Donna Trask v. Secretary, Department of Veterans Affairs ( 2016 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-11709
________________________
D.C. Docket No. 8:13-cv-00536-MSS-TBM
DONNA TRASK,
ANITA TRUITT,
Plaintiffs-Appellants,
versus
SECRETARY, DEPARTMENT OF VETERANS AFFAIRS,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(April 5, 2016)
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Before HULL, JULIE CARNES, and CLEVENGER, * Circuit Judges.
HULL, Circuit Judge:
Plaintiffs Donna Trask and Anita Truitt (the “plaintiffs”) appeal the district
court’s order granting summary judgment in favor of the Secretary for the
Department of Veterans Affairs (“VA”) in their employment discrimination action
brought pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967
(the “ADEA”), 29 U.S.C. § 626. On appeal, the plaintiffs argue that the district
court erred by making improper fact determinations and incorrectly applying the
relevant law. After review, and with the benefit of oral argument, we affirm. 1
I. RELEVANT BACKGROUND FACTS
In this case the plaintiffs sued their employer, the VA, for gender and age
discrimination. The plaintiffs are pharmacists who have worked for the VA for
over a decade. In 2010, the VA announced a nationwide treatment initiative that
resulted in the reorganization of several VA treatment facilities, including the
facility where the plaintiffs worked. This reorganization involved the creation of
*
Honorable Raymond C. Clevenger, United States Circuit Judge for the Federal Circuit,
sitting by designation.
1
We review de novo the district court’s grant of summary judgment, viewing all evidence
in the light most favorable to the non-moving party. Owen v. I.C. Sys., Inc., 629 F.3d 1263,
1270 (11th Cir. 2011). Summary judgment is proper “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). We may affirm on any ground that finds support in the record.
Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007).
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new pharmacist positions requiring an “advanced scope of practice,” to be filled
internally, and the elimination of certain pre-existing pharmacist positions,
including the positions that the plaintiffs held.
The plaintiffs claim they were not selected to fill the new pharmacist
positions due to their gender and age and were similarly denied opportunities to
train and qualify for those positions due to their gender and age. The VA’s non-
selection of the plaintiffs for the new pharmacist positions, along with its
reorganization and elimination of the plaintiffs’ then-current positions, resulted in a
reassignment of the plaintiffs’ positions and job duties. The plaintiffs claim their
reassignments resulted in losses of prestige and responsibility. The plaintiffs have
suffered no decrease in pay and are still employed by the VA.
We recount below the plaintiffs’ training and credentials, as well as their
experience and performance as pharmacists. We then discuss the VA’s creation
and implementation of the treatment initiative that gave rise to the new pharmacist
positions and discuss the objective qualifications required to fill those positions.
Finally, we recount the plaintiffs’ unsuccessful attempts to qualify for and fill the
new pharmacist positions.
A. The Plaintiffs and their Supervisors
Dr. Donna Trask, a female born in 1953, is a licensed clinical pharmacist.
At the time of the events material to this appeal, Dr. Trask was approximately 58
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years old. Dr. Trask obtained a Bachelor of Pharmacy Degree in 1975, and a
Doctor of Pharmacy Degree in 2002. Over her decades-long career as a clinical
pharmacist, Dr. Trask has gained extensive experience monitoring medication
distribution, establishing drug handling procedures, maintaining prescription
records, training pharmacy personnel, educating and consulting patients, and
making medication recommendations to physicians for all types of diseases and
medical conditions, commonly referred to as “disease states.”
In 2010, Dr. Trask obtained a certificate in Medication Management
Therapy, which indicates expertise in several areas, including disease state
management and selecting, initiating, and modifying medication therapy. In 2011,
Dr. Trask obtained board certification as a geriatric pharmacist, which
demonstrated competence in over 100 disease states in the senior population.
Dr. Trask has also taught classes in pharmacology.
Dr. Anita Truitt, a female born in 1955, is also a licensed clinical
pharmacist. At the time of the events material to this appeal, Dr. Truitt was
approximately 55 years old. Dr. Truitt obtained a Bachelor of Science Degree in
Pharmacy in 1978, and a Doctor of Pharmacy Degree in 2003. Throughout her
decades-long career as a pharmacist, her job duties have required her to counsel
and educate patients in several disease states.
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In 2002, the plaintiffs began working as clinical “float” pharmacists for Bay
Pines VA Healthcare System (“Bay Pines”). In 2003, they received assignments as
“module” pharmacists. Bay Pines is split into 4 “modules,” all of which provide
primary care. Dr. Trask worked in Module D and Dr. Truitt worked in Module B.
