Babb v. Sec'y, Dep't of Veterans Affairs, 16-16492

• Decision Date: 01 April 2021
• Docket Number: No. 16-16492,16-16492
• Parties: Noris BABB, Plaintiff - Appellant, v. SECRETARY, DEPARTMENT OF VETERANS AFFAIRS, Defendant - Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

992 F.3d 1193

Noris BABB, Plaintiff - Appellant,

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

No. 16-16492

United States Court of Appeals, Eleventh Circuit.

April 1, 2021

Joseph D. Magri, Merkle Magri & Meythaler, PA, Tampa, FL, Roman Martinez, Margaret Upshaw, Latham & Watkins, LLP, Washington, DC, for Plaintiff-Appellant.

Peter J. Sholl, Michael Kenneth, U.S. Attorney's Office, Arthur Lee Bentley, III, Bradley Arant Boult Cummings, LLP, Tampa, FL, Stephanie Marcus, U.S. Department of Justice, Civil Division, Washington, DC, for Defendant-Appellee.

Before NEWSOM, ED CARNES, and SILER,^* Circuit Judges.

NEWSOM, Circuit Judge:

We return, once again, to the case of Dr. Noris Babb. Babb is a clinical pharmacist who works at a VA medical center in Florida. Years ago now, she sued the Secretary of the Department of Veterans Affairs based on claims arising out of her employment at the hospital. In particular, Babb asserted claims for (1) gender discrimination, (2) age discrimination, (3) retaliation for engaging in activities protected by Title VII, and (4) hostile work environment. The Secretary prevailed across the board at summary judgment. We reversed and remanded on Babb's gender-discrimination claim but affirmed on everything else, although we noted that we might have ruled in Babb's favor on her age-discrimination and retaliation claims if our decision in Trask v. Secretary, Department of Veterans Affairs , 822 F.3d 1179 (11th Cir. 2016), hadn't stood in the way.

The Supreme Court granted certiorari on Babb's age-discrimination claim and reversed. So, on remand back to us, we reversed and remanded on that claim and (again) on the gender-discrimination claim, but we affirmed (again) on the Title VII retaliation and hostile-work-environment claims.

Babb petitioned for rehearing on the latter two issues. She argued (1) that the Supreme Court's decision in her case also undermined our Trask -based rejection of her Title VII retaliation claim and (2) that an intervening decision of ours, Monaghan v. Worldpay US, Inc. , 955 F.3d 855 (11th Cir. 2020), gutted the precedent on which we had relied in rejecting her hostile-work-environment claim. We granted rehearing.

At this juncture, we confront two main issues. The first is how to handle Babb's Title VII retaliation claim. She argues that because the provision of the Age Discrimination in Employment Act (ADEA) that the Supreme Court interpreted in her case is materially identical to the pertinent provision in Title VII, the Supreme Court's analysis of the former dictates our reading of the latter. As far as the text goes, the government agrees with Babb, but it nonetheless insists that our decision in Trask compels us, once again, to rule against her. The second issue is whether our decision in Monaghan requires reversal on Babb's hostile-work-environment claim.

We hold that the Supreme Court's decision in Babb's case undermined Trask to the point of abrogation and that the standard that the Court articulated there now controls cases arising under Title VII's nearly identical text. We further hold that Monaghan clarified our law governing what we'll call "retaliatory-hostile-work-environment" claims, and that the standard for such claims is, as we said there, the less onerous "might have dissuaded a reasonable worker" test articulated in Burlington Northern & Santa Fe Railway Co. v. White , 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006), and Crawford v. Carroll , 529 F.3d 961 (11th Cir. 2008), rather than the more stringent "severe or pervasive" test found in Gowski v. Peake , 682 F.3d 1299 (11th Cir. 2012).

We VACATE the district court's grant of summary judgment on Babb's Title VII retaliation and hostile-work-environment claims and REMAND for the district court to consider those claims under the proper standards.

I

A

Born in 1960, Noris Babb is now a clinical pharmacist at a VA hospital in Florida, where she has worked since 2004.¹ In 2010, the VA instituted a new initiative governing promotions for pharmacists who, like Babb, spend at least 25% of their time engaged in "disease state management"—i.e. , seeing patients and writing prescriptions for them without a physician's sign-off. Babb sought a promotion.

Things didn't go smoothly with the promotions program. Specifically, Babb and some of her co-workers thought that the VA implemented its initiative in ways that discriminated on the basis of age and gender. Two of Babb's colleagues filed complaints with the Equal Employment Opportunity Commission (EEOC) in 2011. Babb sent emails and eventually gave a deposition in support of her colleagues’ complaints, and she filed her own EEOC complaint in May 2013. That's what eventually led her to this Court and, then, to the Supreme Court. See Babb v. Sec'y, Dep't of Veterans Affairs , 743 F. App'x 280, 283–84 (11th Cir. 2018).

