Noris Babb v. Secretary, Department of Veterans Affairs ( 2021 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-16492
________________________
D.C. Docket No. 8:14-cv-01732-VMC-TBM
NORIS BABB,
Plaintiff - Appellant,
versus
SECRETARY, DEPARTMENT OF VETERANS AFFAIRS,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(April 1, 2021)
ON PETITION FOR REHEARING
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Before NEWSOM, ED CARNES, and SILER,∗ Circuit Judges.
NEWSOM, Circuit Judge:
We return, once again, to the case of Dr. Noris Babb. Babb is a clinical
pharmacist who works at a VA medical center in Florida. Years ago now, she sued
the Secretary of the Department of Veterans Affairs based on claims arising out of
her employment at the hospital. In particular, Babb asserted claims for (1) gender
discrimination, (2) age discrimination, (3) retaliation for engaging in activities
protected by Title VII, and (4) hostile work environment. The Secretary prevailed
across the board at summary judgment. We reversed and remanded on Babb’s
gender-discrimination claim but affirmed on everything else, although we noted
that we might have ruled in Babb’s favor on her age-discrimination and retaliation
claims if our decision in Trask v. Secretary, Department of Veterans Affairs, 822
F.3d 1179 (11th Cir. 2016), hadn’t stood in the way.
The Supreme Court granted certiorari on Babb’s age-discrimination claim
and reversed. So, on remand back to us, we reversed and remanded on that claim
and (again) on the gender-discrimination claim, but we affirmed (again) on the
Title VII retaliation and hostile-work-environment claims.
∗Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by
designation.
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Babb petitioned for rehearing on the latter two issues. She argued (1) that
the Supreme Court’s decision in her case also undermined our Trask-based
rejection of her Title VII retaliation claim and (2) that an intervening decision of
ours, Monaghan v. Worldpay US, Inc., 955 F.3d 855 (11th Cir. 2020), gutted the
precedent on which we had relied in rejecting her hostile-work-environment claim.
We granted rehearing.
At this juncture, we confront two main issues. The first is how to handle
Babb’s Title VII retaliation claim. She argues that because the provision of the
Age Discrimination in Employment Act (ADEA) that the Supreme Court
interpreted in her case is materially identical to the pertinent provision in Title VII,
the Supreme Court’s analysis of the former dictates our reading of the latter. As
far as the text goes, the government agrees with Babb, but it nonetheless insists
that our decision in Trask compels us, once again, to rule against her. The second
issue is whether our decision in Monaghan requires reversal on Babb’s hostile-
work-environment claim.
We hold that the Supreme Court’s decision in Babb’s case undermined
Trask to the point of abrogation and that the standard that the Court articulated
there now controls cases arising under Title VII’s nearly identical text. We further
hold that Monaghan clarified our law governing what we’ll call “retaliatory-
hostile-work-environment” claims, and that the standard for such claims is, as we
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said there, the less onerous “might have dissuaded a reasonable worker” test
articulated in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53(2006), and Crawford v. Carroll, 529 F.3d 961 (11th Cir. 2008), rather than the
more stringent “severe or pervasive” test found in Gowski v. Peake, 682 F.3d 1299(11th Cir. 2012).
We VACATE the district court’s grant of summary judgment on Babb’s
Title VII retaliation and hostile-work-environment claims and REMAND for the
district court to consider those claims under the proper standards.
I
A
Born in 1960, Noris Babb is now a clinical pharmacist at a VA hospital in
Florida, where she has worked since 2004.1 In 2010, the VA instituted a new
initiative governing promotions for pharmacists who, like Babb, spend at least 25%
of their time engaged in “disease state management”—i.e., seeing patients and
1
The Supreme Court, this Court, and the district court have canvassed the facts here in some
detail. See Babb v. Wilkie, 140 S. Ct. 1168, 1171–72 (2020); Babb v. Sec’y, Dep’t of Veterans
Affairs, 743 F. App’x 280, 283–86 (11th Cir. 2018); Babb v. McDonald, No. 8:14-CV-1732-T-
33TBM, 2016 WL 4441652, at *1–6 (M.D. Fla. Aug. 23, 2016).
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writing prescriptions for them without a physician’s sign-off. Babb sought a
promotion.
Things didn’t go smoothly with the promotions program. Specifically, Babb
and some of her co-workers thought that the VA implemented its initiative in ways
that discriminated on the basis of age and gender. Two of Babb’s colleagues filed
complaints with the Equal Employment Opportunity Commission (EEOC) in 2011.
Babb sent emails and eventually gave a deposition in support of her colleagues’
complaints, and she filed her own EEOC complaint in May 2013. That’s what
eventually led her to this Court and, then, to the Supreme Court. See Babb v.
Sec’y, Dep’t of Veterans Affairs, 743 F. App’x 280, 283–84 (11th Cir. 2018).
As relevant here, Babb’s ADEA claim and her Title VII retaliation claim
both largely hinge on the same facts, which the Supreme Court concisely
summarized as follows:
First, in 2013, the VA took away Babb’s “advanced scope”
designation, which had made her eligible for promotion on the Federal
Government’s General Scale from a GS-12 to a GS-13. Second,
during this same time period, she was denied training opportunities
and was passed over for positions in the hospital’s anticoagulation
clinic. Third, in 2014, she was placed in a new position, and while her
grade was raised to GS-13, her holiday pay was reduced. All these
actions, she maintains, involved age discrimination, and in support of
her claims, she alleges, among other things, that supervisors made a
variety of age-related comments.
Babb v. Wilkie, 140 S. Ct. 1168, 1171 (2020) (footnote omitted). Some of the
“comments” to which the Supreme Court referred were both age- and gender-
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related. For example, a pharmacy administrator described “Magic Mike” as a
“middle-aged woman movie” in a conversation with Babb. Babb, 743 F. App’x at
291. And, while the origins of a vulgar email were under investigation, the same
individual called Babb a “mow mow,” which Babb took as a “grandma comment.”
