Noris Babb v. Douglas A. Collins, Secretary of Veterans Affairs

Federal employees’ rights are determined under statutes which require 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 . . .” See 42 U.S.C. § 2000e-16(a) (“based on” race, color, religion, sex, or national origin) (emphasis added); 29 U.S.C. § 633a(a) (“based on” age). The language and syntax of these statutes differ from private sector statutes. Babb v. Wilkie, 589 U.S. 399, 409-413 (2020). The questions presented are: Whether federal District Court jury instructions and decisions on motions for summary judgment must be consistent with Babb v. Wilkie’s statutory framework and specifically:

1. As to summary judgment whether the “shall be made free from any discrimination” permits summary judgment of: (a) federal-sector adverse personnel decisions when a combination of sex and age (i.e., older female) are considered in the process of making those decisions; and (b) damages caused by consideration of EEO activity during the process of making adverse personnel actions.

2. In jury instructions, failing to instruct the jury on what constitutes differential treatment and failing to instruct on burden shifting to the defendant under LeSage and Mt. Healthy.