Palmquist v. Shinseki

Filing

OPINION issued by Jeffrey R. Howard, Appellate Judge; Bruce M. Selya, Appellate Judge and Rogeriee Thompson, Appellate Judge. Published. [11-2110]

Case: 11-2110

Document: 00116413425

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Date Filed: 08/02/2012

Entry ID: 5662619

United States Court of Appeals
For the First Circuit
No. 11-2110
MARK S. PALMQUIST,
Plaintiff, Appellant,
v.
ERIC K. SHINSEKI, SECRETARY, DEPARTMENT OF VETERANS AFFAIRS,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Howard, Selya and Thompson, Circuit Judges.
David G. Webbert, with whom Elizabeth L.J. Burnett and Johnson
& Webbert, L.L.P. were on brief, for appellant.
Mary Ellen Signorille, Daniel B. Kohrman, AARP Foundation
Litigation and Melvin Radowitz on brief for American Association of
Retired Persons, amicus curiae.
Daniel Tenny, Attorney, Civil Division, United States
Department of Justice, with whom Stuart F. Delery, Acting Assistant
Attorney General, Thomas E. Delahanty II, United States Attorney,
and Marleigh D. Dover, Attorney, Civil Division, were on brief, for
appellee.

August 2, 2012

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SELYA, Circuit Judge. 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.
I.

BACKGROUND
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

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employment opportunity specialist and his congressman.

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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.
well.

The interview went

When it was over, the interviewers explicitly warned the

plaintiff to eschew any unsolicited post-interview contact with
either

of

plaintiff

them.

Shortly

e-mailed both

after

women

in

the

interview,

an effort

to

however,

the

reiterate his

qualifications. Although Tate thought that this bevue alone should

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disqualify the plaintiff from any further consideration, Taylor
demurred, and the interview process continued.
The next step involved the checking of references.
March 9,

2006,

Tate

telephoned

plaintiff's qualifications.
exchange;

the

only

Aichner

to inquire

about

On
the

There is no verbatim account of this

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

ambiguous.

shortcomings.
Of

particular

Some

of

pertinence

her

comments

here,

she

were

remarked

more
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'

advancement within the VA.

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rights

and

for

his

own

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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,1 under section 501
of the Rehabilitation Act, 29 U.S.C. § 791, which requires federal
employers

to

veterans

and

§ 791(g).

adopt

affirmative

prohibits

action

discrimination

programs
against

for

them,

disabled
see

id.

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

1

For ease in exposition, we treat the Secretary and the VA as
synonymous and refer to them jointly and severally as "the
defendant."
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reference

and

the

VA's

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denial

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of

the

promotion

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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

retaliation was not the motivation for it.

action

but

that

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

for

findings,

the

district

court

entered

judgment

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-à-vis the first adverse employment action. See Fed. R. Civ. P.

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50(b).

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In the alternative, he sought a new trial on all claims.

See Fed. R. Civ. P. 59(a).

In a thoughtful rescript, the district

court denied these motions.
Supp. 2d 322 (D. Me. 2011).
II.

Date Filed: 08/02/2012

See Palmquist v. Shinseki, 808 F.
This timely appeal followed.

ANALYSIS
On appeal, the plaintiff advances discrete claims of

error directed to each of the asserted adverse employment actions.
We address each claim separately.
A.
The
articulate

a

Aichner's Reference.

plaintiff
legitimate,

argues

that

the

nonretaliatory

mention of his previous complaints.

defendant
reason

for

failed

to

Aichner's

He says that the absence of

any such evidence entitled him to judgment as a matter of law under
the familiar framework limned in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-03 (1973), because a rational jury would have had
to conclude that Aichner acted with retaliatory animus when she
provided the reference to Tate.
We review a district court's disposition of a motion for
judgment as a matter of law de novo.

Downey v. Bob's Discount

Furn. Holdings, Inc., 633 F.3d 1, 9 (1st Cir. 2011).

"[T]he court

of appeals must examine the evidence and the inferences reasonably
to be extracted therefrom in the light most hospitable to the
nonmovant, and may reverse the denial of such a motion only if
reasonable persons could not have reached the conclusion that the

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Sanchez v. P.R. Oil Co., 37 F.3d 712, 716 (1st

Cir. 1994).
In a Rehabilitation Act retaliation suit, the plaintiff
can make out a prima facie case by "show[ing] that (1) he or she
engaged in protected conduct, (2) he or she was subjected to an
adverse action by the defendant, and (3) there was a causal
connection between the protected conduct and the adverse action."
D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 41 (1st Cir.
2012).

