Petition for Writ of Certiorari — Noris Babb, Petitioner v. Douglas A. Collins, Secretary of Veterans Affairs

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).

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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

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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

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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

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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

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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,

Dr. Babb ― a GS-12 pharmacist with an Advanced

Scope ― sought such a promotion.

In June of 2012, Dr. Marjorie Howard, who was Dr.

Babb’s supervisor at that time, ask Dr. Babb whether

she would consider a primary care position in “Module

B” of the VA that had recently been vacated. (Howard

Dep. Doc. # 57 at 52:8-10). Dr. Howard brought up the

Module B position because she did not think that Dr.

Babb could meet the 25% requirement for the GS-13

promotion in geriatrics. (Id. at 54:19-25, 55:19-20). Dr.

Babb declined, even though Dr. Babb recognized that

her direct supervisor said that moving to Module B

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 ― that is, of differential treatment ―

but not necessarily a but-for cause of the personnel

action itself.” Id. at 1173. In other words, to state a

claim under Title VII, the protected factor “must be

the but-for cause of differential treatment, not that

the [protected factor] must be a but-for cause of the

ultimate decision.” Id. at 1174.

Under Babb I, district courts thus no longer use

the McDonnell Douglas framework to assess

discrimination claims that do not require but-for

causation as to the ultimate decision. See Babb II, 992

F.3d at 1204 (“[I]t seems that the Supreme Court

accepted Babb’s argument ‘that the District Court

should not have used the McDonnell Douglas

framework.’”); see also Lewis v. Sec’y of U.S. Air Force,

No. 20-12463, 2022 WL 2377164, at *10 (11th Cir.

June 30, 2022) (explaining that Babb I “foreclosed

using the full McDonnell Douglas framework

regarding ADEA claims and Title VII retaliation

claims as to federal-sector employees”).

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.

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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,

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male or female, was “moved” into a position similar to

the one Dr. Babb sought.

Second, even under the Babb II standard, Dr. Babb

points to no evidence suggesting that age or gender

discrimination was the but-for cause of her treatment.

As this Court previously explained, the VA was not

required to create (or hold open) a position just to

accommodate a disgruntled employee such as Dr.

Babb. (Doc. # 83 at 32). Dr. Babb’s treatment in being

denied the transfer was thus similar to that of both

younger and male pharmacists.

While the provision of non-pretextual reasons for

an employment action is insufficient to defeat a prima

facie case of age or gender discrimination, Dr. Babb

has failed to meet her burden of providing evidence

from which a reasonable jury could find age or gender

played any role in the VA’s hiring decision. Without

more, a reasonable jury could not find age or gender

discrimination based on the mere fact that two

younger female pharmacists were selected for the job.

For these reasons, the VA’s Motion for Summary

Judgment is granted as to Count II.

C. Count III – Retaliatory Hostile Work

Environment

Dr. Babb also maintains that she was subjected to

a retaliatory hostile work environment because of her

engaging in EEO activity. (Doc. # 127 at 15). At the

time of its first Order, the Court reviewed Dr. Babb’s

retaliatory hostile work environment claim under

Gowski. Now, under Monaghan, “retaliatory hostile

work environment claims . . . prevail if the conduct

complained of ‘well might have dissuaded a

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reasonable worker from making or supporting a

charge of discrimination.’ ” Tonkyro, 995 F.3d at 836

(quoting Monaghan, 955 F.3d at 862).

Thus, Dr. Babb must show that she suffered

harassment that “might well have dissuaded a

reasonable worker from making or supporting a

charge of discrimination.” Id. In addition, to prevail on

this claim, Dr. Babb must demonstrate a link between

her EEO activity and the totality of events allegedly

creating a hostile work environment. See Terrell v.

McDonough, No. 8:20-cv-64-WFJ-AEP, 2021 WL

4502795, at *9 (M.D. Fla. Oct. 1, 2021) (rejecting

plaintiff’s retaliatory hostile work environment claim

where she failed to link the allegedly adverse actions

to her EEO activity).

Unlike Title VII retaliation claims, which are

based on discrete acts, the “very nature” of hostile

work environment claims “involves repeated conduct.”

Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,

115 (2002). Hostile work environment claims are

based on the “cumulative effect of individual acts,”

each of which “may not be actionable on its own.” Id.

Dr. Babb describes numerous incidents as the

basis for her retaliatory hostile work environment.

These include denials of training, an evaluation of

“fully successful” rather than “outstanding” in

mentoring, removal of educational duties, denial of

participation in negotiation of the Agreements, the

loss of an Advanced Scope, the loss of pay, the nonselection for the anticoagulation position, the AIB

targeting, the denial of a lateral move to Module B

PACT, the leaving of reports of contact on her desk,

the 2014 events, and the holiday pay issue. Many of

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these incidents form the basis of her Title VII

retaliation and discrimination claims; specifically, the

loss of an Advanced Scope, the non-selection for the

anticoagulation position, the denial of a lateral move

to Module B PACT, and the holiday pay issue.