The plaintiffs had all the same supervisors. Their first-line supervisor was
Dr. Robert Stewart, a male in his 40s. Their second-line supervisors, each an
Associate Chief of Pharmacy, were Dr. Keri Justice, a female in her 30s, and
Dr. Camaro West-Lee, a female in her 40s. Their third-line supervisor was the Bay
Pines Chief of Pharmacy, Dr. Gary Wilson, a male in his 50s.
B. The Plaintiffs’ Duties and Performance as Module Pharmacists
Dr. Trask testified that her duties as a module pharmacist involved
monitoring labs, calculating dosages, conducting extensive patient interviews,
evaluating non-formulary drug requests, training personnel and new pharmacists,
and making informed medication recommendations to physicians. When
providing treatment, Dr. Trask would typically interview the patient, evaluate his
medical history, look for changes in the patient, consider modifications to
medication, screen for contraindications, and educate the patient. Dr. Trask
believed she performed all the duties of a mid-level provider.
Apart from providing primary care, Dr. Trask collaborated with several
patient-centered care teams in Module D including the Spinal Cord Injury Team,
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the Traumatic Brain Injury Team, and the Post-deployment team for veterans
returning from Iraq and Afghanistan. Dr. Trask received specialized training and
testified that she was the Bay Pines pharmacy service’s “expert in spinal cord
injury.” Dr. Trask received an “exceptional” rating on all her performance reviews
and never had a complaint filed against her.
Dr. Truitt testified that her duties as a module pharmacist involved managing
patients’ medications and recommending certain drug therapies to physicians. She
testified that more than 50% of her module practice at Bay Pines involved disease
state management. Dr. Truitt also trained newly hired doctors and pharmacists and
served as a preceptor for pharmacy students at a nearby college. Dr. Truitt
received exceptional performance reviews for her work as a module pharmacist.
While the plaintiffs contended that they were doing most of the duties of a
mid-level provider, the admitted that they never signed prescriptions in their own
names. In fact, module pharmacists at Bay Pines never prescribed, managed, or
monitored medications independent from a physician.
C. Advanced Scope of Practice
Bay Pines pharmacists have the ability to hold either a general scope of
practice or an advanced scope of practice (“advanced scope”). A general scope of
practice, held by all clinical pharmacists, entails general pharmaceutical duties,
such as processing prescriptions and using clinical judgment to follow lab work.
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An advanced scope allows a pharmacist to prescribe medications for a specific
disease state within their practice, such as diabetes, hypertension, and
hyperlipidemia.
While there are several types of advanced scopes, the defining feature of
most is that they allow pharmacists to independently write prescriptions without a
doctor’s approval. Thus, pharmacists with advanced scopes function “very much
like a physician or an advanced provider, a nurse practitioner, or a . . . physician’s
assistant.”
To obtain an advanced scope, a clinical pharmacist must obtain approval
from the Bay Pines Pharmacy Professional Standards Board (“Standards Board”).
The Standards Board looks at two criteria: (1) whether the pharmacists’ job
requires an advanced scope, and (2) whether the pharmacist is qualified and
credentialed to hold an advanced scope. Obtaining and maintaining an advanced
scope requires long-term peer review from multiple supervisory pharmacists. As
such, the Standards Board does not grant advanced scopes “unless they are a
requirement of the job area and job description in which someone practices.”
A pharmacist could initiate the process for obtaining an advanced scope by
speaking with his or her supervisor. The supervisor would then submit a request to
the credentialing department, which would provide the necessary paperwork,
including an “Advanced Scope of Practice and Prescriptive Authority
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Application.” The application was a short document that required the applicant to
check a few boxes, sign, and date. The application also contained a section for
signatures from “collaborating” physicians, who would indicate their approval or
disapproval of the applicant’s receipt of an advanced scope.
The Standards Board reviewed all advanced scope applications. At the time
material to this appeal, the Standards Board committee consisted of Dr. Stewart
and seven other individuals. Dr. Justice was the Chairperson of the Standards
Board. Once the Standards Board had reviewed the application and interviewed
the relevant supervisory pharmacists, it would reach a final decision, subject to
Dr. Wilson’s approval.
The plaintiffs did not have advanced scopes. As module pharmacists, their
jobs did not require one. Dr. Trask was unaware of any person receiving an
advanced scope who did not have an assignment requiring one.
Without an advanced scope, the plaintiffs lacked authority to independently
prescribe medications to manage patients’ diseases. As Dr. Truitt recognized,
“[T]echnically we could not make the change [in medications] without the doctor’s
approval in making that change.” Dr. Trask similarly testified, “I made
recommendations all day long. I couldn’t put it in my name because I didn’t have
an advanced scope.”
