Petition for Writ of Certiorari — Marecia Bell, Petitioner v. Denis R. McDonough, Secretary of Veterans Affairs
Supreme Court briefJul 3, 2024
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NO. __________
In The
Supreme Court of the United States
MARECIA BELL,
Petitioner,
v.
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 a failure to follow federal rules
relating to pay without credible explanation that
results in a protected class receiving less pay than
other protected classes for the same duties and
responsibilities can be enough to create a genuine
issue of material fact preventing summary judgment
in a Title VII claim under 42 U.S.C. § 2000e-16(a).
2. Whether Tolan v. Cotton, 572 U.S. 650 (2014),
is applicable to federal employee Title VII claims.
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.
i
PARTIES
The petitioner is Marecia Bell.
The respondent is the Secretary, Department of
Veterans Affairs.
RELATED PROCEEDINGS
Bell v. McDonough, Sec’y of the Dep’t of
Veterans Affairs, No. 8:20-cv-01274-VMC-CPT,
United States District Court for the Middle
District of Florida. Judgment entered June 16,
2022.
Bell v. McDonough, Sec’y of the Dep’t of
Veterans Affairs, No. 22-12698, United States
Court of Appeals for the Eleventh Circuit.
Judgment entered April 4, 2024
ii
TABLE OF CONTENTS
Questions Presented ........................................ i
Parties ............................................................. ii
Related Proceedings ....................................... ii
Table of Contents ........................................... iii
Table of Authorities ........................................ v
Petition for Writ of Certiorari ........................ 1
Opinions and Orders Below ........................... 5
Jurisdiction ..................................................... 6
Statutory and Constitutional Provisions
Involved ........................................................... 6
Statement of the Case .................................... 6
A.
Factual Background .................................. 7
B.
Legal Issues Involved ............................. 30
C.
Proceedings Below .................................. 37
Reasons for Granting the Writ..................... 38
Conclusion ..................................................... 40
APPENDIX
TABLE OF CONTENTS
Opinion of the United States Court of Appeals for the
Eleventh Circuit, April 4, 2024.............................1a
iii
Order Granting Summary Judgment by the District
Court for the Middle District of Florida, February
17, 2022...............................................................20a
Order Granting Motion to Dismiss by the District
Court for the Middle District of Florida, June 15,
2022.....................................................................48a
iv
TABLE OF AUTHORITIES
Cases
Babb v. Sec’y, 992 F.3d 1193 (11th Cir. 2021) ........ i, 2
Babb v. Wilkie, 589 U.S. 399 (2020)i, 1, 32, 33, 34, 35,
36, 38, 39
Blackwell v. City of Bridgeport, 238 F. Supp.3d 296
(D.C. Conn. 2015) .................................................. 32
Bowen v. Manheim Remarketing, Inc., 882 F.3d 1358
(11th Cir. 2018) ..................................................... 32
Coleman v. Duke, 867 F.3d 204 (D.C. Cir. 2017) ..... 31
Cones v. Shalala, 199 F.3d 512 (D.C. Cir. 2000) ..... 31
Davis v. Fidelity Technologies Corp., 38 F. Supp. 2d
629 (M.D. Tenn. 1998)........................................... 32
EEOC v. Reichhold Chems, Inc. 988 F.2d 1564 (11th
Cir. 1993) ............................................................... 31
Ercegovich v. Goodyear Tire & Rubber, Co. 154 F.3d
344 (6th Cir. 1998) .................................... 27, 32, 38
Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261
(11th Cir. 2008) ..................................................... 38
Gómez-Pérez v. Potter, 553 U.S. 474 (2008) ....... 36, 39
Hartman v. Moore, 547 U.S. 250 (2006)................... 35
Hasan v. U.S. Dept. of Labor, 545 F.3d 248 (3rd Cir.
2008) ...................................................................... 32
Hoang v. Wilkie, 1:18-cv-01755 RM-KLM 2020 WL
6156563 (D.Colo. Oct. 21, 2020).............................. 2
Huff v. Buttigieg, 42 F.4th 638 (7th Cir. 2022) .......... 2
Internat'l Broth. of Teamsters v. U.S., 431 U.S. 324
(1977) ............................................................... 31, 32
Johnson v. McDonough, 1:19-cv-01568-APM (D.D.C.
Nov. 11, 2021) .......................................................... 2
v
Kocher v. Sec’y, U.S. Dept. of Veterans Affairs, No.231108, 2023 WL 8469762 (3d Cir. Dec. 7,2023) ....... 2
McGarry v. Bd. of C’nty Comm’rs of County of Pitkin,
175 F.3d 1193 (10th Cir. 1999) ............................. 32
Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d
1518 (11th Cir. 1992) ...................................... 30, 31
Mt. Healthy Cnty. Bd. of Ed. v. Doyle, 429 U.S. 274
(1977). .......................................................... 3, 35, 36
N.L.R.B. v. Transportation Management Corp., 462
U.S. 393 (1983) ........................................................ 3
Nieves v. Bartlett, 139 S. Ct. 1715 (2019) ............... 35
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) .... 3
Savage v. Dep’t of the Army, 122 M.S.P.R. 612 (2015)
................................................................................ 37
Shackleford v. Deloitte & Touche, LLP, 190 F.3d 398
(5th Cir. 1999) ....................................................... 32
Sistek v. Dep’t of Veterans Affairs, 955 F.3d 948 (Fed.
