3d at 1207. Given that this

Court previously found Dr. Babb experienced adverse

employment actions under the more stringent “serious and

material change” standard, and that the parties do not contest

that Dr. Babb experienced adverse employment actions with

respect to her retaliation claim, the second element is

satisfied.

As to the third element, this Court previously found

that a reasonable jury could determine that Dr. Babb

established causation because she participated in a protected

activity and faced adverse employment actions shortly

thereafter. (Doc. # 83 at 22). Dr. Babb’s protected activity

in the Trask and Truitt case started when she provided

statements to the EEOC in April and May of 2012. Her EEOC

activity in that case continued through March 24, 2014, when

she testified in a deposition. (Doc. # 68-2 at 38). Dr. Babb

had a pointed conversation with Dr. Justice on February 8,

2013, opposing gender and age discrimination, and she filed

a complaint with the EEOC in her own case alleging

discrimination on May 6, 2013.

This Court nevertheless concluded that Dr. Babb had not

established a cognizable Title VII retaliation claim because

the VA offered legitimate and non-retaliatory reasons for

every employment action and Dr. Babb failed to establish these

reasons were pretextual. Under Babb II, however, “the

existence of non-pretextual reasons for an adverse employment

decision . . . doesn’t cancel out the presence, and the taint,

of discriminatory considerations.” Babb II, 992 F.3d at 1204.

In the wake of Babb II, this Court now concludes that a

reasonable jury could find that retaliation for Dr. Babb’s

EEO activity tainted the decision-making regarding the

adverse employment actions. Again, close temporal proximity

between an employer’s discovery of protected active and an

adverse employment action can establish causation in a Title

VII retaliation case. Thomas, 2021 WL 4992892, at *10. Dr.

Babb verbally opposed age and gender discrimination in a 40-

minute encounter with Dr. Justice on February 8, 2013 (Doc.

# 59 at 203–204), and Dr. Babb’s Advanced Scope was removed

just days later on February 15, 2013. (Babb Decl. Doc. # 68-

2 at ¶ 19). Dr. Babb’s supervisors had knowledge of her

participation in protected activity by February 8, 2013 at

the latest. See Debe, 860 F. App’x at 639 (“The plaintiff

must generally establish that the employer was actually aware

of the protected expression at the time it took the adverse

employment action.”).

Not long after that, on April 24, 2013, Dr. Justice

denied Dr. Babb’s request for a lateral transfer (and

accompanying raise to a GS-13 position). (Babb. Decl. Doc. #

68-2 at ¶ 21). Dr. Babb’s unsuccessful anticoagulation

interview and non-selection for that GS-13 position also

occurred in April of 2013. Further, Dr. Babb submits that she

gave testimony in the Trask and Truitt case on March 24, 2014,

and that she was denied holiday pay during the same time frame

in March of 2014.

The VA provided non-pretextual reasons for all of these

employment actions. While Dr. Babb’s EEO action cannot be the

but-for cause of the ultimate employment outcome, Babb II

requires inquiry into whether the EEO activity affected Dr.

Babb’s treatment. The removal of Dr. Babb’s Advanced Scope,

her non-selection for the anticoagulation position, and

reduced holiday pay all occurred within a short period of

time following her EEO activity. True, Dr. Babb’s supervisors

may have contemplated the removal of her Advanced Scope long

before her conversation with Dr. Justice on February 8, 2013.

Still, a reasonable jury could find that, given that the

removal of Dr. Babb’s Advanced Scope occurred less than a

week after her conversation, Dr. Babb’s EEO activity could

have played a role in the removal.

Likewise, a reasonable jury could find that the two-

month period between Dr. Babb’s conversation with Dr. Justice

and her non-selection for the anticoagulation position

indicates that the two occurrences were not unrelated. And

Dr. Babb’s denial of holiday pay — even though she was then

offered a schedule adjustment — occurred during the same month

that she gave testimony in the Trask and Truitt case,

providing a basis for a jury to find that this protected

activity influenced the VA’s decision making.

Accordingly, the VA’s Motion for Summary Judgment is

denied with respect to Count I.