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D. Patient Aligned Care Teams
In the spring of 2010, the VA Central Office announced a nationwide
initiative known as “Patient Aligned Care Teams,” or “PACT.” The goal of PACT
was to develop a patient-centered, team-based approach to health care. PACT was
intended to replace episodic care based on illness and patient complaints with
coordinated care and long term healing relationships.
Each PACT team consists of a provider, such as a physician, nurse
practitioner, or physician assistant, a licensed practical nurse, a clerk, and other
team members, such as clinical pharmacists, social workers, and dieticians. PACT
required each team member to function at his or her “highest” licensed capacity in
order to provide complete care to the patient. In PACT, the pharmacist would
function as a mid-level provider who managed chronic disease sates, made critical
decisions about the patient’s care, and prescribed medications. A PACT
pharmacist needed to function under an advanced scope so that he or she could
independently prescribe medication.
E. PACT Pilot Program at Lakeside Clinic
In April 2010, Bay Pines initiated a series of pilot programs to test the
implementation of the PACT initiative. One of the pilot programs was at the
Lakeside Clinic (“Lakeside”)—a standalone primary care area not located within
the central Bay Pines modules. Dr. Larry Atkinson, the acting Chief of Primary
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Care, and members of the Bay Pines PACT executive council chose Lakeside as
the pilot site.2 They chose Lakeside because it had available space, it was close to
the primary care administrative offices, and the providers there had been involved
with PACT from its inception.
Dr. Brian Steele, a male in his 30s, was working as a module pharmacist at
Lakeside when it was chosen as a pilot program site. Management selected
Dr. Steele to participate in the pilot program because he was already working with
the physicians selected to participate in the pilot program. Dr. Steele also had
several nationally recognized certifications that were valuable for pharmacists
wishing to participate in PACT.
Dr. Steele’s participation in the pilot program required him to have an
advanced scope so that he could perform the responsibilities of a PACT
pharmacist. But at the time the pilot program commenced, Dr. Steele was not
qualified to receive an advanced scope. Rather than move a clinical pharmacy
specialist with an advanced scope to Lakeside, Bay Pines decided to “embrace the
pilot” and train Dr. Steele.
After several months of training in the disease management clinic, Dr. Steele
applied for an advanced scope. Dr. Steele received an advanced scope in January
2011 on the grounds that his participation in the Lakeside pilot program required it.
2
While Dr. Justice was on the PACT executive council, she did not have direct
responsibility for choosing that pilot site.
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F. PACT Implementation Plan
On February 10, 2011, pharmacy management held a meeting with the
module pharmacists. Dr. Justice announced that the module pharmacists would
remain in their positions and transition into becoming PACT pharmacists.
Pharmacists who already had advanced scopes would mentor the module
pharmacists, such as the plaintiffs, in disease state management to prepare them for
their new roles as PACT pharmacists. This initial plan pleased the plaintiffs, as
they would keep their jobs, receive training, presumably obtain advanced scopes,
and eventually become PACT pharmacists.
At the end of February 2011, Dr. Justice and Dr. Wilson attended a meeting
between the chiefs of multiple VA medical centers within their region and their
regional leaders. Roy Coakley, a regional leader who had recently met with
Richard Stark, the so-called “father of PACT,” attended the meeting. At the
meeting, Dr. Justice and Dr. Wilson sought guidance from Coakley and others
regarding Bay Pine’s PACT implementation plan. After speaking with Coakley
and other pharmacy chiefs, Dr. Wilson learned that training module pharmacists as
PACT pharmacists was not best practice. Rather, pharmacists who already had
experience providing mid-level care with advanced scopes should be considered
for the PACT positions “in order to provide the best possible care to the patients.”
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On March 3, 2011, based on the advice they received at the February 2011
meeting, Dr. Wilson and Dr. Justice announced a revision to the PACT
implementation plan. Rather than leaving the current module pharmacists in place
and training them to become PACT pharmacists, management allowed all Bay
Pines pharmacists to apply for a PACT pharmacist position.
On May 19, 2011, Dr. Wilson sent an email to all Bay Pines pharmacists
announcing that the time had come to “reorganize” and “implement PACT . . .
throughout the Bay Pines Healthcare System.” Dr. Wilson stressed that “[m]ultiple
national initiatives” were guiding their restructuring decision, which would require
“reassigning pharmacists, relocating workload and maximizing efficiency.”
Dr. Wilson noted that the PACT model required “strong clinicians,” and that
“Central Office . . . established the qualification standards that each clinician
should possess.”
The email contained a reorganization table that announced the creation of
seven PACT positions—two at Module B, two at Module D, two at Lakeside, and
one at the Palm Harbor Community-Based Outpatient Clinic, another part of Bay
Pines. In July 2011, Human Resources formally posted to the USA Jobs website
the PACT positions opening at Module B, Module D, and Lakeside. At that time,
the Palm Harbor position had not yet been approved, so the July 2011 USA Jobs
postings included only the six main-campus positions.
