Babb v. Wilkie

• Decision Date: 06 April 2020
• Docket Number: No. 18-882,18-882
• Citation: 206 L.Ed.2d 432,140 S.Ct. 1168
• Parties: Noris BABB, Petitioner v. Robert WILKIE, Secretary of Veterans Affairs
• Court: U.S. Supreme Court

140 S.Ct. 1168

206 L.Ed.2d 432

Noris BABB, Petitioner

v.Robert WILKIE, Secretary of Veterans Affairs

No. 18-882

Supreme Court of the United States.

Argued January 15, 2020

Decided April 6, 2020

Joseph D. Magri, Sean M. McFadden, Merkle & Magri, P.A., Tampa, FL, Roman Martinez, Samir Deger-Sen, Margaret A. Upshaw, Latham & Watkins LLP, Washington, DC, for Petitioner.

Noel J. Francisco, Solicitor General, Joseph H. Hunt, Eric S. Dreiband, Assistant Attorneys General, Jeffrey B. Wall, Deputy Solicitor General, Elliott M. Davis, Acting Principal Deputy, Assistant Attorney General, Erica L. Ross, Assistant to the Solicitor General, Marleigh D. Dover, Stephanie R. Marcus, Thomas E. Chandler, Attorneys, Department of Justice, Washington, DC, for Respondent.

Justice ALITO delivered the opinion of the Court.^*

The federal-sector provision of the Age Discrimination in Employment Act of 1967 (ADEA), 88 Stat. 74, 29 U.S.C. § 633a(a), provides (with just a few exceptions) that "personnel actions" affecting individuals aged 40 and older "shall be made free from any discrimination based on age." We are asked to decide whether this provision imposes liability only when age is a "but-for cause" of the personnel action in question.

We hold that § 633a(a) goes further than that. The plain meaning of the critical statutory language ("made free from any discrimination based on age") demands that personnel actions be untainted by any consideration of age. This does not mean that a plaintiff may obtain all forms of relief that are generally available for a violation of § 633a(a), including hiring, reinstatement, backpay, and compensatory damages, without showing that a personnel action would have been different if age had not been taken into account. To obtain such relief, a plaintiff must show that age was a but-for cause of the challenged employment decision. But if age discrimination played a lesser part in the decision, other remedies may be appropriate.

I

Noris Babb, who was born in 1960, is a clinical pharmacist at the U.S. Department of Veterans Affairs Medical Center in Bay Pines, Florida. Babb brought suit in 2014 against the Secretary of Veterans Affairs (hereinafter VA), claiming that she had been subjected to age and sex discrimination, as well as retaliation for engaging in activities protected by federal anti-discrimination law. Only her age-discrimination claims are now before us.

Those claims center on the following personnel actions. 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–13.¹ 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.

The VA moved for summary judgment and offered non-discriminatory reasons for the challenged actions, and the District Court granted that motion. Evaluating each of Babb's claims under the burden-shifting framework outlined in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the court found that Babb had established a prima facie case, that the Secretary had proffered legitimate reasons for the challenged actions, and that no jury could reasonably conclude that those reasons were pretextual.

Babb appealed, contending that the District Court should not have used the McDonnell Douglas framework because it is not suited for "mixed motives" claims. She argued that under the terms of the ADEA's federal-sector provision, a personnel action is unlawful if age is a factor in the challenged decision. As a result, she explained that even if the VA's proffered reasons were not pretextual, it would not necessarily follow that age discrimination played no part.

The Eleventh Circuit panel that heard Babb's appeal found that her argument was "foreclosed" by Circuit precedent but added that it might have agreed with her if it were "writing on a clean slate." Babb v. Secretary, Dept. of Veterans Affairs , 743 Fed.Appx. 280, 287 (2018) (citing Trask v. Secretary, Dept. of Veterans Affairs , 822 F.3d 1179 (CA11 2016) ).

We granted certiorari, 588 U.S. ––––, 139 S.Ct. 2775, 204 L.Ed.2d 1156 (2019), to resolve a Circuit split over the interpretation of § 633a(a).

II

That provision of the ADEA states in relevant part: "All personnel actions affecting employees or applicants for employment who are at least 40 years of age ... shall be made free from any discrimination based on age." 29 U.S.C. § 633a(a).

