         Case: 15-11709     Date Filed: 04/05/2016   Page: 1 of 31


                                                                     [PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-11709
                       ________________________

                D.C. Docket No. 8:13-cv-00536-MSS-TBM



DONNA TRASK,
ANITA TRUITT,

                                                          Plaintiffs-Appellants,

                                   versus

SECRETARY, DEPARTMENT OF VETERANS AFFAIRS,

                                                           Defendant-Appellee.

                       ________________________

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

                              (April 5, 2016)
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Before HULL, JULIE CARNES, and CLEVENGER, * Circuit Judges.

HULL, Circuit Judge:

       Plaintiffs Donna Trask and Anita Truitt (the “plaintiffs”) appeal the district

court’s order granting summary judgment in favor of the Secretary for the

Department of Veterans Affairs (“VA”) in their employment discrimination action

brought pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42

U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967

(the “ADEA”), 29 U.S.C. § 626. On appeal, the plaintiffs argue that the district

court erred by making improper fact determinations and incorrectly applying the

relevant law. After review, and with the benefit of oral argument, we affirm. 1

                    I.     RELEVANT BACKGROUND FACTS

       In this case the plaintiffs sued their employer, the VA, for gender and age

discrimination. The plaintiffs are pharmacists who have worked at for the VA for

over a decade. In 2010, the VA announced a nationwide treatment initiative that

resulted in the reorganization of several VA treatment facilities, including the

facility where the plaintiffs worked. This reorganization involved the creation of

       *
         Honorable Raymond C. Clevenger, United States Circuit Judge for the Federal Circuit,
sitting by designation.
       1
          We review de novo the district court’s grant of summary judgment, viewing all evidence
in the light most favorable to the non-moving party. Owen v. I.C. Sys., Inc., 629 F.3d 1263,
1270 (11th Cir. 2011). Summary judgment is proper “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). We may affirm on any ground that finds support in the record.
Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007).
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new pharmacist positions requiring an “advanced scope of practice,” to be filled

internally, and the elimination of certain pre-existing pharmacist positions,

including the positions that the plaintiffs held.

      The plaintiffs claim they were not selected to fill the new pharmacist

positions due to their gender and age and were similarly denied opportunities to

train and qualify for those positions due to their gender and age. The VA’s non-

selection of the plaintiffs for the new pharmacist positions, along with its

reorganization and elimination of the plaintiffs’ then-current positions, resulted in a

reassignment of the plaintiffs’ positions and job duties. The plaintiffs claim their

reassignments resulted in losses of prestige and responsibility. The plaintiffs have

suffered no decrease in pay and are still employed by the VA.

      We recount below the plaintiffs’ training and credentials, as well as their

experience and performance as pharmacists. We then discuss the VA’s creation

and implementation of the treatment initiative that gave rise to the new pharmacist

positions and discuss the objective qualifications required to fill those positions.

Finally, we recount the plaintiffs’ unsuccessful attempts to qualify for and fill the

new pharmacist positions.

A.    The Plaintiffs and their Supervisors

      Dr. Donna Trask, a female born in 1953, is a licensed clinical pharmacist.

At the time of the events material to this appeal, Dr. Trask was approximately 58


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years old. Dr. Trask obtained a Bachelor of Pharmacy Degree in 1975, and a

Doctor of Pharmacy Degree in 2002. Over her decades-long career as a clinical

pharmacist, Dr. Trask has gained extensive experience monitoring medication

distribution, establishing drug handling procedures, maintaining prescription

records, training pharmacy personnel, educating and consulting patients, and

making medication recommendations to physicians for all types of diseases and

medical conditions, commonly referred to as “disease states.”

      In 2010, Dr. Trask obtained a certificate in Medication Management

Therapy, which indicates expertise in several areas, including disease state

management and selecting, initiating, and modifying medication therapy. In 2011,

Dr. Trask obtained board certification as a geriatric pharmacist, which

demonstrated competence in over 100 disease states in the senior population.

Dr. Trask has also taught classes in pharmacology.

      Dr. Anita Truitt, a female born in 1955, is also a licensed clinical

pharmacist. At the time of the events material to this appeal, Dr. Truitt was

approximately 55 years old. Dr. Truitt obtained a Bachelor of Science Degree in

Pharmacy in 1978, and a Doctor of Pharmacy Degree in 2003. Throughout her

decades-long career as a pharmacist, her job duties have required her to counsel

and educate patients in several disease states.




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      In 2002, the plaintiffs began working as clinical “float” pharmacists for Bay

Pines VA Healthcare System (“Bay Pines”). In 2003, they received assignments as

“module” pharmacists. Bay Pines is split into 4 “modules,” all of which provide

primary care. Dr. Trask worked in Module D and Dr. Truitt worked in Module B.

