Petition for Writ of Certiorari — Noris Babb, Petitioner v. Douglas A. Collins, Secretary of Veterans Affairs
Supreme Court briefDec 12, 2025
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NO. -__________
In The
Supreme Court of the United States
NORIS BABB,
Petitioner,
v.
DOUGLAS A. COLLINS, 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
Federal employees’ rights are determined under
statutes which require 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 . . .” See 42 U.S.C.
§ 2000e-16(a) (“based on” race, color, religion, sex, or
national origin) (emphasis added); 29 U.S.C. § 633a(a)
(“based on” age). The language and syntax of these
statutes differ from private sector statutes. Babb v.
Wilkie, 589 U.S. 399, 409-413 (2020). The questions
presented are:
Whether federal District Court jury instructions
and decisions on motions for summary judgment must
be consistent with Babb v. Wilkie’s statutory
framework and specifically:
1. As to summary judgment whether the “shall be
made free from any discrimination” permits
summary judgment of: (a) federal-sector
adverse
personnel
decisions
when
a
combination of sex and age (i.e., older female)
are considered in the process of making those
decisions; and (b) damages caused by
consideration of EEO activity during the
process of making adverse personnel actions.
2. In jury instructions, failing to instruct the jury
on what constitutes differential treatment and
failing to instruct on burden shifting to the
defendant under LeSage and Mt. Healthy.
i
Subsidiary questions are whether these errors
prejudiced the outcome at trial; whether Babb v.
Wilkie is applied to federal employee Title VII claims,
and whether it bans retaliation in federal employment
under 42 U.S.C. § 2000e-16(a).
ii
PARTIES
The petitioner is Noris Babb.
The respondent is the Secretary, Department of
Veterans Affairs.
There are no corporate entities associated with
this case.
STATEMENT OF RELATED CASES
Noris Babb v. Sloan Gibson, Secretary, U.S.
Department of Veterans Affairs, 8:14-cv-01732-VMC
Noris Babb v. Denis R. McDonough, Secretary,
U.S. Department of Veterans Affairs, Case No: 2310383-C, Eleventh Circuit Court of Appeals (2023)
Noris Babb v. Denis R. McDonough, Secretary,
U.S. Department of Veterans Affairs, 589 U.S. 399
(2020)
Noris Babb v. Robert McDonald, Secretary, U.S.
Department of Veterans Affairs, Case No: 16-16492FF, Eleventh Circuit Court of Appeals (2016)
iii
TABLE OF CONTENTS
Questions Presented .................................................... i
Parties ........................................................................ iii
Table of Contents ....................................................... iv
Table of Authorities ................................................... vi
Petition for Writ of Certiorari .................................... 1
Opinions and Orders Below........................................ 9
Jurisdiction ................................................................. 9
Statutory and Constitutional Provisions Involved .. 10
Statement of the Case .............................................. 12
A. Legal Background..................................... 12
B.
Factual Background ................................. 16
C.
Proceedings Below .................................... 23
Reasons for Granting the Writ .................................34
1. To protect federal employees in federal
court cases from causation standards that
are different than private-sector plaintiffs
in Title VII cases and federal employes
who make Title VII and ADEA claims in
the administrative process…………..…34
2.
All federal courts need to apply the
statutory framework on Babb I including
burden shifting after liability………….34
3.
To remind courts to apply the holdings of
Tolan v. Cotton, 572 U.S. 650 (2014) and
this Court's decisions related to principles
of statutory construction…………..…….41
iv
Conclusion ................................................................. 42
APPENDIX
Opinion of the United States Court of Appeals,
June 26, 2025........................................................1a
Order of the District Court for the Middle District of
Florida, August 19, 2022………………………….24a
Order of the District Court for the Middle District of
Florida, November 10, 2022……………………...63a
Order of the United States Court of Appeals,
September 15, 2025….........................................68a
v
TABLE OF AUTHORITIES
Statutes
5 U.S.C. § 2302(a)(2)(A) (ii)……………………………28
5 U.S.C. § 2302(a)(2)(A) (ix) (xii)…………………26, 28
5 U.S.C. § 6121…………………….11,12, 23, 33, 39, 40
28 U.S.C. § 1254(1) ................................................... 10
29 U.S.C. § 623 .......................................................... 14
29 U.S.C. § 633a(a)..i, iv, 1, 3, 6, 10, 12, 14, 23, 34, 36
42 U.S.C. § 2000e-16(a) i, vi, 1, 3, 10, 12, 14, 23, 24,
………………………………………………………34, 36
Cases
Allen v. U.S. Postal Service, 63 F.4th 292 (5th Cir.
2023)…………………………………………………....5
Arlington
Heights
v.
Metropolitan
Housing
Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50
L.Ed.2d 450 (1977)…..……………………………...16
Babb v. Sec’y, Dept. of Veterans Affairs, 992 F.3d 1193,
(11th Cir. 2021)……………………………..vi, 4, 6, 9
Babb v. Wilkie, 589 U.S. 399 (2020) i, ii, iv, vi, 1, 3, 4,
5, 6, 7, 7, 8, 9, 12, 14, 16, 23, 24, 26, 32, 34, 35, 37,
…………………………………………………………..41
Bailey v. United States, 516 U.S. 137 (1995) ........... 41
Bell v. Dept. of Veterans Affairs, No. 22-12698 (11th
Cir. 2024, cert denied, 145 S.Ct. 264 (2024)……..7
vi
Brown v. General Services Admin., 425 U.S. 820, 825
(1976)………………………………………………...14
Burlington Northern & Santa Fe Railway Co. v.
White, 548 U.S. 53 (2006)…………………………25
Complainant v. Dep’t of Homeland Sec., EEOC DOC
0720140014, 2015 WL 5042782 (Aug. 19, 2015) ... 5,
Complainant v. Dep’t of Homeland Sec., EEOC DOC
0720140037, 2015 WL 3542586 (May 29, 2015) .. .5,
Crawford v. Carroll, 529 F.3d 961 (11th Cir. 2008)..25
Demers v. Adams Homes of NW Fla., Inc., 321 Fed.
Appx. 847 (11th Cir. 2009)………………………...33
DIRECT TV, Inc. v. Brown, 371 F.3d 814 (11th Cir.
2004)……………………………………………...41, 42
Engine Mfrs. Assn. v. South Coast Air Quality Mgmt.
Dist., 541 U.S. 246 (2004) ....................................... 1
Ercegovich v. Goodyear Tire & Rubber Co., 154. F.3d
344 (6th Cir. 1998)………………………………….21
Fogelman v. Mercy Hospital, 238 F.3d 561 (3rd Cir.
2002)…………………………………………………..30
Frappied v. Affinity Gaming Black Hawk, LLC, 966
F.3d 1038 (10th Cir 2020)………………………….13
Givhan v. Western Line Consolidated School Dist., 439
U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979)...16
Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, (11th
Cir. 2008)………………………………………...31, 33
Gómez-Pérez v. Potter, 553 U.S. 474 (2008)……4, 6, 12
vii
Gowski v. Peake, 682 F.3d 1299 (11th Cir. 2012) ... .21
Gross v. FBL Financial Services, Inc., 557 U.S. 167
(2009)………………………………………………..1, 12
Heffernan v. City of Paterson, 136 S.Ct. 1412
(2016)…………………………………………………30
Huff v. Buttigieg, 42 F.4th 638 (7th Cir. 2022)………4
Hunter v. Underwood, 471 U.S. 222, 105 S.Ct. 1916,
85 L.Ed.2d 222 (1985)………………………………16
Jefferies v. Harris County Community Action
Association, 615 F.2d 1025 (5th Cir. 1980)……...13
Keene Corp. v. United States, 508 U.S. 200 (1993)…41
Kocher v. Sec’y, Dept. of Veteran Affairs,
2023WL8469762 **1,2 (3rd Cir. 2023)…………….4
Lam v. University of Hawaii, 40 F.3d 1551 (9th Cir.
1994)…………………………………………………..13
McCreight v. Auburnbank, 117 F.4th 1322 (11th Cir.
2024)…………………………………………………..13
McDonnell Douglas, Inc. v. Green, 411 U.S. 792
(1973)…………………………………………..6, 18, 38
McLain v. Dept. of Veterans Affairs, No.22-11667
(11th Cir. 2023), cert denied 144 S.Ct. 1353
(2024)…………………………………………………..7
Monaghan v. Worldpay US, Inc., 955 F.3d 855 (11th
Cir 2020)……………………………………………...25
viii
Mt. Healthy Cnty. Bd. of Ed. v. Doyle, 429 U.S. 174
(1977) …………………i, 7, 15, 16, 30, 34, 37, 38, 40
Nelson v. DeJoy, 2024WL3507723 (*4) (10th Cir.
2024)……………………………………………………5
Petitioner v. Dep’t of Interior, EEOC DOC
0320110050, 2014 WL 3788011 (July 16, 2014) .... 5
Powell v. Barrett, 541 F.3d 1298, 1312 n.5 (11th Cir.
2008)……………………………………………………3
Price Waterhouse v. Hopkins, 490 U.S. 228
(1989)………………………………………………8, 14
Ramos v. Louisiana, 140 S. Ct. 1390 (2020)………....3
Russello v. United States, 464 U.S. 16 (1983) .......... 41
Safeco Ins. Co. of America v. Burr, 551 U.S. 47 (2007)
…………………………………………………………12, 37
Savage v. Dep’t of Army, 122 M.S.P.R. 612 (Sept. 3,
2015)………………………………………………....5,25
Shazor v. Preferred Transit Management, LTD., 744
F.3d 948 (6th Cir. 2014)…………………………....26
Shiver v. Chertoff, 549 F.3d 1342 (11th Cir. 2008)...29
Sistek v. Dept. of Veterans Affairs, 955 F.3d 948 (Fed.
Cir. 2020)……………………………………………..25
Staub v. Proctor Hospital, 562 U.S. 411 (2011)..30
Terrell v. Dept. of Veterans Affairs, 98 F.4th 1343
(11th Cir. 2024)………………………………………7
ix
Texas v. LeSage, 528 U.S. 18 (1999) ..i, 7, 30, 34, 37,
……………………………………………………38, 40
Tolan v. Cotton, 572 U.S. 650 (2014)…………….iv, 41
Trask v. Sec’y, Dep’t of Veterans Affairs, 822 F.3d 1179
(11th Cir. 2016), cert denied, 137 S. Ct. 1133 (2017)
………………………………………………..18, 24, 32
Univ. of Tex. SW Med. Ctr. v. Nassar, 570 U.S. 338
(2013)………………………………………………..4, 12
U.S. Postal Service v. Aikens, 460 U.S. 711 (1983)…33
Wannamaker-Amos v. Purem Novi, Inc., 126 F.4th
248,259-260 (4th Cir. 2025)……………………….26
Whitmore v. Dept. of Labor, 680 F.3d 1353 (Fed. Cir.
2012)…………………………………………………..33
Wilson v. Small Business Administration, 2024 WL
301904 *6 (MSPB January 25, 2024) ……………..6
Wingate v. U.S. Postal Serv., 118 M.S.P.R. 566 (Sept.
27, 2012) .................................................................. 5
Other Authorities
Federal Rule of Evidence 404(b)………………………32
x
PETITION FOR WRIT OF CERTIORARI
This case presents the Court with an opportunity
to provide needed coherence and clarity to the
statutory framework applicable to federal-sector
discrimination and retaliation claims. According to
this Court, “[s]tatutory construction must begin with
the language employed by Congress and the
assumption that the ordinary meaning of that
language accurately expresses the legislative
purpose.” Engine Mfrs. Assn. v. South Coast Air
Quality
Mgmt.
Dist., 541
U.S.
246,
252
(2004) (internal quotation marks omitted) accord
Gross v. FBL Fin. Servs., Inc., 557 U.S. 168, 175
(2009). Federal employees’ rights at issue in this case
are determined under statutes which require 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 . . .” see 42 U.S.C. § 2000e-16(a) (race, color,
religion, sex, or national origin); 29 U.S.C. § 633a(a)
(age).
At the current time, federal employees filing
claims under Title VII, 42 U.S.C. § 2000e-16(a) and 29
U.S.C. § 633a(a) the Age Discrimination in
Employment Act (ADEA) face inexplicably differing
standards of causation than is in the language of these
statutes. This Court previously clarified textual
differences between private sector and federal sector
age discrimination claims under 29 U.S.C. § 633a(a).
Babb v. Wilkie, 589 U.S. 399 (2020) (hereinafter
1
periodically referred to as “Babb I”). It held that the
ADEA’s federal-sector provision is violated when a
personnel action is tainted by discrimination based on
age. 589 U.S. 402-403, 404,405-6,407-413. The Court
reached that conclusion based on the plain text of
Section 633a(a), which provides that all “personnel
actions . . . shall be made free from any discrimination
based on age.” Id. at 402. As the Court explained,
“[t]he plain meaning of the critical statutory language
(‘made free from any discrimination based on age’)
demands that personnel actions be untainted by any
consideration of age.” Id. The Court specifically
defined “the important terms in the statute” and then
closely examined “the way these terms relate to each
other,” emphasizing the provision’s syntax. Id. at 405.
In particular, it noted that “‘free from any
discrimination’ is an adverbial phrase that modifies
the verb ‘made,’” and describes “how a personnel
action must be ‘made,’ namely, in a way that is not
tainted by differential treatment based on age.” Id. at
405-406. Accordingly, the “plain meaning of the
statutory text shows that age need not be a but-for
cause of an employment decision in order for there to
be a violation” of the ADEA federal-sector provision.
Id. at 403.
Title VII’s federal-sector provision contains the
identical “critical statutory language,” and uses the
same “important terms” in precisely the same way as
the ADEA federal-sector provision. It provides that
“[a]ll personnel actions . . . shall be made free from any
2
discrimination based on race, color, religion, sex, or
national origin.” 42 U.S.C. § 2000e-16(a). Indeed, the
ADEA’s federal-sector provision was “patterned
‘directly
after’
Title
VII’s
federalsector
discrimination ban.” Gomez-Perez, 553 U.S. 474, 487
(citation omitted). Just as “‘free from any
discrimination’ is an adverbial phrase that modifies
the verb ‘made’” in the ADEA provision, it performs
the same function in the parallel Title VII provision
and likewise describes “how a personnel action must
be ‘made,’ namely, in a way that is not tainted by
differential
treatment”
based
on
protected
characteristics or activity. Babb, 589 U.S. 405-406.
The Court’s text-based holding thus applies in full to
the Title VII federal-sector provision. See also Id. at
418 (Thomas, J., dissenting) (“Because § 633a(a)’s
language also appears in the federal-sector provision
of Title VII, 42 U.S.C. § 2000e-16(a), the Court’s rule
presumably applies to claims alleging discrimination
based on sex, race, religion, color, and national origin
as well.”) 1
Indeed, that is why in Babb I the Government took
the position that because the ADEA and Title VII
federal-sector
provisions
contain
“materially
1
The Supreme Court’s decision to deny certiorari on the
Title VII question does not reflect its view of the merits of that
question. See Ramos v. Louisiana, 140 S. Ct. 1390, 1404 n.56
(2020) (“This Court has said again and again and again that [a
denial of certiorari] has no legal significance whatever bearing
on the merits of the claim.” (citation omitted)); Powell v. Barrett,
541 F.3d 1298, 1312 n.5 (11th Cir. 2008).
3
identical” language, “[t]here is no apparent reason
why the Court should interpret those two provisions
differently.” Gov’t Cert. Response in Babb I at 22, 24;
see also Gov’t Merits Br. at 34-35 (stating that the
ADEA’s federal-sector provision was “modeled on”
Title VII’s federal-sector provision, which contains
“materially identical” language). Compare, e.g.,
(urging application of Nassar and the “default rule[]”
of but-for causation notwithstanding the federalsector provision’s distinct text), with Babb, 589 U.S.
411 (holding that Nassar has “no application” to the
“markedly different” language of the federal-sector
provision and that “the traditional rule favoring butfor causation does not dictate a contrary result”). The
Court’s decision in Babb thus forecloses any argument
that the “materially identical” language of the Title
VII provision requires a plaintiff to prove liability by
but-for causation of the ultimate personnel action
when the ADEA provision does not. The two federalsector provisions must be interpreted alike.
In Babb v. Sec’y, Dept. of Veterans Affairs, 992 F.3d
1193, 1199 (11th Cir. 2021), the Court examined Babb
v. Wilkie before finding it applicable to Title VII cases.
It also noted that the “free from any” language
involves personnel actions citing 5 U.S.C. § 2302(a)(2),
and the process of making a decision. Other circuits
also apply Babb to Title VII. Huff v. Buttigieg, 42 F.4th
638, 645-6 (7th Cir. 2022); Kocher v. Sec’y, Dept. of
Veteran Affairs, 2023WL8469762 **1,2 (3rd Cir.
2023). The Fifth and Tenth Circuits have not yet
4
decided this question because the parties did not ask
or argue for it. Allen v. U.S. Postal Service, 63 F.4th
292 (fns.2,7) (5th Cir. 2023); Nelson v. DeJoy,
2024WL3507723 (10th Cir. 2024) (*4).
When considering Title VII federal-sector
discrimination claims, including retaliation claims,
before Babb v. Wilkie, the Equal Employment
Opportunity Commission (EEOC) and the Merit
Systems Protection Board (MSPB) had rejected the
traditional “but-for” standard. See Complainant v.
Dept. of Homeland Sec., EEOC DOC 0720140014,
2015 WL 5042782, at *5-6 (Aug. 19, 2015) (retaliation
under Title VII or ADEA); Complainant v. Dept. of
Homeland Sec., EEOC DOC 0720140037, 2015 WL
3542586, at *4-5 (May 29, 2015) (retaliation under
Title VII); see also Petitioner v. Dept. of Interior, EEOC
DOC 0320110050, 2014 WL 3788011, at *10 n.6 (July
16, 2014) (holding that the “but-for” standard does not
apply in federal-sector Title VII or ADEA cases);
Savage v. Dept. of Army, 122 M.S.P.R. 612, 634 (Sept.
3, 2015) (retaliation under Title VII); Wingate v. U.S.
Postal Serv., 118 M.S.P.R. 566 (Sept. 27, 2012)
(concluding that a Federal employee may prove age
discrimination by showing that age was “a factor” in
the personnel action, even if it was not the “but-for”
cause).