B. Count II – Age and Gender Discrimination

Title VII states in pertinent part that “[a]ll personnel

actions affecting employees . . . in executive agencies . .

. shall be made free from any discrimination on race, color,

religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a).

Again, the Eleventh Circuit recently held that the Supreme

Court’s decision in Babb I, which interpreted the nearly

identical federal-sector provision of the Age Discrimination

in Employment Act (“ADEA”), is applicable to Title VII

federal-sector cases. See Babb II, 992 F.3d at 1205 (“If a

decision is not “made free from any discrimination based on”

that which § 2000e-16(a) protects, then an employer may be

held liable for that discrimination regardless of whether

that discrimination shifted the ultimate outcome.”).1

As the Supreme Court explained in Babb I, the language

“shall be made free from any discrimination” means that

personnel actions must be “untainted by any consideration” of

the protected factor. Babb I, 140 S. Ct. at 1171. “If . . .

discrimination plays any part in the way a decision is made,

then the decision is not made in a way that is untainted by

1 The parties dispute the applicability of Quigg v. Thomas

County School District, 814 F.3d 1227 (11th Cir. 2016) to Dr.

Babb’s discrimination claim. Because Babb II clarified that

the appropriate standard for federal-sector Title VII

discrimination claims is whether a protected trait is the

but-for cause of differential treatment, the motivating

factor test of Quigg likely does not apply. Babb II, 992 F.3d

at 1205; see also Durr, 843 F. App’x 246 at 247 (finding that

Babb I governed the plaintiff’s claims of age and gender

discrimination and retaliation under Title VII). Even if

Quigg did govern Dr. Babb’s claims, the outcome would not

differ because she has not provided evidence that her age or

gender was a motivating factor in the adverse employment

actions. Quigg, 814 F.3d at 1235; see Tonkyro, 995 F.3d at

836 (“We perceive no material difference between the

motivating-factor standard we have applied to substantive

hostile work environment claims and the standard articulated

by the Supreme Court in Babb.”).

any such discrimination.” Id. at 1174. “As a result, [the

protected factor] must be a but-for cause of discrimination

― that is, of differential treatment ― but not necessarily a

but-for cause of the personnel action itself.” Id. at 1173.

In other words, to state a claim under Title VII, the

protected factor “must be the but-for cause of differential

treatment, not that the [protected factor] must be a but-for

cause of the ultimate decision.” Id. at 1174.

Under Babb I, district courts thus no longer use the

McDonnell Douglas framework to assess discrimination claims

that do not require but-for causation as to the ultimate

decision. See Babb II, 992 F.3d at 1204 (“[I]t seems that the

Supreme Court accepted Babb’s argument ‘that the District

Court should not have used the McDonnell

Douglas framework.’”); see also Lewis v. Sec’y of U.S. Air

Force, No. 20-12463, 2022 WL 2377164, at *10 (11th Cir. June

30, 2022) (explaining that Babb I “foreclosed using the full

McDonnell Douglas framework regarding ADEA claims and Title

VII retaliation claims as to federal-sector employees”).

In Babb II, the Eleventh Circuit explained that

discriminatory considerations can give rise to a colorable

Section 2000e-16(a) claim “even when there are non-pretextual

reasons for an adverse employment decision” because “the

presence of those reasons doesn’t cancel out the presence,

and the taint, of discriminatory considerations.” Babb II,

992 F.3d at 1204. Thus, under the Babb I and Babb

II framework, Babb needs to show only that her age played a

part in the way an employment decision was made — that is,

that the decision was “tainted” by discrimination. Babb I,

140 S. Ct. at 1174; see also Durr v. Sec’y, Dep’t of Veterans

Affairs, 843 F. App’x 246, 247 (11th Cir. 2021) (explaining

that, after Babb I, “a plaintiff’s claim survives if

‘discrimination played any part in the way a decision was

made’” (internal alterations omitted)).

While Babb I altered the standard for evaluating the

presence of discrimination, showing that a protected factor

was the but-for cause of the challenged employment decision

still plays an important role in determining the appropriate

remedy. Babb I, 140 S. Ct. at 1177. Showing that

discrimination was the but-for cause of the ultimate

employment decision or outcome will unlock all available

forms of relief such as reinstatement, back pay, and

compensatory damages. Id. at 1171, 1177–78. But if a plaintiff

makes only the lesser showing, that is, if a plaintiff shows

that discrimination was a but-for cause of differential

treatment but not the but-for cause of the employment decision

itself, that plaintiff can still seek injunctive or other

forward-looking relief. Id. at 1178.

