Erika Buckley v. Secretary of the Army

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12332
____________________
ERIKA BUCKLEY,
Plaintiff-Appellant,
versus
SECRETARY OF THE ARMY,
Defendants-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 4:19-cv-00049-CDL
____________________
USCA11 Case: 21-12332 Document: 66-1 Date Filed: 03/28/2024 Page: 1 of 32

-- 1 of 32 --

2 Opinion of the Court 21-12332
Before WILLIAM PRYOR , Chief Judge, R OSENBAUM and ABUDU, Cir-
cuit Judges.
R OSENBAUM , Circuit Judge:
Stealing patients and questioning the parentage of a col-
league’s children might sound like something out of Grey’s Anat-
omy, the twenty-season television drama about the professional
and personal lives of hospital staff1—not conduct expected at a local
hospital in real life. Yet Erika Buckley, a Black woman and speech
pathologist, alleges her former colleagues at Martin Army Hospital
engaged in these sorts of antics and more because of her race.
Buckley, who left her job after being advised she was going
to be dismissed, sued the Secretary of the Army under 42 U.S.C. §
2000e-16(a), the federal-sector provision of Title VII, alleging,
among other claims, race-based disparate treatment, race-based
hostile work environment, traditional retaliation, and hostile-
work-environment retaliation. The Secretary moved for summary
judgment, and the district court granted that motion on all counts.
On appeal, Buckley contests the grant of summary judgment on
these four claims. After careful consideration and with the benefit
of oral argument, we affirm as to the retaliation claims. But we
1 Grey’s Anatomy: Wishin’ and Hopin’ (ABC television broadcast Feb. 1, 2007)
(Izzie admits to stealing patients from the emergency room for the clinic);
Grey’s Anatomy: Life on Mars? (ABC television broadcast Mar. 12, 2020) (reveal-
ing the father of Amelia’s baby).
USCA11 Case: 21-12332 Document: 66-1 Date Filed: 03/28/2024 Page: 2 of 32

-- 2 of 32 --

21-12332 Opinion of the Court 3
vacate on Buckley’s traditional-hostile-work environment claim
and vacate in part on her race-based disparate-treatment claim.
I. FACTUAL BACKGROUND
Buckley is a Black woman.2 She worked as a speech
pathologist for the Traumatic Brain Injury Clinic (“the Clinic”) at
Martin Army Hospital from 2010 to 2017. The Clinic treated ac-
tive-duty military members and their families for mild and moder-
ate head injuries. Buckley was the only speech pathologist and the
only Black female provider at the Clinic.
The Clinic followed the Secretary’s chain of command. For
Buckley, that meant she had two supervisors: Major Yaoyao Zhu,
her first-level supervisor, and Major John Miller, her second-level
supervisor. Major Zhu reported to Major Miller.
A. Problems at the Clinic
Buckley alleges that during her time at the Clinic, her super-
visors and several other colleagues mistreated her. Buckley’s com-
plaints of mistreatment fall into three major categories: her col-
leagues (1) diverted white patients from her care; (2) drummed up
complaints about her to justify their patient-diversion scheme and
2 Because this is an appeal from an order granting summary judgment, we
recite facts in the light most favorable to Buckley, the non-moving party, and
we draw all reasonable inferences in her favor. Ramji v. Hosp. Housekeeping
Sys., LLC, 992 F.3d 1233, 1237 (11th Cir. 2021).
USCA11 Case: 21-12332 Document: 66-1 Date Filed: 03/28/2024 Page: 3 of 32

-- 3 of 32 --

4 Opinion of the Court 21-12332
other mistreatment; and (3) engaged in other race-based harassing
conduct.
We begin with the patient-diversion scheme. As part of his
duties, Dr. Brian Ribeiro, a primary-care physician at the Clinic, re-
ferred patients for neuropsychological testing. In turn, Dr. Felix
Ortiz, a neuropsychologist at the clinic, then referred some of these
patients, including white patients, to Buckley for speech language
therapy. Knowing Buckley’s schedule, Dr. Ortiz thought that Buck-
ley had the capacity to see all the patients he referred to her.
But after white patients had an initial consultation with
Buckley, Dr. Ribeiro often asserted that the white patients had com-
plained about her. Dr. Ribeiro used these complaints to justify re-
ferring Buckley’s white patients to Robert Cooper, a white male
occupational therapist at the Clinic, or to other off-base providers.
Dr. Ribeiro never claimed that Black patients complained about
Buckley, nor did he divert them from her care.
Because he had often treated and referred the patients him-
self, Dr. Ortiz was aware of the ethnicity of the patients who lodged
complaints against Buckley. He noticed a “consistent” pattern in
these patients. According to Dr. Ortiz, all of them had “the same
traits”: that is, they were about the same age, of the same “eth-
nia,”3 and flowed from the same primary physician, Dr. Ribeiro.
3 We understand this term to refer to “etnia,” a Portuguese noun that means
“the fact of belonging to a particular ethnic group.” etnia, C AMBRIDGE
D ICTIONARY (last visited Mar. 28, 2024)
USCA11 Case: 21-12332 Document: 66-1 Date Filed: 03/28/2024 Page: 4 of 32

