Petition for Writ of Certiorari — Tammie L. Terrell, Petitioner v. Denis R. McDonough, Secretary of Veterans Affairs

NO. __________

In The

Supreme Court of the United States

TAMMIE TERRELL,

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

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

the free from any discrimination language and syntax

under the Age Discrimination in Employment Act

(ADEA), 29 U.S.C. § 633a(a). That decision recognized

a two-part framework: (1) differential treatment

based upon a protected characteristic, and if that is

shown, (2) full relief based on that characteristic. Both

parts involve “but-for” causation. 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). Yet some lower courts, including the

Eleventh Circuit, consider Babb under a single motive

standard for full relief then separately consider

whether there was differential treatment which

“contributed” to the personnel action. This has

resulted in confusion and allowed the ultimate

decision to affect whether there is differential

treatment and rejects shifting the burden of proof for

full relief. The questions presented are:

1. Whether

differential

treatment

contribute to the ultimate decision.

must

2. Whether the burden shifts to the defendant to

establish it would have made the same personnel

decision if a jury question exists on differential

treatment.

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 Tammie Terrell.

The respondent is the Secretary, Department of

Veterans Affairs.

RELATED PROCEEDINGS

•

Terrell v. McDonough, Sec’y of the Dep’t of

Veterans Affairs, No. 8:20-cv-00064-WFJ-AEP,

United States District Court for the Middle

District of Florida, Judgment entered October

4, 2021.

•

Terrell v. McDonough, Sec’y of the Dep’t of

Veterans Affairs, No. 21-14185, United States

Court of Appeals for the Eleventh Circuit.

Judgment entered April 18, 2024.

ii

TABLE OF CONTENTS

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

Parties............................................................ ii

RELATED PROCEEDINGS ........................ ii

Table of Contents ....................................... iiiii

Table of Authorities ........................................ v

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

Opinions and Orders Below ........................... 1

Jurisdiction ..................................................... 1

Statutory and Constitutional Provisions

Involved .......................................................... 1

Statement of the Case .................................... 2

A.

INTRODUCTION ..................................... 2

B.

PROCEEDINGS BELOW ......................... 7

C.

FACTUAL BACKGROUND ..................... 8

D. OTHER EVIDENCE OF RACIAL AND

EEO ANIMUS ....................................................... 21

E.

LEGAL ISSUES INVOLVED ................. 23

I.

The Court Erred in Not Finding Title VII

Differential Treatment and Its Method of

Analysis Obscured Evidence ............................. 23

II. The Courts Erred by Denying a Jury

Trial on Retaliation Claims ............................... 27

III.

The Court Erred in Dismissing the

Retaliatory Hostile Work Environment Claim 35

iii

Reasons for Granting the Writ..................... 38

Conclusion .................................................... 39

APPENDIX

TABLE OF CONTENTS

Opinion of the United States Court of Appeals for the

Eleventh Circuit, April 18, 2024...........................1a

Order Granting Summary Judgment by the District

Court for the Middle District of Florida, October 1,

2021.....................................................................29a

Order Denying Relief from Judgment by the District

Court for the Middle District of Florida, February

22, 2022...............................................................52a

iv

TABLE OF AUTHORITIES

Cases

Ali v. D.C. Govt., 810 F. Supp. 2d 78 (D.D.C. 2011) 33

Babb v. Sec’y, 992 F.3d 1193 (11th Cir. 2021) .. i, 3, 23

Babb v. Wilkie, 589 U.S. 399 (2020)i, 2, 5, 23, 25, 26,

35, 36, 38

Carter v. Three Springs Residential Treatment, 132

F.3d 635 (11th Cir. 1998) .......................... 16, 26, 27

Crawford v. Metropolitan Government a/Nashville,

555 U.S. 271 (2009) ............................................... 28

DeMedina v. Reinhardt, 444 F. Supp. 573 (D.D.C.

1978) ...................................................................... 33

Demers v. Adams Homes of NW Fla., 321 Fed. Appx.

847 (5th Cir. 2009) ................................................ 16

Desert Palace v. Costa, 539 U.S. 90 (2003) ................ 5

E.E.O.C. v. Fred Fuller Oil Co., Inc.,13-CV-295-PB,

2014 WL 347635 (D.N.H. Jan. 31, 2014) .............. 34

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

334 (6th Cir. 1998) ................................................ 22

Fogelman v. Mercy Hosp., 238 F.3d 561 (3rd Cir. 2002)

............................................................................ 7, 31

Furnco Const. Corp. v. Waters, 438 U.S. 567 (1978) 5,

16, 25

Goldsmith v City of Atmore, 996 F.2d 1155 (11th Cir.

1993) ...................................................................... 18

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

(11th Cir. 2008) ..................................................... 23

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

Heffernan v. City of Paterson, 578 U.S. 266 (2016) .. 6,

7, 31

v

Huff v. Buttigieg, 42 F.4th 638 (7th Cir. 2022) .......... 3

Intl. Broth. of Teamsters v. U.S., 431 U.S. 324 (1977)

................................................................................ 25

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

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

(1997) ................................................. 4, 5, 17, 25, 38

N.L.R.B. v. Transportation Management Corp., 462

U.S. 393 (1983) ........................................................ 5

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) .... 4

Savage v. Dep’t of the Army, 122 M.S.P.R. 612 (2015)

................................................................................ 36

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

Cir. 2020) ............................................................... 36

Terrell v. Secretary, Department of Veterans Affairs,

98 F.4th 1343 (11th Cir. 2024)...................... 3, 4, 24

Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248

(1981) ..................................................................... 26

Texas v. LeSage, 528 U.S. 18 (1999)........... 4, 5, 25, 38

Thompson v. N. Am. Stainless, LP, 562 U.S. 170

(2011) ..................................................................... 33

Tolan v. Cotton, 572 U.S. 650 (2014) ......................... 6

U.S. Postal Serv. v. Aikens, 460 U.S. 711 (1983) . 6, 23

U.S. v. Holbert, 578 F.2d 128 (5th Cir. 1978) .......... 18

Univ. of Tx. Sw. Med. Ctr. v. Nassar, 570 U.S. 338

(2013) ..................................................................... 35

Statutes

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

29 U.S.C. § 633a(a) ...................................... i, 2, 35, 39

42 U.S.C. § 2000e-16(a) .......................... 1, 2, 5, 38, 39

vi

5 USC § 2302(a)(2)(A)(xii) ........................................ 35

Rules

Fed. R. Evid. 404(b) .................................................... 6

Fed. R. Evid. 801(d)(2)(D) ............................... 6, 16, 22

Sup. Ct. R. 10(a)(c) ...................................................... 7

vii

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that this Court grant

a writ of certiorari to review the judgment and opinion

of the United States Court of Appeals for the Eleventh

Circuit entered on April 18, 2024 upholding errors by

the District Court and resolve the aforesaid questions.