Id.B
In 2014, Babb sued the Secretary of the Department of Veterans Affairs.
She alleged that she had been the victim of gender and age discrimination, suffered
retaliation based on protected EEOC activity, and endured a hostile work
environment. For those reasons, she said, the VA had violated Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Age Discrimination in
Employment Act of 1967, 29 U.S.C. §§ 621 et seq.
The district court granted the Secretary summary judgment in full. We
reversed and remanded on Babb’s gender-discrimination claim but affirmed on her
ADEA, Title VII retaliation, and hostile-work-environment claims. See Babb, 743
F. App’x at 283. Along the way, we noted that if not for circuit precedent, we
might have ruled in Babb’s favor on both the ADEA and Title VII retaliation
claims. See id. at 287, 290; id. at 288, 290 (describing Trask v. Sec’y, Dep’t of
Veterans Affairs, 822 F.3d 1179 (11th Cir. 2016), as questionable-but-controlling
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authority)). But, we explained, under the prior-panel-precedent rule we didn’t
have that option. Id. at 288, 290.
So Babb took her case to a court with more options. The Supreme Court
granted certiorari on just one question: Whether the federal-sector provision of the
ADEA required Babb to prove that age was a but-for cause of a challenged
personnel action. Babb v. Wilkie, 139 S. Ct. 2775 (2019) (mem.).
The Court answered that question “no.” Babb, 140 S. Ct. at 1178. “The
plain meaning of the statutory text,” the Court held, “shows that age need not be a
but-for cause of an employment decision in order for there to be a violation of
§ 633a(a).” Id. at 1172. In so holding, the Court zeroed in on the key statutory
language: “[P]ersonnel actions . . . shall be made free from any discrimination
based on age . . . .” 29 U.S.C. § 633a(a). The Court explained that § 633a(a)’s
terms required a plaintiff to show only that “age discrimination plays any part in
the way a decision is made[.]” Id. at 1174 (emphasis added).
Back to us Babb’s case came. On remand, we (1) reversed and remanded on
the Title VII gender-discrimination claim, as we had done the first go around, (2)
reversed and remanded on Babb’s age-discrimination claim, in accordance with the
Supreme Court’s decision, and (3) affirmed on the remaining issues that the Court
hadn’t directly addressed—including the Title VII retaliation claim and the hostile-
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work-environment claim. Babb v. Sec’y, Dep’t of Veterans Affairs, 802 F. App’x
548 (11th Cir. 2020) (per curiam).
Babb petitioned for rehearing on her Title VII retaliation and hostile-work-
environment claims. She argued that the Supreme Court’s decision fatally
undermined our holding on her Title VII retaliation claim and that an intervening
decision of this Court had the same effect on our treatment of her hostile-work-
environment claim. We granted that petition, solicited supplemental briefs from
the parties, and held oral argument.
II
We first ask what the Supreme Court’s decision in Babb’s case means for
her Title VII retaliation claim—which, in turn, requires us to ask whether the
Court’s decision undermined to the point of abrogation Trask’s Title VII holding,
on which we earlier relied. Because the relevant provisions of the ADEA and Title
VII are materially identical, we hold that the Supreme Court’s analysis of the
former controls the latter as well. Second, we ask what standard governs Babb’s
hostile-work-environment claim. We conclude, in accordance with our decision in
Monaghan, that Babb’s claim should be evaluated under the “might have
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dissuaded a reasonable worker” standard, rather than the “severe or pervasive”
standard that we applied on her first appeal.
A
We divide our analysis of Babb’s Title VII retaliation claim into two parts.
First, we will determine whether the Supreme Court’s decision in Babb’s case,
which construed a similar provision of the ADEA, is sufficiently on-point to free
us of our allegiance to Trask. Second, we will consider the government’s
argument that Babb can’t win even under the Supreme Court’s more lenient
standard.
1
In determining what the Supreme Court’s decision portends for Babb’s Title
VII retaliation claim, we begin—as always—with the statutory text. Because Babb
is employed by the VA, we look to Title VII’s federal-sector provision. 2 It says, in
relevant part, “All personnel actions affecting employees . . . in executive agencies
2
A brief word about nomenclature. Throughout this opinion, we’ll refer to the “federal-sector
provisions” of both the ADEA and Title VII, i.e., 29 U.S.C. § 633 and 42 U.S.C. § 2000e-16, and
at times we do so in reference to subsection (a) of each provision because they both contain the
critical statutory language common to the Supreme Court’s decision in Babb and our decision
here. We also note that because the text that is now codified (as amended) at 42 U.S.C. § 2000e-
16(a) was enacted as § 717 of Title VII, some of the earlier cases refer to it as such. See Porter
v. Adams, 639 F.2d 273, 274 (5th Cir. Unit A Mar. 1981).
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. . . shall be made free from any discrimination based on race, color, religion, sex,
or national origin.” 42 U.S.C. § 2000e-16(a). 3
In Babb, the Supreme Court considered the ADEA’s nearly identical federal-
sector provision, which states that “[a]ll personnel actions affecting employees . . .
who are at least 40 years of age . . . shall be made free from any discrimination
based on age.” 29 U.S.C. § 633a(a). As juxtaposing the two texts makes clear,
where the ADEA’s federal-sector provision commands that personnel actions “be
made free from any discrimination based on” age, Title VII’s federal-sector
provision uses the exact same phrasing to bar discrimination based on other
characteristics.
In Babb, the Supreme Court held 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. 140 S. Ct. at 1174.
3
One might note that this provision of Title VII doesn’t use the word “retaliation.” We’ll have
more to say on this later, but for present purposes we offer two observations. First, Babb
postdated the Court’s determination that “discrimination,” as used in 29 U.S.C. § 633a(a),
includes retaliation. See Gomez-Perez v. Potter, 553 U.S. 474, 488 (2008) (“[R]etaliation for
complaining about age discrimination is ‘discrimination based on age[.]’ ”). Second, the
government doesn’t dispute that retaliation claims brought under Title VII against federal
agencies are cognizable under § 2000e-16(a), and, to the contrary, acknowledges that in light of
Gomez-Perez, “the text of Section 2000e-16(a) would similarly prohibit retaliation based on
protected activity such as filing or supporting complaints of discrimination under Title VII.”
