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

J
            USCA11 Case: 19-13153      Date Filed: 04/07/2021   Page: 1 of 3



                                                                [DO NOT PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                   No. 19-13153
                             ________________________

                      D.C. Docket No. 8:17-cv-03045-JSM-AEP



JACQUES A. DURR, M.D.,

                                                                 Plaintiff - Appellant,

versus

SECRETARY, DEPARTMENT OF VETERANS AFFAIRS,

                                                                Defendant - Appellee.

                             ________________________

                     Appeal from the United States District Court
                         for the Middle District of Florida
                           ________________________

                                    (April 7, 2021)

Before MARTIN, NEWSOM, and BRANCH, Circuit Judges.

PER CURIAM:

         Jacques Durr appeals the district court’s grant of summary judgment to the

Secretary of the Department of Veterans Affairs on his Title VII age and gender
           USCA11 Case: 19-13153           Date Filed: 04/07/2021       Page: 2 of 3



discrimination and retaliation claims. Durr brought his claims against the

Secretary under 42 U.S.C. § 2000e-16. That section prohibits discrimination

against federal employees. It says, “All personnel actions affecting employees or

applicants for employment [in the Federal Government] . . . shall be made free

from any discrimination based on race, color, religion, sex, or national origin.” 42

U.S.C. § 2000e-16.1

       In the past, we had held that to succeed under that provision, a plaintiff must

show that his protected activity or status was the but-for cause of the adverse

employment action. See Trask v. Sec’y, Dep’t of Veterans Affairs, 

822 F.3d 1179

,

1194 (11th Cir. 2016). Thus, when assessing a plaintiff’s claim of discrimination

based on circumstantial evidence, courts either applied the burden-shifting

framework set out in McDonnell Douglas Corp. v. Green, 

411 U.S. 792

(1973), or

they asked whether the plaintiff had presented a “convincing mosaic of

circumstantial evidence that would allow a jury to infer intentional discrimination.”

See Lewis v. City of Union City, 

934 F.3d 1169

, 1185 (11th Cir. 2019). The district

court here rejected Durr’s claims under those standards.




1
 Though § 2000e-16 does not expressly prohibit retaliation for filing a charge based on those
protected characteristics, we have explained that retaliation based on protected traits is itself
discrimination. See Babb v. Sec’y, Dep’t of Veterans Affairs, 

2021 WL 1219654

, at *7 (11th Cir.
Apr. 1, 2021); Porter v. Adams, 

639 F.2d 273

, 277–78 (5th Cir. Unit A Mar. 1981).


                                                2
          USCA11 Case: 19-13153       Date Filed: 04/07/2021    Page: 3 of 3



      But following the Supreme Court’s decision in Babb v. Wilkie, 

140 S. Ct.

1168

(2020), we have recognized that a plaintiff no longer need show that his

protected activity or status was the but-for cause of the adverse action to state a

claim under § 2000e-16. Babb v. Sec’y, Dep’t of Veterans Affairs, 

2021 WL

1219654

, at *7 (11th Cir. Apr. 1, 2021). Rather, a plaintiff’s claim survives if

“discrimination play[ed] any part in the way a decision [was] made.” Babb, 140 S.

Ct. at 1174 (emphasis added); see also Babb, 

2021 WL 1219654

, at *3. The

relevant question is whether the protected characteristic was the “but-for cause of

differential treatment,” not whether it was the “but-for cause of the ultimate

decision.” 

Babb, 140 S. Ct. at 1174

; see also Babb, 

2021 WL 1219654

, at *9.

Because both the McDonnell Douglas framework and the convincing-mosaic test

are methods of showing that the protected characteristic was the but-for cause of

the ultimate decision, those tests no longer apply. Babb, 

2021 WL 1219654

, at *8;

Lewis, 934 F.3d at 1185

–89 (using convincing-mosaic test to show that race and

gender, and not other factors, were the but-for causes of Lewis’s firing).

      When it analyzed Durr’s claims, the district court did not have the benefit of

either the Supreme Court’s decision or ours. In light of those decisions, we

VACATE and REMAND to the district court to decide in the first instance

whether the Bay Pines Veterans Affairs Hospital’s adverse employment actions

against Durr satisfy the “free from any discrimination” standard.



                                           3

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