Jacques A. Durr, M.D. v. Secretary of the Department of Veterans Affairs

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12867
Non-Argument Calendar
____________________
JACQUES A. DURR, M.D.,
Plaintiff-Appellant,
versus
SECRETARY OF THE DEPARTMENT OF VETERANS
AFFAIRS,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:17-cv-03045-JSM-AEP
____________________
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2 Opinion of the Court 21-12867
Before WILSON, NEWSOM, and ANDERSON, Circuit Judges.
PER CURIAM:
Jacques Durr appeals the district court’s entry of summary
judgment in favor of the Department of Veteran Affairs on his
claims that the VA retaliated against him because of his prior pro-
tected activity and discriminated against him on the basis of age
and sex, in violation of Title VII of the Civil Rights Act of 1964, and
the Age and Discrimination in Employment Act. On appeal, Durr
asserts that, despite recent decisions by both this Court and the Su-
preme Court—including in the prior appeal of this case—the
McDonnell Douglas1 framework still applies to his claims and es-
tablishes liability. Durr also contends that the district court erred
by finding that he failed to raise a genuine dispute of material fact
as to his claims.
I
We review de novo the application of the law-of-the-case
doctrine. Ash v. Tyson Foods, Inc., 664 F.3d 883, 891 (11th Cir.
2011). The law-of-the-case doctrine prevents parties from relitigat-
ing issues that we decided either explicitly or by necessary implica-
tion earlier in the case. Schiavo ex rel. Schindler v. Schiavo,
403 F.3d 1289, 1291 (11th Cir. 2005). Under this doctrine, we and
the district court “are bound by findings of fact and conclusions of
1 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
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21-12867 Opinion of the Court 3
law” that we made in an earlier appeal of the case. Ash, 664 F.3d
at 891. But this doctrine does not apply where: (1) there is new and
substantially different evidence from a subsequent trial; (2) control-
ling authority has since been issued that is contrary to the previous
decision; or (3) the previous decision was clearly erroneous and
would work a manifest injustice if implemented. Schiavo, 403 F.3d
at 1292.
In the prior appeal in this case, we vacated and remanded
the district court’s summary judgment order in light of the Su-
preme Court’s decision in Babb v. Wilkie, 140 S. Ct. 1168 (2020),
and our decision in Babb v. Sec’y, Dep’t of Veterans Affs., 992 F.3d
1193 (2021). Durr v. Sec’y, Dep’t of Veterans Affs., 843 F. App’x
246, 247 (11th Cir. 2021). We noted that, following those decisions,
a plaintiff suing under the federal-sector provision of Title VII is no
longer required to show that his protected characteristic was the
but-for cause of an adverse action; rather, he need only show that
discrimination played any part in the way the decision was made.
Id. at 247. Because the McDonnell Douglas framework and the
“convincing mosaic” test are methods used to show that a pro-
tected characteristic was the but-for cause of the ultimate decision,
we held that they “no longer apply” to cases brought under the
federal-sector provision of Title VII. Id.
Here, the law-of-the-case doctrine applies to exclude the use
of the McDonnell Douglas framework to establish liability because
we are bound by our holding in the prior appeal in this case that,
in light of the Supreme Court’s and our decisions in Babb, the
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4 Opinion of the Court 21-12867
McDonnell Douglas framework “no longer appl[ies]” to cases
brought under the federal-sector provision of Title VII, such as the
claims Durr raises.
II
A district court’s grant or denial of summary judgment is re-
viewed de novo. Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1311
(11th Cir. 2002).
Summary judgment is appropriate when the evidence,
viewed in the light most favorable to the nonmoving party, pre-
sents no genuine dispute as to any material fact and compels judg-
ment as a matter of law. Fed. R. Civ. P. 56(a). A genuine dispute
of material fact exists when “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, “an infer-
ence based on speculation and conjecture is not reasonable.” Ave.
CLO Fund, Ltd., et al. v. Bank of Am., N.A., 723 F.3d 1287, 1294
(11th Cir. 2013) (quotation marks omitted). And a “mere scintilla
of evidence” supporting the nonmoving party’s position will not
suffice to defeat summary judgment. Brooks v. Cnty. Comm’n of
Jefferson Cnty., 446 F.3d 1160, 1162 (11th Cir. 2006) (quotation
marks omitted). Normally, discredited testimony is not considered
a sufficient basis for drawing a conclusion contrary to that testi-
mony; instead, to defeat a properly supported motion for summary
judgment the plaintiff must present affirmative evidence sufficient
for a jury to return a verdict in his favor. Anderson, 477 U.S. at
256-57.
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21-12867 Opinion of the Court 5
Under Title VII’s federal-sector provision, “[a]ll personnel
actions affecting employees . . . in executive agencies . . . shall be
made free from any discrimination based on race, color, religion,
sex, or national origin.” 42 U.S.C. § 2000e-16(a). The ADEA has a
similar federal-sector provision, which provides that personnel ac-
tions affecting agency employees aged 40 years or older shall be
made free from any “discrimination based on age.” 29 U.S.C.
