Petition for Writ of Certiorari — Dennis McLain, Petitioner v. Denis R. McDonough, Secretary of Veterans Affairs

Supreme Court briefMar 14, 2024

Ask Donna

What actually matters in this document.

Text

NO. __________

In The

Supreme Court of the United States

DENNIS MCLAIN,

Petitioner,

Secretary,

DEPARTMENT OF VETERANS AFFAIRS,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Eleventh

Circuit

PETITION FOR WRIT OF CERTIORARI

JOSEPH D. MAGRI

Counsel of Record

SEAN M. MCFADDEN

MERKLE & MAGRI, P.A.

5601 Mariner St., Ste. 400

Tampa, Florida 33609

Telephone: (813) 281-9000

Email: jmagri@merklemagri.com

QUESTIONS PRESENTED

Title VII requires that “all personnel actions

effecting employees or applicants for employment …

in executive agencies as defined in Title 5 … shall be

made free from any discrimination based on race,

color, religion, sex or national origin.” See 42 U.S.C. §

2000e-16(a) ) (emphasis added). Babb v. Wilkie, 589

U.S. 399 (2020) examined that language and its

syntax under the Age Discrimination in Employment

Act (ADEA), 29 U.S.C. § 633a(a). The Eleventh Circuit

subsequently held that Babb v. Wilkie is applicable to

Title VII. Babb v. Sec’y, 992 F.3d 1193 (11th Cir.

2021).

The questions presented are:

1. Whether, when instructing a jury on causation

in a federal employee Title VII claim under 42 U.S.C.

§ 2000e-16(a) it is error to fail to instruct the jury on

the causation standard delineated in Babb v. Wilkie,

589 U.S. 399, 402-411 (2020), but rather to instruct

them based on the simple and traditional but-for

causation standard in Gross v. FBL Financial

Services, Inc., 557 U.S. 167 (2009) and University of

Texas Southwestern Medical Center v. Nassar, 570

U.S. 338 (2013) which was expressly rejected in Babb.

2. Whether in a federal employee retaliation claim

it is error to: use the simple and traditional but-for

causation standard to admit evidence of plaintiff’s

protected whistleblowing and union activity, at least

without limiting instructions and to exclude

corroborative evidence under F.R.E. 404(b) and

801(d)(2)(D) which tended to prove differential

treatment was based on consideration of the

Petitioner’s EEO activity and identity and absence of

mistake.

Subsidiary questions are whether the language

and syntax of Title VII should be interpreted as it was

under the ADEA, and whether such language bans

retaliation in federal employment.

PARTIES

The petitioner is Dennis McLain.

The respondent is the Secretary, Department of

Veterans Affairs.

RELATED PROCEEDINGS

•

McLain v. Shulkin, Sec’y of the Dep’t of Veterans

Affairs, No 8:17-cv-1283-WFJ-CPT, United

States District Court for the Middle District of

Florida. Judgment entered March 17, 2022.

•

McLain v. Sec’y, Dep’t. of Veterans Affairs, No.

22-11667, U.S. Court of Appeals for the

Eleventh Circuit. Judgment entered September

1, 2023.

•

McLain v. Sec’y, Dep’t. of Veterans Affairs, No.

22-11667, U.S. Court of Appeals for the

Eleventh Circuit. Judgment entered December

15, 2023.

iii

TABLE OF CONTENTS

Questions Presented .................................................... i

Parties…………………………………………………….iii

Table of Contents ..................................................... iiiv

Table of Authorities ................................................... vi

Petition for Writ of Certiorari………………………….1

Opinions and Orders Below........................................ 5

Jurisdiction ................................................................. 5

Statutory and Constitutional Provisions Involved .... 6

Statement of the Case ................................................ 8

A. Factual Background…………………………8

B. Legal Issues Involved………………………..13

Proceedings Below .................................... 20

Reasons for Granting the Writ ................................. 30

Conclusion ................................................................. 38

APPENDIX

TABLE OF CONTENTS

Opinion of the United States Court of Appeals,

September 1, 2023………......................................1a

Judgment of the District Court for the Middle District

of Florida, March 17, 2022....................................4a

Order of the United States Court of Appeals,

December 15, 2023................................................5a

Jury Instructions March 16, 2022…..……………….7a

Verdict Form March 16, 2022…..……………………23a

Motion to Supplement Record Granted in ¶1 of

December 15, 2023 Order………………………...26a

a. Secretary’s Hausburg Jury Instructions

1. Eleventh Circuit Standard Jury Instruction

4.22…………………………………………..30a

2. Defendant’s Alternative based on McLain’s jury

instructions………….…………………………34a

Sly/Hollingsworth Order of October 12,

2023……………………………………………........42a

TABLE OF AUTHORITIES

Cases

Alvarez v. Royal Atlantic Devel, Inc., 610 F.3d 1253

(11th Cir. 2010) ..................................................... 29

Anderson v. Liberty Lobby, 477 U.S. 242 (1986)........ 4

Babb v. McDonough, No. 8:14-CV-1732-VMC-TBM,

2022 WL 3577359 (M.D. Fla. Aug. 19, 2022) ........ 2

Babb v. Sec’y, 992 F.3d 1193 (11th Cir. 2021)i, 2, 14,

Babb v. Wilkie, 589 U.S. 399 (2020)i, 1, 2, 3, 4, 5, 9, 14,

15, 16, 18, 19, 21, 22, 23, 25, 26, 27, 28, 30, 31, 32,

33, 34, 35, 36, 37, 38

Bell v. McDonough, No. 8:20-CV-1274-VMC-CPT,

2022 WL 485224 (M.D. Fla. Feb. 17, 2022) ........... 2

Bostock v. Clayton County, Georgia, 590 U.S. 644

(2020) ........................................................... 3, 15, 31

Carter v. Atlanta and St. A.B. Ry. Co., 338 U.S. 430

(1949) ..................................................... 3, 20, 23, 28

Carter v. Three Springs Residential Treatment 132

F.3d 635 (11th Cir. 1998) ...................................... 24

Central Bank of Denver v. First Interstate Bank of

Denver, N.A., 511 U.S. 164 (1994) ........................ 37

Complainant v. Dep’t. of Homeland Sec., EEOC DOC

9720140014, 2015 WL 5042782 (Aug.19, 2015) .... 4

Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d

344 (6th Cir. 1998) ................................................ 25

Furnco Const. Corp v. Waters, 438 U.S. 567 (1978) 24

Godwin v. Wellstar Health, 805 Fed. Appx. 518 (11th

Cir. 2015) ............................................................... 23

Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261

(11th Cir. 2008) ..................................................... 30

Gómez-Pérez v. Potter, 553 U.S. 474 (2008) . 19, 35, 37

Gowski v. Peake, 682 F.3d 1299 (11th Cir. 2012) .... 33

Gross v. FBL Financial Services, Inc., 557 U.S. 167

(2009) ...i, 3, 15, 16, 18, 19, 20, 21, 22, 23, 26, 28, 31

Hartman v. Moore, 547 U.S. 250 (2006)................... 17

Hoang v. Wilkie, 1:18-cv-01755 RM-KLM 2020 WL

6156563 (D.Colo. Oct. 21, 2020).................. 2, 31, 32

Huff v. Buttigieg, 42 F.4th 638 (7th Cir. 2022) .......... 2

Johnson v. McDonough, 1:19-cv-01568-APM (D.D.C.

Nov. 11, 2021) .............................................. 2, 31, 32

Kocher v. Sec’y, U.S. Dept. of Veterans Affairs, No.231108, 2023 WL 8469762 (3d Cir. Dec. 7,2023) ....... 2

Loeffler v. Frank, 486 U.S. 549 (1985) ..................... 35

Mt. Healthy Cnty. Bd. of Ed. v. Doyle, 429 U.S. 274

(1977). Id. at 413 ................................. 17, 18, 27, 28

Nieves v. Bartlett, 139 S. Ct. 1715 (2019) ............... 17

Palmer v. Bd. of Regents of U. of Ga., 208 F.3d 969

(11th Cir. 2009) ..................................................... 23

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) .. 27

Russello v. United States, 464 U.S. 16 (1983) .... 15, 37

Savage v. Dep’t of Army, 122 M.S.R.P. 612 (Sept. 3,

2015) .................................................................. 4, 30

Sistek v. Dep’t of Veterans Affairs, 955 F.3d 948 (Fed.

Cir. 2020) ............................................................... 30

Terrell v. McDonough, No. 8:20-CV-64-WFJ-AEP,

2021 WL 4502795 (M.D. Fla. Oct. 1, 2021) ............ 2

Texas v. LeSage, 528 U.S. 18 (1999)...... 17, 18, 27, 28

Tolan v. Cotton, 572 U.S. 650 (2014) ....................... 34

U.S. Postal Serv. v. Aikens, 460 U.S. 711 (1983) ..... 30

vii

U.S. v. Chandler, 996 F.3d 1073 (11th Cir. 1993) ... 23

University of Texas Southwestern Medical Center v.

Nassar, 570 U.S. 338 (2013)i, 3, 9, 15, 16, 18, 19, 20,

21, 22, 23, 26, 28, 31

Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394 (7th

Cir. 1997) ............................................................... 29

Whitmore v. Dept. of Labor, 680 F.3d 1353 (Fed. Cir.

2012) ...................................................................... 35

Zickefoose v. Austin, III, Sec’y, Dept. of Defense, 2:22cv-1935, 2023 WL 7167001 (October 31, 2023) 2, 31

Statutes

28 U.S.C. § 1254(1) ..................................................... 6

29 U.S.C. § 633a(a) ................................ i, 1, 20, 30, 37

42 U.S.C. § 2000e-16(a) ........... i, 1, 5, 6, 30, 32, 36, 37

42 U.S.C. § 2000e-3(a) .......................................... 6, 36

5 U.S.C. § 2302(b) ....................................................... 6

5 USC § 2302(a)(2)(A)(xii) ........................................ 30

Other Authorities

H.R. 100-456, 100th Congress, 1st Session, Union

Calendar No. 287. November 23, 1987 ................. 35

Rules

Fed. R. Evid. 404(b) .................. ii, 5, 15, 18, 33, 38, 43

Fed. R. Evid. 801(d)(2)(D) ............... ii, 5, 15, 18, 33, 38

Sup. Ct. R. 10(a) .......................................................... 6

Sup. Ct. R. 10(c) .......................................................... 4

viii

PETITION FOR WRIT OF CERTIORARI

This case presents the Court with an opportunity

to provide further necessary coherence and clarity to

the statutory framework applicable to federal-sector

discrimination and retaliation claims.

Federal employees’ Title VII rights are determined

under a statute which requires that “all personnel

actions affecting employees or applicants for

employment … in executive agencies as defined in

Title 5 … shall be made free from any discrimination

based on race, color, religion, sex or national origin.”

42 U.S.C. § 2000e-16(a).

Babb v. Wilkie, 589 U.S. 399 (2020) interpreted the

“shall be made free from any discrimination” language

while considering the statutory syntax in the context

of the Age Discrimination in Employment Act

(ADEA), 29 U.S.C. § 633a(a), but federal employees

filing claims under Title VII with the same critical

language and statutory syntax face, at best, differing

standards of proof depending on where they file, and

in every place, very likely face a denial of legal

elements essential to the just determination of their

rights. The only post-Babb federal appellate courts to

consider and resolve the textual differences between

the private- and federal-sector Title VII provisions

have held that the “shall be made free from any

discrimination” language in Title VII cases has the

same interpretation as the one this Court determined

in Babb v. Wilkie. See Babb v. Sec’y, 992 F.3d 1193

(11th Cir. 2021); Kocher v. Sec’y, U.S. Dept. of Veterans

Affairs, No.23-1108, 2023 WL 8469762, at*1 (3d Cir.

Dec. 7,2023); Huff v. Buttigieg, 42 F.4th 638, 644-46

(7th Cir. 2022). One Sixth Circuit district court has

partially applied Babb to the injunctive relief portion

of a retaliation claim under Title VII, but a pretext

standard to full relief. See e.g, Zickefoose v. Austin, III,

Sec’y, Dept. of Defense, 2:22-cv-1935 2023 WL 7167001

(October 31, 2023). Conversely, several District Court

cases have refused to apply Babb v. Wilkie to Title VII

cases. See Hoang v. Wilkie, 1:18-cv-01755 RM-KLM

2020 WL 6156563, at *9 (D.Colo. Oct. 21, 2020);

Johnson v. McDonough, 1:19-cv-01568-APM, at *3-5

(D.D.C. Nov. 11, 2021). However, even where it is

recognized that Babb should control, several have

upheld summary judgment decisions based on a

failure to establish differential treatment, generally

where the plaintiff’s theory is a McDonnell Douglas

comparator analysis, but no District or as yet

Appellate Court is applying Babb completely. See e.g.,

App. 1a-3a.

Several district courts have applied Babb in a way

which conflicts with Babb at the summary judgment

stage. See e.g., Terrell v. McDonough, No. 8:20-CV-64WFJ-AEP, 2021 WL 4502795, at *3-8 (M.D. Fla. Oct.

