babb v wilkie opinion

| December 10, 2020

He says that “any consideration” is an even lower bar than the motivating-factor standard suggested by the EEOC. Remedies should not put a plaintiff in a more favorable position than he or she would have enjoyed absent discrimination. 2017). The question in this case was whether the Age Discrimination in Employment Act of 1967 (ADEA) requires federal sector employees to show that age was a “but-for” cause of the personnel action taken, rather than merely show that … She argued that under the terms of the ADEA’s federal-sector provision, a personnel action is unlawful if age is a factor in the challenged decision. Given this established backdrop, the question becomes whether the federal-sector provision of the ADEA contains sufficiently clear language to overcome the default rule. Co. of America v. Burr, 551 U. S., at 63, we interpreted a provision of the Fair Credit Reporting Act (FCRA) requiring that notice be provided “[i]f any person takes any adverse action with respect to any consumer that is based in whole or in part on any information contained in a consumer [credit] report.” 15 U. S. C. §1681m(a) (emphasis added). I would not follow such an unusual course. Case: 16-16492 Date Filed: 07/16/2018 Page: 2 of 24 3 VII retaliation claim, and her hostile -work-environment claim. In 2014, she was placed in a new position, and while her grade was raised to GS–13, her holiday pay was reduced. 2  The General Schedule (GS) is a federal pay scale that is divided into 15 numbered grades. But if the employee wants full relief the employee must show that age discrimina­tion was a but-for cause of the employment outcome. The Court then provides an example of when the ADEA would be violated even if the consideration of age would not have changed the final decision. 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. On appeal, Babb contended the District Court’s requirement that age be a but-for cause of a personnel action was inappropriate under the federal-sector provision of the Age Discrimination in Employment Act of 1967 (ADEA). No. Under §633a(a), the type of discrimination forbidden is “discrimination based on age,” and “[i]n common talk, the phrase ‘based on’ indicates a but-for causal relationship.” Safeco Ins. First up this week, in Babb v. Wilkie (No. Perhaps the most striking aspect of the Court’s analysis is its failure to grapple with the sheer unworkability of its rule. of Veterans Affairs, 743 Fed. It is incongruous to suggest that Congress could have intended to incorporate a remedial scheme that appears not to have existed at the time the statute was passed. of African American-Owned Media, ante, at 6. To obtain reinstatement, damages, or other relief related to the end result of an employment decision, a showing that a personnel action would have been different if age had not been taken into account is necessary, but if age discrimination played a lesser part in the decision, other remedies may be appropriate. 18-882 IN THE Supreme Court of the United States _ NORIS BABB, Petitioner, v. ROBERT WILKIE, SECRETARY OF VETERANS Held: The plain meaning of §633a(a) demands that personnel actions be untainted by any consideration of age. The government argued the plain language of § 633a(a) of the ADEA imposes liability only when age is the but-for cause of an employment decision. Justice Thomas would apply the “default rule” for employment discrimination claims requiring a plaintiff to show discrimination was the but-for cause of the adverse action. The district court analyzed Babb’s age discrimination claims under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). of Ed. Babb appealed, contending that the District Court should not have used the McDonnell Douglas framework because it is not suited for “mixed motives” claims. View Babb-v-Wilkie.pdf from BUSINESS 1042 at The University of Newcastle. If the claim is an ADEA private sector claim, under Gross we know the causation standard is but-for causation. And holding that §633a(a) is violated when the consideration of age plays no role in the final decision would have startling implications. I therefore respectfully dissent. The difference came down to the Eleventh Circuit’s interpretation of what it takes to prove an employer’s bias causedan adverse employment decisio… To explain the basis for our interpretation, we will first define the important terms in the statute and then consider how they relate to each other. See, e.g., 5 U. S. C. §2301(b)(2). Babb argued the plain language of the statute prohibits any adverse consideration of age in the decision-making process. BABB v. WILKIE, SECRETARY OF VETERANS AFFAIRS. See Gómez-Pérez, 553 U. S., at 488. See 42 U. S. C. §2000e–2(m) (providing that an employer is liable if an employee establishes that a protected characteristic was a motivating factor in an employment action); §2000e–5(g)(2)(B) (limiting the remedies available to plaintiffs who establish motivating factor liability).1 Rather than supplementing a novel rule with a judicially crafted remedy, I would infer from the textual silence that Congress wrote the ADEA to conform to the default rule of but-for causation. Indeed, the first proposal for expansion of the ADEA to government entities did precisely that. The opinion is available here. On April 6, 2020, the U.S. Supreme Court decided Babb v. Wilkie, holding that the federal-sector provision of the Age Discrimination and Employment Act of 1967 (ADEA), 29 U.S.C. Justice Alito delivered the opinion of the Court, in which Justices Roberts, Breyer, Sotomayor, Kagan, Gorsuch and Kavanaugh joined. NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. Sotomayor, J., filed a concurring opinion, in which Ginsburg, J., joined. WILKIE Opinion of the Court if age discrimination played a lesser part in the decision, other remedies may be appropriate. Critical to this analysis will be the text of the statute,  and any legislative intent that signals that Congress intended to deviate from what the Court has accepted as the default rule of but-for causation. 