      The plaintiffs had all the same supervisors. Their first-line supervisor was

Dr. Robert Stewart, a male in his 40s. Their second-line supervisors, each an

Associate Chief of Pharmacy, were Dr. Keri Justice, a female in her 30s, and

Dr. Camaro West-Lee, a female in her 40s. Their third-line supervisor was the Bay

Pines Chief of Pharmacy, Dr. Gary Wilson, a male in his 50s.

B.    The Plaintiffs’ Duties and Performance as Module Pharmacists

      Dr. Trask testified that her duties as a module pharmacist involved

monitoring labs, calculating dosages, conducting extensive patient interviews,

evaluating non-formulary drug requests, training personnel and new pharmacists,

and making informed medication recommendations to physicians. When

providing treatment, Dr. Trask would typically interview the patient, evaluate his

medical history, look for changes in the patient, consider modifications to

medication, screen for contraindications, and educate the patient. Dr. Trask

believed she performed all the duties of a mid-level provider.

      Apart from providing primary care, Dr. Trask collaborated with several

patient-centered care teams in Module D including the Spinal Cord Injury Team,


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the Traumatic Brain Injury Team, and the Post-deployment team for veterans

returning from Iraq and Afghanistan. Dr. Trask received specialized training and

testified that she was the Bay Pines pharmacy service’s “expert in spinal cord

injury.” Dr. Trask received an “exceptional” rating on all her performance reviews

and never had a complaint filed against her.

      Dr. Truitt testified that her duties as a module pharmacist involved managing

patients’ medications and recommending certain drug therapies to physicians. She

testified that more than 50% of her module practice at Bay Pines involved disease

state management. Dr. Truitt also trained newly hired doctors and pharmacists and

served as a preceptor for pharmacy students at a nearby college. Dr. Truitt

received exceptional performance reviews for her work as a module pharmacist.

      While the plaintiffs contended that they were doing most of the duties of a

mid-level provider, the admitted that they never signed prescriptions in their own

names. In fact, module pharmacists at Bay Pines never prescribed, managed, or

monitored medications independent from a physician.

C.    Advanced Scope of Practice

      Bay Pines pharmacists have the ability to hold either a general scope of

practice or an advanced scope of practice (“advanced scope”). A general scope of

practice, held by all clinical pharmacists, entails general pharmaceutical duties,

such as processing prescriptions and using clinical judgment to follow lab work.


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An advanced scope allows a pharmacist to prescribe medications for a specific

disease state within their practice, such as diabetes, hypertension, and

hyperlipidemia.

      While there are several types of advanced scopes, the defining feature of

most is that they allow pharmacists to independently write prescriptions without a

doctor’s approval. Thus, pharmacists with advanced scopes function “very much

like a physician or an advanced provider, a nurse practitioner, or a . . . physician’s

assistant.”

      To obtain an advanced scope, a clinical pharmacist must obtain approval

from the Bay Pines Pharmacy Professional Standards Board (“Standards Board”).

The Standards Board looks at two criteria: (1) whether the pharmacists’ job

requires an advanced scope, and (2) whether the pharmacist is qualified and

credentialed to hold an advanced scope. Obtaining and maintaining an advanced

scope requires long-term peer review from multiple supervisory pharmacists. As

such, the Standards Board does not grant advanced scopes “unless they are a

requirement of the job area and job description in which someone practices.”

      A pharmacist could initiate the process for obtaining an advanced scope by

speaking with his or her supervisor. The supervisor would then submit a request to

the credentialing department, which would provide the necessary paperwork,

including an “Advanced Scope of Practice and Prescriptive Authority


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Application.” The application was a short document that required the applicant to

check a few boxes, sign, and date. The application also contained a section for

signatures from “collaborating” physicians, who would indicate their approval or

disapproval of the applicant’s receipt of an advanced scope.

      The Standards Board reviewed all advanced scope applications. At the time

material to this appeal, the Standards Board committee consisted of Dr. Stewart

and seven other individuals. Dr. Justice was the Chairperson of the Standards

Board. Once the Standards Board had reviewed the application and interviewed

the relevant supervisory pharmacists, it would reach a final decision, subject to

Dr. Wilson’s approval.

      The plaintiffs did not have advanced scopes. As module pharmacists, their

jobs did not require one. Dr. Trask was unaware of any person receiving an

advanced scope who did not have an assignment requiring one.

      Without an advanced scope, the plaintiffs lacked authority to independently

prescribe medications to manage patients’ diseases. As Dr. Truitt recognized,

“[T]echnically we could not make the change [in medications] without the doctor’s

approval in making that change.” Dr. Trask similarly testified, “I made

recommendations all day long. I couldn’t put it in my name because I didn’t have

an advanced scope.”