-- 4 of 32 --

21-12332 Opinion of the Court 5
And “[m]ultiple times,” a patient he had referred to Buckley was
later “sent off post” or “sent to occupational therapy without any
other reason,” against Dr. Ortiz’s recommendation.4
To justify this patient-diversion scheme, Buckley alleges, Dr.
Ribeiro and Ute Chavers, a nurse care manager, encouraged white
male patients to complain about Buckley. To be sure, Buckley
acknowledges that Clinic patients were often “argumentative,
combative, and defensive” because of their brain trauma. But she
asserts that Dr. Ribeiro and Chavers “enabled” or augmented
https://dictionary.cambridge.org/us/dictionary/portuguese-english/etnia
[https://perma.cc/P79K-JZAJ].
4 In the district court, the Secretary lodged a hearsay objection to Dr. Ortiz’s
testimony about Dr. Ribeiro’s alleged diversion of patients from Buckley. The
Secretary asserted that this testimony was hearsay because Dr. Ortiz’s
“knowledge [was allegedly] based on his conversations with Plaintiff, not his
firsthand knowledge.” On appeal, the Secretary does not raise any hearsay
issues, so he has abandoned the issue. See United States v. Campbell, 26 F.4th
860, 871 (11th Cir. 2022) (en banc) (“Typically, issues not raised in the initial
brief on appeal are deemed abandoned.”). But in any case, Dr. Ortiz’s testi-
mony reflects that he knew firsthand of the flow of patients (including refer-
rals) and participated in announcements and discussions about patient care at
weekly team meetings. And as to the substance of the patient complaints, our
precedent provides that a court may consider a hearsay statement if it can be
reduced to admissible evidence at trial. Macuba v. Deboer, 193 F.3d 1316, 1323
(11th Cir. 1999). In this case, the patients identified by name in depositions
could testify to the substance of their own complaints or the disparaging state-
ments Dr. Ribeiro allegedly made to them about Buckley. See Jones v. UPS
Ground Freight, 683 F.3d 1283, 1294 (11th Cir. 2012) (considering whether iden-
tifiable witnesses had personal knowledge of alleged racial statements when
deciding whether hearsay could be reduced to admissible form at trial).
USCA11 Case: 21-12332 Document: 66-1 Date Filed: 03/28/2024 Page: 5 of 32

-- 5 of 32 --

6 Opinion of the Court 21-12332
negative patient perception of Buckley. In particular, Buckley al-
leges that the two made disparaging comments about her directly
to white male patients. For instance, Buckley asserts, Dr. Ribeiro
told a patient that Buckley had “angry [B]lack woman syndrome”
and that the patient “had to be careful” with her. Buckley com-
plains these remarks invoked a common and offensive stereotype
about Black women.
Besides poisoning the well, Dr. Ribeiro and Chavers alleg-
edly also solicited trumped-up patient complaints and maintained
them, along with meeting memoranda, in detailed records about
Buckley. And they did this even though neither was Buckley’s su-
pervisor, neither had a duty to do so, and neither kept records on
any other staff member at the Clinic.
So for instance, if a patient complained of “a bad experience”
with Buckley, Chavers “would have them elaborate on why” and
note their complaints in a personal memorandum and the patient’s
chart. Rather than directing patients to follow the hospital’s official
complaint process, Chavers informed the chief and Dr. Ribeiro of
the complaint. Then, Dr. Ribeiro determined whether the pa-
tient’s complaint warranted a second opinion or a referral away
from Buckley’s care. Buckley learned of patient diversions at the
weekly team multidisciplinary (known as “multi-D”) meetings.
During these meetings, Clinic providers, including Dr. Ribeiro, Dr.
Ortiz, Buckley, and her supervisors, met, discussed, and collabo-
rated on patient care decisions.
USCA11 Case: 21-12332 Document: 66-1 Date Filed: 03/28/2024 Page: 6 of 32

-- 6 of 32 --

21-12332 Opinion of the Court 7
Besides Chavers’s notes, Dr. Ribeiro also kept memoranda
on Buckley that he placed in her personnel file. One memoran-
dum, dated July 2014 and created by Dr. Ribeiro, described a con-
versation in which Dr. Ribeiro complained to Buckley that she had
improperly disclosed a patient’s protected health information by
copying individuals outside the department on an email. Dr. Ri-
beiro advised Buckley not to disclose protected health information
to people outside the department again. We refer to Dr. Ribeiro’s
warning as the “2014 HIPAA Warning” and to Buckley’s activities
that preceded that Warning as the “2014 HIPAA Incident.”5
Despite Dr. Ribeiro’s and Chavers’s files on Buckley, no pa-
tient ever used the Clinic’s formal complaint process to lodge a
complaint against Buckley. Still, the informal complaints Dr. Ri-
beiro and Chavers collected led to a noticeable decrease in Buck-
ley’s patient load compared to those of her colleagues, particularly
Cooper. They also caused Buckley to be “on pins and needles all
the time” with her patients because she believed that Dr. Ribeiro
and Chavers had predisposed them to give her a hard time and
complain. According to Dr. Ortiz, during multi-D team meetings,
the complaint-referral practice came up as “an ongoing area of con-
cern,” and the situation was shared with Major Zhu. Buckley also
5 As relevant here, the Health Insurance Portability and Accountability Act of
1996 (“HIPAA”), Pub. L. No. 104-191, 110 Stat. 1936, generally prohibits dis-
closure of patients’ private healthcare information to anyone other than the
patient and her authorized representatives, unless the patient consents.
USCA11 Case: 21-12332 Document: 66-1 Date Filed: 03/28/2024 Page: 7 of 32

-- 7 of 32 --

8 Opinion of the Court 21-12332
testified in her deposition that she complained to Majors Miller and
Zhu about the practice.
Aside from the patient-diversion and complaint-solicitation
schemes, Buckley alleges other mistreatment. At weekly multi-D
meetings, for instance, Buckley says Dr. Ribeiro acted dismissively
towards her, interrupting her more than he did Cooper. And at a
2016 meeting of Dr. Ribeiro, Buckley, and a nurse, in which the
group discussed a patient’s scheduling conflict, Dr. Ribeiro stepped
into the hallway to yell at Buckley. He raised his hands and said
angrily, “[A]re you happy now, Erika?” The exchange left Buckley
visibly shaken.
In another meeting that Major Miller, Dr. Ribeiro, Buckley,
and Cooper attended, Cooper explained a plan to transition a cog-
nitive skills-building group Buckley had created, to another pro-
vider. In characterizing the work involved in running the group,
Cooper said that “a monkey could do that job.” Dr. Ribeiro agreed,
remarking, “Yeah, a monkey could do it.” Major Miller, who was
there for both comments, did not react to them. Buckley com-
plains that these comments were racial slurs.
In yet another incident, in March 2017, because of a locked
door, Buckley arrived a few minutes late for a meeting where she
was scheduled to make a presentation. In front of the rest of the
Clinic providers at the meeting, Major Zhu reprimanded Buckley.
She said, “[Y]ou should have been here on time. Why didn’t you
have your stuff together[?] Didn’t you know we were having this
meeting?” Buckley felt humiliated, and she could not recall
USCA11 Case: 21-12332 Document: 66-1 Date Filed: 03/28/2024 Page: 8 of 32