74–75. Pp. The Safeco Court observed that the phrase “in part” could be read to mean that notice had to be given “whenever the report was considered in the rate-setting process,” but it rejected this reading. Because the interpretation of an antidiscrimination statute must be assessed against the backdrop of this default rule, I begin by describing the rule in detail. First, the Court has not foreclosed § 633a(a) claims arising from a discriminatory process. We are not persuaded by the argument that it is anomalous to hold the Federal Government to a stricter standard than private employers or state and local governments. Ante, at 6–7. And “[i]n common talk, the phrase ‘based on’ indicates a but-for causal relationship,” Safeco Ins. That is what the statutory language dictates, and if Congress had wanted to impose the same standard on all employers, it could have easily done so. The government’s interpretation of the statute follows more closely with the statute’s plain language and the “default rule” of but-for cause for employment discrimination cases recognized by the Court in Nassar, Gross, etc. April 6, 2020: The U.S. Supreme Court reversedThe action of an appellate court overturning a lower court's decision. The Court explained: The Court explained “traditional principles of tort and remedies law” “‘generally seek to place the victim of a legal wrong … in the position that person would have occupied if the wrong would not have occurred.’” (citations omitted). If the text of the ADEA contained this remedial scheme,  it would support the Court’s conclusion regarding causation. The Court observed it has “long employed these principles” citing to several constitutional cases and other authority. A but-for (or even a motivating-factor2) standard of causation could coexist relatively easily with these affirmative action programs, as it would be difficult for a plaintiff to plausibly plead facts sufficient to establish the requisite causation. Thus, under §633a(a), a personnel action must be made “untainted” by discrimination based on age, and the addition of the term “any” (“free from any discrimination based on age”) drives the point home.3 And as for “discrimination,” we assume that it carries its “ ‘normal definition,’ ” which is “ ‘differential treatment.’ ” Jackson v. Birm-ingham Bd. In 2013, Dr. Noris Babb, a pharmacist at the C.W. That Congress would want to hold the Federal Government to a higher standard than state and private employers is not unusual. Ante, at 5. The Government interprets this provision to impose liability only when age is a but-for cause of an employment decision. As a result, age must be a but-for cause of discrimination—that is, of differential treatment—but not necessarily a but-for cause of a personnel action itself. That Congress would want to hold the Federal Government to a higher standard is not unusual. January 7, 2019: Nori… 1159–1160 (1934)). In §1681m(a), the phrase “based . Thus, “free from any discrimination” describes how a personnel action must be “made,” namely, in a way that is not tainted by differential treatment based on age. Babb v. Wilkie could determine precisely what a plaintiff needs to prove in order to be protected under the Age Discrimination in Employment Act. Babb filed suit against the VA (Secretary Wilkie) under Title VII of the Civil Rights Act of 1964 and the ADEA alleging that she was the victim of sex and age discrimination and that the VA retaliated against her for participating in protected EEO activity, in violation of those laws. Finally, the Court clarifies from a practical view what is the difference between showing that a personnel decision was “tainted” by age bias and showing that that age must be a but-for cause of the discrimination alleged. Healthy concerned a constitutional injury, and the Court was tasked with creating a remedy for that injury in the face of §1983’s silence. Although unable to obtain such relief, plaintiffs are not without a remedy if they show that age was a but-for cause of differential treatment in an employment decision but not a but-for cause of the decision itself. We hold that §633a(a) goes further than that. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. of African American-Owned Media, ante, p. ___ (Ginsburg, J., concurring in part and concurring in judgment). . Consistent with the Court’s analysis , Justice Sotomayor pointed out that §633a may permit some limited monetary award. The Veterans Preference Act of 1944 entitles certain veterans, their spouses, and their parents to preferences in hiring and in retention during reductions in force. The Court rejected this argument holding that the Court’s decision in Babb is entirely consistent with prior precedent. Her claims under the Age Discrimination in Employment Act of 1967 (“ADEA”) centered on the following personnel actions: Babb argued that her age was a consideration in these employment decisions and that the fact that supervisors made age-based comments further supported her claims. We agree, but this does not mean that age must be a but-for cause of the ultimate outcome. I join the majority opinion because I agree that 29 U. S. C. §633a imposes liability even when age is not a “ ‘but-for cause’ ” of a personnel action. 