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D.    Patient Aligned Care Teams

      In the spring of 2010, the VA Central Office announced a nationwide

initiative known as “Patient Aligned Care Teams,” or “PACT.” The goal of PACT

was to develop a patient-centered, team-based approach to health care. PACT was

intended to replace episodic care based on illness and patient complaints with

coordinated care and long term healing relationships.

      Each PACT team consists of a provider, such as a physician, nurse

practitioner, or physician assistant, a licensed practical nurse, a clerk, and other

team members, such as clinical pharmacists, social workers, and dieticians. PACT

required each team member to function at his or her “highest” licensed capacity in

order to provide complete care to the patient. In PACT, the pharmacist would

function as a mid-level provider who managed chronic disease sates, made critical

decisions about the patient’s care, and prescribed medications. A PACT

pharmacist needed to function under an advanced scope so that he or she could

independently prescribe medication.

E.    PACT Pilot Program at Lakeside Clinic

      In April 2010, Bay Pines initiated a series of pilot programs to test the

implementation of the PACT initiative. One of the pilot programs was at the

Lakeside Clinic (“Lakeside”)—a standalone primary care area not located within

the central Bay Pines modules. Dr. Larry Atkinson, the acting Chief of Primary


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Care, and members of the Bay Pines PACT executive council chose Lakeside as

the pilot site.2 They chose Lakeside because it had available space, it was close to

the primary care administrative offices, and the providers there had been involved

with PACT from its inception.

       Dr. Brian Steele, a male in his 30s, was working as a module pharmacist at

Lakeside when it was chosen as a pilot program site. Management selected

Dr. Steele to participate in the pilot program because he was already working with

the physicians selected to participate in the pilot program. Dr. Steele also had

several nationally recognized certifications that were valuable for pharmacists

wishing to participate in PACT.

       Dr. Steele’s participation in the pilot program required him to have an

advanced scope so that he could perform the responsibilities of a PACT

pharmacist. But at the time the pilot program commenced, Dr. Steele was not

qualified to receive an advanced scope. Rather than move a clinical pharmacy

specialist with an advanced scope to Lakeside, Bay Pines decided to “embrace the

pilot” and train Dr. Steele.

       After several months of training in the disease management clinic, Dr. Steele

applied for an advanced scope. Dr. Steele received an advanced scope in January

2011 on the grounds that his participation in the Lakeside pilot program required it.

       2
        While Dr. Justice was on the PACT executive council, she did not have direct
responsibility for choosing that pilot site.
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F.    PACT Implementation Plan

      On February 10, 2011, pharmacy management held a meeting with the

module pharmacists. Dr. Justice announced that the module pharmacists would

remain in their positions and transition into becoming PACT pharmacists.

Pharmacists who already had advanced scopes would mentor the module

pharmacists, such as the plaintiffs, in disease state management to prepare them for

their new roles as PACT pharmacists. This initial plan pleased the plaintiffs, as

they would keep their jobs, receive training, presumably obtain advanced scopes,

and eventually become PACT pharmacists.

      At the end of February 2011, Dr. Justice and Dr. Wilson attended a meeting

between the chiefs of multiple VA medical centers within their region and their

regional leaders. Roy Coakley, a regional leader who had recently met with

Richard Stark, the so-called “father of PACT,” attended the meeting. At the

meeting, Dr. Justice and Dr. Wilson sought guidance from Coakley and others

regarding Bay Pine’s PACT implementation plan. After speaking with Coakley

and other pharmacy chiefs, Dr. Wilson learned that training module pharmacists as

PACT pharmacists was not best practice. Rather, pharmacists who already had

experience providing mid-level care with advanced scopes should be considered

for the PACT positions “in order to provide the best possible care to the patients.”




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      On March 3, 2011, based on the advice they received at the February 2011

meeting, Dr. Wilson and Dr. Justice announced a revision to the PACT

implementation plan. Rather than leaving the current module pharmacists in place

and training them to become PACT pharmacists, management allowed all Bay

Pines pharmacists to apply for a PACT pharmacist position.

      On May 19, 2011, Dr. Wilson sent an email to all Bay Pines pharmacists

announcing that the time had come to “reorganize” and “implement PACT . . .

throughout the Bay Pines Healthcare System.” Dr. Wilson stressed that “[m]ultiple

national initiatives” were guiding their restructuring decision, which would require

“reassigning pharmacists, relocating workload and maximizing efficiency.”

Dr. Wilson noted that the PACT model required “strong clinicians,” and that

“Central Office . . . established the qualification standards that each clinician

should possess.”

      The email contained a reorganization table that announced the creation of

seven PACT positions—two at Module B, two at Module D, two at Lakeside, and

one at the Palm Harbor Community-Based Outpatient Clinic, another part of Bay

Pines. In July 2011, Human Resources formally posted to the USA Jobs website

the PACT positions opening at Module B, Module D, and Lakeside. At that time,

the Palm Harbor position had not yet been approved, so the July 2011 USA Jobs

postings included only the six main-campus positions.


