“From Boulders to Pebbles”: Eleventh Circuit Re-Affirms the “Any-Part” Causation Standard and Retires McDonnell-Douglas for Federal-Sector Discrimination and Retaliation Claims

Introduction

The latest chapter of the long-running litigation between pharmacist Noris Babb and the Department of Veterans Affairs (VA) culminated in the Eleventh Circuit’s per curiam opinion in Babb v. Secretary, Department of Veterans Affairs, No. 23-10383 (11th Cir. June 26, 2025). The decision, though unpublished, is important because it cements the sweeping doctrinal realignment produced by the Supreme Court’s 2020 opinion in Babb v. Wilkie (“Babb I”) and the Eleventh Circuit’s 2021 follow-up (“Babb II”). At stake was the proper causation test for federal-sector discrimination and retaliation claims under Title VII and the Age Discrimination in Employment Act (ADEA), and whether the venerable McDonnell-Douglas burden-shifting framework still has a role.

Plaintiff-appellant Babb alleged sex and age discrimination, retaliation, and retaliatory hostile work environment stemming from a series of promotion-related events at the Tampa VA Medical Center. After the district court granted summary judgment on the discrimination counts and a jury rejected the retaliation counts, Babb appealed, accusing the district court of misapplying the “Babb standard” and issuing erroneous jury instructions. The Eleventh Circuit affirmed across the board, using the occasion to clarify how the “any-part” (or “differential-treatment”) test operates and why McDonnell-Douglas is now essentially obsolete in federal-sector cases.

Summary of the Judgment

The Court of Appeals held:

Sex and age discrimination: Summary judgment for the VA was proper because Babb failed to show that her protected traits “played any part” in the process that led to (i) her non-selection for an anticoagulation clinic position and (ii) the denial of her requested transfer to “Module B.”
Jury instructions: The district court’s instructions correctly articulated the “differential-treatment” standard for retaliation and properly limited the jury’s consideration of certain testimony.
Practical consequences: With no reversible error, the Eleventh Circuit affirmed the district court’s summary judgment and the jury’s defense verdict, effectively ending Babb’s decade-long lawsuit.

Analysis

1. Precedents Cited and Their Influence

a. Babb v. Wilkie, 589 U.S. 399 (2020) – “Babb I”

The Supreme Court interpreted the ADEA’s federal-sector provision (“personnel actions…shall be made free from any discrimination based on age”) to require that any consideration of age in the decision-making process violates the statute, even if age was not a but-for cause of the ultimate result. Remedies, however, depend on whether age was also a but-for cause of the outcome.

b. Babb II, 992 F.3d 1193 (11th Cir. 2021)

Applying Babb I, the Eleventh Circuit extended the “any-part” standard to Title VII retaliation and jettisoned its earlier precedent (Trask) that had required traditional but-for causation. It also re-categorized “retaliatory hostile work environment” as a form of retaliation, subject to the same, lower standard.

c. Post-Babb Clean-Up Cases

Buckley v. Secretary of Army, 97 F.4th 784 (11th Cir. 2024) – Declared that continued use of McDonnell-Douglas is ill-suited (“a boulder vs. a pebble”) after Babb I.
Terrell v. Secretary, Dept. of Veterans Affairs, 98 F.4th 1343 (11th Cir. 2024) – Demonstrated practical application of the “any-part” test to hiring decisions.
Monaghan v. Worldpay US, 955 F.3d 855 (11th Cir. 2020) – Influenced how retaliatory hostile-work-environment claims are analyzed.
Classics referenced and effectively retired for these claims: McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973).

2. Court’s Legal Reasoning

a. The New Causation Schema

Under the post-Babb framework the analysis bifurcates:

Differential-Treatment Step: Did the protected trait (age, sex, or protected activity) play any part in the decision-making process? If not, the claim fails outright.
Outcome Causation Step: If “yes,” remedies depend on whether the trait was a but-for cause of the outcome. Injunctive relief may still be available without proving this second step.

Because Babb could not even satisfy step 1, the court never reached the remedy question.

b. Application to Babb’s Facts

Anticoagulation Non-Selection: Interview panel chose younger female pharmacists because they had residency training and stronger interviews. Nothing in the record tied age or sex bias to that scoring choice.
Module B Transfer Denial: The position had been abolished months earlier; a younger comparator was turned down for the same reason, defeating any inference of differential treatment.
Retaliation Instructions: The district court told jurors they must find that Babb’s EEO activity caused her to be treated differently during the decision-making process—exactly mirroring Babb I/II.
Limiting Testimony of Co-Workers: Allegations of discrimination against others were admissible only to show Babb’s subjective “good-faith belief,” not as substantive proof that the VA discriminated against her. The Eleventh Circuit endorsed that evidentiary line-drawing.

3. Impact on Future Litigation

The opinion reinforces four practical lessons for litigants and trial courts in the Eleventh Circuit:

Farewell, McDonnell-Douglas: In federal-sector Title VII and ADEA cases, plaintiffs no longer have to navigate the burden-shifting labyrinth. The inquiry is factual and direct: did prohibited bias taint the process?
Evidence Must Map onto Decision-Makers: General workplace gripes or “me-too” testimony must be tied to those who actually made the contested decision.
Strategic Focus on Process, Not Outcome: Plaintiffs may obtain at least injunctive relief by showing any taint in the process—even if they cannot prove but-for causation as to the result.
Instructional Precision: Trial courts must craft jury instructions that track the two-step Babb model; appellate courts will scrutinize departures but will uphold instructions that faithfully capture the “differential-treatment” requirement.

Complex Concepts Simplified

Federal-Sector Provision: Special statutory language that applies only to federal employees, using “shall be made free from any discrimination” wording, which triggers the lighter causation test.
But-For Causation: A factor is decisive—if the factor were absent, the outcome would differ.
Any-Part / Differential-Treatment Test: It is enough to show the protected trait was considered at all; no need to prove it was outcome-determinative.
McDonnell-Douglas Framework: A three-step, burden-shifting analytic device created in 1973 to smoke out discriminatory motive by inference. Post-Babb, federal employees can skip it.
Retaliatory Hostile Work Environment: A claim that repeated retaliatory acts created conditions that would discourage a reasonable employee from engaging in protected activity. After Monaghan, it is treated as a subset of retaliation, not of harassment.
Injunctive vs. Monetary Relief: Under Babb I, a plaintiff who proves process-level bias (but not outcome causation) can get forward-looking remedies (e.g., declaratory or injunctive relief) but not back pay or damages.

Conclusion

Babb v. Secretary, Department of Veterans Affairs (2025) is more than a case about a disappointed federal pharmacist; it is the appellate court’s latest—and perhaps final—clarification that after Babb I the evidentiary load for federal workers is lighter and more focused. Plaintiffs need only push a “pebble,” showing that protected traits or activities infiltrated the decisional calculus. Yet, as Babb’s experience illustrates, some pebble must still exist: conjecture, speculation, or bias remote from the decision-makers will not suffice. The decision therefore balances employee protection with evidentiary discipline, providing clear guidance to litigants, employers, and lower courts across the Eleventh Circuit.