The burden then shifts to the employer to articulate a

legitimate, nonretaliatory reason for the employment decision. See
id.

This is merely a burden of production and, once such a reason

is articulated, it is up to the employee to show that the proffered
reason was pretextual and that retaliation was the true reason.
See id.

The burden of proof remains throughout with the employee.

See Mesnick v. Gen. Elec. Co., 950 F.2d 816, 823 (1st Cir. 1991).
Although this burden-shifting framework is most often
used to evaluate cases during the pretrial stage, see, e.g., Ahern
v. Shinseki, 629 F.3d 49, 54 (1st Cir. 2010) (summary judgment), it
lurks in the background during trial.

At the conclusion of the

evidence, the plaintiff may be entitled to judgment as a matter of
law "if, on the evidence presented, (1) any rational person would
have to find the existence of facts constituting a prima facie
case, and (2) the defendant has failed to meet its burden of
production — i.e., has failed to introduce evidence which, taken as

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permit

the

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conclusion

that

there

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was

a

nondiscriminatory reason for the adverse action." St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502, 509 (1993).
When, however, the employee makes out a prima facie case
of retaliation and the employer proffers a justification for the
challenged

action,

the

McDonnell

Douglas

framework,

with

its

intricate web of presumptions and burdens, becomes an anachronism.
Id. at 510; Sanchez, 37 F.3d at 720.

The jury, unaided by any

presumptions, must simply answer the question of whether the
employee has carried the ultimate burden of proving retaliation.
The plaintiff contends that the defendant failed to meet
his burden of production in this case and that, therefore, judgment
as a matter of law was appropriate.

Consequently, the question at

hand reduces to whether the evidence at trial was so one-sided as
to compel a rational jury to find that retaliatory animus sparked
the adverse employment action (Aichner's comment on the plaintiff's
protected conduct).

We think not.

We assume, for argument's sake, that the plaintiff made
out his prima facie case with respect to this adverse employment
action.

Even so, the defendant produced a justification for

Aichner's comment: evidence that, in her opinion, the plaintiff's
pro-veteran leanings, his enthusiasm about veterans' preferences,
and his desire for advancement were positive characteristics that
would help him in his quest for the RVSR position.

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This testimony

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was not inherently incredible and, in Justice Scalia's words,
constituted evidence that "would permit the conclusion that there
was a nondiscriminatory reason" for the comment.

St. Mary's, 509

U.S. at 509 (emphasis omitted).
Nor was a rational jury compelled to find that the
proffered reason was pretextual. Indeed, a surfeit of proof tended
to support a finding that it was the true reason for the challenged
comment.

Trial testimony indicated that Aichner's reference was

generally favorable (or so the jury could have thought) and that
she believed that her discourse with Tate would help the plaintiff
get the job. Other evidence showed that Aichner was not in any way
involved in or negatively impacted by the plaintiff's protected
conduct and that she had given him nothing but favorable reviews
until the incident in question.

The record is bereft of any

identifiable reason why she would hold a vengeful grudge against
him and wait to act on it for so long.
In an effort to change the trajectory of the debate, the
plaintiff insists that the defendant's attorney, in his summation,
conceded that Aichner's statement about the plaintiff's protected
conduct

was

not

"fair

game

and

legitimate

comment."

This

concession, the plaintiff proclaims, is tantamount to an admission
that there was no legitimate reason for Aichner's mention of the
conduct.

This argument is more cry than wool.

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The most prominent flaw in the argument is that there was
no concession.

The plaintiff's selective quotation from the

transcript unfairly twists what the defendant's attorney actually
said.

The context of the statement makes manifest that the

defendant did not concede anything. Defense counsel noted that all
the other positive and negative qualities Aichner described were
undeniably relevant to the defendant's job application and that
"the comment that is problematic here, the only comment really
. . . [is] this reference.

The rest of it is really all fair game

and legitimate comment."

He then proceeded to explain why the

veterans' preference comment was not prompted by a retaliatory
animus.
It

is

nose-on-the-face

plain

that

defense

counsel's

strategy at closing was to confront the most troubling aspect of
Aichner's reference and spell out why the jury should nevertheless
find in the defendant's favor.

