26
Fla. L. Weekly Fed. C220aTop of Form

Civil
rights — Employment discrimination — Appeal from order granting summary
judgment in favor of employer in employment discrimination action brought by
female licensed clinical pharmacists alleging gender and age discrimination —
Failure to hire — Pharmacists failed to establish prima facie case of gender
and age discrimination with respect to adverse employment action in the form of
their non-selection for pharmacist positions with Patient Aligned Care Teams,
where they failed to demonstrate that they were objectively qualified to
perform the duties of a PACT pharmacist — Disparate treatment — Pharmacists
failed to establish prima facie case for unlawful disparate treatment with
respect to adverse employment action in the form of the denial of their
requests for advanced scope and associated training, where plaintiffs failed to
show that a similarly-situated individual outside of their protected class was
given an advanced scope and the associated training — Plaintiffs not only
failed to identify a valid comparator, but employer also came forward with undisputed
evidence that a female in her mid-50s had been actually selected to fill one of
the PACT pharmacist positions — Retaliation — Summary judgment properly
granted in favor of employer with respect to pharmacists’ retaliation claims
where plaintiffs failed to meet their burden to show that their reassignment to
float pool was the result of retaliatory intent, and none of the remaining
alleged instances of retaliation constitute a serious and material change in
terms, conditions, or privileges of plaintiffs’ employment, as required to
prove adverse employment actions — Hostile work environment — District court
properly granted summary judgment in favor of employer with respect to hostile
work environment claim based on instances in which pharmacy management
allegedly behaved rudely and made comments that plaintiffs considered
offensive, belittling, and humiliating — Despite voluminous incidents of
pharmacy management’s alleged hostility, plaintiffs’ claim fails because
management’s comments were never related to plaintiffs’ protected
characteristics, there was no evidence that alleged hostility was in any way
motivated by a discriminatory animus regarding plaintiffs’ age or gender, and
management’s comments, though frequently unprofessional, were not filled with
intimidation and ridicule that was sufficiently severe or pervasive to alter
plaintiffs’ working conditions — Naked assertions that plaintiffs have been
subjected to discriminatory hostile treatment is not sufficient to constitute a
hostile work environment; rather, plaintiffs must show the hostile treatment
was based on their protected status

DONNA TRASK, ANITA TRUITT, Plaintiffs-Appellants, v.
SECRETARY, DEPARTMENT OF VETERANS AFFAIRS, Defendant-Appellee. 11th Circuit.
Case No. 15-11709. April 5, 2016. Appeal from the U.S. District Court for the
Middle District of Florida (No. 8:13-cv-00536-MSS-TBM).

(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
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 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 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.

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, 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. 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 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.”

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 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.

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.”

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.

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.

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:

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 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.

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.” 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) [18 Fla. L. Weekly Fed. C507a]. 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) [24 Fla. L. Weekly Fed. C689a] (Title VII); Kragor v. Takeda Pharms. Am., Inc., 702 F.3d
1304, 1308 (11th Cir. 2012) [23 Fla. L. Weekly Fed. C1733a] (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) [22 Fla. L. Weekly Fed. C1080a]. “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.

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) [15 Fla. L. Weekly Fed. C775a].

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 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 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) [22 Fla. L. Weekly Fed. C1959a].

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) [17 Fla. L. Weekly Fed. C715a]. 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) [16 Fla. L. Weekly Fed. C1018a].

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 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 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) [23 Fla. L. Weekly Fed. C64a].

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-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) [21 Fla. L. Weekly Fed. C962a].

“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) [14 Fla. L. Weekly Fed. C1137a]. “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 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) [14 Fla. L. Weekly Fed. C543a] (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. of Tex. Sw. Med. Ctr. v. Nassar, 570
U.S. ___, 133 S. Ct. 2517, 2534 (2013) [24 Fla. L. Weekly Fed. S366a]. 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 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 antidiscrimination 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 . . . employment and create an abusive working environment.”
Gowski v. Peake, 682 F.3d 1299, 1311 (11th
Cir. 2012) [23 Fla. L. Weekly Fed. C1100a]. 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) [23 Fla. L. Weekly Fed. C1135a] (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) [22 Fla. L. Weekly Fed. C477a] (“[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.

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 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.

__________________

*Honorable
Raymond C. Clevenger, United States Circuit Judge for the Federal Circuit,
sitting by designation.

1We 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) [22 Fla. L. Weekly Fed. C1653a]. 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) [21 Fla. L. Weekly Fed. C168a].

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

3Even 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.

* *
*