11478 to cover discrimination on the basis of age). His reasoning read like an English class, consisting almost entirely of parsing “matters of syntax” in the statute. Finally, as discussed above, the ADEA as applied to federal employees demands that personnel actions be untainted by any consideration of age. Evaluating each of Babb’s claims under the burden-shifting framework outlined in McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973), the court found that Babb had established a prima facie case, that the Secretary had proffered legitimate rea sons for the challenged actions, and that no jury could reasonably conclude that those reasons were pretextual. Even assuming this is a correct interpretation, see 42 U. S. C. §2000e–16(d) (incorporating by reference the private-sector motivating-factor provisions), the Court’s “any consideration” rule imposes an even lower bar. The federal-sector provision of the Age Discrimination in Employment Act (ADEA), states that “[a]ll personnel actions affecting employees or applicants for employment” in executive agencies “who are at least 40 years of age * * * shall be made free from any discrimination based on age.” 29 U.S.C. A subordinate recommends employee A and says that the recommendation is based in part on employee B’s age. 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” … . WILKIE BABB Opinion of the Court if age discrimination played a lesser part in the decision, other remedies may be appropriate. Because most federal-sector “personnel actions” affecting individuals aged 40 and older must be made “free from any discrimination based on age,” 29 U. S. C. §633a(a), Babb argued, such a personnel action is unlawful if age is a factor in the challenged decision. See 551 U. S., at 63–64. Justice Sotomayor filed a concurring opinion in which Justice Ginsburg joined. The Babb Court makes it clear that the employee needs to prove that consideration of age “tainted”, or in the terminology of our current COVID-19 world, “infected” the personnel practice to prove a violation of §633. Employee A would have won out even if age had not been considered and employee B had not lost five points, since A’s score of 90 was higher than B’s initial, legitimate score of 85. This argument fails for two reasons. It makes correct points about the meaning of particular words, but draws the unwarranted conclusion that the statutory text requires something more than a federal employer’s mere consideration of age in personnel decisions. And this discrimination was “based on age” because the five points would not have been taken away were it not for employee B’s age. . Mt. The VA moved for summary judgment, offering nondiscriminatory reasons for the challenged actions. Hereafter simply referred to as Babb at __. [16] Finally, in University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338 (2013)(dealing with Title VII’s anti-retaliation provision), the Court again explains the language in both statutes are significantly different. To see what this entails in practice, consider a simple example. She maintains that its language prohibits any adverse consideration of age in the decision-making process. Justice Ginsburg joined as to all but footnote 3. Section 633a(a) concerns “personnel actions,” and while the ADEA does not define this term, its meaning is easy to understand. See ante, at 1. 4(a)(2)) (1976); 4 Oxford English Dictionary 521 (def. 8–11. The Court also fails to cite any authority suggesting that its remedial scheme existed, at common law or otherwise, in 1974 when Congress added the federal-sector provision to the ADEA. We have recognized as much when interpreting 42 U. S. C. §1981’s prohibition against racial discrimination in contracting, Comcast Corp. v. National Assn. Section 623(a)(1) makes it “unlawful for an employer . . 4. I would probably argue for the ultimate but-for charge. In that act, which also governs federal employment, “personnel actions” includes “most employment-related decisions such as appointment, promotion, work assignment, compensation, and performance reviews.”, Accordingly, the Court concludes that age must be a but-for cause of the discrimination alleged.”, The Court explains that “age must be a but-for cause of discrimination—that is of differential treatment—but not necessarily a but-for cause of a personnel action itself.”, Therefore, a personnel action must be “made” in a way that is not tainted by differential treatment based on age or in the words of the statute, “free from any discrimination.”, There is a violation to § 633a(a) of the ADEA when age “plays any part in the way a [personnel] decision is made.”. merit system principl[e that a]ll employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to . 12) (1966) (defining “free” as “exempt or released from something specified that controls, restrains, burdens, etc.”). Southwestern Medical Center v. Nassar, 570 U. S. 338, 346 (2013) (quoting various provisions of the Restatement of Torts (1934)). See 29 U. S. C. §791; 5 CFR §213.3102(u); 29 CFR §1614.203(d) (2019). Healthy and, by extension, Lesage do not assist the Court. Comcast Corp. v. National Assn. Lehman, 453 U. S., at 166, n. 14. Finally, in University of Tex. The Court first observed that although the ADEA does not define the term “personnel actions,” the Civil Service Reform Act of 1978 does.

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