Trask v. Sec'y, Dep't of Veterans Affairs

• Decision Date: 05 April 2016
• Docket Number: No. 15–11709.,15–11709.
• Citation: 822 F.3d 1179
• Parties: Donna TRASK, Anita Truitt, Plaintiffs–Appellants, v. SECRETARY, DEPARTMENT OF VETERANS AFFAIRS, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

822 F.3d 1179

Donna TRASK, Anita Truitt, Plaintiffs–Appellants

v.SECRETARY, DEPARTMENT OF VETERANS AFFAIRS, Defendant–Appellee.

No. 15–11709.

United States Court of Appeals, Eleventh Circuit.

April 5, 2016.

Joseph D. Magri, Merkle Magri & Meythaler, PA, Tampa, FL, for Plaintiffs–Appellants.

Michelle Thresher Taylor, Michael Kenneth, John F. Rudy, III, U.S. Attorney's Office, Tampa, FL, for Defendant–Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before HULL, JULIE CARNES, and CLEVENGER,^* Circuit Judges.

HULL, Circuit Judge:

Plaintiffs Donna Trask and Anita Truitt (the “plaintiffs”) appeal the district court's order granting summary judgment in favor of the Secretary for the Department of Veterans Affairs (“VA”) in their employment discrimination action brought pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 (the “ADEA”), 29 U.S.C. § 626. On appeal, the plaintiffs argue that the district court erred by making improper fact determinations and incorrectly applying the relevant law. After review, and with the benefit of oral argument, we affirm.¹

I. RELEVANT BACKGROUND FACTS

In this case the plaintiffs sued their employer, the VA, for gender and age discrimination. The plaintiffs are pharmacists who have worked for the VA for over a decade. In 2010, the VA announced a nationwide treatment initiative that resulted in the reorganization of several VA treatment facilities, including the facility where the plaintiffs worked. This reorganization involved the creation of new pharmacist positions requiring an “advanced scope of practice,” to be filled internally, and the elimination of certain pre-existing pharmacist positions, including the positions that the plaintiffs held.

The plaintiffs claim they were not selected to fill the new pharmacist positions due to their gender and age and were similarly denied opportunities to train and qualify for those positions due to their gender and age. The VA's non-selection of the plaintiffs for the new pharmacist positions, along with its reorganization and elimination of the plaintiffs' then-current positions, resulted in a reassignment of the plaintiffs' positions and job duties. The plaintiffs claim their reassignments resulted in losses of prestige and responsibility. The plaintiffs have suffered no decrease in pay and are still employed by the VA.

We recount below the plaintiffs' training and credentials, as well as their experience and performance as pharmacists. We then discuss the VA's creation and implementation of the treatment initiative that gave rise to the new pharmacist positions and discuss the objective qualifications required to fill those positions. Finally, we recount the plaintiffs' unsuccessful attempts to qualify for and fill the new pharmacist positions.

A. The Plaintiffs and their Supervisors

Dr. Donna Trask, a female born in 1953, is a licensed clinical pharmacist. At the time of the events material to this appeal, Dr. Trask was approximately 58 years old. Dr. Trask obtained a Bachelor of Pharmacy Degree in 1975, and a Doctor of Pharmacy Degree in 2002. Over her decades-long career as a clinical pharmacist, Dr. Trask has gained extensive experience monitoring medication distribution, establishing drug handling procedures, maintaining prescription records, training pharmacy personnel, educating and consulting patients, and making medication recommendations to physicians for all types of diseases and medical conditions, commonly referred to as “disease states.”

In 2010, Dr. Trask obtained a certificate in Medication Management Therapy, which indicates expertise in several areas, including disease state management and selecting, initiating, and modifying medication therapy. In 2011, Dr. Trask obtained board certification as a geriatric pharmacist, which demonstrated competence in over 100 disease states in the senior population. Dr. Trask has also taught classes in pharmacology.

Dr. Anita Truitt, a female born in 1955, is also a licensed clinical pharmacist. At the time of the events material to this appeal, Dr. Truitt was approximately 55 years old. Dr. Truitt obtained a Bachelor of Science Degree in Pharmacy in 1978, and a Doctor of Pharmacy Degree in 2003. Throughout her decades-long career as a pharmacist, her job duties have required her to counsel and educate patients in several disease states.

In 2002, the plaintiffs began working as clinical “float” pharmacists for Bay Pines VA Healthcare System (“Bay Pines”). In 2003, they received assignments as “module” pharmacists. Bay Pines is split into 4 “modules,” all of which provide primary care. Dr. Trask worked in Module D and Dr. Truitt worked in Module B.