1. Non-selection for Anticoagulation

The Court first examines Dr. Babb’s claim with respect

to her non-selection for the open anticoagulation position.

Dr. Babb argues that she was subject to differential treatment

because of her age because (1) she was not hired for the

position despite her purported qualifications and (2) the

position was filled by two younger female pharmacists. (Doc.

# 52-2 at 160). Dr. Babb also argues that she was subjected

to differential treatment because of her gender by not being

selected for the anticoagulation position. (Doc. # 27 at ¶

23). However, because two female pharmacists were selected

for the position, and because Dr. Babb does not provide any

further evidence indicating gender affected her treatment

during the selection process, her non-selection for the

position cannot support a claim of gender discrimination.

Although Babb I lessened the burden that federal-sector

plaintiffs must show, allegations of differential treatment

must be based on more than “mere speculation.”

Malone v. U.S. Att’y Gen., 858 Fed. App’x 296, 303 (11th

Cir. 2021) (citing Cincinnati Ins. Co. v. Metro Props., Inc.,

806 F.2d 1541, 1544 (11th Cir. 1986)). The Eleventh Circuit

has found summary judgment on a racial discrimination claim

proper where the plaintiff could not “point to any record

evidence that his application . . . was treated differently

because he is white.” Id. at 301; see also Buckley v.

McCarthy, No. 4:19-CV-49 (CDL), 2021 WL 2403447, at *1, *6

(M.D. Ga. June 11, 2021) (granting summary judgment for

defendant under the Babb I standard because the evidence did

not demonstrate that race played any role in the decision to

remove plaintiff from federal service even though plaintiff

was the only Black provider at the subject clinic and

contended that she was assigned fewer patients and that her

coworkers called her an “angry Black woman”); cf. Bernea v.

Wilkie, No. 20-cv-82459, 2021 WL 6334929, at *6 (S.D. Fla.

Dec. 7, 2021) (finding circumstantial evidence sufficient to

support a claim of differential treatment based on age

discrimination where a supervisor stated plaintiff’s “age

affected his ability to complete tasks”).

Here, Dr. Babb’s belief that age played a role in her

non-selection for the anticoagulation position rests on the

fact that the two pharmacists selected for the position were

younger than her and that the selected pharmacists received

points for doing a residency. (Babb Dep. Doc. # 59 at 186:9-

13).

The statements of the members of the panel that conducted

Dr. Babb’s interview demonstrate that Dr. Babb’s lack of

experience and poor interview, rather than age

discrimination, motivated the VA’s hiring decision. (Doc. #

52-2 at 140–41). Dr. Hall testified that the “selectees’ prior

experience indicated to the panel that they should be capable

of doing the job in an efficient and skilled manner [and]

should require little training to practice independently,”

while Dr. Babb “did not have any direct experience in

anticoagulation.” (Id. at 140). Dr. Sypniewski explained that

the selected candidates “had significantly more experience in

the applied for position . . . [t]hey knew and were familiar

with the workings of the position to which they had applied,

and their experience in anti-coag enabled them to answer the

questions with examples.” (Id. at 152).

In contrast, Dr. Sypniewski remembered that Dr. Babb

appeared nervous at her interview and did not answer the

panel’s questions with “specific examples.” (Id. at 153). In

his testimony, Dr. Hall remembered that Dr. Babb used

unprofessional language and harshly criticized other medical

providers. (Id. at 141). Dr. Babb admitted that the interview

was “the worst interview of [her] life” and that she did not

have any direct experience independently managing

anticoagulation patients. (Babb Dep. Doc. # 59 at 124:23,

119:17-19).