OPINIONS AND ORDERS BELOW

The April 18, 2024 opinion of the Court of Appeals,

which was designated for publication in 98 F.4th 1343,

1352 (11th Cir. 2024) is set out at pp.1a-28a of the

Appendix.

An October 1, 2021 Order by District Court

granting a Motion for Summary Judgment is set out

at App, 29a-51a.

On February 22, 2022 Order by District Court

denying Plaintiff’s Motion for Relief from Judgment is

set out at App. 52a -58a.

JURISDICTION

The decision of the Court of Appeals was entered

on April 18, 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

1

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

A. INTRODUCTION

This petition seeks relief from the Court to reject

or clarify the Eleventh Circuit’s changes to the

statutory framework applicable to Title VII federalsector discrimination including 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). The Babb decision

created a two-part framework: (1) differential

treatment based on a protected characteristic and (2)

if that is shown, to determine if that characteristic is

a basis for the ultimate personnel action. Each part

requires the plaintiff to establish “but-for” causation.

The only post-Babb federal appellate courts to

consider and resolve the textual differences between

2

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) (also rejecting the McDonnell Douglas

standard); 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).

While Babb has changed the way federal cases are

seen, the Court’s decision was based on plain language

and long-standing precedent which gives meaning to

the words used and the remedial framework.

However, that language and framework have not been

applied.

This case and Bell v. Secretary, Department of

Veteran Affairs, USCA 11 22-12698, (2024) purport to

apply Babb, but fail to properly determine differential

treatment and in Terrell deny federal employees

burden shifting if they establish differential

treatment. Terrell v. Secretary, Department of

Veterans Affairs, 98 F.4th 1343, 1353 n.3 (11th Cir.

2024). That tips the scales against the employee at

both stages of the framework. In Bell an Eleventh

Circuit panel rejected differential treatment in a case

where the sole black Assistant Nurse Manager (ANM)

was assigned to perform Nurse Manager (NM) duties

and responsibilities for 500 days until she left while

being denied nurse manager pay. In Terrell the

3

Secretary asked the District Court to apply a

“modified McDonnell Douglas” standard which begins

by determining if full relief under a single motive

standard is appropriate, and then determining if

differential treatment occurred. The District Court

followed that approach and the Appellate Court

determined Terrell could not overcome management’s

reasons for its ultimate decisions and used those

reasons as it considered differential treatment and

found none. Both found that differential treatment

was not shown despite facts showing guidelines on

selection of nurse managers and Chief Nurses (CN)

which were standardized to lessen discrimination or

differential treatment at least in part for minorities

were repeatedly violated to the detriment of Terrell,

an African-American who engaged in EEO activity. In

doing so the panel held that differential treatment

must “contribute” to the personnel action. Id. at 1352.

If so, “that means Terrell can establish a Title VII

retaliation if she shows race or national origin tainted

the hiring process, even if it was not a but-for cause of

her non-selection.” Id. The Panel also agreed with the

District Court when 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

4

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 doing so they also obscured this Court’s prior

precedent on intertwined issues which provide

important guidelines to lower courts. First, both direct

and circumstantial evidence should be available to

establish differential treatment because 42 U.S.C. §

2000e-16(a) is a mixed liability and relief statute. See

Desert Palace v. Costa, 539 U.S. 90 (2003). Second,

case law for establishing the involvement of a

protected characteristic when rules, regulations and

practices are violated without a credible explanation

should be available to establish differential treatment

including its basis. See e.g., Furnco Const. Corp. v.

Waters, 438 U.S. 567, 575 (1978). Third, this Court’s

precedent for establishing but-for causation in mixed

motive or reason claims should be recognized

including applying LeSage and Mt. Healthy to the

remedial scheme under 42 U.S.C. §2000e-16(a).

Fourth, this Court’s precedent and the precedent of

the Equal Employment Opportunity Commission

(EEOC) and the rules of the Office of Resolution

Management (ORM) applicable to federal employees

should be considered when determining an opposition

to discrimination claim. Courts should consider this

Court’s recognition that federal employee claims

should consider applicable federal rules and relevant

aspects of management’s intent. See Babb v. Wilkie,

589 U.S. at 405, 412; Heffernan v. City of Paterson,

5

578 U.S. 266, 271-275 (2016). Federal Rules of

Evidence (FRE) 404(b) and 801(d)(2)(D) evidence

should be considered in determining differential

treatment if relevant to an issue in the case. U.S.

Postal Service v. Aikens, 460 U.S. 711, 714 n.3 (1983).

Finally, Plaintiff’s admissible evidence must be

considered when deciding if there is a jury issue on

material facts. See Tolan v. Cotton, 572 U.S. 650, 65667 (2014).

In this case the Petitioner was a former military

officer who supervised nurses and dealt with all levels

of a military field hospital while in the military

including reserves. At the VA, Terrell was the primary

nurse manager under Chief Nurse (CN) Dr. Inez

Joseph in the Community Living Center (CLC). When

Joseph retired, Terrell applied and a panel of highlevel managers rated her the highest candidate, but a

white nurse was selected by Nurse Executive Laureen

Doloresco. When she did not accept the position,

Doloresco reopened the process twice and Terrell was

rated number one each time, but not selected.

Ultimately, the processes involved stacked panels,

repeated violations of promotion guidelines, preselection of the ultimate selectee and failure to accept

404(b) and 801(d)(2)(D) which showed Doloresco’s

animus to African-Americans and EEO activity.

Terrell also presented evidence which under rules

applicable to federal employees by the EEOC and the

ORM showed opposition to discrimination and

6

management knew, or perceived her to be engaging in

EEO activity prior to the violations of the aforesaid

guidelines. See Heffernan, 578 U.S. at 271-275;

Fogelman v. Mercy Hosp., 238 F.3d 561, 571-72 (3rd

Cir. 2002). However, those rules were not recognized

in analyzing whether there was opposition to EEO

activity. Therefore the court changed Terrell’s theory

for opposition to friendship with another employee

and denied Terrell’s retaliation and retaliatory hostile

work environment claims.

Applicable 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).