1, 2021); Bell v. McDonough, No. 8:20-CV-1274-VMCCPT, 2022 WL 485224, at *6-10 (M.D. Fla. Feb. 17,

2022); Babb v. McDonough, No. 8:14-CV-1732-VMCTBM, 2022 WL 3577359, at *7-15 (M.D. Fla. Aug. 19,

2022).

Below, the panel of the Eleventh Circuit Court of

Appeals was aware that the Circuit had previously

adopted Babb v. Wilkie in Title VII cases. Yet it upheld

jury instructions based upon the but-for test described

in Gross and Nassar, and as further described in

Bostock v. Clayton County, Georgia, 590 U.S. 644

(2020), as the simple and traditional but-for test,

while finding the Petitioner was not prejudicially

harmed by the application of a causation standard

expressly rejected by this Court in Babb. App. 1a. A

factor in determining whether to grant certiorari is

whether a Court of Appeals has decided an important

federal question in a way that conflicts with relevant

decisions of this Court. Sup. Ct. R. 10(c). The

Petitioner, and any other federal employee, that has

their rights decided by the causation standard in the

jury instructions given here, in McLain, App. 8a-22a,

will be deprived of a jury capable of understanding

and deciding critical material facts including whether

differential treatment has to affect the ultimate

decision, and whether once differential treatment is

shown, the Secretary has to establish the same

decision defense. Where, as here, jury instructions do

not accurately instruct the jury on causation elements

of a federal statute, nor accurately reflect what a

federal plaintiff must prove, there is plain error. See

e.g., Carter v. Atlanta and St. A.B. Ry. Co., 338 U.S.

430 (1949). The Equal Employment Opportunity

Commission (EEOC) and the Merit Systems

Protection Board (MSPB) required the same decision

defense before the Babb decision. See Complainant v.

Dep’t. of Homeland Sec., EEOC DOC 9720140014,

2015 WL 5042782, at *5-6 (Aug.19, 2015) (retaliation

under Title VII or ADEA); Savage v. Dep’t of Army,

122 M.S.R.P. 612, 634 (Sept. 3, 2015) (retaliation

under Title VII).

In the present case the government’s demand for

the simple and traditional but-for causation standard

rejected by Babb was not only accepted by the District

Court in jury instructions, it was used to admit

cumulative

evidence

plaintiff’s

protected

whistleblowing

and union

activity,

without

instruction, and tarnished the Petitioner by turning

statutorily encouraged and protected conduct into a

form of “bad acts” in order to prejudice the Petitioner

to the jury with non-EEO conduct which the jury

might then feel justified denial of promotions while

denying plaintiff corroborative evidence under Fed. R.

Evid. 404(b) and 801(d)(2) which tended to prove EEO

activity was considered when treating the plaintiff

differently, and helped to show actual identity and

absence of mistake.

This case presents questions of fundamental

importance to the resolution of the Title VII cases of

thousands of federal employees. As this Court held in

Anderson v. Liberty Lobby, 477 U.S. 242 (1986) the

substantive law determines material facts. Yet no

federal employee can know what that law is under

Title VII until these issues are faithfully resolved.

While Liberty Lobby, unlike this case, was a summary

judgment case, juries, judges and parties must know

the substantive law to determine the material facts.

As a result, federal employees at best face different

burdens of proof depending on where they work and

may file a claim and at worse will, as here, lose some

or all of their rights under 42 U.S.C. § 2000e-16(a). As

will be discussed, for nearly 50 years since Congress

enacted this statute and despite this Court’s efforts to

protect federal employee rights, they have been

denied. Waiting for recalcitrant executive agencies

and misled courts to follow the basic holding of Babb

serves only to foster confusion and deny employees

justice. See Sup. Ct. R. 10(a), (c).

Petitioner respectfully prays that this Court grant

a writ of certiorari to review the judgment and

opinions of the United States Court of Appeals for the

Eleventh Circuit entered on September 1, 2023

upholding errors by the District Court and resolve

these important questions.

OPINIONS AND ORDERS BELOW

The September 1, 2023 opinion of the Court of

Appeals, which was not designated for publication, is

set out at pp.1a-3a of the Appendix. The December 15,

2023 order of the Court of Appeals denying rehearing

or rehearing en banc is set out at pp.5a-6a of the

Appendix.

JURISDICTION

The decision of the Court of Appeals was entered

on September 1, 2023. A timely petition for rehearing

and rehearing en banc was denied on December 15,

2023. This Court has jurisdiction pursuant to 28

U.S.C. § 1254(1).

STATUTORY AND CONSTITUTIONAL

PROVISIONS INVOLVED

Section 717(a) of Title VII of the Civil Rights Act of

1964 (hereafter, “Title VII”), 42 U.S.C. § 2000e-16(a),

provides in pertinent part: “All personnel actions

affecting employees or applicants for employment . . .

in executive agencies as defined in section 105 of Title

5 . . . shall be made free from any discrimination based

on race, color, religion, sex, or national origin.”

The private sector retaliation statute 42 U.S.C. §

2000e-3(a) states:

It shall be an unlawful employment practice

for an employer to discriminate against any of

his employees or applicants for employment .

. . because he has opposed any practice made

an unlawful employment practice by this

subchapter, or because he has made a charge,

testified, assisted, or participated in any

manner in an investigation, proceeding, or

hearing under this subchapter.

5 U.S.C. § 2302(b) provides in pertinent part:

(b) Any employee who has authority to take,

direct others to take, recommend, or approve

any personnel action, shall not, with respect to

such authority-***

(8) take or fail to take, or threaten to take

or fail to take, a personnel action with

respect to any employee or applicant for

employment because of—

(A) any disclosure of information

by an employee or applicant which

the

employee

applicant

reasonably believes evidences—

(i) any violation of any law,

rule, or regulation, or

(ii) gross mismanagement,

a gross waste of funds, an

abuse of authority, or a

substantial and specific

danger to public health or

safety,

if such disclosure is not specifically

prohibited by law and if such

information is not specifically required

by Executive order to be kept secret in

the interest of national defense or the

conduct of foreign affairs;

***

(9) take or fail to take, or threaten to take or fail

to take, any personnel action against any

employee or applicant for employment because

of—

(A) the exercise of any appeal,

complaint, or grievance right granted by

any law, rule, or regulation—

(i) with regard to remedying a

violation of paragraph (8);

(B) testifying for or otherwise lawfully

assisting any individual in the exercise

of any right referred to in subparagraph

(A)(I) OR (II);

information to the Inspector General (or

any other component responsible for

internal investigation or review) of an

agency, or the Special Counsel, in

accordance with applicable provisions of

law; or

(D) refusing to obey an order that would

require the individual to violate a law,

rule, or regulation;

STATEMENT OF THE CASE

Petitioner McLain commenced this action on May

30, 2017 in the Middle District of Florida, alleging

that he was subject to retaliation, and a retaliatory

hostile work environment in violation of Title VII of

the Civil Rights Act applicable to federal employees.

Specifically, he alleged that he was the victim of

retaliation because of his protected EEO activity and

a retaliatory hostile work environment, in violation of

the same statutory law.

On July 28, 2019, summary judgment was

denied under the Nassar causation standard. After

being delayed pending the Babb decisions and a

period of extensive briefing of Babb, Supreme Court

precedent concerning the same-decision defense and

the equities of shifting the burden, as well as proposed

jury instructions, a trial lasted nine days. The verdict

was for the Secretary on March 16, 2022.

A. Factual Background

1. At material times, Petitioner Dennis McLain

has been an employee with the VA for 26 years. He is

a registered nurse. He worked in a critical care unit

for much of his career. In 2013, he was injured and

placed on light duty. Management asked him to work

in the National Nurse's Union (NNU), the union for

the more than one thousand registered nurses. He

later became the director of the NNU. He is a VA

employee, paid by the VA and not the union. Within

the union it was his responsibility to represent

employees in grievances and other matters including

discrimination issues. He is also involved as an

employee and a union official in making

whistleblowing disclosures especially when patient

health and safety or fraud, waste or abuse is involved.

He was on major committees and projects with, inter

alia, Kathleen Fogarty, the Director of the hospital

and upper management including the Nurse

Executive, Laureen Doloresco, Chief Nurses (CN) and

nurse managers and learned the overall operation of

the hospital and how its services interacted. Prior

union directors, without EEO activity, have been

promoted to high positions.

2. Problems began after the Plaintiff engaged in

EEO activity against Nurse Executive Lorraine

Doloresco. In September 2014 he raised Doloresco’s

racially based reassignment of Heidi Salem to

Director Kathleen Fogarty and Doloresco. Doloresco

separately criticized him to Fogarty. Shortly after the

initial events McLain was denied an opportunity to

interview for the CN of Mental Health due to an

alleged calculation error by Doloresco’s assistant.

3. McLain engaged in further EEO activity in the

fall of 2014 representing Claudette Patricio who

alleged racial discrimination (Asian) and retaliation

by Doloresco in a denial of a promotion. On January

25, 2015 McLain discussed Patricio and a broader lack

of Asians and black Americans in management with

Doloresco and Michael Benning. On February 2, 2015,

McLain raised the broader issue to interim director

Marjorie Hedstrom and Doloresco. As with Fogarty,

Doloresco separately replied to Hedstrom claiming

these “persistent attacks on nursing leadership were

the top concern of Nurse Managers and Chief Nurses”.

She confidentially copied five key confidants, CNs

Elaine Cohen, Zahria Sanabria, Cary Burcham and

Blasina Negron and Assistant CN Linda Madaris. Id.

One or more were directly involved with the selection

of positions McLain was denied, including the CN

Mental Health, the CN Acute Care, and disciplinary

actions against McClain’s wife.

4. McLain was assigned an office on the 7th Floor

of the hospital which in early 2015 and thereafter was

repeatedly flooded with raw sewage including feces.

Doloresco had a duty under the Collective Bargaining

Agreement (CBA) to move him, or any such employee,

to a safe location at least temporarily until corrected.

She did not. He became ill.

5. On May 18, 2015, during a large reoccurring

nurse manager and CN meeting, Doloresco,

sarcastically stated that both our union partner and

his wife applied for the Chief Nurse of Operations

position and started laughter. This type of discussion

was unheard of and a violation of VA policy.

6. On July 1, 2015 McLain and his wife filed their

own EEO complaints.

8. On October 16, 2015, the Chief Nurse of

Operations position was selected. Doloresco claimed

she completely recused herself from the selection and

never talked to or gave any reason to anyone involved

in the selection. Yet, the selecting official testified that

Doloresco called and told her that it was because of a

union official and his wife. Doloresco’s assistant also

created scoring documents normally prepared by the

selection panel members which were unlike typical

scoring documents in ways that prejudiced McLain.

9. On December 3, 2015, McLain became aware of

his non-selection for the Chief Nurse of Acute Care

position. The panel lead was Linda Madaris, a

recipient of the 2/2/15 email. She admitted she was

also at the May meeting. When the CN of Acute Care

was announced, Doloresco also claimed she recused

herself. However, this time a panel of three

management level nurses and a doctor were put on the

panel by Doloresco. The lead was Linda Madaris. She

was also the lead of the panel for CN of Mental Health

after having told Doloresco in an email that she could

not tell her how disappointed and angry with McLain

she was and did not want to work with him. Another

panel member for CN Acute Care was Karen Proctor

against whom Doloresco knew McLain made a

whistleblower disclosure regarding comp-time fraud

by her and several other nurse managers in the

summer of 2014. After an Office of Inspector General

investigation, changes were made in VA policies.

Proctor, and other managers lost continuation of over

200 hours per year of fraudulent leave Proctor had

been taking for 6 years. Cheryl Stephen-Rameau

(CSR) was also a panel member. Although this

evidence was not allowed, Responses to Motions in

Limine show CSR admitted to Tammie Terrell and Dr.

Carol Reuter that Doloresco, contrary to hiring and

promotion guidelines, pre-selected her over Terrell

who was rated No. 1 after each of three separate

announcements. McLain represented Terrell in her

EEO case based on race (Black) and retaliation. After

Patricio’s first EEO claim of racial discrimination was

settled, in early 2014 she became part of a committee

that helped develop the facilities’ selection policy

which requires panel members without bias for or

against an applicant. Yet three-quarters of the Acute

Care panel had a strong basis for bias against McLain

and Doloresco knew it. Madaris was on both this panel

and the one for CN mental health. Yet, the jury’s

main focus was not differential treatment under

Babb, but rather the ultimate decision including the

criticism of his whistleblowing and union activity.

10.

The Secretary’s defense consisted of a

combination of five entwined approaches. First, it

defended its ultimate decisions and maintained that

outstanding people were selected for the positions and

they were the best candidates. McLain offered

evidence disproving these facts and was denied

corroborative evidence relating to them. Second,

Doloresco denied knowledge of important facts not

documented in writing, and she tried to hide her

knowledge and identity through subordinates and

others. Other evidence showed several of Doloresco’s

denials were not true and other Rule 404(b)

knowledge and identity evidence was excluded. The

third defense was to use McLain’s protected

whistleblowing and union activity as a form of bad

acts. Doloresco testified none of this was a reason for

her alleged actions in McLain’s case and the Secretary

did not contradict that until its Brief on appeal

addressed a lack of relevance argument. It then said

it was evidence its actions were not retaliatory.