-- 8 of 32 --

21-12332 Opinion of the Court 9
another instance when a provider was reprimanded in front of the
entire department for being late. In Buckley’s view, Major Zhu’s
reprimand invoked the “colored people time” stereotype that Black
people are late, and that the comment reflected racial animus.
And one day in Buckley’s office, Major Zhu, referring to a
photograph of Buckley’s children, asked Buckley whether her chil-
dren had the same father. Buckley complained to Major Miller.
But rather than taking action himself, Major Miller merely advised
Major Zhu to address Buckley’s concerns because of the chain of
command.
Based on these events, Buckley filed four complaints with
the Equal Employment Opportunity Commission (“EEOC”): one
in December 2014 and three between January and November 2016.
Dr. Ribeiro became aware that he was the subject of an EEO com-
plaint in 2016, after the EEOC contacted him. Major Miller and
Major Zhu also learned of Buckley’s EEO activity, though at un-
specified times. Dr. Ortiz noted that the complaint-referral pattern
leading Buckley to receive fewer patients continued after Buckley’s
EEO activity.
B. Buckley’s Removal
On April 25, 2017, Buckley emailed Major Miller, Major
Zhu, Beverly Simmons (a civilian HIPAA officer under the Secre-
tary), and Barbara Parker (Buckley’s union representative who did
not work for the Secretary), among others, about a particular pa-
tient’s chart. Buckley’s email complained that Chavers wrote a
negative and false note about her in the patient’s chart, and Buckley
USCA11 Case: 21-12332 Document: 66-1 Date Filed: 03/28/2024 Page: 9 of 32

-- 9 of 32 --

10 Opinion of the Court 21-12332
asked that the note be removed. In support of her request, Buckley
attached the note, including the patient’s chart with the patient’s
medical information, to the email. Buckley conceded in her testi-
mony that sending the information to Parker, a non-hospital em-
ployee, was a “mistake.” We refer to this as the “First 2017 HIPAA
Incident.”
Later, Buckley visited her congressman’s office to complain
about the same negative note. She took “information” to his office,
including the patient’s medical information, and people in the of-
fice made copies of it. Buckley did not think that giving the patient
records to the congressman was a HIPAA violation because it was
protected whistleblower activity. We refer to this event as the “Sec-
ond 2017 HIPAA Incident.”
Simmons investigated the April 25th email for an alleged
HIPAA violation. During the investigation, Major Zhu asked Sim-
mons if she could “get” Buckley on a HIPAA violation. Majors
Miller and Zhu also told Simmons that Buckley had already been
investigated for a HIPAA violation, even though the 2014 HIPAA
Incident did not result in an official investigation. In May 2017,
Simmons determined that “a HIPAA violation [based on the April
25th email] cannot be substantiated.”
In response, Majors Miller and Zhu spoke to Simmons’s
chief, Frederick Davis, an officer in the Secretary’s Patient Admin-
istration Division. Simmons stated in an EEO hearing that in all of
the HIPAA investigations she has done, she has “never seen man-
agement go after a staff member like they did” with Buckley.
USCA11 Case: 21-12332 Document: 66-1 Date Filed: 03/28/2024 Page: 10 of 32

-- 10 of 32 --

21-12332 Opinion of the Court 11
About a month later, Anne Norfolk, who worked in legal,
directed Simmons to change her finding to “substantiated” because
Norfolk determined Simmons’s original conclusion was incorrect
and, in fact, Buckley had committed a HIPAA violation. Simmons
changed the finding and sent her new conclusion to the chief, Da-
vis. On June 1, 2017, Davis determined that the April 25th email
constituted a “substantiated breach” of HIPAA.
Soon after, in June 2017, Major Zhu wrote a memorandum
recommending that the Secretary remove Buckley from federal
service for HIPAA violations. In support, she specifically noted the
2014 HIPAA Warning and Incident and the First 2017 HIPAA Inci-
dent. Major Zhu then wrote Buckley a letter informing her of her
proposed removal from federal service, not sooner than 30 days
from her receipt of the letter.
In response, Buckley filed her fifth EEO complaint, alleging
that Majors Zhu and Miller had discriminated against her based on
her race, among other protected characteristics, and that Major
Zhu’s proposal to remove her was retaliatory.
The next month, on August 17, 2017, Major Miller placed
Buckley on administrative leave pending investigation into the Sec-
ond 2017 HIPAA Incident. It didn’t take long for Davis to find that
Buckley had committed a second substantiated HIPAA violation
when she gave a patient’s medical information to her congressman.
And by the first week in September, Major Zhu sent Buckley a let-
ter in which she informed Buckley that she had proposed Buckley’s
removal from the federal service based on the HIPAA violations.
USCA11 Case: 21-12332 Document: 66-1 Date Filed: 03/28/2024 Page: 11 of 32

-- 11 of 32 --

12 Opinion of the Court 21-12332
Buckley timely filed a written rebuttal to her proposed removal,
and Major Miller heard her oral reply.
On October 19, 2017, Major Miller sustained Major Zhu’s
decision to remove Buckley from federal service based on the two
substantiated HIPAA violations, which he noted also constituted
violations of department regulations. Among other considera-
tions, Major Miller found that Buckley’s First 2017 HIPAA Incident
was intentional because she knowingly included a union steward,
Parker, on the email. He said he based her punishment—termina-
tion of employment—on the Department’s “table of penalties.”
And though the table of penalties serves as only a guide to disci-
pline, not a rigid standard, Major Miller asserted, Buckley’s firing
was consistent with the penalty the Department imposed on other
employees “for similar offenses.”
Major Miller’s letter stated that Buckley’s removal would be
effective on October 21, 2017. Because she wanted to protect her
professional license, Buckley instead resigned on October 20, 2017.
The Secretary replaced Buckley with a Black woman in August
2018.
According to the Secretary’s human-resources specialist, the
Secretary disciplined ten Martin Army Community Hospital em-
ployees for HIPAA violations between 2014 and 2020. These indi-
viduals included both Black and white employees, and they were
reprimanded, suspended, and removed for HIPAA violations. The
parties have not provided details of the violations, their severity, or
the decision-makers involved.
USCA11 Case: 21-12332 Document: 66-1 Date Filed: 03/28/2024 Page: 12 of 32