Cir. 2020) ............................................................... 37
Tademe v. Saint Cloud State University, 328 F.3d 982
(8th Cir. 2003) ....................................................... 30
Terrell v. Secretary, Department of Veterans Affairs,
98 F.4th 1343 (11th Cir. 2024).............. 2, 28, 39, 40
Texas v. LeSage, 528 U.S. 18 (1999).............. 3, 35, 36
Tolan v. Cotton, 572 U.S. 650 (2014) ............ i, 1, 4, 40
U.S. Postal Serv. v. Aikens, 460 U.S. 711 (1983) ..... 38
Wilson v. Brennan, 213 F. Supp.2d 934 (S.D. Ohio
2016) ...................................................................... 31
Zickefoose v. Austin, III, Sec’y, Dept. of Defense, 2:22cv-1935, 2023 WL 7167001 (October 31, 2023) ...... 2
vi
Statutes
28 U.S.C. § 1254(1) ..................................................... 6
29 U.S.C. § 633a(a) ................................ i, 1, 36, 38, 39
42 U.S.C. § 2000e-16(a) ..................... i, 1, 6, 34, 38, 39
5 U.S.C. § 2000e-16(f) ......................................... 18, 30
5 U.S.C. § 2302(a)(A) ................................................ 17
5 U.S.C. §2302(b) ...................................................... 28
5 USC § 2302(a)(2)(A)(xii) ........................................ 37
Other Authorities
Eleventh Circuit Standard Jury Instruction 4.22 ... 23
Rules
Fed. R. Evid. 404(b) .................................. 4, 28, 34, 38
Fed. R. Evid. 801(d)(2)(D) ........................................... 8
Sup. Ct. R. 10(a)(c) ...................................................... 5
vii
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. It comes at a
time when federal employees’ rights make clarity
important and it involves legal issues necessary for
proper resolution of federal employees’ Title VII
claims. By applying Tolan v. Cotton, 572 U.S. 650
(2014) to a Title VII case, it can help the necessary
factual approach to this form of civil rights action at
the summary judgment stage.
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). Yet, federal employees
filing claims under Title VII with the same critical
language and statutory syntax face, at best, differing
standards depending on where they file, and very
likely a denial of Babb’s legal principles and a factual
analysis essential to the just determination of their
1
claims. 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 e.g., Hoang v. Wilkie,
1:18-cv-01755 RM-KLM 2020 WL 6156563, at *9 (D.
Colo. Oct. 21, 2020); Johnson v. McDonough, 1:19-cv01568-APM, at *3-5 (D.D.C. Nov. 11, 2021).
However, even where it is recognized that Babb
should control, many courts grant summary judgment
based on a failure to establish differential treatment,
often using a modified McDonnell Douglas comparator
analysis, and failing to analyze circumstantial
evidence which creates a jury question concerning
differential treatment. This case and Terrell v.
Secretary, Department of Veterans Affairs, 98 F.4th
1343, 1353 n.3 (11th Cir. 2024) purport to apply Babb,
2
but fail to properly determine differential treatment
and in Terrell denied federal employees burden
shifting if they establish differential treatment. It
expressly rejected this Court’s reliance upon Texas v.
LeSage, 528 U.S. 18 (1999) and Mt. Healthy Cnty. Bd.
Of Ed. v. Doyle, 429 U.S. 274 (1997) when discussing
its remedial scheme. The Panel maintained that Mt.
Healthy and LeSage only apply “in constitutional
cases, not Title VII cases” despite this Court’s
decisions in Price Waterhouse v. Hopkins, 490 U.S.
228, 246-249, 254-255, 277-279 (1989); see also
N.L.R.B. v. Transportation Management Corp., 462
U.S. 393, 400-402 and several footnotes (1983)
(Interpretation of §§ 8(a)(1) and 8(a)(3) of the National
Labor Relations Act).
In this case the Petitioner was the only black
assistant nurse manager (ANM) or nurse manager
(NM) in the Spinal Cord Injury Polytrauma and
Rehabilitation Service (SCI). She was used by
management to perform important nurse manager’s
duties which justified nurse manager’s pay, but
denied that pay. She accepted these duties after
having been told by both her first and second-line
supervisors, who had the authority to select a nurse
manager, that she would receive a nurse manager’s
pay and position. She was also the only nurse
performing duties of the type she was asked to
perform that did not receive a nurse manager’s
position or pay. Every other nurse who previously
(and subsequently) performed the duties she
3
performed was at least a nurse manager and
management promised Bell she would receive a nurse
manager’s position and pay. A central issue was
whether this full-time extended use without
promotion or pay was based on her race or at points
on EEO activity. Despite case law for unequal pay
cases under Title VII focusing upon the duties and
responsibilities performed, the panel made its
decision based on the title and duties of Petitioner’s
original position (ANM) which was changed after 30
days. The Opinion failed to address the defendant’s
rules requiring a two-step increase in pay for
performing nurse manager’s duties or being detailed
to such a position, but rather maintained Bell failed to
show that other ANMs were given nurse manager’s
pay for performing nurse manager duties. App. 12a13a. Bell was attempting to show differential
treatment, not a McDonnell Douglas comparator.
The panel also made credibility determinations
which it found had legal significance when it accepted
the Associate Director over Nursing, Laureen
Doloresco’s claim that she never knew that Plaintiff,
who was an assistant nurse manager performing
nurse manager’s duties and responsibilities, wanted a
nurse manager’s position and pay. App. 23a. Yet,
contradictory emails, and evidence admissible before
a jury, including under Federal Rules of Evidence
801(d)(2)(D) and 404(b) , and other evidence,
contradict Doloresco’s claim of a lack of knowledge.
See e.g., Tolan v. Cotton, 572 U.S. 650 (2014);
4
Anderson v. Liberty Lobby, 477 U.S. 272 (1986). The
panel decision conflicts with relevant decisions of this
Court; and those of other Circuit Courts of Appeal.
Factors determining whether to grant certiorari are
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(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 April 4, 2024 upholding
errors by the District Court and resolve these
important questions.
OPINIONS AND ORDERS BELOW
The April 4, 2024 opinion of the Court of Appeals,
which was not designated for publication, is set out at
pp.1a-19a of the Appendix. We have filed several
requests for rehearing and for rehearing en banc on
these issues and determined it would be futile to do so
here.
On February 17, 2022 Order by District Court
granting a Motion for Summary Judgment pp. 20a47a.
On June 15, 2022 Order by District Court granting
Motion to Dismiss pp. 48a-58a.
5
JURISDICTION
The decision of the Court of Appeals was entered
on April 4, 2024. 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.”
STATEMENT OF THE CASE
Petitioner, Dr. Marecia Bell commenced this action
on June 3, 2020 in the Middle District of Florida,
alleging that she was subject to discrimination (raceblack), retaliation, and a retaliatory hostile work
environment in violation of Title VII of the Civil
Rights Act applicable to federal employees. She
alleged that she was the victim of retaliation because
of her protected EEO activity and a retaliatory hostile
work environment, in violation of the same statutory
law.
On February 17, 2022, the District Court granted
summary judgment in part and denied it in part as it
related to certain racial discrimination claims that
6
occurred in the Home Based Primary Care (HBPC)
Service. The Secretary moved to dismiss the claims as
not timely filed and on June 15, 2022 the District
Court dismissed the remaining counts.