The EEOC and MSPB recognize that the failure of
an employer to establish the same decision defense
establishes but-for causation. Wilson v. Small
5
Business Administration, 2024 WL 301904 *6 (MSPB
January
25,
2024)
(deferred
to
EEOC
notwithstanding noting that Babb I did not elaborate
on the method of proving but-for causation).
We recognize that this Court has not yet addressed
the statutory basis for a federal-sector Title VII
retaliation claim. The same broad, general, sweeping
“free from” language of § 2000e-16(a) should form the
statutory basis for such a claim. See Gómez-Pérez v.
Potter, 553 U.S. 474, 479, 487 (2008) (finding
retaliation provisions embodied within the “free from
any discrimination” language of 29 U.S.C. § 633a(a)).
In Babb I, the original panel of the Eleventh
Circuit on July 16, 2018 recognized that it had not
previously considered the textual differences between
the private-sector and federal-sector provisions.
Nevertheless, the panel determined that it was bound
by a prior decision applying a McDonnell Douglas test
and a but-for causation standard to a federal-sector
retaliation case, while admitting the prior decision
also did not consider said textual differences.
In Babb v. Sec’y, 992 F.3d 1193 (11th Cir. 2021)
they changed course and accepted this Court’s
decision in Babb I. However, as this case (Babb II) will
show, material differences exist between Babb I’s
statutory framework and the Eleventh Circuit’s
application of that case. For example, in Babb II, in
oral argument and its jury instruction decision, the
appellate court criticized consideration of a protected
6
characteristic in the process of making a decision as
establishing liability. App.22a. In its jury instructions
decision, the panel did not accept burden shifting after
a different panel’s rejection of LeSage and Mt Healthy.
Terrell v. Dept. of Veterans Affairs, 98 F.4th 1343,
1353 fn3 (11th Cir. 2024) (“But that framework
applies in constitutional cases, not Title VII cases.”)
Thus, express statements in emails and under oath
showing consideration of older females, their
discrimination claims and EEO activity, including
mentioning Babb, all by decision makers during the
process of making all the adverse personnel actions,
were criticized as a basis for liability, i.e., differential
treatment, in the process of making a decision.
App.16a.
In prior cases, the Eleventh Circuit has upheld
jury instructions based on Nassar, the very law Babb
I overturned. McLain v. Dept. of Veterans Affairs,
No.22-11667, (11th Cir. 2023), cert denied 144 S.Ct.
1353 (2024). It has also upheld summary judgment
decisions primarily based on that law. Terrell, supra,
cert denied 145 S.Ct. 273 (2024); Bell v. Dept. of
Veterans Affairs, No. 22-12698, (11th Cir. 2024) cert
denied 145 S.Ct.264 (2024). In those cases and this
one, the court at points correctly quoted Babb I but as
in this case does not apply it.
All of this has created a confusing legal framework
which refuses to recognize consideration or shift the
burden of a same decision defense to the government
and allows the district court to instruct a jury that
7
differential treatment needs to have “played a role in
the decision”. App.22a. In short, this type of
differential treatment does not apply Babb I. It gives
it little if any significance and gives the ultimate
decision too much control over both liability and
damages. Yet, the court accepted the errors in the
MSJ decision and the jury instructions. Id.
In practice, Babb I is not being followed in the
Eleventh Circuit. Consideration of protected
characteristics in the process of making a decision is
necessary for a “free from any” workplace. Moreover,
a federal employee must bear a burden not borne by
most private-sector or federal-sector claimants before
the EEOC or MSPB. In private sector Title VII cases,
once a motivating factor is established the burden
shifts to the employer to show it would have made the
same decision. This Court has repeatedly explained
the need for this in many contexts, including Title VII,
and the relation of burden shifting to “but-for”
causation. See e.g., Price Waterhouse v. Hopkins, 490
U.S. 228, 246-249; 254-255; 277-279 (1989). By
rejecting that, the Eleventh Circuit will cause federal
employees to lose prospective relief rights they and
other federal employees should have. Without an
understanding (i.e., instruction) on consideration of
protected characteristics and burden shifting, a jury
simply cannot understand differential treatment’s
8
significance or meaning let alone its relation to but-for
causation. 2
Petitioner Noris Babb 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 June 26, 2025 and
resolve its conflicts with Babb I.
OPINIONS AND ORDERS BELOW
Babb I: The July 16, 2018 opinion of the court of
appeals was not designated for publication. The
August 23, 2016 order of the district court which was
also unreported. The October 9, 2018 order of the
court of appeals denied a Petition for Rehearing and
Rehearing En Banc. Babb v. Wilkie, 589 U.S. 399
(2020) followed and led to Babb v. Sec’y, Dept. of
Veterans Affairs, 992 F.3d 1193 (11th Cir. 2021).
Babb II: The June 26, 2025 opinion which was not
designated for publication, is in Appendix pp.1a-23a.
The August 19, 2022 order granting/denying
summary judgment by the district court is in
Appendix pp.24a-62a. The November 10, 2022 order of
the district court on a motion for reconsideration is in
Appendix pp.63a-67a. The September 15, 2025 order
of the court of appeals is in Appendix p.68a.
JURISDICTION
2 During oral argument Babb pointed out that we are
unaware of any case finding differential treatment in the Circuit.
9
The decisions of the court of appeals were entered
on June 26, 2025. A timely petition for rehearing and
rehearing en banc was denied on September 15, 2025.
This Court has jurisdiction pursuant to 28 U.S.C. §
1254(1).
STATUTORY AND CONSTITUTIONAL
PROVISIONS INVOLVED
Section 15(a) of the Age Discrimination in
Employment Act of 1967 (“ADEA”), 29 U.S.C. §
633a(a), provides in pertinent part: “All personnel
actions affecting employees or applicants for
employment who are at least 40 years of age . . . in
executive agencies as defined in section 105 of Title 5
. . . shall be made free from any discrimination based
on age.”
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.”
29 C.F.R. § 1614.105 and provides:
(a) Aggrieved persons who believe they have
been discriminated against on the basis of race,
color, religion, sex, national origin, age,
disability, or genetic information must consult
10
a counselor prior to filing a complaint in order
to try to informally resolve the matter.
(1) An aggrieved person must initiate contact
with a counselor within 45 days of the date of
the matter alleged to be discriminatory or, in
the case of personnel action, within 45 days of
the effective date of the action. (Emphasis
added).
(2) The agency or the Commission shall extend
the 45-day time limit in paragraph (a)(1) of this
section when the individual shows that he or
she was not notified of the time limits and was
not otherwise aware of them, that he or she did
not know and reasonably should not have been
known that the discriminatory matter or
personnel action occurred, that despite due
diligence he or she was prevented by
circumstances beyond his or her control from
contacting the counselor within the time limits,
or for other reasons considered sufficient by the
agency or the commission. (Emphasis added).
5 U.S.C. § 6121 Provides:
For the purposes of this subchapter(5) “compressed schedule” means(A) in the case of a full-time employee, an 80-hour
biweekly work requirement which is scheduled for
less than 10 workdays; and
11
(B) in the case of a part-time employee, a biweekly
basic work requirement of less than 80 hours which is
scheduled for less than 10 workdays.
STATEMENT OF THE CASE
A. LEGAL BACKGROUND
This case presents questions of fundamental
importance to the resolution of the Title VII (and
ADEA) cases of thousands of federal employees.
Inherent questions presented in this petition are
whether the Court’s decision in Babb v. Wilkie, 589
U.S. 399 (2020) and Gomez-Perez v. Potter,553 U.S.
474 (2008) should apply to the interpretation of
federal sector Title VII claims under 42 U.S.C. §
2000e-16(a). If, as discussed above, those questions
are answered in the affirmative, the other issues can
be readily resolved. 3
1. Gender Plus Age Claims
In Babb II, Babb filed complaints with gender plus
age discrimination, retaliation and retaliatory hostile
work environment claims. The complaint described
discrete acts. Babb also presented evidence that she
3 The Supreme Court in Part B specifically rejected the
Secretary’s arguments based on Gross v. FBL Financial Services,
Inc., 557 U.S. 167 (2009); University of Texas Southwestern
Medical Center v. Nassar, 570 U.S. 338 (2013) and Safeco Ins. Co.
of America v. Burr, 551 U.S. 47 (2007). However, the Eleventh
Circuit decision uses Safeco to advance its decision that
differential treatment must have “played a role in the decision.”
App.22a.
12
was treated differently based on her gender and age
and based on her EEO activity. The district court's
decision on summary judgment was based on separate
consideration of a gender and an age claim which the
district court found lacking. Compare App.51a and
App.52a. The panel upheld the district court’s
approach on much the same basis. “Babb provides no
evidence that age or sex played any role in the
selection of Grawe or Mack.” App.17a. Neither court
considered whether the combination of gender plus
age tainted the process. Jefferies v. Harris County
Community Action Association, 615 F.2d 1025, 103233 (5th Cir. 1980) (“The use of the word ‘or’ evidences
Congress’s
intent
to
prohibit
employment
discrimination based on any or all of the listed
characteristics.”); Lam v. University of Hawaii, 40
F.3d 1551, 1561-62 (9th Cir. 1994) (“When a plaintiff
is claiming race and sex bias, it is necessary to
determine whether the employer discriminates on the
basis of that combination of factors, and not just
whether the employer discriminates against people of
the same race or of the same sex.”). As to privatesector sex and age claims compare McCreight v.
Auburnbank, 117 F.4th 1322-1352 (11th Cir. 2024)
(apparently rejecting sex plus age claims based on
different causation standards) with Frappied v.
Affinity Gaming Black Hawk, LLC, 966 F.3d 1038,
1047-1049 (10th Cir 2020) (recognized sex plus age
claims) (and cases and journals cited therein).
13
To the extent one believes the discrepancy between
the Eleventh Circuit and other courts is affected by
the causation standard in 29 U.S.C. § 623, Babb I held
29 U.S.C. § 623 does not apply to federal employee
claims of age discrimination. Rather, § 633a applies.
As discussed, Babb I recognized 633(a) contains the
free from any discrimination language. There should
be no causation difference between federal Title VII
and age claims or impediment to gender plus age
claims.
With regard to burden shifting, the Supreme Court
and Congress have made clear that Title VII’s federalsector provision implements the Constitution’s equal
protection guarantees and displaces free-standing
Constitutional remedies for equal protection
violations in the federal employment context. See
Brown v. General Services Admin., 425 U.S. 820, 825
(1976) (citing legislative history). In Price Waterhouse
v. Hopkins, 490 U.S. 228, 246-249; 254-255; 277-279
(1989) (a mixed motive case arising, as here, under
Title VII) the Court recognized mixed motive burden
shifting in a Title VII case and stated:
***
*248 B In deciding as we do today, we do not
traverse new ground. We have in the past
confronted Title VII cases in which an
employer has used an illegitimate criterion to
distinguish among employees, and have held
that it is the employer's burden to justify
decisions resulting from that practice. When
an employer has asserted that gender is a
BFOQ within the meaning of § 703(e), for
14
example, we have assumed that it is the
employer who must show why it must use
gender as a criterion in employment.
(Citations omitted.)
***
We have reached a similar conclusion in
other contexts where the law announces that a
certain characteristic is irrelevant to the
allocation of burdens and benefits. In **1790
Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S.
274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), the
*249 plaintiff claimed that he had been
discharged as a public-school teacher for
exercising his free-speech rights under the
First Amendment. Because we did not wish to
“place an employee in a better position as a
result of the exercise of constitutionally
protected conduct than he would have occupied
had he done nothing,” id., at 285, 97 S.Ct., at
575, we concluded that such an employee
“ought not to be able, by engaging in such
conduct, to prevent his employer from
assessing his performance record and reaching
a decision not to rehire on the basis of that
record.” Id., at 286, 97 S.Ct. at 575. We
therefore held that once the plaintiff had
shown that his constitutionally protected
speech was a “substantial” or “motivating
factor” in the adverse treatment of him by his
employer, the employer was obligated to prove
“by a preponderance of the evidence that it
would have reached the same decision as to
[the plaintiff] even in the absence of the
protected conduct.” Id., at 287, 97 S.Ct., at 576.
A court that finds for a plaintiff under this
standard has effectively concluded that an
15
illegitimate motive was a “but-for” cause of the
employment decision. See Givhan v. Western
Line Consolidated School Dist., 439 U.S. 410,
417, 99 S.Ct. 693, 697, 58 L.Ed.2d 619 (1979).
See also Arlington Heights v. Metropolitan
Housing Development Corp., 429 U.S. 252,
270–271, n. 21, 97 S.Ct. 555, 566, n. 21, 50
L.Ed.2d 450 (1977) (applying Mt. Healthy
standard where plaintiff alleged that
unconstitutional motive had contributed to
enactment
of
legislation);
Hunter
v.
Underwood, 471 U.S. 222, 228, 105 S.Ct. 1916,
1920, 85 L.Ed.2d 222 (1985) (same).
We will address related issues including
pretextual reasons having a legal basis beyond Babb I
in Proceedings Below.
B. FACTUAL BACKGROUND 4
Petitioner joined the Bay Pines VAMC in 2004 and
helped to develop the Geriatric Pharmacotherapy
Clinic (GPC), which serves older veterans living with
disease states and disabilities common to individuals
of advanced age with military service. Such
individuals present special challenges when
considering co-morbidities throughout the caregiving
process including during the administration of
medications. Babb was a highly successful
pharmacist. In 2009 Babb was given an advanced
scope by prior Pharmacy Management, because the
4 Many of the earlier factual paragraphs are the same as in
the Petition for Certiorari in Babb I except where facts relating
to new issues suggest additional facts.
16
way GPC operated prior to 2012 necessitated that
Babb have an advanced scope to prescribe medications
without a physician present, as part of her disease
state management (DSM) duties.
In 2010 the VA announced a nationwide treatment
initiative called Patient Aligned Care Teams (PACT).
The purpose of PACT was to provide veterans’
healthcare through a team which follows a patient
and takes care of their total aspects of health. It was
similar to the way the GPC had been operating.
Consistent with the purpose and aims of PACT,
facilities throughout the VA made the existing
primary care physicians, nurses, social workers,
clerks, and other staff, such as pharmacists,
permanent members of their modules' PACT.
Pharmacy management at Bay Pines VAMC
rejected HR's recommendation that module
pharmacists be allowed to transition into the CPS
positions, except in the case of two pharmacists under
the age of 40. For all three females over 50 in the
modules and both female pharmacists over 50 in the
in-patient setting at Bay Pines, Pharmacy denied
them the opportunity to transition into PACT
positions where they were already working. As a
result of these actions, the older females were
ultimately denied career advancement to a GS-13
grade, despite the fact that they were performing so
highly in their positions that the doctors with whom
they worked wanted them to remain in their positions.
Yet, they were the only people denied the ability to do
17
that. They were denied in favor of younger men and
women and older men.
Drs. Trask and Truitt, two of the female clinical
pharmacists above the age of 50 when the material
events occurred, were working in the Primary Care
Modules at Bay Pines when PACT was announced.
They filed EEOs after being denied advanced scopes
of practice. Petitioner opposed management’s actions,
provided statements, and testified in support of Drs.
Trask and Truitt’s claims. Drs. Truitt and Trask
contended, inter alia, that the VA's justification for
their non-selection — their lack of advance scopes of
practice – was a pretext for discrimination. They
further contended, inter alia, that the VA’s
justification for denying their advance scopes and any
training allegedly necessary to obtain advanced
scopes, was also a pretext for discrimination. 5
5 Until the case of Drs. Truitt and Trask, a pharmacist would
receive an advance scope when any collaborating physician
signed the pharmacist's application. Multiple physicians
supported Trask and Truitt and signed their advanced scopes.
Other VA facilities granted advance scopes in the same way. In
fact, Bay Pines had never previously denied an advance scope to
a pharmacist with such an application. Nevertheless, Pharmacy
management first obstructed and then denied the efforts of Drs.
Trask and Truitt to obtain advanced scopes prior to the PACT
selections. The Court of Appeals based its decision upon
managements’ asserted reason. See Trask, 822 F.3d 1179,119293, (11th Cir. 2016) cert denied 137 S.Ct. 1133 (2017). Drs. Truitt
and Trask petitioned this Court for a writ of certiorari, not for
the issues herein, but for issues related to the prima facie burden
under the McDonnell Douglas framework because management
18
On April 11 and 12, 2012, Dr. Babb submitted
statements maintaining Doctors Anita Truitt and
Donna Trask were being discriminated against based
on their sex and age (older females). On September 27,
2012 Babb was denied the opportunity to attend a
GPC PACT training conference while a 31-year-old
female pharmacist was allowed to attend an offcampus training conference with her PACT team. In
December 2012, Babb received verbal counseling from
Pharmacy Chief Wilson for conducting training with
materials that had not been proved by the Education
Department. She was using the same materials which
Wilson knew had been used for 15 years by two older
male counterparts without any counseling or
reprimand. Despite this knowledge Babb was verbally
counseled, and she was removed from conducting
training. No one else was.
At the end of 2012, without Babb’s participation,
Pharmacy management rejected Geriatrics’ request
for 3 appointment slots and maintained that the only
way Petitioner could keep her advanced scope and
advance (i.e., to a GS-13) was if Geriatrics agreed to 6
appointment slots, which Pharmacy knew was
unworkable for Geriatrics’ patients. Without telling
Babb, pharmacy management falsely claimed that
engineered its pretextual reasons into the prima facie case by
allowing a young male to obtain an advance scope just before
preventing Truitt and Trask from obtaining one. This resulted in
the district court and Court of Appeals using the advance scope
to impair Truitt and Trask’s prima facie case.
19
without six appointment slots for her advanced scope,
Babb would not want to work in the Geriatrics Clinic
she helped to develop. Geriatrics wanted to maintain
Babb’s current schedule. Babb did too but she was out
of the process. Pharmacy’s false statements and
separation worked by causing GPC to agree to no
DSM. If Babb would not go there without 6 and GPC
could not agree to 6, then without a DSM pharmacist
there was no need for DSM.
Pharmacy had done this by excluding Babb from
negotiating this agreement even though they let a
young male and a young female participate in
negotiations over their own agreements. These
actions by Pharmacy management led to what
Stewart admitted was the unheard of cancellation of
her advanced scope before it was set to expire (October
2013), ultimately prevented Babb from performing
DSM, and became an ingredient in her being denied a
GS-13 just like all the other older females on March
27, 2013. Like Drs. Truitt and Trask and all female
pharmacists over 50, Babb was thereby prevented
from a promotion to a GS-13 and an increase in pay.