-- 12 of 32 --

21-12332 Opinion of the Court 13
II. PROCEDURAL HISTORY
In 2019, Buckley sued. As relevant here, Buckley alleged the
Secretary (1) engaged in race-based disparate treatment; (2) retali-
ated against her for her protected activity by taking adverse person-
nel action against her; (3) retaliated against her for her protected
activity by creating a hostile work environment; and (4) created a
race-based hostile work environment.
After discovery, the Secretary moved for summary judgment
on all of Buckley’s claims. The district court granted the Secre-
tary’s motion. Buckley v. McCarthy, No. 4:19-CV-49 (CDL), 2021 WL
2403447 (M.D. Ga. June 11, 2021). On appeal, Buckley challenges
the district court’s rulings on the four claims we’ve identified
above.6
III. STANDARD OF REVIEW
We review de novo a grant of summary judgment. Alvarez v.
Royal Atl. Dev., Inc., 610 F.3d 1253, 1263 (11th Cir. 2010). In con-
ducting our review, we apply the same legal standards as the dis-
trict court. Id. That means we construe the evidence in the light
most favorable to the non-moving party (Buckley). Id. at 1263–64.
And if no genuine issue of material fact exists and the moving party
6 Because Buckley made no arguments about her sex-discrimination claims
on appeal, we consider them abandoned. Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d 678, 681–83 (11th Cir. 2014).
USCA11 Case: 21-12332 Document: 66-1 Date Filed: 03/28/2024 Page: 13 of 32

-- 13 of 32 --

14 Opinion of the Court 21-12332
(the Secretary) is entitled to judgment as a matter of law, we will
affirm. Id.; F ED. R. C IV. P. 56(a).
The moving party is “entitled to judgment as a matter of
law” when the nonmoving party “has failed to make a sufficient
showing on an essential element of her case with respect to which
she has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317,
322–23 (1986). Showing a genuine issue for trial “requires more
than speculation or a mere scintilla of evidence.” Paylor v. Hartford
Fire Ins. Co., 748 F.3d 1117, 1122 (11th Cir. 2014). We may affirm
summary judgment on any ground that the record supports. Bur-
ton v. Tampa Hous. Auth., 271 F.3d 1274, 1277 (11th Cir. 2001).
IV. DISCUSSION
As we’ve noted, Buckley challenges the district court’s grant
of summary judgment on her claims for (1) race-based disparate-
treatment; (2) race-based hostile work environment; (3) retaliatory
personnel action for her protected EEO activity; and (4) retaliatory
hostile work environment. We discuss each claim, in turn, below.
A. Buckley submitted enough evidence to establish a race-
based disparate-treatment claim, based on a theory that
discrimination tainted the decision-making process.
Buckley sues over alleged race-based disparate treatment
when she was a federal employee. So her claim arises under 42
U.S.C. § 2000e-16(a), Title VII’s federal-sector provision. As rele-
vant here, that statute provides that “[a]ll personnel actions
USCA11 Case: 21-12332 Document: 66-1 Date Filed: 03/28/2024 Page: 14 of 32

-- 14 of 32 --

21-12332 Opinion of the Court 15
affecting employees . . . in military departments . . . shall be made
free from any discrimination based on race . . . .”7 Id. § 2000e-
16(a).
Recently, we analyzed this statutory text. In Babb v. Secretary,
Department of Veterans Affairs, we explained the breadth of the
phrase “free from any discrimination.” 992 F.3d 1193, 1199 (11th
Cir. 2021) (“Babb II”). Relying on the Supreme Court’s decision in
Babb v. Wilkie, 589 U.S. 399 (2020) (“Babb I”), we said that “the ‘free
from any discrimination’ language means that personnel actions
must be made in ‘a way that is not tainted by differential treatment
based on’ a protected characteristic.” Babb II, 992 F.3d at 1199
(quoting Babb I, 589 U.S. at 406).
That wording, we continued, “giv[es] special emphasis to
‘two matters of syntax.’” Id. (quoting Babb I, 589 U.S. at 406). First,
“‘based on [race]’ ‘modifies the noun “discrimination,”’ not ‘per-
sonnel actions.’” Id. (quoting Babb I, 589 U.S. at 406). So to establish
a violation of the statute, a plaintiff must show that race was “‘a
but-for cause of discrimination—that is, of differential treatment—
7 The private-sector version of this provision appears at 42 U.S.C. § 2000e-2(a).
Among other things, that statute makes it “an unlawful employment practice
for an employer to” take personnel action against an employee or refuse to
hire an applicant “because of such individual’s race . . . .” Id. § 2000e-2(a)(1).
In other words, a violation requires a showing that race was the but-for cause
of the challenged personnel action. Bostock v. Clayton County, 590 U.S. 644, 656
(2020) (explaining that § 2000e-2(a)(1)’s “‘because of’ test incorporates the
‘simple’ and ‘traditional’ standard of but-for causation”); see Babb v. Wilkie, 589
U.S. 399, 410 (2020) (describing “because of” as “but-for causal language”).
USCA11 Case: 21-12332 Document: 66-1 Date Filed: 03/28/2024 Page: 15 of 32

-- 15 of 32 --

16 Opinion of the Court 21-12332
but not necessarily a but-for cause of a personnel action itself.’” Id.
(quoting Babb I, 589 U.S. at 406). And second, the phrase “free from
any discrimination” modifies the verb “made.” Id. (quoting Babb I,
589 U.S. at 406). So race discrimination cannot play any role in the
way a federal-sector employer makes a decision. Id. Otherwise,
race discrimination would taint the decision in violation of the stat-
ute. Id.
The upshot of these syntactical features is that the law “‘does
not require proof that an employment decision would have turned
out differently if [race] had not been taken into account’—i.e., does
not require that [race] discrimination be the but-for cause of an ad-
verse personnel decision.” Id. (quoting Babb I, 589 U.S. at 406). In
other words, a federal employer violates the law if it allows race
discrimination to contribute to any personnel action—even if the
federal employer would have made precisely the same decision had
it not engaged in race discrimination.
To clarify this concept, we riff on an example that the Su-
preme Court used in Babb I. See Babb I, 589 U.S. at 407. Suppose
that a Black candidate and a non-Black candidate apply for the same
position, and the federal employer assigns points to each applica-
tion. In the first scenario, the non-Black candidate earns 90 points
for her application, and the Black candidate earns 94, but the em-
ployer subtracts 5 points from the Black candidate’s score because
she is Black, so her total becomes 89. Then the employer hires the
non-Black candidate. In that scenario, race is the but-for cause of
the employer’s failure to hire the Black candidate.
USCA11 Case: 21-12332 Document: 66-1 Date Filed: 03/28/2024 Page: 16 of 32