Supp. Br. of Appellee at 10–11. Although some have already reached that conclusion, see Komis
v. Sec’y of United States Dep’t of Labor, 918 F.3d 289, 295 (3d Cir. 2019), the Supreme Court
has only “assume[d] without deciding that it is unlawful for a federal agency to retaliate against
a civil servant for complaining of discrimination,” Green v. Brennan, 136 S. Ct. 1769, 1775 n.1
(2016). But see id. at 1792 n.2 (Thomas, J., dissenting) (“Title VII does not provide federal
employees with a cause of action for retaliation.”).
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In so holding, the Court initially examined each of § 633a(a)’s constituent terms.
First, the Court briefly defined “personnel actions.” Pointing to the Civil Service
Reform Act of 1978, the Court assumed that the term “personnel actions” in
§ 633a(a) included “most employment-related decisions, such as appointment,
promotion, work assignment, compensation, and performance reviews.” Id. (citing
5 U.S.C. § 2302(a)(2)). Section 633a(a), the Court emphasized, commands that
such “personnel actions” “be made ‘free from’ discrimination.” Id. As for “free
from,” the Court took it to mean “‘untainted’ by.” For good measure, the Court
observed, Congress’s placement of the word “any”—as in, “made free from any
discrimination”—reinforced the purity requirement. Id.; see also id. n.2. The term
“discrimination,” the Court assumed, carries “its normal definition, which is
differential treatment.” Id. (quotation marks omitted). Two terms remained.
“Based on” generally signifies “a but for-causal relationship.” Id. (quoting Safeco
Ins. Co. of America v. Burr, 551 U.S. 47, 63 (2007)). Finally, “shall be made,” the
Court explained, expresses “the imperative mood,” and thereby emphasizes the
duty of making—that is, rendering or producing—personnel actions without “the
taint” of discrimination based on age. Id.Having dissected the statutory terms, the Court then explained the
relationship among them, giving special emphasis to two “matters of syntax.” Id.First, it observed that the adjectival phrase “based on age” “modifies the noun
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‘discrimination,’” not “personnel actions.” Id. “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.” Id. The second syntactical matter
involved the adverbial phrase “free from any discrimination.” Because that phrase
modifies the verb “made,” it tells us “how a personnel action must be ‘made.’” Id.Accordingly, “[i]f age discrimination plays any part in the way a decision is
made,” then that decision necessarily “is not made in a way that is untainted by
such discrimination.” Id. at 1174. Add it all up, and the takeaway is this: “[T]he
statute does not require proof that an employment decision would have turned out
differently if age had not been taken into account”—i.e., does not require that age
discrimination be the but-for cause of an adverse personnel decision. Id.
Babb “all but prewrote our decision today.” Allen v. Cooper, 140 S. Ct. 994,
1007 (2020). Because the relevant statutory provisions of the ADEA and Title VII
are essentially identical, the Babb Court’s interpretation of the ADEA’s phrase
“personnel actions . . . shall be made free from any discrimination based on” must
control here, too. We agree with Justice Thomas’s observation in dissent in Babb:
“Because § 633a(a)’s language also appears in the federal-sector provision of Title
VII, 42 U.S.C. § 2000e–16(a), the Court’s rule presumably applies to claims
alleging discrimination based on sex, race, religion, color, and national origin as
well.” Babb, 140 S. Ct. at 1181 (Thomas, J., dissenting). Even as a general matter,
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“when statutory language is obviously transplanted from . . . other legislation, we
have reason to think it brings the old soil with it.” United States v. Davis, 139 S.
Ct. 2319, 2331 (2019) (quotation marks omitted). And here, in particular, we
know that “[t]he ADEA federal-sector provision was patterned ‘directly after’ Title
VII’s federal-sector discrimination ban.” Gomez-Perez, 553 U.S. at 487 (quoting
Lehman v. Nakshian, 453 U.S. 156, 167 n.15 (1981)). Accordingly, the Supreme
Court’s understanding of the one’s language necessarily guides our reading of the
other’s.4
As a matter of plain text, the government agrees: “Because the text of [the
relevant provisions of Title VII and the ADEA are] materially identical, the
government agrees that the Supreme Court’s textual analysis of the causation
standard in Babb should apply to federal-sector Title VII retaliation claims.” Resp.
to Pet. at 2; see Supp. Br. of Appellee at 10–12 (similar). Even so, the government
insists that our decision in Trask, whose interpretation of the ADEA the Supreme
Court abrogated, continues to control Babb’s Title VII retaliation claim. So the
4
That isn’t to say that Title VII and the ADEA must always and everywhere be treated as one
and the same. The Supreme Court has previously held that “textual differences between Title
VII and the ADEA” foreclosed the extension of Title VII precedents to the ADEA context, for
instance, and more generally warned that its “approach to interpreting the ADEA in light of Title
VII has not been uniform.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175 n.2 (2009). It
seems to us that some caution is particularly warranted when the interpretive vector runs the
other way, i.e., from the ADEA context to Title VII. But in this case, statutory text and context
overwhelmingly counsel that we follow Babb’s interpretation of materially identical statutory
language.
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real question isn’t about the right reading of the text. Instead, it’s about whether
Trask still requires us to follow the wrong one.
It doesn’t. Because Babb undermined Trask “to the point of abrogation,”
see United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008), Trask no longer
binds this panel. Recall that when Babb’s case first came to us, we acknowledged
that “[i]f we were writing on a clean slate, we might well [have] agree[d]” with
her. Babb, 743 F. App’x at 287. But, we concluded, Trask bound us to reject her
ADEA and Title VII retaliation claims. See id. at 288 (“Under the prior-panel-
precedent rule, Trask is binding on us.”) (ADEA); id. at 290 (“Again, though, our
earlier decision in Trask stands in Babb’s way.”) (Title VII retaliation). The
government says that’s still true of the latter claim.