Fourth, the Secretary successfully convinced the court

to ignore several 404(b) witnesses, including Terrell

and Dr. Rueter, and witnesses that had evidence

admissible under 801(d)(2)(D) of retaliatory intent or

corroborative actions by Doloresco, Fogarty, Assistant

Director David VanMeter and another Pentad

member which helped to show intent, identify and

absence of mistake.

11.

The fifth and most significant way the

Secretary defended the case was by convincing the

trial court to give jury instructions which were in

violation of the causation holdings of Babb v. Wilkie

and Babb v. Sec’y. As a result the jury was not

provided important instructions on differential

treatment and full relief.

B. Legal Issues Involved

An appeal was timely filed challenging the jury

instructions and evidentiary rulings because they

were based on Nassar and Gross and, according to the

Secretary on appeal, Bostock. Each case interpreted

private sector statutory language, and in the case of

Bostock for expressly inapplicable reasons. The appeal

challenged the use of cases decided under “markedly”

different statutory language to deny a federal

employee the causation standards delineated in Babb

v. Wilkie and found applicable to Title VII in Babb v.

Sec’y, and in making evidential decisions. In Babb v.

Wilkie, 589 U.S. at 402-411, this Court held that the

Gross and Nassar causation standards arose under

markedly different statutes and are not applicable to

discrimination claims brought by federal-sector

employees under the ADEA which contains the same

critical “shall be made free from any discrimination”

language as in federal sector Title VII. Reasoning

provided by this Court in Babb and prior cases

suggests that the differing statutory language

applicable to federal-sector and private-sector claims

and differing causation standards mandates differing

jury instructions be given. See e.g., Russello v. United

States, 464 U.S. 16, 23 (1983); Carter v. Atlanta and

St. A.B. Ry. Co., 338 U.S. 430 (1949). (This court has

recognized that jury instructions must adequately

instruct the jury on the causation elements of a

federal statute and accurately reflect what a plaintiff

must prove.)

The panel relied upon precedent of the Eleventh

Circuit Court of Appeals to in essence hold that it was

not prejudicial to the Petitioner to fail to: (1) instruct

the jury on a federal statute’s causation standard; and

(2) to (a) admit, without any instruction, cumulative

evidence of Petitioner’s protected whistleblowing and

union activity as if it was a consideration in denying

Petitioner interviews and promotions even though the

Secretary denied it was a reason for its alleged actions

before the jury and only changed that in its answer

brief on appeal; and (b) to simultaneously deny the

Petitioner the ability to introduce countervailing

evidence under Fed. R. Evid. 404(b) and 801(D)(2)(D)

which tended to prove that EEO activity was the

Secretary’s motive, intent and basis for differential

treatment and provided further relevant evidence of

identity and absence of mistake.

Petitioner’s argument at each stage of the case was

that the Babb decision created an inextricably

intertwined, but separate two-part framework: (1)

differential treatment and (2) if that is shown, full

relief. Each part requires the plaintiff to establish

“but-for” causation. The Eleventh Circuit held it was

applicable to Title VII claims. In contrast to Gross and

Nassar, however, the “but-for” test for differential

treatment under the ADEA or Title VII statutes does

not require the plaintiff to prove differential

treatment “affected” the ultimate decision(s). Babb v.

Wilkie, 589 U.S. at 406-08. As to full relief, consistent

with prior decisions, the only but-for cases cited with

approval in Babb were Texas v. LeSage, 528 U.S. 18

(1999) and Mt. Healthy Cnty. Bd. of Ed. v. Doyle, 429

U.S. 274 (1977). Id. at 413. Once the statutory injury

is established, here differential treatment, these cases

require an employer to establish the same decision

defense. If it fails, the Plaintiff has shown but-for

causation. Nieves v. Bartlett, 139 S. Ct. 1715, 1722-23

(2019); Hartman v. Moore, 547 U.S. 250, 260 (2006).

In Babb the majority stated:

We have long employed these basic

principles. In Texas v. Lesage, 528 U.S. 18,

21-22, 120 S. Ct. 467, 145 L.Ed.2d 347

(1999) (per curiam), we applied this rule to

a plaintiff who sought recovery under Rev.

Stat. § 1979, 42 U.S.C. § 1983, for an

alleged violation of the Equal Protection

Clause. We explained: “[W]here a plaintiff

challenges a discrete governmental

decision as being based on an

impermissible criterion and it is

undisputed that the government would

have made the same decision regardless,

there is no cognizable injury warranting

[damages] relief.” 528 U.S. at 21, 120 S. Ct.

467. Cf. Mt. Healthy City Bd. of Ed. v.

Doyle, 429 U.S. 274, 285, 97 S. Ct. 568, 50

L.Ed.2d 471 (1977) (rejecting rule that

“would require reinstatement… even if the

same decision would have been reached

had the incident not occurred”).

589 U.S. at 413.

Justice Thomas’s dissent recognized the eightjustice majority’s description of the statutory injury

and criticized its principal reliance upon LeSage and

Mt. Healthy for the remedial scheme. Id. at 418.

Petitioner argued at each stage of this case that

Babb requires that each time an employee shows

differential treatment based on a protected

characteristic, an employer has to prove the same

decision would have been reached regardless of the

statutory injury, unless such a decision is undisputed.

Yet the Secretary convinced the District Court and

ultimately the Eleventh Circuit panel to uphold jury

instructions based on Gross and Nassar, despite the

fact that those cases formed the primary basis of the

Secretary’s unsuccessful causation arguments in

Babb v. Wilkie. Id. at 410-11. The jury instructions in

Petitioner’s case were fully grounded in Gross and

Nassar, as was the panel's opinion that “after careful

consideration of the record and the parties’ briefs, and

with the benefit of oral argument we find no

prejudicial error in the district court's jury

instructions or evidentiary rulings." App. 2a-3a.

This error will prevent jury instructions consistent

with Babb wherever the government argues that to

avoid prejudicial error, a judge should use the McLain

instructions. This argument has already been made in

the first case since McLain. See e.g., App. 5a; App. 25a28a; App. 30a-41a. 1

During the trial, the refusal to recognize Babb

included using “sole reason” cases of the

Gross/Nassar-type to determine what was admissible

evidence. Prior to trial and through repeated

objections at trial, we sought to limit, especially

without instruction, the Secretary's cumulative use of

clearly protected whistleblowing and union activity.

Rather, without limiting instructions including

properly describing differential treatment as

discussed further infra at p.27-29 or requiring

legitimate reasons, it was used to cagily imply that

whistleblowing and union activity could have caused

both differential treatment and McLain’s denial of

promotions.

Nassar was decided under the section of Title VII

applicable to retaliation claims of private-sector

employees, 42 U.S.C. § 2000e-3(a) which is markedly

different from 42 U.S.C. § 2000e-16(a).

Federal-sector retaliation claims under Title VII

were unaddressed in Gómez-Pérez v. Potter, 553 U.S.

474, 488 n.4 (2008) and Babb v. Wilkie. In GómezPérez, this Court found retaliation provisions

1 While not part of the record in this case, that

District Court later said it would “apply Babb, but not

the burden shift.” Given McLain, it is uncertain what

that will mean for differential treatment.

embodied within the “free from any discrimination”

language of 29 U.S.C. § 633a(a). Id. at 479, 487.

However, there is agreement in all Courts of Appeal

that federal employees have Title VII retaliation

protection. See also Nassar, 570 U.S. at 356 (citing

Gómez-Pérez for the proposition that, “when

construing

the

broadly

worded federalsector provision of the ADEA, Court refused to draw

inferences from Congress's amendments to the

detailed private-sector provisions”).

C. PROCEEDINGS BELOW

The final instructions, as the ones in Carter v.

Atlanta and St. A.B. Ry. Co., , show the District and

Appellate courts disagreeing with Congress about the

nature of the rights that the federal employees have.

In the Babb cases the Supreme Court and the

Eleventh Circuit painstakingly described what the

“shall be made free from any discrimination” language

meant. Yet, here those decisions were not applied in

favor of modified McDonnell Douglas, or Gross and

Nassar decisions.

In order to show this error in the proceedings

below the following discussion of the instructions at

issue (App. 8a-22a) will refer to the trial transcript

line by line, with emphasis added and brackets

enclosing explanatory information.

First, the description of the essential element

the Plaintiff must prove by a preponderance of the

evidence does not address differential treatment and

consists of the four elements directly from the Gross

and Nassar but-for tests Babb rejected. App. 14a:2028. [Plaintiff’s elements were also rejected; Plaintiff’s

full relief instruction was rejected]. Second, the jury

had been instructed plaintiff must prove each

essential element by a preponderance of the evidence.

App. 11a:33-12a:5. Third, the key third element

(causation) begins by telling the jury it “must decide

whether Defendant took that action [i.e., the adverse

employment actions] because of Plaintiff’s protected

activity” which means it “was a material reason for

Defendant’s decision” [without addressing differential

treatment]; App. 16a:17-24. Fourth, it explains what

it means to take an adverse employment action,

because of Plaintiff’s protected activity by stating:

“you must decide that Defendant would not have

taken that action … had Plaintiff not engaged in the

protected EEO activity, but everything else had been

the same”; App. 26a-31a, [and excludes discussion of

“consideration” or the way or process by which a

decision is made, 589 U.S. at 402]. Fifth, [after

untethering a small portion of Plaintiff’s proposed

instructions while describing it as what the “Plaintiff

claims”, i.e., not the law, App. 16a:33-17a:1] the jury

was told that to determine “EEO activity played a part

in the way one or more employment decisions was

made you must decide that Defendant treated

Plaintiff differently as part of the decision that was

made and would not have treated Plaintiff that way if

Plaintiff had not engaged in protected activity, but

everything else had been the same”. App. 17a:12-19.

[This instruction directly rejects the critical

hypothetical describing the meaning of the “shall be

made free from any discrimination” language and

differential treatment. Babb, 589 U.S. at 407. Miriam

Webster's online dictionary defines “part” as an

“essential portion or integral element". Here the

instructions made clear it had to be part of the

ultimate decision. Moreover, it rejects the court’s

holding that the differential treatment does not have

to affect the ultimate decision even though it must be

part of the “process” or “way” of making the decision.]

589 U.S. at 404, 406-407, 408 n.3. 2 Sixth, the

“Defendant denies” section is two paragraphs which

only discusses the ultimate decisions and Defendant’s

reasons for it, App. 17a:21-18a:5 [they do not except

differential treatment and restate the Gross and

Nassar causation test. Id.] Seventh, the second

paragraph of that section [not only ignores

“consideration” or the process of making a decision,

but] states “An employer may not take an adverse

action against an employee because of the employee’s

protected EEO activity” [and then eviscerates

differential treatment when stating] “but an employer

may choose not to interview or select any employee for

any other reason, good or bad, fair or unfair, and you

must not substitute your own judgment for

Defendant’s judgment, even if you did not agree with

2 Plaintiff objected in numerous places. The “as part of the

decision” language was added at the behest of the Secretary just

before closing arguments.

it. If you believe Defendant’s reasons for its decision

and you find that Defendant did not make its decision

because of Plaintiff’s protected EEO activity, you must

not second-guess that decision.” App. 17a:30-18a:5.

Eighth, [still in the third element, it continues Gross]

“As I explained, Plaintiff has the burden to prove that

Defendant’s decision not to promote or interview

Plaintiff was because of Plaintiff’s protected activity.”

App. 18a:7-10. [In the context of the overall

instructions, causation is determined by the Gross

and Nassar simple, traditional test]; Ninth, the

instruction then adds emphasis to that point

including requiring Plaintiff to prove Defendants

reasons were so unbelievable that they were a

“coverup”. App. 18a:12-23. Tenth, the undue influence

cat’s paw instruction is an established Gross and

Nassar single motive instruction. App. 18a:25-19a:19.

Godwin v. Wellstar Health, 805 Fed. Appx 518, 528-29

(11th Cir. 2015) (private sector ADEA case controlled

by Gross). Eleventh, none of these instructions

respect the language of Babb and all of them reject its

hypotheticals, but the jury was told they must apply

the instructions as a whole. App. 9a:13-17;p.21a:2128. 3

3 McLain’s proposed jury instructions attempted to follow

Babb while addressing each concept in the Standard Jury

Instructions. In any event, the jury instructions given were

wrong as a matter of law and deserved no deference. Carter v.

Atlanta and St. A.B. Ry. Co., 338 U.S. 430 (1949); Palmer v. Bd.

of Regents of U. of Ga., 208 F.3d 969, 973 (11th Cir. 2009); U.S.

v. Chandler, 996 F.3d 1073, 1083 (11th Cir. 1993), cert. denied

512 U.S. 1227 (1994).

Nowhere during trial or in the court's final

instructions was the jury helped to understand the

meaning of differential treatment or the role this

statutory injury has to the liability of the defendant,

let alone to rendering a verdict giving a plaintiff the

ability to enjoin the key statutory injury, for example

creating biased panels, discussing animus towards

Petitioner’s protected EEO activity with subordinates

involved in the process of making decisions and

violating hiring policies designed at least in part to

avoid protected characteristics decisions. See Furnco

Const. Corp v. Waters, 438 U.S. 567, 575 (1978); Carter

v. Three Springs Residential Treatment 132 F.3d 635,

644-45 (11th Cir. 1998).

