Jacques A. Durr, M.D. v. Secretary, Department of Veterans Affairs

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-13153
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D.C. Docket No. 8:17-cv-03045-JSM-AEP
JACQUES A. DURR, M.D.,
Plaintiff - Appellant,
versus
SECRETARY, DEPARTMENT OF VETERANS AFFAIRS,
Defendant - Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(April 7, 2021)
Before MARTIN, NEWSOM, and BRANCH, Circuit Judges.
PER CURIAM:
Jacques Durr appeals the district court’s grant of summary judgment to the
Secretary of the Department of Veterans Affairs on his Title VII age and gender
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discrimination and retaliation claims. Durr brought his claims against the
Secretary under 42 U.S.C. § 2000e-16. That section prohibits discrimination
against federal employees. It says, “All personnel actions affecting employees or
applicants for employment [in the Federal Government] . . . shall be made free
from any discrimination based on race, color, religion, sex, or national origin.” 42
U.S.C. § 2000e-16.1
In the past, we had held that to succeed under that provision, a plaintiff must
show that his protected activity or status was the but-for cause of the adverse
employment action. See Trask v. Sec’y, Dep’t of Veterans Affairs, 822 F.3d 1179,
1194 (11th Cir. 2016). Thus, when assessing a plaintiff’s claim of discrimination
based on circumstantial evidence, courts either applied the burden-shifting
framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), or
they asked whether the plaintiff had presented a “convincing mosaic of
circumstantial evidence that would allow a jury to infer intentional discrimination.”
See Lewis v. City of Union City, 934 F.3d 1169, 1185 (11th Cir. 2019). The district
court here rejected Durr’s claims under those standards.
1 Though § 2000e-16 does not expressly prohibit retaliation for filing a charge based on those
protected characteristics, we have explained that retaliation based on protected traits is itself
discrimination. See Babb v. Sec’y, Dep’t of Veterans Affairs, 2021 WL 1219654, at *7 (11th Cir.
Apr. 1, 2021); Porter v. Adams, 639 F.2d 273, 277–78 (5th Cir. Unit A Mar. 1981).
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But following the Supreme Court’s decision in Babb v. Wilkie, 140 S. Ct.
1168 (2020), we have recognized that a plaintiff no longer need show that his
protected activity or status was the but-for cause of the adverse action to state a
claim under § 2000e-16. Babb v. Sec’y, Dep’t of Veterans Affairs, 2021 WL
1219654, at *7 (11th Cir. Apr. 1, 2021). Rather, a plaintiff’s claim survives if
“discrimination play[ed] any part in the way a decision [was] made.” Babb, 140 S.
Ct. at 1174 (emphasis added); see also Babb, 2021 WL 1219654, at *3. The
relevant question is whether the protected characteristic was the “but-for cause of
differential treatment,” not whether it was the “but-for cause of the ultimate
decision.” Babb, 140 S. Ct. at 1174; see also Babb, 2021 WL 1219654, at *9.
Because both the McDonnell Douglas framework and the convincing-mosaic test
are methods of showing that the protected characteristic was the but-for cause of
the ultimate decision, those tests no longer apply. Babb, 2021 WL 1219654, at *8;
Lewis, 934 F.3d at 1185–89 (using convincing-mosaic test to show that race and
gender, and not other factors, were the but-for causes of Lewis’s firing).
When it analyzed Durr’s claims, the district court did not have the benefit of
either the Supreme Court’s decision or ours. In light of those decisions, we
VACATE and REMAND to the district court to decide in the first instance
whether the Bay Pines Veterans Affairs Hospital’s adverse employment actions
against Durr satisfy the “free from any discrimination” standard.
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