Having already done wrong once when we knew right, must we really do so
again? Yes, the government says, because the Supreme Court granted certiorari
only on the ADEA question, so its holding was likewise limited. And because the
Supreme Court didn’t overrule Trask insofar as it interpreted Title VII, the
argument goes, the prior-panel-precedent rule compels us to continue to follow it
still. We disagree.
To start, the limits of the cert grant don’t decide this issue. The Supreme
Court “has said again and again and again that [a cert] denial has no legal
significance whatever bearing on the merits of the claim.” Ramos v. Louisiana,
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140 S. Ct. 1390, 1404 n.56 (2020) (quotation marks omitted); see also United
States v. Carver, 260 U.S. 482, 490 (1923) (“The denial of a writ of certiorari
imports no expression of opinion upon the merits of the case.”). As the old Fifth
Circuit explained, the denial of certiorari means only “that, for whatever reasons,
there were not four members of the Court who wished to consider the issues
presented for review.” Howell v. Jones, 516 F.2d 53, 56 (5th Cir. 1975). And as it
is with cases, so it must be with questions. See 16B Charles Alan Wright & Arthur
R. Miller, Federal Practice & Procedure § 4004.3 (3d ed. 2020) (“Presumably the
limited grant operates as a denial of review as to other questions, . . . and as any
other denial imports no view on the merits of the issues denied review.”). The
Court’s decision to grant cert on one question doesn’t implicitly answer any others
presented.
So, are we right back where we were when we last saw Babb’s case? That’s
the government’s position—now, as then, the prior-panel-precedent rule requires
us to affirm. It’s true, of course, that “even where it has been weakened, but not
overruled, by a Supreme Court decision, prior panel precedent must be followed.”
United States v. Fred Smith, 122 F.3d 1355, 1359 (11th Cir. 1997). That being
said, if an earlier decision of ours flatly conflicts with an intervening decision of
the Supreme Court, then our duty to vertical precedent trumps our duty to
horizontal precedent. See In re Provenzano, 215 F.3d 1233, 1235 (11th Cir. 2000)
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(“We would, of course, not only be authorized but also required to depart from
[our prior decision] if an intervening Supreme Court decision actually overruled or
conflicted with it.”). So it is here.
United States v. Archer, 531 F.3d 1347 (11th Cir. 2008), is illustrative. That
case spawned two decisions from this Court on the meaning of the term “crime of
violence” in the Sentencing Guidelines and “violent felony” in the Armed Career
Criminal Act. When the case first came before us, our existing precedent, United
States v. Gilbert, 138 F.3d 1371 (11th Cir. 1998), required us to hold that Archer’s
offense—carrying a concealed weapon in violation of Florida law—counted as a
“crime of violence” under the Guidelines. United States v. Archer, 243 F. App’x
564, 566 (11th Cir. 2007). Then, though, came the Supreme Court’s decision in
Begay v. United States, which held that a DUI isn’t a “violent felony” under
ACCA. 553 U.S. 137, 139 (2008). In Begay, the Court reasoned that while the
violent felonies enumerated in the statute—i.e., “burglary, arson, extortion, and
crimes involving the use of explosives”—usually “involve[d] purposeful, violent,
and aggressive conduct,” DUIs didn’t, and so a DUI couldn’t be a “violent felony.”
Id. at 144–45. Not long thereafter, the Supreme Court granted cert in Archer’s
case, vacated our first decision, and remanded for reconsideration in light of
Begay.
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So, when Archer’s case returned to us, we had to decide whether Begay had
undone Gilbert. The second time around, the panel examined Begay’s rationale
and found that Gilbert had been “undermined to the point of abrogation” because
crime-of-violence caselaw and violent-felony caselaw ran on parallel tracks.
Archer, 531 F.3d at 1352. ACCA’s definition of “violent felony” and the
Sentencing Guidelines’ definition of “crime of violence,” the panel noted, were
“virtually identical.” Id. (quotation marks omitted). Thus, Begay’s reasoning on
the one was “clearly on point” for the other. Id. And applying that reasoning to
the case before it, the panel concluded that “[c]arrying a concealed weapon”—like
driving under the influence—didn’t necessarily “involve the aggressive, violent
conduct that the Supreme Court noted is inherent in the enumerated crimes,” and
as such, could no longer be treated as a “crime of violence” under the Guidelines.
Id. at 1351. That doomed Gilbert’s contrary holding.
Just so here. In the same way that “violent felony” and “crime of violence”
are functionally identical concepts, the two textual provisions here—one in the
ADEA’s federal-sector provision and one in Title VII’s—are, as we have already
explained, “[a]lmost exactly like” each other. Babb, 743 F. App’x at 290. The
Supreme Court’s decision in Babb explained that for the ADEA, the “plain
meaning of the critical statutory language (‘made free from any discrimination
based on age’) demands that personnel actions be untainted by any consideration
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of age.” 140 S. Ct. at 1171. Replace “age” with Title VII’s set of protected
characteristics, and everything else follows—plug and chug. And that displaces
Trask’s holding that the federal-sector retaliation provision requires but-for
causation.
In an effort to salvage Trask, the government comes close to suggesting that
its unclear holding can’t be “undermined to the point of abrogation” precisely
because it’s unclear. In particular, the government argues that because Trask
doesn’t explicitly locate Title VII’s cause of action for retaliation in the federal-
sector provision, we shouldn’t assume that Babb’s logic and language are on-point.