A. Factual Background
Dr. Marecia Bell was the only black nurse
manager (NM) or assistant nurse manager (ANM) in
the Spinal Cord Polytrauma and Rehabilitation
Service (“SCI”). There were none before she came or
after she left. Bell had a number of important roles,
including leading a successful effort to reduce injuries
due to slip and falls throughout the facility. She was
hired into the ANM position by Julia Lewis, the
Assistant Chief Nurse of SCI (ACN) and Kathy
Michel, the Acting Chief Nurse (CN). Dr. Bell was
hired with limited non-supervisory duties in October
2016. In November 2016 she was asked by Lewis, her
first-line supervisor and Michel, her second-line
supervisor, to become the first-line supervisor of the
SCI Resource Pool which had 15 employees of SCI’s
107, including 5 registered and other nurses. Both
Lewis and Michel told Bell that as a result of the new
and increased duties she would be paid as a nurse
manager and be placed in a nurse manager’s position.
On December 27, 2016 an email identifying Bell and
her new responsibilities was sent to SCI employees.
Michel and Lewis had the written authority to make
these decisions, but they had to discuss it with
7
Laureen Doloresco, Associate Director over Nursing.1
Later, Bell was told Doloresco was allowing the new
Chief Nurse Mary Alice Rippman, to make the
decision. These 801(d)(2)(D) .
statements
corroborated Doloresco’s knowledge and involvement
in what was happening to Bell. Bell handled this new
role for nearly 18 months with Doloresco’s knowledge
but no pay.
The requirements and duties for a nurse manager
(NM) are contained in VA Handbook 5007/34, Part III,
Chapter 8. Higher Rates of Pay for Assignment of
Head Nurse [(Nurse Manager)] or Possession of
Specialized Skills (HB 5007). Paragraphs 1.a. and 1.b.
state:
a. Restrictions. Individuals in head nurse
[/nurse manager] assignments must exercise
first line supervisory responsibility over a
[patient care team] which contains at least the
equivalent of three full-time subordinate
[patient care team members] (registered
nurses, licensed practical nurses[,] nursing
assistants[, technicians, clerks or other
licensed/certified clinicians). At least two of
the patient care team members must be in a
nursing position (i.e. registered nurse, licensed
practical nurse, nursing assistant).]. A
1 Exhibit N to the Response to Motion for Summary
Judgment was a March 6, 2018 email from Doloresco to all Chief
Nurses confirming that: “Chief Nurses are the selecting officials
for nurse managers,” but asked them to contact her so she could
“review your recommendation and provide feedback”.
8
[patient care area] is defined as a geographic
location or program with patient care delivery
of responsibilities across the continuum of
care.
b.
Head
Nurse[/Nurse
Manager]
Supervisory Responsibilities. The head
nurse[/nurse manager] is responsible for
ensuring that subordinate [patient care team]
personnel provide timely nursing care which
complies with generally accepted standards of
clinical practice. This includes the authority to
accept, amend or reject the work of
subordinates. In addition, to be eligible for
head nurse[/nurse manager] pay, individuals
in the assignment must have continuing
responsibility for all of the following functions:
(1) Planning work to be accomplished by
subordinates, setting priorities and preparing
schedules for completion of work;
(2) Assigning work to subordinates based on
priorities, selective consideration of the
difficulty and the requirements of the
assignments,
and
the
capabilities
of
subordinates;
(3) Evaluating
subordinates;
the
9
performance
of
(4)
Making
recommendations
for
appointments, advancements or reassignments
of subordinates;
(5) Giving advice, counsel, or instruction to
subordinate
personnel
on
work
and
administrative matters;
(6) Hearing and resolving complaints of
subordinates and referring more serious
complaints not resolved to higher level
supervisors;
(7)
Recommending
and/or
taking
disciplinary action where appropriate; and
(8) Identifying developmental and training
needs of subordinates and providing or making
provision for such development and training.
(Emphasis added.)
This was the job Bell performed for nearly 18
months (500 days). She was given an Executive
Career Field (ECF) evaluation, something given to
nurse managers, and it showed she performed every
responsibility of a nurse manager and did so
outstandingly. Her proficiency report, signed on
11/25/2017 by Lewis, states in part:
Ms. Marecia Bell joined the SCI/
Polytrauma/Rehab team this rating period as
the Staffing Coordinator/Assistant Nurse
Manager amid sweeping leadership changes.
10
Ms. Bell hit the ground running in an effort
to take on some of the administrative and
leadership tasks left with several vacant
positions. In addition, with almost no
assistance, she shouldered full responsibility
for the SCI Resource Pool to include hiring,
coaching/mentoring, educating and even
disciplining staff when needed. Further,
when needed, she transitioned to work
evening shifts routinely to provide a
stabilizing leadership presence in-house
during that work time. Due to her efforts,
many staff members have commented that
the work environment on that shift has
greatly improved. Ms. Bell has diligently and
consistently provided a positive, focused role
model for two employees who were under
performing to their potential. One of them
has enrolled and is succeeding in a nursing
program as a result of her efforts. Ms. Bell
was selected as one of three 0.1 FTEE
nursing supervisors this rating period. She
has parlayed this position into an
ambassadorship to help with patient
placement and troubleshooting between the
main hospital and SCI. Her efforts have
made numerous difficult admissions into
positive experiences for the patient as well as
the staff. In my role as a new assistant chief
nurse, it is hard to imagine that I would have
had a very good year without the assistance
11
and teamwork of Ms. Bell. Her input and
view of situations is always sound and
insightful and I have learned with and from
her as we both grow in our new leadership
roles. I look forward to the coming year with
her on our team. (Emphasis added).
Under VA rules, a first-line supervisor of
Registered Nurses (RNs) has to be a nurse manager.
Chief Nurse Michel told Doloresco and the other Chief
Nurses that Bell “is in fact the first-line supervisor,
not Julie.” Bell was announced to all of SCI as being
in that position effective on December 22, 2016.
