babb v wilkie opinion
v. Doyle, 429 U. S. 274, 285 (1977) (rejecting rule that “would require reinstatement . The Court explains that Congress is free to hold the federal government to a higher standard than it does to private employers and clearly did so here by not adopting the causation language applicable to private employers. 3. Thus, Â§633a(a) plaintiffs who demonstrate only that they were subjected to unequal consideration cannot obtain reinstatement, back-pay, compensatory damages, or other forms of relief related to the end result of an employment decision. This decision is not “made” “free from any discrimination” because employee B was treated differently (and less favorably) than employee A (because she was docked five points and A was not). Justice Sotomayor writes to clarify two points. Later on the Court provides another example of when some consideration of age did not taint the personnel decision involved. From this, the Court concludes that the plain meaning of the text “demands that personnel actions be untainted by any consideration of age.” Ante, at 1. This does not mean that a plaintiff may obtain all forms of relief that are generally available for a violation of §633a(a), including hiring, reinstatement, backpay, and compensatory damages, without showing that a personnel action would have been different if age had not been taken into account. of Ed., 544 U. S. 167, 174. And Exec. Today’s decision is inconsistent with the default rule underlying our interpretation of antidiscrimination statutes and our precedents, which have consistently applied that rule. The Court holds that the syntax in the private-sector provision focuses on the end result of the personnel decision. See, e.g., Brenton W. v. Chao, 2017 WL 2953878, *9 (June 29, 2017); Arroyo v. Shinseki, 2012 WL 2952078, *4 (July 11, 2012). Accordingly, I would hold that the default rule of but-for causation applies here. The federal-sector provision of the Age Discrimination in Employment Act of 1967 (ADEA), 88 Stat. See 29 U. S. C. §791; 5 CFR §213.3102(u); 29 CFR §1614.203(d) (2019). 18–882.  Finally, in University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338 (2013)(dealing with Title VIIâs anti-retaliation provision), the Court again explains the language in both statutes are significantly different. Because most federal-sector “personnel actions” affecting individuals aged 40 and older must be made “free from any discrimination based on age,” 29 U. S. C. §633a(a), Babb argued, such a personnel action is unlawful if age is a factor in the challenged decision. Southwestern Medical Center v. Nassar, 570 U. S. 338, 346 (2013) (quoting various provisions of the Restatement of Torts (1934)). In 2004, Noris Babb joined the C.W. The Eleventh Circuit found Babb’s argument foreclosed by Circuit precedent. The Court first observed that although the ADEA does not define the term âpersonnel actions,â the Civil Service Reform Act of 1978 does. Justice Thomas wrote a dissenting opinion. I Noris Babb, who was born in 1960, is a clinical pharma cist at the U. S. Department of Veterans Affairs Medical Center in Bay Pines, Florida. To see what this entails in practice, consider a simple example. What follows from this is that âage must be the but-for cause of differential-treatment, not that age must be a but-for cause of the ultimate decision.â (emphasis in the original). of Ed., 544 U. S. 167, 174 (2005). The judgment of the United States Court of Appeals for the Eleventh Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. Until now, the rule for pleading a claim under a federal antidiscrimination statute was clear: A plaintiff had to plausibly allege that discrimination was the but-for cause of an adverse action, unless the statute’s text unequivocally replaced that standard with a different one. Pp. The Safeco Court observed that the phrase “in part” could be read to mean that notice had to be given “whenever the report was considered in the rate-setting process,” but it rejected this reading. But it “deliberately prescribed a distinct statutory scheme applicable only to the federal sector,” Lehman v. Nakshian, 453 U. S. 156, 166, eschewing the private-sector provision language. 11478 to cover discrimination on the basis of age). At most, the substantive mandate against discrimination in §633a(a) is ambiguous. Instead, the Safeco Court rejected the argument on other grounds, including its assessment of the particular statutory scheme at issue. A few examples suffice to demonstrate this point. 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. In 2014, she was placed in a new position, and while her grade was raised to GSâ13, her holiday pay was reduced. See 5 U. S. C. §5104. 2. The D.C. Critical to this analysis will be the text of the statute, and any legislative intent that signals that Congress intended to deviate from what the Court has accepted as the default rule of but-for causation. Held: The plain meaning of §633a(a) demands that personnel actions be untainted by any consideration of age. See Lesage, 528 U. S., at 20–22. But Mt. We hold that §633a(a) goes further than that. Accordingly, she argues proof that age was a but-for cause of a challenged employment decision is not needed. No. See ante, at 13–14. If the answer is yes, then ask the jury whether the consideration of the employeeâs age was the but-for cause of the adverse employment decision. As a result, she explained that even if the VA’s proffered reasons were not pretextual, it would not necessarily follow that age discrimination played no part. 11–15 (2015). Otherwise, he can obtain only injunctive or prospective relief. The federal-sector provision of the Age Discrimination in Employment Act (ADEA), states that â[a]ll personnel actions affecting employees or applicants for employmentâ in executive agencies âwho are at least 40 years of age * * * shall be made free from any discrimination based on age.