# Babb v. Gibson

> District Court, M.D. Florida · August 19, 2022

URL: https://www.frixlaw.com/law-library/cases/10110743

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** August 19, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10110743

## How later opinions describe it (automated extraction)

- 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”
- 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

## Opinion text

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]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10110743. Public record. Not legal advice.