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Mark S. Palmquist v. Eric K. Shinseki

August 2, 2012



The opinion of the court was delivered by: Selya, Circuit Judge.

Before Howard, Selya and Thompson, Circuit Judges.

This appeal requires us to resolve a question of first impression at the federal appellate level: Does the Rehabilitation Act of 1973, 29 U.S.C. §§ 701-796l, entitle a plaintiff to relief when retaliation for his complaints about disability discrimination is a motivating factor in, but not the but-for cause of, an adverse employment action? We answer this question in the negative. Because the court below reached the same result and because the only other claim of error is unfounded, we affirm.


Plaintiff-appellant Mark S. Palmquist is a veteran of the United States Marines. During his military service, he was involved in a helicopter crash that left him with a residual brain injury. Disabled veterans -- like the plaintiff -- are entitled to a preference in federal employment. See 5 U.S.C. §§ 2108(3)(C), 3309(1), 3313(2)(A).

In the spring of 2004, the Department of Veterans Affairs (VA) hired the plaintiff as a medical support assistant at its medical center in Iron Mountain, Michigan. The hiring official, Sherry Aichner, became his supervisor.

Roughly four months later, the plaintiff applied for a promotion but did not receive an interview. He believed that the VA had not fully honored his veterans' preference, and he told Aichner that he was going to complain to both the agency's equal employment opportunity specialist and his congressman. It is undisputed that these complaints were made.

Aichner and the plaintiff maintained a generally positive personal and working relationship for the two years that followed. This is not to say, however, that Aichner regarded the plaintiff's work habits as a model of perfection: he would sometimes become preoccupied at work, leave the unit during working hours to do errands or socialize, distract other employees by making noises, and use his computer for nonwork purposes. Still, Aichner gave the plaintiff wholly favorable appraisals not only in his annual performance reviews but also in recommendations for two other promotions for which he unsuccessfully applied.

In February of 2006, the plaintiff sought a position as a rating veterans service representative (RVSR) with the VA office in Nashville, Tennessee. RVSRs use applicable laws and regulations to make decisions about a veteran's eligibility for VA benefits.

A pair of VA employees, Delores Tate and Glenda Taylor, interviewed the plaintiff for the position. The interview went well. When it was over, the interviewers explicitly warned the plaintiff to eschew any unsolicited post-interview contact with either of them. Shortly after the interview, however, the plaintiff e-mailed both women in an effort to reiterate his qualifications. Although Tate thought that this bevue alone should disqualify the plaintiff from any further consideration, Taylor demurred, and the interview process continued.

The next step involved the checking of references. On March 9, 2006, Tate telephoned Aichner to inquire about the plaintiff's qualifications. There is no verbatim account of this exchange; the only information in the record regarding this conversation consists of the recollections of the two women and Tate's typed notes paraphrasing Aichner's responses to her queries.

For aught that appears, Aichner gave the plaintiff a generally favorable recommendation. While she made it clear that the plaintiff was energetic and a quick learner, she also mentioned some of his shortcomings. Some of her comments were more ambiguous. Of particular pertinence here, she remarked the plaintiff's tendency to "go[] overboard" on behalf of veterans and mentioned that he had applied unsuccessfully for various promotions in the past. She reported that the plaintiff "[u]ses his service connected preference and watches carefully to make sure he gets an interview," noting that he had once gone "to [the] patient [r]epresentative" when he did not get one. Aichner later testified that she could not remember what questions prompted her to provide this information but that she thought her answers would show the plaintiff's zeal both for veterans' rights and for his own advancement within the VA.

Tate did not see this last set of comments in the same light. She thought that these qualities, along with some of the plaintiff's work-related shortcomings, reflected negatively on him. In particular, she found the plaintiff's pro-veteran bias disconcerting, because an individual in an RVSR position must impartially evaluate veterans' benefit applications.

When all was said and done, Tate did not recommend the plaintiff for the RVSR position, and he did not receive it. Although Tate testified that she did not think Aichner was trying to discourage her from hiring the plaintiff, she considered the unfavorable aspects of Aichner's reference as "one factor" in her decision.

In due course, the plaintiff sued Eric K. Shinseki, Secretary of the Department of Veterans Affairs,*fn1 under section 501 of the Rehabilitation Act, 29 U.S.C. § 791, which requires federal employers to adopt affirmative action programs for disabled veterans and prohibits discrimination against them, see id. § 791(g). The complaint alleged that the plaintiff suffered adverse employment actions taken in retaliation for his 2004 discrimination complaints, which both parties agree are protected conduct under the Rehabilitation Act. It alleged that there were two separate but related adverse employment actions: Aichner's job reference and the VA's denial of the promotion to the RVSR position.

The parties tried the case to a jury. At the conclusion of the evidence, the plaintiff moved for judgment as a matter of law, contending in pertinent part that the defendant had failed to adduce any evidence that would permit a rational jury to find that Aichner's negative reference was motivated by anything other than retaliation. The district court did not grant the motion but, rather, composed a special verdict form, see Fed. R. Civ. P. 49(a), and submitted the case to the jury.

As to the first allegation, the jury found that Aichner's reference constituted an adverse employment action but that retaliation was not the motivation for it. As to the second allegation, the jury found that while retaliation was a motivating factor in the decision not to promote Palmquist to the RVSR position, it was not the but-for cause of that decision. Based on these findings, the district court entered judgment for the defendant.

The plaintiff moved to amend the judgment, see Fed. R. Civ. P. 59(e), contending that because the jury found that retaliation was a factor in the VA's decision not to promote him, the Rehabilitation Act necessarily afforded him a remedy. At the same time, he renewed his motion for judgment as a matter of law vis-a-vis the first adverse employment action. See Fed. R. Civ. P. 50(b). In the alternative, he sought a new trial on all claims. See Fed. R. Civ. P. 59(a). In a thoughtful rescript, the ...

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