Instead of addressing these points, the panel’s

decision quotes a question on the verdict form App.

23a Q.3, 24a. Yet the decision does not quote or

address any of the instructions that the jury was

instructed to apply when deciding that question

including the instruction to apply the instructions as

a whole. These instructions in several places and as a

whole, prevented the jury from having a correct

understanding of differential treatment and, as did

the verdict form itself, placed the burden of proof on

everything, including disproving the reasons for the

ultimate decision, on Petitioner. By not requiring the

employer to show it would have made the same

decision without considering plaintiff’s EEO activity,

the instructions prevent the jury from understanding

the role or significance of differential treatment and

that it does not have to affect the ultimate decision.

In this case Petitioner argued that differential

treatment was not just the ultimate personnel actions.

Many of the actions which were taken show that there

was a strong basis to conclude a properly instructed

jury would have found differential treatment short of

the ultimate decisions. The instructions misled the

jury away from whether Doloresco: considered

McLain’s EEO activity when she openly criticized it to

managers involved in selections, during the process of

making personnel actions; had assistants change

scoring documents; or chose biased panel members in

violation of hiring guidelines. McLain faced biased

panel members consisting of people directly impacted

by his protected whistleblowing actions or EEO

activity, or who were present, or recipients of emails,

when Doloresco criticized him for EEO activity. Babb,

at 406-08. The facts established a basis for a jury to

conclude EEO activity was considered when Doloresco

did those things and expressed hostility to McLain’s

EEO activity to subordinates who were involved in the

process of making decisions. See Ercegovich v.

Goodyear Tire & Rubber Co., 154 F.3d 344, 354-355

(6th Cir. 1998). Neither these statements nor biased

panel members were taken out of the decision-making

processes under circumstances far more egregious

than this Court recognized required removal. Babb,

589 U.S. at 408 n.3. Contrary to footnote 3, and the

holding that differential treatment does not have to

“affect" the ultimate decision, the instructions focus

the jury on whether all of this was an essential or

integral element in the ultimate decisions.

These

instructions

ignore

differential

treatment’s place in the whole, render immaterial

evidence of its consideration in the process of making

a decision; and, at least, require the plaintiff prove

the defendant treated the plaintiff differently as part

of the decision that was made and would not have

done so had plaintiff not engaged in protected activity

but everything else was the same. This is contrary to

Babb’s express rejection of any requirement that the

plaintiff prove that the differential treatment

“affected" the decision as long as it occurred in the

process of making the decision. The instruction

required differential treatment not only affect the

decision, but to be essential or integral to it, because

the Secretary wanted the focus to directly be on the

ultimate decisions.

Despite the intrinsically flawed whole, and

hopelessly confused and flawed instruction, (see

“Fifth” and fn 2), the court upheld Gross and Nassar

jury instructions on causation even though this Court

and a prior Eleventh Circuit panel rejected those

causation standards. However, the Eleventh Circuit

has not enforced these holdings.

The comments to the Eleventh Circuit

Standard Civil Instructions (4:22) now seemingly

recognize a causation difference. Yet, this decision

does not. It will, and has already been, used to

advocate to district courts these instructions can be

upheld and avoid prejudice. App. pp.5a, 26a-28a,30141a.

One of the troubling results of these

instructions, is that jurors will not focus on the simple

concepts recognized in Babb despite hypotheticals

explicitly

illustrating

these

points.

When

management considers a protected characteristic in

the process or way of making a decision, it has

engaged in differential treatment and violated the

statute. As to full relief, no jury will be allowed to

consider the relationship between differential

treatment and but-for causation under LeSage and

Mt. Healthy.

When up against the federal

government, the individual federal employee needs to

have burden shifting in order to receive a fair trial. In

this case that burden would, in several ways, have

prevented prejudicial use of whistleblowing and union

activity.

There is no express discussion in this Court’s

decision of the “burden of proof”. Yet, there is a

discussion of the legal framework. That is what

counsel for Babb felt was the important part of this

decision. By focusing on the language of the statute

the legal framework becomes clear and the burden of

proof becomes obvious. Price Waterhouse v. Hopkins,

490 U.S. 228 (1989); LeSage; Mt. Healthy. This was

further argued at both levels with citation to other

Supreme Court precedent. Indeed, as Justice Thomas

recognized, when the majority cited but-for cases in

the remedial scheme, those were LeSage and Mt.

Healthy which shift the burden to the employer once

the statutory injury, differential treatment, is shown.

Finally, please note that all of these Gross and

Nassar instructions are in the third element, the

causation element, making it impossible for any

reasonable person to have understood what they

should find under Babb. Where, as here, instructions

do not adequately instruct the jury on the causation

elements of a federal statute nor accurately reflect

what a plaintiff must prove, it is error. See e.g., Carter

v. Atlanta and St. A.B. Ry. Co., 338 U.S. 430 (1949).

The panel for the Eleventh Circuit felt that there was

no prejudicial error citing its own cases. It did not

address any of the Petitioner’s arguments based on

the Babb case and the instructions, except to point to

question 3 on the Verdict Form.

Evidential Rulings. The court’s evidential

rulings underscore the misapplication of Babb. The

Petitioner filed a motion in limine attempting to limit

at least without a limiting instruction testimony

concerning Plaintiff’s whistleblowing and union

activity including 48 exhibits primarily criticizing

grievance activity, which although not a statutory

requirement, was like the whistleblowing activity,

well based.

The Secretary responded that an

Eleventh Circuit single motive case justified

admitting this evidence without an instruction

because the plaintiff had the burden to establish the

protected characteristic was the “sole reason” for a

non-Babb differential treatment which by the time of

the jury instruction had to be an essential part of the

ultimate decisions. From a relevance standpoint even

the cases relied on required it to be a reason for the

ultimate decision because that was the object of the

sole reason. See e.g., Alvarez v. Royal Atlantic Devel,

Inc., 610 F.3d 1253, 1256 (11th Cir. 2010); Wallace v.

SMC Pneumatics, Inc., 103 F.3d 1394, 1399 (7th Cir.

1997). At a prior deposition and at trial, Doloresco

testified that this evidence showed a lack of

collaboration but was not a reason for any alleged

retaliatory actions. Nevertheless, during trial, onequarter to one-third of Doloresco’s entire testimony

subjectively litigated these issues and criticized

McLain’s actions. During trial McLain repeatedly

objected (F.R.E. 402, 403, 404 802, cumulative) and

argued then and on appeal that this made the

evidence not only cumulative but unduly prejudicial

and irrelevant. On appeal, the Secretary sought to

avoid at least the relevance part of this argument and

contradicted its position before the jury saying it was

evidence which showed “non-retaliatory reasons for

its actions.” It is instructive to consider this and other

hurdles employees face when litigating with giant

federal bureaucracies. Yet, not only was it

cumulatively admitted, corroborative 404(b) and

801(d)(2)(D) evidence was denied. In discrimination

cases such evidence can be pivotal. U.S. Postal Serv.

v. Aikens, 460 U.S. 711, 714 n.3 (1983); Goldsmith v.

Bagby Elevator Co., Inc., 513 F.3d 1261, 1285 (11th

Cir. 2008). This is a consistent problem in Terrell,

Bell, Babb II and Sly Hollingsworth and was

especially true here.

D. Retaliatory Hostile Work Environment. A hostile

work environment (HWE) is a personnel action under

5 USC § 2302(a)(2)(A)(xii). Savage v. Dep’t of the

Army, 122 M.S.P.R. 612,627 ¶23 (2015); Sistek v. Dep’t

of Veterans Affairs, 955 F.3d 948,955 (Fed. Cir. 2020).

Therefore, Babb’s legal framework including

differential treatment and full relief should be

applicable and reflected in the causation portion of the

jury instructions.

The Eleventh Circuit denied petitioners' timely

petition for panel rehearing or rehearing en banc.

REASONS FOR GRANTING THE WRIT

Federal employees currently filing retaliation

claims under Title VII face differing standards of proof

and very likely a denial of a just determination of their

rights. This case presents an opportunity to correct a

growing number of conflicts with the application of

Babb to the “shall be made free from any

discrimination” language in both 29 U.S.C. §633a(a)

and 42 U.S.C. §2000-e16(a) and to settle important

questions of federal law that we thought Babb settled,

but if not, should be settled by this Court.

The panel's decision upheld jury instructions

that are plainly based on Gross and Nassar. That

directly conflicts with Babb’s causation holdings after

analyzing the critical “shall be made free from any

discrimination” language under the ADEA and

provides the court an opportunity to make clear that

interpretation should be applicable to the critical

“shall be made free from any discrimination” language

under Title VII. It also provides another opportunity

to clarify that the concepts of differential treatment

and full relief should not be weakened by Gross,

Nassar, or Bostock. Instructions accurately reflecting

these concepts are essential to a jury’s ability to

identify the material facts not only when deciding

differential treatment and full relief, but to

understand that differential treatment does not have

to affect the ultimate decision.

Action by this Court at this time is necessary to the

efficient resolution of federal employee claims. While

panels in the Eleventh, Seventh and Third Circuits

have recognized Babb should be applied to Title VII,

many district courts in other jurisdictions have not

applied it to Title VII cases for the same prior

precedent reasons at issue in Babb. See e.g., Hoang v.

McDonough, No. 18-CV-01755-RM-KLM, 2022 WL

19403576, at *3 (D. Colo. Dec. 5, 2022); Johnson v.

McDonough, 1:19-cv-01568 (APM) (D.D.C. Nov. 11,

2021); but see Zickefoose v. Austin, III, Sec’y, Dept. of

Defense, No. 2:22-cv-1935, 2023 WL 7167001 (October

31, 2023). Moreover, no matter which circuit a District

Court is in, the Secretary continues to make

arguments which conflict with Babb. See Terrell v.

Dept. of Veterans Affairs, No. 21-14185-JJ (11th Cir,)

Bell v. Dept. of Veterans Affairs, Case No. 22-12698HH (11th Cir.), and Babb v. Dept. of Veterans Affairs,

No. 23-10383-C (11th Cir.). For example, “seven times

Babb uses but-for.” This is even argued on appeal but

never with the recognition that differential treatment

does not have to affect the ultimate decisions or that

the Secretary has a burden to show it would have

made the same decision defense. The individual

federal employees are at a distinct disadvantage

against large bureaucracies with unified defenses.

At best, some federal employees are being treated

differently than others when it comes to critical

causation standards. At worse, no federal employees

are receiving their full Title VII rights under 42 U.S.C.

§ 2000e-16(a) after nearly 50 years. Notwithstanding

Babb’s holdings and framework, lower courts are not

recognizing the relationship between differential

treatment and full relief and that differential

treatment does not have to affect the ultimate

decisions. As far as we can determine, none have yet

found that if there is differential treatment, the

employer must present evidence it would have made

the same decision. Babb, 589 U.S. at 413. The panel’s

decision makes the likelihood of this happening

without intervention by this Court remote.

In the present case, as well as Winston Johnson

and Dai Hoang, district courts have refused to apply

Babb's analysis to Title VII claims, and in the later

cases have opposed certifying questions to the

respective Circuit Court of Appeal. In two cases we

asked the attorneys for the Department of Justice if

they would agree that the question of the applicability

of Babb should be certified to the respective courts of

appeal. They refused. We nevertheless asked the

district courts to certify the questions and they

refused.

In Sly and Hollingsworth v. Department of

Veterans Affairs, 8:17-cv-01868-AAS (M.D. Fla.), we

sought to certify the question of admissibility of 404(b)

evidence in a case involving a management official

who has been involved in numerous cases involving a

management described program to destroy the

careers and reputations of people that engage in EEO

activity which began in roughly 2005. See e.g., Gowski

v. Peake, 682 F.3d 1299 (11th Cir. 2012). App. 5a, 28a29a, 42a-44a. Again, the government has opposed

certification.

The law in each of the circuits makes it quite

difficult, if not impractical, to successfully certify a

question without agreement. Federal employees are,

as Congress recognized, at a marked disadvantage to

the federal agencies in federal court. Given results to

date, in the highly unlikely event that the Tenth or

D.C. Circuit would agree to hear the matter in that

setting, if they did, while it may be likely Babb would

be applied, McLain shows that it cannot be said that

the holding of Babb will be applied. Federal employees

simply cannot afford all of this repeated litigation.

That may help to explain why these basic issues are

being litigated so long after passage of the statutes.

This Court has already put in the effort that

should have been necessary to resolve these issues.