B. PROCEEDINGS BELOW

Petitioner, Tammie Terrell commenced this action

on January 9, 2020 by filing her initial Complaint and

Demand for Jury Trial. Petitioner alleged that she

was subject to discrimination (race-AfricanAmerican), national origin (America), retaliation, and

a retaliatory hostile work environment in violation of

Title VII of the Civil Rights Act applicable to federal

employees. Her retaliation claim involved opposition,

perceived EEO activity, filing of a claim and

participation and a retaliatory hostile work

environment. On May 7, 2021, the Secretary filed its

Motion for Summary Judgment (MSJ). On June 10,

2021 Terrell filed her Opposition to the Secretary’s

7

MSJ. On June 18, 2021 the Secretary filed a Reply. On

July 13, 2021, Terrell filed a sur-reply. On August 6,

2021, Terrell filed her Supplementation of the Record.

On August 13, 2021 the Secretary filed its Response.

On September 24, 2021, the Secretary filed its

Supplement to its Motion for Summary Judgment and

Incorporated Memorandum of Law. On September 30,

Terrell filed her Response to the Secretary’s

supplement of the record. On October 1, 2021 the

District Court granted the Secretary’s MSJ. and

entered judgment in favor of the Secretary. On

November 30, 2021 Terrell filed her Notice of Appeal

with the District Court. On January 25, 2022 Terrell

filed her Motion for Relief from Judgment. On

February 22, 2022, the District Court denied the

motion. Terrell filed her Notice of Appeal of that order

on February 28, 2022. The Court of Appeals upheld

the District Court decision on summary judgment on

all issues, but rejected Defendant’s use of evidence

from three to four years after the events in question

as comparator evidence, but upheld the District

Court’s order on the Motion for Relief from Final

Judgment. App. 24a-27a.

C. FACTUAL BACKGROUND

The District Court set forth a factual record upon

which its decision was based. It supplemented that

record under various sections of its Order. The

Appellate Court found each of the material facts the

District Court found except it rejected the District

Court’s reliance upon selection of two blacks as

8

government promotion comparators, one a CN three

years later and the second as a nurse manager four

years later. While omitting material facts Terrell

presented as her basis for differential treatment based

on race and EEO activity, the Appellate Court

recognized several important issues.

Each Court rejected Terrell’s description of

applicable law.

Terrell (African-American) opposed discrimination

and was perceived to have done so, before any

selection and all subsequent personnel actions and

instances of differential treatment. Terrell was being

trained by the CLC’s long-time Chief Nurse (CN), Dr.

Inez Joseph (African American) to assume certain

chief nurse duties roughly a year before Joseph retired

in January 2015. Terrell’s testimony and the

testimony or declarations of other employees support

what the District Court labeled a belief in paragraph

1. Dr. Joseph was the only African-American CN at

that time. 1 Terrell was a part of the leadership group

of CLC when it angered Doloresco and Lucille Raia by

hiring Dr. Carol Rueter into the CLC. Rueter was one

of three employees who worked in Nursing Education

under a VANA program which expired. A job was

created for a white nurse, but Rueter who engaged in

EEO activity and a black nurse were told they had to

find their own jobs elsewhere. Joseph and Terrell had

1 The District Court found there were approximately ten

Chief Nurses of various departments at the Tampa VA.

9

worked with Rueter on education matters and

believed she was a good employee and believed they

had a good faith belief that Doloresco and Raia were

discriminating against Rueter. Rueter believed she

was being pushed out of the Tampa VA by Lucille

Raia, the CN of Education and Doloresco. Rueter, who

had a partially paralyzed leg, had a telephone

interview. After she was hired, Raia loudly stated to

the office that if she knew of her disability, she would

never have hired her. Harassment followed and

Rueter filed a union grievance which inter alia,

complained about Raia’s use of foul language and her

adverse treatment. Doloresco who had final say over

grievances in nursing denied the grievance.

When Terrell was being considered for the CN of

the CLC issues were raised that blacks born in the

USA were being denied management positions in the

Nursing service under Doloresco. In December 2014,

Dennis McLain the Director of the National Nurses

United Union consisting of over 1000 registered

nurses (RNs) sought and obtained evidence and met

with Doloresco and the facilities EEO Manager,

Michael Benning. He presented evidence that while

30% of his educated and professional bargaining unit’s

RNs were black or Asian, only 5 among the 51

managers were black and one an Asian manager. Two

blacks (Terrell and Catherine Clark) were selected by

and worked for Dr. Joseph; one, Dr. Sherry Smith, was

under an AIB investigation which cleared her of all

serious charges, but Doloresco played a role in

10

demoting her in June 2015. Two others were born in

the Caribbean Islands and hired by CN Cary

Burcham. Claudette Patricio was the only

Asian/Filipino assistant nurse manager (ANM). There

were no Asian nurse managers in 2014 despite Asians

comprising 15% of the nurses. Id. Patricio was denied

a promotion to nurse manager and filed a

discrimination case on February 8, 2014. In

settlement, Doloresco agreed to priority consideration

and to augment existing promotion/hiring guidelines.

Doloresco admitted the key components included

having consistent panels for all interviews, diverse

panels and members without a conflict of interest.

Patricio was put on a group developing the guidelines.

In Defendant’s Statement of Material Facts the

Plaintiff accepted No. 28 which stated:

Dr. Sheyner asked to be excused from

interviews, but Burcham expressed his

concern that if she left it would be a significant

change to the panel. Ferraro found a time that

worked with Dr. Sheyner’s schedule. Ex. 30.

A panel was set up for the CLC CN position. Panel

members were senior level managers and given the

criteria to consider and the performance-based

interview questions (PBI) to ask each applicant.

Terrell finished first but she was not selected. A much

lower scoring white, Kathleen Miller, was selected by

Doloresco, whose assistant made what a jury could

find were intentional errors to lower the difference in

scores between Terrell and other candidates. For

11

Miller the four senior managers determined the actual

difference was 136 to 114 total points for an average

of 34 to 28.5. For example, comparing the actual

scoring sheets and the charts, it is clear Ferraro,

Doloreco’s G-13 assistant, moved Sheyner’s scores to

other people. Sheyner’s actual score for Terrell was 35,

but Ferraro recorded it as 27. Ferraro’s errors did not

show Miller scored higher than Terrell. Rather she

scored lower. The scoring errors merely lessened the

significant scoring advantage Terrell had over her and

other candidates. Even Burcham rated Terrell higher

than Miller. However, the errors created facts to

obscure Doloresco’s identity and intent at certain

points. Documents establish Doloresco was involved

at each stage and a jury can find she knew or should

have known these “errors” were made, especially

when the erroneous computation of scores was

obvious. There is material evidence that these and

other scoring “errors” Ferraro made were intentional

and not merely mistaken and importantly, no credible

explanation for them was ever given. Ultimately,

Doloresco repeatedly violated the guidelines while

literally giving the CLC CN position to persons of a

different protected characteristics and preselected the

ultimate selectee (CSR). A jury should find this

adversely affected Terrell. The question is why.