The plaintiffs had all the same supervisors. Their first-line supervisor was Dr. Robert Stewart, a male in his 40s. Their second-line supervisors, each an Associate Chief of Pharmacy, were Dr. Keri Justice, a female in her 30s, and Dr. Camaro West–Lee, a female in her 40s. Their third-line supervisor was the Bay Pines Chief of Pharmacy, Dr. Gary Wilson, a male in his 50s.

B. The Plaintiffs' Duties and Performance as Module Pharmacists

Dr. Trask testified that her duties as a module pharmacist involved monitoring labs, calculating dosages, conducting extensive patient interviews, evaluating non-formulary drug requests, training personnel and new pharmacists, and making informed medication recommendations to physicians. When providing treatment, Dr. Trask would typically interview the patient, evaluate his medical history, look for changes in the patient, consider modifications to medication, screen for contraindications, and educate the patient. Dr. Trask believed she performed all the duties of a mid-level provider.

Apart from providing primary care, Dr. Trask collaborated with several patient-centered care teams in Module D including the Spinal Cord Injury Team, the Traumatic Brain Injury Team, and the Post-deployment team for veterans returning from Iraq and Afghanistan. Dr. Trask received specialized training and testified that she was the Bay Pines pharmacy service's “expert in spinal cord injury.” Dr. Trask received an “exceptional” rating on all her performance reviews and never had a complaint filed against her.

Dr. Truitt testified that her duties as a module pharmacist involved managing patients' medications and recommending certain drug therapies to physicians. She testified that more than 50% of her module practice at Bay Pines involved disease state management. Dr. Truitt also trained newly hired doctors and pharmacists and served as a preceptor for pharmacy students at a nearby college. Dr. Truitt received exceptional performance reviews for her work as a module pharmacist.

While the plaintiffs contended that they were doing most of the duties of a mid-level provider, they admitted that they never signed prescriptions in their own names. In fact, module pharmacists at Bay Pines never prescribed, managed, or monitored medications independent from a physician.

C. Advanced Scope of Practice

Bay Pines pharmacists have the ability to hold either a general scope of practice or an advanced scope of practice (“advanced scope”). A general scope of practice, held by all clinical pharmacists, entails general pharmaceutical duties, such as processing prescriptions and using clinical judgment to follow lab work. An advanced scope allows a pharmacist to prescribe medications for a specific disease state within their practice, such as diabetes, hypertension, and hyperlipidemia.

While there are several types of advanced scopes, the defining feature of most is that they allow pharmacists to independently write prescriptions without a doctor's approval. Thus, pharmacists with advanced scopes function “very much like a physician or an advanced provider, a nurse practitioner, or a ... physician's assistant.”

To obtain an advanced scope, a clinical pharmacist must obtain approval from the Bay Pines Pharmacy Professional Standards Board (“Standards Board”). The Standards Board looks at two criteria: (1) whether the pharmacists' job requires an advanced scope, and (2) whether the pharmacist is qualified and credentialed to hold an advanced scope. Obtaining and maintaining an advanced scope requires long-term peer review from multiple supervisory pharmacists. As such, the Standards Board does not grant advanced scopes “unless they are a requirement of the job area and job description in which someone practices.”

A pharmacist could initiate the process for obtaining an advanced scope by speaking with his or her supervisor. The supervisor would then submit a request to the credentialing department, which would provide the necessary paperwork, including an “Advanced Scope of Practice and Prescriptive Authority Application.” The application was a short document that required the applicant to check a few boxes, sign, and date. The application also contained a section for signatures from “collaborating” physicians, who would indicate their approval or disapproval of the applicant's receipt of an advanced scope.

The Standards Board reviewed all advanced scope applications. At the time material to this appeal, the Standards Board committee consisted of Dr. Stewart and seven other individuals. Dr. Justice was the Chairperson of the Standards Board. Once the Standards Board had reviewed the application and interviewed the relevant supervisory pharmacists, it would reach a final decision, subject to Dr. Wilson's approval.

The plaintiffs did not have advanced scopes. As module pharmacists, their jobs did not require one. Dr. Trask was unaware of any person receiving an advanced scope who did not have an assignment requiring one.

Without an advanced scope, the plaintiffs lacked authority to independently prescribe medications to manage patients' diseases. As Dr. Truitt recognized, “[T]echnically we could not make the change [in medications] without the...