To that end, the government notes that in the past, some “appellate courts had held
that retaliation claims were cognizable against federal employers under Title VII
through the incorporation of remedies for violations of the private-sector [anti-
retaliation] provision, Section 2000e-3(a).” Supp. Br. of Appellee at 9; see also,
e.g., Ayon v. Sampson, 547 F.2d 446, 449–50 (9th Cir. 1976); Hale v. Marsh, 808
F.2d 616, 619 (7th Cir. 1986). And, the argument goes, if the federal-sector’s
incorporation of certain remedial provisions concerning retaliation also
incorporates § 2000e-3(a)’s protection from retaliation, then with § 2000e-3(a)’s
protection comes its but-for causation standard. Cf. Univ. of Texas Sw. Med. Ctr.
v. Nassar, 570 U.S. 338, 362 (2013) (“[A] plaintiff making a retaliation claim
under § 2000e–3(a) must establish that his or her protected activity was a but-for
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cause of the alleged adverse action by the employer.”).5 The government asserts
that because Trask relied on Nassar’s reading of § 2000e–3(a) in reaching its
holding on the causation standard for the retaliation claim it faced—one brought by
a federal employee—the question whether our holding stands post-Babb is “not
entirely free from doubt.” Supp. Br. of Appellee at 10. If what we’ll call the
government’s “incorporationist” theory had been our own, we might share the
government’s doubt. But it hasn’t, and so we don’t.
This Court long ago construed § 2000e-16(a)’s prohibition of “any
discrimination” to directly “bar[] reprisals against federal employees who file
charges of discrimination.” Porter v. Adams, 639 F.2d 273, 277–78 (5th Cir. Unit
A Mar. 1981). 6 That is, we held that “discrimination,” as used in Title VII’s
5
To explain a bit more: Section 2000e-3(a) is Title VII’s private-sector anti-retaliation
provision, and the “incorporationist” theory to which the government refers hinges on that
provision—and its but-for causation standard—being read into § 2000e-16 through subsection
(d). Subsection (d), in turn, explains that civil actions arising under the federal-sector provision
are governed by § 2000e-5(f)–(k), and those provisions address courts’ remedial powers for
things that include violations of § 2000e-3(a). See Ayon, 547 F.2d at 449–50. A related-but-
distinct argument was noted by the Supreme Court in Gomez-Perez. The Court explained there
that while “the federal-sector provision of Title VII does not incorporate § 2000e–3(a), the
federal-sector provision of Title VII does incorporate a remedial provision, § 2000e–5(g)(2)(A),
that authorizes relief for a violation of § 2000e–3(a).” 553 U.S. 474, 488 n.4 (2008). Although
the Court noted that the petitioner in that case had argued that the scope of the remedial
provision meant that the Court should infer a congressional intention to prohibit retaliation in
§ 2000e-16(a)’s bar on “discrimination,” it didn’t pass judgment on that argument, concluding
only that the issue was “not before us in this case.” Id.
6
See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc) (holding that
this Court is bound by the decisions of the former Fifth Circuit handed down by the close of
business on September 30, 1981); id. at 1211 n.8 (explaining that “[a] decision of either
administrative unit was binding on both units and became the law of the old Fifth”); cf. Stein v.
Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir. 1982) (“Unit A en banc decisions and Unit A
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federal-sector provision, by its own terms includes retaliation. See Canino v. U.S.
E.E.O.C., 707 F.2d 468, 472 (11th Cir. 1983). In much the same way that the
Gomez-Perez Court held that “retaliation for complaining about age discrimination
is ‘discrimination based on age,’” 553 U.S. at 488, we held that retaliation for
complaining about prohibited forms of discrimination is itself “discrimination”
within the meaning of § 2000e-16(a), see Porter, 639 F.3d at 278. At least in this
Circuit, then, the cause of action came not through incorporation of the concept of
“retaliation” in § 2000e-3(a), but rather through interpretation of the word
“discrimination” in 2000e-16(a).7
We recognize that (like many judicial opinions) Trask wasn’t perfectly
pellucid in its every jot and tittle. And we take the government’s point that Trask’s
references to Title VII’s private-sector anti-retaliation provision and Nassar seem,
at first blush, an awkward fit with a claim of retaliation brought under § 2000e-
16(a). See 822 F.3d at 1194–96. That being said, Trask didn’t purport to depart
from our earlier decisions, and we’re loathe to find conflict where reconciliation is
panel decisions after October 1, 1981, are only persuasive, however, not binding precedent in the
Eleventh Circuit.” (emphasis added)).
7
Decisions from other circuits reflect this understanding of Porter. See Baqir v. Principi, 434
F.3d 733, 747 n.16 (4th Cir. 2006) (describing Porter as having “interpret[ed the] broad language
of section 717 of Title VII to out-law reprisals” and contrasting that with the incorporationist
approach); Forman v. Small, 271 F.3d 285, 297–98 (D.C. Cir. 2001) (relying on Porter’s
reasoning to hold that the ADEA’s federal-sector provision “by its own terms alone prohibits”
retaliation for complaining of age discrimination because such retaliation “is age
discrimination”).
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possible. Cf. United States v. Hogan, 986 F.2d 1364, 1369 (11th Cir. 1993) (“A
panel of this Court is obligated, if at all possible, to distill from apparently
conflicting prior panel decisions a basis of reconciliation and to apply that
reconciled rule.”). Moreover, and in any event, there’s some reason to think that
Trask implicitly relied on our earlier decisions. It was, after all, too late to have
adopted the incorporationist approach—the old Fifth Circuit having already
charted a different course—and sovereign immunity would have prevented the
straightforward application of the private-sector anti-retaliation provision to the
United States. Cf. Gomez-Perez, 553 U.S. at 491. Accordingly, we think that
Trask is best read as having relied—per Porter—on a retaliation-based gloss on the
word “discrimination” in § 2000e-16(a). And Babb’s analysis of the causation
standard for “discrimination” claims brought under the ADEA’s federal-sector
provision stripped off Trask’s gloss on the same causation standard for retaliation
claims brought under § 2000e-16(a).
* * *
To sum up: The question is whether Babb’s analysis of the ADEA
“undermined [Trask’s Title VII holding] to the point of abrogation.” Archer, 531
F.3d at 1352. Because Congress chose to enact twin statutory provisions, the
answer is yes.