Scoring “errors” by Ferraro also occurred in

another case in October 2014 when Dennis McLain,

who engaged in EEO activity, applied for the position

of CN of Mental Health after opposing discrimination

12

in September 2014. McLain missed being interviewed

for a chief nurse position because Doloresco assigned

Ferraro to score resumes and she denied 2 points for

McLain’s certification in his specialty and could not

explain why. As a result of a February 2014 EEO

settlement Patricio was to be given priority

consideration for a nurse manager’s position. Ferraro

was later on the panel considering Patricio’s priority

consideration application, as was Cary Burcham who

was on the Terrell panel. Patricio was not given

priority consideration. This resulted in a December

2014 EEO claim which became formal on January 1,

2015 and a Court of Claims case. In settlement she

became a manager.

Miller was chosen before a February 2, 2015

meeting between Terrell and Doloresco. The reason

for the meeting was to explain why Terrell was not

selected. Doloresco told Terrell she did not have

enough executive experience, but Terrell knew she

had that experience and had been learning that part

of the job from Dr. Joseph. Terrell testified that she

thought Doloresco’s reason for her non-selection was

“a bunch of crap” based on her experience including

under Dr. Joseph in the CLC, but there is no evidence

Terrell told Doloresco what Terrell later testified she

was thinking. Notwithstanding the facts that: HR

certified Terrell was qualified; the job requirements

were what the senior level panel reviewed; if nurse

manager positions did not give “executive” experience

they would be dead-end positions; and declarations

13

submitted showing many other people had risen from

nurse managers directly to CN’s and Terrell was doing

CN duties; the District Court accepted Doloresco’s

disputed claim in ¶6 of the order and the Panel

agreed. However, to Terrell it was important because

after telling her something she could not believe,

Doloresco asked Terrell about Rueter’s role in the CLC

despite Dr. Joseph describing that role in writing

before she retired and sending it to Doloresco and the

person Doloresco picked as her titular Acting CN.

On March 30, 2015 Raia had email exchanges with

Doloresco. The subject was “suggestions” about who

else they could find to take the CLC job. This shows

Doloresco, who protected Raia against Rueter’s

grievance, was talking to Raia about the CLC CN

position. When Rueter complained to Raia she was

going to grieve her, Raia told and showed Rueter she

was cross-her fingers close to Doloresco. Now Raia was

involved in the CLC selection.

The second round of selections which occurred

toward the end of May involved 50 applicants. 2 On

April 24, 2015, Terry Morella, the assistant to four

CLC CNs, heard Raia say in a meeting that Terrell

was “not qualified” for the position. Morella said Raia

had something against Rueter and did not want her to

be promoted. Raia also asked Terrell about Rueter’s

role in the CLC. Raia asked Terrell if Rueter was

2 The first involved 70.

14

running the CLC. Although Terrell said “I am”, Raia

said she had “messed up”. There could not have been

any legitimate reason for Raia’s statements because

Terrell had the most experience for the position, was

certified by HR and had the highest scores after the

first round. Terrell wonders why Rueter’s role is

important to both Doloresco and Raia. A jury can find

both wanted Rueter to have no role.

Carol McFarlane who is the Assistant Chief of

Social Services which is also under Doloresco testified

that in the event their first choice would not take to

position, they would give it to the one who finished

second. On April 30, 2015 Terrell was praised for the

CLC’s performance in a surprise investigation by the

primary accrediting Agency. Terrell also received an

outstanding appraisal for the entire time when she

was running CLC on a daily basis into the fall of 2015.

A second posting occurred. Afterwards, Terrell was

still the highest scoring and even Cary Burcham

endorsed her. Doloresco demanded a third posting and

directed the ultimate selectee to apply. 3

On p.17/24 of its Order, the District Court credits

the Raia, Morella, and Terrell encounter, but rejected

its relevance to opposition because it felt Terrell only

knew of Raia and Doloresco’s friendship. Yet, in the

email stream Raia was talking to Doloresco about the

CLC selection. The Appellate Court rejected it without

3 The Appellate Court reflects this without dispute because

it was an admission by the selectee to several people.

15

citation, for reasons relating to the Eleventh Circuit’s

private sector case law. See Demers v. Adams Homes

of NW Fla., 321 Fed. Appx. 847, 852 (5th Cir. 2009)

(communicating objection to discrimination).

In District Court’s eighth factual paragraph, it is

implied that Burcham and Doloresco agreed on a third

posting because of reservations about Terrell, but the

basis for those reservations is not uncontradicted by

the only evidence from Burcham. Indeed, after several

requests, the Defendant never produced Burcham’s

response to Doloresco’s email claiming it could not be

found. He clearly “endorsed” Terrell in writing as did

other panel members. Conversely, Burcham told Dr.

Rueter Doloresco was making the decision. 4

Subsequent actions by Doloresco will shred the

promotion guidelines. However, the District Court

was not crediting these unexplainable actions as

differential treatment, contrary to case law. Furnco,

438 U.S. at 575 (a lack of a credible explanation of

procedurally irregular conduct is circumstantial proof

of wrongdoing); Carter v. Three Springs Residential

Treatment, 132 F.3d 635, 644-45 (11th Cir. 1998) (and

cases cited therein) (failure to promulgate hiring or

promotion policy can be evidence of discrimination).

When talking about race, the Court of Appeals said

those cases do not apply and, like the District Court,

makes Doloresco’s reasons for repeatedly denying

4 This is an 801(d)(2)(D) admission by a CN directly involved

in the hiring process.

16

Terrell the position central to its analysis. This should

have been the Secretary’s burden under Mt. Healthy.

The Plaintiff presented a number of declarations

contradicting Doloresco’s weighing experience reasons

including when a white woman was against a black

male. Those did not matter because Doloresco had no

burden.