Because Bell was asked to do this job and it was
one that had the essential nurse manager duties and
responsibilities, it was addressed in an email stream
which included Lisa Jensen, the VA Central Office
representative over nursing in May 2017. It also
included Doloresco. The key takeouts of the stream
are: (1) Doloresco, Rippman, Michel and Lewis all
knew Bell was the first-line supervisor of the Resource
Pool; (2) there can be only one first-line supervisor; (3)
Jensen, the VACO expert confirmed that first-line
supervision is key to a nurse manager’s pay; (4) Bell’s
job justified a nurse manager’s pay under HB5007;
and (5) they all wanted Bell to perform the job.
If one meets the requirements of a nurse manager
position by meeting the duties and responsibilities,
one should be a nurse manager. The only exception is
in ¶(c)(4) which applies to employees detailed to a
12
nurse manager position. That provision specifically
references ¶6(a)(2) which requires the person receive
manager’s pay after 30 days.2 It is another way Bell
was, by VA rules, entitled to nurse manager pay.
Referring to Bell’s first-line supervision for the
Resource Pool, Rippman admitted this is an anomaly
in the facility. She “does not know of any other ANMs
in this position.” However, Doloresco and SCI
management never gave Bell nurse manager pay
despite Michel and Lewis telling Bell she would
receive it. They never gave Bell pay equal to others
who performed these duties. They never recognized
that she was at least detailed to a nurse manager
position for more than 30 days. Bell was the only
black. Bell was not included on the May 2017 email
stream and she did not receive NM’s pay and was not
made a nurse manager or allowed to obtain or be
promoted to open MN positions (there were 8 to 9
nurse manager positions in SCI). She also was never
told management was not going to give her a nurse
manager’s position or pay. Instead, Bell was led to
believe, including in writing, that it would all happen
if she just waited.
Referring to the Resource Pool itself, the Secretary
claimed below that positions have to be competitive.
However, Bell was never allowed to compete for a
2 “An individual detailed to a [head nurse] assignment [ ] or
who serves in such an assignment in an acting capacity [shall
receive a two-step adjustment in pay effective the beginning of
the first full pay period after serving 30 consecutive days in the
assignment . . . .]”
13
position she performed outstandingly. Moreover,
declarations were presented stating that under
Doloresco several nurse manager and chief nurse
positions were filled without competition. In any
event, the rules required that Bell receive NM pay
without competition because she was placed in this
position for more than 30 days.3
The District Court’s Order recognized that when
Bell was first hired, she would not be supervising
people in her ANM position. App. 22a. The Order also
recognized that there were no other ANMs in the
Tampa VA who were first-line supervisors of any staff.
Id. The Order recognized that Bell was told that her
new duties would result in a promotion with a pay
raise which would occur, but they first had to get
Laureen Doloresco, the Nurse Executive in charge of
nursing, to “sign-off” and “process the paperwork.”
App. 23a.
The order recognizes that Wanda Soto-Hunter
(WSH) created a hostile work environment (HWE)
In her 30 years as a nurse, Bell had never filed any
EEO claim until another nurse manager openly
disrespected her by criticizing her while stating she
understood there were “cultural changes” in SCI, but
she did not like how Bell allocated resources. Bell filed
that as a harassment claim in April 2017. Doloresco,
who rose to her position in 2010, had been CN in SCI,
and Rippman and Lewis were told, including in
writing, on June 17, 2017 just before Bell’s
reassignment to the evening shift.
14
3
and the hostile remarks and vulgarity that Bell was
receiving from WSH were racially-based. App. 24a25a. WSH’s conduct continued and in April 2017, Bell
told Rippman and Lewis she was planning to file an
EEO complaint. Id. The Order recognized that shortly
thereafter Bell was reassigned to work night shifts
from 3:30 to midnight. App. 25a. The Order recognized
that Lewis testified that Bell “worked the evening
shift for a period of time over several months and was
the representative of the management team in that
role in the evenings.” Id. Rippman, the new Chief of
SCI, admitted that Bell was the only Assistant Nurse
Manager who worked the late shift every day. Id. Bell
maintained that this was the result of her race and
EEO activity of which management became aware two
months before in April 2017. Id. The Order recognized
that Bell again complained about WSH in June 2017
when she said WSH “continues to demean me and my
job as an Assistant Nurse Manager and as a staffing
coordinator and is very disruptive to my staffing
coordinator work duties and bullies me to assign SCI
resource staff to the SCI unit she manages.” Id. The
Order recognized Bell documented this, however, the
Order did not address that these complaints went to
Rippman, Lewis and Doloresco and were opposition to
discrimination in the same month she was assigned to
always work the evening shifts.
While the Secretary argued Bell’s ANM job had
envisioned her working evenings, it ignored all of that
changed in November 2016. After Bell was hired,
15
Michel and Lewis made her permanent work schedule
7:30 am- 4:00 pm (M-F). Bell later became the only
“ANM” to work the evening shift virtually all the time
from July 2017 until she left. By July 2017 she
opposed discrimination against her race and engaged
in EEO activity by that opposition and filing a HWE
EEO claim. Once the change occurred, Bell not only
supervised the Resource Pool, but as the District
Court’s Order notes she supervised all units in SCI in
the evening. Bell’s testimony is corroborated by SCI
staff who worked that shift and submitted
declarations. In short, she had considerably more
responsibilities than other ANMs or NMs. According
to management, all SCI ANMs had to work those
shifts two days a week, but Bell never saw them do
that and neither did the employees submitting
declarations. Despite request the Secretary did not
produce records corroborating its claim. None of these
facts are addressed in the orders or opinion.
Bell was not only kept in the dark for many
months, in August 2017 she asked Lewis what was
going on and Lewis emailed her confirming what Bell
had been told all along. Just hang in there.
The Order continued by addressing important
issues such as Bell being the first-line supervisor, and
preparing the evaluations of all the Resource Pool
employees. App. 26a-27a. However, as Bell pressed for
action in October 2017, Lewis told her Doloresco
wanted Lewis to be the one who was listed as
performing the evaluations and signing them, even
16
though she had no basis to make the evaluations and
had not replaced Bell as first-line supervisor. Bell
objected because she believed that was her job and HR
sided with Bell. Bell maintained first line managers
not only do the evaluation but sign the evaluation as
the person performing it. While Bell was not on the
email stream, in May 2017 it was resolved that Bell
was the first-line supervisor and signed the
evaluations. Unquestionably nursing management,
including Doloresco, wanted and agreed she should do
that job, but subsequently had not made her a
manager or paid her for her work.