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G. PACT Applicants and Selections
Twelve Bay Pines pharmacists, including the plaintiffs and Dr. Steele,
applied for the six PACT positions formally posted on USA Jobs in July 2011.
Among the applicants was Dr. Linda Rolston, a female in her mid-50s.
Dr. Rolston obtained an advanced scope in 1988. Dr. Rolston believed she had
applied for the PACT position initially planned for Palm Harbor, but did not
realize that the July 2011 USA Jobs posting included only the six positions at the
main campus. Dr. Justice informed Dr. Rolston that the Palm Harbor position was
not yet approved. Dr. Justice nevertheless offered Dr. Rolston one of the PACT
positions at the main campus. Dr. Rolston declined the offer and told Dr. Justice
she would like to be reconsidered when the Palm Harbor position became
available.
In September 2011, Bay Pines selected six applicants to fill the PACT
pharmacist positions. Dr. West, Dr. Justice, and Dr. Stewart provided input, but
Dr. Wilson was the ultimate selecting official. The six applicants chosen for the
PACT positions were Hetal Bhatt-Chugani, Will Lavinghousez, Brian Steele,
Rodrique Rodney, Germain Thomas, and Michael Kelley. Each of the selected
pharmacists possessed an advanced scope in disease state management prior to
applying for the positions.
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The five applicants not selected were the two plaintiffs and three others,
Peter Pasek, Natalia Schwartz, and Timothy Ebert. Pasek and Schwartz both
already possessed an advanced scope in disease state management prior to
applying for the positions. The plaintiffs and Ebert were the only applicants who
did not have advanced scopes when they applied. Dr. Wilson did not select the
plaintiffs primarily because they did not have advanced scopes, and they did not
have experience prescribing medicine under an advanced scope.
Bay Pines’ PACT pharmacist selections are summarized in the following
table:
Name/Approximate Age in Application Outcome Possession of
2011/Gender Advanced Scope?
Hetal Bhatt-Chugani/33/F Selected Yes
Will Lavinghousez/30/M Selected Yes
Linda Rolston/54/F Selected, but withdrew Yes
Brian Steele/32/M Selected Yes
Rodrique Rodney/28/M Selected Yes
Germain Thomas/31/F Selected Yes
Michael Kelley/29/M Selected Yes
Peter Pasek/28/M Not Selected Yes
Natalia Schwartz/(young)/F Not Selected Yes
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Timothy Ebert/26/M Not Selected No
Donna Trask/58/F Not Selected No
Anita Truitt/55/F Not Selected No
H. Plaintiffs’ Attempts to Obtain Advanced Scopes and Receive Training
The plaintiffs attempted to obtain advanced scopes and receive related
training on several occasions. Soon after the VA Central Office announced the
PACT initiative, Plaintiff Dr. Trask told Dr. Justice that she wanted whatever
training and education would be necessary to perform a PACT position, including
obtaining an advanced scope. Dr. Justice responded, “Oh, we’ll get that later.”
Dr. Trask mentioned her desire to obtain an advanced scope to Dr. Justice several
more times, but was repeatedly “put off.” According to Dr. Justice, at the time
Dr. Trask initially requested an advanced scope, and the several times thereafter,
her module was not operating under PACT and, therefore, she did not need an
advanced scope.
In April 2011, a few months before PACT selections were made, Dr. Ernest
Baul, the primary care provider for spinal cord injury patients, asked Dr. Trask to
obtain an advanced scope in order to help treat spinal cord injury patients. The
advanced scope would allow Dr. Trask to write orders for soft prosthetics and
assist with lipid management. Dr. Trask informed Dr. Stewart of Dr. Baul’s
request, and asked him to initiate the process for obtaining an advanced scope with
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the credentialing department. Dr. Stewart’s request got passed on to Dr. Justice,
who said she was on administrative leave and would not be able to review the
matter until mid-May. Dr. Justice ultimately denied Dr. Baul’s request for
Dr. Trask to receive an advanced scope on the grounds that Dr. Baul already had
access to pharmacists who had advanced scopes and were better suited to help him.
In July 2011, the plaintiffs attempted to obtain advanced scope applications
on their own, but management refused to provide the applications, or any guidance
on how to obtain one. The plaintiffs ultimately obtained the application with the
assistance of a union representative.
On or about July 25, 2011, the plaintiffs completed their written advanced
scope applications. The applications required written recommendations from
collaborating physicians. All six of the Module D physicians recommended
approval of Dr. Trask’s request for an advanced scope. Two of the six Module B
physicians recommended approval of Dr. Truitt’s request for an advanced scope.