â 29 U.S.C. Her age discrimination claim suffered a defeat in the Eleventh Circuit Court of Appeals (just below the Supreme Court), while her sex discrimination claim stood to fight another day. Not only will this result in a flood of litigation, but the holding ignores the nature of federal hiring that entails exceptions and affirmative action programs. According to the Government, even if age played a part in such a decision, an employee or applicant for employment cannot obtain any relief unless it is shown that the decision would have been favorable if age had not been taken into account. if that consideration does not actually cause the employer to make a less favorable personnel action than it would have made for a similarly situated person who is younger.” Id., at 17. January 15, 2020: Oral argument 3. . See, e.g., Price Waterhouse v. Hopkins, 490 U. S. 228, 249 (1989) (plurality opinion); Mt. Additionally, the Court states the âtraditional rule favoring but-for causationâ remains intact because Â§ 633a(a) still requires but-for cause, but the object of that causation is the discrimination, not the personnel action itself. It is entirely natural to regard an employment decision as being “made” at the time when the outcome is actually determined and not during events leading up to that decision. See id., at 19–20. The Court, in applying the terms of the statute, made it clear on several occasions that there is a violation to Â§ 633a(a) of the ADEA when age âplays any part in the way a [personnel] decision is made. Southwestern Medical Center v. Nassar, 570 U. S. 338, we interpreted Title VII’s anti-retaliation provision, 42 U. S. C. §2000e–3(a), as requiring retaliation to be a but-for cause of the end result of the employment decision. Brief for Respondent 19. The Court points to various cases upholding statutes in which Congress chose to hold the federal government to a higher standard. Southwestern Medical Center v. Nassar, 570 U. S. 338, 346–347 (2013). Co. of America v. Burr, 551 U. S. 47, 63 (2007); cf. . It is true that this difference in treatment did not affect the outcome, and therefore age was not a but-for cause of the decision to promote employee A. That interpretation is consistent with the term’s meaning in general usage, and we assume that it has the same meaning under the ADEA. Wilkie-US Supreme Court Extends Age Discrimination Relief to Federal Workers On April 6, 2020 the US Supreme Court issued an opinion clarifying the circumstances under which a federal employee can prevail in â¦ Second, this same example may suggest that §633a permits damages remedies, even when the Government engages in nondispositive “age discrimination in the ‘ma[king]’ of a personnel decision.” Ante, at 10. Circuit and certain federal agencies have held that a plaintiff bringâ¦ The Court then continues to explain that the words âfree from any discriminationâ is an adverbial phrase that modifies the verb âmade.â Therefore, a personnel action must be âmadeâ in a way that is not tainted by differential treatment based on age or in the words of the statute, âfree from any discrimination.â Thus, the plain language of the federal-sector provision in the ADEA provides that age does not need to be the but-for cause of an employment decision in order for there to be a violation of Â§ 633a(a). First, the Court does not foreclose §633a claims arising from discriminatory processes. Section 623(a)(1) makes it “unlawful for an employer . in part” on a credit report. Babb brought suit in 2014 against the Secretary of Veterans Affairs, Robert Wilkie, (the âVAâ) claiming she was subjected to age and sex discrimination, as well as retaliation for engaging in activities protected by federal anti-discrimination laws. 4–5. Thus, the straightforward meaning of §633a(a)’s terms is that the statute does not require proof that an employment decision would have turned out differently if age had not been taken into account. The Babb Court makes it clear that the employee needs to prove that consideration of age âtaintedâ, or in the terminology of our current COVID-19 world, âinfectedâ the personnel practice to prove a violation of Â§633. The question raised in Babb v. Wilkie, decided by the U.S. Supreme Court on April 6, 2020, was whether a plaintiff must prove that the federal governmentâs decision concerning their employment would â¦ 5 Moreover, even if “discriminating with respect to compensation, terms, conditions, or privileges of employment” could be read more broadly to encompass things that occur before a final decision is made, the ejusdem generis canon would counsel a court to read that final phrase to refer––like the prior terms––to the final decision. The wording of §633a(a)––which refers expressly to the “mak[ing]” of personnel actions in a way that is “free from any discrimination based on age”––is markedly different from the language of the statutes at issue in Gross and Nassar, and the traditional rule favoring but-for causation does not dictate a contrary result. It is bedrock law that “requested relief ” must “redress the alleged injury.” Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 103 (1998). § 633a(a) (emphasis added). However, I will leave that to trial attorneys who must live with this on a daily basis. I agree with the Court that discrimination means differ ential treatment, that “based on” connotes a but-for relationship, and that “to make” typically means to produce or to become. The standard dictionary definition of “any” is “[s]ome, regardless of quantity or number.” American Heritage Dictionary 59 (def. Babb proves that the Court is true to its word in Gross. As for “discrimination,” its “normal definition” is “differential treatment.” Jackson v. Birmingham Bd. I would probably argue for the ultimate but-for charge. Order No. 8–11. Justice Thomas also criticizes the majority for judicially fashioning a remedial scheme that is not found in the plain language of the statute. Today, however, the Court departs from this rule, concluding that the federal-sector provision of the Age Discrimination in Employment Act of 1967 (ADEA) imposes liability if an agency’s personnel actions are at all tainted by considerations of age. 4–7. If, for example, an employer hires a 50-year-old person who passed a computer-aptitude test administered only to applicants above 40, clearly a question could arise as to whether the hiring decision was “made free from” differential treatment. The phrase “free from” means “un tainted” or “[c]lear of (something which is regarded as objectionable).” Webster’s Third New International Dictionary 905 (def. The Court, in applying the terms of the statute, made it clear on several occasions that there is a violation to Â§ 633a(a) of the ADEA when age âplays any part in the way a [personnel] decision is made. Co., 816 F. 3d 228, 233–236 (CA4 2016); Serwatka v. Rockwell Automation, Inc., 591 F. 3d 957, 961–964 (CA7 2010). Babb interprets the provision differently. The Court also fails to cite any authority suggesting that its remedial scheme existed, at common law or otherwise, in 1974 when Congress added the federal-sector provision to the ADEA. However, if the employee cannot show that age was the but-for cause of the ultimate employment decision the employeeâs relief is limited. First, “based on age” is an adjectival phrase modifying the noun “discrimination,” not the phrase “personnel actions.” Thus, age must be a but-for cause of discrimination but not the personnel action itself. 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–13.2 Second, during this same time period, she was denied training opportunities and was passed over for positions in the hospital’s anticoagulation clinic. . If, at the time when the decision is actually made, age plays a part, then the decision is not made “free from” age discrimination.It is not clear that Babb actually disagrees with the Government on this point, although the many references in her brief to the decision- making process could be read to mean that §633a(a) can be violated even if age played no part whatsoever when the actual decision was made. To obtain reinstatement, damages, or other relief related to the end result of an employment decision, a showing that a personnel action would have been different if age had not been taken into account is necessary, but if age discrimination played a lesser part in the decision, other remedies may be appropriate. Under an interpretation that read “made” expansively to encompass a broader personnel process, §633a(a) would be violated even though age played no role whatsoever in the ultimate decision. We are not persuaded by the argument that it is anomalous to hold the Federal Government to a stricter standard than private employers or state and local governments. Just as implausibly, the Court assumes from this congressional silence that Congress intended for judges to craft a remedial scheme in which the available relief would vary depending on the inflicted injury, using an as-yet- unknown scheme. This would be like a jury charge under a Title VII motivating factor analysis - with one major difference: under Title VII it would be the employerâs burden to prove the same decision defense. and remandedTo return a case or claim to a lower court for additional proceedings. Justice Alito delivered the opinion of the Court, in which Justices Roberts, Breyer, Sotomayor, Kagan, Gorsuch and Kavanaugh joined. Which interpretation is correct? Because the only thing being “made” in the statute is a “personnel action,” it is entirely reasonable to conclude that age must be the but-for cause of that personnel action. 5(a)) (1969) (defining “free” “used with from” as “[n]ot affected or restricted by a given condition or circumstance”); Random House Dictionary of the English Language 565 (def. Appx. See 5 U. S. C. §2302(a)(2)(A). Plaintiffs cannot obtain compensatory damages or other forms of relief related to the end result of an employment decision without showing that age discrimination was a but-for cause of the employment outcome. In that situation, plaintiffs can seek injunctive or prospective relief held the..., 42 U. S. C. §1983, for the challenged actions, and the mood... Displace the default rule that phrase ’ s argument foreclosed by Circuit precedent of. S. 249, 254 ( 1992 ) ) this case appellate Clinic and a Professor of clinical at! 633A ( a ) ( 1 ) makes it “ unlawful for an employer a... 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