Nevertheless, as we argue in the Terrell appeal,

attorneys for the Secretary successfully argued to the

same District Court for the application of a “modified

McDonnell Douglas test" which involved a complete

reapplication of old law and ignored 404(b) and

801(d)(2)(D) evidence. As we argue in the Bell appeal,

the sole black manager in a large service under

Doloresco, was paid less than all non-black managers

for the same duties, but a district court ruled that was

a matter for the personnel department and did not

even address the issue of differential treatment. As we

argue in the Babb appeal the district court after

remand failed to follow this Court’s opinion in Babb or

Tolan v. Cotton, 572 U.S. 650 (2014) in granting

summary judgment on gender plus age claims. It

ignored evidence of consideration of protected

characteristics of the type cited in Babb, and reasoned

that there were comparators against an age only claim

and against a gender only claim, under the same

analysis it previously applied. It did not decide

whether the evidence was sufficient to raise a jury

question on differential treatment of older females of

which considerable favorable comparator evidence

existed. At trial of retaliation claims, it only instructed

on what could be argued to have been differential

treatment, for a retaliation claim while excluding any

damages and 404(b) evidence of discrimination

against older females which obviously lessened

management’s motive to retaliate. See Whitmore v.

Dept. of Labor, 680 F.3d 1353, 1370-72 (Fed. Cir.

2012). 4

This Court has consistently rejected the

government’s efforts to restrict federal employee

rights under the made free from any language in

federal statutes. See e.g., Loeffler v. Frank, 486 U.S.

549, 559 (1985) (Title VII federal employees do not

have less rights than private sector employees);

Gomez-Perez v. Potter, 553 U.S. 474 (2008) (federal

employees have retaliation rights under the ADEA);

Babb v. Wilkie, 589 U.S. at 411-12, (federal employers

must meet stricter standards under the ADEA). Yet a

strong resistance to give federal employees those

rights continues. This problem was discussed when

Congress created a separate EEOC due to the failures

of government anti-discrimination efforts. H.R. 100456, 100th Congress, 1st Session, Union Calendar No.

287. November 23, 1987 (also noting the economic

4 The appeal in Terrell was filed and 2021, the

appeals in McLain and Bell were filed in 2022, the

appeal in Babb was filed in 2023. We had hoped that

decisions in these cases would have been made long

ago and that some conformity with Babb would have

become evident. That has not occurred.

disadvantage of federal employees

problematic involvement of DOJ).

and

the

Addressing and resolving the statutory language

difference between the “shall be made free from any

discrimination” language under the ADEA and Title

VII, real or imagined, is critical and needs to be

consistent throughout the country as well as between

the ADEA and Title VII. Babb should have led to that,

but it may never be timely and fully addressed if this

Court waits for the district courts or Circuits to

resolve the issue given the government’s continued

unwillingness to avoid arguments it lost in Babb

based upon cases decided under markedly different

statutes. 589 U.S. at 410-11. The decision of the

Eleventh Circuit panel conflicts with the statutory

language of 42 U.S.C. § 2000e-16(a) and denies

employees instructions defining their material rights

under that statute. While “not published” the panel’s

decision has already affected jury instructions in

other cases. Moreover, what federal employee has the

resources to wage these battles and why should they

if this Court can be ignored?

The statutory language regarding federal-sector

ADEA and Title VII retaliation claims is similarly

different from the language applicable to privatesector employees. Section 2000e-3(a) of Title VII does

not apply to federal employees.

As noted by this Court, federal-sector retaliation

claims under Title VII were unaddressed in Gómez36

Pérez. 553 U.S. at 488 n.4. In that case, this Court

found retaliation provisions embodied within the

“shall be free from any discrimination” language of 29

U.S.C. § 633a(a). Id. at 479, 487. However, the

rationale of Gómez-Pérez requires that where, as in 42

U.S.C. § 2000e-16(a), when Congress uses the same

broad, general language applicable to the federalsector as in 29 U.S.C. § 633a(a), it bars retaliation in

addition to status-based discrimination. Id.

The Eleventh Circuit’s decision also conflicts with

this Court’s decisions related to principles of statutory

construction. In addition to the plain meaning of the

words “made free from any discrimination,” as Babb

explained the laws of statutory construction also

support the decisions requested. 589 U.S. at 412.

“[W]here Congress includes particular language in

one section of the statute, but omits it in another . . .

it is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion

or exclusion.” Russello v. United States, 464 U.S. 16,

23 (1983)); see also Central Bank of Denver v. First

Interstate Bank of Denver, N.A., 511 U.S. 164, 176-77

(1994).

Finally, one suspects that the Secretary’s clever

use of protected whistleblowing and union activity

while denying it was a reason for its actions at trial

and then claiming it could be used by the jury to find

non- retaliatory reasons for its actions on appeal,

troubles the Court. However, the root cause of this

problem was using simple and traditional “sole reason

but-for” causation to violate two statutes while

deflecting accountability under both. This could not

have happened if either the district court and the

instructions followed Babb’s description of differential

treatment or if the Secretary had to make the same

decision defense. Recognizing these principles may

have also assisted in proper applicability of 404(b)

evidence.

CONCLUSION

For the foregoing reasons, this Court should grant

this petition and issue a writ of certiorari to review the

judgment and opinion of the Eleventh Circuit Court of

Appeals.

Respectfully submitted,

JOSEPH D. MAGRI

Counsel of Record

SEAN M. MCFADDEN

MERKLE & MAGRI, P.A.

5601 Mariner St., Ste. 400

Tampa, Florida 33609

Telephone: 813-281-9000

Email:jmagri@merklemagri.com

APPENDIX

TABLE OF CONTENTS

Opinion of the United States Court of Appeals,

September 1, 2023………......................................1a

Judgment of the District Court for the Middle District

of Florida, March 17, 2022....................................4a

Order of the United States Court of Appeals,

December 15, 2023................................................5a

Jury Instructions March 16, 2022…..……………….7a

Verdict Form March 16, 2022…..……………………23a

Motion to Supplement Record Granted in ¶1 of

December 15, 2023 Order………………………...26a

a. Secretary’s Hausburg Jury Instructions

1. Eleventh Circuit Standard Jury Instruction

4.22…………………………………………..30a

2. Defendant’s Alternative based on McLain’s jury

instructions………….…………………………34a

Sly/Hollingsworth Order of October 12,

2023……………………………………………........42a

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 22-11667

D.C. Docket No. 8:17-cv-01283-WFJ-CPT

DENNIS MCLAIN,

Plaintiff-Appellant,

versus

SECRETARY, DEPARTMENT OF VETERANS

AFFAIRS,

Defendant-Appellee.

Appeal from the United States District Court

for the Middle District of Florida

(September 1, 2023)

OPINION

Before WILSON, GRANT, and BRASHER, Circuit

Judges.

PER CURIAM:

Dennis McLain appeals from a jury verdict for the

Secretary of Veterans Affairs and against McLain on

his claims of retaliation and hostile work environment

under Title VII. McLain claimed he was retaliated

against and subjected to a hostile work environment

by the VA hospital where he worked as a nurse

because he engaged in protected activity as a

representative of the nurse's union.

After a trial, the jury found for the Secretary on

both counts. On a special verdict form, the jury found

that McLain was not "treated differently!] because of

his protected EEO activity and protected activity

played [no] part in the way one or more personnel

actions were made." Likewise, the jury found that the

Secretary did not "harass [McLain) because of his

protected EEO activity."

On appeal, McLain raises three arguments. First,

he argues that the district court's jury instructions

misstated the law of causation under Babb v. Wilkie,

140 S. Ct. 1168 (2020) and Babb v. Secretary, 992 F.3d

1193 (2021). Specifically, he argues that the district

court's instructions erroneously placed the burden on

him to establish more than the mere presence of

discriminatory considerations in his employer's

decision-making process. Second, he argues the

district court erred in its hostile work environment

instruction. Third, he argues that the district court

abused its discretion in allowing the Secretary to

admit certain evidence for the jury's consideration.

We will not disturb a jury's verdict for an

instructional or evidentiary error unless it affected

the outcome of the proceedings. See Watkins .v City of

Montgomery, Ala., 75 F.3d 1280, 1289-90 (11th Cir.

2014); Burchfield v. CSH Transp., Inc., 636 F.3d 1330,

1333 (11th Cir. 2011). After careful consideration of

the record and the parties' briefs, and with the benefit

of oral argument, we find no prejudicial error in the

district court's jury instructions or evidentiary

rulings. Accordingly, we affirm.

AFFIRMED.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

Case No. 8:17-cv-1283-WFJ-CPT

DENNIS MCLAIN,

DAVID J. SHULKIN, SECRETARY OF THE

DEPARTMENT OF VETERANS AFFAIRS,

JUDGMENT IN A CIVIL CASE

(March 17, 2022)

Jury Verdict.

This action came before the Court for trial by jury.

The issues have been tried and the jury has rendered

its verdict.

IT IS ORDERED AND ADJUDGED that

Judgment is in favor of the Defendant.

March 17, 2022

ELIZABETH M. WARREN CLERK

/s/C. Houston

(By) C. Houston, Deputy Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 22-11667

DENNIS MCLAIN,

Plaintiff-Appellant,

versus

SECRETARY, DEPARTMENT OF VETERANS

AFFAIRS,

Defendant-Appellee.

Appeal from the United States District Court

for the Middle District of Florida

[Filed: December 15, 2023]

ON PETITION(S) FOR REHEARING AND

PETITION(S) FOR REHEARING EN BANC

Before WILSON, GRANT, and BRASHER, Circuit

Judges.

PER CURIAM:

Appellant's motion to supplement the addendum

to his Petition for Panel Rehearing and Rehearing En

Banc is GRANTED.

The Petition for Rehearing En Banc is DENIED,

no judge in regular active service on the Court having

requested that the Court be polled on rehearing en

banc. FRAP 35. The Petition for Panel Rehearing also

is DENIED. FRAP 40.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

Case No. 8:17-cv-1283

DENNIS MCLAIN,

DAVID J. SHULKIN, SECRETARY, DEPARTMENT

OF VETERANS AFFAIRS,

REPORTER’S OFFICIAL TRANSCRIPT OF THE

JURY TRIAL – DAY 9

HELD BEFORE THE HONORABLE WILLIAM F.

JUNG, UNITED STATES DISTRICT JUDGE

(March 16, 2022)

FOR THE PLAINTIFF:

Joseph D. Magri

Meagan Culpepper

Merkle Magri & Meythaler PA

5601 Mariner Street, Suite 400

813:281.9000

FOR THE DEFENDANT:

Michael Kenneth

David P. Sullivan

US Attorney’s Office – FLM

400 N. Tampa Street, Suite 400

Tampa, FL 33602

813.274.6000

Official Court Reporter:

Tana J. Hess, CRR, FCRR, RMR

U.S. District Court Reporter

Middle District of Florida

Tampa Division

801 N. Florida Avenue

Tampa, FL 33602

813.301.5207

tana_hess@flmd.uscourts.gov

Proceedings recorded by mechanical stenography

using computer-aided transcription software.

THE COURT: All right. They're all back. Let's

3 bring them in.

(Jury in at 1:22 p.m.)

THE COURT: You all probably will never eat

8 another Jimmy John and Domino's in your life. I'm

9 sorry. At least the price was right.

Ladies and gentlemen of the jury, it ' s my duty

12 to instruct you on the rules of law you must use in

13 deciding this case. Now, I will give this copy and the

14 verdict form to Mr. Houston to give to you and other

15 copies he can make if you want, so you can take

16 notes now if you want, but you will have my copy,

17 and plus any other Xeroxes if you want them.

When I finish, you'll go to the jury room and

2 begin

your

discussions

sometimes

called

3 deliberations. There may be a second set of

4 instructions and legal questionnaire I give you, but

5 this is the first of those. Your decision -- this is the

6 liability determination.

Your decision must be based on the evidence

9 presented here. You must not be influenced in any

10 way by either sympathy for or prejudice against

11 anyone.

You must follow the law as I explain it here even

14 if you don't agree with the law, and you have to

15 follow all of my instructions as a whole. You must

16 not single out or disregard any of the instructions

17 on the law.

The fact that a governmental agency or entity is

20 involved as a party must not affect your decision in

21 any way. A governmental agency and all other

22 persons stand equal before the law and must be

23 dealt with as equals in a court of justice. When a

24 governmental agency is involved, of course, it may

25 only act through people as its employees, and in

26 general a governmental agency is responsible

27 under the law for the acts and statements of its

28 employees that are made within the scope of their

29 duties as employees of the governmental agency.

As I said, you must consider only the evidence

32 that I’ve submitted in the case. Evidence includes

33 the testimony of witnesses, including transcripts

34 read in court and exhibits admitted, but anything

1 the lawyers say is not evidence, and isn’t binding on

2 you.

You shouldn’t assume from anything I’ve said

5 that I have any opinion about any factual issue in

6 the case. Except for my instructions to you on the

7 law, you should disregard anything I may have said

8 during the trial and arriving at your own decision

9 about the facts.

Your own recollection and interpretation of the

12 evidence is what matters. In considering the

13 evidence, you may use reasoning and common

14 sense to make deductions and reach conclusions.

15 You shouldn’t be concerned about whether evidence

16 is direct or circumstantial.

Direct evidence is the testimony of a person who

19 asserts that he, or she has actual knowledge of a

20 fact such as an eyewitness. Circumstantial

21 evidence is proof of a chain of facts and

22 circumstances that tend to prove or disprove a fact.