Further violation of these guidelines occurred

when the consistent panel requirement was broken for

unexplainable reasons. The District Court’s analysis

of this can be found in its ninth factual paragraph. The

statements in that paragraph are not found in

undisputed evidence. First, the HR reference was

Doloresco’s hearsay description of what she claimed

HR said because no witness or document from HR

saying that was produced. These significant disputes

and the hearsay objection were not addressed in the

Secretary’s Reply, the Court’s Order or the Appellate

decision. Second, as quoted above in the second round,

Dr. Sheyner had a conflict and Doloresco and Ferraro

changed the interview date to accommodate the

conflict and Burcham expressly stated in an email it

was to avoid violating hiring guidelines. There has

been no evidence why this could and should not have

been done for McFarlane and Eingle. Conversely,

there was 801(d)(2)(D) evidence that McFarlane was

very upset that she was taken off the panel and it was

not consistent. This important evidence contradicts

the court’s acceptance of the Secretary’s implication of

propriety. The Appellate Court rejected the legal

17

argument that these facts evidence both a race and a

retaliatory basis for differential treatment.

Doloresco further improperly changed the panel by

taking off the only black panel member who scoring

sheets showed had rated Terrell the highest of all the

120 candidates in the first 2 rounds. Eingle, who had

no relationship with the ultimate decision, also rated

Terrell higher than Burcham. Doloresco replaced

them with one panel member who only interviewed

the new candidate (no score sheets of others exist) and

could not have compared them against people they

never interviewed. Even if one accepts the hearsay

violative credibility of Doloresco, there is no evidence

HR was told there was a violation of the minority or

other hiring policies adopted after Patricio’s case

because the panel was not consistent and there was

no diversity (McFarlane was black American born); or

that several witnesses testified the selectee, Cheryl

Stephen-Rameau (CSR), who worked for Burcham,

(i.e., selection bias) admitted she was told to apply and

to take the job. These statements by CSR are

801(d)(2)(D) admissions. The policy required no

conflict of interest, let alone the ultimate bias,

preselection. 5

5 False exculpatory statements undermine credibility and

can become affirmative evidence of knowledge or of improper

intent. Goldsmith v City of Atmore, 996 F.2d 1155, 1163-64 (11th

Cir. 1993); U.S. v. Holbert, 578 F.2d 128 (5th Cir. 1978). Burcham

said the “entire decision was Ms. Doloresco’s decision.”

18

Rather than recognizing clearly disputed motive

and facts, the Order and Opinion compounded the

failure to look at facts in the best light to the Plaintiff

by erroneously stating the panel reached unanimous

agreement on the selectee. See App. 6a.

The courts’ finding relies upon an email from

Burcham and stating that Doloresco thought the

panel “endorsed” the selectee that is not true and the

evidence shows Doloresco knew it. First, and quite

starkly, Dr. Inna Sheyner, a physician in charge of

the medicine side of the CLC Clinic was not copied on

Burcham’s email. Sheyner was on all three panels and

always said Terrell should get the position. In fact,

Terrell is the only person she highly recommended for

the position and extolled her work. Sheyner testified

that she personally told Doloresco that after all the

interviews including the interview of CSR who she did

not endorse. Second, the new panel members never

even interviewed Terrell or others and they could not

responsibly have recommended CSR over Terrell.

Third, Raia had already predicted the result. Fourth,

after the second panel everyone either highly

recommended/rated, and Burcham endorsed, Terrell

but she was not selected because as Burcham

admitted to Rueter, the “entire decision was Ms.

Doloresco’s decision.” Doloresco was carrying out her

prior decisions then and using false statements now.

A jury can find this makes CSR a cover-up for racial

discrimination. Fifth, Burcham, Sanabria and others

may have known the only panel member who

19

mattered was the new one Doloresco improperly

installed, but that cannot be the basis for this

undisputed fact in this lawsuit especially given Raia’s

statements to Morella and Terrell. This reflects rank

differential treatment and a predetermined result.

Dr. Carol Rueter testified that:

Cheryl just was never that way. I mean, she -even when we first met her, I mean, she

basically told us that --well, she did tell us – I

sat in more than one meeting when she said, ‘I

have no CLC experience. I have no idea what

I'm doing. Therefore, I'm going to be hopefully

meeting and learning from all of you what my

role in the CLC is. And you all have to

understand something, I basically was told I

had to take this position.

Terrell heard her say she was told to apply.

Paragraph 12 references CSR becoming an

Assistant CN of Ambulatory Care, but omits

Doloresco’s alleged animus resulted in the same

accrediting agency that had highly rated the CLC

when Terrell was in charge giving the CLC the lowest

possible score (“1 out of 5”) under CSR. When CSR

failed and was further criticized after an OIG

investigation, the facility Director ordered Doloresco

to remove CSR. Doloresco created a position for CSR

under Dr. William Messina, the Chief Nurse of

Ambulatory care and ordered Messina to accept CSR

over other better qualified employees including

20

Davion Washington (African American). Messina

promoted Heidi Salem (white) to an ANM position.

Doloresco ordered him to rescind the promotion in a

telephone call while Salem was in Messina’s office.

Doloresco yelled so loudly Salem could hear her order

him and the reasons she gave tied back to events

which involved Salem’s prior EEO. Salem filed a

retaliation claim and Doloresco was told to let Salem

have the position. She called Messina and said “You’ve

won, she can have the position.” Messina described

Doloresco as vindictively punishing him by

disciplining him, lowering his evaluations and

ordering him to take CSR. The orders draw no

implications or inferences from all these facts. The

Opinion indicates that occurred because no fact tied

race or EEO activity to differential treatment.

D. OTHER EVIDENCE OF RACIAL AND EEO

ANIMUS

The Motion to Reopen testimony was denied, but it

included evidence discovered after summary

judgment in Marecia Bell’s case showing retaliation

for EEO activity. At first, Doloresco had 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 did not.

Others did. Doloresco spread her misguided ways to

other ambitious people.

21

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 and 404(b)

evidence was offered, not considered by either court.

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 a NM position. In all cases and

McLain, Doloresco denied key knowledge in the case.

Indeed, the facility has 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. Rueter withdrew her

complaint in fear.

Such evidence when added to the rules violations

against an African-American who engaged in EEO

activity supports that a jury could find that race and

EEO activity were bases in differential treatment in

the process of making various personnel actions. See

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

334, 354-55 (6th Cir. 1998).

22

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 require explanation

and correction.

E. LEGAL ISSUES INVOLVED

I.