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G.    PACT Applicants and Selections

      Twelve Bay Pines pharmacists, including the plaintiffs and Dr. Steele,

applied for the six PACT positions formally posted on USA Jobs in July 2011.

Among the applicants was Dr. Linda Rolston, a female in her mid-50s.

Dr. Rolston obtained an advanced scope in 1988. Dr. Rolston believed she had

applied for the PACT position initially planned for Palm Harbor, but did not

realize that the July 2011 USA Jobs posting included only the six positions at the

main campus. Dr. Justice informed Dr. Rolston that the Palm Harbor position was

not yet approved. Dr. Justice nevertheless offered Dr. Rolston one of the PACT

positions at the main campus. Dr. Rolston declined the offer and told Dr. Justice

she would like to be reconsidered when the Palm Harbor position became

available.

      In September 2011, Bay Pines selected six applicants to fill the PACT

pharmacist positions. Dr. West, Dr. Justice, and Dr. Stewart provided input, but

Dr. Wilson was the ultimate selecting official. The six applicants chosen for the

PACT positions were Hetal Bhatt-Chugani, Will Lavinghousez, Brian Steele,

Rodrique Rodney, Germain Thomas, and Michael Kelley. Each of the selected

pharmacists possessed an advanced scope in disease state management prior to

applying for the positions.




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         The five applicants not selected were the two plaintiffs and three others,

Peter Pasek, Natalia Schwartz, and Timothy Ebert. Pasek and Schwartz both

already possessed an advanced scope in disease state management prior to

applying for the positions. The plaintiffs and Ebert were the only applicants who

did not have advanced scopes when they applied. Dr. Wilson did not select the

plaintiffs primarily because they did not have advanced scopes, and they did not

have experience prescribing medicine under an advanced scope.

         Bay Pines’ PACT pharmacist selections are summarized in the following

table:

   Name/Approximate Age in              Application Outcome         Possession of
          2011/Gender                                             Advanced Scope?
 Hetal Bhatt-Chugani/33/F               Selected                  Yes

 Will Lavinghousez/30/M                 Selected                  Yes

 Linda Rolston/54/F                     Selected, but withdrew Yes

 Brian Steele/32/M                      Selected                  Yes

 Rodrique Rodney/28/M                   Selected                  Yes

 Germain Thomas/31/F                    Selected                  Yes

 Michael Kelley/29/M                    Selected                  Yes

 Peter Pasek/28/M                       Not Selected              Yes

 Natalia Schwartz/(young)/F             Not Selected              Yes



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Timothy Ebert/26/M                    Not Selected             No

Donna Trask/58/F                      Not Selected             No

Anita Truitt/55/F                     Not Selected             No


H.    Plaintiffs’ Attempts to Obtain Advanced Scopes and Receive Training

      The plaintiffs attempted to obtain advanced scopes and receive related

training on several occasions. Soon after the VA Central Office announced the

PACT initiative, Plaintiff Dr. Trask told Dr. Justice that she wanted whatever

training and education would be necessary to perform a PACT position, including

obtaining an advanced scope. Dr. Justice responded, “Oh, we’ll get that later.”

Dr. Trask mentioned her desire to obtain an advanced scope to Dr. Justice several

more times, but was repeatedly “put off.” According to Dr. Justice, at the time

Dr. Trask initially requested an advanced scope, and the several times thereafter,

her module was not operating under PACT and, therefore, she did not need an

advanced scope.

      In April 2011, a few months before PACT selections were made, Dr. Ernest

Baul, the primary care provider for spinal cord injury patients, asked Dr. Trask to

obtain an advanced scope in order to help treat spinal cord injury patients. The

advanced scope would allow Dr. Trask to write orders for soft prosthetics and

assist with lipid management. Dr. Trask informed Dr. Stewart of Dr. Baul’s

request, and asked him to initiate the process for obtaining an advanced scope with
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the credentialing department. Dr. Stewart’s request got passed on to Dr. Justice,

who said she was on administrative leave and would not be able to review the

matter until mid-May. Dr. Justice ultimately denied Dr. Baul’s request for

Dr. Trask to receive an advanced scope on the grounds that Dr. Baul already had

access to pharmacists who had advanced scopes and were better suited to help him.

      In July 2011, the plaintiffs attempted to obtain advanced scope applications

on their own, but management refused to provide the applications, or any guidance

on how to obtain one. The plaintiffs ultimately obtained the application with the

assistance of a union representative.

      On or about July 25, 2011, the plaintiffs completed their written advanced

scope applications. The applications required written recommendations from

collaborating physicians. All six of the Module D physicians recommended

approval of Dr. Trask’s request for an advanced scope. Two of the six Module B

physicians recommended approval of Dr. Truitt’s request for an advanced scope.