§ 633a(a). Personnel actions include most employment-related de-
cisions, such as appointments, promotions, work assignments,
compensation, and performance reviews. Babb, 140 S. Ct. at
1172-73. Because we “must respect that an employer need not
have good cause for its decisions,” an employer may act “for a good
reason, a bad reason, a reason based on erroneous facts, or for no
reason at all,” as long as it is not an unlawful reason. Jefferson v.
Sewon Am., Inc., 891 F.3d 911, 924 (11th Cir. 2018) (cleaned up). If
a decisionmaker does not know about an individual’s protected
conduct, then she cannot act in retaliation based on that conduct.
See Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791,
799 (11th Cir. 2000).
In Babb, the Supreme Court held that the ADEA’s fed-
eral-sector provision does not require age to be the but-for cause of
a personnel action. 140 S. Ct. at 1172-73. Instead, the ADEA “re-
quires proof of but-for causation, but the object of that causation is
discrimination, i.e., differential treatment, not the personnel action
itself.” Id. at 1176 (quotation marks omitted). Accordingly, the Su-
preme Court held, a plaintiff need not show that the challenged
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6 Opinion of the Court 21-12867
employment decision would have turned out different if age had
not been considered; instead, he just has to show that the decision
was tainted by differential treatment based on a protected charac-
teristic. Id. at 1174. The Supreme Court noted, however, that the
failure to show that age was the but-for cause of the ultimate deci-
sion could preclude certain types of relief, such as damages, but not
other types of “forward-looking” relief, such as an injunction. Id.
at 1171, 1177-78.
On remand, we held that the Supreme Court’s analysis of
the federal-sector provision of the ADEA also controlled Title VII’s
parallel provision, which was not before the Supreme Court, be-
cause it was “essentially identical” to the ADEA. Babb, 992 F.3d at
1197, 1199-1200. We noted that non-pretextual reasons for an ad-
verse employment decision do not cure the taint of discrimination
based on a protected class or conduct in making that decision. Id.
at 1204. We also clarified that, while the Supreme Court did not
explicitly say so, it appeared to conclude that the district court
should not have used the McDonnell Douglas framework to deter-
mine liability. Id. at 1204, 1205 n.8.
An abandoned issue can be either waived or forfeited.
United States v. Campbell, 26 F.4th 860, 872 (11th Cir. 2022) (en
banc) (citing civil cases and noting that jurists interchangeably use
the words “waived,” “forfeited,” and “abandoned”). “[F]orfeiture
is the failure to make the timely assertion of a right; waiver is the
intentional relinquishment or abandonment of a known right.”
Id. (stating the practical effect is that forfeited issues can be raised
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21-12867 Opinion of the Court 7
sua sponte in extraordinary circumstances, while waived issues
cannot). To avoid forfeiting an issue, an appellant’s initial brief
must plainly and prominently raise it by devoting a discrete section
of his argument to the claim; simply stating that an issue exists,
without further argument or discussion, constitutes forfeiture. See
United States v. Montenegro, 1 F.4th 940, 944 n.3 (11th Cir. 2021).
Here, the district court did not err by finding that Durr failed
to raise a genuine dispute of material fact about whether his prior
EEO activity, age, or sex was a but-for cause for any differential
treatment. As an initial matter, Durr forfeited any challenge to the
district court’s order denying his motion for partial summary judg-
ment by failing to plainly and prominently raise it on appeal and,
instead, requesting that this Court remand for a jury trial. See id.But even assuming that Durr hadn’t forfeit his challenge, his asser-
tion still fails for several reasons.
First, regarding Durr’s argument that his exclusion from the
March 2015 certification list was improper differential treatment,
he testified that it was evident at Rachelle Seybold’s deposition that
she was not aware of his prior EEO activity, and he agreed that it
would be speculative to say that Seybold retaliated against him by
keeping his name off that list or that Dr. Dominique Thuriere told
her to do so. Seybold could not have retaliated against Durr based
on his protected conduct if she was unaware of it, and his specula-
tion is insufficient to create a genuine dispute of material fact.
Second, regarding Durr’s argument that the VA improperly
changed the standard hiring procedure and did not hire him, he
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8 Opinion of the Court 21-12867
failed to present evidence that raised a genuine dispute about
whether his prior protected activity was the but-for cause of this
differential treatment.
And finally, Durr failed to raise a genuine dispute of material
fact regarding his sex and age discrimination claims. He didn’t dis-
pute Thuriere’s testimony that, since October 2015, she hired four
male doctors and one female doctor at the VA, three of whom were
in their early sixties or seventies, and the record does not otherwise
support a finding that sex or age played a role in Thuriere’s decision
to select Pearson.
* * *
For the foregoing reasons, we hold (1) that because this
Court, in a prior appeal of this case, held that the McDonnell Doug-
las framework no longer applies to federal-sector cases brought un-
der Title VII or the ADEA, the law-of-the-case doctrine precludes
Durr’s argument that such framework applies and establishes lia-
bility, and (2) that the district court did not err by finding that Durr
failed to present a genuine dispute of material fact because he ad-
mitted that it was speculative to say that his exclusion from the
March 2015 list of candidates was in retaliation for his protected
activity, he failed to provide evidence indicating that he was not
hired because of his protected activity, and he failed to point to any
evidence indicating that the VA treated him differently based on
his age or sex. Accordingly, we affirm.
AFFIRMED.