Apart from signing the applications, several physicians testified that both plaintiffs
were highly regarded and well-qualified to receive advanced scopes. In other
words, several treating physicians believed that, based on their extensive
experience, the plaintiffs were qualified to independently prescribe medications
under supervision.
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The Standards Board held the plaintiffs’ July 25, 2011 applications until
after the PACT pharmacist positions were filled in early September 2011. On
September 15, 2011, after PACT selections had been made, Dr. Justice informed
the plaintiffs that the Standards Board had denied their advanced scope
applications on two grounds: (1) their current positions did not require them to
maintain an advanced scope or have prescriptive authority, and (2) there was
insufficient data available to complete a Focused Professional Practice Evaluation
of direct patient care activities. Dr. Justice clarified that the second reason for
denying the plaintiffs’ advanced scope applications meant that the plaintiffs had
not received sufficient training. This was the first time Bay Pines had ever denied
an advanced scope application.
I. Discrimination Complaints and Reassignment
On August 30, 2011, just before PACT selections were made, the plaintiffs
made their initial contact with an Equal Employment Opportunity (“EEO”)
counselor and asserted that they were the victims of gender and age discrimination.
On September 26, 2011, following their non-selection for the PACT pharmacist
positions, Bay Pines reassigned the plaintiffs to the outpatient float pool. While
their reassignments did not affect their salary or their grades, the plaintiffs no
longer spoke with physicians or consulted patients. Instead, as float pharmacists,
the plaintiffs performed a “dispensing job” as if they were “on an assembly line.”
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The plaintiffs believed their reassignments resulted in a loss of “prestige and
responsibility.”
On October 12, 2011, Dr. Truitt and Dr. Trask each filed a formal complaint
of discrimination with the VA. Dr. Truitt subsequently received her 2011
performance review, which rated her compliance performance as “fully successful”
rather than “exceptional.” Dr. Trask also testified that in May and June of 2012,
just after the parties had provided EEO investigation testimony that spring,
management did not allow her to attend certain committee meetings as a union
representative.
II. PROCEDURAL HISTORY
On August 2, 2013, the plaintiffs filed a second amended complaint in
federal district court against the VA alleging causes of action for gender
discrimination under Title VII, age discrimination under the ADEA, retaliation,
and hostile work environment. In a March 19, 2015 order, the district court
granted summary judgment in favor of the VA on all of the plaintiffs’ claims. This
appeal followed.
III. DISCUSSION
A. Gender and Age Discrimination
Employment discrimination claims all require proof of discriminatory intent.
See Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th Cir. 2005).
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When, as here, a Title VII or ADEA plaintiff’s employment discrimination claim is
based on circumstantial evidence, courts apply the burden-shifting framework set
out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973).
Kidd v. Mando Am. Corp., 731 F.3d 1196, 1202 (11th Cir. 2013) (Title VII);
Kragor v. Takeda Pharms. Am., Inc., 702 F.3d 1304, 1308 (11th Cir. 2012)
(ADEA).
Under the McDonnell Douglas framework, a plaintiff must first create an
inference of discrimination through her prima facie case. Vessels, 408 F.3d at 767.
“Once the plaintiff has made a prima facie case, a rebuttable presumption arises
that the employer has acted illegally.” Alvarez v. Royal Atl. Developers, Inc., 610
F.3d 1253, 1264 (11th Cir. 2010). “The employer can rebut that presumption by
articulating one or more legitimate non-discriminatory reasons for its action.” Id.“If it does so, the burden shifts back to the plaintiff to produce evidence that the
employer’s proffered reasons are a pretext for discrimination.” Id.On appeal, the plaintiffs argue that they established a prima facie case for
gender and age discrimination with respect to two discrete adverse employment
actions: (1) their non-selection for the PACT pharmacist positions, and (2) the
denial of their requests for an advanced scope and associated training. We address
each argument in turn.
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1. Non-Selection for PACT Pharmacist Positions
In a typical failure-to-hire scenario, the plaintiff establishes a prima facie
case of unlawful discrimination by demonstrating that: “(1) she was a member of a
protected class; (2) she applied and was qualified for a position for which the
employer was accepting applications; (3) despite her qualifications, she was not
hired; and (4) the position remained open or was filled by another person outside
of her protected class.” EEOC v. Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1273
(11th Cir. 2002).