-- 16 of 32 --

21-12332 Opinion of the Court 17
But suppose the non-Black candidate earns 90 points for her
application and the Black candidate earns 85, and then the em-
ployer subtracts 5 points because the Black candidate is Black, so
her total becomes 80. In that scenario, the employer has still vio-
lated § 2000e-16(a) because it allowed discrimination to factor into
the decision-making process. But discrimination is not the but-for
cause of the employer’s failure to hire the Black candidate. Rather,
even without the discrimination, the employer would have hired
the non-Black candidate because her score was higher.
Yet even if a plaintiff proves that race discrimination tainted
the decision-making process, she is not necessarily entitled to all
remedies under § 2000e-16(a). Relief must redress the injury the
race discrimination inflicted. See Babb II, 992 F.3d at 1205 n.8. After
all, the law seeks to make a plaintiff whole. See id. So if an em-
ployer discriminates in the decision-making process but that dis-
crimination is not a but-for cause of the employer’s decision to, say,
fire a plaintiff, that plaintiff cannot obtain the same remedies as a
plaintiff whose employer wouldn’t have fired her but for the em-
ployer’s discrimination.
To put this point into more detailed terms, we return to the
example of firing an employee. When discrimination is the but-for
cause of an employee’s firing, that employee may have a right to
reinstatement, backpay, compensatory damages, and other forms
of relief to address the wrongful firing. Babb I, 589 U.S. at 406. But
when the federal employer discriminates in the decision-making
process but the employee would have been fired, anyway, for a non-
USCA11 Case: 21-12332 Document: 66-1 Date Filed: 03/28/2024 Page: 17 of 32

-- 17 of 32 --

18 Opinion of the Court 21-12332
discriminatory reason, the employee is not entitled to remedies like
reinstatement and backpay. See id. After all, the court cannot place
the plaintiff in a better position than she would have been in had
the employer not discriminated against her. See id. Rather, the
court must match any remedy to the specific injury. See id. So
we’ve said that when discrimination is not the but-for cause of a
personnel action, a court “should begin by considering ‘injunctive
or other forward-looking relief.’” Babb II, 992 F.3d at 1205 n.8 (quot-
ing Babb I, 589 U.S. at 406).
Now that we’ve explored the standard for liability under Ti-
tle VII’s federal-sector provision, we consider whether the McDon-
nell Douglas8 framework, which we often use to assess private-sec-
tor Title VII discrimination claims based on circumstantial evi-
dence, continues to make sense in Babb I and Babb II’s wake. We
conclude it does not.
The McDonnell Douglas framework is a burden-shifting
framework. Under it, the plaintiff must carry the initial burden to
establish a prima facie case of discrimination by showing that (1)
she belonged to a protected class, (2) she experienced an adverse
employment action, (3) she was qualified to perform her job, and
(4) her employer treated similarly situated employees outside her
class better. Phillips v. Legacy Cabinets, 87 F.4th 1313, 1321 (11th Cir.
2023). Once the plaintiff satisfies that burden, the burden shifts to
the employer to give a legitimate, nondiscriminatory reason for its
8 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
USCA11 Case: 21-12332 Document: 66-1 Date Filed: 03/28/2024 Page: 18 of 32

-- 18 of 32 --

21-12332 Opinion of the Court 19
actions. Id. If the employer does so, the employee must then show
that the employer’s stated reason was merely a pretext for unlawful
discrimination. Id. In other words, under the McDonnell Douglas
framework, the plaintiff bears the ultimate burden to show that
discrimination was the but-for cause of her employer’s adverse per-
sonnel action.
But as we’ve explained, Title VII’s federal-sector provision
does not require a showing of but-for causation to make out a vio-
lation. Rather, a federal-sector employee must show only that a
protected characteristic played any part in her employer’s process
in reaching an adverse employment decision. So using the McDon-
nell Douglas framework for § 2000e-16(a) claims is like requiring the
plaintiff to move a boulder when she need only push a pebble—in
other words, the burden under McDonnell Douglas is heavier than
Title VII imposes on a plaintiff in a federal-sector case. Indeed, we
stated as much in Babb II, when we found that the Supreme Court
apparently “accepted Babb’s argument ‘that the District Court
should not have used the McDonnell Douglas framework’” in as-
sessing her claim. 992 F.3d at 1204.
Instead, the framework is much simpler. In analyzing Buck-
ley’s disparate-treatment claim, we return to Babb I’s directive and
simply assess whether Buckley has proffered evidence that her race
“play[ed] any part” in the Secretary’s decision-making process
when he decided to remove her from federal service. Babb I, 140 S.
Ct. at 1174 (emphasis added). We conclude that Buckley has iden-
tified sufficient evidence to allow a reasonable jury to find that race
USCA11 Case: 21-12332 Document: 66-1 Date Filed: 03/28/2024 Page: 19 of 32

-- 19 of 32 --

20 Opinion of the Court 21-12332
played a role in the decision-making process. But she has not
pointed to any evidence to establish that discrimination was the
but-for cause behind the Secretary’s proposed termination of her
employment.
We begin with the evidence as it relates to the but-for cause
behind Buckley’s proposed removal. The Secretary offered a legit-
imate, nondiscriminatory reason for firing Buckley. Major Zhu and
Major Miller said they proposed Buckley’s employment termina-
tion because she had thrice disclosed private patient medical infor-
mation in violation of HIPAA and Department regulations—in-
cluding twice after being warned not to do so. And Buckley doesn’t
dispute that she made any of the three disclosures for which Major
Zhu and Major Miller cited her. Nor does she assert that any of the
three disclosures did not violate HIPAA or Department regulations.
Not only that, but Buckley concedes that during the relevant
timeframe, the Department disciplined—including by firing—
other employees outside her protected group for the same infrac-
tion.
Buckley’s reliance on Dr. Ribeiro and Chavers’s conduct
doesn’t help her establish but-for causation, either. Buckley doesn’t
allege that either participated in the removal decision. And what-
ever else we can say about Dr. Ribeiro and Chavers’s actions, we
can’t say they bear any direct connection to Majors Zhu and Miller,
the supervisors that decided to remove Buckley. So Buckley has
failed to raise a material issue of fact about whether race was the
but-for cause of her proposed removal.
USCA11 Case: 21-12332 Document: 66-1 Date Filed: 03/28/2024 Page: 20 of 32

