Dennis McLain v. Denis R. McDonough, Secretary of Veterans Affairs

Title VII requires that “all personnel actions effecting employees or applicants for employment … in executive agencies as defined in Title 5 … shall be made free from any discrimination based on race, color, religion, sex or national origin.” See 42 U.S.C. § 2000e-16(a) ) (emphasis added). Babb v. Wilkie, 589 U.S. 399 (2020) examined that language and its syntax under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 633a(a). The Eleventh Circuit subsequently held that Babb v. Wilkie is applicable to Title VII. Babb v. Sec’y, 992 F.3d 1193 (11th Cir. 2021). The questions presented are:

1. Whether, when instructing a jury on causation in a federal employee Title VII claim under 42 U.S.C. § 2000e-16(a) it is error to fail to instruct the jury on the causation standard delineated in Babb v. Wilkie, 589 U.S. 399, 402-411 (2020), but rather to instruct them based on the simple and traditional but-for causation standard in Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009) and University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338 (2013) which was expressly rejected in Babb.

2. Whether in a federal employee retaliation claim it is error to: use the simple and traditional but-for causation standard to admit evidence of plaintiff’s protected whistleblowing and union activity, at least without limiting instructions and to exclude corroborative evidence under F.R.E. 404(b) and 801(d)(2)(D) which tended to prove differential