Dr. Babb also argues that the selection process for the

anticoagulation treatment subjected her to differential

treatment based on age by favoring pharmacists who are

residency-trained rather than those who are board-certified

and trained by experience. (Doc. # 27 at ¶ 10b; Doc. # 127 at

35–36). The crux of Dr. Babb’s argument is that the

consideration of residency experience by the panel subjected

her to differential treatment because residency-trained

pharmacists tend to be younger. (Doc. # 68 at ¶ 20; Doc. #

68-3 at 75).

The selected candidates’ residencies played a role in

their selection as Dr. Sypniewski explained that the selected

candidates “[h]ad significantly more experience in the

applied for position. They had either done residencies where

they were required to work in anti-coag clinic, or they

actually already were processing anti-coag consults, or they

had actually worked in anti-coag clinic post-residency.”

(Doc. # 52-2 at 152). In particular, the scoring sheet for

candidates for the anticoagulation position awarded

candidates three points for residency and up to five points

for anticoagulation experience but provided no basis for

awarding points based on general experience as a pharmacist.

(Doc. # 68-6 at 100).

While the selection criteria for the anticoagulation

position places a premium on residency, Dr. Babb provides no

evidence from which a reasonable jury could conclude that age

influenced the decision to include residency in the selection

criteria. In his deposition, Dr. Stewart explained that:

[I]t is my opinion that a residency should be

considered much more and . . . carry higher points

than a board certification [because] a residency is

one year of intensive focused training, mentoring,

and learning for a pharmacist where they get

extensive experience in disease state management,

and disease state management is what a PACT

pharmacist would be doing a majority of their day

. . . I felt that having the experience of a

residency as well as providing more points on the

scoring sheet for a pharmacist who was actually

doing the job at the time they applied; so a

pharmacist that is prescribing has an advanced

scope and is conducting disease state management

should get more points than someone that is not,

that is my belief.

(Doc. # 68-3 at 70–71). Dr. Stewart also believed there is

“no substitute for the experience that someone gets in

residency when it comes to disease state management advanced

scope.” (Id. at 74).

Although Dr. Babb expressed her disagreement with the

consideration of residency in the selection criteria in her

deposition, she did not provide evidence that age

discrimination motivated the consideration. (Doc. # 68-2 at

22). As this Court previously noted, courts should not be in

the business of adjudging whether employment decisions are

prudent or fair, but should merely determine whether an

unlawful animus motivates a challenged employment decision.

(Doc. # 83 at 28); see Elrod v. Sears, Roebuck and Co., 939

F.2d 1466, 1470 (11th Cir. 1991) (“Federal courts do not sit

as a super-personnel department that reexamines an entity’s

business decisions.”) (internal quotations omitted). Dr.

Stewart’s testimony indicates that the decision to consider

residency as part of the selection criteria for the

anticoagulation position was motivated by the belief that

applicants who had completed a residency were better prepared

and trained for the position.

Of course, under Babb II, non-pretextual reasons for

differential treatment alone are insufficient to defeat an

otherwise cognizable claim of discrimination under Title VII.

Babb II, 992 F.3d at 1204. However, the party alleging

discrimination must still provide evidence, whether

circumstantial or otherwise, indicating that discrimination

played any role in the way a decision was made.

Here, Dr. Babb has not provided any evidence that would

provide a basis for a reasonable jury to determine that age

influenced the decision to award points for residency. The

only record evidence Dr. Babb has provided is Dr. Stewart’s

statement that “[a] lot” of pharmacists pursuing residencies

are right out of school. (Doc. # 68-3 at 75). Although Dr.

Babb alleges in her complaint that residencies are recent in

pharmacy, she cites to no evidence in the record in support

of this claim. “Mere conclusions and unsupported factual

allegations are legally insufficient to create a dispute to

defeat summary judgment.” Bald Mountain Park, Ltd. v. Oliver,

863 F.2d 1560, 1563 (11th Cir. 1989). Even under the flexible

Babb II standard, the “record as a whole could not lead a

rational trier of fact” to find that age animated the

consideration of residency by the selection panel. Saltzman

v. Bd. of Comm’rs of the N. Broward Hosp. Dist., 239 Fed.

Appx. 484, 487 (11th Cir 2007).

Thus, Dr. Babb has not provided any evidence suggesting

that the interview panel for the anticoagulation position

considered age when evaluating residency. In light of Dr.