Decisions affecting pay, promotions or details are
personnel actions. 5 U.S.C. § 2302(a)(A) §§ (i)(ii)(iv)
(ix)(xiii). While Bell may not have known all of the
facts, Doloresco and Lewis did. That raises a question
of the basis for the way or process of making decisions
affecting a promotion to nurse manager, a detail or
pay. Later events make their intent clear because they
tried to cover-up that she was the first-line supervisor.
For 500 days she was not given NM pay despite doing
the work other racial groups did as nurse managers
receiving nurse manager pay. Management’s
recognition this could be considered disparate
treatment was shown when they sought to place Bell
under someone so it could be argued she was not the
first-line supervisor, thus undermining the basis of
any claim she might make for a nurse manager
position and pay. However, none of these facts were
addressed by the Order and did not come to light for
17
Bell until the beginning of 2018. On February 20, 2018
Bell had her last conversation with Rippman and
Lewis about changing her position to a Nurse
Manager position. Bell was asked to be on the
interview panel for SCI-DR Nurse Manager position
and Bell asked if that would be a conflict because she
was applying for that position. At that point Rippman
said she did not think Bell was ready to be a Nurse
Manager. On February 22, 2018 Bell immediately
began the EEO process.
Under 42 U.S.C. § 2000e-16(f) incorporating §
2000e-5(e)(3) Bell was entitled to back pay recovery
for two years prior to filing the charge.
On March 5, 2018 Bell met with Doloresco and
complained about racial discrimination, how things
were going, hostile work environment and retaliation.
Approximately two hours later, Lewis told her “your
position has been eliminated and your destiny is in
your own hands and I’m sure you are out there looking
for some other job.” Perhaps reality set in quickly for
management because on March 6, 2018 efforts were
made to have Bell accept an Assistant Nurse
Manager’s position under Lynette Carballo in which
Bell would retain the Resource Pool duties and
responsibilities but protect management by placing
her under a NM who could signoff or obscure the rules
violations.
Bell and Carballo had a good working history. Both
worked on facility-wide projects. Bell had become the
18
expert in the facility for hospital falls. Bell had done
the substantial research and made all presentations
throughout the hospital on the subject. Due to its
success in reducing falls, in 2017 Doloresco wanted a
presentation on the subject to be done for people
including some outside the facility. Through a
subordinate CN, she asked Carballo to do it, but not
with Bell. Carballo refused to do that and supported
Bell doing it. In the end, Bell and Carballo did it
together. Bell believed Doloresco did not want a black
person to be the face of the facility on this issue. Yet,
neither opinion considered this evidence in assessing
the basis for Doloresco’s actions concerning pay and a
nurse manager’s position.
When Bell was advised that she was not ready to
be a nurse manager and told that she would be
working under Carballo, she spoke with Carballo. Bell
and Carballo agreed Doloresco and SCI management
were creating a structure to protect them from her
claim that she should get paid as a manager. Bell
believed that she was going to be doing the exact same
job she had been doing but that she was being forced
to do it as an Assistant Nurse Manager while giving
management the ability to force her to have Carballo
sign evaluations and be the “Nurse Manager”. In other
words accept discrimination and retaliation while
helping management provide a pretext. Again, no
decision addressed these facts.
19
With Carballo’s support, Bell escaped SCI by
taking a staff position in Home Based Primary Care
(HBPC) that paid her less money than the assistant
nurse manager position. Bell and Carballo had
believed the attempted assignment under Carballo
was being done to cover-up discrimination. Yet, once
management learned of Bell’s plans to take a staff
position in HBPC, Carballo, while crying, told Bell
that Rippman was trying to harm her efforts to leave.
Carballo told her that Rippman, Lewis and Raina
Rochon, the CN over HBPC and another direct report
to Doloresco, were trying to get Carballo to give Bell a
bad reference which would have scuttled Bell’s
simultaneous effort to get a staff position in HBPC.
None of this evidence was addressed in any order or
opinion, despite its relevance to identities and an
improper basis for management’s actions.4
B.
Other Evidence of Racial and EEO
Animus
Rippman was a central player in Bell’s
discriminatory treatment and there is other evidence
of Rippman’s racial animus. Rippman had engaged in
4 This evidence involving Carballo was material in the
District Court and on appeal to show who was involved and that
race was a constant consideration and supported her claim a jury
could find differential treatment was based on race or EEO
activity. All of this evidence seems to have been ignored by the
Panel who asserted we waived the decisions which were
simultaneous and inextricably intertwined with the denial of
pay, detail and NM position. Moreover, this was all part of the
HWE.
20
disparate, demeaning treatment of blacks which Bell
observed and complained about to Rippman, Lewis
and others. This also amounted to EEO activity by
opposing discrimination. Rippman also harassed
Claudette Harrison, a 62-year-old, African American
decorated veteran, by telling her, “I need you to show
Mr. Harold some leg because I need some chairs
moved and don’t mind pimping you out.” Rippman
admits this conduct occurred but claims it was a
“joke”. Yet, offensive sexual comments occurred on
other days. Bell was told by Rippman to order black
nurses on injury or disability related light duty to
clean food and gum from underneath patients’ bedside
tables and to clean out a common use refrigerator. Bell
again objected. They were RN’s on RN light duty,
being unnecessarily asked to do housekeeping
employees’ duties. This happened on three separate
occasions. Bell and the other employees had a good
faith belief it was racial discrimination. EEO’s were
filed by employees. Bell also complained to Rippman
about WSH creating a racially based hostile work
environment (HWE) for her. Emails show WSH would
complain about Bell at meetings and try to exclude her
from meetings affecting her job. The HWE involving
WSH, Rippman and management’s inaction was
brought to Lewis, Rippman and Doloresco in April,
June and August 2017. While management
reassigned WSH to the same nurse manager’s position
in another department that does not remove Bell’s
good faith opposition to discrimination which was
EEO activity.
21
Doloresco also had a history of racial animus
including not hiring or in other cases wrongfully
demoting black nurse managers. Declarations and
transcripts were filed about Dennis McLain’s efforts
in 2015 to fight the fact that only 5 of 51 managers,
including ANMs were black and 2 of those had been
appointed by CN Dr. Inez Joseph (black) who had been
appointed prior to Doloresco becoming the Associate
Director over Nursing. Joseph approved them without
getting Doloresco’s approval because CNs and ACNs
had that authority. This action and Joseph’s
opposition to disability discrimination against Dr.