The plaintiff's distortion of that

effort fails on a simple reading of the record.

Concessions are

not lightly to be inferred, and the record here, taken in context,
belies the assertion that a concession was made.
That ends this aspect of the matter.

We conclude,

without serious question, that on the evidence presented at trial,
a rational jury could find — as this jury did — that Aichner's
reference was not driven by a retaliatory animus.

It follows

inexorably that the district court did not err in submitting the

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question of retaliation to the jury with respect to the first
adverse employment action.
B.

Failure to Promote.

The plaintiff's remaining arguments relate to the second
adverse employment action: the VA's failure to promote him to the
RVSR position.

He asserts that because the jury found that

retaliation played a role in that decision, the Rehabilitation Act
entitles him to a remedy.

The district court rejected this

argument, holding that but-for causation was a prerequisite to
liability.
To put the plaintiff's argument into perspective, we
retreat to the Supreme Court's decision in Price Waterhouse v.
Hopkins, 490 U.S. 228 (1989).

There, the plurality held that an

employer violates Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e-2(a), when it considers any forbidden factor (for
example, race or sex) in an employment decision even if other
factors also contribute to the decision.

See id. at 241.

Claims

premised on this sort of liability are called mixed-motive claims
because the employer's decision is motivated by both legitimate and
illegitimate concerns.

See, e.g., Higgins v. New Balance Ath.

Shoe, Inc., 194 F.3d 252, 259 n.3 (1st Cir. 1999).
Recognizing, however, that an employer must have some
"freedom of

choice"

in

employment-related

decisionmaking,

the

plurality further held that an employer would only be liable for

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violating Title VII if the forbidden factor was a but-for cause of
a particular decision.

Price Waterhouse, 490 U.S. at 242.

Thus,

an employer would have an affirmative defense to a discrimination
charge as long as it could prove that it would have made the same
employment decision in the absence of the forbidden factor.

Id.

Congress responded to Price Waterhouse in the Civil
Rights Act of 1991, Pub. L. No. 102-166, § 107, 105 Stat. 1071,
1075-76 (codified at 42 U.S.C. §§ 2000e-2(m), 2000e-5(g)(2)(B)).
In this legislation, Congress effectively endorsed one part of the
Price

Waterhouse

causation

standard

by

making

an

employment

practice unlawful whenever a proscribed factor "was a motivating
factor" for that practice (even though other factors were part of
the motivation).

Id. § 107(a), 105 Stat. at 1075 (codified at 42

U.S.C. § 2000e-2(m)).

But Congress simultaneously rejected the

second part of the Price Waterhouse causation standard, declining
to follow the Court's decision to absolve an employer of liability
upon a showing of a lack of but-for causation.

See id. § 107(b),

105 Stat. at 1075-76 (codified at 42 U.S.C. § 2000e-5(g)(2)(B)).
Withal, it shrunk the compendium of remedies available for these
mixed-motive

cases:

the

pertinent

section

states

that

if

an

employer can demonstrate that it would have taken the same action
even in the absence of the improper motivating factor, then an
employee may seek declaratory and injunctive relief but may not
receive damages or reinstatement.

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See id.

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The plaintiff contends that he is entitled to the mixedmotive remedies limned in section 2000e-5(g)(2)(B) because section
505 of the Rehabilitation Act explicitly provides that "[t]he
remedies, procedures, and rights set forth in . . . []42 U.S.C.
§ 2000e-5(f) through (k)[] . . . shall be available, with respect
to any complaint under [the Rehabilitation Act]."
§ 794a(a)(1).

29 U.S.C.

This contention directly challenges the district

court's construction of the Rehabilitation Act and, as such,
engenders de novo review.

See United States v. Troy, 618 F.3d 27,

35 (1st Cir. 2010).
Our inquiry begins, as it must, with the statutory text.
See United States v. Walker, 665 F.3d 212, 225 (1st Cir. 2011).
Section 2000e-5(g)(2)(B) of Title VII reads:
On a claim in which an individual proves a
violation under section 2000e-2(m) of this
title and a respondent demonstrates that the
respondent would have taken the same action in
the absence of the impermissible motivating
factor, the court —
(i) may grant declaratory relief, injunctive
relief (except as provided in clause (ii)),
and attorney's fees and costs demonstrated to
be directly attributable only to the pursuit
of a claim under section 2000e-2(m) of this
title; and
(ii) shall not award damages or issue an order
requiring
any
admission,
reinstatement,
hiring, promotion, or payment, described in
subparagraph (A).
This language dictates that in order to receive mixed-motive
remedies, a claimant must prove a violation of section 2000e-2(m).
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That section prohibits the use of "race, color, religion, sex, or
national

origin"

practice."

as

"a

motivating

factor

for

any

employment

42 U.S.C. § 2000e-2(m).
The plaintiff invites us to find that these remedies are

available in retaliation suits brought under the Rehabilitation
Act. We decline this invitation. To do otherwise would require us
to ignore the plain text of section 2000e-5(g)(2)(B), which nowhere
mentions retaliation.