Although the Court previously found that Dr.

Babb’s retaliatory hostile work environment claim

fails under the “severe and pervasive standard,” it

now concludes that a reasonable jury could find that

the events affecting Dr. Babb “might well have

dissuaded a reasonable worker from making or

supporting a charge of discrimination.” (Doc. # 83 at

49); Tonkyro, 995 F.3d at 836. Notably, Babb II and

Monaghan have rendered the standard for an adverse

employment action in a retaliatory hostile work

environment claim coterminous with that in a Title

VII retaliation claim. Babb II, 992 F.3d at 1209;

Monaghan, 955 F.3d at 862. Because each discrete act

underlying Dr. Babb’s Title VII retaliation claim

meets the “might have dissuaded” standard, the

cumulative effect of these acts also meets the standard

for the purposes of Dr. Babb’s retaliatory hostile work

environment claim. For the same reasons the Court

has denied the VA’s Motion as to Dr. Babb’s Title VII

retaliation claim, summary judgment in favor of the

VA is denied as to the retaliatory hostile work

environment claim.

As this Court previously explained, Dr. Babb has

described adverse employment actions directly

impacting the terms of her employment ― specifically,

her pay (including holiday pay).

As with Dr. Babb’s Title VII retaliation claim, a

reasonable jury could find that the temporal proximity

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between Dr. Babb’s EEO activity and her adverse

employment actions demonstrates a causal link. The

removal of Dr. Babb’s Advanced Scope, her nonselection for the anticoagulation position, and reduced

holiday pay all occurred within a short period of time

following her EEO activity. A reasonable jury could

find that the close temporal proximity between Dr.

Babb’s EEO activity and the adverse actions

established causation.

After due consideration, the Court denies the VA’s

Motion for Summary Judgment as to Dr. Babb’s

hostile work environment claim.

IV.

Conclusion

For the reasons given above, summary judgment is

denied on Counts I and III. The Motion is granted as

to Count II.

Accordingly, it is

ORDERED, ADJUDGED, and DECREED:

(1)

Defendant the Secretary of Veterans Affairs’

Motion for Summary Judgment (Doc. # 52) is

GRANTED in part and DENIED in part.

(2)

Summary judgment is granted in favor of

Defendant on Count II.

(3)

Summary judgment is denied as to Counts I

and III.

DONE and ORDERED in Chambers in Tampa,

Florida, this 19th day of August, 2022.

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Virginia M Hernandez Covington

United States District Judge

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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

(November 10, 2022)

ORDER

This matter comes before the Court upon

consideration of Defendant Secretary of Veterans

Affairs’ Motion for Reconsideration in Part, filed on

August 29, 2022. (Doc. # 155). Plaintiff Noris Babb

responded on September 1, 2022. (Doc. # 158). For the

reasons that follow, the Motion is granted in part and

denied in part.

I.

Legal Standard

“Federal Rules of Civil Procedure 59(e) and 60

govern motions for reconsideration.” Beach Terrace

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Condo. Ass’n, Inc. v. Goldring Invs., No. 8:15-cv-1117VMC-TBM, 2015 WL 4548721, at *1 (M.D. Fla. July

28, 2015). “The time when the party files the motion

determines whether the motion will be evaluated

under Rule 59(e) or Rule 60.” Id. “A Rule 59(e) motion

must be filed within 28 days after the entry of the

judgment.” Id. “Motions filed after the 28–day period

will be decided under Federal Rule of Civil Procedure

60(b).” Id.

Here, the Motion was filed within 28 days of the

entry of judgment, so Rule 59 applies. “The only

grounds for granting a Rule 59 motion are newly

discovered evidence or manifest errors of law or fact.”

Anderson v. Fla. Dep’t of Envtl. Prot., 567 F. App’x

679, 680 (11th Cir. 2014) (quoting Arthur v. King, 500

F.3d 1335, 1343 (11th Cir. 2007)).

Granting relief under Rule 59(e) is “an

extraordinary remedy to be employed sparingly in the

interests of finality and conservation of scarce judicial

resources.” United States v. DeRochemont, No. 8:10cr-287-SCB-MAP, 2012 WL 13510, at *2 (M.D. Fla.

Jan. 4, 2012) (citation omitted). Furthermore, “a Rule

59(e) motion [cannot be used] to relitigate old matters,

raise argument or present evidence that could have

been raised prior to the entry of judgment.” Michael

Linet, Inc. v. Vill. of Wellington, 408 F.3d 757, 763

(11th Cir. 2005).

A. Removal of Dr. Babb’s Advanced Scope

The VA argues that the Court erred in its

summary judgment order by treating the removal of

Dr. Babb’s Advanced Scope as a discrete act because

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it was not alleged as such in the operative complaint

and is time-barred.