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2
As a fallback, the government says that whatever Babb might portend for
another case, Babb still can’t win this one. On the government’s theory, Babb’s
claim founders on McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and
the VA’s host of non-pretextual reasons for its adverse employment decisions.
And, says the government, Babb must show that her protected activity “was a but-
for cause of some differential treatment that played a part in the decision made.”
Supp. Br. of Appellee at 13. Babb can’t do that, the government asserts, because,
as we held last time, she “has failed to demonstrate that the Secretary’s proffered
nondiscriminatory reasons for making each employment decision were pretextual.”
Babb, 743 F. App’x at 291. That was enough to sink Babb’s case the first go-
round and, the government says, it still is.
But it’s not. In the course of rejecting one of the government’s arguments
before it in Babb, the Supreme Court specifically explained that its ruling did “not
mean that age must be a but-for cause of the ultimate outcome.” 140 S. Ct. at 1174
n.3. Rather, “[i]f, at the time when the decision is actually made, age plays a part,
then the decision is not made ‘free from’ age discrimination.” Id. (emphasis
added). Indeed, the Court expressly clarified that “age must be the but-for cause of
differential treatment, not that age must be a but-for cause of the ultimate
decision.” Id. at 1174; accord, e.g., id. at 1171 (“The plain meaning of the critical
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statutory language (‘made free from any discrimination based on age’) demands
that personnel actions be untainted by any consideration of age.”). We can’t
square the government’s backstop argument with the Babb Court’s reasoning:
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. If age discrimination plays any
part in the way a decision is made, then the decision is not made in a
way that is untainted by such discrimination.
Id. at 1173–74.
So, even when there are non-pretextual reasons for an adverse employment
decision—as the government says there are here—the presence of those reasons
doesn’t cancel out the presence, and the taint, of discriminatory considerations. Cf.
id. at 1173 (“[A]ge 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.”). Without quite saying as much, then, it seems that the Supreme Court
accepted Babb’s argument “that the District Court should not have used the
McDonnell Douglas framework.” Id. at 1172.
One of the hypotheticals that the Supreme Court explored helps to show
what this means in practice:
Suppose that a decision-maker is trying to decide whether to promote
employee A, who is 35 years old, or employee B, who is 55. Under
the employer’s policy, candidates for promotion are first given
numerical scores based on non-discriminatory factors. Candidates
over the age of 40 are then docked five points, and the employee with
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the highest score is promoted. Based on the non-discriminatory
factors, employee A (the 35-year-old) is given a score of 90, and
employee B (the 55-year-old) gets a score of 85. But employee B is
then docked 5 points because of age and thus ends up with a final
score of 80. The decision-maker looks at the candidates’ final scores
and, seeing that employee A has the higher score, promotes employee
A.
Babb, 140 S. Ct. at 1174.
Now it’s obvious that in this hypo, the differential treatment based on age
made no difference to the outcome. Even if employee B hadn’t lost five points for
being over 40, she still would have had the lower score. So age wasn’t a but-for
cause of her losing out. But no matter—age discrimination played a role in the
decision-making because employee B was treated differently based on age when
the employer docked five points from her total because she was 55. Under
§ 633a(a)’s “free from any discrimination” standard, that’s enough to hold the
employer liable. Id.
Because § 2000e-16(a)’s language is the same, so is the logic. If a decision
is not “made free from any discrimination based on” that which § 2000e-16(a)
protects, then an employer may be held liable for that discrimination regardless of
whether that discrimination shifted the ultimate outcome. So long as the protected
characteristic is “the but-for cause of differential treatment,” then it doesn’t matter
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(for purposes of liability) that the protected characteristic isn’t “a but-for cause of
the ultimate decision.” Id. 8
* * *
The Supreme Court’s textual analysis of the ADEA’s parallel provision
controls our reading of Title VII here, and we must follow it rather than our prior
decision in Trask. We therefore vacate the grant of summary judgment and
remand for the district court to address Babb’s Title VII retaliation claim under the
proper standard.
B
Babb’s second request—concerning her hostile-work-environment claim—
also requires us to address the reach of Supreme Court precedent, as well as the
intricacies of our own.
8
A closing note—we emphasize, as the Supreme Court did, that the but-for causation of a given
personnel action remains “important in determining the appropriate remedy.” Babb, 140 S. Ct. at
1177. The relief that a party requests must redress the injury that the party alleges. Id. So,
parties who can “demonstrate only that they were subjected to unequal consideration cannot
obtain reinstatement, backpay, compensatory damages, or other forms of relief related to the end
result of an employment decision.” Id. The law seeks to make injured parties whole—to do
more is as much error as to do less. See id. at 1178. To match the relief given to the injury
proven, a court considering a case in which a protected characteristic is the but-for cause of
differential treatment in an employment decision but not a but-for cause of that ultimate decision
should begin by considering “injunctive or other forward-looking relief.” Id. Of course, like the
Supreme Court, we recognize that “what relief, if any, is appropriate in the present case is a
matter for the District Court to decide in the first instance . . . .” Id.
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We begin at the beginning, with Babb’s complaint—which, at least as it
concerned the allegedly hostile work environment, was not a model of clarity.
Everything about Babb’s hostile-work-environment claim(s?) appeared in a single
line of her complaint. Rather than distinguishing between a hostile-work-
environment claim based on age and sex and another such claim based on
retaliation, she just said that she was suing “for [a] hostile work environment based
upon sex, age, and retaliation.” Initially, that didn’t seem like a very big deal,
because the standards governing both kinds of hostile-work-environment claims
appeared to be the same. But as a result of an intervening clarification of the law,
we now know that’s not true.
Back when the district court first faced this case, Babb’s hybrid hostile-
work-environment claim didn’t raise any red flags. At that time, the case on which
the district court relied—and the main case Babb argued on appeal—was Gowski v.
Peake, 682 F.3d 1299 (11th Cir. 2012).