Longstanding precedent teaches that the

limitations inherent in the list cannot be so easily overlooked.
See Tanca v. Nordberg, 98 F.3d 680, 682-83 (1st Cir. 1996) (holding
that the mixed-motive remedies in section 2000e-5(g)(2)(B) are
unavailable in Title VII retaliation cases).
The plaintiff tries to blunt the force of Tanca by
insisting that courts "must give effect to every word of a statute
wherever possible."

Leocal v. Ashcroft, 543 U.S. 1, 12 (2004).

Tanca was not a Rehabilitation Act case, and the plaintiff suggests
that if we do not afford him access to the remedies available under
section 2000e-5(g)(2)(B), we are not giving full effect to the
Rehabilitation
through (k).

Act's

incorporation

of

subsections

2000e-5(f)

This suggestion misses the mark: the Rehabilitation

Act has incorporated subsections (f) through (k), but section
2000e-5(g)(2)(B) will never apply because by its terms it is
inextricably

linked

to

violations

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of

section

2000e-2(m)

—

a

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provision of Title VII that has not been incorporated in the
Rehabilitation Act.
Let us be perfectly clear.

The Rehabilitation Act

borrows its remedial scheme from Title VII, but it does not borrow
the causation standard set out in section 2000e-2(m). Instead, the
Rehabilitation

Act

borrows

the

causation

standard

from

the

Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 1211112213; see 29 U.S.C. § 791(g).

This borrowed provision of the ADA

states

retaliate

that

no

person

shall

against

an

individual

"because such individual has opposed any [discriminatory] act or
practice."

See 42 U.S.C. § 12203(a) (emphasis supplied).
This language contrasts sharply with the "motivating

factor" standard used in section 2000e-2(m).

It is, however, very

similar to the more rigorous causation standard used in the Age
Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621634, which makes it unlawful to discriminate against an individual
"because of such individual's age."

See 29 U.S.C. § 623(a)(1).

This resemblance is telling because the Supreme Court, in
Gross v. FBL Financial Services, Inc., 557 U.S. 167, 175-77 (2009),
recently considered whether the counterpart language in the ADEA
authorized
therewith.

mixed-motive

liability

and

the

remedies

associated

The Court concluded that, on a plain reading, the

statute's use of the term "because of" requires the impermissible
factor to

be

"the

'but-for' cause of the

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decision."

Id. at 176.

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Gross is the beacon by which we must

steer, and textual similarity between the Rehabilitation Act and
the ADEA compels us to reach the same conclusion here.
The causation standard incorporated in the Rehabilitation
Act

makes

employee's

unlawful

requires

an

opposition

retaliation

employer's
to

to

retaliation

discriminatory
be

the

but-for

because

practices.
cause

of

of

It
an

an

thus

adverse

employment action in order for the plaintiff to obtain a remedy.
Cf. id. at 175-77 (reaching an identical conclusion with respect to
the ADEA).
The plaintiff urges that we should limit Gross to the
precincts patrolled by the ADEA.

After all, the Gross Court warns

that courts "must be careful not to apply rules applicable under
one statute to a different statute without careful and critical
examination."

Id. at 174 (internal quotation marks omitted).

Building on this foundation, he argues that the ADEA is materially
different from the Rehabilitation Act because the former, unlike
the latter, does not explicitly incorporate the remedial provisions
of section 2000e-5(g)(2)(B).
The initial premise on which this argument rests is a red
herring.

The question is not whether the ruling in Gross applies

ex proprio vigore to this case.

Obviously, it does not.

The

question, rather, is to what extent the teachings of Gross inform

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Rehabilitation Act.

of

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counterpart

provision

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of

the

We turn, therefore, to that question.

We do not write on a pristine page.