Her efforts in 2012 and January 2013 and thereafter
to obtain training in anticoagulation were
unsuccessful and emails showed management
20
suspected 30 and 31-year-old female pharmacists
would apply. 6
Williams agreed to sign an agreement without any
DSM only because pharmacy management claimed
Babb would not want to do three DSM as she had been
doing since 2009 and meet every requirement of the
CPS position, including a 25% requirement. In
addition to the three official slots, there had always
been time for phone visits and drop-in visits in the
clinic which Babb and the GPC director, (Dr. John
Hull) knew. Williams was the head of Geriatrics, not
the GPC. Williams admitted he wanted the clinic to be
able to run the way it had been running. So did Babb.
But she did not even know that this was happening
for months after it happened and could not tell
Williams he was being misled.
Babb suffered discrimination, opposed discrimination
against other older females, filed an EEO claim, suffered
retaliation, and was specifically targeted for an AIB
investigation in a facility with a history of retaliation from the
Director’s level down against numerous employees who filed
EEO claims. There was direct evidence of a scheme to destroy the
careers and reputations of employees who engaged in EEO
activity. The government only appealed two of the many cases
filed by those employees in federal court. See Gowski v. Peake,
682 F.3d 1299 (11th Cir. 2012). In Babb’s case the history of
discrimination and retaliation against older females involved the
highest levels of pharmacy. Ercegovich v. Goodyear Tire &
Rubber Co., 154. F.3d 344, 354–355 (6th Cir. 1998). (Summary
judgment denied noting head of an area is in a position to shape
attitudes, policies and decisions of all division’s managers,
including where that official expresses improper bias and
prejudice).
6
21
During closing argument, the Secretary acquiesced
to Babb's position she could meet the 25% with the
three slots both she and Williams were willing to do.
Babb had records that she had been doing that for
months prior to December 2012. The appellate opinion
actually relied on pharmacy’s disinformation to
Williams after excluding Babb from the process. The
court then concluded something Williams and Babb
separately agreed upon (three slots) would not allow
her to do 25% and therefore DSM had to come out of
the agreement. App.4a-5a. Shifting burdens is
important to protect against this type of error. In
discovery management came up with their figures
three times, Babb rebutted them and at trial the
defendant caved.
Justice, Wilson, Robert Stewart and Marjorie
Howard were all involved in January 2013 email
exchanges tying Babb to “EEO” and to opposition to
discrimination against older females. Justice and
Stewart actually discussed the anticoagulation
position in one stream and prejudged Babb's
qualifications, said she should go to the float pool, and
denied her training. Justice: made Stewart the panel
lead; prepared the questions the panel asked;
encouraged Stewart to deny Babb any anticoagulation
training in the months before the panel interview; told
Babb the interview questions would be performance
based questions, a type different than the clinical ones
she was asked in the interview (as did Stewart); knew,
as Stewart admitted, that 99% of all residency trained
22
pharmacists were just out of school (i.e., young or
overwhelmingly so) and that the VA Central Office
issued directives that required experience to be
equally considered with residency. Yet residency got a
special credit in this instance. It is too far a leap for
one assessing whether gender and age were
considered in the process of a decision to ignore this.
Justice was also at the center of discrimination
against older females and these allegations had been
made by pharmacists and supported PACT physicians
since 2011.
In 2014, just before she and certain other older
females were set to testify in Truitt and Trask’s case,
Babb was offered GS-13 anticoagulation or Mod B
positions. One other older female witness was given a
GS-13 in the same position she had for 26 years. After
she started, Babb found she was being denied holiday
pay because management claimed she was on a
compressed schedule contrary to 5 U.S.C. §6121.
C. PROCEEDINGS BELOW
In Babb I, Babb commenced this action in the
Middle District of Florida, alleging that she was
subject to discrimination, retaliation, and a
discriminatory and retaliatory hostile work
environment in violation of Title VII and the ADEA.
23
After a period of discovery, the district court
granted the VA's motion for summary judgment on all
of Babb’s claims.
On appeal, Babb argued that the district court
erred in granting summary judgment in several
respects. The Eleventh Circuit reversed the gender
claim for having not applied a motivating factor test,
(a decision of first occurrence for federal employees
within the Eleventh Circuit) but affirmed everything
else. It felt that it was bound by a decision of a
different panel who heard Trask v. Dept. of Veterans
Affairs, 822 F.3d at 1191.
The Eleventh Circuit denied petitioners' timely
petition for panel rehearing or rehearing en banc.
A Petition for Writ of Certiorari was granted as to
the age discrimination claim. It resulted in Babb v.
Wilkie, 589 U.S. 399 (2020) which reversed and
remanded age discrimination claims.
On remand the Eleventh Circuit reversed and
remanded the age discrimination claim and the
gender discrimination claim but affirmed the
retaliation and hostile work environment claims.
Babb petitioned for rehearing on the latter two issues.
On rehearing the Eleventh Circuit held that the
Supreme Court’s decision in Babb I undermined Trask
to the point of abrogation and that the standard that
the Supreme Court articulated now controls cases
arising under Title VII’s nearly identical text. It
24
reversed the summary judgment on retaliation and
hostile work environment claims. It further held that
Monaghan v. Worldpay US, Inc., 955 F.3d 855 (11th
Cir 2020) clarified the law governing what it called
“retaliatory-hostile-work-environment” claims. The
standard for such claims is, “might have dissuaded a
reasonable worker” test articulated in Burlington
Northern & Santa Fe Railway Co. v. White, 548 U.S.
53 (2006), and Crawford v. Carroll, 529 F.3d 961 (11th
Cir. 2008). A retaliatory hostile work environment
(HWE) is a personnel action under 5 U.S.C.
§2302(A)(@)(a)(xii), Savage v. Dept. of the Army, 122
M.S.R.P. 612, 627 ¶23 (2015); Sistek v. Dept. of
Veterans Affairs, 955 F.3d 948, 955 (Fed. Cir. 2020).
The Eleventh Circuit vacated the district court’s grant
of summary judgment and remanded for the district
court to consider claims under the proper standards.
In the district court the defendant then moved for
“supplementary” summary judgment (MSJ) based
upon its original MSJ and certain additional
arguments. The MSJ was granted in part and denied
in part by order dated August 19, 2022. Summary
judgment was granted on Count II, gender and age
discrimination. The Order denied summary judgment
on Count I, retaliation, and Count III, retaliatory
hostile work environment.
The Eleventh Circuit and the district court seem to
have felt an independent “decision” by an interviewing
panel or at least statements by panel members, who
were not selecting officials, could effectively prove age
25
was not involved in the ultimate decision. This
involved misstated facts, resolution of disputed facts
and violation of Babb I. Justice created the panel and
its questions and was at the center of discrimination
against older females in this and the Trask case since
2011.
The district court criticized Babb for complaining
about “specific examples” questions when Justice
developed them and she and Stewart barred her any
anticoagulation training for over four months before
the interview and misled her on the nature of
questions. App.52a-53a. Babb thought she did well in
the interview until she saw the panel members
scoring and felt it was her worst interview. Training
“which may have been reasonably expected to lead to
an” action described in subparagraph (ix) and affects
their §(xii) rights can also be an adverse personnel
action under 5 U.S.C. §2302(a)(2)(A)(ix) and an event
in a hostile work environment. What panel members
thought and their recommendation can be considered,
but not as undisputed facts. In fact, some courts look
to the fact of who was selected as evidence of
discrimination and the role and comments of
supervisors. See Shazor v. Preferred Transit
Management, LTD., 744 F.3d 948, 957-958 (6th Cir.
2014) (person selected of different characteristics);
Wannamaker-Amos v. Purem Novi, Inc., 126 F.4th
248,259-260 (4th Cir. 2025) (supervisor’s role). This is
not like the Supreme Court hypothetical on p.407.
This is a process set up by the discriminator, Justice,
26
after she “predicted” there would be an EEO claim.
Babb should have the opportunity to rebut the
government’s effort to prove this defense.
Decision on gender
prejudiced trial.
plus
age
claims
Beyond summary judgment, the verdict was
prejudiced by the MSJ decision because it led to the
exclusion of evidence directly related to retaliatory
intent and differential treatment. This evidence
helped to prove consideration of protected
characteristics during the process of making all
adverse personnel actions.
On the last day of trial all retaliation damages
were stricken after reconsideration of the MSJ.
Paragraph 10j was specifically identified in the Third
Amended Complaint as a discrete act of retaliation
for, intra alia, opposing discrimination of older
females. That claim survived a Motion to Dismiss the
Third Amended Complaint and the MSJ. It provides:
On March 27, 2013, Babb became aware that
Wilson was excluding Babb from promotions by
implementing new qualification standards.
These qualification standards would make it
easier for those remaining pharmacists to
qualify with advanced scope of practice to be
promoted to GS-13.
This included the
predominately male pharmacists selected to
the PACT. This could have benefited Babb had
27
her scope of practice not been taken away. As
a result, plaintiff knew she could not be
promoted to GS-13 which would have brought
her a higher salary, pay, compensation and
benefits.
The first sentence states that Dr. “Babb became
aware that Wilson was excluding Babb from
promotions by implementing new qualification
standards on March 27, 2013.” The exclusion of
someone from promotion or a decision adversely
affecting their pay, would necessarily be an adverse
personnel action if done with retaliatory intent
because promotions and pay decisions are personnel
actions under 5 U.S.C. § 2302(a)(2)(A)§§(ii) and (ix).
Any adverse action affecting pay or promotions based
on retaliation would be an adverse personnel action.
The process by which this action came about, involved
a number of actions and statements about Babb’s
gender plus age and EEO activity. Damages were
stricken without considering those facts. The
Secretary, without any authority, claimed 10j cannot
be a discrete act even though it never obtained its
dismissal. Instead, the Secretary ignored the first
sentence of paragraph 10j and focused on the denial of
the advance scope management engineered without
Babb’s participation to claim 10j was not timely
exhausted. The denial of the advance scope is alleged
in paragraph 10i. The court excluded that as a discrete
act even though Babb never made it a discrete act. It
was part of the discrimination she suffered which led
28
to a pay claim in paragraph 10j which was listed as a
discrete act. The MSJ decision does not strike the
evidence in paragraph 10i. In paragraph 10j the
advanced scope is referenced in the fourth sentence
because it helps explain why Babb became aware on
March 27, 2013 that Wilson was excluding her from
promotions in qualification standards. Prior to this,
Babb had been told Williams did not want DSM. She
did not learn the truth until Williams was deposed in
this case. The very unusual removal of Babb’s advance
scope (per Stewart no advanced scope was ever
cancelled like Babb’s was) and then the March 27,
2013 announcement by Wilson opened her eyes and
made Babb aware that pharmacy was involved in
excluding her from promotions. Any effect on her pay
or promotion did not occur earlier than March 27,
2013. Cf. Shiver v. Chertoff, 549 F.3d 1342, 1344 (11th
Cir. 2008) (“The employee must contact an EEO
counselor within 45 days of the effective date of the
action.”) (Emphasis added.) She filed within 45 days.
The exhaustion regulation, 1614.105(a)(2), p.11
infra also establishes that the 45 days runs from the
effective date of the action. Here that is knowledge of
harm to her pay by discrimination by pharmacy
management. Second, Section 1614.105(a)(2) requires
an extension when an individual was “not notified of
the time limits and was not otherwise aware of them.”
In this case, and at the administrative stage when this
claim was administratively accepted, Babb testified
this is when she first realized Pharmacy and not just
29
Williams could have been doing this to harm her like
it did other older females.
With regard to all retaliation claims including
anticoagulation, we had cited Staub v. Proctor
Hospital, 562 U.S. 411 (2011) in our cat’s paw
argument. It is not mentioned in the decisions. Wilson
admitted perceiving Babb being involved EEO activity
by 2012 or early 2013. However, the appellate panel
never addressed Fogelman v. Mercy Hospital, 238
F.3d 561, 571–72 (3rd Cir. 2002) (recognizing that a
plaintiff can be perceived as engaging in protected
activity). It also did not address the Supreme Court
decision in Heffernan v. City of Paterson, 136 S.Ct.
1412, 1418-19 (2016) (A 1983 decision). The trial court
rejected a jury instruction on this issue and the
appellate court never considered either of these cases.
If they recognized LeSage and Mt. Healthy burden
shifting these errors could not have occurred.
On April 8, 2013, before the selection of the
anticoagulation position, a denial of the Mod B
position and the failure to give Babb holiday pay, both
Wilson and Justice testified under oath before an
Administrative Investigative Board (AIB). They
caused the AIB to be impaneled to investigate the
people they knew were making EEO claims against
them: Trask, Truitt and Babb. They told the AIB
investigators their names to target them for
investigation. The investigation cleared them but the
appellate decision implies otherwise. It is difficult to
understand why this targeting was not considered by
30
the panel as at least as a disputed fact. More
disturbing was the fact that Justice and Wilson signed
sworn declarations saying they knew nothing about
the EEO activity of Babb until after May 8, 2013. This
was designed to get past the times when certain
decisions were made. However, emails and sworn
testimony show it was a false statement and under
law that should be something that is considered for
credibility. She knew it was false because she targeted
Babb in the AIB interview, disputed claims in a
conference with Babb in February and emails
involving multiple managers in January 2013.
Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1285
(11th Cir. 2008). 7
As to Mod B, both Babb and another supervisor of
that position knew it was available in 2012. Justice
claimed Mod B was not available since 2012 until
somehow it became available the week before Babb
was to give a deposition in the Truitt Trask case and
she was offered a GS-13 position in Mod B or
anticoagulation whichever she wanted. There was no
evidence submitted that Mod B positions did not exist
except for Justice’s highly questionable testimony.
Courts will typically not consider such self-serving
uncorroborated statements. Her testimony had by
that point been impeached by several sources,
including Babb, Williams, Trask and sworn
7 In closing argument, defense counsel said the emails were
a prediction of events to come. Yet that was not considered on
May 8. In any event, it was a “consideration.”
31
documents including Hull emails and her own
testimony. In 2014 she placed Babb into a PACT
position without interviewing for it.
There were several decisions that were made on
the last day of the trial which literally gutted Babb's
case. First, the court denied testimony by Babb,
Donna Trask and another witness about older female
discrimination including email admissions and the
AIB sworn testimony.
Earlier in trial after Babb testified about Truitt
and Trask’s discrimination against them and other
older females, the secretary's attorney cross-examined
her by maintaining that Trask’s decision found that
there was no basis to their claims. We objected
because Trask had been abrogated by Babb I. It
should not have been used for purpose it was used.
The court instructed the jury that the decision was
abrogated. At the end of trial, the jury was told they
could not consider the testimony given by Babb, Trask
and the other evidence relating to older female
discrimination except as evidence of a good faith belief
in her retaliation claim, something that before this
would not have been reasonably doubted. Had the
MSJ on older female discrimination not been
erroneously granted, this evidence would have been in
the case. Yet it all included the very same
discrimination by the same people over substantially
the same positions and should have been admissible
under 404(b) for the purposes of showing intent. It was
32
admissible because in the retaliation case this
evidence can help to show motivation for retaliation.
See e.g. Whitmore v. Dept. of Labor, 680 F.3d 1353,
1370–72 (Fed. Cir. 2012) (in case involving high level
officials following (as here) an employee’s protected
activity, it is important to consider all the evidence of
retaliatory motive). Moreover, had the court properly
considered the statutory framework and realized the
Secretary had a burden, this evidence at least helped
to prove retaliatory intent and could have rebutted
self-serving statements by Justice and Wilson.
Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1285
(11th Cir. 2008); Demers v. Adams Homes of NW Fla.,
Inc., 321 Fed. Appx. 847, 853-54 (11th Cir. 2009); U.S.
Postal Service v. Aikens, 460 U.S. 711, 714 n.3 (1983).
This evidence can be critical in discrimination and
retaliation cases and was here especially because high
level officials were being accused over a multiyear
period of gender and age discrimination.
Finally, the striking of damages for retaliation and
the summary judgment on gender and age harmed
Babb’s claim she was denied holiday pay after Justice
gave her a Mod B Position. Defendant claimed Babb
did not receive holiday pay because she was on a
compressed schedule. However, 5 U.S.C. 6121
unquestionably disproved that. Other witnesses on
the same schedule testified they got holiday pay.
The trial resulted in a verdict and later a judgment
for the defendant on all counts.
33
This case helps show why Congress came up with
the language it did and why this Court’s settled
practice of shifting the burden to employers is
necessary in these cases.
REASONS FOR GRANTING THE WRIT
1. To protect federal employees in federal court
cases from causation standards that are
different than private-sector plaintiffs in Title
VII cases and federal employees’ who make
Title VII and ADEA claims in the
administrative process.
Neither the Secretary nor any court has offered a
reason to not apply Babb v. Wilkie to Title VII. Indeed,
the Eleventh Circuit has agreed it does apply. Yet,
once liability is found the decision in this case would
reject burden shifting envisioned by Babb I under
LeSage and Mt. Healthy. Conversely, private-sector
plaintiffs in Title VII cases and federal employees who
make Title VII and ADEA claims in the
administrative process, have a causation standard
which shifts the burden to the employer. There is no
rational basis for this difference and it prejudicially
affects an analysis of liability by a court at the
summary judgment phase and a jury at trial.
2. All federal courts need to apply the statutory
framework of Babb I including burden shifting
after liability.
34
Babb I held liability is differential treatment
which includes consideration of a protected
characteristic in the process of making an adverse
personnel action. 589 U.S. at 402-403, 404, 406-408.
409-413. Both the district and appellate courts
rejected gender claims because two females, (both
around 30) were selected. App.51a. They both rejected
age discrimination because of reasons given by a
couple of panel members subordinate to Justice and
Stewart which they apparently viewed as an
independent basis for the decisions without discussing
other roles. App.52a-53a. Yet differential treatment
does not have to affect the ultimate decision. Id. at
p.407. The appellate court went further and criticized
Babb for relying on “consideration” when discussing a
jury instruction dispute. App.22a. The instructions
the court criticized (third) were:
To succeed on her claim, Plaintiff must prove
each of the following facts by a preponderance
of the evidence:
First:
activity;
Plaintiff
engaged
in
protected
Second: Defendant then made a materially
adverse personnel action, or actions;
Third: Plaintiff’s protected activity was
considered by the Defendant or that it played
any role or part in the process of making the
personnel action or actions; and
35
Fourth: Plaintiff suffered damages because
of the personnel action.