Gowski did a couple of things that matter for present purposes. First, it
broke new ground in this Circuit by recognizing a “retaliatory hostile work
environment claim.” Id. at 1311–12. Notably, it recognized that cause of action
without mentioning § 2000e-16(a), even though the claim there (like the one here)
was brought by VA employees against the Secretary of the VA, see id. at 1304,
and it principally relied on a First Circuit decision brought under the private-sector
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anti-retaliation provision, see id. at 1312 (citing Noviello v. City of Bos., 398 F.3d
76, 89–90 (1st Cir. 2005)). Second, Gowski said that the standard for evaluating
such claims was the same as for the other hostile-work-environment claims—i.e.,
whether a reasonable jury could find that “the actions complained of were
sufficiently severe or pervasive to alter the terms and conditions of employment,
thus constituting an adverse employment action.” Id. at 1312. So, post-Gowski,
whatever the stripe of hostile-work-environment claim, the severe-or-pervasive
standard governed. Or so everyone thought.
The district court in this case determined that Babb’s claim, however
construed, fell short of the severe-or-pervasive threshold. The court explained that
the Gowski standard applied to both a claim alleging a “hostile work environment
based on age or gender” and a “retaliatory hostile work environment claim,” and it
adjudicated—and rejected—both claims (or possible versions thereof) under that
standard. Babb, 2016 WL 4441652 at *16. What Babb complained about, the
court held, was no more than “the ordinary tribulations of the workplace” and that
simply didn’t constitute actionable harassment. Id. at *17.
On appeal, Babb likewise argued everything in Gowski terms—she accepted
the severe-or-pervasive standard and just disputed the district court’s determination
that she didn’t meet it. You make a Gowski argument, and you’re liable to end up
with a Gowski holding.
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Babb did—and we affirmed the district court’s rejection of Babb’s claim
under Gowski’s severe-or-pervasive standard. Babb, 743 F. App’x at 292.
Following remand from the Supreme Court, we did the same thing for the same
reason. Babb v. Sec’y, Dep’t of Veterans Affairs, 802 F. App’x 548, 548 (11th Cir.
2020).
But here’s the wrinkle. Just weeks before we issued our (now-vacated)
order on remand, this Court decided Monaghan v. Worldpay US, Inc., 955 F.3d
855 (11th Cir. 2020)—which, as we will explain, effectively overruled Gowski
insofar as it applied to retaliatory-hostile-work-environment claims. To understand
exactly what Monaghan did to Gowski—and how—it helps to start with
Monaghan’s theoretical framework.
First, the Monaghan Court took pains to separate out the various sorts of
claims involved in Title VII litigation. The Court assigned archetypal Title VII
claims the following names and definitions:
(1) The disparate-treatment claim, i.e., “a claim that an employee has
suffered a tangible employment action based on race or other
prohibited characteristics.”
(2) The hostile-environment claim, i.e., a claim stemming from
mistreatment based on a protected characteristic that “is
‘sufficiently severe or pervasive’ that it can be said to alter the
terms, conditions, or privileges of employment.”
(3) The retaliation claim, i.e., a claim stemming from “retaliation for
protected conduct” where the mistreatment “well might have
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dissuaded a reasonable worker from making or supporting a charge
of discrimination.”
Id. at 860–62.
The first two, the Monaghan Court explained, arise—at least in a private-
sector case—under 42 U.S.C. § 2000e-2(a)(1), Title VII’s private-sector anti-
discrimination provision. Id. at 860–61. The third, however, emanates from
§ 2000e-3(a), Title VII’s private-sector anti-retaliation provision. Id. at 861.
Having established that framework, the Monaghan Court explained how
Gowski mixed things up. Because “retaliatory-hostile-environment claims” were
really Type 3 claims—i.e., retaliation claims under § 2000e-3(a))—rather than
Type 2 claims—i.e., “hostile-environment” claims under § 2000e-2(a)(1)—
§ 2000e-2(a)(1)’s severe-or-pervasive standard shouldn’t have been applied to the
Type 3 claims in Gowski. Id. at 862. That mismatch, Monaghan said, made
Gowski an “outlier.” Id. Worse, the Monaghan Court observed, Gowski had
ignored binding decisions from both the Supreme Court and this Court—
Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), and
Crawford v. Carroll, 529 F.3d 961 (11th Cir. 2008). According to the Monaghan
Court, those decisions used a different, less onerous standard from Gowski’s. They
asked whether the employer’s complained-of action “well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination.”
Crawford, 529 F.3d at 974 (quoting Burlington Northern, 548 U.S. at 68). Facing
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inconsistent Eleventh Circuit precedent, the Monaghan Court held that Crawford
trumped Gowski because it came first. 955 F.3d at 862.
On rehearing here, Babb challenges our earlier reliance on Gowski. And she
asks that the Gowski-based summary judgment be vacated so that the district court
can reconsider her claim under the proper standard. We agree, and we will do just
that—but before doing so, we must address the government’s various
counterarguments.