Carol Rueter impaired Tammie Terrell’s (Black)
efforts to become CN of the CLC. Joseph retired and
Doloresco made the selection. Terrell finished first all
three times the position was announced, but first a
white was selected, but when she declined the job, two
more rounds were conducted and hiring guidelines
designed in part to help minorities, were violated and
she never was accepted. Doloresco sought to obscure
knowledge in that case.
At first, Doloresco only used non-black
subordinates to help her discriminate or retaliate.
Lewis told Bell she needed to do what Doloresco
wanted to get ahead even if she was being asked to lie
to deny an employee workers compensation she was
entitled to receive.
Bell refused to take actions against employees
which, after investigation, she believed were factually
wrong and discriminatory including mistreatment of
22
light-duty blacks. When the Order addressed what
may well have been a significant fact affecting
Doloresco, it downplayed its significance even though
it had relevance for the basis for her actions in this
case.
Opposing what one believes in good faith is
discrimination is EEO activity. Eleventh Circuit
Standard Jury Instruction 4.22. Bell has engaged in
EEO activity of which management was aware. On
April 16, 2017 she initiated contact with an EEO
counselor in relation to WSH and Rippman.
Nevertheless, the order rejected retaliation claims
regarding nurse manager pay and position because
the court found that Bell accepted the position in
2016, even though the denial of the promise of position
and pay was not conveyed to Bell indirectly or directly
until February and March 2018.
HBPC. Bell left SCI and took a non-management
staff position in Home Based Primary Care (HBPC)
because of the separate and not equal treatment she
was receiving in SCI which included not giving her
what she earned, Rippman and Lewis’s actions, no
protection from Doloresco and Carballo telling her
what management was doing. After she obtained the
HBPC job, Dr. Julie Leland took actions to prevent her
from going to HBPC until the Chief of HR and an
African-American nurse manager in HBPC (Terrell)
established that she was officially selected and had
accepted the job. Leland was a jogging friend of
23
Doloresco and one of the ones trying to get Carballo to
derail Bell’s move to HBPC. Before HR got involved,
Leland added Doloresco’s assistant Fran Grewe to the
email chains. A declaration from an employee who
worked in the Executive Offices next to Doloresco’s
office swore Grewe subsequently intentionally lost
Bell’s LWOP paperwork multiple times.
Regardless, once Bell was in HBPC, there was
evidence Bell was racially discriminated and
retaliated against by Leland. The District Court found
that Bell was treated disparately by Leland in several
areas based on Terrell’s testimony. App. 39a. The
Court agreed this created a jury question on racial
discrimination by Leland in HBPC in assignments,
parking privileges and with her opposition to Bell’s
hiring into HBPC, but did not recognize this
evidence’s tie-in to Doloresco, Rippman, Raina Rochon
as Carballo said. See id. The District Court did not
consider a carryover from SCI of Rippman, Lewis and
Rochon asking Carballo to give Bell a bad write up to
scuttle her move. There is obvious animus and the
only basis is race or EEO activity. The Panel seems to
claim this evidence was waived because we did not
challenge the District Court’s decision to dismiss
untimely claims. App. 11a-12a.
Later Bell was also denied leave without pay
(LWOP) despite particular need and considerable
notice, and the fact that Bell submitted evidence from
the Director that the LWOP requested was of the
24
same type and duration which had been given to and
approved for all other nurses who requested it. Bell
knew she would need LWOP to care for her husband,
who was seriously injured in an accident requiring
multiple surgeries, and for her own medical treatment
and education beginning in August 2019. Therefore,
in January 2019, Bell sought approval of a temporary
position in a service in which she previously worked,
the Emergency Department, not HBPC. That
department, which is in nursing approved her for a .2
FTE position. Terrell supported it from HBPC’s
standpoint. The leave would not have been needed for
months and Bell’s HBPC position could be back-filled
by another nurse. Terrell advised Rochon of her
approval. Nursing (Doloresco and Rochon) never
agreed. The purported reasons ignored the eight
months’ notice and back filling and even worse was
based on factually false reasons. Doloresco and
Rochon’s actions were helped by sworn testimony that
Bell’s paperwork was intentionally “lost” several
times by Grewe and once again refiled with Doloresco.
In June 2019 Bell had to again request the LWOP.
Rochon purportedly determined that it would put a
strain on HBPC's ability to engage in patient care.
Others maintained that they concurred based on her
recommendation. However, this recommendation was
contradicted by hard facts of which a jury could find
Rochon knew. The alleged reason for the denial
Rochon gave was that it would increase waiting lists
which would require overtime or overhires. It was
purportedly based on Jessica Knebel’s email of June
25
28, 2019. However, a memorandum by Medical
Director Leland, dated, September 21, 2018, 3-months
before Bell's January 30, 2019 email and Terrell’s
approval of that request, showed that HBPC was
actually overstaffed and did not have enough patients
(93 patients short) for the staff they had. Leland
reluctantly explained those facts in deposition
testimony filed in opposition to the MSJ. None of this
evidence was discussed in any order. Bell received the
FMLA limit of leave but remained out for the reasons
originally requested and did not come back until June
2020. The staffing situation at worst remained the
same or more likely overstaffing increased. There was
no backlog or electronic waiting list issue when Bell
returned from LWOP in 2020.
Rochon claimed, that in making her decision, she
did not speak to the two most knowledgeable people,
Leland or Terrell. Rather she obtained a conclusory
email from a new employee, Knebel, who was an RMO
in hostile action toward Bell of which Bell complained.
While Bell was out, Henshall, the acting nurse
manager replacing Terrell, placed Bell on AWOL
which remained in her file and could have been used
against her in a disciplinary action. Bell was also
given letters of concern and demands to return while
on leave relating to medical conditions of her husband
and herself. After receiving a number of AWOL
threats Bell returned early on June 29, 2020.
