NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _________________
No. 23-1108 _________________
FLORENCE KOCHER, Appellant
v.
SECRETARY UNITED STATES DEPARTMENT OF VETERANS AFFAIRS
________________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-21-cv-00921) District Judge: Honorable Timothy J. Savage ________________ Submitted Under Third Circuit L.A.R. 34.1(a) December 6, 2023
Before: SHWARTZ, CHUNG, and McKEE, Circuit Judges
(Opinion filed: December 7, 2023)
______________
OPINION* ______________
*This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. McKEE, Circuit Judge.
Florence Kocher has been employed by the Veterans Affairs Medical Center in
Philadelphia since 2013. She appeals the District Court’s grant of the Secretary of the
United States Department of Veterans Affairs’ motion for summary judgment on her
claims of sex and age discrimination and retaliation in violation of Title VII of the Civil
Rights Act of 1964 and the Age Discrimination in Employment Act. For the reasons set
forth below, we will affirm.1
I.
Kocher contends that the District Court erred in granting summary judgment on
her claims. While the District improperly applied the private-sector antidiscrimination
and antiretaliation standards2 to Kocher, a federal employee, we will affirm the District
Court because Kocher cannot establish her claims under either the federal-sector
provision of Title VII or the ADEA.
1 We have jurisdiction under 28 U.S.C. § 1291. We review a district court’s grant of summary judgment de novo. Cranbury Brick Yard, LLC v. United States, 943 F.3d 701, 708 (3d Cir. 2019). Summary judgment is only appropriate “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). In making this determination, we “view the facts in the light most favorable to the non-moving party and make all reasonable inferences in that party’s favor.” Scheidemantle v. Slippery Rock Univ. State Sys. of Higher Educ., 470 F.3d 535, 538 (3d Cir. 2006). 2 See Babb v. Wilkie, 140 S. Ct. 1168, 1172, 1176–77 (2020) (distinguishing between private-sector and federal-sector provisions of the ADEA). 2 “The ADEA federal-sector provision was patterned ‘directly after’ Title VII’s
federal-sector discrimination ban.”3 These provisions are nearly identical.4 The ADEA
provides: “All personnel actions affecting [federal] employees . . . who are at least 40
years of age . . . shall be made free from any discrimination based on age.”5 Similarly,
Title VII provides: “All personnel actions affecting [federal] employees . . . shall be made
free from any discrimination based on race, color, religion, sex, or national origin.”6 In
Babb v. Wilkie, the Supreme Court interpreted the ADEA federal sector-provision to
require that “personnel actions be untainted by any consideration of age.”7 Because the
federal-sector provisions of the ADEA and Title VII are essentially identical, the
Supreme Court’s interpretation of the ADEA federal-sector provision controls our
analysis of the Title VII federal-sector provision.8 Thus, under both the federal-sector
3 Gomez-Perez v. Potter, 553 U.S. 474, 487 (2008) (quoting Lehman v. Nakshian, 453 U.S. 156, 167 n.15 (1981)). 4 Both federal-sector provisions provide that “[a]ll personnel actions affecting [federal] employees . . . shall be made free from any discrimination.” 29 U.S.C. § 633a(a); 42 U.S.C. § 2000e-16(a). 5 29 U.S.C. § 633a(a). 6 42 U.S.C. § 2000e-16(a). 7 140 S. Ct. at 1171. 8 See Babb v. Sec’y, Dep’t of Veterans Affs., 992 F.3d 1193, 1198 (11th Cir. 2021) (recognizing that “[b]ecause the relevant [federal-sector] provisions of the ADEA and Title VII are materially identical, . . . the Supreme Court’s analysis of the former controls the latter as well”); Komis v. Sec’y of United States Dep’t of Lab., 918 F.3d 289, 295 (3d Cir. 2019) (recognizing that because the ADEA and Title VII federal-sector provisions are “nearly identical,” the Supreme Court’s holding that the ADEA’s federal-sector provision bars retaliation leads to the conclusion that Title VII’s federal-sector provision also bars retaliation); Huff v. Buttigieg, 42 F.4th 638, 645 (7th Cir. 2022) (recognizing that “[t]he federal-sector provisions in the ADEA and Title VII are identical, so . . . Babb’s causation standard applies equally to [Title VII]”). 3 provision of the ADEA and Title VII, “a personnel action must be made ‘untainted’ by
discrimination.”9
Although these federal-sector provisions do not specifically reference retaliation,
they provide federal employees with the right to bring retaliation claims.10 This is
because when an employee experiences retaliation for complaining about age, race, color,
religion, sex, or national origin discrimination, the employee experiences a form of
“discrimination based on” age, race, color, religion, sex, or national origin.11 “[T]he
phrase ‘based on’ indicates a but-for causal relationship.”12 Thus, in order to succeed on a
retaliation claim, a federal employee must show that a complaint about discrimination is
“the but-for cause of differential treatment.”13
Kocher argues that the VA discriminated and retaliated against her by (1) giving
her lower than desired ratings on two annual evaluations, (2) providing her with
performance counseling, (3) denying her the opportunity to submit her self-evaluation on
an official VA form, (4) including her medical diagnosis in an annual evaluation, and (5)
disclosing her personal information over unencrypted email.14
9 Babb, 140 S. Ct. at 1173. 10 Gomez-Perez, 553 U.S. at 491; Komis, 918 F.3d at 294. 11 See Gomez-Perez, 553 U.S. at 488 (explaining that “retaliation for complaining about age discrimination is ‘discrimination based on age’”). 12 Babb, 140 S. Ct. at 1173 (quoting Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 63, (2007)). 13 See id. at 1174 (emphasis omitted).
