992 F.3d 1193
11th Cir.2021Background
- Noris Babb, a VA clinical pharmacist, participated in colleagues' EEOC complaints and filed her own after a VA promotion initiative; she alleged age and sex discrimination, retaliation, and hostile work environment.
- Adverse personnel actions alleged: loss of "advanced scope" (promotion eligibility), denied training, passed over for clinic positions, reassignment raising grade but reducing holiday pay.
- District court granted summary judgment for the Secretary on all claims. Eleventh Circuit reversed on sex discrimination, affirmed on ADEA, Title VII retaliation, and hostile-work-environment (citing Trask and Gowski).
- Supreme Court granted certiorari on the ADEA issue and held that the ADEA federal-sector provision does not require but-for causation; age need only 'play any part' in the decision-making.
- On remand the Eleventh Circuit (this opinion) holds that the Supreme Court's ADEA analysis abrogates Trask for Title VII federal-sector retaliation claims and that Monaghan controls the standard for retaliatory hostile-work-environment claims; summary judgment vacated and case remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Supreme Court's ADEA decision (Babb) controls Title VII federal-sector retaliation causation and abrogates Trask | Babb's ADEA textual analysis applies to §2000e-16(a) because the text is materially identical; Trask should be displaced | Trask remains binding; the Supreme Court only decided the ADEA question and did not overrule Trask on Title VII | Babb abrogated Trask; apply Babb's textual rule: protected characteristic need only ‘‘play any part’’ in the differential treatment (but must be but-for cause of differential treatment, not necessarily of ultimate outcome) |
| Whether McDonnell Douglas and the VA's nondiscriminatory reasons defeat Babb's retaliation claim | McDonnell Douglas framework is not dispositive under Babb; discriminatory consideration in decision-making can establish liability even if outcome unchanged | VA says nondiscriminatory, nonpretextual reasons foreclose liability | Court rejects defendant's backstop: presence of discriminatory consideration in making a personnel action can suffice despite nonpretextual reasons; remand for application of proper standard |
| Proper standard for retaliatory hostile-work-environment claims (Gowski severe-or-pervasive v. Burlington/Crawford 'might have dissuaded') | Babb: Monaghan/Crawford 'might have dissuaded' standard governs retaliatory hostile-work-environment claims | Gov: Gowski remains binding for federal-sector cases; severe-or-pervasive is required and/or claim must qualify as a personnel action | Monaghan corrects Gowski; apply Burlington/Crawford 'well might have dissuaded a reasonable worker' standard for retaliatory hostile-work-environment claims; vacate and remand |
| Forfeiture: whether Babb waived challenge to the standard by not arguing it earlier | Babb: Monaghan issued after prior appeal; issue was prudentially appropriate to raise on rehearing and in light of intervening authority | Gov: Babb forfeited the argument by not raising it on initial appeal | Court considers the issue despite prudential forfeiture concerns because Monaghan is intervening, and the parties fully briefed and argued it; remand for district court to apply new standard |
Key Cases Cited
- Babb v. Wilkie, 140 S. Ct. 1168 (2020) (Supreme Court holds ADEA federal-sector provision does not require but-for causation; age need only play any part in decision-making)
- Trask v. Secretary, Dep't of Veterans Affairs, 822 F.3d 1179 (11th Cir. 2016) (prior Eleventh Circuit precedent on causation for federal-sector retaliation reversed as abrogated by Babb)
- Monaghan v. Worldpay US, Inc., 955 F.3d 855 (11th Cir. 2020) (adopts Burlington/Crawford 'might have dissuaded' standard for retaliation-based hostile-work-environment claims and rejects Gowski)
- Burlington N. & S.F. Ry. Co. v. White, 548 U.S. 53 (2006) (retaliation standard asks whether actions well might have dissuaded a reasonable worker)
- Crawford v. Carroll, 529 F.3d 961 (11th Cir. 2008) (applies Burlington standard in Eleventh Circuit retaliation context)
- Gowski v. Peake, 682 F.3d 1299 (11th Cir. 2012) (earlier Eleventh Circuit decision applying severe-or-pervasive standard to retaliatory hostile-work-environment claims)
- Porter v. Adams, 639 F.2d 273 (5th Cir. 1981) (interprets Title VII federal-sector language to bar reprisals; circuit precedent recognizing retaliation as 'discrimination' under §2000e-16)
- Gomez-Perez v. Potter, 553 U.S. 474 (2008) (retaliation for complaining about age discrimination is 'discrimination based on age')
- Nassar v. Univ. of Tex. Sw. Med. Ctr., 570 U.S. 338 (2013) (private-sector Title VII retaliation requires but-for causation under §2000e-3(a))
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (burden-shifting framework for disparate treatment claims)
- United States v. Archer, 531 F.3d 1347 (11th Cir. 2008) (example of an intervening Supreme Court decision abrogating circuit precedent; used illustratively)