To demonstrate that she was qualified for the position at the prima facie
stage, a plaintiff must show that she satisfied an employer’s objective
qualifications. Vessels, 408 F.3d at 769. “[S]ubjective evaluations play no part in
the plaintiff's prima facie case.” Id. “Rather, they are properly articulated as part
of the employer’s burden to produce a legitimate race-neutral basis for its decision,
then subsequently evaluated as part of the court’s pretext inquiry.” Id.Here, the plaintiffs failed to demonstrate that they were objectively qualified
to fill the PACT pharmacist positions, which is fatal to their prima facie case. It is
undisputed that one of the objective hiring criteria for the PACT pharmacist
positions was the possession of an advanced scope. Because the PACT initiative
required the PACT team pharmacist to function as a mid-level provider who
managed chronic disease sates, made critical decisions about the patient’s care, and
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prescribed medications, a PACT pharmacist needed to function under an advanced
scope so that he or she could independently prescribe medication. This objective
requirement was made abundantly clear by Bay Pines’ PACT pharmacist
selections, all of whom had previous experience independently prescribing
medication under an advanced scope.
The plaintiffs presented copious amounts of evidence establishing that they
were very experienced clinical pharmacists who consistently received outstanding
performance reviews. We have no doubt that the plaintiffs were proficient module
pharmacists at Bay Pines. That said, the plaintiffs did not have advanced scopes
and had no experience providing mid-level care with independent prescription
authority. Despite the subjective factors supporting their qualifications to function
as PACT pharmacists, the plaintiffs did not possess the objective qualifications
necessary to fill the position. Because the plaintiffs were not objectively qualified
to perform the duties of a PACT pharmacist, they failed to establish an element of
their prima facie failure-to-hire case. See Vessels, 408 F.3d at 769; Joe’s Stone
Crabs, Inc., 296 F.3d at 1273.
2. Denial of Requests for Advanced Scopes and Related Training
To establish a prima facie case for disparate treatment in an employment
discrimination case, the plaintiff must show that: “(1) she is a member of a
protected class; (2) she was subjected to an adverse employment action; (3) her
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employer treated similarly situated employees outside of her protected class more
favorably than she was treated; and (4) she was qualified to do the job.” Burke-
Fowler v. Orange Cty., 447 F.3d 1319, 1323 (11th Cir. 2006).
With respect to the third prong of the prima facie case, the plaintiffs and the
employee they identify as a comparator must be similarly situated in all relevant
respects. Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir. 2004).
The comparator must be “nearly identical” to the plaintiffs to prevent courts from
second-guessing a reasonable decision by the employer. Id. Thus, in order for the
plaintiffs in this case to establish a prima facie case for unlawful disparate
treatment, they must show that a similarly-situated individual outside of their
protected class applied for an advanced scope and received it. See Maynard v. Bd.
of Regents, 342 F.3d 1281, 1289 (11th Cir. 2003).
The plaintiffs’ sole proffered comparator is Dr. Steele, a young male who
received an advanced scope and the associated training due to his participation in
the Lakeside PACT pilot program. But, compared to the plaintiffs, Dr. Steele was
not a “similarly-situated individual.” While Dr. Steele was also a module
pharmacist, he did not even work in the same building as the plaintiffs. The acting
Chief of Primary Care and members of the Bay Pines PACT executive council
chose Lakeside as the site for the PACT pilot program. Dr. Steele received an
advanced scope and the associated training because he happened to work at
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Lakeside, the chosen pilot program site. The plaintiffs did not work at that
location.
Dr. Steele was already a module pharmacist at Lakeside and worked with
many of the providers selected to participate in the pilot program. Thus, Dr. Steele
was a natural choice for serving as a pharmacist in the Lakeside PACT pilot
program. Once selected to participate in the pilot program, Dr. Steele’s job duties
required that he train for and obtain an advanced scope. Conversely, prior to the
implementation of PACT, the plaintiffs’ jobs never required that they train for or
obtain an advanced scope. As such, Dr. Steele and the plaintiffs were dissimilar in
several critical respects, and were a far cry from being “nearly identical.” Wilson,
376 F.3d at 1091.
Simply put, the plaintiffs were module pharmacists in Bay Pines’ pre-PACT
main campus whose jobs did not require possession of an advanced scope, while
Dr. Steele was a pilot-program-participant whose job did require the possession of
an advanced scope. Thus, Dr. Steele was not a valid comparator.
The plaintiffs proffered no comparator other than Dr. Steele. In fact, the
plaintiffs presented no evidence that any other Bay Pines module pharmacist ever
applied for an advanced scope so that he or she would qualify for a PACT position.
Because the plaintiffs did not demonstrate that a similarly situated comparator
outside of their protected class was given an advanced scope, they failed to
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establish a prima facie case for unlawful disparate treatment. 3 See Maynard, 342
F.3d at 1289.
Not only did the plaintiffs fail to identify a valid comparator, which is fatal
to their prima facie case, but the VA came forward with undisputed evidence that
Bay Pines had actually selected Dr. Rolston, a female in her mid-50s, to fill one of
the PACT pharmacist positions. For this reason and others, we find no
“convincing mosaic of circumstantial evidence” giving rise to an inference of age
or gender discrimination. See Smith v. Lockheed-Martin Corp., 644 F.3d 1321,
1328 (11th Cir. 2011).