The government leads with forfeiture. In short, the government says that
because Babb didn’t split her hostile-work-environment claims up and didn’t argue
Burlington Northern or Crawford the first time around, she should be barred from
doing so now. Granted, this Court has a “long-standing prudential rule of
declining to entertain issues not raised in an appellant’s initial brief on appeal but
raised for the first time in a petition for rehearing.” United States v. Levy, 416 F.3d
1273, 1275 (11th Cir. 2005). But of course, at the time Babb filed her initial brief
on appeal, Monaghan hadn’t been decided, and Gowski would have led most to
conclude that any argument along these lines would be fruitless, if not downright
frivolous. That, combined with the other circumstances here—that the case has
been to the Supreme Court and back, that Monaghan came out right before we
issued our order on remand, that the parties have briefed the issue twice and since
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participated in oral argument—leads us to conclude that it’s prudent to consider
this issue. 9
Next, the government seeks to narrow Monaghan. In particular, it argues
that Monaghan’s holding is limited to “private-sector Title VII retaliatory hostile
work environment claims” and has no bearing on “cases . . . arising under the
federal-sector Title VII provision” and, accordingly, that “Gowski . . . remains
binding under the prior-panel-precedent rule.” Supp. Br. of Appellee at 8, 20. The
government is right to point out (as we have acknowledged) that Monaghan
involved a private employer and Gowski a federal employer. But in repudiating
the analysis of Gowski—again, a case, like this one, about VA employees suing the
Secretary—the Monaghan Court “reaffirm[ed] that the standard applicable to all
Title VII retaliation claims is the Burlington Northern ‘well might have dissuaded’
standard, precisely as our pre-Gowski opinion in Crawford said.” 955 F.3d at 862
(emphasis added). We presume that when the Monaghan Court said “all,” it meant
“all.” To be sure, we have observed that for “law-of-the-circuit purposes . . . the
review of any precedent ought to focus far more on the judicial decision than on
the judicial opinion.” Jones v. White, 992 F.2d 1548, 1566 (11th Cir. 1993)
9
It’s also not obvious that the issue of the correct standard was indeed forfeited, or even that it
can be forfeited. See Jefferson v. Sewon Am., Inc., 891 F.3d 911, 923 (11th Cir. 2018) (“[P]arties
cannot waive the application of the correct law.”).
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(brackets and quotation marks omitted). But in Monaghan, Gowski’s continuing
vitality was front and center. See 955 F.3d at 857. The Monaghan Court
examined Gowski at length and in detail—and concluded that it was wrong ab
initio. Id. at 862. We see no fair reading of Monaghan that leaves Gowski’s
severe-or-pervasive holding intact. What’s more, Monaghan’s law-of-the-circuit
holding—i.e., that Crawford trumps Gowski because “when there are conflicting
prior panel decisions, the oldest one controls”—separately precludes us from
concluding to the contrary. Monaghan, 955 F.3d at 862; see United States v.
Tellis, 748 F.3d 1305, 1309–10 (11th Cir. 2014) (rejecting an argument that Circuit
precedent had been undermined to the point of abrogation because the Court had
already concluded otherwise); cf. Stokes v. Sw. Airlines, 887 F.3d 199, 205 (5th
Cir. 2018) (noting that “the determination whether a given precedent has been
abrogated is itself a determination subject to the [prior-panel-precedent rule]”).10
The government separately argues that the severe-or-pervasive standard is
effectively part and parcel of the federal-sector’s limited waiver of sovereign
10
The parties also dispute whether and to what extent certain deference doctrines may be in play.
Babb argues that the government’s theory flies in the face of the EEOC’s own interpretation of
the relevant standard, which Babb contended in a 28(j) letter is due Chevron deference. The
government says that because Babb argued for mere Skidmore deference in her opening brief,
she forfeited the Chevron argument. Whether, when, and by whom Chevron can be waived or
forfeited raises a slew of questions. Compare Guedes v. Bureau of Alcohol, Tobacco, Firearms
& Explosives, 920 F.3d 1, 22 (D.C. Cir.), judgment entered, 762 F. App’x 7 (D.C. Cir. 2019)
(“[I]nsofar as Chevron concerns the meaning of a statute, it is an awkward conceptual fit for the
doctrines of forfeiture and waiver.”), with Guedes v. Bureau of Alcohol, Tobacco, Firearms &
Explosives, 140 S. Ct. 789, 790 (2020) (Statement of Gorsuch, J., respecting the denial of
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immunity—that because any retaliatory hostile work environment must “rise to the
level of a ‘personnel action” to pass muster under 42 U.S.C. § 2000e-16(a), it
follows that only conduct “sufficiently severe or pervasive to constitute a
‘significant change in . . . working conditions’” qualifies. Resp. to Pet. at 16
(quoting 5 U.S.C. § 2302(a)(2)(A)(xii)); see also Supp. Br. of Appellee at 20.
Babb grants the “personnel action” limitation but disputes the revivification of the
severe-or-pervasive standard. That standard, she argues, comes from specific
language in § 2000e-2(a), see Monaghan, 955 F.3d at 862, and thus doesn’t govern
claims like this one since the federal-sector provision lacks that language. On this
much, we agree with Babb. The text of the federal-sector provision addresses
“personnel actions,” and so it seems clear enough that an actionable retaliatory-
hostile-work-environment claim must describe conduct that rises to that level. But
we see no basis in that text for the government’s proposed severe-or-pervasive
certiorari) (stating that “the government expressly waived reliance on Chevron” in that case and
that the Supreme Court “has often declined to apply Chevron deference when the government
fails to invoke it”). But our decision here is compelled by what we have said in Monaghan and
Crawford, and, as that apparently aligns with the EEOC’s interpretation of this statute, we leave
these questions for another day.
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standard. And, for reasons already explained, to whatever extent that Gowski
grafted such a standard on, we think Monaghan sheared it off.11
Finally, the government suggests that remand is futile because what Babb
has complained of can’t pass muster even under the Burlington Northern-
Crawford-Monaghan standard. We recognize that the district court has already
characterized what Babb endured as “the ordinary tribulations of the workplace,”
and that the Supreme Court has long said that Title VII “does not set forth ‘a
general civility code for the American workplace.’” Burlington Northern, 548
U.S. at 68 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80
(1998)). Even so, given Gowski’s demise, we think it best for the district court to
have the chance to evaluate Babb’s claim under the proper standard.
* * *
The first time around, we followed Gowski. Monaghan said that was a
misstep. So today we follow Crawford. The district court should do the same on
remand.
III
In conclusion, we vacate the grant of summary judgment on Babb’s Title VII
retaliation claim and her retaliatory-hostile-work-environment claim. We remand
for the district court to reconsider these claims under the proper standards. On
11
We note that the government doesn’t contest the existence of a cause of action for this kind of
retaliatory-hostile-work-environment claim.
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remand, the district court should follow Babb on the first issue and Crawford on
the second.
VACATED and REMANDED.
35