In terms, Gross

tells us to evaluate closely whether Title VII's unique mixedmotive causation standard should be imported into other statutes.
See id. at 174-75.

It is precisely that sort of searching

examination that persuades us that we must follow the Gross Court's
lead.
In analogous circumstances, two of our sister circuits
have been persuaded to this view.

Ruling with the benefit of

Gross, these courts have resisted efforts to transplant Title VII's
mixed-motive remedies into the ADA.

See Lewis v. Humboldt Acquis.

Corp., 681 F.3d 312, 317-22 (6th Cir. 2012) (en banc) (holding that
but-for causation is required to establish liability under the ADA
and that Title VII's mixed-motive remedies are not available to ADA
plaintiffs); Serwatka v. Rockwell Automation, Inc., 591 F.3d 957,
961-64 (7th Cir. 2010) (same).

While the plaintiff tries to rebut

the reasoning of these decisions by hawking other cases, see, e.g.,
Belk v. Sw. Bell Tel. Co., 194 F.3d 946, 950 (8th Cir. 1999) (using
42 U.S.C. § 2000e-2(m) in ADA cases); Baird ex rel. Baird v. Rose,
192 F.3d 462, 470 (4th Cir. 1999) (same); Buchanan v. City of San
Antonio, 85 F.3d 196, 200 (5th Cir. 1996) (same), those cases are
not persuasive because they predate Gross.

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The plaintiff also seeks succor in Smith v. Xerox Corp.,
602 F.3d 320 (5th Cir. 2010), in which the Fifth Circuit wrote that
"the Gross Court made clear that its focus was on ADEA claims."
Id. at 330. This is whistling past the graveyard: Smith dealt with
a problem altogether different from the one that confronts us here.
In that Title VII retaliation case, the court had no occasion to
consider or interpret the relationship of either section 2000e-2(m)
or section 2000e-5(g)(2)(B) to other statutory provisions. See id.
at 329 & n.28.

Instead, the court was tasked with deciding whether

to reverse its own precedent and follow the Gross Court's approach
in placing the burden of proving but-for causation on the employee.
The court concluded that Gross did not "unequivocally" overrule its
past decisions regarding the allocation of burdens in Title VII
cases and, thus, it could not depart from the decisions of prior
panels holding that an employee satisfies its burden upon showing
that

retaliation

practice.

was

a

Id. at 330.

motivating

factor

in

the

employer's

On any reading, Smith is a case in which

but-for causation is required in order to hold an employer liable.
Using Smith as the cornerstone of an argument that a Rehabilitation
Act plaintiff may obtain mixed-motive remedies in the absence of
but-for causation elevates hope over reason.
Shifting gears, the plaintiff seeks to find a safe harbor
in the venerable doctrine of stare decisis.
Metal

Co.,

87

F.3d

26

(1st

Cir.

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1996),

He cites Katz v. City
in

support

of

the

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proposition that this court already has held that an ADA (and, by
incorporation, a Rehabilitation Act) plaintiff need show only that
the unlawful act or practice "was a motivating factor" in the
adverse employment action.
whether

the

employee

Id. at 33.

had

made

out

But Katz only dealt with
a

prima

facie

case

of

discrimination using the temporal proximity between the onset of
his disability and his firing.

See id. at 33-34.

The passage that

the plaintiff quotes is pure dictum: "it can be removed from the
opinion without either impairing the analytical foundations of the
court's holding or altering the result reached."

United States v.

Barnes, 251 F.3d 251, 258 (1st Cir. 2001).

Thus, the loose

language in Katz is inconsequential here.
The

plaintiff's

endeavor

to

draw

legislative history is equally impuissant.

support

from

the

Since the statutory

text is clear and unambiguous, there is no need to resort to this
source of possible enlightenment.

See Inmates of Suffolk Cnty.

Jail v. Rouse, 129 F.3d 649, 654 (1st Cir. 1997).
legislative

history,

fairly

read,

is

not

At any rate, the

comforting

to

the

plaintiff's cause.
In this regard, the plaintiff emphasizes a statement in
the House Committee on the Judiciary Report on the Civil Rights Act
of 1991: "[M]ixed motive cases involving disability under the ADA
should be interpreted consistent with the prohibition against all
intentional discrimination in . . . this Act."

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40, pt. 2, at 3, reprinted in 1991 U.S.C.C.A.N. 694, 697.