Apart from signing the applications, several physicians testified that both plaintiffs

were highly regarded and well-qualified to receive advanced scopes. In other

words, several treating physicians believed that, based on their extensive

experience, the plaintiffs were qualified to independently prescribe medications

under supervision.




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      The Standards Board held the plaintiffs’ July 25, 2011 applications until

after the PACT pharmacist positions were filled in early September 2011. On

September 15, 2011, after PACT selections had been made, Dr. Justice informed

the plaintiffs that the Standards Board had denied their advanced scope

applications on two grounds: (1) their current positions did not require them to

maintain an advanced scope or have prescriptive authority, and (2) there was

insufficient data available to complete a Focused Professional Practice Evaluation

of direct patient care activities. Dr. Justice clarified that the second reason for

denying the plaintiffs’ advanced scope applications meant that the plaintiffs had

not received sufficient training. This was the first time Bay Pines had ever denied

an advanced scope application.

I.    Discrimination Complaints and Reassignment

      On August 30, 2011, just before PACT selections were made, the plaintiffs

made their initial contact with an Equal Employment Opportunity (“EEO”)

counselor and asserted that they were the victims of gender and age discrimination.

On September 26, 2011, following their non-selection for the PACT pharmacist

positions, Bay Pines reassigned the plaintiffs to the outpatient float pool. While

their reassignments did not affect their salary or their grades, the plaintiffs no

longer spoke with physicians or consulted patients. Instead, as float pharmacists,

the plaintiffs performed a “dispensing job” as if they were “on an assembly line.”


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The plaintiffs believed their reassignments resulted in a loss of “prestige and

responsibility.”

      On October 12, 2011, Dr. Truitt and Dr. Trask each filed a formal complaint

of discrimination with the VA. Dr. Truitt subsequently received her 2011

performance review, which rated her compliance performance as “fully successful”

rather than “exceptional.” Dr. Trask also testified that in May and June of 2012,

just after the parties had provided EEO investigation testimony that spring,

management did not allow her to attend certain committee meetings as a union

representative.

                        II.    PROCEDURAL HISTORY

      On August 2, 2013, the plaintiffs filed a second amended complaint in

federal district court against the VA alleging causes of action for gender

discrimination under Title VII, age discrimination under the ADEA, retaliation,

and hostile work environment. In a March 19, 2015 order, the district court

granted summary judgment in favor of the VA on all of the plaintiffs’ claims. This

appeal followed.

                               III.   DISCUSSION

A.    Gender and Age Discrimination

      Employment discrimination claims all require proof of discriminatory intent.

See Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th Cir. 2005).


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When, as here, a Title VII or ADEA plaintiff’s employment discrimination claim is

based on circumstantial evidence, courts apply the burden-shifting framework set

out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973).

Kidd v. Mando Am. Corp., 731 F.3d 1196, 1202 (11th Cir. 2013) (Title VII);

Kragor v. Takeda Pharms. Am., Inc., 702 F.3d 1304, 1308 (11th Cir. 2012)

(ADEA).

      Under the McDonnell Douglas framework, a plaintiff must first create an

inference of discrimination through her prima facie case. Vessels, 408 F.3d at 767.

“Once the plaintiff has made a prima facie case, a rebuttable presumption arises

that the employer has acted illegally.” Alvarez v. Royal Atl. Developers, Inc., 610

F.3d 1253, 1264 (11th Cir. 2010). “The employer can rebut that presumption by

articulating one or more legitimate non-discriminatory reasons for its action.” Id.

“If it does so, the burden shifts back to the plaintiff to produce evidence that the

employer’s proffered reasons are a pretext for discrimination.” Id.

      On appeal, the plaintiffs argue that they established a prima facie case for

gender and age discrimination with respect to two discrete adverse employment

actions: (1) their non-selection for the PACT pharmacist positions, and (2) the

denial of their requests for an advanced scope and associated training. We address

each argument in turn.




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      1.     Non-Selection for PACT Pharmacist Positions

      In a typical failure-to-hire scenario, the plaintiff establishes a prima facie

case of unlawful discrimination by demonstrating that: “(1) she was a member of a

protected class; (2) she applied and was qualified for a position for which the

employer was accepting applications; (3) despite her qualifications, she was not

hired; and (4) the position remained open or was filled by another person outside

of her protected class.” EEOC v. Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1273

(11th Cir. 2002).

      To demonstrate that she was qualified for the position at the prima facie

stage, a plaintiff must show that she satisfied an employer’s objective

qualifications. Vessels, 408 F.3d at 769. “[S]ubjective evaluations play no part in

the plaintiff's prima facie case.” Id. “Rather, they are properly articulated as part

of the employer’s burden to produce a legitimate race-neutral basis for its decision,

then subsequently evaluated as part of the court’s pretext inquiry.” Id.

