VA Employee Asks Eleventh Circuit To Ease EEO Reprisal Legal Standard For Federal Employees
FEDmanager recently reported the U.S. Supreme Court’s decision in Babb v. Wilkie. In Babb, the Supreme Court reversed a panel of U.S. Court of Appeals for the Eleventh Circuit and held the prohibition against age discrimination in the federal workplace was broader than that applied in the private sector. We update you now that plaintiff Noris Babb is requesting the full Eleventh Circuit to apply the Supreme Court’s holding to lower the bar to establish EEO reprisal claims in the federal workplace.
Noris Babb is a clinical pharmacist employed by the U.S. Department of Veterans Affairs. In 2009, she obtained an “advanced scope of practice” designation, which rendered her eligible for a promotion under a new VA initiative called “Patient Aligned Care Team.” But, she argues, it became clear that decisions as to who could participate were “infused” with age and gender discrimination.
In 2011, two other clinical pharmacists filed Equal Employment Opportunity (EEO) complaints against VA alleging age and gender discrimination. Babb sent e-mails supporting her colleagues to an EEO investigator, raised “concerns” about age and gender discrimination with her supervisor, and subsequently in 2014, gave a deposition in support of her colleagues’ lawsuit. During that time period, VA eliminated Babb’s advanced-scope designation, denied her requests for training, and passed over her for younger pharmacists to fill two open positions.
In 2014, Babb filed suit against VA in federal district court. Among her claims were that VA discriminated against her on the basis of her age and in retaliation for supporting her colleagues’ EEO claims against VA. The district court evaluated Babb’s claims under a “but-for” causation standard, and granted VA’s motion for summary judgment on all her claims. She then appealed to the Eleventh Circuit, where a three-judge panel affirmed the district court’s decision. Babb then petitioned the Supreme Court for a writ of certiorari to hear her argument that the Eleventh Circuit misapplied the law to her age discrimination claim. The Supreme Court granted Babb’s request.
In April 2020, the Supreme Court held the plain meaning of the federal sector provision of the Age Discrimination in Employment Act (ADEA) – requiring personnel actions be “made free from any discrimination based on age” – requires personnel actions be untainted by any age consideration. Thus, the Supreme Court held, the Eleventh Circuit panel applied an incorrect “but-for” test to affirm the district court’s decision dismissing the plaintiff’s ADEA claim.
The Supreme Court tempered its reversal on the matter of whether an ADEA violation occurred, by limiting relief such as hiring, reinstatement, backpay, and compensatory damages to instances where “a plaintiff must show that age was a but-for cause of the challenged employment decision. The Court concluded its decision by remanding the case to the U.S. Court of Appeals for the Eleventh Circuit for further proceedings.
On remand, the previously reversed Eleventh Circuit panel issued a new decision on the plaintiff’s appeal reversing the district court’s application of a “but-for” standard to dismiss the plaintiff’s ADEA claim. However, the panel affirmed the district court’s application of a “but for” standard to dismiss the plaintiff’s claim that VA unlawfully retaliated against her for her prior EEO activity.
On June 5, 2020, Babb filed a motion for en banc reconsideration by the full Eleventh Circuit of the panel’s new decision applying a “but for” standard to affirm dismissal of her EEO retaliation claim. Babb argues the federal sector Title VII provision, 42 U.S.C. 2000e-16(a), “contains the exact same ‘critical statutory language’ as the ADEA provision the Supreme Court held does not impose a but-for causation requirement.” Quoting the government’s opposition to her petition to the Supreme Court, Babb argues the government agrees the two provisions have “materially identical” language and agrees “there is no apparent reason why the Court should interpret those two provisions differently.”
The only reason, Babb argues, the Eleventh Circuit panel denied Babb’s argument is because the panel found itself “constrained” by a 2016 Eleventh Circuit decision. Full circuit review is therefore warranted, according to Babb, because the circuit’s 2016 case “directly conflicts” with the Supreme Court’s recent decision on the legal standard to establish an ADEA violation.
There are now three potential outcomes for Babb’s appeal before the Eleventh Circuit. The three-judge panel may reconsider Babb’s appeal, the full Eleventh Circuit may reconsider the panel’s decision, or the court may altogether reject Babb’s request. If the appeals court rejects Babb’s appeal, she may again petition the Supreme Court to review her case. FEDmanager will update readers after the Eleventh Circuit decides Babb’s request for reconsideration.
Babb’s full request for reconsideration is accessible via PACER.
This case law update was written by James P. Garay Heelan, Associate Attorney, Shaw Bransford & Roth, PC.
For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.