The instructions went on to address burden
shifting, but they were not given.
Conversely, over objection the court accepted the
defendant’s statement of Plaintiff’s claim that:
Jury instruction Number 8: In this case, the
plaintiff claims that the defendant retaliated
against the plaintiff because she took steps to
enforce her lawful right under Title VII and
the Age Discrimination in Employment Act.
Laws that prohibit discrimination in the
workplace also prohibit an employer from
taking any retaliatory action against an
employee because the employee has asserted
rights for making complaints under those
laws.
The court’s third element instruction stated:
Defendant treated plaintiff differently during
the process of making the adverse employment
actions based on plaintiff’s EEO activity.
In context of all the instructions, this allowed the
Defendant to argue (Dkt.223p96:14-21):
Did the defendant treat the plaintiff
differently during the process of making the
adverse employment action based on plaintiff
36
EEO activity? In other words, what you’ll hear
in the instructions is that if you took away the
EEO activity, would something different have
happened during that process, like the
anticoagulation process? Would she have been
treated differently in some way. And there’s
been no evidence of that. None. Right?
The Court of Appeals upheld the instructions
because Babb “must show that alleged differential
treatment based on protected activity played a role in
the decision.” App.22a. It relied on the Safeco decision
which Babb I rejected. However, that finding is
necessary because the jury instructions could have
caused the jury to believe that differential treatment
had to affect the decision in order for something to be
different. There was not only no instruction about
burden shifting which would have helped the jury to
understand what counsel was talking about, there
was no instruction about differential treatment not
having to affect the ultimate decision. Both the
appellate court and the district court used a decision
centric analysis that has to be used if there is no
explanation differential treatment does not have to
affect the decision and there is no burden shifting
under LeSage and Mt. Healthy. This is a case with
emails, sworn testimony and other evidence showing
protected characteristics were considered and actions
taken throughout the time the people writing or
giving them were involved in making adverse
personnel decisions. Yet there is no instruction or
37
analysis in the motion for summary judgment which
does not play a role in the decision or more
importantly one that focuses upon what was
considered during the process or the way the decision
was made. 8
By not following LeSage and Mt. Healthy or
seriously analyzing the consideration of protected
characteristics federal employees face a task at least
as difficult as McDonnell Douglas against an
entrenched defendant. Please note how defense
counsel made an argument of deflection in closing:
Dkt.223,p72(gives personal opinion of
truthfulness
of
Justice);
Dkt223,p73
(discussed an emotion Justice supposedly
feels when Babb raises a harassment claim);
Dkt.223,p75 (discuss two options against
proof of an evil conspiracy); Dkt.223,p78
(criticizing not showing Williams an after the
fact document in his deposition which he
claims could have impeached Williams
testimony); 9 Dkt.223,p.80 (criticizing not
Both Justice and at this time Stewart were supervisors
above the pharmacists they chose to be on the panel, to record
answers to questions Justice prepared and to criticize Babb for
not having answers for “specific examples.” App.52a-53a.
However, the court does not reference that Justice in her
January 2013 emails with Stewart, the panel lead, had already
decided that the float pool was where Babb ought to be and
Stewart agreed.
9 Why was this inaccurate inadmissible argument even made
if Williams testified he decided to deny Babb any DSM slots as
8
38
showing Stewart an email in his deposition
[the defense attorney alone] claimed explains
a document Stewart swore he did not like);
Dkt.223,p82 (Plaintiff must prove Justice et
al involved in great conspiracy, over years,
and willing to commit perjury); Dkt.223pp83
(“Monsters, evil, vile”); Dkt.223,p86 (Agency
attorney Burton doesn’t know what she is
saying when she sent these); Dkt.223,p.87
(Memos referencing EEO activity just
Justice and Marjorie Howard accurately
predicting what’s coming); Dkt.223,p89
(discuss a performance appraisal grievance
which the facility Director upheld shows that
“they didn’t trick Wilson [sic] at the
December 12th meeting” which made no
sense about evil intent or anger);
Dkt.223,p93 (completely misdescribed 5
U.S.C.§6121 and holiday pay claims because
Babb made more money by working
weekend, cannot be evil [to help the jury
ignore the statement Kimberly Shaw and
other employees who received holiday pay on
same schedule.] Then discusses other
departments who properly paid employees as
trying to be nice to employees instead of
following the law in 5 U.S.C.§6121; (Changes
the appellate panel found? Williams testified he was always
agreeable to continue three. Babb proved she was able to achieve
25% with 3 slots because of drop-ins and phone visits. Pharmacy
engineered no DSM slots.
39
statute to claim this shows 8 nine-hour days
and 2 four-hour days does not equal 10 days
over two weeks but only 9 days.) 10
None of this is a rational argument if Defendant
has a burden of proof. These issues are not statutory
factors that should affect a federal employee’s rights.
In every brief on jury instructions, trial brief, and
appellate brief, Babb and all the other plaintiffs cited
the Supreme Court decisions concerning “but-for” or
“because of” liability under LeSage and Mt. Healthy.
Plaintiff has to show liability (here differential
treatment) and the Secretary, who is in the best
position to do it, has to present evidence to support a
same decision defense. Its denial leaves federal
employees defenseless against Justice, Stewart,
Wilson and others. The government can simply
ignore VA Central Office directives and how this was
done in all other hospitals around the country and 20
or 30 more problems with their defenses because they
have no burden to consider when deciding not to
settle and to defend cases like this. The Secretary
had to carry its burden.
10 Judicial Notice of 5 U.S.C. § 6121 was taken because it
contradicted the government’s claim Babb was not allowed
holiday pay because she worked a compressed schedule. Section
6121 showed Babb was not working a compressed schedule. She
was being denied holiday pay.
40
3. To remind courts to apply the holdings of Tolan
v. Cotton, 572 U.S. 650 (2014) and this Court’s
decisions related to principles of statutory
construction.
In Tolan v. Cotton, 572 U.S. 650 (2014) the
Supreme Court reversed the Fifth Circuit Court of
Appeals’ holding that a police officer’s actions did not
violate clearly established law because it improperly
weighed evidence and resolved disputed issues in
favor of the moving party by failing to credit key
evidence offered by the suspect with regard to
lighting, his mother’s demeanor, whether he shouted
words that were an overt threat, and his positioning
during the shooting. Id. at 659-660. That has
happened here.
In addition to the plain meaning of the words, “free
from any,” the laws of statutory construction also
support Babb I and the decisions by the MSPB, and
EEOC.
“[W]here Congress includes particular
language in one section of the statute, but omits it in
another . . . it is generally presumed that Congress
acts intentionally and purposely in the disparate
inclusion or exclusion.” Keene Corp. v. United States,
508 U.S. 200, 208 (1993) (quoting Russello v. United
States, 464 U.S. 16, 23 (1983)); see also Bailey v.
United States, 516 U.S. 137, 146 (1995) (distinction in
provisions between “use” and “intended to be used”
creates implication that related provisions relying on
“use” alone refer to actual not intended use); DIRECT
TV, Inc. v. Brown, 371 F.3d 814, 817-18 (11th Cir.
41
2004) (“[W]hen Congress uses different language in
similar sections it intends different meanings.”)
CONCLUSION
For the foregoing reasons, this Court should grant
this petition and issue a writ of certiorari to review the
judgment and opinion of the Eleventh Circuit Court of
Appeals.
Respectfully submitted,
JOSEPH D. MAGRI
Counsel of Record
SEAN M. MCFADDEN
MERKLE & MAGRI, P.A.
5601 Mariner St., Ste. 400
Tampa, Florida 33609
Telephone: 813-281-9000
Email:jmagri@merklemagri.com
42
APPENDIX
APPENDIX
TABLE OF CONTENTS
Opinion of the United States Court of Appeals,
June 26, 2025……………......................................1a
Judgment of the District Court for the Middle District
of Florida, August 19, 2022.................................24a
Order of the District Court for the Middle District of
Florida, November 10, 2022…............................63a
Order of the United States Court of Appeals,
September 15, 2025…………....…..……………..68a
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 23-10383
D.C. Docket No. 8:14-cv-01732-VMA-TBM
NORIS BABB,
Plaintiff-Appellant,
versus
SECRETARY, DEPARTMENT OF VETERANS
AFFAIRS,
Defendant-Appellee.
Appeal from the United States District Court
for the Middle District of Florida
(June 26, 2025)
OPINION
Before JILL PRYOR, NEWSOM, and LAGOA, Circuit
Judges.
PER CURIAM:
In 2014, Norris Babb, a federal employee, sued the
Secretary of the Department of Veterans Affairs,
alleging sex and age discrimination, retaliation, and
retaliatory hostile work environment pursuant to
Title VII of the Civil Rights Act of 1964 (“Title VII”),
as amended, 42 U.S.C. § 2000e-16(a), and the Age
1a
Discrimination in Employment Act (“ADEA”), 29
U.S.C. § 626. After a series of intervening decisions
and appeals, the district court granted summary
judgment in favor of the Secretary on Babb’s sex and
age discrimination claims. Babb’s Title VII retaliation
claim and retaliatory hostile work environment claim
proceeded to a jury trial and the jury returned a
verdict for the Secretary on both claims.
On appeal, Babb argues that the district court (1)
misapplied the federal-sector employment causation
standard for discrimination and retaliation claims
outlined in Babb v. Wilkie, 589 U.S. 399 (2020) (“Babb
I”), and Babb v. Sec’y, Dep’t of Veterans Affs., 992 F.3d
1193 (11th Cir. 2021) (“Babb II”), in its ruling on
summary judgment, and (2) abused its discretion in
its jury instructions. After carefully considering the
parties’ arguments and with the benefit of oral
argument, we affirm the judgments below.
I. FACTUAL BACKGROUND
Noris Babb joined the C.W. Bill Young VA Medical
Center (“VA”) in 2004 as a clinical pharmacist under
the auspices of the VA’s Pharmacy Services division.
In 2006, Babb became a pharma- cist in the Geriatrics
Clinic at the VA, where she worked until June 2013.
During her tenure in Geriatrics, Babb worked as a
member of an “interdisciplinary team” of caregivers.
Babb’s role and responsibilities were governed by a
service agreement between Pharmacy Services and
Geriatrics. As such, Babb had two sets of supervisors:
Dr. Leonard Williams, Chief of the Geriatrics Clinic,
and several Pharmacy Services administrators,
including (1) Dr. Gary Wilson, Chief of Pharmacy
Services; (2) Dr. Marjorie Howard, Babb’s Pharmacy
2a
Services direct supervisor; (3) Dr. Keri Justice, Associate Chief of Pharmacy Services; and (4) Dr. Robert
Stewart, the Clinical Pharmacy Supervisor.
In 2009, Babb obtained an “advanced scope,” which
meant she could practice “disease state management”
(“DSM”). As a DSM practitioner, Babb could
independently manage patients for certain conditions
within the scope of her expertise—diabetes,
hypertension, and lipids—without having to consult a
physician. In 2011, the VA implemented a new
nationwide patient-care system, “Patient Aligned
Care Team” (“PACT”), which emphasized “continuity
of care,” and required each team member to “work[] at
their highest...licensed capacity” to provide optimal
medical care for patients. Under PACT, GS-12
pharmacists who practiced DSM at least 25% of the
time would be eligible for promotion to GS-13. As a
GS-12 with an advanced scope enabling her to practice
DSM, Babb naturally sought promotion to GS-13.
During this period (2011–2012), Babb, along with
several other women, began to suspect that Pharmacy
Services was implementing the new qualification
standards for promotion in a manner that
discriminated on the basis of sex and age. Ultimately,
two clinical pharmacist colleagues of Babb, Donna
Trask and Anita Truitt, filed EEOC complaints in
October 2011, which culminated in their filing an age
and sex discrimination lawsuit against the Secretary
in February 2013. Babb supported her colleagues’
allegations, first by providing statements to an EEOC
investigator in April and May of 2012, and then, by
3a
providing deposition testimony in March 2014. 1
According to Babb, her “whole career...changed” and
“took a turn in a bad direction” after “participat[ing]”
in Trask and Truitt’s case against the Secretary.
In June 2012, Howard, Babb’s direct supervisor,
asked whether Babb would consider transferring to a
vacant primary care position in “Module B.” Howard
recommended Babb’s transfer because she did not
think that Babb could satisfy the 25% requirement for
the GS-13 promotion if she stayed in the Geriatrics
Clinic. But Babb declined. She explained that treating
geriatrics was her professional calling and that she
remained hopeful that she could see additional
patients and thereby satisfy the new promotion
criterion. Notably, around this same time, Natalia
Schwartz, a younger female pharmacist, requested
transfer to the Module B vacancy, but Pharmacy
Services denied her request after deciding not to fill
the position.
About two months later, in August 2012, the
service agreement between Pharmacy Services and
Geriatrics was up for renegotiation. Both Pharmacy
Services and Geriatrics initially explored the
possibility of having Babb remain in Geriatrics and
spend at least 25% of her time using her advanced
scope to practice DSM. But such an arrangement was
ultimately viewed as unworkable. Babb’s Geriatrics
supervisor, Williams, concluded that (1) reserving
1 In April 2016, we affirmed a federal district court’s grant of
summary judgment for the Secretary. See Trask v. Sec’y, Dep’t of
Veterans Affs., 822 F.3d 1179, 1184 (11th Cir. 2016). But, as
discussed below, in Babb II we held that our decision in Trask
was abrogated by the Supreme Court’s decision in Babb I. See
Babb II, 992 F.3d at 1196, 1200–04 (11th Cir. 2021).
4a
25% of Babb’s time for DSM would detract from Babb’s
primary job as a clinical pharmacist and increase wait
times for patients, and (2) DSM was not well-suited
for geriatric patients. Williams determined that
Geriatrics could only provide Babb with three slots per
day to practice DSM, but that would fall short of the
requisite 25% to receive a GS-13 promotion.
Accordingly, the executed service agreement did not
provide for Babb to practice DSM. Instead, Babb was
to spend her time working as a clinical pharmacist as
part of an integrated patient-care team, which was
Williams’s preference.
Because Babb would no longer practice DSM under
the renegotiated service agreement, Pharmacy
Services initiated the process to remove Babb’s
advanced scope, which was completed in February
2013.
Around the time of the renegotiation of the service
agreement, Babb’s increasing concern that she would
not be able to practice DSM in Geriatrics led her to
ask about opportunities in the VA’s anticoagulation
clinic. To facilitate her potential transfer, Babb
requested anticoagulation training. But Pharmacy
Services denied her request. Pharmacy Services
explained that (1) the anticoagulation clinic was
responsible for training medical residents, (2) it was
understaffed and did not have the capacity to train
others, and (3) such training was irrelevant to Babb’s
work in Geriatrics anyway. Babb was denied the same
request in January 2013. Notably, Pharmacy Services
denied similar requests from other pharmacists as
well.
5a
In April 2013, two positions opened in the
anticoagulation clinic. Seizing on the opportunity to
transfer out of Geriatrics, Babb applied. A threemember panel comprising Kim Hall, Catherine
Sypniewski, and Robert Stewart conducted interviews
for the two positions. The panel ultimately selected
Sara Grawe (age 26) and Amy Mack (age 30), two
younger female pharmacists who scored highest on
the interview.
Babb admitted that her interview went poorly due
to “anxiety and stress” and that it was “the worst
interview of [her] life.” The panel’s testimony
corroborates Babb’s recollection. Hall remembered
that Babb used unprofessional language (like “crap”
and “screwed up”) and harshly criticized her
colleagues. This made Hall question whether Babb
was a good fit for the anticoagulation clinic, which
prioritized
communication
skills.
Sypniewski
explained that Grawe and Mack possessed
significantly more anticoagulation experience—Babb
had none—and provided better answers to difficult
medical questions. And Stewart echoed Sypniewski’s
assessment that Babb’s anticoagulation experienced
was “nowhere near” the selected applicants. The
panelists awarded Babb 39 points, falling far short of
Grawe and Mack, who received scores of 52 points and
62 points, respectively, in part because they had a
“significant
amount”
of
training
“in
the
anticoagulation clinic.”
That same April, as Babb was interviewing for the
anticoagulation position, Wilson, Chief of Pharmacy
Services, received an anonymous “vulgar” letter
critical of Pharmacy Services’ promotion practices for
employees between GS-11 and GS-13. Pharmacy
6a
Services convened an administrative investigation
board (“AIB”) to investigate and uncover the letter’s
author. Justice, Associate Chief of Pharmacy Services,
testified to the AIB that (1) Babb was one of the “mowwows,” i.e. “squeaky wheels,” who are “never happy,
always complaining,” and (2) certain employees
perceived that “they were discriminated against
because they were older and female.” Wilson also
testified to the AIB that Babb “felt that [she was]
discriminated against over age and sex.” Ultimately,
Babb was questioned in connection with the letter
along with 25 other employees.
Around this same time, Babb also requested a
transfer to the Module B position that she had
declined back in June 2012, in the hope that working
in Module B would allow her to once again practice
with an advanced scope and achieve a GS-13
promotion. Justice denied Babb’s request, explaining
that (1) Pharmacy Services had decided not to fill that
vacancy, and (2) she could not transfer Babb to a
position with promotion potential without advertising
the position and allowing for a competitive application
process.
In May 2013, after failing to secure either the
anticoagulation or Module B positions, Babb filed the
EEOC complaint that resulted in this lawsuit. She
also requested transfer to the “float pool,” where she
could be part of a group of rotating pharmacists filling
in for absent staff. Practicing as a “floater” did not
require an advanced scope and presented no
promotion opportunities, but at this point Babb
simply wanted out of Geriatrics. Pharmacy Services
approved Babb’s request, and she joined the float pool
in July 2013.
7a
After Babb spent several months working as a
floater, another two GS-13 positions opened up. The
first was a PACT assignment split between Module B
and Module D, and the second was a half
anticoagulation and half Palm Harbor clinic position.
In March 2014, Babb accepted the PACT assignment,
and in April 2014, Justice submitted the paperwork to
facilitate Babb’s GS-13 promotion. Babb’s promotion
was approved in August 2014.