-- 20 of 32 --

21-12332 Opinion of the Court 21
On the other hand, Buckley does point to some behavior by
Major Zhu that could allow a reasonable jury to infer that race fac-
tored into the decision-making process along the way. In particular,
during the investigation of Buckley’s First 2017 HIPAA Incident,
Major Zhu asked Simmons if she could “get” Buckley on a HIPAA
violation. And after Simmons concluded that no HIPAA violation
had occurred, Major Zhu went over Simmons’s head to Simmons’s
chief to pursue a “substantiated” finding. So while a reasonable
jury could infer that Major Zhu took HIPAA violations especially
seriously, it could alternatively draw the reasonable inference that
Major Zhu did not like Buckley and was out to get her.
That leaves the question as to why Major Zhu wanted Buck-
ley dismissed. And that presents a jury question.
To be sure, after trial, a jury might find that Major Zhu
wanted to get rid of Buckley because she had violated HIPAA or
Major Zhu just found her hard to get along with or any number of
other non-discriminatory reasons.
But Buckley asserts that Major Zhu knew of the race-asso-
ciated patient-diversion scheme and did little to stop it. Buckley
acknowledges that Major Zhu investigated one of Buckley’s com-
plaints that Chavers had put a false patient comment about Buckley
into the patient’s file. But Buckley complains that all Major Zhu
did about it was to arrange for Chavers to undergo remedial train-
ing about writing notes in patients’ charts. Otherwise, Buckley
complains, Major Zhu did nothing to stop the race-associated pa-
tient-diversion scheme. And that’s so, Buckley complains, even
USCA11 Case: 21-12332 Document: 66-1 Date Filed: 03/28/2024 Page: 21 of 32

-- 21 of 32 --

22 Opinion of the Court 21-12332
though Major Zhu was a supervisor and could have put an end to
the scheme.
On top of that, Major Zhu asked Buckley an odd question
that arguably invokes a racial trope—about whether her children
had the same father. Buckley asserts that this question dredged up
a racial stereotype that Black women have children with multiple
partners. We think a reasonable jury could reach the same infer-
ence. Indeed, a reasonable jury could infer that Major Zhu in-
tended the reference to multiple fathers as a “racial insult” in the
absence of any “benign explanation” for the question. See Jones, 683
F.3d at 1297 (reasoning that “the use of monkey imagery [was] in-
tended as a ‘racial insult’”). And that’s especially so when we con-
sider that Major Zhu also allowed the race-based patient-diversion
scheme to continue.
Considering Major Zhu’s stated intent to “get” Buckley, her
allegedly race-based remark, and her failure to take more action to
end the allegedly race-based patient-diversion scheme, we con-
clude that a reasonable jury could find that Major Zhu pursued
Buckley’s HIPAA violation so vigilantly at least in part because of
Buckley’s race. If a jury so found, then race tainted the decision-
making process (though it was not a but-for cause of Buckley’s pro-
posed dismissal), and the Secretary violated § 2000e-16(a). We
therefore vacate the district court’s entry of summary judgment on
Buckley’s race-based disparate-treatment claim, but only as it re-
lates to the Secretary’s actions in the decision-making process that
led to Buckley’s dismissal.
USCA11 Case: 21-12332 Document: 66-1 Date Filed: 03/28/2024 Page: 22 of 32

-- 22 of 32 --

21-12332 Opinion of the Court 23
B. The Secretary was not entitled to summary judgment on
Buckley’s race-based hostile-work-environment claim.
To establish a hostile-work-environment claim based on
race, a plaintiff must show five things: (1) she is a member of a pro-
tected class; (2) she experienced unwelcome harassment; (3) the
harassment was race-based; (4) the harassment was “severe or per-
vasive enough to alter the terms and conditions of [her] employ-
ment and create a discriminatorily abusive working environment;”
and (5) the employer is responsible for the environment under a
theory of either vicarious or direct liability.” Adams v. Austal, U.S.A.,
L.L.C., 754 F.3d 1240, 1248–49 (11th Cir. 2014) (citing Miller v. Ken-
worth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002)). Buckley
has satisfied each of these elements.
First and second, Buckley is Black, and she did not welcome
the harassment—including the patient-diversion scheme, the man-
ufactured complaints about her, and the other harassment—she as-
serts she received.
Third, Buckley has submitted enough evidence to allow a
reasonable jury to infer that the harassment she experienced was
based on her race. For starters, Dr. Ribeiro and Chavers allegedly
diverted only white patients, not Black patients, from Buckley’s
care. And they diverted these white patients to a white provider,
Cooper. Not only that, but Dr. Ribeiro’s comment during the al-
leged patient-diversion scheme, that Buckley was an angry Black
woman, was expressly race-based. See Banks v. Gen. Motors, LLC, 81
F.4th 242, 272 (2d Cir. 2023) (finding that comments indicating
USCA11 Case: 21-12332 Document: 66-1 Date Filed: 03/28/2024 Page: 23 of 32

-- 23 of 32 --

24 Opinion of the Court 21-12332
racial stereotypes, such as the “angry black woman,” “can create an
inference of discriminatory motive”). Plus, a reasonable jury could
also find that Dr. Ribeiro’s remark that even a monkey could do
Buckley’s job invoked a racial trope. See Jones, 683 F.3d at 1297
(“The use of the term ‘monkey’ and other similar words have been
part of actionable racial harassment claims across the country.”).
Fourth, the harassment was severe and pervasive enough to
alter the terms and conditions of Buckley’s employment and create
a discriminatorily abusive working environment. The inquiry un-
der this prong contains both an objective and subjective compo-
nent. So Buckley must show both that a reasonable person would
find the harassment to be sufficiently severe or pervasive, and that
she subjectively found it to be so. Adams, 754 F.3d at 1249. We take
each prong in turn.
In evaluating the objective severity of the harassment, we
consider, among other factors, (1) how often the conduct occurs;
(2) how severe the conduct is; “(3) whether the conduct is physically
threatening or humiliating, or a mere offensive utterance; and (4)
whether the conduct unreasonably interferes with the employee’s
job performance.” Miller, 277 F.3d at 1276. Although we evaluate
these considerations, a plaintiff need not show any “single factor”
to establish the objective component. Smelter v. S. Home Care Servs.
Inc., 904 F.3d 1276, 1286–87 (11th Cir. 2018).
When we apply these considerations here, we conclude that
the patient-diversion scheme and associated solicited complaints
were objectively severe and pervasive. Dr. Ribeiro and Chavers
USCA11 Case: 21-12332 Document: 66-1 Date Filed: 03/28/2024 Page: 24 of 32