Henshall pulled her aside as they were going down in
26
an elevator. When they exited the elevator Henshall
asked her to come around the corner with her so that
they could talk in private. Henshall told her that she
was sorry for what had been done to her that she did
not want it to happen “but she had to answer people
that are higher than her.” “Raina and Laureen
Doloresco told her to do these things to me and she’s
trying to move up, you know.”5
EEO Activity. The facility, including Doloresco
had an historic animus not only to race but toward
EEO activity. Statements of Managers admissible
under FRE 801(d)(2)(D) reflect Doloresco’s EEO
hostility including EEO retaliatory animus. Gina and
Dennis McLain engaged in EEO activity. On
December 6, 2015 a service chief, Samuel Dorsett told
Gina McLain that Doloresco told a meeting of chiefs
about Dennis McLain and his wife’s EEO activity and
she wanted to get rid of them both. In early 2016, Mrs.
McLain received an admonishment approved by
5 This evidence shows Doloresco being involved in the
actions of subordinates concerning Bell. See
Ercegovich v. Goodyear Tire & Rubber, Co. 154 F.3d
344, 355-57 (6th Cir. 1998). Doloresco and Rochon
were involved together in trying to stop Bell’s transfer
to HBPC, LWOP issues and pushing AWOL actions
Henshall was ashamed of, but this was never
considered in the orders in analyzing the basis of what
happened to Bell and why, let alone for the retaliatory
HWE claim. On appeal this evidence which was raised
below, and in briefs seems to have been “waived.”
27
Doloresco from Chief Nurse Elaine Cohen who wrote
McLain used EEO’s as a platform and there was great
concern about that. A subsequent EEO was filed and
the admonishment withdrawn. On May 26, 2015,
Cohen wrote about Dennis McLain representing Heidi
Salem. Days before Chief Nurse Kathy Michel was
leaving to take a promotion, Doloresco directed Michel
to give a counseling letter raising a “bully” concern to
Mrs. McLain even though her conduct had been
praised for several years. She was also told by other
nurse managers Doloresco was out to get her and her
husband. Mrs. McLain and three other nurse
managers testified that Doloresco’s conduct at a
meeting of all nurse managers and chief nurses in
which she identified her and her husband having
applied for a position and laughed about it, on May 18,
2015. It is improper to publicly identify applicants for
a position and violated VA policy. 5 U.S.C. §2302(b).
McLain was denied three positions and Doloresco
stacked panels with bias. Many of the legal issues and
404(b) issues in this case occurred in McLain’s case.
Terrell v. Sec’y, Dep’t of Veterans Affairs, 98 F.4th
1343 (11th Cir. 2024) also involves Doloresco and
involved race, EEO activities, and unaddressed
stacked panels, violations of hiring (minority)
guidelines and many of the legal issues and 404(b)
issues which occurred in this case. Claudette Patricio
who was denied an ANM position and in settlement
helped with guidelines to stop hiring problems for
minorities, also had these issues when she was denied
28
a NM position. In both cases and McLain, Doloresco
denied Key knowledge in the case.
When an assistant manager position opened, Heidi
Salem (white) competitively applied for it and was the
No. 1 applicant. Chief Nurse William Messina and his
NMs wanted to hire her, but Doloresco said she had to
approve. When Messina told Doloresco, she yelled at
him over the phone that Salem would never be
allowed to be a manager while she was there. It was
loud, Salem was in the room and heard her. When
Doloresco refused to even talk to Salem, she filed a
reprisal complaint which related back to earlier EEO
activity Salem had against Doloresco. As a result of
the EEO, Doloresco told Messina “you've won. Heidi is
the Assistant Nurse Manager”. Messina testified
Doloresco was vindictive against him as a result of
Salem’s actions (her second EEO) including
disciplining him, harming his pay, and harming his
ability to run his service.
Indeed, the facility had a long problem with EEO
activity. In late 2013 a Radiology Service Chief,
Stephen Stenzler and later an Assistant Chief of
Social Services Carol McFarlane were told that
Medical Center Director Kathleen Fogarty would not
let people who engaged in EEO activity advance.
Those managers told that to Erin Tonkyro, and Dr.
Carol Reuter, respectively. Each had engaged in EEO
activity and did not advance.
29
This evidence supports that a jury could find that
race and EEO activity were bases in differential
treatment in the process of making various personnel
actions against Bell.
B. Legal Issues Involved
Title VII Differential Treatment. The evidence
shows Bell was entitled to the same pay as other nurse
managers because she performed the key nurse
manager supervisory duties, especially those duties
affecting pay as set forth in VA Handbook 5007.
Moreover, she did it for roughly 500 days and was
entitled to nurse manager’s pay even if her position
involving nurse manager duties was viewed as a detail
lasting more than 30 days. However, she was denied
that pay. A jury can find it was based on race because
Bell was the only black ANM and NM in SCI and she
was the only person paid less for the job she actually
did. Under Title VII, in order to establish a prima facie
case of unequal pay, a plaintiff must show that she is
a member of a protected class and that the job she
occupied was similar to higher paying jobs occupied by
individuals outside of her protected class. Tademe v.
Saint Cloud State University, 328 F.3d 982, 989-90
(8th Cir. 2003) (lack of equal pay/race discrimination
claim, relying on sex based principles, but note it was
before 42 U.S.C. § 2000e-16(f) (incorporating § 2000e5(e)(3)); Miranda v. B & B Cash Grocery Store, Inc.,
975 F.2d 1518, 1528 (11th Cir. 1992). “[T]his circuit
has ruled that Title VII has a ‘relaxed standard of
similarity’” for jobs occupied by individuals inside of
30
and outside of a protected class. EEOC v. Reichhold
Chems, Inc. 988 F.2d 1564, 1570 (11th Cir. 1993); see
also Miranda v. B & B Cash Grocery Store, Inc., 975
F.2d 1518, 1529, 1531 (11th Cir. 1992) (citing
Internat'l Broth. of Teamsters v. U.S., 431 U.S. 324,
335 n. 15 (1977)). The facts show each of these
elements exist in this case except Bell was doing the
same or more duties other nurse managers were
doing. Significantly, all nurse managers are paid an
extra amount no matter what service they are in or
how many employees they supervise above three as
long as they perform the key supervisory duties which
Bell did with 15 employees. See ¶3;¶s1a,1b,Handbook
5007.
Bell repeatedly asked to be given the nurse
manager position Lewis and Michel told her she would
get, but one never came and NM positions that opened
for one reason or another she was not considered for.
When an employer prevents an employee from
obtaining, competing for or knowing about a position,
or withholds facts to avoid hiring them for an open
position or disqualifies them from a position for
retaliatory or discriminatory reasons that is an
adverse action, or in this case recognition of a detail.