Despite the promotion, Babb was unhappy that her
new job—which consisted of four 9-hour shifts
Tuesday through Friday and one 4-hour shift on
Saturday mornings—only entitled her to four hours
holiday pay for each of the five Monday federal
holidays. The VA offered to change her schedule (by
shifting her Saturday work to other days) so that she
could receive a full eight hours of holiday pay on those
five Mondays, but Babb declined because the
Saturday hours came with additional pay.
II. PROCEDURAL HISTORY
In 2014, Babb sued the Secretary of the
Department of Veterans Affairs, alleging retaliation,
sex and age discrimination, a hostile work
environment, and a retaliatory hostile work
environment under Title VII and the ADEA. The
Secretary moved for summary judgment, which the
district court granted in full.
Babb appealed the district court’s decision, and we
reversed and remanded on Babb’s sex discrimination
claim but affirmed the district court’s other rulings.
See Babb v. Sec’y, Dep’t of Veterans Affs., 743 F. App’x
280 (11th Cir. 2018). We concluded that the district
8a
court erred by applying the McDonnell Douglas
framework to Babb’s sex discrimination claim instead
of the more lenient “motivating factor” standard,
which we stated in Quigg v. Thomas Cnty. Sch. Dist.,
814 F.3d 1227 (11th Cir. 2016) applies to a “mixedmotive” claim— when a plaintiff alleges that an
employer engaged in an adverse personnel action for
a combination of discriminatory and nondiscriminatory reasons. Id. at 286–87. But we rejected
Babb’s argument that the Quigg standard also applied
to her age discrimination and retaliation claims. We
acknowledged that “if we were writing on a clean
slate, we might well agree,” but that we were bound
by our precedent in Trask, which applied the
McDonnell-Douglas framework to such claims. Id. at
287–88. We also concluded that the district court
properly evaluated and rejected Babb’s hostile work
environment claims under Gowski’s “severe and
pervasive” standard. Id. at 291–92.
Babb then petitioned the Supreme Court, which
granted certiorari on one issue: whether the federalsector provision of the ADEA required her to prove
that age was a “but-for” cause of an adverse personnel
action. Babb I, 589 U.S. at 402. The Supreme Court
ruled for Babb, explaining that the plain language of
§ 633(a) of the ADEA, which mandates that
“personnel actions...shall be made free from any
discrimination based on age...”, requires a plaintiff to
show only that “age discrimination plays any part in
the way a decision is made.” Id. at 405–08. Imposing
this looser causation standard ensures that personnel
actions are “untainted by any considerations of age”
regardless of whether such considerations would have
changed the outcome. Id. at 402.
9a
But the Supreme Court made clear that a plaintiff
must still show “that age was a but-for cause of
differential treatment” that ultimately played a part
in the adverse employment outcome. Id. at 414. And
the Supreme Court also explained that “plaintiffs who
demonstrate only that they were subjected to
[differential treatment] cannot obtain reinstatement,
backpay, compensatory damages, or other forms of
relief related to the end result of an employment
decision.” Id. at 413. To obtain such remedies,
“plaintiffs must [still] show that age discrimination
was a but-for cause of the employment outcome.” Id.
Following the Supreme Court’s decision, we
reversed and remanded on Babb’s age and sex
discrimination claims but otherwise affirmed the
district court. See Babb v. Sec’y, Dep’t of Veterans Affs.,
802 F. App’x 548 (11th Cir. 2020). Babb petitioned for
a rehearing on two issues: (1) whether the Supreme
Court’s decision extended to Babb’s retaliation claim
and (2) whether our intervening decision in
Monaghan v. Worldpay US, Inc., 955 F.3d 855 (11th
Cir. 2020) undermined our previous rejection of
Babb’s retaliatory hostile work environment claim.
Babb II, 992 F.3d at 1195.
We granted her petition and answered in the
affirmative on both issues. Id. at 1195–96. Because
the ADEA’s federal-sector provision was “nearly
identical” to Title VII’s retaliation provision—both
containing the “shall be made free from any
discrimination” language—we held that the Supreme
Court’s decision abrogated our holding in Trask and
that the district court must reassess Babb’s
retaliation claim under the new framework outlined
by the Supreme Court. Id. at 1199–1205. We reasoned
10a
that “[w]ithout quite saying as much...it seems that
the Supreme Court accepted Babb’s argument ‘that
the District Court should not have used the
McDonnell Douglas framework.’” Id. at 1204 (quoting
Babb I).
As to Babb’s retaliatory hostile work environment
claim, we explained that our decision in Monaghan—
which held that a retaliatory hostile work
environment claim is a subset of a retaliation claim
rather than of a hostile work environment claim—
undermined Gowski, which had analyzed retaliatory
hostile work environment claims under the “severe or
pervasive” standard appropriate for hostile work
environment claims. Id. at 1205–08. Instead, we held
that retaliatory hostile work environment claims
should be adjudicated based on the “different, less
onerous standard” applied to retaliation claims:
“whether the employer’s complained-of action well
might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.” Id.
at 1206–08. Accordingly, we reversed and remanded
to the district court once again, this time to reevaluate
Babb’s age and sex discrimination claims, her
retaliation claim, and her retaliatory hostile work
environment claim. Id. at 1209.
After supplemental briefing to address the
intervening changes of law, the district court issued a
renewed opinion, granting summary judgment for the
Secretary on Babb’s sex and age discrimination
claims, but denying summary judgment on Babb’s
retaliation and retaliatory hostile work environment
claims. Applying the standard outlined in Babb I and
II, the district court found that Babb had not shown
that a reasonable jury could conclude from the
11a
evidence presented that Babb’s age or sex played any
role at all in the process leading to the two alleged
adverse employment decisions: (1) her non-selection
for the anticoagulation position and (2) denial of her
request to transfer to Module B. But applying that
same “played any role in the decision-making”
standard to Babb’s retaliation claim, the district court
found that a reasonable jury could infer a causal
connection between Babb’s opposition to alleged
discrimination and certain differential treatment she
experienced in the decision-making process for several
retaliatory personnel actions, including the removal of
her advanced scope, denial of her holiday pay, denial
of her transfer request to Module B, and her nonselection for the anticoagulation position. As to Babb’s
retaliatory hostile work environment claim, the
district court found that a reasonable jury could
conclude that Babb’s work environment “might well
have dissuaded [her] from making or supporting a
charge of discrimination.” Babb’s Title VII retaliation
and retaliatory hostile work environment claims thus
proceeded to trial.
Prior to trial, the Secretary moved for partial
reconsideration of the district court’s order, solely to
address an inconsistency between the district court’s
ruling and one of its prior rulings in the action. In
analyzing Babb’s retaliation claim, the district court
had listed the removal of Babb’s advanced scope as
one of several actionable discrete retaliatory
personnel actions. However, in its prior ruling
dismissing Babb’s Second Amended Complaint, the
district court had held that the removal of Babb’s
advanced scope could not constitute a discrete act of
retaliation because Babb had failed to timely assert it
as such to an EEO counselor within the requisite 4512a
day period. Accordingly, Plaintiffs’ Third Amended
Complaint—the operative complaint—did not identify
the removal of the advanced scope as a discrete act of
retaliation. The district court agreed, holding that
“[t]he...removal of Dr. Babb’s Advanced Scope
is...time-barred from consideration as a discrete act,”
alt- hough it could “serve as circumstantial evidence
of...retaliatory an- imus.”
An eight-day trial followed. Babb presented
testimony from eleven witnesses and deposition
testimony. The Secretary presented five witnesses.
Collectively, the parties introduced over 100 exhibits.
As relevant to this appeal, the district court
instructed the jury that testimony presented by Babb
concerning age and sex discrimination experienced by
Trask and Truitt was admissible “only for the limited
purpose of proving Dr. Babb’s good faith belief that
[Trask and Truitt] had been discriminated against
and not for any other purpose.”
The district court also instructed the jury
concerning the causation standard for Babb’s
retaliation and retaliatory hostile work claims. The
district court’s instruction for Babb’s retaliation claim
required proving that “Defendant treated Plaintiff
differently during the process of making the adverse
employment actions based on Plaintiff’s EEO
activity.” Likewise, the instruction for Babb’s
retaliatory hostile work environment claim required
proving that “Plaintiff was subjected to offensive acts
or statements about or because of her protected EEO
13a
activity—even if they were not specifically directed at
her...” 2
The jury returned a verdict for the Secretary on
both counts, finding that (1) no one had “treated
[Babb] differently during the process of making the
adverse employment actions based on [Babb’s] EEO
activity” and (2) no one had “harassed [Babb] because
of her EEO activity.”
This appeal timely ensued.
III. STANDARD OF REVIEW
We review a grant of summary judgment de novo,
“viewing all evidence and drawing all reasonable
factual inferences in favor of the nonmoving party.”
Terrell v. Sec’y, Dep’t of Veterans Affs., 98 F.4th 1343,
1351 (11th Cir. 2024) (citation and quotations
omitted). And we generally review a district court’s
refusal to give a jury instruction for abuse of
discretion. Watkins v. City of Montgomery, Ala., 775
F.3d 1280, 1289 (11th Cir. 2014). “A district court
abuses its discretion by refusing to give a requested
instruction ‘only when (1) the requested instruction
correctly stated the law, (2) the instruction dealt with
an issue properly before the jury, and (3) the failure to
give the instruction resulted in prejudicial harm to the
2 By contrast, Babb’s rejected proposed instruction for her
retaliation claim required proving that “Plaintiffs protected
activity was considered by the Defendant or that it played any
role or part in the process of making the personnel action or
actions. And her proposed instruction for her retaliatory hostile
work environment claim required proving that “Plaintiff’s
supervisors harassed her while considering her protected
activities.”
14a
requesting party.’” Id. at 1291 (quoting Burchfield v.
CSH Transp., Inc., 636 F.3d 1330, 1333-34 (11th Cir.
2011) (per curiam)).
IV. ANALYSIS
A. Sex And Age Discrimination Claims
Prior to Babb I and II, the standard framework for
evaluating federal-sector employment discrimination
claims was the McDonnell Douglas burden-shifting
framework. See Buckley v. Sec’y of Army, 97 F.4th 784,
794 (11th Cir. 2024). Under this framework, a plaintiff
carries the initial burden of establishing a prima facie
case of discrimination. Id. Once a prima facie case is
established, the burden then shifts to the employer to
provide a legitimate, nondiscriminatory reason for its
actions. Id. Assuming it does, the burden then shifts
back to the employee to show that the employer’s
proffered reason is mere pretext. Id. In short, under
McDonnell Douglas, “the plaintiff bears the ultimate
burden to show that discrimination was the but-for
cause of her employer’s adverse personnel action.” Id.
We have held that application of the McDonnell
Douglas test to Title VII and ADEA federal-sector
discrimination claims does not “make sense” post
Babb I and II. Buckley, 97 F.4th at 794. This is
because Title VII’s federal-sector provision no longer
requires a showing of but-for causation as to the
ultimate employment outcome, but “only that a
protected characteristic played any part in [the]
employer’s process in reaching an adverse
employment decision.” Id. Thus, using the McDonnell
Douglas framework “is like requiring the plaintiff to
move a boulder when she need only push a pebble.” Id.
15a
The framework is “much simpler” now. Id. at 795.
“In analyzing [a] disparate-treatment claim we return
to Babb I’s directive and simply assess whether [the
plaintiff] has proffered evidence that her [protected
class] ‘play[ed] any part’ in the...decision making
process” that resulted in the adverse employment
decision. Id.; see Terrell, 98 F.4th at 1352 (holding that
under Title VII’s federal-sector provision a plaintiff
now “must proffer evidence that her race or national
origin played any part in the hiring process”). 3
Here, we conclude that the district court correctly
found that Babb could not establish that a protected
characteristic played any part in the decision-making
processes concerning (1) her non-selection for the
anticoagulation position and (2) the denial of her
transfer to Module B. 4 We turn first to the
anticoagulation position.
1. Non-Selection For Anticoagulation Position
Babb’s argument that she was subjected to
differential treatment on the basis of sex or age in her
non-selection for the anticoagulation position boils
3 To clarify, to assert a claim for injunctive relief, a plaintiff
no longer needs to show but-for causation as to the ultimate
employment outcome; but such a showing is still required for
monetary damages. See Babb I, 589 U.S. at 413–14.
4 Because Babb cannot even establish discrimination in the
decision-making processes resulting in her adverse employment
outcomes, Babb is not eligible for injunctive relief. See Babb I,
589 U.S. at 414. And it goes without saying that Babb is also not
eligible for monetary relief, as such relief requires showing that
alleged discrimination was the but-for cause of an adverse
employment decision itself. See id. at 413.
16a
down to two contentions: (1) two younger female
pharmacists were selected in her stead and (2) the
selection panel awarded additional points to
applicants with residency training and residencytrained pharmacists tend to be younger. Neither
contention evinces unlawful differential treatment on
the basis of sex or age.
First, Babb provides no evidence that age or sex
played any role in the selection of Grawe and Mack.
Both younger pharmacists, like Babb, were female,
and the record conclusively establishes that the
interviewing panel selected them because they “had
significantly more experience in the applied for
position” and that their experience “indicated...that
they should be capable of doing the job in an efficient
and skilled manner [and] should require little training
to practice independently.”
Conversely,
the
interviewers noted that Babb had no anticoagulation
experience and had acted unprofessionally during the
interview. Indeed, Babb’s interview went so poorly
that she acknowledged that “it was the worst
interview of [her] life.”
As for the choice to award additional points to
applicants with residency training, the record
provides no indication that privileging residencytrained pharmacists was motivated by discriminatory
considerations of age or sex. See Babb I, 589 U.S. at
406 (“age must be a but-for cause of...differential
treatment”). As one member of the selecting panel
explained, “a residency should...carry higher points
than a board certification [because] a residency is one
year of intensive focused training, mentoring, and
learning for a pharmacist where they get extensive
experience in disease state management” and there is
17a
“no substitute for the experience that someone gets in
residency when it comes to disease state management
advanced scope.”
Contrast the panel’s awarding of additional points
for a residency with the hypothetical the Supreme
Court used in Babb I to illustrate discriminatory
differential treatment in the decision-making process:
Suppose that a decision-maker is trying to
decide whether to promote employee A, who is
35 years old, or employee B, who is 55. Under
the employer’s policy, candidates for promotion
are first given numerical scores based on nondiscriminatory factors. Candidates over the age
of 40 are then docked five points, and the
employee with the highest score is promoted.
Based on the non-discriminatory factors,
employee A (the 35-year-old) is given a score of
90, and employee B (the 55-year-old) gets a
score of 85. But employee B is then docked 5
points because of age and thus ends up with a
final score of 80. The decision-maker looks at
the candidates’ final scores and, seeing that
employee A has the higher score, promotes
employee A.
Babb I, 589 U.S. at 407.
The Supreme Court explained that even though
employee A would have had the higher score
regardless, docking points from employee B because of
his age was still a form of unlawful differential
treatment. Id. But here, unlike the Supreme Court’s
hypothetical where there was a direct connection
between points awarded and age discrimination, the
18a
connection between privileging a residency and any
possible
discriminatory
motivation
is
pure
speculation. And such speculation does not suffice to
show that discriminatory differential treatment
played a role in an adverse employment outcome per
Babb I and II, which still require proving that age or
gender was a “but-for cause of discrimination—that is,
of differential treatment.” Babb I, 589 U.S. at 406; see
Babb II, 992 F.3d at 1204.
Babb also raises a third argument by pointing to
allegations of gender and age discrimination by other
women who worked at the VA. But Babb does not
connect any of those general allegations to the specific
decision-making process resulting in her non-selection
for the anticoagulation position. Even taking these
allegations in the light most favorable to the nonmoving party, Babb’s inability to tie any of them to the
individuals comprising the panel that rejected her
renders them immaterial. See Buckley, 97 F.4th at 795
(finding the discriminatory conduct of others
irrelevant because they did not participate in the
personnel decision and “we can’t say the[ir] [actions]
bear any direct connection to...the supervisors that
decided to remove [plaintiff]”). Indeed, the Supreme
Court stressed that any alleged discrimination must
play a part “when the actual decision was made,” as to
hold otherwise would have “startling implications.”
Babb I, 589 U.S. at 408 n.3. Here, not only does Babb
fail to connect any other alleged discrimination to the
panel, she fails to show how any other alleged
discrimination factored into the panel’s decision.
In sum, other than her non-selection despite more
qualified candidates, Babb offers no other
circumstantial evidence that considerations of age or
19a
sex played a part in the panel’s decision. We thus
conclude that Babb failed to establish that
discriminatory differential treatment tainted the
panel’s decision-making in filling the anticoagulation
positions. See Terrell, 98 F.4th at 1354 (differential
treatment did not play a part in non-selection where
the selectee “had fourteen years of Nurse Manager
experience (compared to [plaintiff’s] three) as well as
the Nurse Executive certification (which [plaintiff]
lacked)” and the plaintiff provided no other
circumstantial evidence of discrimination). We now
turn to Babb’s request to transfer to Module B.
2. Denial Of Request to Transfer to Module B
On appeal, Babb fails to counter the district court’s
finding that Babb was not subject to any differential
treatment on the basis of age or sex when Pharmacy
Services denied her request to transfer to Module B
for the simple reason that the Module B position did
not exist at the time of Babb’s request. The record
evidence establishes that as early as the end of June
2012, Pharmacy Services made the decision not to
replace the outgoing pharmacist in Module B and
instead service the outgoing pharmacist’s patients
through existing staff. And further undermining
Babb’s assertion of discrimination, the record also
shows that shortly after deciding not to fill the Module
B vacancy, Pharmacy Services denied a younger
female pharmacist’s request to transfer to that
position on the same grounds it denied Babb—the
vacancy simply no longer existed.
Babb also argues that Pharmacy Services’
additional justification for its denial of Babb’s
request—that it could not open up a position with
20a
promotional prospects without facilitating a
competitive
application
process—evidences
differential treatment because Pharmacy Services
had previously made exceptions to this rule. But as
the district court found, Babb does not provide a
similarly situated comparator to substantiate her
argument. See Jenkins v. Nell, 26 F.4th 1243, 1249–
50 (11th Cir. 2022). Babb’s proffered comparator,
Lobley, a 40-year-old male, did not transfer positions;
his preexisting position simply evolved due to the
implementation of the new PACT initiative in 2011.
We thus conclude that Babb and Lobley are not
“similarly situated in all material respects.” Lewis I,
918 F.3d at 1226. Accordingly, we affirm the district
court’s grant of summary judgment on Babb’s sex and
age discrimination claims in favor of the Secretary.
