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VA pharmacist’s Title VII retaliation and hostile work environment claims revived under new standards

By Ronald Miller, J.D.

The standard that the Supreme Court articulated in the employee’s case now controls cases arising under Title VII’s nearly identical text.

A pharmacist who sued the Veterans Administration alleging discrimination on the basis of age and gender in the implementation of a new promotions initiative, among other claims, revived her claims for Title VII retaliation and hostile work environment, following a trip to the U.S. Supreme Court, ruled the Eleventh Circuit. The appeals court determined that the Supreme Court’s ruling had undermined precedent that it had relied on in rejecting the employee’s Title VII retaliation claim. Further, the appeals court’s intervening decision in Trask v. Sec’y, Dep’t of Veterans Affairs, gutted the precedent on which it had relied in rejecting her hostile-work-environment claim (Babb v. Secretary, Department of Veterans Affairs, April 1, 2021, Newsom, K.).

Promotions initiative. The employee worked as a clinical pharmacist at a VA hospital in Florida, where she has worked since 2004. In 2010, the VA instituted a new initiative governing promotions for pharmacists who, like the employee, spend at least 25% of their time engaged in “disease state management”—seeing patients and writing prescriptions for them without a physician’s sign-off. The employee sought a promotion.

The employee and some of her coworkers thought that the VA implemented its initiative in ways that discriminated on the basis of age and gender. Two coworkers filed complaints with the EEOC, and the employee gave a deposition in support of her colleagues. She filed her own EEOC complaint in May 2013.

Age discrimination and retaliation. Both the employee’s ADEA claim and Title VII retaliation claim hinged on the same facts. First, in 2013, the VA took away her “advanced scope” designation, which had made her eligible for promotion. Second, 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.

In 2014, the employee sued the employer. 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. The district court granted the employer summary judgment in full. The Eleventh Circuit reversed and remanded the employee’s gender-discrimination claim but affirmed on her ADEA, Title VII retaliation, and hostile-work-environment claims. The appeals court noted that if not for circuit precedent, in Trask v. Sec’y, Dep’t of Veterans Affairs, it might have ruled in the employee’s favor on both the ADEA and Title VII retaliation claims.

But-for causation. Thereafter the Supreme Court granted certiorari on just one question: Whether the federal-sector provision of the ADEA required the employee to prove that age was a but-for cause of a challenged personnel action. The Supreme Court answered that question “no.” The Court held that “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).” Section 633a(a) required a plaintiff to show only that “age discrimination plays any part in the way a decision is made[.]”

On remand, the Eleventh Circuit (1) reversed and remanded on the Title VII gender-discrimination claim, (2) reversed and remanded on the employee’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.

Rehearing. The employee petitioned for rehearing on her Title VII retaliation and hostile-work-environment claims. She argued that the Supreme Court’s decision fatally undermined the appeals court’s prior holding on her Title VII retaliation claim and that an intervening decision of the Eleventh Circuit in Monaghan v. Worldpay US, Inc., had the same effect on its treatment of her hostile-work-environment claim. Rehearing was granted.

Retaliation claim. At this juncture, the Eleventh Circuit confronted two main issues. The first was how to handle the employee’s Title VII retaliation claim. Here, the appeals court concluded that because the relevant provisions of the ADEA and Title VII are materially identical, the Supreme Court’s analysis of the former controls the latter as well. Thus, it held that the Supreme Court’s decision in the employee’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.

HWE claim. The second issue was whether the decision in Monaghan required reversal on the employee’s hostile-work-environment. Here, the appeals court held that Monaghan clarified Eleventh Circuit law governing “retaliatory-hostile-work-environment” claims, and that the standard for such claims is, the less onerous “might have dissuaded a reasonable worker” test articulated in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (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 .

Accordingly, the Eleventh Circuit vacated the district court’s grant of summary judgment on the employee’s Title VII retaliation and hostile-work-environment claims and remanded for the district court to consider those claims under the proper standards.