Stewart’s belief that residency provides the most effective

training, Dr. Babb has not identified a discriminatory animus

influencing the selection criteria. A reasonable jury thus

could not find that but-for an improper motive, a candidate’s

residency would not have been given weight in the selection

process. Likewise, while Dr. Babb received a lower interview

score than the candidates ultimately selected for the

position, this was a result of her lack of experience and

poor interview performance rather than age discrimination.

Dr. Babb has not pointed to any evidence suggesting that her

application for the position was treated differently because

of her age.

2. Refusal to Transfer Dr. Babb to Module B

The Court next turns to Dr. Babb’s argument that she was

subject to differential treatment based on age and gender

when Dr. Justice denied her request for a lateral transfer to

Module B in April 2013. In June 2012, Dr. Howard, who was Dr.

Babb’s supervisor at that time, suggested that Dr. Babb

consider a primary care position in Module B of the VA that

had recently been vacated. (Howard Dep. Doc. # 57 at 53:3-

8). Dr. Babb originally turned down the position because she

wished to remain in geriatrics, but later requested the

lateral move. (Babb Decl. Doc. # 68-2 at ¶ 10). Dr. Justice

denied the transfer, and the evidence shows that the Module

B position did not exist at the time that Dr. Babb requested

to be transferred into Module B. (Doc. # 52-2 at 185).

The denial of transfer to a non-existent position does

not form the basis of a differential treatment claim. First,

Dr. Babb does not identify any differential treatment. The

record shows that a younger employee (Dr. Natalia Schwartz)

requested to be transferred into Module B in June of 2012,

and Dr. Schwartz was also turned down because the position

was not available. (Doc. # 52-2 at 185).

Dr. Babb also alleges that Dr. Justice informed her that

she could not move anyone into a position without advertising,

yet a male over 40 (Dr. Lobley) was moved into a PACT position

without it being advertised. (Doc. # 68-2 at ¶ 21, 29). Dr.

Lobley’s position became a PACT position in 2011 when the

PACT program began. Unlike Dr. Lobley, whose position changed

due to the beginning of the PACT program, Dr. Babb is alleging

differential treatment by not being moved into a position

that no longer existed. The fact that the Module B position

was not open at the time Dr. Babb requested the transfer

distinguishes her situation from Dr. Lobley’s. Even assuming

that Dr. Lobley’s situation is analogous, his change in

position does not evince differential treatment in terms of

transfer without advertising because his position became a

PACT position two years earlier in 2011. (Doc. # 70 at 3).

Dr. Babb has thus not presented evidence that any pharmacist,

male or female, was “moved” into a position similar to the

one Dr. Babb sought.

Second, even under the Babb II standard, Dr. Babb points

to no evidence suggesting that age or gender discrimination

was the but-for cause of her treatment. As this Court

previously explained, the VA was not required to create (or

hold open) a position just to accommodate a disgruntled

employee such as Dr. Babb. (Doc. # 83 at 32). Dr. Babb’s

treatment in being denied the transfer was thus similar to

that of both younger and male pharmacists.

While the provision of non-pretextual reasons for an

employment action is insufficient to defeat a prima facie

case of age or gender discrimination, Dr. Babb has failed to

meet her burden of providing evidence from which a reasonable

jury could find age or gender played any role in the VA’s

hiring decision. Without more, a reasonable jury could not

find age or gender discrimination based on the mere fact that

two younger female pharmacists were selected for the job.

For these reasons, the VA’s Motion for Summary Judgment

is granted as to Count II.

C. Count III – Retaliatory Hostile Work Environment

Dr. Babb also maintains that she was subjected to a

retaliatory hostile work environment because of her engaging

in EEO activity. (Doc. # 127 at 15). At the time of its first

Order, the Court reviewed Dr. Babb’s retaliatory hostile work

environment claim under Gowski. Now, under Monaghan,

“retaliatory hostile work environment claims . . . prevail if

the conduct complained of ‘well might have dissuaded a

reasonable worker from making or supporting a charge of

discrimination.’” Tonkyro, 995 F.3d at 836 (quoting Monaghan,

955 F.3d at 862).

Thus, Dr. Babb must show that she suffered harassment

that “might well have dissuaded a reasonable worker from

making or supporting a charge of discrimination.” Id. In

addition, to prevail on this claim, Dr. Babb must demonstrate

a link between her EEO activity and the totality of events

allegedly creating a hostile work environment. See Terrell v.