The Court Erred in Not Finding Title VII

Differential Treatment and Its Method of

Analysis Obscured Evidence

The District Court Orders and Panel’s Opinion

adopt what the Secretary argued in his Motion for

Summary Judgment was a modified McDonnell

Douglas standard as best addressing differential

treatment. As with the old test, it gave the ultimate

decision a prominent place in the ultimate

determination of differential treatment. Babb v. Sec’y,

992 F.3d 1193 (11th Cir. 2021) held that Babb v.

Wilkie rejected the McDonnell Douglas standard

decisions. However, the Secretary’s post-Babb

standard seems to be in the District Court’s order and

Eleventh Circuit opinion without identifying it. Both

make management’s alleged reason for its decisions a

measure over which evidence of differential treatment

23

must climb. The opinion lessens the District Court’s

approach but still requires consideration of the

ultimate decision and rejects burden shifting while

accepting management’s pretextual reasons without

accepting recognized means to discredit them even

when the Petitioner is entitled to be “free from any

discrimination.” More specifically, the Terrell decision

holds differential treatment must contribute to the

personnel action. 98 F.4th at 1352.

Webster’s Universal College Dictionary (1997)

defines “contribute”, as the court is using it, as “to be

an important factor in.” Here Buckley and Terrell refer

to the personnel action as the object of this action. Yet

that is the ultimate result. Babb makes clear that the

differential treatment does not even have to “affect”

the ultimate result. 589 U.S. at 406-408. Surely

something which is an important factor in the

ultimate result would “affect” it. Moreover, this

approach conflicts with the analysis in footnote 3 on

p.408 of Babb. That footnote requires the differential

treatment to be alive at the time of the ultimate

decision, and demands action by the employer to

stamp it out if it is. This helps to develop a culture

that makes personnel actions free from any

discrimination. However, Terrell and Buckley protect

tainted decisions and harm the culture Congress

wanted.

In Terrell, not only was differential treatment in

the process or way of making the decision that does

not have to “affect” the ultimate decision not applied,

24

but the Terrell courts expressly rejected LeSage and

Mt. Healthy as having a role in the remedial scheme. 6

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. Under Babb v.

Wilkie, Terrell only had to establish race or EEO

activity was a consideration in the process of making

the ultimate decision. Private sector employees get

same decision burden shifting in a statute which does

not guarantee personnel actions “free from any

discrimination.”

Babb states and Petitioner argued that prior

caselaw can be used to determine if differential

treatment exists. See Intl. Broth. of Teamsters v. U.S.,

431 U.S. 324, 335 (1977) (“Discrimination” can be

inferred from differential treatment); Furnco, 438

U.S.at 575 (A lack of a credible explanation of

procedurally irregular conduct is circumstantial proof

of wrongdoing). Other ways to show racial

discrimination are discussed in Carter, 132 F.3d at

6 Thus in this case the District Court in its order at App. 38a,

fn 11:

The applicable inquiry in this post-Babb case is whether

Plaintiff has shown that the protected characteristic—

race or national origin—was the but-for cause of

differential treatment in the decisional process, in

addition to the ultimate decision not to promote. Ms.

Terrell cannot cite to any evidence to rebut the

difference in experience between the two candidates.

Nothing in the record shows that but for Ms. Terrell’s

race, she would have been selected after the first set of

interviews. (Emphasis added.)

25

644-45 (and cases cited therein) (failure to promulgate

hiring or promotion policies can be evidence of

discrimination as can be bending or breaking rules

which harm a minority candidate can be evidence of

discrimination). Many of these cases involved showing

pretext because that was a McDonnell Douglas issue.

That issue is no longer involved, but these cases

recognize evidence which should be fungible enough

to create a jury issue on the involvement of protected

characteristics

in

discrimination/differential

treatment during the process, because such evidence

can be circumstantial evidence of discriminatory

intent. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450

U.S. 248, 255-56 and n.10 (1981). However, the

reverse should not be true. This case implicates race

and EEO activity sufficiently given these violations.

In Babb v. Wilkie, the Supreme Court addressed

an important aspect of differential treatment evidence

when pointing out the taint has to continue until the

action is made. See 589 U.S. at 408 n.3. A nondecisionmaker recommended someone based in part

on age. The decisionmaker took swift and complete

action to wipe any taint from the process. Had he not

done so this remark could have tainted the process.

When coupled with the first hypothetical this

highlights the notion that Terrell, for liability, must

show consideration of the protected characteristics.

Once done that shows but-for discrimination or

differential treatment. For example, if a case involves

statements being made about EEO activity, race,

26

gender or other protected characteristics in the

process of making personnel actions and no corrective

action was ever taken that would “taint” the process

regardless of whether it affected the ultimate decision.

When evidence shows conduct that cases like Carter

recognize it can show race or racial intent may be

found to have been considered. Summary judgment is

inappropriate unless management can establish a

credible explanation for its irregular conduct, without

forcing Terrell to establish the ultimate decision was

caused by that conduct. Here Terrell has presented,

inter alia, evidence a hiring policy partly designed to

protect minorities which was not followed during the

process of interviewing for the position. Indeed, it was

bent and broken. Management claimed it made

changes in the panel because of scheduling conflicts.

Yet, management rescheduled the interviews in the

second round for Dr. Sheyner because the guidelines

required the same panel members throughout.

McFarlane spoke to Rueter and said she “was very

upset it was not the same people interviewing the

third time.” Escalating evidence comes from evidence

of preselection. Preselection should violate the

standard policy. There is at least a jury question about

management’s explanation. Here, there is strong

evidence it was not creditable.

II.

The Courts Erred by Denying a Jury Trial

on Retaliation Claims

In its Opinion the panel as did the District Court

27

recognized EEO activity is not just filing a claim but

participation in it and opposing discrimination. Both

ruled there was no EEO activity prior to Terrell’s

September 1, 2015 EEO complaint. They did not

accept Terrell’s evidence of specific policies applicable

to federal, not private-sector, employees which

support opposition even though Plaintiff argued that

if they understood and applied the policies applicable

to federal employees, Terrell engaged in EEO activity.

The Supreme Court in Crawford v. Metropolitan

Government a/Nashville, 555 U.S. 271, 277 (2009)

discussed opposition in a private employee context

and said, "we would call it opposition if an employee

took a stand against an employer's discriminatory

practices not by "instigating' action, but by standing

pat, say, by refusing to follow a supervisor's order to

fire a junior worker, for discriminatory reasons." The

EEOC provides questions and answers in EEOCNVTA-2016-5, EEOC Questions and Answers:

Enforcement Guidance on Retaliation and Related

Issues, make clear in ¶5 with several pointing out that

opposition occurs when:

• Refusing to obey an order reasonably

believed to be discriminatory;

• Passive resistance (allowing others to

express opposition);

Opposition can be protected even if it is

informal or does not include the words

"harassment," "discrimination," or other

legal terminology. A communication or act

28

is protected opposition as long as the

circumstances show that the individual is

conveying resistance to a perceived

potential EEO violation.