B. Retaliation
Title VII makes it illegal for “an employer to discriminate against any of his
employees . . . because he has opposed any practice made an unlawful employment
practice by this subchapter, or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under this
subchapter.” 42 U.S.C. § 2000e–3(a). The ADEA contains a similar anti-
3
Even if the plaintiffs had established a prima facie case of age and gender
discrimination, which they did not, they certainly failed to demonstrate that Bay Pines’ reasons
for not selecting them for the PACT positions and denying their advanced scope applications
were pretexts for unlawful discrimination. This too is fatal to the plaintiffs’ claims.
No pharmacist had ever applied for an advanced scope under the circumstances that the
plaintiffs did. The plaintiffs concede that they were module pharmacists whose jobs did not
require an advanced scope. They only applied for advanced scopes in order to qualify for the
PACT pharmacist position, not because Bay Pines had some particular need for more
pharmacists with advanced scopes. Given that Bay Pines had no need for additional pharmacists
with advanced scopes at the time of the plaintiffs’ applications, its denial of their applications
was hardly suspect.
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retaliation provision. See 29 U.S.C. § 623(d). To establish a prima facie case of
retaliation, plaintiffs must prove that: (1) they engaged in statutorily protected
conduct; (2) they suffered an adverse employment action; and (3) the adverse
action was causally related to the protected expression. Butler v. Ala. Dep’t of
Transp., 536 F.3d 1209, 1212-13 (11th Cir. 2008).
“Once a plaintiff has established a prima facie case, the employer then has
an opportunity to articulate a legitimate, non-retaliatory reason for the challenged
employment action.” Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th
Cir. 2001). “The ultimate burden of proving by a preponderance of the evidence
that the reason provided by the employer is a pretext for prohibited, retaliatory
conduct remains on the plaintiff.” Id.On appeal, the plaintiffs argue that the district court erred by granting
summary judgment in favor of the VA with respect to their retaliation claims. The
plaintiffs contend they suffered four discrete instances of retaliation following their
initial August 30, 2011 EEO contact: (1) on September 26, 2011, they were
reassigned to the outpatient float pool, (2) at the end of 2011, Dr. Truitt received
her annual performance review, which rated her compliance performance as “fully
successful” rather than “exceptional,” (3) in April 2012, Dr. Truitt had to seek
approval from three supervisors to attend a planning committee meeting as a union
representative, and (4) in May and June of 2012, pharmacy management did not
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permit Dr. Trask to attend committee meetings as a union representative. As
explained below, none of these events constitute an actionable retaliation claim.
1. Reassignment to Float Pool
We have considerable doubt about whether the plaintiffs’ reassignment to
the float pool can satisfy the elements of a prima facie retaliation case. A work
reassignment may constitute an adverse employment action when the change is “so
substantial and material that it . . . alter[s] the terms, conditions, and privileges of
employment.” See Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1245 (11th
Cir. 2001) (quotation marks omitted).
Here, the plaintiffs’ reassignment resulted in no decrease in pay or grade.
And while the plaintiffs offered some subjective evidence that the float pharmacist
position involved decreased responsibility and prestige and required the
performance of more menial tasks, it is not clear that these changes were so
substantial that they amounted to an actionable adverse employment action. See
id. (“In the vast majority of instances, . . . an employee alleging a loss of prestige
on account of a change in work assignments, without any tangible harm, will be
outside the protection afforded by Congress in Title VII's anti-discrimination
clause.”).
Additionally, Title VII retaliation claims require proof that “[the] protected
activity was a but-for cause of the alleged adverse action by the employer.” Univ.
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of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. ___, 133 S. Ct. 2517, 2534 (2013). As
early as February 2011, almost eight months before the plaintiffs engaged in their
protected activity, pharmacy management stated that pharmacists who were not
selected for PACT positions might become floating pharmacists. Because
pharmacy management had already decided to reassign module pharmacists who
were not selected for PACT positions to the float pool following the
implementation of PACT, the plaintiffs’ protected activity could not have been a
but-for cause of their reassignment. See id.In any event, even assuming arguendo that the plaintiffs’ reassignment to the
float pool constitutes a prima facie retaliation case, the plaintiffs presented no
evidence that the Bay Pines’ legitimate non-discriminatory reason for the
reassignment was pretextual. The record evidence demonstrates that the plaintiffs’
reassignment to the float pool was a natural consequence of their non-selection for
the PACT positions and the elimination of module pharmacist assignments.