-- 24 of 32 --

21-12332 Opinion of the Court 25
disparaged Buckley to her patients and solicited complaints about
her to systemically divert white patients from Buckley’s care to
white providers. And they did so constantly. Both Buckley and Dr.
Ortiz attested to Dr. Ribeiro and Chavers’s pattern and practice of
bad-mouthing Buckley to her white patients. Dr. Ribeiro and
Chavers’s scheme also drastically affected Buckley’s job perfor-
mance. Not only did it reduce her patient load, but it encouraged
her patients to engage hostilely with her. Indeed, Dr. Ribeiro and
Chavers sabotaged Buckley’s ability to succeed with her white pa-
tients and undermined her entire position as a speech pathologist
with the VA. A reasonable person would easily find this scheme
humiliating and frustrating.
So it’s no surprise that Buckley found the behavior hostile.
As Buckley explained, Dr. Ribeiro and Chavers’s conduct caused
her to be “on pins and needles all the time” with her patients.
As to the fifth prong—liability—a reasonable jury could infer
from the evidence that Buckley’s supervisors knew about the har-
assment. See Miller, 277 F.3d at 1278 (“Actual notice is established
by proof that management knew of the harassment.”); Smelter, 904
F.3d at 1287 (imputing a supervisor’s notice of racist comments,
because he overheard them, to the company itself ). Buckley pro-
tested to Major Miller many times about patient complaints being
put in her file. And Dr. Ortiz and Buckley testified that Buckley
advised Major Zhu of her “ongoing . . . concern” with patient di-
version. When we draw all reasonable inferences in Buckley’s fa-
vor, we conclude that a jury could reasonably find that Majors
USCA11 Case: 21-12332 Document: 66-1 Date Filed: 03/28/2024 Page: 25 of 32

-- 25 of 32 --

26 Opinion of the Court 21-12332
Miller and Zhu knew of the race-based patient-diversion scheme
and the drummed-up complaints.
Because Buckley has shown enough to make out a race-
based hostile-work-environment claim, we vacate the district
court’s grant of summary judgment on that claim and remand for
further proceedings on it.
C. The Secretary was entitled to summary judgment on
Buckley’s traditional retaliation claim.
Next, we address Buckley’s traditional retaliation claim.
Buckley asserts that the Secretary retaliated against her by propos-
ing her termination because Buckley complained about racial dis-
crimination.
We’ve held that § 2000e-16(a)’s prohibition of “any discrimi-
nation” also “directly ‘bars reprisals against federal employees who
file charges of discrimination.’” Babb II, 992 F.3d at 1203 (quoting
Porter v. Adams, 639 F.2d 273, 277–78 (5th Cir. Unit A Mar. 1981)).
That’s so because “retaliation for complaining about prohibited
forms of discrimination is itself ‘discrimination’ within the mean-
ing of § 2000e-16(a).” Id.
As we’ve noted, § 2000e-16(a) generally requires federal-sec-
tor employers to make “[a]ll personnel actions” “free from any dis-
crimination . . . .” 42 U.S.C. § 2000e-16(a). Because we’ve said re-
taliation falls within the category “discrimination” under § 2000e-
16(a), that means that “[a]ll personnel actions” must be made “free
from any” retaliation. So as with traditional race-based discrimina-
tion, if retaliation for engaging in a protected activity under Title
USCA11 Case: 21-12332 Document: 66-1 Date Filed: 03/28/2024 Page: 26 of 32

-- 26 of 32 --

21-12332 Opinion of the Court 27
VII taints the decision-making process for any personnel action,
that violates the federal-sector provision—even if the employer
would have made the same decision absent retaliation. Babb II, 992
F.3d at 1202 (holding that Babb I displaced prior Eleventh Circuit
precedent holding that the federal-sector retaliation claims require
but-for causation). But as we’ve explained, remedies must match
the injury. So remedies for a retaliation violation that tainted the
decision-making process but were not a but-for cause of personnel
action are limited just like they are for the analogous types of race-
discrimination violations we’ve already discussed.
With this understanding in mind, we turn to the framework
we’ve used in the past to assess retaliation claims. Under that
framework—a variation on the McDonnell Douglas framework—a
plaintiff may establish a prima facie case of retaliation by showing
(1) she participated in an activity that Title VII protects; (2) she suf-
fered an adverse personnel action; and (3) a causal relationship ex-
ists between her protected activity and the adverse personnel ac-
tion. Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008). If the
plaintiff makes out a prima facie case, the burden falls on the em-
ployer to state a legitimate, non-retaliatory reason for the chal-
lenged personnel action. Pennington v. City of Huntsville, 261 F.3d
1262, 1266 (11th Cir. 2001). If the employer satisfies that burden,
the plaintiff must carry the ultimate burden of proving that the em-
ployer’s stated reason is pretext for retaliation. Id.
So just as with the traditional McDonnell Douglas framework
for evaluating circumstantial race-discrimination claims, our prior
USCA11 Case: 21-12332 Document: 66-1 Date Filed: 03/28/2024 Page: 27 of 32