For federal employees, the VA ORM investigates

EEO claims at the Agency level. It uses a definition of

what constitutes opposition in the Office of

Employment Discrimination Complaint Adjudication

Guidelines and ORM’s Director at the time of his

testimony, Harvey Johnson, testified concerning that

definition. It defines opposition as:

" ... "Opposition" activity encompasses

protests, demonstrations, or· other forms of

verbal or non-verbal opposition to actions or

conduct believed in good faith to be

discriminatory, including discrimination

against persons other than the complainant.

The opposition activity must be lawful and

reasonable; -i.e., it must not be destructive of

social or business interests, or otherwise

jeopardize a stable and productive work

environment.

To

be

protected,

the

complainant must have a reasonable, goodfaith belief that the practice being opposed is

unlawful. As long as the belief is reasonable,

Title VII protections will apply, even if the

practice being opposed ultimately proves to

be lawful."

The Eleventh Circuit’s Standard Jury Instruction

29

for all employees, 4.22, patterned after this Court’s

cases does not require more. What matters is that

evidence exists to show management realizes the

employee is opposing its actions. Here, Doloresco’s

and Raia’s actions and statements show they did. The

opposition must be made based upon a good faith

belief the employee is opposing discrimination and

done in an allowable manner. Here it was. Doloresco

and Raia did not want Dr. Joseph to hire Rueter. They

wanted her out of the VA. Joseph did it anyway with

Terrell’s support and told management Rueter would

help Terrell with her Chief Nurse duties after Joseph

retired. The duties description was in writing. As

Joseph’s successor to run the CLC on a day-to-day

basis, Doloresco had to know, or at least perceive, that

Terrell was supporting Rueter’s hiring and role. When

Terrell went to Doloresco in February 2015 to find out

why she was not hired, Doloresco brought up Rueter’s

role. Why? Terrell testified Doloresco already knew it

from Joseph and conveyed to both Doloresco and later

Raia an unwillingness to limit Rueter’s role, because

although not expressed, she did not want to get mixed

up in their improper animus. She never agreed to

change Rueter’s role which is what she believed they

wanted and the evidence shows a jury could find they

wanted. After Miller did not take the position, Raia

confronted Terrell again asking about Rueter’s role.

She told Terrell she “messed up”. Morella believes it

had to do with Rueter. If Terrell was hired, Rueter

would become the Assistant Chief Nurse and Terrell

was unqualified. Terry Morella testified about Raia’s

30

animus toward Rueter, something Terrell already

knew. In the summer before CSR was selected, a mold

problem for three people caused Terrell to move

Rueter out of her office which would accommodate the

three employees. Rueter was moved up to near the

administrative office area. Immediately after CSR

was officially selected, Sanabria wrote up Terrell at

the prompting of Doloresco, for changing Rueter’s

office. Terrell was perceived as enhancing Rueter’s

role merely by changing her office to accommodate

those employees. That justified something in addition

to a denial of a promotion.

This evidence shows management’s animus to

Rueter and Terrell’s relationship to Joseph and her

opposition. It also shows management perceived

Terrell was involved in EEO activity. While the

Eleventh Circuit

has not

recognized this

“anticipation” or “perception” theory of retaliation and

was requested but failed to recognize it here, other

courts have. See, e.g., Fogelman, 238 F.3d at 571-72

(recognizing that a plaintiff can be perceived as

engaging in protected activity). The Supreme Court

addressed a similar issue with respect to Section 1983.

See Heffernan, 578 U.S. at 271-75. The question

presented

was

whether

a

demotion

was

unconstitutional retaliation when the demotion was

based upon an erroneous belief or perception about

what the employee was doing. The majority concluded

that it was the employer’s reasons--the motivation

and the facts as the employer reasonably understood

31

them-- that matter. The Supreme Court found that

such conduct would discourage a plaintiff, and his

colleagues, from even appearing to engage in such

conduct in the future. The anti-retaliation statutes

were written specifically to prevent employer

interference with “unfettered access” to the remedial

mechanisms of the discrimination statutes by

prohibiting employer actions likely to deter

discrimination victims from complaining to the

EEOC, the courts, and employers.

The District Court rejected this evidence as not:

involving any statement by Doloresco to limit Rueter’s

role; or any statement connecting Raia to Doloresco;

and Sanabria did not act until right after CSR’s

selection but before the hostile work environment

CSR created caused the senior leadership of the CLC,

Terrell, Rueter and Catherine Clark, the other black

nurse manager Joseph hired, to leave. But, the court

did not: address Doloresco and Raia’s animus to

Rueter or opposition to Rueter’s hiring by Joseph and

whether one could infer management ever wanted her

to have any role; or the fact Rueter believed they

wanted her not to have any role; why did Rueter’s role

matter to Doloresco in a meeting about why Terrell

was not selected; why did Raia claim Terrell messed

up while discussing Rueter’s role; why was Terrell

unqualified because she might make Rueter her

assistant or anything else related to Rueter; and why

Sanabria, at the insistence of Doloresco, had a

problem with the relocation of Rueter’s office

32

especially under the circumstances which caused the

move. A jury could find a sensible explanation for

each of those instances in Terrell’s explanations.

These facts also reflect retaliation against Terrell

for her relationship with Joseph and Joseph’s hiring

of Rueter. The prohibitions against discrimination

and retaliation within Title VII are written broadly

and can extend to forbid reprisals directed at third

parties. The continuum ranges from “firing a close

family member,” which “will almost always meet the

Burlington standard,” to “inflicting a milder reprisal

on a mere acquaintance,” which “will almost never do

so.” Thompson v. N. Am. Stainless, LP, 562 U.S. 170,

175 (2011) (declining to identify a fixed class of

relationships for which third-party reprisals are

unlawful under Title VII); see also DeMedina v.

Reinhardt, 444 F. Supp. 573, 580 (D.D.C. 1978)

(reasoning that “[s]ince tolerance of third-party

reprisals would, no less than the tolerance of direct

reprisals, deter persons from exercising their

protected rights under Title VII,” Title VII's antiretaliation provisions must necessarily reach

materially adverse actions aimed at third parties).

Appellant need only show that the challenged action

well might have dissuaded a reasonable worker from

making or supporting a charge of discrimination

under Burlington. See, e.g., Ali v. D.C. Govt., 810 F.