Because Bay Pines proffered legitimate non-discriminatory reasons for the
plaintiffs’ reassignment to the float pool, the plaintiffs had the burden of
demonstrating that Bay Pines’ reasons were pretextual. The plaintiffs offer no
argument as to how or why this might be the case, let alone point to record
evidence demonstrating pretext. Accordingly, the plaintiffs failed to meet their
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burden to show that Bay Pines had retaliatory intent when it reassigned them to the
float pool, and the district court properly granted summary judgment on this claim.
2. Remaining Retaliation Claims
“[T]o prove adverse employment action in a case under Title VII’s anti-
discrimination clause, an employee must show a serious and material change in the
terms, conditions, or privileges of employment.” Davis, 245 F.3d at 1239.
“Moreover, the employee’s subjective view of the significance and adversity of the
employer’s action is not controlling; the employment action must be materially
adverse as viewed by a reasonable person in the circumstances.” Id.Viewed objectively, neither Dr. Truitt’s performance review nor the
restrictions on Dr. Trask’s attendance at committee meetings constitutes an adverse
employment action. Dr. Truitt did not suffer an adverse material consequence after
receiving a “fully successful” performance review, and Dr. Trask appears to have
suffered nothing more than frustration regarding her inability to attend certain
meetings. As such, neither of these events constituted a serious and material
change in the terms, conditions, or privileges of the plaintiffs’ employment. Id.C. Hostile Work Environment
To establish a hostile work environment claim under Title VII, a plaintiff
must show that “the workplace is permeated with discriminatory intimidation,
ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of
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. . . employment and create an abusive working environment.” Gowski v. Peake,
682 F.3d 1299, 1311 (11th Cir. 2012). To prove a prima facie case of hostile work
environment, a plaintiff must establish that: (1) he or she belonged to a protected
group, (2) he or she was subjected to unwelcome harassment, (3) the harassment
was based on a protected characteristic, (4) the harassment was sufficiently severe
or pervasive to alter the terms and conditions of his or her employment and create
an abusive working environment, and (5) a basis exists for holding the employer
liable. Gupta v. Fla. Board of Regents, 212 F.3d 571, 582 (11th Cir. 2000).
“It is a bedrock principle that not all objectionable conduct or language
amounts to discrimination under Title VII.” Jones v. UPS Ground Freight, 683
F.3d 1283, 1297 (11th Cir. 2012) (quotation marks omitted). “Therefore, only
conduct that is based on a protected category . . . may be considered in a hostile
work environment analysis.” Id. (emphasis added) (quotation marks omitted); see
also Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 809 n.3 (11th Cir.
2010) (“[T]he Courts of Appeals have uniformly observed that Title VII is not a
civility code, and that harassment must discriminate on the basis of a protected
characteristic in order to be actionable.”). “Innocuous statements or conduct, or
boorish ones that do not relate to the [age or gender] of the actor or of the offended
party (the plaintiff), are not counted.” Jones, 683 F.3d at 1297.
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The plaintiffs argue on appeal that the district court erred by granting
summary judgment in favor of the VA with respect to their hostile work
environment claim. The plaintiffs broadly cite to several instances in which
pharmacy management behaved rudely and made comments that plaintiffs
considered offensive, belittling, and humiliating, most of which involved PACT
implementation and union representation. The plaintiffs also cite testimony of
other witnesses who believed that the plaintiffs were treated poorly.
The plaintiffs’ evidence does not amount to an actionable hostile work
environment claim. The plaintiffs’ naked assertion that they have been subjected
to discriminatory hostile treatment is not sufficient to constitute a hostile work
environment. Rather, the plaintiffs must show the hostile treatment was based on
their protected status. Jones, 683 F.3d at 1297. Despite the voluminous incidents
of pharmacy management’s alleged hostility, pharmacy management’s comments
were never related to the plaintiffs’ protected characteristics, and there is no
evidence that their alleged hostility was in any way motivated by a discriminatory
animus regarding the plaintiffs’ age or gender. This alone is fatal to the plaintiffs’
claim. See id; Reeves, 594 F.3d at 809 n.3.
Additionally, pharmacy management’s comments, though frequently
unprofessional, were not “filled with intimidation and ridicule that was sufficiently
severe or pervasive to alter [the plaintiffs’] working conditions.” Gowski, 682
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F.3d at 1313. Rather, the plaintiffs’ struggles exemplify “the ordinary tribulations
of the workplace, which . . . do[es] not constitute actionable . . . harassment.”
Gupta, 212 F.3d at 586 (quotation marks omitted). Accordingly, the district court
properly granted summary judgment in favor of the VA with respect to the
plaintiffs’ hostile work environment claim.
IV. CONCLUSION
In light of the foregoing, we affirm the district court’s order granting
summary judgment in favor of the VA on all of the plaintiffs’ claims.
AFFIRMED.
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