23 There’s no legal difference in the weight you may

24 give to either direct or circumstantial evidence.

When I say you must consider all the evidence,

27 I don’t mean that you must accept all the evidence

28 as true and accurate. You should decide whether

29 you believe what each witness had to say and how

30 important that testimony was. In making that

31 decision, you may believe or disbelieve any witness

32 in whole or in part. The number of witnesses

33 testifying concerning a particular point doesn’t

34 necessarily matter.

10a

To decide whether you believe any witness, I

2 suggest you ask yourself a few questions: Did the

3 witness impress you as one who was telling the

4 truth? Did the witness have a particular reason not

5 to tell the truth? Did the witness have a personal

6 interest in the outcome of the case? Did the witness

7 seem to have a good memory? Did the witness have

8 the opportunity and ability to accurately observe

9 the things he or she testified about? Did the witness

10 appear to understand the questions clearly and

11 answer them directly? Did the witness's testimony

12 differ from other testimony or other evidence?

You should also ask yourself whether there was

15 evidence that a witness testified falsely about an

16 important fact, and ask whether there was evidence

17 that at some other time a witness said or did

18 something or didn't say or do something that was

19 different from the testimony the witness gave

20 during this trial.

But keep in mind that a simple mistake doesn't

23 mean a witness wasn't telling the truth as he or she

24 remembers it. People naturally tend to forget some

25 things or remember them inaccurately. So if a

26 witness misstated something, you must decide

27 whether it was because of an innocent lapse of

28 memory, or an intentional deception. The

29 significance of your decision may depend on

30 whether the misstatement is about an important

31 fact or about an unimportant detail.

In this case, it's the responsibility of the plaintiff

34 to prove every essential part of his claims by a

35 preponderance of the evidence. This is sometimes

11a

1 called the burden of proof or burden of persuasion.

2 A preponderance of the evidence simply means an

3 amount of evidence that is enough to persuade you

4 that the Plaintiff's claims are more likely true than

5 not true.

If the proof fails to establish any essential part

8 of a claim or contention by a preponderance of the

9 evidence, you should find against the plaintiff.

10 When more than one claim is involved, you should

11 consider each claim separately.

In deciding whether any fact has been proved by

14 a preponderance of the evidence, you may consider

15 the testimony of all witnesses, regardless of who

16 may have called them, and all of the exhibits

17 received in evidence, regardless of who may have

18 produced them.

If the proof fails to establish any essential part

21 of Plaintiff claim by a preponderance of the

22 evidence, you should find for the Defendant as to

23 that claim.

Even if Plaintiff proves his claims by

26 preponderance of the evidence, Defendant can

27 prevail in this case if he proves an affirmative

28 defense by a preponderance of the evidence. I

29 caution you that the Defendant does not have to

30 disprove Plaintiff claims, but if Defendant raises an

31 affirmative defense, the only way Defendant can

32 prevail on that specific defense is if the Defendant

33 proves that defense by preponderance of the

34 evidence.

12a

Your verdict must be unanimous. In other

2 words, you must all agree. Your deliberations are

3 secret, and you’ll never have to explain your verdict

4 to anyone.

Each of you must decide the case for yourself,

7 but only after fully considering the evidence with

8 other jurors. So you must discuss the case with one

9 another and try to reach an agreement. While

10 you’re discussing the case, don’t hesitate to re11 examine your own opinion and change your mind if

12 you become convinced that you were wrong. Don’t

13 give up your belief just because others think

14 differently or because you simply want to get the

15 case over with.

Remember that in a real way, your judges,

18 judges of the facts. Your only interest is to seek the

19 truth from evidence in the case.

In this case, the Plaintiff claims that the

22 Defendant retaliated against Plaintiff because he

23 took steps to enforce his lawful rights and/or those

24 of others under Title VII. Title VII provides equal

25 employment opportunity or EEO rights to

26 employees. Laws that prohibit discrimination in

27 the workplace also prohibit an employer from

28 taking any retaliatory action against an employee

29 because the employee has asserted rights or made

30 complaints under those EEO laws.

Plaintiff claims he was prevented from

33 obtaining or competing for Chief Nurse positions

34 because he engaged in EEO activity and opposed

35 discrimination against other employees. Plaintiff

13a

1 claims that Defendant did not interview or select

2 him for the position of Chief Nurse Mental Health,

3 Plaintiff was not interviewed or selected for the

4 Chief Nurse of Operations, and Plaintiff was not

5 selected for the Chief Nurse of Acute Care.

Plaintiff asserts Defendant prevented him from

8 obtaining or competing for one or more positions or

9 withheld facts to avoid hiring him for an open

10 position or disqualified him from a position for

11 retaliatory or discriminatory reasons. Such

12 activities, if proven, constitute adverse employment

13 actions.

Defendant denies Plaintiff’s claims and asserts

16 that Defendant evaluated Plaintiff consistently

17 with other applicants, and he was not selected for

18 the positions because he was not the best applicant.

To succeeded on his claim, Plaintiff must prove

21 each of the following facts by a preponderance of the

22 evidence: First, Plaintiff engaged in protected EEO

23 activity; second, Defendant then took an adverse

24 employment action; third, Defendant took the

25 adverse employment action because of Plaintiff’s

26 protected EEO activity; and fourth, Plaintiff

27 suffered damages, which we will address damages

28 in a second presentation if you find liability.

I will lay this out in the form for you on this

31 portion of the case. It should be very self32 explanatory.

For the first element, Plaintiff claims that he

35 engaged and protected EEO activity when he

14a

1 participated in his and other employees’ EEO

2 activity and opposed discrimination or retaliation

3 against himself and other employees. He alleges

4 this resulted in denial of several promotions for

5 which he was qualified, derailed his career, and

6 prevented him from advancing. If you find that the

7 Plaintiff filed complaints for retaliation or

8 retaliatory hostile work environment, that action is

9 protected activity. The first element, Plaintiff also

10 claims he was engaged and protected EEO activity

11 when he imposed – opposed the Defendant’s

12 discrimination against other employees. Those

13 actions are protected activity if it was based on

14 Plaintiff’s good faith, reasonable belief that

15 Defendant discriminated against other employees.

Plaintiff had a good faith belief if he honestly

18 believed that Defendant discriminated against

19 others. Plaintiff had a reasonable belief if a

20 reasonable person would under the circumstances

21 believe that Defendant discriminated against

22 others because of race or retaliated against others

23 because of EEO activity.

Plaintiff does not have to prove that Defendant

26 actually discriminated or retaliated against others,

27 but he must prove that he had a good faith,

28 reasonable belief that Defendant did so. In this

29 case, Defendant acknowledges that Plaintiff

30 engaged and protected EEO activity.

For the second element, Plaintiff claims that

33 Defendant took adverse employment action against

34 him as described above. For a retaliation claim, an

35 adverse employment action is any type of action

15a

1 that would have made a reasonable employee

2 reluctant to make or support a charge of

3 discrimination, or put another way, if a reasonable

4 employee would be less likely to complain about or

5 oppose alleged discrimination because he knew

6 that Defendant would take one or more of these

7 adverse actions against him for complaining. If the

8 employment action would not make it less likely for

9 a reasonable employee to make complaints about or

10 oppose the alleged discrimination, it is not an

11 adverse employment action. In this case, Defendant

12 acknowledges that the non-selection of Plaintiff for

13 the Chief Nurse positions of Mental Health,

14 Operations, and Acute Care qualify as adverse

15 employment actions.

For the third element, if you find that Plaintiff

18 engaged and protected EEO activity and that

19 Defendant took an adverse employment action

20 against him, you must decide whether Defendant

21 took that action because of Plaintiff’s protected

22 activity. Put another way, you must decide whether

23 Plaintiff’s protected activity was a material – a

24 material reason for Defendant’s decision.

To determine that Defendant took an adverse

27 employment action because of Plaintiff’s protected

28 EEO activity, you must decide that Defendant

29 would not have taken that action – the action had

30 Plaintiff not engaged in the protected EEO activity,

31 but everything else had been the same.

For this third element, Plaintiff claims he

34 engaged in protected activity, and that Plaintiff’s

35 protected activity was a part of the way the

16a

1 Defendant made a personnel action or actions.

2 Federal-Sector law command that personnel

3 actions shall be made free from any discrimination.

4 Discrimination in this context included retaliation

5 and means differential treatment; thus, imposes

6 the duty of making – that is, rendering or producing

7 – personnel actions untainted by any consideration

8 of retaliation. In other words, his protected activity

9 cannot play any part in the – in the way the

10 decision was made.

To determine that Plaintiff’s protected EEO

13 activity played a part in the way one or more

14 employment decisions was made, you must decide

15 that Defendant treated Plaintiff differently as part

16 of the decision that was made and would not have

17 treated Plaintiff that way if Plaintiff had not

18 engaged and protected activity, but everything else

19 had been the same.

Defendant denies that it shows not to interview

22 Plaintiff for the first two positions or select Plaintiff

23 for any of the three Chief Nurse positions because

24 of Plaintiff’s protected EEO activity, and Defendant

25 – and Defendant claims it evaluated Plaintiff

26 consistently with the other applicants and made

27 the selections based on who it believed was the best

28 applicant.

An employer may not take an adverse action

31 against an employee because of the employees

32 protected EEO activity, but an employer may

33 choose not to interview or select any employee for

34 any other reason, good or bad, fair or unfair. If you

35 believe Defendant’s reasons for its decision and you

17a

1 find that Defendant did not make its decision

2 because of Plaintiff’s protected EEO activity, you

3 must not second-guess that decision, and you must

4 not substitute your own judgment for Defendant’s

5 judgment, even if you did not agree with it.

As I have explained, Plaintiff has the burden to

8 prove that Defendant’s decisions not to promote or

9 interview Plaintiff were because of Plaintiff’s

10 protected EEO activity.

I have explained to you, that evidence can be

13 direct or circumstantial. To decide whether

14 Defendant’s decisions not to promote or interview

15 Plaintiff were because of his protected EEO

16 activity, you may consider the circumstances of

17 Defendant’s decisions. For example, you may

18 consider whether you believe the reasons that

19 Defendant gave for the decisions. If you do not

20 believe the reasons that it gave for the decisions,

21 you may consider whether reason reasons were so

22 unbelievable that they were a cover-up to hide the

23 true retaliatory reasons for the decisions.

Plaintiff claims that the Defendant’s decisions

26 not to promote or interview Plaintiff were based on

27 the recommendation of Plaintiff’s supervisor,

28 Laureen Doloresco, and that Plaintiff’s your

29 activity was a determinative influence in the

30 supervisor’s recommendation. If Ms. Doloresco

31 recommended that the Defendant declined to

32 promote or interview Plaintiff and Plaintiff’s

33 activity was a determinative influence in

34 Doloresco’s recommendation, her recommendation

35 can be a determinative influence behind the

18a

1 Defendant’s employment decision, even if she did

2 not make the ultimate decision to decline to

3 promote or interview Plaintiff.

But Plaintiff’s EEO activity can be a

6 determinative influence in Defendant’s decision

7 decision only if you find that the Plaintiff has

8 proven each of the following by a preponderance of

9 the evidence: (a), Ms. Doloresco acted with the

10 intent to make Defendant deny a promotion or

11 interview to Plaintiff, which means that Ms.

12 Doloresco wanted Defendant to deny a promotion or

13 interview to Plaintiff, or she believed that her

14 actions would cause Defendant to deny a promotion

15 or interview to Plaintiff; (b), Plaintiff’s EEO activity

16 was a material reason for Ms. Doloresco’s actions;

17 and (c), Ms. Doloresco’s actions were the

18 determinative influence or determinative cause of

19 Plaintiff’s denial of promotion or interview.

In this case, Plaintiff claims that Defendant

22 violated the Federal Civil Rights statute that

23 prohibits employers from retaliating against

24 employees in the terms and conditions of

25 employment because of their protected EEO

26 activity. These statutes prohibit the creation of a

27 hostile work environment caused by harassment

28 because of Plaintiff’s protected EEO activity.

Specifically, Plaintiff claims that his supervisor

31 harassed him because of his protected EEO

32 activity, and that harassment created a hostile

33 work environment.

19a

Defendant denies Plaintiff’s claim and asserts

2 that Plaintiff has not harassed – was not harassed

3 and was not subject to a retaliatory hostile

4 environment because of his EEO activity.

To succeeded on his claim, Plaintiff must prove

7 the following facts by a preponderance of the

8 evidence: One, Plaintiff’s supervisor harassed him

9 because of his protected EEO activities; two, the

10 harassment created a hostile work environment for

11 Plaintiff.

In the verdict form that I will explain in a

14 moment you’ll be asked to answer questions about

15 these factual issues.