-- 27 of 32 --

28 Opinion of the Court 21-12332
framework for assessing retaliation claims requires a plaintiff to
prove that her employer wouldn’t have undertaken the challenged
personnel action against her but for its retaliatory motive. But as
we’ve explained, retaliation in the decision-making process—even
if it didn’t affect the ultimate decision—still violates § 2000e-16(a).
So after Babb I and Babb II, in analyzing Buckley’s retaliation
claim, we instead consider whether Buckley has submitted evi-
dence that would allow a reasonable jury to find that retaliation
“play[ed] any part” in the Secretary’s decision-making process
when he proposed to remove her from federal service. Babb I, 140
S. Ct. at 1174 (emphasis added).
We conclude that she has not. To prove retaliation tainted
her proposed removal, on appeal, Buckley relies on only the tem-
poral proximity between her EEO complaints and her proposed
termination. But seven months passed between Buckley’s EEO
complaint in November 2016 and her proposed removal in June
2017. And eight months went by between her November 2016
complaint and her proposed removal in July 2017. That is far too
long to allow for the inference that retaliation infected the decision-
making process that resulted in Buckley’s dismissal. See Thomas v.
Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) (in the con-
text of a but-for inquiry, holding that a period of three to four
months, without more, is too long to establish an inference of
USCA11 Case: 21-12332 Document: 66-1 Date Filed: 03/28/2024 Page: 28 of 32

-- 28 of 32 --

21-12332 Opinion of the Court 29
causation). Without more, Buckley’s traditional retaliation claim
fails.9
D. The Secretary was entitled to summary judgment on
Buckley’s retaliatory-hostile-work-environment claim.
A retaliatory-hostile-work-environment claim complains
that the employer created or tolerated a hostile work environment
in retaliation for an employee’s participation in protected activity
under Title VII. So a retaliatory-hostile-work-environment claim
is somewhat of a hybrid of a traditional protected-characteristic-
based hostile-work-environment claim and a traditional retaliation
claim.
But we have recognized that retaliatory-hostile-work-envi-
ronment claims are “really . . . retaliation claims . . . rather
than . . . ‘hostile[-work]-environment’ claims.” Babb II, 992 F.3d at
1207. For that reason, we use the retaliation standard—“whether
the employer’s complained-of action ‘well might have dissuaded a
reasonable worker from making or supporting a charge of
9 In her reply brief, for the first time, Buckley argues that the three months
between her last EEO complaint (filed in July 2017) and her eventual removal
(in October 2017) creates an inference of causation. But that is too late. An
appellant cannot raise a new argument in her reply brief, so that argument is
forfeited. Sapuppo, 739 F.3d at 681, 683. And even if we were to consider the
argument, three months between the two events is still not enough, standing
alone, to establish that a retaliatory motive tainted the decision-making pro-
cess to remove Buckley. See Thomas, 506 F.3d at 1364 (favorably citing Rich-
mond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997), for the proposition
that a three-month period is “insufficient”).
USCA11 Case: 21-12332 Document: 66-1 Date Filed: 03/28/2024 Page: 29 of 32

-- 29 of 32 --

30 Opinion of the Court 21-12332
discrimination’”—rather than the hostile-work-environment stand-
ard—“severe or pervasive”—to assess a retaliatory-hostile-work-en-
vironment claim. Id. at 1207 (citations omitted).
One more note about the retaliatory-hostile-work-environ-
ment claim standard: section 2000e-16(a) refers to only “personnel
actions.” So to state a claim for retaliatory hostile work environ-
ment, a federal-sector plaintiff must establish that, to retaliate
against her for engaging in protected Title VII activity, her em-
ployer created or tolerated a work environment that “well might
have dissuaded a reasonable worker from making or supporting a
charge of discrimination” and that environment rose to the level of
a “personnel action[].” Babb II, 992 F.3d at 1207–09.
Buckley has not done so. The district court granted sum-
mary judgment against Buckley on her retaliatory-hostile-work-en-
vironment claim for two independent reasons: it found that (1)
Major Miller, Major Zhu, and Dr. Ribeiro did not “engage[] in har-
assment that well might have dissuaded a reasonable worker from
making or supporting a charge of discrimination”, and (2) Buckley
cited no evidence “establishing a causal connection between her
protected activity and the harassment.” Buckley, 2021 WL 2403447,
at *8.
We’ve already explained that we think Buckley sufficiently
established that Dr. Ribeiro and Chavers created a hostile work en-
vironment for Buckley that rose to the level of a “personnel ac-
tion.” In fact, we concluded that Buckley satisfied the traditional-
hostile-work-environment claim’s “severe or pervasive” standard.
USCA11 Case: 21-12332 Document: 66-1 Date Filed: 03/28/2024 Page: 30 of 32

-- 30 of 32 --

21-12332 Opinion of the Court 31
And that standard is higher and more exacting than the “well might
have dissuaded a reasonable worker from making or supporting a
charge of discrimination” standard we apply in a retaliatory-hostile-
work-environment claim.
But the evidence lends itself to only the inference that the
hostile work environment was race-based, not retaliatory. So we
agree with the district court that Buckley’s retaliatory-hostile-
work-environment claim fails on the independent ground of cau-
sation.
Buckley does nothing on appeal to challenge the district
court’s holding in this respect. So Buckley’s appeal on this claim
also fails because when a district court bases its order on more than
one independent ground, a party must convince us “that every
stated ground for the judgment against [her] is incorrect.” Sapuppo,
739 F.3d at 680. If she doesn’t challenge one or more bases for the
district court’s ruling, we consider her appeal of that ruling aban-
doned, and “judgment is due to be affirmed.” Id. Just so here.
V. CONCLUSION
For these reasons, we affirm the district court’s grant of
summary judgment in the Secretary’s favor on Buckley’s tradi-
tional-retaliation and retaliatory-hostile-work-environment claims.
And we affirm in part the district court’s grant of summary judg-
ment for the Secretary on Buckley’s race-based disparate-treatment
claim (namely, that race was not a but-for cause in Buckley’s termi-
nation). But we vacate the district court’s summary-judgment or-
der on Buckley’s hostile-work-environment claim, and we vacate
USCA11 Case: 21-12332 Document: 66-1 Date Filed: 03/28/2024 Page: 31 of 32

-- 31 of 32 --

32 Opinion of the Court 21-12332
in part on her race-based disparate-treatment claim. Specifically,
we vacate as to Buckley’s theory that race discrimination tainted
the decision-making process though not her removal. Finally, we
remand for proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED AND REMANDED IN
PART.
USCA11 Case: 21-12332 Document: 66-1 Date Filed: 03/28/2024 Page: 32 of 32

-- 32 of 32 --