      Here, the plaintiffs failed to demonstrate that they were objectively qualified

to fill the PACT pharmacist positions, which is fatal to their prima facie case. It is

undisputed that one of the objective hiring criteria for the PACT pharmacist

positions was the possession of an advanced scope. Because the PACT initiative

required the PACT team pharmacist to function as a mid-level provider who

managed chronic disease sates, made critical decisions about the patient’s care, and


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prescribed medications, a PACT pharmacist needed to function under an advanced

scope so that he or she could independently prescribe medication. This objective

requirement was made abundantly clear by Bay Pines’ PACT pharmacist

selections, all of whom had previous experience independently prescribing

medication under an advanced scope.

      The plaintiffs presented copious amounts of evidence establishing that they

were very experienced clinical pharmacists who consistently received outstanding

performance reviews. We have no doubt that the plaintiffs were proficient module

pharmacists at Bay Pines. That said, the plaintiffs did not have advanced scopes

and had no experience providing mid-level care with independent prescription

authority. Despite the subjective factors supporting their qualifications to function

as PACT pharmacists, the plaintiffs did not possess the objective qualifications

necessary to fill the position. Because the plaintiffs were not objectively qualified

to perform the duties of a PACT pharmacist, they failed to establish an element of

their prima facie failure-to-hire case. See Vessels, 408 F.3d at 769; Joe’s Stone

Crabs, Inc., 296 F.3d at 1273.

      2.     Denial of Requests for Advanced Scopes and Related Training

      To establish a prima facie case for disparate treatment in an employment

discrimination case, the plaintiff must show that: “(1) she is a member of a

protected class; (2) she was subjected to an adverse employment action; (3) her


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employer treated similarly situated employees outside of her protected class more

favorably than she was treated; and (4) she was qualified to do the job.” Burke-

Fowler v. Orange Cty., 447 F.3d 1319, 1323 (11th Cir. 2006).

      With respect to the third prong of the prima facie case, the plaintiffs and the

employee they identify as a comparator must be similarly situated in all relevant

respects. Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir. 2004).

The comparator must be “nearly identical” to the plaintiffs to prevent courts from

second-guessing a reasonable decision by the employer. Id. Thus, in order for the

plaintiffs in this case to establish a prima facie case for unlawful disparate

treatment, they must show that a similarly-situated individual outside of their

protected class applied for an advanced scope and received it. See Maynard v. Bd.

of Regents, 342 F.3d 1281, 1289 (11th Cir. 2003).

      The plaintiffs’ sole proffered comparator is Dr. Steele, a young male who

received an advanced scope and the associated training due to his participation in

the Lakeside PACT pilot program. But, compared to the plaintiffs, Dr. Steele was

not a “similarly-situated individual.” While Dr. Steele was also a module

pharmacist, he did not even work in the same building as the plaintiffs. The acting

Chief of Primary Care and members of the Bay Pines PACT executive council

chose Lakeside as the site for the PACT pilot program. Dr. Steele received an

advanced scope and the associated training because he happened to work at


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Lakeside, the chosen pilot program site. The plaintiffs did not work at that

location.

      Dr. Steele was already a module pharmacist at Lakeside and worked with

many of the providers selected to participate in the pilot program. Thus, Dr. Steele

was a natural choice for serving as a pharmacist in the Lakeside PACT pilot

program. Once selected to participate in the pilot program, Dr. Steele’s job duties

required that he train for and obtain an advanced scope. Conversely, prior to the

implementation of PACT, the plaintiffs’ jobs never required that they train for or

obtain an advanced scope. As such, Dr. Steele and the plaintiffs were dissimilar in

several critical respects, and were a far cry from being “nearly identical.” Wilson,

376 F.3d at 1091.

      Simply put, the plaintiffs were module pharmacists in Bay Pines’ pre-PACT

main campus whose jobs did not require possession of an advanced scope, while

Dr. Steele was a pilot-program-participant whose job did require the possession of

an advanced scope. Thus, Dr. Steele was not a valid comparator.

      The plaintiffs proffered no comparator other than Dr. Steele. In fact, the

plaintiffs presented no evidence that any other Bay Pines module pharmacist ever

applied for an advanced scope so that he or she would qualify for a PACT position.

Because the plaintiffs did not demonstrate that a similarly situated comparator

outside of their protected class was given an advanced scope, they failed to


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establish a prima facie case for unlawful disparate treatment. 3 See Maynard, 342

F.3d at 1289.

       Not only did the plaintiffs fail to identify a valid comparator, which is fatal

to their prima facie case, but the VA came forward with undisputed evidence that

Bay Pines had actually selected Dr. Rolston, a female in her mid-50s, to fill one of

the PACT pharmacist positions. For this reason and others, we find no

“convincing mosaic of circumstantial evidence” giving rise to an inference of age

or gender discrimination. See Smith v. Lockheed-Martin Corp., 644 F.3d 1321,

1328 (11th Cir. 2011).