McDonough, No. 8:20-cv-64-WFJ-AEP, 2021 WL 4502795, at *9

(M.D. Fla. Oct. 1, 2021) (rejecting plaintiff’s retaliatory

hostile work environment claim where she failed to link the

allegedly adverse actions to her EEO activity).

Unlike Title VII retaliation claims, which are based on

discrete acts, the “very nature” of hostile work environment

claims “involves repeated conduct.” Nat’l R.R. Passenger

Corp. v. Morgan, 536 U.S. 101, 115 (2002). Hostile work

environment claims are based on the “cumulative effect of

individual acts,” each of which “may not be actionable on its

own.” Id.

Dr. Babb describes numerous incidents as the basis for

her retaliatory hostile work environment. These include

denials of training, an evaluation of “fully successful”

rather than “outstanding” in mentoring, removal of

educational duties, denial of participation in negotiation of

the Agreements, the loss of an Advanced Scope, the loss of

pay, the non-selection for the anticoagulation position, the

AIB targeting, the denial of a lateral move to Module B PACT,

the leaving of reports of contact on her desk, the 2014

events, and the holiday pay issue. Many of these incidents

form the basis of her Title VII retaliation and discrimination

claims; specifically, the loss of an Advanced Scope, the non-

selection for the anticoagulation position, the denial of a

lateral move to Module B PACT, and the holiday pay issue.

Although the Court previously found that Dr. Babb’s

retaliatory hostile work environment claim fails under the

“severe and pervasive standard,” it now concludes that a

reasonable jury could find that the events affecting Dr. Babb

“might well have dissuaded a reasonable worker from making or

supporting a charge of discrimination.” (Doc. # 83 at 49);

Tonkyro, 995 F.3d at 836. Notably, Babb II and Monaghan have

rendered the standard for an adverse employment action in a

retaliatory hostile work environment claim coterminous with

that in a Title VII retaliation claim. Babb II, 992 F.3d at

1209; Monaghan 955 F.3d at 862. Because each discrete act

underlying Dr. Babb’s Title VII retaliation claim meets the

“might have dissuaded” standard, the cumulative effect of

these acts also meets the standard for the purposes of Dr.

Babb’s retaliatory hostile work environment claim. For the

same reasons the Court has denied the VA’s Motion as to Dr.

Babb’s Title VII retaliation claim, summary judgment in favor

of the VA is denied as to the retaliatory hostile work

environment claim.

As this Court previously explained, Dr. Babb has

described adverse employment actions directly impacting the

terms of her employment ― specifically, her pay (including

holiday pay).

As with Dr. Babb’s Title VII retaliation claim, a

reasonable jury could find that the temporal proximity

between Dr. Babb’s EEO activity and her adverse employment

actions demonstrates a causal link. The removal of Dr. Babb’s

Advanced Scope, her non-selection for the anticoagulation

position, and reduced holiday pay all occurred within a short

period of time following her EEO activity. A reasonable jury

could find that the close temporal proximity between Dr.

Babb’s EEO activity and the adverse actions established

causation.

After due consideration, the Court denies the VA’s

Motion for Summary Judgment as to Dr. Babb’s hostile work

environment claim.

Iv. Conclusion

For the reasons given above, summary judgment is denied

on Counts I and III. The Motion is granted as to Count II.

Accordingly, it is

ORDERED, ADJUDGED, and DECREED:

(1) Defendant the Secretary of Veterans Affairs’ Motion for

Summary Judgment (Doc. # 52) is GRANTED in part and

DENIED in part.

(2) Summary judgment is granted in favor of Defendant on

Count II.

(3) Summary judgment is denied as to Counts I and III.

DONE and ORDERED in Chambers in Tampa, Florida, this

19th day of August, 2022.

lage 9n. Henenby Couch

VIRGINIA M. HERNANDEZ*COVINGTON

UNITED STATES DISTRICT JUDGE

47]