Babb v. Sec’y, Department of Veterans Affairs

Petition granted limited to the following question: Whether the federal-sector provision of the Age Discrimination in Employment Act of 1967, which provides that personnel actions affecting agency employees aged 40 years or older shall be made free from any “discrimination based on age,” 29 U.S.C. §633(a), requires a plaintiff to prove that age was a but-for cause of the challenged personnel action.

When Veterans Affairs (“VA”) initiated a new care strategy, many of the VA Medical Centers made the existing staff permanent members of the new plan. Pharmacy management at Petitioner’s workplace only allowed two pharmacists under age of 40 to remain and no females over 50. Petitioner provided statements and testified in support of two older female pharmacists. Petitioner was subsequently denied opportunities which preventing her from promotion. Petitioner alleged that she was subject to gender-plus-age discrimination and retaliation under Title VII and the Age Discrimination in Employment Act (“ADEA”). The district court granted the VA’s motion for summary judgment. Petitioner appealed, claiming she was not allowed to prove her claims under the “motivating-factor” test. The Eleventh Circuit, affirmed, holding they were bound by precedent to apply a “because of” or “but for” standard. Petitioner argues that the lower court failed to address the textual differences between the private and federal-sector statutory provisions of both the ADEA and Title VII. The Supreme Court held in Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), and University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338 (2013), that a mixed-motive framework does not apply to the private-sector statutes due to the phrase “because of,” requiring proof the prohibited consideration was a but-for cause of the employer’s adverse decision. Petitioner argues that the federal-sector statute phrase, “shall be made free from,” should allow claims to prove the prohibited consideration was a factor, even if not the only reason. CERT GRANTED.