[18-882] Babb v. Wilkie

Babb v. Wilkie

Wikipedia · Justia (with opinion) · Docket · oyez.org

Argued on Jan 15, 2020.
Decided on Apr 6, 2020.

Petitioner: Noris Babb.
Respondent: Robert Wilkie, Secretary of Veterans Affairs.

Advocates:

• Roman Martinez (for the petitioner)
• Noel J. Francisco (Solicitor General, Department of Justice, for the respondent)

Facts of the case (from oyez.org)

Petitioner Noris Babb worked as a pharmacist for the Veterans Affairs (VA) Medical Center in Bay Pines, Florida, since 2004. While there, she helped to develop the Geriatric Pharmacotherapy Clinic (GPC), which serves older veterans with diseases or disabilities common to individuals of advanced age with military service. In 2009, Pharmacy Management gave Babb an advanced scope (full practice authority) to prescribe medications without a physician, which was necessary for her position. In 2010, the VA rolled out a nationwide treatment initiative similar to the GPC Babb had helped develop. Against recommendations by Human Resources and despite requests from doctors, Pharmacy Management rejected applications by several current module pharmacists—all females over 50—and granted applications of two pharmacists under 40.

Two of the female pharmacists who were denied advancement filed Equal Employment Opportunity (EEO) complaints, and Babb provided statements and testified in support of their EEO claims. The pharmacists claimed that their non-selection purportedly for lack of advanced scopes was pretext for discrimination and that any justification for denying advanced scopes was pretext for discrimination as well.

Babb alleged that as a result of her participation in the EEO process, she was denied opportunities to participate in the new program and that Pharmacy Management required her to agree to a schedule that was unworkable for her department. Unable to meet this requirement, Babb’s advanced scope was removed and was consequently disqualified from promotion. A female pharmacist under 30 without an advanced scope was selected for the promotion.

Babb brought this action under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 (ADEA) alleging that she was the victim of gender-plus-age discrimination and that the VA retaliated against her for participating in protected EEO in violation of those laws. The district court granted summary judgment for the VA. On appeal to the U.S. Court of Appeals for the Eleventh Circuit, Babb argued that the district court erred in part by not allowing her to prove that illegal discrimination or retaliation was a “motivating factor” behind the VA’s refusal to promote her. The Eleventh Circuit affirmed the lower court, finding itself bound by precedent that federal sector employees’ claims under ADEA and Title VII require that the plaintiff show discrimination or retaliation is a “but for” factor in the adverse personnel action.

Question

Does the provision of the Age Discrimination in Employment Act of 1967 (ADEA) that protects federal employees aged 40 years from age discrimination require a plaintiff to prove that age was a but-for cause of the challenged personnel action?

Conclusion

The federal-sector provision of the Age Discrimination in Employment Act of 1967 (ADEA), requires that age not be taken into consideration at all in making personnel actions, but if age is a but-for cause of the personnel action, that fact may be important in determining the remedy to which the plaintiff is entitled. Justice Samuel Alito delivered the 8-1 majority opinion of the Court. The relevant provision provides “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.” The Court found the plain meaning of the statute supports the reading that age does not need to be a but-for cause of an employment decision for there to be a violation. To reach this conclusion, the Court focused on several phrases as well as the syntax of the sentence. This interpretation is also consistent with the Court’s precedent interpreting the Fair Credit Reporting Act, the ADEA’s private-sector provision, and Title VII’s anti-retaliation provision because the language in those provisions is “markedly” different. The Court noted, however, that but-for causation is important in determining the appropriate remedy. For example, the plaintiffs cannot obtain compensatory damages without showing that age discrimination was a but-for cause of the employment decision. Remedies must be tailored to the injury, and the injury is measured in part by the causal relationship.

Justice Sonia Sotomayor wrote a concurring opinion in which Justice Ruth Bader Ginsburg joined, pointing out that the Court’s decision does not foreclose claims arising from discriminatory processes (as distinct from decisions) and that the same provision may also permit damages remedies even when the federal government engages in “nondispositive” age discrimination.

Justice Clarence Thomas wrote a dissenting opinion arguing that the Court’s reading of the statute is too broad and “disrupts the settled expectations of federal employers and employees.”