B.     Retaliation

       Title VII makes it illegal for “an employer to discriminate against any of his

employees . . . because he has opposed any practice made an unlawful employment

practice by this subchapter, or because he has made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding, or hearing under this

subchapter.” 42 U.S.C. § 2000e–3(a). The ADEA contains a similar anti-

       3
         Even if the plaintiffs had established a prima facie case of age and gender
discrimination, which they did not, they certainly failed to demonstrate that Bay Pines’ reasons
for not selecting them for the PACT positions and denying their advanced scope applications
were pretexts for unlawful discrimination. This too is fatal to the plaintiffs’ claims.
        No pharmacist had ever applied for an advanced scope under the circumstances that the
plaintiffs did. The plaintiffs concede that they were module pharmacists whose jobs did not
require an advanced scope. They only applied for advanced scopes in order to qualify for the
PACT pharmacist position, not because Bay Pines had some particular need for more
pharmacists with advanced scopes. Given that Bay Pines had no need for additional pharmacists
with advanced scopes at the time of the plaintiffs’ applications, its denial of their applications
was hardly suspect.
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retaliation provision. See 29 U.S.C. § 623(d). To establish a prima facie case of

retaliation, plaintiffs must prove that: (1) they engaged in statutorily protected

conduct; (2) they suffered an adverse employment action; and (3) the adverse

action was causally related to the protected expression. Butler v. Ala. Dep’t of

Transp., 536 F.3d 1209, 1212-13 (11th Cir. 2008).

      “Once a plaintiff has established a prima facie case, the employer then has

an opportunity to articulate a legitimate, non-retaliatory reason for the challenged

employment action.” Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th

Cir. 2001). “The ultimate burden of proving by a preponderance of the evidence

that the reason provided by the employer is a pretext for prohibited, retaliatory

conduct remains on the plaintiff.” Id.

      On appeal, the plaintiffs argue that the district court erred by granting

summary judgment in favor of the VA with respect to their retaliation claims. The

plaintiffs contend they suffered four discrete instances of retaliation following their

initial August 30, 2011 EEO contact: (1) on September 26, 2011, they were

reassigned to the outpatient float pool, (2) at the end of 2011, Dr. Truitt received

her annual performance review, which rated her compliance performance as “fully

successful” rather than “exceptional,” (3) in April 2012, Dr. Truitt had to seek

approval from three supervisors to attend a planning committee meeting as a union

representative, and (4) in May and June of 2012, pharmacy management did not


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permit Dr. Trask to attend committee meetings as a union representative. As

explained below, none of these events constitute an actionable retaliation claim.

      1.     Reassignment to Float Pool

      We have considerable doubt about whether the plaintiffs’ reassignment to

the float pool can satisfy the elements of a prima facie retaliation case. A work

reassignment may constitute an adverse employment action when the change is “so

substantial and material that it . . . alter[s] the terms, conditions, and privileges of

employment.” See Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1245 (11th

Cir. 2001) (quotation marks omitted).

      Here, the plaintiffs’ reassignment resulted in no decrease in pay or grade.

And while the plaintiffs offered some subjective evidence that the float pharmacist

position involved decreased responsibility and prestige and required the

performance of more menial tasks, it is not clear that these changes were so

substantial that they amounted to an actionable adverse employment action. See

id. (“In the vast majority of instances, . . . an employee alleging a loss of prestige

on account of a change in work assignments, without any tangible harm, will be

outside the protection afforded by Congress in Title VII's anti-discrimination

clause.”).

      Additionally, Title VII retaliation claims require proof that “[the] protected

activity was a but-for cause of the alleged adverse action by the employer.” Univ.


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of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. ___, 133 S. Ct. 2517, 2534 (2013). As

early as February 2011, almost eight months before the plaintiffs engaged in their

protected activity, pharmacy management stated that pharmacists who were not

selected for PACT positions might become floating pharmacists. Because

pharmacy management had already decided to reassign module pharmacists who

were not selected for PACT positions to the float pool following the

implementation of PACT, the plaintiffs’ protected activity could not have been a

but-for cause of their reassignment. See id.

      In any event, even assuming arguendo that the plaintiffs’ reassignment to the

float pool constitutes a prima facie retaliation case, the plaintiffs presented no

evidence that the Bay Pines’ legitimate non-discriminatory reason for the

reassignment was pretextual. The record evidence demonstrates that the plaintiffs’

reassignment to the float pool was a natural consequence of their non-selection for

the PACT positions and the elimination of module pharmacist assignments.