Supp. 2d 78, 89-90 (D.D.C. 2011) (a credible threat to

fire a close friend); E.E.O.C. v. Fred Fuller Oil Co.,

Inc.,13-CV-295-PB,2014WL347635, at*1 (D.N.H. Jan.

33

31, 2014) (“close friend” of the individual who engaged

in protected conduct had a prior working relationship

and was instrumental in getting plaintiff the job with

the employer was terminated). These theories were

raised below.

In response to a hypothetical asked by the Court at

oral argument based on friendships with Rueter the

government said it could not be a basis for

discrimination, but time ran out for reply. When the

government filed a post-trial letter which raised an

inaccurate argument, we responded to the main issue

and cited cases from more than half the Circuit Courts

of Appeal that an employee could be discriminated or

retaliated against for having associations with

persons management had discriminatory animus

against. This was not an abandonment of the third

party or perception theories but a separate direct way

someone could be harmed and given the Court’s

interest we responded because it had a supportive

legal basis that once again focused on management’s

intent. The Opinion criticizes Terrell’s position as

being based on a friendship with Rueter, rather than

on the basis briefed and argued.

These are serious questions for federal employes

opposing discrimination. Can they do so according to

rules specifically applicable to them and be protected

from perceived or other retaliation?

In addition to the 404(b) evidence of racial

34

discrimination which was not considered there was

considerable evidence of a willingness to retaliate

against employees who engaged in EEO activity.

Petitioner submits that evidence of such activity goes

directly to the basis of an employer’s intent and

identity and other factors under 404(b) and should

have been considered in determining if a jury could

find differential treatment was based on EEO activity

or race. Clearly, the denial of pay or promotion would

deter EEO activity.

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. Both address protections provisions embodied

within the “free from any discrimination” language of

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

of Appeal recognize that federal employees have Title

VII retaliation protection. See also Univ. of Tx. Sw.

Med. Ctr. v. Nassar, 570 U.S. 338, 356 (2013) (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”).

III.

The Court Erred in Dismissing the

Retaliatory Hostile Work Environment

Claim

A hostile work environment (HWE) is a personnel

action under 5 USC § 2302(a)(2)(A)(xii). Savage v.

35

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) (A retaliatory investigation either on

its own or as part of a broader set of circumstances

may qualify as a personnel action.). Therefore, Babb’s

legal framework including differential treatment and

full relief should be applicable and reflected in the

causation portion of the jury instructions.

Setting that aside, the District Court’s decision on

the retaliatory hostile work environment was based

on the lack of opposition activity as discussed above.

However, it is evident that management knew or

perceived Terrell was opposing discrimination by

repeatedly confronting her on “Rueter’s role” and Raia

(“you messed up” “ you’re unqualified”) and Sanabria

(“move Rueter back”). A jury can find their conduct

shows they realized or perceived Plaintiff was

opposing them and derailed Terrell’s career. Raia

openly criticized Terrell in front of managers and

others, you “messed up”, you’re unqualified; the CN

position was denied three times; and the guidelines

were bent and broken. What does this say to a

reasonable person who is targeted by Doloresco’s

unconstrained power? The treatment by CSR and

Sanabria was coordinated with Doloresco. Jury

questions exist about whether the HWE prior to and

after September 2015 (date of filing claim) would deter

a reasonable employee from engaging in EEO activity.

The Courts did not seriously address these issues

because they erroneously rejected Terrell’s opposition

36

to discrimination claim.

The HWE derailed Terrell’s career. When CSR

came on board, she openly criticized and was negative

to them. Others would see it. A jury can find this

would never have happened without Doloresco’s

support. It has the retaliatory zeal Doloresco has often

exhibited. Despite Terrell’s attempt to help CSR in her

new job, CSR openly belittled her in front of others,

suggested she get mental health assistance (EAP);

questioned Terrell’s tour of duty, comp time earned,

direct patient care hours, and other nursing activities;

she accused her of being unprofessional and

complained about her using her cell phone at meetings

where she was using it to carry out her managerial

duties in a professional way. CSR also placed Terrell

in a conflict-of-interest situation by demanding she

evaluate and investigate someone who just accused

Terrell of an EEO violation. He sided with Terrell, but

after talking to Doloresco, CSR issued a written

counseling to Terrell in March 2015 and excluded

Terrell who had the number 2 leadership position in

the CLC from going with the leadership team to a

team meeting in Orlando which Terrell, Clark and

others felt she should have gone to. When CSR came

back, she rubbed salt in the wound by sending an

email about the meeting to Terrell and others, then

expressed sorrow that she sent it. It was not only

obvious to Terrell but also to others. Terrell’s husband

described his wife as coming home crying, staying

alone, hating to go to work, not participating with

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their children’s sports activities all because she was

crushed by what CSR and Doloresco were putting her

through. CSR’s lack of qualifications created enough

problems that the CLC as given a “1” on a scale of 1 to

5 when reviewed by the important outside rating

group. CSR also was the subject of an Office of

Inspector General (OIG) investigation which found

her at fault.

Conduct which pushes a manager (Clark) to

take a demotion to escape the CLC’s HWE and chase

out Rueter and Terrell, would also deter a reasonable

employee from engaging in EEO activity.

These issues were not seriously addressed

because Terrell’s opposition to discrimination claim

was rejected.

REASONS FOR GRANTING THE WRIT

The Eleventh Circuit has changed the legal

framework announced in Babb v. Wilkie. It has

weakened the protections federal employees are

entitled to receive from the “free from any

discrimination" language in 42 U.S.C. § 2000e-16(a).

It has made it more difficult for a federal employee to

establish differential treatment and, if she does, it has

denied the employee burden shifting under Mount

Healthy and Texas v. LeSage at the remedial stage. It

has again elevated the ultimate decision to a position

which requires a federal employee to disprove

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management's reasons for the ultimate decision and

allows those reasons to adversely affect a Federal

employees’ ability to show differential treatment and

obtain full relief.

In addition Federal rules advising federal

employees on what amounts to opposition to EEO

activity were rejected by the Eleventh Circuit in favor

of rules applicable to the private-sector. This impaired

Terrell’s ability to establish opposition to EEO

activity. As a result the Eleventh Circuit did not

accept evidence which established that the petitioner

engaged in opposition to discrimination under Federal

rules and thus engaged in EEO activity.

Federal employees currently filing discrimination

and retaliation claims under Title VII face uncertain

standards of proof and very likely a denial of a just

determination of their rights. This case presents an

opportunity to help parties and courts to apply

standards applicable 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.

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.

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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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