A retaliatory hostile environment created by

18 harassment because of Plaintiff’s EEO activity

19 exists if: (a), Plaintiff was subject to offensive acts

20 or statements about or because of his protected

21 EEO activity, even if they were not specifically

22 directed to him; (b), Plaintiff did not welcome the

23 offensive acts or statements, which means that

24 Plaintiff did not directly or indirectly invite or

25 solicit them by his own act or statements; (c), the

26 offensive act or statements materially altered the

27 terms or conditions of Plaintiff’s employment; (d), a

28 reasonable person – not someone who’s overly

29 sensitive – would have found the offensive acts or

30 statements materially altered the terms or

31 conditions of the person’s employment enough to

32 dissuade a reasonable person from making or

33 supporting a charge of discrimination; and (e),

34 Plaintiff believed that the offensive acts or

20a

1 statements materially altered the terms or

2 conditions of his employment.

Actions claimed to be taken against Gina

5 McLain, if proven to be retaliatory because of

6 Plaintiff’s protected EEO activity, can constitute

7 unlawful retaliation against Plaintiff under Title

8 VII because a reasonable worker might be

9 dissuaded from engaging in protected activity if he

10 knew his wife would be retaliated against.

Concerning

the

definition

priority

13 consideration, that term is commonly understood to

14 mean the applicant must be considered before any

15 formal action to recruit for the vacancy and must be

16 given bona fide consideration on the applicant’s

17 own merit without competition from other potential

18 candidates. Priority consideration does not

19 guarantee selection.

Okay. So that’s the legal instructions. It’s, you

22 know, pretty significant instructions. You have to

23 consider them as whole, but I would respectfully

24 suggest the verdict form, which you will have, Will

25 guide you through the questions on this liability

26 phase, and then you can – if you have questions

27 about that verdict form, you can refer back to the

28 instructions.

So I’ll ask you to take the instructions and the

31 verdict form with you to the jury room. When your

32 verdict is unanimous, you’ll fill that out, sign it, and

33 date it, and then you’ll return to the courtroom. If

34 you wish to communicate with me at any time,

35 please write down any message or question. You

21a

1 don’t have to write anything down, but if you have

2 such a message or question, please write it down

3 and give it to Officer Arch or Mr. Houston, and

4 they’ll bring it to me, and I’ll respond as promptly

5 as possible. Please know I might have to talk to the

6 lawyers if there’s a legal issue, and I’ll respond as

7 quickly as I can to you.

I do caution you if you write me a note, don’t tell

10 me what your vote is or whether you voted one way

11 or the other or how you’re resolving matters. That

12 should remain in the jury room and not be shared

13 with anybody.

So you’ll pick one member as your foreperson

16 and deliberate and bring a true, fair, and

17 unanimous verdict. Thank you. Any – any points for

18 sidebar?

22a

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

Case No. 8:17-cv-1283-WFJ-CPT

DENNIS MCLAIN,

Plaintiff,

DENIS MCDONOUGH, SECRETARY OF THE

DEPARTMENT OF VETERANS AFFAIRS,

Defendant.

VERDICT FORM

(March 16, 2022)

VERDICT FORM

RETALIATION

Do you find from a preponderance of the

evidence:

1. That Plaintiff engaged in protected EEO

activity?

Answer Yes or No

YES

23a

If your answer is “No,” skip questions 2, 3, and 4

and go to question 5. If your answer is “Yes,” go to the

next question.

2. That Defendant made one or more of the

personnel actions of which the Plaintiff complains?

Answer Yes or No

YES

If your answer is “No,” skip questions 3 and 4 and

go to question 5. If your answer is “Yes,” go to the next

question.

3. That Plaintff was treated differently, because of

his protected EEO activity and protected activity

played a part in the way one or more personnel actions

were made?

Answer Yes or No

If your answer is “No,” skip question 4 and go to

question 5. If your answer is “Yes,” go to the next

question.

4. The Defendant would have made the same

decision on each of the personnel actions of which the

Plaintiff complaints, even if the Plaintiff had not

engaged in protected EEO activity.

Answer Yes or No

RETALIATORY HOSTILE WORK

ENVIRONMENT

24a

Do you find from a preponderance of the

evidence:

5. Did the Defendant harass Plaintiff because of

his protected EEO activity?

Answer Yes or No

If your answer is “No,” skip question 6. If your

answer is “Yes,” go to the next question.

6. Did the harassment create a hostile work

environment?

Answer Yes or No

SO SAY WE ALL

/s/________________

Foreperson’s signature

DATE: 3-16-2022

25a

UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

No. 22-11667-GG

D.C. Docket No. 8:17-cv-01283-WFJ-CPT

DENNIS MCLAIN,

Plaintiff-Appellant,

versus

DENIS MCDONOUGH, SECRETARY, UNITED

STATES DEPARTMENT OF VETERANS AFFAIRS,

Defendant-Appellee.

On Appeal from the United States District Court

for the Middle District of Florida

Case No.: 8:17-Cv-01283-WFJ-CPT

(November 20, 2023)

UNOPPOSED MOTION FOR LEAVE TO

SUPPLEMENT THE ADDENDUM TO THE

PETITION FOR PANEL REHEARING AND

REHEARING EN BANC

COMES NOW, the Petitioner, Dennis McLain, and

files this Unopposed Motion for Leave to Supplement

the Addendum to the Petition for Panel Rehearing

and Rehearing En Banc.

26a

1. On October 16, 2023 Petitioner filed the above

referenced Petition, with an Addendum containing

three relevant documents. Petitioner has recently

received two documents that are relevant to

arguments made in the Petition, namely: (1) the most

recent set of Jury Instructions provided by the

Secretary in a Title VI retaliation case, Dartanya

Hausburg

Denis

McDonough,

Secretary,

Department of Veterans Affairs, Case No. 8:20-cv02300-JSS, and (2) an order denying what the

Defendant is currently claiming in Hausburg, is all

404(b) evidence in a case which si set for a multi-week

trial for September, 2024. Rosa Sly and Devona

Hollingsworth v. Denis McDonough, Secretary,

Department of Veterans Affairs, Case No. 8:17-cv1868-AAS.

2. In Hausburg, the parties filed jury instructions

with memoranda because the parties and the trial

Court wanted to have a hearing and understand what

the basic Jury Instructions were before a multi-week

trial begins at the end of January, 2024. As set forth

on Page 14 of 29 of the Petition for Panel Rehearing

and Rehearing En Banc, we have argued that one of

the reasons there should be a rehearing on the jury

instructions is because the September 1, 2023 ruling

will result in the government attempting to duplicate,

at least the McLain instructions in future cases. We

have attached the governments instructions in

Hausburg and also Mr. Hausburg's Jury Instructions.

The indexes list the pages where the Title VI

retaliation and retaliatory hostile work environment

instructions are. The Title VII instructions are the

issue. For convenience and without intending to be

presumptuous, they are attached as Addendum Four.

27a

The Court can note that the government provided

alternative instructions. The first instructions were

the Gross and Nassar instructions as set forth in 4.22

of the Eleventh Circuit Pattern Civil Jury

Instructions. The alternative instructions were based

on the McLain instructions.

3. The Order in Sly et al excludes the testimony of

twenty Fed. Rule Evid. 404(b) witnesses in a case in

which the Plaintiffs allege that the principal

responsible management official (RMO) is someone

who was involved in a self-styled scheme to destroy

the careers and reputations of people that engaged in

EEO activity brought by four Plaintiffs. The

government lost all four cases, two completely and two

in part. They appealed the two cases where the

employees had prevailed in part. See Gowski v. Peake,

682 F.3d 1299 (11" Cir. 2012) (recognized a Federal

employee right to bring a retaliatory hostile work

environment claim; but see, as to the materiality of

the action taken Monaghan v. Worldpay U.S. Inc., 955

F.3d 855 (11th Cir. 2020)); Babb .v Sec'y, 992 F.3d

1193, 1196 (11th Cir. 2021). The RMO (Kristine

Brown) involved in Sly et al was an RMO in roughly

20 cases following Gowski v. Peake, 682 F.3d 1299

(11th Cir. 2012). These included several that were

ongoing at the time the retaliation started in the Sly

case. Of those cases all settled and one resulted in an

administrative determination of liability in a case in

which Brown was the RMO. The witness identified as

Roxanne Bronner was formerly known as Roxanne

Lainhart and was one of the four plaintiffs who

prevailed in Gowski .v Peake, 682 F.3d 1299 (11th Cir.

2012). In Gowski, she testified Brown encouraged her

to become part of the scheme. The scheme has

28a

continued for years as the Brown rose from an

assistant to the Chief of Staff to an assistant, an

associate and deputy director of the facility. All of the

other witnesses and many of the original Gowski

RMOs were involved in cases through that time

period. Repeated retaliation by high levels of any

agency has dramatic long-term effects on the culture

of the agency.

4. The Sly decision, as well as McLain, Terrell and

Bell, are being cited in other cases (i.e., Hausburg) to

influence discretion on the admissibility of

corroborative evidence such as 404(b). This is relevant

to the arguments on pages 15-16 and fn 5 of the

Petition.

5. The undersigned has consulted with the

counsel for the Appellee who graciously advised the

undersigned that he has no objections to

supplementing the record with these materials.

WHEREFORE, Appellant, Dennis McLain

respectfully requests that the Unopposed Motion for

Leave to Supplement the Addendum to the Petition

for Panel Rehearing and Rehearing En Banc be

granted.

Respectfully submitted,

/s/ Joseph Magri

29a

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

Case No. 8:20-cv-02300-JSS

DARTANYA HAUSBURG,

DENIS MCDONOUGH, SECRETARY,

DEPARTMENT OF VETERANS AFFAIRS,

DEFENDANT’S PROPOSED JURY

INSTRUCTIONS

(October 30, 2023)

Defendant’s Proposed Retaliation Instruction –

Count I

4.22 Retaliation - Section 1981, Title VII,

ADEA, ADA, and FLSA

In this case, Mr. Hausburg claims that the VA

retaliated against him because he took steps to

enforce his lawful rights under Title VII. Title VI

provides Equal Employment Opportunity or "EEO"

rights to employees.

30a

Laws that prohibit discrimination in the workplace

also prohibit an employer from taking any retaliatory

action against an employee because the employee has

asserted rights or made complaints under those laws.

Mr. Hausburg claims that the VA made improper

changes to his annual leave, denied his request for an

accommodation, denied his request for retirement,

terminated him, and failed to pay him back pay and

other benefits after his termination was mitigated to

a reprimand because Mr. Hausburg filed Equal

Employment Opportunity Commission ("EEO")

complaints. The VA denies Mr. Hausburg's claims.

To succeed on his claim, Mr. Hausburg must prove

each of the following facts by a preponderance of the

evidence:

First: That Mr. Hausburg engaged in a protected

activity under the FMLA;

Second: That the VA then took an adverse

employment action;

Third: That the VA took the adverse employment

action because of Mr. Hausburg's protected

activity; and

Fourth: That Mr. Hausburg suffered damages

because of the adverse employment action.

In the verdict form that I will explain in a moment,

you will be asked to answer questions about these

factual issues.

For the first element, Mr. Hausburg claims that he

engaged in protected activity when he filed three EEO

31a

complaints and opposed discrimination and

retaliation against himself. If you find that Mr.

Hausburg filed an EEO complaint then that action is

"protected activity." In this case, the VA acknowledges

that Mr. Hausburg engaged in protected EEO activity

each time he filed an EEO complaint. Mr. Hausburg

also claims that he engaged in protected activity when

he opposed discrimination and retaliation against

himself. A plaintiff has a "good faith" belief if he

honestly believed that the defendant discriminated

and retaliated against him. A plaintiff has a

"reasonable" belief if a reasonable person would,

under the circumstances, believe that a defendant

discriminated and retaliated against him because of

his EEO activity. For this part of the analysis, Mr.

Hausburg does not have to prove that the VA actually

discriminated or retaliated against him. But he must

prove that he had a good-faith, reasonable belief that

the VA did so.

For the second element, Mr. Hausburg claims that

the VA took adverse employment actions against him

when the VA made improper changes to his annual

leave, denied his request for an accommodation,

denied his request for retirement, terminated him,

and failed to pay him back pay and other benefits after

his termination was mitigated to a reprimand. You

must decide whether these actions were adverse

employment actions.

An "adverse employment action" is any type of

action that would have made a reasonable employee

reluctant to make or support a charge of

discrimination. Put another way, if a reasonable

employee would be less likely to complain about or

oppose alleged discrimination because he knew that

32a

the VA would take the action, then that action is an

adverse employment action. If the employment action

would not make it less likely for a reasonable

employee to make complaints about or oppose the

alleged discrimination, it is not an adverse

employment action.

For the third element, if you find that Mr.

Hausburg engaged in protected activity and that the

VA took an adverse employment action against him,

you must decide whether the VA took that action

because of Mr. Hausburg's protected activity. Put

another way, you must decide whether Mr.

Hausburg's protected activity was the main reason for

the VA's decision.

To determine that the VA took an adverse

employment action because of Mr. Hausburg's

protected activity, you must decide that the VA would

not have taken the action had Mr. Hausburg not

engaged in the protected activity but everything else

had been the same.

The VA claims that it did not take any of the

actions Mr. Hausburg claims were adverse

employment actions because of his protected EEO

activity. The VA claims that it did not improperly

change Mr. Hausburg's annual leave and that it fully

paid Mr. Hausburg for his backpay and benefits

during his termination. The VA further claims that it

took the remaining actions for reasons other than Mr.