B. The District Court’s Jury Instructions
Lastly, Babb challenges the district court’s jury
instructions on two grounds. First, Babb argues that
the district court’s jury instructions misstated the
causation standard articulated in Babb I and II for her
retaliation and retaliatory hostile work environment
claims. Second, Babb argues that the district court
erred by instructing the jury not to consider testimony
by Trask and Truitt concerning allegations of sex and
age discrimination for any purpose other than
establishing Babb’s good-faith belief—an element of
her retaliation claim—that her colleagues experienced
discrimination.
Contrary to Babb’s argument, the district court’s
jury instructions for the retaliation and retaliatory
hostile work environment claims, unlike Babb’s
proposed instruction, correctly laid out the Babb
21a
causation standard framework. Babb I explained that
a plaintiff can obtain injunctive relief “if they show
that age was a but-for cause of differential treatment
in an employment decision but not a but-for cause of
the decision itself.” 589 U.S. at 414 (emphasis added).
And we reiterated in Babb II that “the [Supreme]
Court expressly clarified that “age must be the but-for
cause of differential treatment, not that age must be a
but-for cause of the ultimate decision.” 992 F.3d at
1204. In other words, a plaintiff must show that
alleged differential treatment “based on” protected
activity played a role in the decision. See Safeco Ins.
Co. of America v. Burr, 551 U.S. 47, 63 (2007) (“the
phrase ‘based on’ indicates a but-for causal
relationship”). That is precisely what the district
court’s jury instructions given to the jury did, and
what Babb’s proposed instructions—requiring only
that the VA “considered” her protected activities—did
not. Because the jury instructions given by the district
court accurately stated the law, we conclude that the
district court did not abuse its discretion in declining
to instruct the jury as Babb requested.
As for Babb’s argument that the district court
erred by instructing the jury not to consider testimony
by Trask and Truitt concerning allegations of sex and
age discrimination for any purpose other than
establishing Babb’s good-faith belief—an element of
her retaliation claim—that her colleagues experienced
discrimination, we also conclude that the district
court did not abuse its discretion in declining to
instruct the jury as Babb requested. “We will not
disturb the trial judge’s discretion unless ‘we are left
with the substantial and uneradicable doubt as to
whether the jury was properly guided during it
deliberation.’” Watkins, 775 F.3d at 1289– 90 (quoting
22a
Broaddus v. Fla. Power Corp., 145 F.3d 1283, 1288
(11th Cir. 1998)). After carefully considering the
record and the parties’ briefs, we are not left with any
doubt let alone “substantial and ineradicable doubt”
as to whether the jury was properly guided during its
deliberations.
V. CONCLUSION
For the reasons stated, we affirm the district
court’s grant of summary judgment in favor of the
Secretary on Babb’s sex and age discrimination
claims. We also conclude that the district court did not
abuse its discretion in instructing the jury on Babb’s
claims.
AFFIRMED.
23a
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
Case No. 8:14-cv-1732-VMC-TBM
NORIS BABB,
v.
DENIS McDONOUGH, SECRETARY, DEPARTMENT
OF VETERANS AFFAIRS,
ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT
(August 19, 2022)
ORDER
This matter comes before the Court upon
consideration of Defendant Secretary of the
Department of Veterans Affairs’ Motion for Summary
Judgment (Doc. # 52), filed on April 11, 2016.
Defendant filed a supplemental memorandum in
support of the Motion for Summary Judgment on
October 14, 2021. (Doc. #124). Plaintiff Noris Babb
responded on November 5, 2021. (Doc. # 127).
Defendant replied on November 18, 2021 (Doc. #129),
and on November 30, 2021, with leave of Court, Dr.
Babb filed a Sur-Reply. (Doc. # 132). For the reasons
24a
that follow, the Motion is granted in part and denied
in part.
I
Background
A. Dr. Babb’s Role as a VA Pharmacist in
Geriatrics
Dr. Babb is a clinical pharmacist who is currently
employed at the C.W. Bill Young VA Medical Center.
(Doc. # 27 at ¶ 8). At the time of the events in question,
she was approximately 52 years old and was in a GS12 position. (Id.). Dr. Babb worked in the geriatric
primary care clinic at the VA from 2006, until June of
2013. (Babb Decl. Doc. # 68-2 at ¶¶ 1, 26). During her
time in the geriatrics clinic, she was part of an
“interdisciplinary team.” (Hull Dep. Doc. # 54 at 8:21).
One of her supervisors at the geriatrics clinic, Dr.
John Hull, explained: “the interdisciplinary team is a
team of caregivers that work closely together to
achieve better outcomes for complex patients. . . .
[T]he idea is that a group of people working together
and sharing information can achieve success in
complex situations much better than a solo
practitioner.” (Id. at 8:23-9:4).
Dr. Hull explained that the patients seen at the
geriatrics clinic were “the oldest of the old” facing
“frailty . . . usually psychosocial problems and a high
rate of dementia.” (Id. at 8:2-10). Dr. Hull noted, “we
try to select patients that have multiple medical,
psychosocial and functional problems, which means
that our rate of death is much, much higher than a
regular primary care environment, and dealing with
the issues of death and dying palliative care.” (Id. at
7:21-25).
25a
At that time, Dr. Babb held an Advanced Scope,
which means that she could perform Disease State
Management. (Babb Decl. Doc. # 68-2 at ¶ 5). Disease
State
Management
entails
a
pharmacist
independently managing patient care for specific
conditions (diabetes, hypertension, and cholesterol),
including writing prescriptions for these ailments
without consulting a physician. (Id.; Justice Decl. Doc.
# 52-2 at ¶ 2).
Work
B. Dr. Babb Experiences Tribulations at
Starting in 2011, Dr. Babb’s clinic was part of a
national “Patient Aligned Care Team” or PACT
program, which resulted in many staffing changes at
the VA. (Doc. # 68-2 at 22; Babb Decl. Doc. # 68-2 at ¶
8). In 2012 and 2013, the VA was in the process of
implementing national qualifications standards so
that pharmacy employees who spent at least 25% of
their time practicing under an Advanced Scope would
be promoted to a GS-13. (Justice Dep. Doc. # 55 at 6365; Babb Decl. Doc. # 68-2 at ¶ 11). Understandably,
'U %DEE Ɇ D *6-12 pharmacist with an Advanced
6FRSHɆVRXJKWVXFKD promotion.
In June of 2012, Dr. Marjorie Howard, who was Dr.
Babb’s supervisor at that time, ask Dr. Babb whether
she would consider a primary care position in “Module
B” of the VA that had recently been vacated. (Howard
Dep. Doc. # 57 at 52:8-10). Dr. Howard brought up the
Module B position because she did not think that Dr.
Babb could meet the 25% requirement for the GS-13
promotion in geriatrics. (Id. at 54:19-25, 55:19-20). Dr.
Babb declined, even though Dr. Babb recognized that
her direct supervisor said that moving to Module B
26a
“was the only way [Dr. Babb] could get a GS-13.”
(Babb Dep. Doc. # 59 at 86:2-3; Doc. # 52-2 at 29).
According to Dr. Babb, treating geriatric patients was
her professional calling. (Babb Decl. Doc. # 68-2 at ¶
10).
In August of 2012, the service agreement between
the pharmacy and the geriatrics clinic was being
renegotiated. (Williams Dep. Doc. # 56 at 6:2-5). Dr.
Babb worked with Dr. Hull and others in the
geriatrics clinic on a separate draft service agreement
that supported Dr. Babb’s use of an Advanced Scope
in the geriatrics clinic performing Disease State
Management. (Id. at 17:2-10). However, the service
agreement that was ultimately signed did not call for
Dr. Babb to perform Disease State Management, and
in February of 2013, Dr. Babb’s Advanced Scope was
removed. (Babb Dep. Doc # 59 at 35:6-9; Wilson Dep.
Doc. # 53 at 16:17).
Dr. Leonard Williams is the Chief of Geriatrics and
Extended Care at the VA, Bay Pines. (Williams Dep.
Doc. # 56 at 4:15-17). He was the person who decided
that Dr. Babb should not perform Disease State
Management on VA geriatric patients. (Id. at 18:1419). In his opinion, Dr. Babb’s role as a geriatrics
pharmacist was to check for dangerous drug
interactions and answer patient and caregiver
questions about medications because geriatric
patients are often prescribed multiple medications.
(Id. at 13:1-7).
Dr. Williams provided several reasons for omitting
Dr. Babb’s provision of Disease State Management
from the service agreement. As Dr. Williams
explained, “[m]any times in very frail, elderly patients
27a
we don’t need to treat their hypertension or we don’t
need to treat it aggressively as you would through
[Disease State Management] protocols, because
basically the damage that was going to be done by
high blood pressure by that time was done.” (Id. at
11:22-12:1). And “it could be injurious to the patient”
to try to control conditions such as high blood pressure
through Disease State Management in the geriatrics
department. (Id. at 12:3).
Dr. Williams indicated that a geriatrics
pharmacist needed to be available to “let the patient
know of significant potential side effects and what to
look for” and “see [a] patient before they left the clinic
and make sure that the patient or the caregiver
understood what we were doing.” (Id. at 13:19-24). If
Dr. Babb was performing Disease State Management
consultations with patients, “she wouldn’t be able to
work in the essential role of a clinical pharmacist or
consulting pharmacist in the geriatric clinic; and that
is one of seeing the patients and going over what was
usually a very complicated and long list of
medications, and looking to see if there were any
obvious possibilities of drug/drug interactions, that
the physician should have known about.” (Id. at 12:2213:7).
In September of 2012, Dr. Babb sought to
participate in a multi-day training, but Dr. Howard
specified that Dr. Babb could not attend because (1)
Dr. Babb had patients scheduled at the time of the
training and Dr. Babb’s attendance of the course
would therefore impact patient care, (2) Dr. Babb
would not benefit from the training because she
already had knowledge of the information being
28a
presented, and (3) it was too late to register for the
program. (Doc. # 52-3 at 59).
In October of 2012, Dr. Howard and Dr. Babb
discussed Dr. Babb’s “mid-term evaluation,” where
Dr. Babb received “fully successful” instead of
“outstanding” in mentoring. (Babb Decl. Doc. # 68-2 at
¶¶ 14-15). Dr. Babb filed a grievance with respect to
her score, and eventually the “fully successful” was
“upgraded” to reflect “outstanding,” but Dr. Babb “felt
belittled that she [was treated] this way.” (Id. at ¶¶
15-16).
C. Dr. Babb
Anticoagulation
is
not
Selected
for
At the time Dr. Babb realized that her Advanced
Scope was in jeopardy, she started asking for training
in anticoagulation, but that training was not provided.
(Babb Dep. Doc. # 59 at 9:4-7, 116:1-3). The
anticoagulation clinic was understaffed, and the
physician managing that clinic testified that they
could never keep up with the patients’ demands for
anticoagulation. (Stewart Dep. Doc. # 60 at 60:2-16).
When a position was opened in anticoagulation,
Dr. Babb applied. A three-member panel comprised of
Dr. Kim Hall, Dr. Catherine Sypniewski, and Dr.
Robert Stewart conducted the interview. Dr. Hall
provided detailed testimony about the interview,
remembering that Dr. Babb used unprofessional
language (such as “crap” and “screwed up”) and
harshly criticized other medical providers, which
made Dr. Hall question whether Dr. Babb would be a
good fit for the busy anticoagulation department
where good communications skills were a top priority.
29a
(Doc. # 52-2 at 141). Dr. Sypniewski explained that the
candidates that were selected had “significantly more
experience” in anticoagulation when compared to Dr.
Babb. (Doc. # 52-2 at 152). Dr. Stewart confirmed that
Dr. Babb’s anticoagulation experience was “nowhere
near” the experience of the selected candidates. (Doc.
# 52-2 at 160).
Dr. Babb interviewed poorly due to “anxiety and
stress,” admitting “that was the worst interview of my
life.” (Babb Dep. Doc. # 59 at 115:22-24, 124:23). Dr.
Babb has conceded that she did not have any direct
experience independently managing anticoagulation
patients. (Id. at 119:17-19). Dr. Babb was notified that
she was not selected for the anticoagulation position
on April 23, 2013. (Doc. # 27 at ¶ 10(l)). Two younger
pharmacists, Dr. Sara Grawe (age 26) and Dr. Amy
Mack (age 30), scored highest at the interview and
were selected for the anticoagulation positions. (Doc.
# 52-2 at 160).
During these and other staffing changes at the VA,
someone sent an anonymous and “vulgar” letter to Dr.
Gary Wilson. (Babb Decl. Doc. # 68-2 at ¶ 22). An
Administrative Investigation Board was initiated to
determine who sent the troubling letter. On April 8,
2013, Dr. Keri Justice testified at the Administrative
Investigation Board that Dr. Babb was one of the
“mow-mows” – the “squeaky wheels” who are “never
happy, always complaining.” (Doc. # 68-2 at 140). In
the same Administrative Investigation Board, Dr.
Wilson testified that he believed Dr. Babb “felt that
[she was] discriminated against over age and sex.”
(Doc. # 68-2 at 122). Dr. Babb “was really upset that
anyone would think [she is] such a low person to do
something like” send an anonymous letter
30a
complaining about others in a vulgar manner. (Babb
Decl. Doc. # 68-2 at ¶ 22). However, it is not disputed
that 26 employees were questioned about the origins
of the troubling letter, including Drs. Trask and
Truitt. (Doc. # 70-1 at 15).
D. Dr. Babb “Floats” after Module B Transfer
Denied
Dr. Babb requested a lateral transfer to Module B
to work as a Clinical Pharmacy Specialist (the position
that she previously rejected) in an effort to secure a
GS-13 promotion, but at that point, and with the
passage of approximately nine months, it was too late.
(Babb Decl. Doc. # 68-2 at ¶ 21). Dr. Justice denied Dr.
Babb’s request to be transferred to Module B on April
24, 2013. (Id.). Notably, a younger pharmacist, Dr.
Natalia Schwartz, also sought to be transferred to
Module B, but management already decided that the
position would not be filled. (Doc. # 52-2 at 185).
Dr. Babb continued in the geriatrics clinic after her
Advanced Scope was removed, but she was “extremely
depressed.” (Babb Dep. Doc. # 59 at 46:21-23). She
“had gone from being a happy team player to someone
that just came in, closed the door to [her] office, and
left at 4:30.” (Id. at 47:12-15). Dr. Babb felt like she
was in “a very difficult work environment” and that
“[i]t was probably the lowest point of [her] professional
career.” (Id. at 47:21-48:1).
Dr. Babb requested to move to the “float pool” in
April 2013 and began “floating” in June 2013. (Doc. #
52-3 at 11; Babb Dep. Doc. # 59 at 129:11-12). Around
that time, Dr. Babb’s then supervisor, Dr. Robert
Stewart, received two complaints about Dr. Babb.
31a
(Stewart Dep. Doc. # 60 at 52:11-12). The first
complaint was that Dr. Babb was rude to a patient.
(Babb Dep. Doc. # 59 at 142:21-23). The second
complaint claimed that Dr. Babb was not available to
her co-workers at the clinic. (Id. at 143:4-5). Dr. Babb
learned about these complaints when she opened a
sealed envelope that Dr. Stewart had mistakenly left
on her desk (Stewart Dep. Doc. # 60 at 53:14-24; Babb
Dep. Doc. # 59 at 141:1-19). Dr. Babb faced no
discipline or counseling for these events, and she
testified that these events did not affect her
performance appraisal. (Babb Dep. Doc. # 59 at
140:19-20). Dr. Babb testified that she enjoyed the
camaraderie of the other pharmacists in the float pool
(Id. at 130:14-15); nevertheless, she filed an informal
EEOC complaint on May 6, 2013. (Babb Decl. Doc. #
68-2 at ¶ 24).
E. Dr. Babb Applies to Two GS-13 Positions
Dr. Babb continued to apply for GS-13 positions. In
late 2013, Dr. Babb applied for a GS-13 position, but
it was offered to a younger pharmacist, Dr. Hetal
Bhatt-Chugani. (Babb Dep. Doc. # 59 at 128:23-129:1;
Doc. # 68-2 at 87:24-88:1). However, in early 2014, two
GS-13 positions were posted: (1) a PACT assignment
split between Modules B and D (this was the
previously vacant position in Module B combined with
another vacancy in Module D) and (2) a half
anticoagulation and half Palm Harbor clinic position.
(Doc. # 52-3 at 29; Babb Dep. Doc. # 59 at 134:11-12).
The job announcement for the PACT position split
between Modules B and D stated that the position was
comprised of “Four 9 hour shifts Tuesday through
Friday 7:00 am – 4:30 pm with a 4 hour shift Saturday
32a
8:00am-12:00pm [with] Nights, weekends and holiday
on a fair and equitable rotation schedule.” (Doc. # 523 at 30). In March of 2014, Dr. Babb was informed she
was selected for the PACT position split between
Modules B and D. (Babb Dep. Doc. # 59 at 176:17-22).
On April 2, 2014, Dr. Justice submitted paperwork to
facilitate Dr. Babb’s promotion to GS-13. (Doc. # 52-3
at 45- 46). Dr. Justice marked “excellent” on all of the
forms and made handwritten comments stating that
“Dr. Babb is an excellent practitioner with a broad
knowledge of clinical pharmacy. She is great with
patients!” (Id.). A VA Director approved Dr. Babb’s
promotion in August of 2014. (Doc. # 52- 3 at 49-50).
After Dr. Babb started working in her new
position, she felt she was being treated unfairly with
respect to holiday pay. “After reviewing her time
cards, later, and time cards of other employees she
learned that due to the scheduling, she was only
entitled to four hours Holiday pay for each of the five
legal federal Holidays on a Monday . . . [h]owever,
other employees were being paid the full amount of a
holiday.” (Doc. # 27 at ¶ 10(p)). Dr. Babb testified,
“after I found out about the Monday federal holiday
issue, I was very upset about that.” (Babb Dep. Doc. #
59 at 139:20-21). The VA offered to permanently
change her schedule such that she would receive eight
hours of holiday pay for the Monday legal holidays,
but Dr. Babb declined. (Doc. # 52-3 at 144).
F.