As relevant here, Babb's ADEA claim and her Title VII retaliation claim both largely hinge on the same facts, which the Supreme Court concisely summarized as follows:

First, in 2013, the VA took away Babb's "advanced scope" designation, which had made her eligible for promotion on the Federal Government's General Scale from a GS-12 to a GS-13. Second, during this same time period, she was denied training opportunities and was passed over for positions in the hospital's anticoagulation clinic. Third, in 2014, she was placed in a new position, and while her grade was raised to GS-13, her holiday pay was reduced. All these actions, she maintains, involved age discrimination, and in support of her claims, she alleges, among other things, that supervisors made a variety of age-related comments.

Babb v. Wilkie , ––– U.S. ––––, 140 S. Ct. 1168, 1171, 206 L.Ed.2d 432 (2020) (footnote omitted). Some of the "comments" to which the Supreme Court referred were both age- and gender-related. For example, a pharmacy administrator described "Magic Mike" as a "middle-aged woman movie" in a conversation with Babb. Babb , 743 F. App'x at 291. And, while the origins of a vulgar email were under investigation, the same individual called Babb a "mow mow," which Babb took as a "grandma comment." Id .

B

In 2014, Babb sued the Secretary of the Department of Veterans Affairs. She alleged that she had been the victim of gender and age discrimination, suffered retaliation based on protected EEOC activity, and endured a hostile work environment. For those reasons, she said, the VA had violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. , and the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq.

The district court granted the Secretary summary judgment in full. We reversed and remanded on Babb's gender-discrimination claim but affirmed on her ADEA, Title VII retaliation, and hostile-work-environment claims. See Babb , 743 F. App'x at 283. Along the way, we noted that if not for circuit precedent, we might have ruled in Babb's favor on both the ADEA and Title VII retaliation claims. See id. at 287, 290 ; id. at 288, 290 (describing Trask v. Sec'y, Dep't of Veterans Affairs , 822 F.3d 1179 (11th Cir. 2016), as questionable-but-controlling authority)). But, we explained, under the prior-panel-precedent rule we didn't have that option. Id. at 288, 290.

So Babb took her case to a court with more options. The Supreme Court granted certiorari on just one question: Whether the federal-sector provision of the ADEA required Babb to prove that age was a but-for cause of a challenged personnel action. Babb v. Wilkie , ––– U.S. ––––, 139 S. Ct. 2775, 204 L.Ed.2d 1156 (2019) (mem.).

The Court answered that question "no." Babb , 140 S. Ct. at 1178. "The plain meaning of the statutory text," the Court held, "shows that age need not be a but-for cause of an employment decision in order for there to be a violation of § 633a(a)." Id. at 1172. In so holding, the Court zeroed in on the key statutory language: "[P]ersonnel actions ... shall be made free from any discrimination based on age ...." 29 U.S.C. § 633a(a). The Court explained that § 633a(a) ’s terms required a plaintiff to show only that "age discrimination plays any part in the way a decision is made[.]" Id. at 1174 (emphasis added).

Back to us Babb's case came. On remand, we (1) reversed and remanded on the Title VII gender-discrimination claim, as we had done the first go around, (2) reversed and remanded on Babb's age-discrimination claim, in accordance with the Supreme Court's decision, and (3) affirmed on the remaining issues that the Court hadn't directly addressed—including the Title VII retaliation claim and the hostile-work-environment claim. Babb v. Sec'y, Dep't of Veterans Affairs , 802 F. App'x 548 (11th Cir. 2020) (per curiam).

Babb petitioned for rehearing on her Title VII retaliation and hostile-work-environment claims. She argued that the Supreme Court's decision fatally undermined our holding on her Title VII retaliation claim and that an intervening decision of this Court had the same effect on our treatment of her hostile-work-environment claim. We granted that petition, solicited supplemental briefs from the parties, and held oral argument.

II

We first ask what the Supreme Court's decision in Babb's case means for her Title VII retaliation claim—which, in turn, requires us to ask whether the Court's decision undermined to the point of abrogation Trask ’s Title VII holding, on which we earlier relied. Because the relevant provisions of the ADEA and Title VII are materially identical, we hold that the Supreme Court's analysis of the former controls the latter as well. Second, we ask what standard governs Babb's hostile-work-environment claim. We conclude, in accordance with our decision in Monaghan , that Babb's claim should be evaluated under the "might have dissuaded a reasonable worker" standard, rather than the "severe or pervasive" standard that we applied on her first appeal.

A

We divide our analysis of Babb's Title VII retaliation claim into two parts. First...