Free access — add to your briefcase to read the full text and ask questions with AI
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _________________
No. 23-1108 _________________
FLORENCE KOCHER, Appellant
v.
SECRETARY UNITED STATES DEPARTMENT OF VETERANS AFFAIRS
________________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-21-cv-00921) District Judge: Honorable Timothy J. Savage ________________ Submitted Under Third Circuit L.A.R. 34.1(a) December 6, 2023
Before: SHWARTZ, CHUNG, and McKEE, Circuit Judges
(Opinion filed: December 7, 2023)
______________
OPINION* ______________
*This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. McKEE, Circuit Judge.
Florence Kocher has been employed by the Veterans Affairs Medical Center in
Philadelphia since 2013. She appeals the District Court’s grant of the Secretary of the
United States Department of Veterans Affairs’ motion for summary judgment on her
claims of sex and age discrimination and retaliation in violation of Title VII of the Civil
Rights Act of 1964 and the Age Discrimination in Employment Act. For the reasons set
forth below, we will affirm.1
I.
Kocher contends that the District Court erred in granting summary judgment on
her claims. While the District improperly applied the private-sector antidiscrimination
and antiretaliation standards2 to Kocher, a federal employee, we will affirm the District
Court because Kocher cannot establish her claims under either the federal-sector
provision of Title VII or the ADEA.
1 We have jurisdiction under 28 U.S.C. § 1291. We review a district court’s grant of summary judgment de novo. Cranbury Brick Yard, LLC v. United States, 943 F.3d 701, 708 (3d Cir. 2019). Summary judgment is only appropriate “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). In making this determination, we “view the facts in the light most favorable to the non-moving party and make all reasonable inferences in that party’s favor.” Scheidemantle v. Slippery Rock Univ. State Sys. of Higher Educ., 470 F.3d 535, 538 (3d Cir. 2006). 2 See Babb v. Wilkie, 140 S. Ct. 1168, 1172, 1176–77 (2020) (distinguishing between private-sector and federal-sector provisions of the ADEA). 2 “The ADEA federal-sector provision was patterned ‘directly after’ Title VII’s
federal-sector discrimination ban.”3 These provisions are nearly identical.4 The ADEA
provides: “All personnel actions affecting [federal] employees . . . who are at least 40
years of age . . . shall be made free from any discrimination based on age.”5 Similarly,
Title VII provides: “All personnel actions affecting [federal] employees . . . shall be made
free from any discrimination based on race, color, religion, sex, or national origin.”6 In
Babb v. Wilkie, the Supreme Court interpreted the ADEA federal sector-provision to
require that “personnel actions be untainted by any consideration of age.”7 Because the
federal-sector provisions of the ADEA and Title VII are essentially identical, the
Supreme Court’s interpretation of the ADEA federal-sector provision controls our
analysis of the Title VII federal-sector provision.8 Thus, under both the federal-sector
3 Gomez-Perez v. Potter, 553 U.S. 474, 487 (2008) (quoting Lehman v. Nakshian, 453 U.S. 156, 167 n.15 (1981)). 4 Both federal-sector provisions provide that “[a]ll personnel actions affecting [federal] employees . . . shall be made free from any discrimination.” 29 U.S.C. § 633a(a); 42 U.S.C. § 2000e-16(a). 5 29 U.S.C. § 633a(a). 6 42 U.S.C. § 2000e-16(a). 7 140 S. Ct. at 1171. 8 See Babb v. Sec’y, Dep’t of Veterans Affs., 992 F.3d 1193, 1198 (11th Cir. 2021) (recognizing that “[b]ecause the relevant [federal-sector] provisions of the ADEA and Title VII are materially identical, . . . the Supreme Court’s analysis of the former controls the latter as well”); Komis v. Sec’y of United States Dep’t of Lab., 918 F.3d 289, 295 (3d Cir. 2019) (recognizing that because the ADEA and Title VII federal-sector provisions are “nearly identical,” the Supreme Court’s holding that the ADEA’s federal-sector provision bars retaliation leads to the conclusion that Title VII’s federal-sector provision also bars retaliation); Huff v. Buttigieg, 42 F.4th 638, 645 (7th Cir. 2022) (recognizing that “[t]he federal-sector provisions in the ADEA and Title VII are identical, so . . . Babb’s causation standard applies equally to [Title VII]”). 3 provision of the ADEA and Title VII, “a personnel action must be made ‘untainted’ by