Related Prior Litigation and EEOC
Activity
On February 26, 2013, Donna Trask and Anita
Truitt (both VA pharmacists) filed an age and gender
discrimination suit against the VA. (Case No. 8:13-cv33a
536-MSS-TBM (M.D. Fla. 2013)). In connection with
those proceedings, Dr. Babb sent statements in
support of Drs. Trask and Truitt by email to an EEOC
investigator on April 26, 2012, May 10, 2012, and May
11, 2012. (Doc. # 27 at ¶ 5; Babb Dep. Doc. # 59 at
112:23-113:1). She also provided deposition testimony
in support of Drs. Trask and Truitt on March 24, 2014.
(Doc. # 68-2 at 38).
Dr. Babb testified in this case that “my whole
career had changed after I had been a witness in the
Truitt and Trask case. That up until then pharmacy
administration had been in support of me.” (Babb Dep.
Doc. # 59 at 48:15-17). Dr. Babb specified that after
she “participated in the EEO activity for Drs. Truitt
and Trask, [her] career took a turn in a bad direction.”
(Id. at 112:17-19). Along the same lines, Dr. Babb
testified: “Everything that happened in disqualifying
me was after I testified in the Truitt and Trask case;
and Truitt and Trask were discriminated against
because they were older females.” (Id. at 110:13-16).
The district court did not agree that Drs. Trask and
Truitt were discriminated against and granted
summary judgment in favor of the VA on March 19,
2015. (Case No. 8:13-cv-536-MSS-TBM at Doc. # 101).
The Eleventh Circuit affirmed in a published decision.
Trask v. Sec’y, Dep’t Veterans Affs, 822 F.3d 1179
(11th Cir. 2016).
Dr. Babb also participated in her own protected
activity. She verbally opposed age and gender
discrimination in a lengthy conversation with Dr.
Justice on February 8, 2013. Dr. Babb requested that
her union representative be present at the February
8, 2013 meeting where she voiced her complaints to
34a
Dr. Justice, but the representative failed to appear.
(Doc. # 68-6 at 86). In addition, Dr. Babb filed an
informal EEOC complaint on May 6, 2013, and also
initiated this lawsuit.
G. Comments on Age, Gender, or EEOC
Activity
Dr. Babb alleges Dr. Howard asked when Dr. Babb
planned to retire in March of 2012. (Id. at 130:19-20).
Dr. Howard does not remember asking Dr. Babb this
question. (Doc. # 52-3 at 57). Dr. Babb had a negative
relationship with Dr. Howard and called Dr. Howard
“Cruella” and other names in emails to her colleagues
because Dr. Babb felt Dr. Howard was “harsh in
meetings” and “wasn’t gentle and friendly.” (Babb
Dep. Doc. # 59 at 161:9-16; Doc. # 59 at 216).
In addition, when a co-worker asked Dr. Babb if
she had seen the movie “Magic Mike,” Dr. Justice
remarked that the movie was geared toward middleaged women, which made Dr. Babb upset. (Babb Dep.
Doc. # 59 at 62:13-19). Dr. Babb testified that she
would not have been worried if Dr. Justice called the
movie a “chick-flick,” but she felt “middle-aged” was
not an appropriate comment. (Id. at 62:20-24). When
Dr. Justice referred to Dr. Babb as a “mow mow,” Dr.
Babb thought that Dr. Justice was calling her a
“grandma.” (Id. at 62:3-7).
Dr. Babb does not recall any other comments about
her age or gender and she has never heard any
comments about her EEOC activity. (Id. at 61:2462:11, 113:15-18, 121:12-16, 132:5-7). Dr. Babb also
revealed during her deposition that she “took it all
35a
personally” and she “couldn’t stop crying.” (Id. at
183:23-184:8).
H. Dr. Babb Files Suit
Dr. Babb initiated this action on July 17, 2014.
(Doc. # 1). She filed the operative complaint – the
Third Amended Complaint - on December 19, 2014.
(Doc. # 27). The Third Amended Complaint contains
the following counts: retaliation (Count I), gender and
age discrimination (Count II), a hostile work
environment based on gender and age and a
retaliatory hostile work environment claim(Count
III), and injunctive relief (Count IV). The VA then
sought summary judgment (Doc. # 52), which this
Court granted on Counts I, II, and III (Doc. # 83).
Relying on Eleventh Circuit precedent, this Court
analyzed Dr. Babb’s Title VII retaliation and
discrimination claims (Counts I and II) under the
McDonnell Douglas burden-shifting framework. This
Court found that although Dr. Babb had established a
prima facie case under the statute, the VA proffered
non-pretextual reasons for the adverse employment
actions, and Dr. Babb could not point to any
weaknesses, implausibilities, or flaws in the VA’s
employment justifications.
This Court then analyzed Dr. Babb’s hostile work
environment
and
retaliatory
hostile
work
environment claims (Count III) under Gowski v.
Peake, 682 F.3d 1299 (11th Cir. 2012), which requires
that a plaintiff show harassment that is “severe or
pervasive” to establish either a hostile work
environment or a retaliatory hostile work
environment claim. Analyzing Dr. Babb’s adverse
employment outcomes under the Gowksi standard,
36a
this Court determined that the events underlying Dr.
Babb’s claims were not sufficiently “severe or
pervasive” to be actionable. This Court thus granted
summary judgment to the VA on both Dr. Babb’s
hostile work environment claim and her retaliatory
hostile work environment claim.
1. The First Eleventh Circuit Appeal
Dr. Babb appealed the grant of summary judgment
to the Eleventh Circuit, which reversed and remanded
on Babb’s gender discrimination claim but affirmed on
everything else. The Eleventh Circuit found that this
Court erred by applying the McDonnell Douglas test
rather than the Quigg motivating factor test to her
“mixed motive” gender discrimination claim. Babb v.
Sec’y, Dep’t of Veterans Affs, 743 F. App’x 280, 286
(11th Cir. 2018). The Eleventh Circuit remanded the
claim to this Court for evaluation under the Quigg
motivating-factor test. Babb, 743 F. App’x at 286.
Reviewing Dr. Babb’s age and gender
discrimination claims, the Eleventh Circuit addressed
Dr. Babb’s contention that this Court erred in
applying the McDonnell Douglas framework to her
ADEA age-discrimination. The Court noted that if it
“were writing on a clean slate, [it] might well agree.”
Id. at 287. Nevertheless, the Eleventh Circuit noted
that it was bound to its decision in Trask v. Secretary,
Department of Veterans Affairs, 822 F.3d 1179 (11th
Cir. 2016), by prior-panel-precedent. Babb, 743 F.
App’x at 287. Because the Eleventh Circuit in Trask
applied the McDonnell Douglas standard to a federalsector ADEA claim, the Court explained that it was
bound by its determination there. Id. The Eleventh
Circuit then reviewed this Court’s findings under the
37a
McDonnell Douglas standard, finding no reversible
error and affirming the grant of summary judgment
as to Dr. Babb’s ADEA age discrimination claim. Id.
at 290–291.
Finally, evaluating Dr. Babb’s hostile work
environment
and
retaliatory
hostile
work
environment claims under the Gowski standard, the
Eleventh Circuit found that Dr. Babb had not raised a
genuine issue of material fact, thus affirming this
Court’s grant of summary judgment as to that claim.
2. The United States Supreme Court
The Supreme Court granted certiorari on the
question of whether the federal-sector provision of the
ADEA required Dr. Babb to prove that age was a butfor cause of a challenged personnel action.
The Supreme Court explained that Section
633a(a)’s terms required a plaintiff to show only that
“age discrimination plays any part in the way a
decision is made[.]” Babb v. Wilkie, 140 S. Ct. 1168,
1178 (2020) (“Babb I”) (emphasis added). The Court
held that the “free from any discrimination” language
means that personnel actions must be made in “a way
that is not tainted by differential treatment based on”
a protected characteristic. Id. at 1174. Thus, to prevail
on an age discrimination claim under the ADEA, a
plaintiff must show that age is “a but-for cause of
discrimination—that is, of differential treatment—
but not necessarily a but-for cause of a personnel
action itself.” Id. at 1173.
3.
The Eleventh
Decisions
Circuit’s
38a
Subsequent
Following the Supreme Court’s decision in Babb I,
the Eleventh Circuit reversed and remanded on Dr.
Babb’s age and gender discrimination claims and
affirmed on Dr. Babb’s Title VII retaliation, hostile
work environment, and retaliatory hostile work
environment claims.
The Eleventh Circuit then granted Dr. Babb’s
petition for rehearing on the issues of (1) whether the
Supreme Court’s decision in Babb I necessitated a reexamination of the Eleventh Circuit’s previous
rejection of her Title VII retaliation claim and (2)
whether the intervening Eleventh Circuit decision
Monaghan v. Worldpay US, Inc., 955 F.3d 855 (11th
Cir. 2020), undermined the previous rejection of her
retaliatory hostile work environment claim. Babb v.
Sec’y, Dep’t of Veterans Affs., 992 F.3d 1193 (11th Cir.
2021) (“Babb II”).
Beginning with Dr. Babb’s Title VII retaliation
claim, the Eleventh Circuit found that the Supreme
Court’s decision in Babb I “undermined Trask to the
point of abrogation.” Babb II, 992 F.3d at 1200. The
Eleventh Circuit explained that the Supreme Court’s
analysis of the ADEA’s language informs its reading
of Title VII. Id. (citing Gomez-Perez v. Potter, 553 U.S.
474, 487 (2008)). The Eleventh Circuit thus held that
the Babb I “differential treatment” standard for
evaluating the federal-sector provision of the ADEA
also applied to Title VII retaliation claims. Id.
The Eleventh Circuit then addressed the effect of
the intervening Monaghan decision on Dr. Babb’s
retaliatory hostile work environment claim. Id. at
1206. The Court explained that although Dr. Babb
had not distinguished between her hostile work
39a
environment claim based on age and gender and her
hostile work environment claim based on retaliation,
the subsequent Monaghan decision clarified that
different standards governed each claim. Id. at 120607. As the Eleventh Circuit explained, Gowski had
incorrectly grafted the “severe or pervasive” standard
onto retaliatory hostile work environment claims by
packaging it as a hostile work environment, rather
than a retaliation, claim. Id. at 1207.
The Eleventh Circuit held that the correct
standard to apply to retaliatory hostile work
environment claims was that set by Burlington
Northern & Santa Fe Railway Co. v. White, 548 U.S.
53 (2006) and Crawford v. Carroll, 529 F.3d 961 (11th
Cir. 2008). Burlington and Crawford held that to
prevail on a retaliation claim, an employee must
demonstrate the complained-of action “might well
have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Crawford v.
Carroll, 529 F.3d at 974 (quoting Burlington
Northern, 548 U.S. at 68)). The Eleventh Circuit
concluded that after Monaghan, the “severe or
pervasive” standard is no longer applicable to
retaliatory hostile work environment claims and
directed this Court to evaluate Dr. Babb’s claim under
the correct Burlington Northern-Crawford-Monaghan
standard. Id. at 1209.
Now, on remand, this Court reconsiders Dr. Babb’s
claims under the proper standards — Babb I for
Counts I and II and Crawford for Count III. Although
Babb II only addressed Dr. Babb’s Title VII retaliation
claim, the Babb I differential treatment standard
applies to claims of gender discrimination arising
under the federal-sector provision of Title VII. See
40a
Durr v. Sec’y, Dep’t of Veterans Affairs, 843 F. App’x
246, 247 (11th Cir. 2021) (noting that the Babb I
standard applies to Title VII discrimination claims
and remanding to the district court to evaluate age
and gender discrimination and retaliation claims
under the Babb I standard). Thus, Babb I governs Dr.
Babb’s Title VII age and gender discrimination claims
as well as her Title VII retaliation claim.
With respect to Count III, Babb II requires this
Court to revisit only Dr. Babb’s retaliatory hostile
work environment claim, not her hostile work
environment claim based on age and gender. Gowski
is still applicable to hostile work environment claims
based on age and gender post-Monaghan and thus
Babb II does not disturb this Court’s finding on Dr.
Babb’s hostile work environment claim.
II
Legal Standard
Summary judgment is appropriate “if the movant
shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). A factual
dispute alone is not enough to defeat a properly pled
motion for summary judgment; only the existence of a
genuine issue of material fact will preclude a grant of
summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247–48 (1986).
An issue is genuine if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party. Mize v. Jefferson City Bd. of Educ., 93
F.3d 739, 742 (11th Cir. 1996) (citing Hairston v.
Gainesville Sun Publ’g Co., 9 F.3d 913, 918 (11th Cir.
1993)). A fact is material if it may affect the outcome
41a
of the suit under the governing law. Allen v. Tyson
Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997). The
moving party bears the initial burden of showing the
court, by reference to materials on file, that there are
no genuine issues of material fact that should be
decided at trial. Hickson Corp. v. N. Crossarm Co., 357
F.3d 1256, 1260 (11th Cir. 2004) (citing Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986)). “When a moving
party has discharged its burden, the non-moving
party must then ‘go beyond the pleadings,’ and by its
own affidavits, or by ‘depositions, answers to
interrogatories, and admissions on file,’ designate
specific facts showing that there is a genuine issue for
trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,
593–94 (11th Cir. 1995) (quoting Celotex, 477 U.S. at
324).
If there is a conflict between the parties’
allegations or evidence, the non-moving party’s
evidence is presumed to be true and all reasonable
inferences must be drawn in the non-moving party’s
favor. Shotz v. City of Plantation, 344 F.3d 1161, 1164
(11th Cir. 2003). If a reasonable fact finder evaluating
the evidence could draw more than one inference from
the facts, and if that inference introduces a genuine
issue of material fact, the court should not grant
summary judgment. Samples ex rel. Samples v. City of
Atlanta, 846 F.2d 1328, 1330 (11th Cir. 1988). But, if
the non-movant’s response consists of nothing “more
than a repetition of his conclusional allegations,”
summary judgment is not only proper, but required.
Morris v. Ross, 663 F.2d 1032, 1034 (11th Cir. 1981).
III
Analysis
A. Count I – Retaliation
42a
A prima facie case of retaliation requires a plaintiff
to establish that she (1) engaged in statutorily
protected activity; (2) suffered an adverse
employment action; and (3) established a causal link
between the protected activity and the adverse
employment action. Malone v. U.S. Att’y Gen., 858 F.
App’x 296, 303 (11th Cir. 2021). “In the context of a
retaliation claim, an adverse employment action is
one that ‘well might have dissuaded a reasonable
worker from making or supporting a charge of
discrimination.’” Id. (citing Burlington Northern, 548
U.S. at 68 (2006)). To show a causal connection, the
plaintiff needs to show that the protected activity
played some part in the way the decision was made.
Tonkyro v. Sec’y, Dep’t of Veterans Affs., 995 F.3d 828,
835 (11th Cir. 2021) (holding that federal-sector
plaintiffs need not “prove that their protected activity
was a but-for cause of the adverse actions” and
remanding the district court to determine causation
under the standard enunciated in Babb I).
Under Babb I, a showing of non-pretextual reasons
for an employment decision is insufficient to defeat a
prima facie case of retaliation. Id. at 1204. As the
Eleventh Circuit explained, “even when there are nonpretextual reasons for an adverse employment
decision . . . the presence of those reasons doesn’t
cancel out the presence, and the taint, of
discriminatory
considerations.”
Varnedoe
v.
Postmaster Gen., No. 21-11186, 2022 WL 35614, at *3
(11th Cir. Jan. 4, 2022) (citing Babb II, 992 F.3d at
1199, 1204–05).
While Babb I lessened the burden on federal-sector
plaintiffs asserting Title VII retaliation claims, Dr.
Babb still must “present evidence that her protected
43a
activity played any role in [the adverse action].” Id.
(finding the plaintiff did not meet her burden under
Babb I where she “presented no affirmative evidence
of any kind showing that her EEOC complaint was a
factor in her work reassignment” and argued that “no
. . . legitimate reason for the reassignment existed”).
To prove causation in a Title VII retaliation case,
“[t]he plaintiff must generally establish that the
employer was actually aware of the protected
expression at the time it took the adverse employment
action.” Debe v. State Farm Mut. Auto. Ins., 860 F.
App’x 637, 639 (11th Cir. June 8, 2021). A plaintiff can
show a causal connection by showing a close temporal
proximity between her employer’s discovery of the
protected activity and the adverse action, but the
temporal proximity must be “very close.” Thomas v.
Dejoy, No. 5:19- cv-549-TKW-MJF, 2021 WL 4992892,
at *10 (N.D. Fla. July 19, 2021) (looking to temporal
proximity test post-Babb and citing Debe). For
example, a district court found causation where
“numerous adverse events . . . occurred within weeks
after each of [the plaintiff’s] protected acts.” Norman
v. McDonough, No. 2:20-cv-01765-KOB, 2022 WL
3007595, at *9 (N.D. Ala. July 28, 2022).
Here, the first element of Dr. Babb’s prima facie
case is satisfied because Dr. Babb engaged in
protected activity when she participated in Drs. Trask
and Truitt’s employment discrimination lawsuit. She
has also pursued her own claims against the VA for
discrimination and retaliation. In addition, Dr. Babb
verbally opposed what she felt were discriminatory
practices in a lengthy conversation with Dr. Justice on
February 8, 2013.
44a
The second element is also satisfied. Dr. Babb
claims that she faced adverse employment actions
when her Advanced Scope was removed, when she
was not selected for the anticoagulation position,
when she was denied a lateral move to Module B,
when a younger pharmacist (Dr. Martinez) was given
a GS-13 position that was not advertised, and when
she was given lower holiday pay. (Doc. # 27 at ¶ 15).
This Court previously found that Dr. Babb
experienced adverse employment actions under the
“serious and material change” standard articulated in
Crawford v. Carroll, 529 F.3d 961 (11th Cir. 2008).
(Doc. # 83 at 21-22). In Babb II, however, the Eleventh
Circuit clarified that Title VII retaliation claims
require only a showing that an employment action
“might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.”
Babb II, 992 F.3d at 1207. Given that this Court
previously found Dr. Babb experienced adverse
employment actions under the more stringent “serious
and material change” standard, and that the parties
do not contest that Dr. Babb experienced adverse
employment actions with respect to her retaliation
claim, the second element is satisfied.
As to the third element, this Court previously
found that a reasonable jury could determine that Dr.