Hausburg's protected activity. An employer may not

take an adverse action against an employee because

of the employee's protected activity. But an employer

may make changes to annual leave, deny requests for

accommodation or retirement, terminate employees,

33a

and fail to pay back pay and other benefits after a

termination is mitigated to a reprimand for any other

reason – good or bad, fair or unfair. If you believe the

VA's reasons for its decisions, and you find that the

VA did not make its decisions because of Mr.

Hausburg's protected activity, you must not second

guess that decision, and you must not substitute your

own judgment for the VA's judgment – even if you do

not agree with it.

For the fourth element, you must decide whether

the VA's acts were the proximate cause of damages

that Mr. Hausburg sustained. Put another way, you

must decide, if the VA had not made improper changes

to his annual leave, denied his request for an

accommodation and his request for retirement, and

terminated him, and failed to pay him back pay and

other benefits after his termination was mitigated to

a reprimand, would Mr. Hausburg's damages have

occurred?

If you find that the VA's acts were the proximate

cause of damages that Mr. Hausburg sustained, you

must determine the amount of his damages.

Defendant’s Proposed Alternative Retaliation

Instruction – Count I

4.22 Retaliation – Title VII [Changes from

Pattern Jury Instructions in deletions and

additions]

In this case, Mr. Hausburg claims that the VA

retaliated against him because he took steps to

34a

enforce his lawful rights under Title VII. Title VI

provides Equal Employment Opportunity or "EEO"

rights to employees.

Laws that prohibit discrimination ni the workplace

also prohibit an employer from taking any retaliatory

action against an employee because the employee has

asserted rights or made complaints under those EEO

laws.

Mr. Hausburg claims that Defendant made

improper changes to his annual leave, denied his

request for an accommodation and his request for

retirement, and terminated him, and failed to pay him

back pay and other benefits after his termination was

mitigated ot a reprimand because he filed three EEO

complaints and opposed discrimination and

retaliation against himself. The VA claims that it did

not take any of the actions Mr. Hausburg claims were

adverse employment actions because of his protected

EEO activity. The VA claims that it did not

improperly change Mr. Hausburg's annual leave and

that ti fully paid Mr. Hausburg for his backpay and

benefits during his termination. The VA further

claims that it took the remaining actions for reasons

other than Mr. Hausburg's protected activity and did

not treat Mr. Hausburg differently in the process of

making these personnel decisions. To succeed on his

claim, Mr. Hausburg must prove each of the following

facts by a preponderance of the evidence:

First: That Mr. Hausburg engaged in protected

activity;

35a

Second: The VA treated Mr. Hausburg differently

during the processes and decisions of the

adverse employment actions.

Third: The VA took the adverse employment action

treated Mr. Hausburg differently during the

processes and decisions of the adverse

employment actions because of Mr. Hausburg’s

protected activity; and

Fourth: Mr. Hausburg suffered damages because

of the adverse employment action.

In the verdict form that I will explain in a moment,

you will be asked to answer questions about these

factual issues.

For the first element, Mr. Hausburg claims that he

engaged in protected activity when he filed three EEO

complaints and opposed discrimination and

retaliation against himself. If you find that Mr.

Hausburg filed an EEO complaint then that action is

"protected activity." In this case, the VA acknowledges

that Mr. Hausburg engaged in protected EEO activity

each time he filed an EEO complaint. Mr. Hausburg

also claims that he engaged in protected activity when

he opposed discrimination and retaliation against

himself. A plaintiff has a "good faith" belief if he

honestly believed that the defendant discriminated

and retaliated against him. A plaintiff has a

"reasonable" belief if a reasonable person would,

under the circumstances, believe that a defendant

discriminated and retaliated against him because of

his EEO activity. For this part of the analysis, Mr.

Hausburg does not have to prove that the VA actually

discriminated or retaliated against him. But he must

36a

prove that he had a good-faith, reasonable belief that

the VA did so.

For the second element, Mr. Hausburg claims that

the VA took adverse employment actions against him

when it made improper changes to his annual leave,

denied his request for an accommodation and his

request for retirement, and terminated him, and

failed to pay him back pay and other benefits after his

termination was mitigated to a reprimand. You must

decide whether these actions were an adverse

employment action.

For a retaliation claim, an "adverse employment

action" is any type of action that would have made a

reasonable employee reluctant to make or support a

charge of discrimination. Put another way, if a

reasonable employee would be less likely to complain

about or oppose alleged discrimination because he

knew that the VA would take one or more of these

actions against him then that is an "adverse

employment action." If the employment action would

not make it less likely for a reasonable employee to

make complaints about or oppose the alleged

discrimination, then it is not an adverse employment

action.

Mr. Hausburg claims that he engaged in protected

activity and that his protected activity was a part of

the way the VA made a personnel action or actions.

Federal-sector law commands that "personnel

actions" "shall be made free from any discrimination."

Discrimination in this context includes retaliation and

means "differential treatment." Thus, it imposes the

duty of making — that is rendering or producing —

personnel actions untainted by any consideration of

37a

retaliation. In other words, Mr. Hausburg's protected

EEO activity cannot play any part in the way the

decision was made.

To determine that Mr. Hausburg's protected EEO

activity played a part in the way one or more

employment decisions was made, you must decide

that the VA treated Mr. Hausburg differently as part

of the decision that was made and would not have

treated Mr. Hausburg that way if Mr. Hausburg had

not engaged in the protected EEO activity but

everything else had been the same.

The VA denies that treated Mr. Hausburg

differently in the process of making the personnel

decisions of which he complaints. The VA claims that

it did not take any of the actions Mr. Hausburg claims

were adverse employment actions because of his

protected EEO activity. The VA claims that it did not

improperly change Mr. Hausburg's annual leave and

that it fully paid Mr. Hausburg for his backpay and

benefits during his termination. The VA further

claims that it took the remaining actions for reasons

other than Mr. Hausburg's protected activity and did

not treat Mr. Hausburg differently in the process of

making these personnel decisions. An employer may

not take an adverse action against an employee

because of the employee's protected activity. But an

employer may choose to adjust leave, deny an

accommodation or retirement, terminate an

employee, or choose how to respond when a

termination is mitigated to a reprimand for any other

reason, good or bad, fair, or unfair. If you believe the

VA's reasons for its decisions, and you find that the

VA did not make its decision because of Mr.

Hausburg's protected activity, you must not second

38a

guess that decision, and you must not substitute your

own judgment for the VA's judgment – even if you do

not agree with it.

As I have explained, Mr. Hausburg has the burden

to prove that the VA's decisions treatment were was

because of his protected activity. I have explained to

you that evidence can be direct or circumstantial. To

decide whether the VA's decisions treatment of Mr.

Hausburg were was because of his protected EEO

activity, you may consider the circumstances of the

VA's decisions treatment of Mr. Hausburg. For

example, you may consider whether you believe the

reasons that the VA gave for the decisions treatment.

If you do not believe the reasons that it gave for the

decisions, you may consider whether the reasons were

so unbelievable that they were a cover-up to hide the

true retaliatory reasons for the decisions treatment.

For the fourth element, you must decide whether

the VA's acts were the proximate cause of the damages

that Mr. Hausburg claims he sustained. Put another

way, you must decide, if the VA had not taken one or

more adverse actions against Mr. Hausburg would

these damages have occurred?

If you find that the VA's acts were the proximate

cause of damages that Mr. Hausburg sustained, you

must also determine the amount of these damages.

Retaliatory Hostile Work Environment –

Title VII – Count II

39a

Mr. Hausburg claims that the VA violated federal

civil rights statutes that prohibit employers from

retaliating against employees in the terms and

conditions of employment because of their protected

EEO activity. These statutes prohibit the creation of

a hostile work environment caused by harassment

because of a plaintiff's protected EEO activity.

Specifically, Mr. Hausburg claims that his

supervisor harassed him because of his protected EEO

activity, and that the harassment created a hostile

work environment. The VA denies Mr. Hausburg's

claim.

To succeed on his claim, Mr. Hausburg must prove

each of the following facts by a preponderance of the

evidence:

First: That Mr. Hausburg’s supervisor harassed

him because of his protected EEO activities;

Second: The harassment created a hostile work

environment for Mr. Hausburg.

In the verdict form that I will explain in a moment,

you will be asked to answer questions about these

factual issues.

A retaliatory hostile work environment created by

harassment because of Mr. Hausburg's protected EEO

activities exists if:

(a) Mr. Hausburg was subjected to offensive acts or

statements about or because of his protected

EO activity – even if they were not specifically

directed at him;

40a

(b) Mr. Hausburg did not welcome the offensive

acts or statements, which means that he did not

directly or indirectly invite or solicit them by

his own acts or statements;

altered the terms or conditions of Mr.

Hausburg's employment;

(d) a reasonable person – not someone who is

overly sensitive – would have found that the

offensive acts or statements materially altered

the terms or conditions of the person's

employment enough to dissuade a reasonable

person from making or supporting a charge of

discrimination; and

(e) Mr. Hausburg believed that the offensive acts

or statements materially altered the terms or

conditions of his employment.

A "material alteration" is a significant change in

conditions. Conduct that amounts only to ordinary

socializing in the workplace does not create a hostile

work environment. A hostile work environment will

not result from occasional horseplay, offhand

comments, simple teasing, sporadic use of offensive

language, or occasional jokes related to a plaintiff’s

protected

EEO

activities.

But

retaliatory

intimidation, ridicule, insults, or other verbal or

physical conduct or other materially adverse conduct

may materially alter the terms or conditions of

employment.

41a

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

Case No. 8:17-cv-1868-AAS

ROSA SLY and DEVONA HOLLINGSWORTH,

Plaintiffs,

DENIS MCDONOUGH, SECRETARY,

DEPARTMENT OF VETERANS AFFAIRS,

Defendant.

ORDER

(October 12, 2023)

ORDER

Defendant Secretary of the Department of

Veterans Affairs (Secretary) moves to exclude certain

exhibits at trial. (Doc. 160). Plaintiffs oppose the

Secretary's motion. (Doc. 163). For the reasons stated

at the October 10, 2023 pretrial conference, the

Secretary's motion is GRANTED in part and

DENIED in part as follows:

42a

1. The Secretary's motion to exclude Exhibits 3-6,

8-11, 13-18, 24, 25, 36-38, 41, 42, 44,1 56-58, 118, 119,

121, 132-145 is GRANTED.

2. The Secretary's motion to exclude Exhibit 50 is

DENIED.

3. Of the witnesses listed in Exhibit B, the

Secretary's motion to exclude Dr. Lynn Anderson,

James Atkinson, Linda LaFond Cohn, Dr. Claudia

Cote, Kendra DiMaria, Mathis Dudley, Dr. Selim

Elzayat, Diane Gowski, Mathew Gustin, Thomas

Jaquis, Paul Jones, Darin Oakes, Kathleen Reilly,

Walter Slam, Tatishka Thomas (Musgrove), Tim

Torain, Christopher Waltz, and Dr. Sally Zachariah is

GRANTED. The Secretary's motion to exclude

Roxanne Bronner as a witness is GRANTED in part

and DENIED in part. Ms. Bronner is prohibited from

(1) testifying regarding her own litigation against

Veterans Affairs and (2) testifying about the time

period prior to the events giving rise to the current

case. The Secretary's motion to exclude Mary Mells as

a witness is DENIED without prejudice. As stated

at the hearing, Ms. Sly will be permitted to testify that

she drafted an affidavit for Ms. Mells' case. Therefore,

it is likely unnecessary for Ms. Mells to be included as

a witness for the sole purpose of testifying to a fact Ms.

Sly can establish. To the extent Ms. Mells is needed to

confirm the affidavit, the court may allow her to do so.

4. The Secretary's motion to exclude Exhibits 43,

45, 49, 59, and 64 is GRANTED in part and

DENIED in part. These exhibits may be admitted at

trial but not for the purpose of re-arguing protected

1 Exhibit 44 is a duplicate of excluded Exhibit 36.

43a

activity or adverse employment action issues the court

has already decided.

5. The Secretary's motion to exclude Exhibits 1, 7,

32, 33, 40, and 552 is DENIED without prejudice to

be addressed at trial, if necessary.

6. The Secretary's motion to exclude Exhibits 53

and 129-131 is DENIED without prejudice to be

addressed at trial, if necessary. By October 27, 2023

counsel for Ms. Sly and Ms. Hollingsworth must give

counsel for the Secretary (1) an explanation as to the

contents of Exhibit 53 and (2) the complete pages for

Exhibits 129-131.

7. The parties must confer and come to an

agreement on the expected length of trial and the

earliest possible month the parties will be ready for

trial. After filing a notice with the court no later

than October 27, 2023, the court will provide counsel

with available trial weeks so that the parties can

agree to specific dates for the trial.

ORDERED in Tampa, Florida, on October 12,

2023.

Ananda Anold Samme

AMANDA ARNOLD SANSONE

United States Magistrate Judge

2 Exhibit 55 is a duplicate of Exhibit 40.

44a

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.