      Because Bay Pines proffered legitimate non-discriminatory reasons for the

plaintiffs’ reassignment to the float pool, the plaintiffs had the burden of

demonstrating that Bay Pines’ reasons were pretextual. The plaintiffs offer no

argument as to how or why this might be the case, let alone point to record

evidence demonstrating pretext. Accordingly, the plaintiffs failed to meet their




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burden to show that Bay Pines had retaliatory intent when it reassigned them to the

float pool, and the district court properly granted summary judgment on this claim.

      2.     Remaining Retaliation Claims

      “[T]o prove adverse employment action in a case under Title VII’s anti-

discrimination clause, an employee must show a serious and material change in the

terms, conditions, or privileges of employment.” Davis, 245 F.3d at 1239.

“Moreover, the employee’s subjective view of the significance and adversity of the

employer’s action is not controlling; the employment action must be materially

adverse as viewed by a reasonable person in the circumstances.” Id.

      Viewed objectively, neither Dr. Truitt’s performance review nor the

restrictions on Dr. Trask’s attendance at committee meetings constitutes an adverse

employment action. Dr. Truitt did not suffer an adverse material consequence after

receiving a “fully successful” performance review, and Dr. Trask appears to have

suffered nothing more than frustration regarding her inability to attend certain

meetings. As such, neither of these events constituted a serious and material

change in the terms, conditions, or privileges of the plaintiffs’ employment. Id.

C.    Hostile Work Environment

      To establish a hostile work environment claim under Title VII, a plaintiff

must show that “the workplace is permeated with discriminatory intimidation,

ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of


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. . . employment and create an abusive working environment.” Gowski v. Peake,

682 F.3d 1299, 1311 (11th Cir. 2012). To prove a prima facie case of hostile work

environment, a plaintiff must establish that: (1) he or she belonged to a protected

group, (2) he or she was subjected to unwelcome harassment, (3) the harassment

was based on a protected characteristic, (4) the harassment was sufficiently severe

or pervasive to alter the terms and conditions of his or her employment and create

an abusive working environment, and (5) a basis exists for holding the employer

liable. Gupta v. Fla. Board of Regents, 212 F.3d 571, 582 (11th Cir. 2000).

      “It is a bedrock principle that not all objectionable conduct or language

amounts to discrimination under Title VII.” Jones v. UPS Ground Freight, 683

F.3d 1283, 1297 (11th Cir. 2012) (quotation marks omitted). “Therefore, only

conduct that is based on a protected category . . . may be considered in a hostile

work environment analysis.” Id. (emphasis added) (quotation marks omitted); see

also Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 809 n.3 (11th Cir.

2010) (“[T]he Courts of Appeals have uniformly observed that Title VII is not a

civility code, and that harassment must discriminate on the basis of a protected

characteristic in order to be actionable.”). “Innocuous statements or conduct, or

boorish ones that do not relate to the [age or gender] of the actor or of the offended

party (the plaintiff), are not counted.” Jones, 683 F.3d at 1297.




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      The plaintiffs argue on appeal that the district court erred by granting

summary judgment in favor of the VA with respect to their hostile work

environment claim. The plaintiffs broadly cite to several instances in which

pharmacy management behaved rudely and made comments that plaintiffs

considered offensive, belittling, and humiliating, most of which involved PACT

implementation and union representation. The plaintiffs also cite testimony of

other witnesses who believed that the plaintiffs were treated poorly.

      The plaintiffs’ evidence does not amount to an actionable hostile work

environment claim. The plaintiffs’ naked assertion that they have been subjected

to discriminatory hostile treatment is not sufficient to constitute a hostile work

environment. Rather, the plaintiffs must show the hostile treatment was based on

their protected status. Jones, 683 F.3d at 1297. Despite the voluminous incidents

of pharmacy management’s alleged hostility, pharmacy management’s comments

were never related to the plaintiffs’ protected characteristics, and there is no

evidence that their alleged hostility was in any way motivated by a discriminatory

animus regarding the plaintiffs’ age or gender. This alone is fatal to the plaintiffs’

claim. See id; Reeves, 594 F.3d at 809 n.3.

      Additionally, pharmacy management’s comments, though frequently

unprofessional, were not “filled with intimidation and ridicule that was sufficiently

severe or pervasive to alter [the plaintiffs’] working conditions.” Gowski, 682


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F.3d at 1313. Rather, the plaintiffs’ struggles exemplify “the ordinary tribulations

of the workplace, which . . . do[es] not constitute actionable . . . harassment.”

Gupta, 212 F.3d at 586 (quotation marks omitted). Accordingly, the district court

properly granted summary judgment in favor of the VA with respect to the

plaintiffs’ hostile work environment claim.

                               IV.    CONCLUSION

      In light of the foregoing, we affirm the district court’s order granting

summary judgment in favor of the VA on all of the plaintiffs’ claims.

      AFFIRMED.




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