Babb established causation because she participated
in a protected activity and faced adverse employment
actions shortly thereafter. (Doc. # 83 at 22). Dr. Babb’s
protected activity in the Trask and Truitt case started
when she provided statements to the EEOC in April
and May of 2012. Her EEOC activity in that case
continued through March 24, 2014, when she testified
in a deposition. (Doc. # 68-2 at 38). Dr. Babb had a
pointed conversation with Dr. Justice on February 8,
45a
2013, opposing gender and age discrimination, and
she filed a complaint with the EEOC in her own case
alleging discrimination on May 6, 2013.
This Court nevertheless concluded that Dr. Babb
had not established a cognizable Title VII retaliation
claim because the VA offered legitimate and nonretaliatory reasons for every employment action and
Dr. Babb failed to establish these reasons were
pretextual. Under Babb II, however, “the existence of
non-pretextual reasons for an adverse employment
decision . . . doesn’t cancel out the presence, and the
taint, of discriminatory considerations.” Babb II, 992
F.3d at 1204.
In the wake of Babb II, this Court now concludes
that a reasonable jury could find that retaliation for
Dr. Babb’s EEO activity tainted the decision-making
regarding the adverse employment actions. Again,
close temporal proximity between an employer’s
discovery of protected active and an adverse
employment action can establish causation in a Title
VII retaliation case. Thomas, 2021 WL 4992892, at
*10. Dr. Babb verbally opposed age and gender
discrimination in a 40-minute encounter with Dr.
Justice on February 8, 2013 (Doc. # 59 at 203–204),
and Dr. Babb’s Advanced Scope was removed just
days later on February 15, 2013. (Babb Decl. Doc. #
68-2 at ¶ 19). Dr. Babb’s supervisors had knowledge of
her participation in protected activity by February 8,
2013 at the latest. See Debe, 860 F. App’x at 639 (“The
plaintiff must generally establish that the employer
was actually aware of the protected expression at the
time it took the adverse employment action.”).
46a
Not long after that, on April 24, 2013, Dr. Justice
denied Dr. Babb’s request for a lateral transfer (and
accompanying raise to a GS-13 position). (Babb. Decl.
Doc. # 68-2 at ¶ 21). Dr. Babb’s unsuccessful
anticoagulation interview and non-selection for that
GS-13 position also occurred in April of 2013. Further,
Dr. Babb submits that she gave testimony in the
Trask and Truitt case on March 24, 2014, and that she
was denied holiday pay during the same time frame
in March of 2014.
The VA provided non-pretextual reasons for all of
these employment actions. While Dr. Babb’s EEO
action cannot be the but-for cause of the ultimate
employment outcome, Babb II requires inquiry into
whether the EEO activity affected Dr. Babb’s
treatment. The removal of Dr. Babb’s Advanced
Scope, her non-selection for the anticoagulation
position, and reduced holiday pay all occurred within
a short period of time following her EEO activity.
True, Dr. Babb’s supervisors may have contemplated
the removal of her Advanced Scope long before her
conversation with Dr. Justice on February 8, 2013.
Still, a reasonable jury could find that, given that the
removal of Dr. Babb’s Advanced Scope occurred less
than a week after her conversation, Dr. Babb’s EEO
activity could have played a role in the removal.
Likewise, a reasonable jury could find that the twomonth period between Dr. Babb’s conversation with
Dr. Justice and her non-selection for the
anticoagulation position indicates that the two
occurrences were not unrelated. And Dr. Babb’s denial
of holiday pay — even though she was then offered a
schedule adjustment — occurred during the same
month that she gave testimony in the Trask and
47a
Truitt case, providing a basis for a jury to find that
this protected activity influenced the VA’s decision
making.
Accordingly, the VA’s Motion for Summary
Judgment is denied with respect to Count I.
B. Count II – Age and Gender Discrimination
Title VII states in pertinent part that “[a]ll
personnel actions affecting employees . . . in executive
agencies . . . shall be made free from any
discrimination on race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-16(a). Again, the Eleventh
Circuit recently held that the Supreme Court’s
decision in Babb I, which interpreted the nearly
identical federal-sector provision of the Age
Discrimination in Employment Act (“ADEA”), is
applicable to Title VII federal-sector cases. See Babb
II, 992 F.3d at 1205 (“If a decision is not “made free
from any discrimination based on” that which § 2000e16(a) protects, then an employer may be held liable for
that discrimination regardless of whether that
discrimination shifted the ultimate outcome.”). 1
1 The parties dispute the applicability of Quigg v. Thomas
County School District, 814 F.3d 1227 (11th Cir. 2016) to Dr.
Babb’s discrimination claim. Because Babb II clarified that the
appropriate standard for federal-sector Title VII discrimination
claims is whether a protected trait is the but-for cause of
differential treatment, the motivating factor test of Quigg likely
does not apply. Babb II, 992 F.3d at 1205; see also Durr, 843 F.
App’x 246 at 247 (finding that Babb I governed the plaintiff’s
claims of age and gender discrimination and retaliation under
Title VII). Even if Quigg did govern Dr. Babb’s claims, the
outcome would not differ because she has not provided evidence
that her age or gender was a motivating factor in the adverse
employment actions. Quigg, 814 F.3d at 1235; see Tonkyro, 995
48a
As the Supreme Court explained in Babb I, the
language “shall be made free from any discrimination”
means that personnel actions must be “untainted by
any consideration” of the protected factor. Babb I, 140
S. Ct. at 1171. “If . . . discrimination plays any part in
the way a decision is made, then the decision is not
made in a way that is untainted by any such
discrimination.” Id. at 1174. “As a result, [the
protected factor] must be a but-for cause of
discrimination Ɇ WKDW LV RI GLIIHUHQWLDO WUHDWPHQW Ɇ
but not necessarily a but-for cause of the personnel
action itself.” Id. at 1173. In other words, to state a
claim under Title VII, the protected factor “must be
the but-for cause of differential treatment, not that
the [protected factor] must be a but-for cause of the
ultimate decision.” Id. at 1174.
Under Babb I, district courts thus no longer use
the McDonnell Douglas framework to assess
discrimination claims that do not require but-for
causation as to the ultimate decision. See Babb II, 992
F.3d at 1204 (“[I]t seems that the Supreme Court
accepted Babb’s argument ‘that the District Court
should not have used the McDonnell Douglas
framework.’”); see also Lewis v. Sec’y of U.S. Air Force,
No. 20-12463, 2022 WL 2377164, at *10 (11th Cir.
June 30, 2022) (explaining that Babb I “foreclosed
using the full McDonnell Douglas framework
regarding ADEA claims and Title VII retaliation
claims as to federal-sector employees”).
F.3d at 836 (“We perceive no material difference between the
motivating-factor standard we have applied to substantive
hostile work environment claims and the standard articulated by
the Supreme Court in Babb.”).
49a
In Babb II, the Eleventh Circuit explained that
discriminatory considerations can give rise to a
colorable Section 2000e-16(a) claim “even when there
are non-pretextual reasons for an adverse
employment decision” because “the presence of those
reasons doesn’t cancel out the presence, and the taint,
of discriminatory considerations.” Babb II, 992 F.3d at
1204. Thus, under the Babb I and Babb II framework,
Babb needs to show only that her age played a part in
the way an employment decision was made — that is,
that the decision was “tainted” by discrimination.
Babb I, 140 S. Ct. at 1174; see also Durr v. Sec’y, Dep’t
of Veterans Affairs, 843 F. App’x 246, 247 (11th Cir.
2021) (explaining that, after Babb I, “a plaintiff’s
claim survives if ‘discrimination played any part in
the way a decision was made’” (internal alterations
omitted)).
While Babb I altered the standard for evaluating
the presence of discrimination, showing that a
protected factor was the but-for cause of the
challenged employment decision still plays an
important role in determining the appropriate
remedy. Babb I, 140 S. Ct. at 1177. Showing that
discrimination was the but-for cause of the ultimate
employment decision or outcome will unlock all
available forms of relief such as reinstatement, back
pay, and compensatory damages. Id. at 1171, 1177–
78. But if a plaintiff makes only the lesser showing,
that is, if a plaintiff shows that discrimination was a
but-for cause of differential treatment but not the butfor cause of the employment decision itself, that
plaintiff can still seek injunctive or other forwardlooking relief. Id. at 1178.
1. Non-selection for Anticoagulation
50a
The Court first examines Dr. Babb’s claim with
respect to her non-selection for the open
anticoagulation position. Dr. Babb argues that she
was subject to differential treatment because of her
age because (1) she was not hired for the position
despite her purported qualifications and (2) the
position was filled by two younger female
pharmacists. (Doc. # 52-2 at 160). Dr. Babb also
argues that she was subjected to differential
treatment because of her gender by not being selected
for the anticoagulation position. (Doc. # 27 at ¶ 23).
However, because two female pharmacists were
selected for the position, and because Dr. Babb does
not provide any further evidence indicating gender
affected her treatment during the selection process,
her non-selection for the position cannot support a
claim of gender discrimination.
Although Babb I lessened the burden that federalsector plaintiffs must show, allegations of differential
treatment must be based on more than “mere
speculation.” Malone v. U.S. Att’y Gen., 858 Fed. App’x
296, 303 (11th Cir. 2021) (citing Cincinnati Ins. Co. v.
Metro Props., Inc., 806 F.2d 1541, 1544 (11th Cir.
1986)). The Eleventh Circuit has found summary
judgment on a racial discrimination claim proper
where the plaintiff could not “point to any record
evidence that his application . . . was treated
differently because he is white.” Id. at 301; see also
Buckley v. McCarthy, No. 4:19-CV-49 (CDL), 2021 WL
2403447, at *1, *6 (M.D. Ga. June 11, 2021) (granting
summary judgment for defendant under the Babb I
standard because the evidence did not demonstrate
that race played any role in the decision to remove
plaintiff from federal service even though plaintiff was
the only Black provider at the subject clinic and
51a
contended that she was assigned fewer patients and
that her coworkers called her an “angry Black
woman”); cf. Bernea v. Wilkie, No. 20-cv-82459, 2021
WL 6334929, at *6 (S.D. Fla. Dec. 7, 2021) (finding
circumstantial evidence sufficient to support a claim
of differential treatment based on age discrimination
where a supervisor stated plaintiff’s “age affected his
ability to complete tasks”).
Here, Dr. Babb’s belief that age played a role in her
non-selection for the anticoagulation position rests on
the fact that the two pharmacists selected for the
position were younger than her and that the selected
pharmacists received points for doing a residency.
(Babb Dep. Doc. # 59 at 186:9-13).
The statements of the members of the panel that
conducted Dr. Babb’s interview demonstrate that Dr.
Babb’s lack of experience and poor interview, rather
than age discrimination, motivated the VA’s hiring
decision. (Doc. # 52-2 at 140–41). Dr. Hall testified
that the “selectees’ prior experience indicated to the
panel that they should be capable of doing the job in
an efficient and skilled manner [and] should require
little training to practice independently,” while Dr.
Babb “did not have any direct experience in
anticoagulation.” (Id. at 140). Dr. Sypniewski
explained that the selected candidates “had
significantly more experience in the applied for
position . . . [t]hey knew and were familiar with the
workings of the position to which they had applied,
and their experience in anti-coag enabled them to
answer the questions with examples.” (Id. at 152).
In contrast, Dr. Sypniewski remembered that Dr.
Babb appeared nervous at her interview and did not
52a
answer the panel’s questions with “specific examples.”
(Id. at 153). In his testimony, Dr. Hall remembered
that Dr. Babb used unprofessional language and
harshly criticized other medical providers. (Id. at 141).
Dr. Babb admitted that the interview was “the worst
interview of [her] life” and that she did not have any
direct
experience
independently
managing
anticoagulation patients. (Babb Dep. Doc. # 59 at
124:23, 119:17-19).
Dr. Babb also argues that the selection process for
the anticoagulation treatment subjected her to
differential treatment based on age by favoring
pharmacists who are residency-trained rather than
those who are board-certified and trained by
experience. (Doc. # 27 at ¶ 10b; Doc. # 127 at 35–36).
The crux of Dr. Babb’s argument is that the
consideration of residency experience by the panel
subjected her to differential treatment because
residency-trained pharmacists tend to be younger.
(Doc. # 68 at ¶ 20; Doc. # 68-3 at 75).
The selected candidates’ residencies played a role
in their selection as Dr. Sypniewski explained that the
selected candidates “[h]ad significantly more
experience in the applied for position. They had either
done residencies where they were required to work in
anti-coag clinic, or they actually already were
processing anti-coag consults, or they had actually
worked in anti-coag clinic post-residency.” (Doc. # 522 at 152). In particular, the scoring sheet for
candidates for the anticoagulation position awarded
candidates three points for residency and up to five
points for anticoagulation experience but provided no
basis for awarding points based on general experience
as a pharmacist. (Doc. # 68-6 at 100).
53a
While the selection criteria for the anticoagulation
position places a premium on residency, Dr. Babb
provides no evidence from which a reasonable jury
could conclude that age influenced the decision to
include residency in the selection criteria. In his
deposition, Dr. Stewart explained that:
[I]t is my opinion that a residency should be
considered much more and . . . carry higher
points than a board certification [because] a
residency is one year of intensive focused
training, mentoring, and learning for a
pharmacist where they get extensive
experience in disease state management, and
disease state management is what a PACT
pharmacist would be doing a majority of their
day . . . I felt that having the experience of a
residency as well as providing more points on
the scoring sheet for a pharmacist who was
actually doing the job at the time they applied;
so a pharmacist that is prescribing has an
advanced scope and is conducting disease state
management should get more points than
someone that is not, that is my belief.
(Doc. # 68-3 at 70–71). Dr. Stewart also believed there
is “no substitute for the experience that someone gets
in residency when it comes to disease state
management advanced scope.” (Id. at 74).
Although Dr. Babb expressed her disagreement
with the consideration of residency in the selection
criteria in her deposition, she did not provide evidence
that age discrimination motivated the consideration.
(Doc. # 68-2 at 22). As this Court previously noted,
courts should not be in the business of adjudging
54a
whether employment decisions are prudent or fair,
but should merely determine whether an unlawful
animus motivates a challenged employment decision.
(Doc. # 83 at 28); see Elrod v. Sears, Roebuck and Co.,
939 F.2d 1466, 1470 (11th Cir. 1991) (“Federal courts
do not sit as a super-personnel department that
reexamines an entity’s business decisions.”) (internal
quotations omitted). Dr. Stewart’s testimony indicates
that the decision to consider residency as part of the
selection criteria for the anticoagulation position was
motivated by the belief that applicants who had
completed a residency were better prepared and
trained for the position.
Of course, under Babb II, non-pretextual reasons
for differential treatment alone are insufficient to
defeat an otherwise cognizable claim of discrimination
under Title VII. Babb II, 992 F.3d at 1204. However,
the party alleging discrimination must still provide
evidence, whether circumstantial or otherwise,
indicating that discrimination played any role in the
way a decision was made.
Here, Dr. Babb has not provided any evidence that
would provide a basis for a reasonable jury to
determine that age influenced the decision to award
points for residency. The only record evidence Dr.
Babb has provided is Dr. Stewart’s statement that “[a]
lot” of pharmacists pursuing residencies are right out
of school. (Doc. # 68-3 at 75). Although Dr. Babb
alleges in her complaint that residencies are recent in
pharmacy, she cites to no evidence in the record in
support of this claim. “Mere conclusions and
unsupported
factual
allegations
are
legally
insufficient to create a dispute to defeat summary
judgment.” Bald Mountain Park, Ltd. v. Oliver, 863
55a
F.2d 1560, 1563 (11th Cir. 1989). Even under the
flexible Babb II standard, the “record as a whole could
not lead a rational trier of fact” to find that age
animated the consideration of residency by the
selection panel. Saltzman v. Bd. of Comm’rs of the N.
Broward Hosp. Dist., 239 Fed. Appx. 484, 487 (11th
Cir 2007).
Thus, Dr. Babb has not provided any evidence
suggesting that the interview panel for the
anticoagulation position considered age when
evaluating residency. In light of Dr. Stewart’s belief
that residency provides the most effective training,
Dr. Babb has not identified a discriminatory animus
influencing the selection criteria. A reasonable jury
thus could not find that but-for an improper motive, a
candidate’s residency would not have been given
weight in the selection process. Likewise, while Dr.
Babb received a lower interview score than the
candidates ultimately selected for the position, this
was a result of her lack of experience and poor
interview
performance
rather
than
age
discrimination. Dr. Babb has not pointed to any
evidence suggesting that her application for the
position was treated differently because of her age.
2. Refusal to Transfer Dr. Babb to Module B
The Court next turns to Dr. Babb’s argument that
she was subject to differential treatment based on age
and gender when Dr. Justice denied her request for a
lateral transfer to Module B in April 2013. In June
2012, Dr. Howard, who was Dr. Babb’s supervisor at
that time, suggested that Dr. Babb consider a primary
care position in Module B of the VA that had recently
been vacated. (Howard Dep. Doc. # 57 at 53:3-8). Dr.
56a
Babb originally turned down the position because she
wished to remain in geriatrics, but later requested the
lateral move. (Babb Decl. Doc. # 68-2 at ¶ 10). Dr.
Justice denied the transfer, and the evidence shows
that the Module B position did not exist at the time
that Dr. Babb requested to be transferred into Module
B. (Doc. # 52-2 at 185).
The denial of transfer to a non-existent position
does not form the basis of a differential treatment
claim. First, Dr. Babb does not identify any
differential treatment. The record shows that a
younger employee (Dr. Natalia Schwartz) requested to
be transferred into Module B in June of 2012, and Dr.
Schwartz was also turned down because the position
was not available. (Doc. # 52-2 at 185).
Dr. Babb also alleges that Dr. Justice informed her
that she could not move anyone into a position without
advertising, yet a male over 40 (Dr. Lobley) was
moved into a PACT position without it being
advertised. (Doc. # 68-2 at ¶ 21, 29). Dr. Lobley’s
position became a PACT position in 2011 when the
PACT program began. Unlike Dr. Lobley, whose
position changed due to the beginning of the PACT
program, Dr. Babb is alleging differential treatment
by not being moved into a position that no longer
existed. The fact that the Module B position was not
open at the time Dr. Babb requested the transfer
distinguishes her situation from Dr. Lobley’s. Even
assuming that Dr. Lobley’s situation is analogous, his
change in position does not evince differential
treatment in terms of transfer without advertising
because his position became a PACT position two
years earlier in 2011. (Doc. # 70 at 3). Dr. Babb has
thus not presented evidence that any pharmacist,
57a
male or female, was “moved” into a position simi
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