Cones v. Shalala, 199 F.3d 512, 521 (D.C. Cir. 2000)
(failure to allow an employee to compete); Coleman v.
Duke, 867 F.3d 204, 214-215 (D.C. Cir. 2017) (failure
to advertise a position); see Wilson v. Brennan, 213 F.
Supp.2d 934, 936 (S.D. Ohio 2016) (making a position
unavailable); Davis v. Fidelity Technologies Corp., 38
31
F. Supp. 2d 629, 633-634 (M.D. Tenn. 1998) (refusal to
hire or recommend hiring); McGarry v. Bd. of C’nty
Comm’rs of County of Pitkin, 175 F.3d 1193, 1201-02
(10th Cir. 1999) (failure to let an employee know of a
position’s availability or to consider the employee for
the position); Hasan v. U.S. Dept. of Labor, 545 F.3d
248 (3rd Cir. 2008) (failure to hire someone for a
position); see also Teamsters v. United States, 431 U.S.
324, 363-66 (1977); Shackleford v. Deloitte & Touche,
LLP, 190 F.3d 398, 406 (5th Cir. 1999). Doloresco is
the policy maker and her statements and actions have
made it clear an outstanding employee was
unwelcome. Ercegovich, supra at 355-57. Cold and
calculating denouncements seeking to ruin a career
may be as successful as obscene tirades. Blackwell v.
City of Bridgeport, 238 F. Supp.3d 296, 308 (D.C.
Conn. 2015).
In Babb v. Wilkie, the Court noted U.S.C. § 2000e16(a) gives employees greater rights than non-federal
employees. 589 U.S. at 411-413. However, the Bell
decision rejects that. The District Court’s decision and
the panel’s decision failed to analyze Bell’s rule-based
claims. They both criticized her for not identifying
another assistant nurse manager who was paid nurse
manager’s pay for doing nurse manager’s duties.
Their approach avoids the facts of this case and denies
a federal employee of a basic right to equal pay that
all employees should have. Bell made a showing which
more than matched the showing in Bowen v. Manheim
Remarketing, Inc., 882 F.3d 1358 (11th Cir. 2018). Yet
32
in Bell’s case, there is no discussion of these facts or
this law.
Statements in the District Court opinion about the
Court not being a personnel office and the Panel’s
acceptance of Doloresco’s self-serving denials,
notwithstanding contradictory evidence and the prior
cases where she did that, suggests different rules are
being applied for a government leader. Civility for
leaders in Agencies does not justify discrimination or
retaliation let alone insulating disparate pay. This
case involves taking advantage of a career long
outstanding employee by not following case law or
rules. Federal employers cannot be given special
treatment while claiming Bell is only a personnel
issue and not a Title VII issue for a jury. This is a
dangerous notion. Federal employees increasingly feel
they are being intimidated by Agencies. When an
agency violates or undermines its rules by taking
advantage of employees, its motives must be capable
of being challenged. If not, courts will open a door
which will obstruct efforts to correct conduct by
Agency personnel even worse than retaliation for EEO
activity or whistleblowing. But more importantly for
present purposes, it is necessary to avoid application
of assumptions to benefit people who facts show
should have to explain themselves in courts of law.
Under Babb v. Wilkie, Bell only had to establish
race or EEO activity was a consideration in the
differential treatment concerning pay. Case law
indicates her showing would have met the higher
33
burden under prior law. It is respectfully submitted it
showed differential treatment based on race and EEO
activity. Both courts in this case have either rejected
or missed the key to liability under 42 U.S.C. § 2000e16(a) under Babb v. Wilkie.
Both courts also ignored documents, declarations
and sworn testimony admissible under Fed. R. Evid.
404(b) and 801(D)(2)(D) which contradict Doloresco
and others and tended to prove that race and EEO
activity were a consideration in the way or process of
making the decisions in this case and basis for
differential treatment and provided further relevant
evidence of identity and absence of mistake. The
Panel accepted and repeatedly referenced Doloresco’s
denial of knowledge of Bell’s situation despite a
contradictory 801(d)(2)(D) statements in December
2016 and later about Rippman deciding things, and
emails in May 2017, reaffirmed in August 2017 and
other evidence.6 Neither court had the authority to
make a credibility decision in Doloresco’s favor.
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
6 The other evidence was from other cases showing Doloresco
often denies key knowledge.
34
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.
35
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 differential treatment far more strident than the
one in Babb and even in private sector cases was used
to avoid this analysis.
Retaliation. 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 Gómez-Pérez, this Court found retaliation
provisions 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
36
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' amendments to the detailed
private-sector provisions”). Clearly, the denial of pay
or promotion would deter EEO activity.
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.
There is 801(d)(2)(D) evidence tying Doloresco,
Rippman, Rochon and Lewis together in the denial of
pay to Dr. Bell and her adverse treatment in SCI and
HBPC. Yet, it was said to be waived because we did
not challenge certain decisions when producing
evidence of differential treatment based on race or
EEO activity and a retaliatory HWE. What happened
to Bell in SCI caused her to accept a pay cut. What
happened in HBPC and SCI caused this outstanding
employee to leave James Haley VA.
C. Proceedings Below
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The facts established a basis for a jury to conclude
EEO activity and race were considered in the process
of Doloresco and her subordinates acting and failing
to act. See Ercegovich v. Goodyear Tire a & Rubber
Co., 154 F.3d 334, 354-355 (6th Cir. 1998).
It is important to consider 404(b) and 801(d)(2)(D)
evidence when litigating with giant federal
bureaucracies. 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). Yet, this is
a consistent problem in cases against the federal
government for reasons which the government never
explains, but which require explanation and
correction.
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.
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Action by this Court at this time is necessary to the
fair 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. Moreover, no matter
which circuit a District Court is in, the Secretary
continues to make arguments which conflict with
Babb. Bell, Terrell and several other cases are finding
ways to sidestep the fact 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. As long as Agencies
are treated as if they are above the law, real problems
will follow. The individual federal employees are at a
distinct disadvantage against large bureaucracies
with unified defenses and protective revenues.
As noted by this Court, federal-sector retaliation
claims under Title VII were unaddressed in GómezPérez. 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.
Tolan v. Cotton needs to be followed in Title VII
federal employee claims.
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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. We also will be requesting review of Terrell
in two weeks.
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
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