Palmquist v. Shinseki
689 F.3d 66
1st Cir.2012Background
- Palmquist, a U.S. Marine veteran with a brain injury, was hired by the VA in Iron Mountain, Michigan as a medical support assistant.
- He alleged veterans' preference entitlement and later applied for a promotion but was not interviewed; he complained to EEO and his congressman about alleged discrimination.
- Over two years, supervisor Aichner generally gave favorable performance appraisals despite some observed conduct issues and occasional non-work computer use.
- In February 2006, Palmquist sought an RVSR position in Nashville; Tate and Taylor interviewed him and later Tate defamed concerns in a reference provided by Aichner.
- Tate did not recommend Palmquist for the RVSR job; Palmquist claimed two adverse actions: a negative reference and the denial of the RVSR promotion, both allegedly retaliatory for protected activity.
- A jury found the reference action was retaliatory in motivation but not but-for, and the promotion decision was retaliatory in part but not the but-for cause; the district court entered judgment for the VA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Aichner's reference a retaliatory action? | Palmquist argues Aichner's remarks were retaliatory and lacked a legitimate nonretaliatory basis. | Shinseki/VA asserts a legitimate, nonretaliatory reason existed based on plaintiff's pro-veteran bias and past promotion attempts. | Yes: the reference could be sustained as nonretaliatory; not compelled to find retaliation. |
| Is but-for causation required for Rehabilitation Act retaliation in mixed-motive settings for promotion decisions? | Palmquist seeks mixed-motive remedies analogous to Title VII, asserting retaliation need not be but-for. | VA contends the Rehabilitation Act requires but-for causation, not Title VII mixed-motive remedies. | But-for causation required; mixed-motive remedies do not apply under the Rehabilitation Act. |
| Do the Rehabilitation Act remedies allow Title VII-like mixed-motive relief through section 794a(a)(1)? | Section 794a(a)(1) incorporation of Title VII remedies would permit mixed-motive relief for retaliation claims. | Remedies from Title VII's federal-sector provisions do not convert Rehabilitation Act retaliation into a mixed-motive claim. | No: remedial provisions do not import mixed-motive remedies into Rehabilitation Act retaliation claims. |
Key Cases Cited
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (U.S. 1973) (burden-shifting framework in discrimination cases; use as background for retaliation proof)
- Price Waterhouse v. Hopkins, 490 U.S. 228 (U.S. 1989) (mixed-motive liability and but-for causation framework under Title VII)
- St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (U.S. 1993) (retains burden-shifting framework; employer's nondiscriminatory reason need not be astonishing)
- Gross v. FBL Financial Services, Inc., 557 U.S. 167 (U.S. 2009) (but-for causation required for ADEA; informs Rehabilitation Act analysis)
- Lewis v. Humboldt Acquisition Corp., 681 F.3d 312 (6th Cir. 2012) (ADA mixed-motive remedies rejected; but-for causation required)
- Serwatka v. Rockwell Automation, Inc., 591 F.3d 957 (7th Cir. 2010) (ADA mixed-motive remedies not extended to retaliation claims)
- Katz v. City Metal Co., 87 F.3d 26 (1st Cir. 1996) (ADA/1st Cir. discussion on prima facie case and proximity timing (dictum in ADA context))
- Ford v. Mabus, 629 F.3d 198 (D.C. Cir. 2010) (federal-sector age discrimination remedies analysis; distinguish from Rehabilitation Act)