discrimination.”9
Although these federal-sector provisions do not specifically reference retaliation,
they provide federal employees with the right to bring retaliation claims.10 This is
because when an employee experiences retaliation for complaining about age, race, color,
religion, sex, or national origin discrimination, the employee experiences a form of
“discrimination based on” age, race, color, religion, sex, or national origin.11 “[T]he
phrase ‘based on’ indicates a but-for causal relationship.”12 Thus, in order to succeed on a
retaliation claim, a federal employee must show that a complaint about discrimination is
“the but-for cause of differential treatment.”13
Kocher argues that the VA discriminated and retaliated against her by (1) giving
her lower than desired ratings on two annual evaluations, (2) providing her with
performance counseling, (3) denying her the opportunity to submit her self-evaluation on
an official VA form, (4) including her medical diagnosis in an annual evaluation, and (5)
disclosing her personal information over unencrypted email.14
9 Babb, 140 S. Ct. at 1173. 10 Gomez-Perez, 553 U.S. at 491; Komis, 918 F.3d at 294. 11 See Gomez-Perez, 553 U.S. at 488 (explaining that “retaliation for complaining about age discrimination is ‘discrimination based on age’”). 12 Babb, 140 S. Ct. at 1173 (quoting Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 63, (2007)). 13 See id. at 1174 (emphasis omitted). 14 The record reveals that Kocher received an overall rating of “low satisfactory” on her evaluations, the VA allowed Kocher to submit her self-evaluation but did not transfer it onto the official form, and the VA responded to her request and removed all references to her medical diagnosis in her evaluation. 4 On Kocher’s discrimination claims, the District Court concluded that there was no
evidence that Kocher was “treated any differently” than similarly situated employees.15
Accordingly, the District Court held that Kocher could not succeed on her discrimination
claims because Kocher presented “no evidence of disparate treatment.”16 On appeal,
Kocher does not identify any instances of differential treatment. Rather, she generally
contends that the VA’s actions towards her “can only be explained by discrimination,
given their highly unusual nature.”17 We will affirm the District Court’s grant of
summary judgment on Kocher’s discrimination claims because Kocher fails to identify
any evidence to contradict the District Court’s conclusion that the VA’s actions were
untainted by discrimination.
On Kocher’s retaliation claims, the District Court concluded that Kocher had not
identified any prior complaints that she made about discrimination and instead only
vaguely mentioned that she engaged in “prior EEO activity.”18 Accordingly, the District
Court held that Kocher could not succeed on her retaliation claims because Kocher failed
to establish a causal connection between any prior EEO activity and the VA’s actions. On
appeal, Kocher continues to vaguely argue that she was retaliated against for “prior EEO
activity” without identifying any specific prior complaints that she made about
discrimination.19 We will affirm the District Court’s grant of summary judgment because
15 Kocher v. McDonough, Civ. No. 21-921, 2022 WL 17858056, at *6 (E.D. Pa. Dec. 22, 2022). 16 Id. 17 Opening Br. 11. 18 Kocher, 2022 WL 17858056, at *7. 19 Opening Br. 15–16. 5 Kocher has not established that her unspecified prior EEO activity was the but-for cause
of any differential treatment by the VA.
II.
For the above reasons, we will affirm the District Court’s order granting the VA’s
motion for summary judgment.