[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 19-13153

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D.C. Docket No. 8:17-cv-03045-JSM-AEP

JACQUES A. DURR, M.D., 

 Plaintiff - Appellant,

versus

SECRETARY, DEPARTMENT OF VETERANS AFFAIRS, 

 Defendant - Appellee.

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Appeal from the United States District Court

for the Middle District of Florida

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(April 7, 2021)

Before MARTIN, NEWSOM, and BRANCH, Circuit Judges.

PER CURIAM: 

Jacques Durr appeals the district court’s grant of summary judgment to the 

Secretary of the Department of Veterans Affairs on his Title VII age and gender

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discrimination and retaliation claims. Durr brought his claims against the 

Secretary under 42 U.S.C. § 2000e-16. That section prohibits discrimination 

against federal employees. It says, “All personnel actions affecting employees or 

applicants for employment [in the Federal Government] . . . shall be made free 

from any discrimination based on race, color, religion, sex, or national origin.” 42 

U.S.C. § 2000e-16.1

 

In the past, we had held that to succeed under that provision, a plaintiff must 

show that his protected activity or status was the but-for cause of the adverse 

employment action. See Trask v. Sec’y, Dep’t of Veterans Affairs, 822 F.3d 1179, 

1194 (11th Cir. 2016). Thus, when assessing a plaintiff’s claim of discrimination 

based on circumstantial evidence, courts either applied the burden-shifting 

framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), or 

they asked whether the plaintiff had presented a “convincing mosaic of 

circumstantial evidence that would allow a jury to infer intentional discrimination.” 

See Lewis v. City of Union City, 934 F.3d 1169, 1185 (11th Cir. 2019). The district 

court here rejected Durr’s claims under those standards. 

1 Though § 2000e-16 does not expressly prohibit retaliation for filing a charge based on those 

protected characteristics, we have explained that retaliation based on protected traits is itself 

discrimination. See Babb v. Sec’y, Dep’t of Veterans Affairs, 2021 WL 1219654, at *7 (11th Cir. 

Apr. 1, 2021); Porter v. Adams, 639 F.2d 273, 277–78 (5th Cir. Unit A Mar. 1981). 

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But following the Supreme Court’s decision in Babb v. Wilkie, 140 S. Ct. 

1168 (2020), we have recognized that a plaintiff no longer need show that his 

protected activity or status was the but-for cause of the adverse action to state a 

claim under § 2000e-16. Babb v. Sec’y, Dep’t of Veterans Affairs, 2021 WL 

1219654, at *7 (11th Cir. Apr. 1, 2021). Rather, a plaintiff’s claim survives if 

“discrimination play[ed] any part in the way a decision [was] made.” Babb, 140 S. 

Ct. at 1174 (emphasis added); see also Babb, 2021 WL 1219654, at *3. The 

relevant question is whether the protected characteristic was the “but-for cause of 

differential treatment,” not whether it was the “but-for cause of the ultimate 

decision.” Babb, 140 S. Ct. at 1174; see also Babb, 2021 WL 1219654, at *9. 

Because both the McDonnell Douglas framework and the convincing-mosaic test 

are methods of showing that the protected characteristic was the but-for cause of 

the ultimate decision, those tests no longer apply. Babb, 2021 WL 1219654, at *8; 

Lewis, 934 F.3d at 1185–89 (using convincing-mosaic test to show that race and 

gender, and not other factors, were the but-for causes of Lewis’s firing). 

When it analyzed Durr’s claims, the district court did not have the benefit of 

either the Supreme Court’s decision or ours. In light of those decisions, we 

VACATE and REMAND to the district court to decide in the first instance 

whether the Bay Pines Veterans Affairs Hospital’s adverse employment actions 

against Durr satisfy the “free from any discrimination” standard. 

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