The VA is correct. In its January 12, 2015, order

dismissing the Second Amended Complaint, the Court

found that “the allegedly discriminatory actions that

occurred more than 45 days prior to Babb’s first

contact with the EEO counselor on May 6, 2013, are

time-barred from consideration.” (Doc. # 22 at 11); see

29 C.F.R. § 1614.105(a)(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.”). The February 15, 2013,

removal of Dr. Babb’s Advanced Scope is thus timebarred from consideration as a discrete act.

Accordingly, in her Third Amended Complaint —

which is the operative complaint — Dr. Babb did not

allege the removal of her Advanced Scope as a discrete

act. (Doc. # 27 at ¶ 15).

However, the Court’s characterization of the

removal of Dr. Babb’s Advanced Scope as a discrete

act is largely due to the VA’s description of Dr. Babb’s

discrete acts in its supplemental memorandum in

support of its motion for summary judgment. There,

the VA specifically noted “[t]he first of Plaintiff’s

retaliation claims was related to the removal of the

Advanced Scope of Practice.” (Doc. # 124 at 12).

Regardless, the removal of Dr. Babb’s Advanced

Scope is not a discrete act that is, by itself, actionable.

However, as the VA points out, an employee may use

“[time-barred] prior acts as background evidence in

support of a timely claim.” Nat’l R.R. Passenger Corp.

v. Morgan, 536 U.S. 101, 113 (2002). In a case like the

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one at bar, where the employer’s intent is at issue, Dr.

Justice’s removal of Dr. Babb’s Advanced Scope within

days of becoming aware of Dr. Babb’s protected

activity may serve as circumstantial evidence of Dr.

Justice’s retaliatory animus.

B. Dr. Megan Martinez’s GS-13 Role

The VA argues that Dr. Megan Martinez’s transfer

to a GS-13 position is not a discrete act because Dr.

Babb previously conceded as such in a response to the

VA’s motion for summary judgment on May 18, 2016.

(Doc. # 68). The Court does not find this argument

persuasive.

The Court declines to grant a Rule 59(e) motion

based on an argument “that was previously available,

but not pressed.” Stone v. Wall, 135 F.3d 1438, 1442

(11th Cir. 1998). Dr. Babb alleged that the transfer of

Dr. Megan Martinez, a younger woman, to a GS-13

position, was a discrete act for the purposes of her

retaliation claim in the Third Amended Complaint.

(Doc. # 27 at ¶ 15). Thereafter, in response to the VA’s

original motion for summary judgment, Dr. Babb

noted that the transfer of Dr. Martinez was “not a

discrete act.” (Doc. # 83 at 21; Doc. # 68 at 29).

However, in its supplemental memorandum, the

VA failed to argue that Dr. Babb had previously

conceded Dr. Martinez’s transfer was not a discrete

act. (Doc. # 124). Indeed, the VA recognized that the

Court’s previous summary judgment order analyzed

the treatment of Dr. Martinez vis-à-vis Dr. Babb in

the context of Dr. Babb’s retaliation claim. (Id. at 13).

Because “[a] party cannot readily complain about

the entry of a summary judgment order that did not

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consider an argument they chose not to develop for the

district court at the time of the summary judgment

motions,” the VA’s Motion for Reconsideration with

respect to Dr. Martinez’s transfer to GS-13 is denied.

Johnson v. Bd. Of Regents of Univ. of Ga., 263 F.3d

1234, 1264 (11th Cir. 2001).

Accordingly, it is now

ORDERED, ADJUDGED, and DECREED:

(1)

Defendant the Secretary of Veterans Affairs’

Motion for Reconsideration in Part (Doc. # 155)

is GRANTED with respect to the Court’s

consideration of the removal of Dr. Babb’s

Advanced Scope.

(2)

The Motion is DENIED with respect to the

Court’s consideration of Dr. Martinez’s transfer

to a GS-13 position.

DONE and ORDERED in Chambers in Tampa,

Florida, this 10th day of November, 2022.

Virginia M Hernandez Covington

United States District Judge

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IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 23-10383

D.C. Docket No. 8:14-cv-01732-VMA-TBM

NORRIS BABB,

Plaintiff-Appellant,

versus

SECRETARY, DEPARTMENT OF VETERANS

AFFAIRS,

Defendant-Appellee.

Appeal from the United States District Court

for the Middle District of Florida

[Filed: September 15, 2025]

ON PETITIONS FOR REHEARING AND FOR

REHEARING EN BANC

Before JILL PRYOR, NEWSOME, and LAGOA, Circuit

Judges.

PER CURIAM:

The Petition for Rehearing En Banc is DENIED,

no judge in regular active service on the Court having

requested that the Court be polled on rehearing en

banc. FRAP 40. The Petition for Panel Rehearing also

is DENIED. FRAP 40.

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