The Government interprets this provision to impose liability only when age is a but-for cause of an employment decision. According to the Government, even if age played a part in such a decision, an employee or applicant for employment cannot obtain any relief unless it is shown that the decision would have been favorable if age had not been taken into account. This interpretation, the Government contends, follows both from the meaning of the statutory text and from the "default rule" that we have recognized in other employment discrimination cases, namely, that recovery for wrongful conduct is generally permitted only if the injury would not have occurred but for that conduct. See, e.g. , University of Tex. Southwestern Medical Center v. Nassar , 570 U.S. 338, 346–347, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013).

Babb interprets the provision differently. She maintains that its language prohibits any adverse consideration of age in the decision-making process. Accordingly, she argues proof that age was a but-for cause of a challenged employment decision is not needed.

A

Which interpretation is correct? To decide, we start with the text of the statute, see Gross v. FBL Financial Services, Inc. , 557 U.S. 167, 175, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009), and as it turns out, it is not necessary to go any further. The plain meaning of the statutory text 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). To explain the basis for our interpretation, we will first define the important terms in the statute and then consider how they relate to each other.

Section 633a(a) concerns "personnel actions," and while the ADEA does not define this term, its meaning is easy to understand. The Civil Service Reform Act of 1978, which governs federal employment, broadly defines a "personnel action" to include most employment-related decisions, such as appointment, promotion, work assignment, compensation, and performance reviews. See 5 U.S.C. § 2302(a)(2)(A). That interpretation is consistent with the term's meaning in general usage, and we assume that it has the same meaning under the ADEA.

Under § 633a(a), personnel actions must be made "free from" discrimination. The phrase "free from" means "untainted" or "[c]lear of (something which is regarded as objectionable)." Webster's Third New International Dictionary 905 (def. 4(a)(2)) (1976); 4 Oxford English Dictionary 521 (def. 12) (1933); see also American Heritage Dictionary 524 (def. 5(a)) (1969) (defining "free" "used with from" as "[n]ot affected or restricted by a given condition or circumstance"); Random House Dictionary of the English Language 565 (def. 12) (1966) (defining "free" as "exempt or released from something specified that controls, restrains, burdens, etc."). Thus, under § 633a(a), a personnel action must be made "untainted" by discrimination based on age, and the addition of the term "any" ("free from any discrimination based on age") drives the point home.² And as for "discrimination," we assume that it carries its " ‘normal definition,’ " which is " ‘differential treatment.’ " Jackson v. Birmingham Bd. of Ed. , 544 U.S. 167, 174, 125 S.Ct. 1497, 161 L.Ed.2d 361 (2005).

Under § 633a(a), the type of discrimination forbidden is "discrimination based on age," and "[i]n common talk, the phrase ‘based on’ indicates a but-for causal relationship." Safeco Ins. Co. of America v. Burr , 551 U.S. 47, 63, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007) ; cf. Comcast Corp. v. National Assn. of African American-Owned Media , 140 S.Ct. 1009. Therefore, § 633a(a) requires that age be a but-for cause of the discrimination alleged.

What remains is the phrase "shall be made." "[S]hall be made" is a form of the verb "to make," which means "to bring into existence," "to produce," "to render," and "to cause to be or become." Random House Dictionary of the English Language, at 866. Thus, "shall be made" means "shall be produced," etc. And the imperative mood, denoting a duty, see Black's Law Dictionary 1233 (5th ed. 1979), emphasizes the importance of avoiding the taint.

So much for the individual terms used in § 633a(a). What really matters for present purposes is the way these terms relate to each other. Two matters of syntax are critical. First, "based on age" is an adjectival phrase that modifies the noun "discrimination." It does not modify "personnel actions." The statute does not say that "it is unlawful to take personnel actions that are based on age"; it says that "personnel actions ... shall be made free from any discrimination based on age." § 633a(a). As a result, age must be a but-for cause of discrimination—that is, of differential treatment—but not necessarily a but-for cause of a personnel action itself.

Second, "free from any discrimination" is an adverbial phrase that modifies the verb "made." Ibid . Thus, "free from any discrimination" describes how a personnel action must be "made," namely, in a way that is not tainted by differential treatment based on age. If age discrimination plays any part in the way a decision is made, then the decision is not made in a...