While

this statement suggests that Congress gave some thought to the ADA
when it was creating Title VII's mixed-motive provisions, the
plaintiff's reliance on that statement is insupportable.

As the

Sixth Circuit explained in Lewis, 681 F.3d at 320-21, the statement
corresponds not to the ADA but to proposed Title VII legislation
and, in all events, the legislation being discussed was not the
legislation ultimately enacted.

We, like the Lewis court, are

unwilling to base our interpretation of a federal statute on
language in "a House Report describing the purpose of language
Congress never adopted."

Id. at 321.

Other, more probative aspects of the legislative history
favor the interpretation that we adopt.

"When Congress amends one

statutory provision but not another, it is presumed to have acted
intentionally."

Gross, 557 U.S. at 174; see Russello v. United

States, 464 U.S. 16, 23 (1983).

At the same time that Congress

amended Title VII to add sections 2000e-2(m) and 2000e-5(g)(2)(B),
it also amended the ADA without adding comparable mixed-motive
provisions.

See Civil Rights Act of 1991, Pub. L. No. 102-166,

§§ 109(b)(2), 315, 105 Stat. 1070, 1077, 1095. That Congress added
"motivating factor" language only to Title VII strongly suggests
that such language should not be engrafted by judicial fiat onto
other laws that Congress amended at the same time.

See Gross, 557

U.S. at 174-75 (interpreting the "decision to amend Title VII's

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relevant provisions but not make similar changes to the ADEA" as
critical proof that Title VII's "motivating factor" regimen does
not apply to the ADEA).
The plaintiff's last argument is more nuanced.

This

argument starts with the conclusion of the District of Columbia
Circuit, post-Gross, that mixed-motive remedies are available under
a separate provision of the ADEA prohibiting discrimination based
on age in federal-sector employment.

Ford v. Mabus, 629 F.3d 198,

203-07 (D.C. Cir. 2010); see 29 U.S.C. § 633a.

The court reached

this conclusion on the ground that the federal-sector provision in
section 633a(a), unlike the private-sector provision at issue in
Gross, declares that "all personnel actions . . . shall be made
free from any discrimination based on age."

Ford, 629 F.3d at 205.

In the court's view, the use of this broad language indicates that
whenever age plays any role in a federal employment decision, the
employee is entitled to some remedies with or without but-for
causation

because

discrimination.
The

the

decision

was

not

"made

free

from"

Id. at 205-07.

plaintiff,

forcefully

supported

by

the

amicus,

observes that section 505 of the Rehabilitation Act by its terms
incorporates all "remedies, procedures, and rights" enumerated in
42 U.S.C. § 2000e-16 of Title VII.

See 29 U.S.C. § 794a(a)(1).

This guarantees, he says, that all federal personnel decisions will
"be made free

from

any

discrimination based

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race,

color,

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religion, sex, or national origin."

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42 U.S.C. § 2000e-16(a).2

He

suggests that disability should be added to this list of forbidden
factors and that the logic of Ford should apply here to open the
door to mixed-motive remedies.
Whether or not Ford was correctly decided — a matter on
which we take no view — it is readily distinguishable.

In section

501, the Rehabilitation Act expressly incorporates a liability
standard drawn from the ADA.

See 29 U.S.C. § 791(g).

In section

505, the Rehabilitation Act expressly incorporates the remedies,
procedures, and rights from Title VII's federal-sector provisions.
See id. § 794a(a)(1). Congress acted with evident purpose in using
one source for the liability standard and a different source for
the remedial scheme.

Both the title of section 505 — "Remedies and

attorney fees" — and its contents — discussing only remedies,
relief, and certain mechanics of suit — militate powerfully against
blurring this distinction and converting the "guaranteed freedom
from discrimination" language in section 2000e-16(a) into a mixedmotive liability standard.

Cf. Price Waterhouse, 490 U.S. at 244

n.10

(refusing

(plurality

opinion)

to

"interpret

[42

U.S.C.

§ 2000e-5(g)] — a provision defining remedies — to influence the

2

The Supreme Court has not decided whether section 2000e-16
forbids retaliation in federal-sector employment, as opposed to
discrimination in federal-sector employment based upon one of the
five specifically identified factors. See Gomez-Perez v. Potter,
553 U.S. 474, 488 n.4 (2008). For present purposes, we assume —
but do not decide — that Title VII prohibits retaliation as well as
discrimination in the federal sector.
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substantive commands of the statute"). Were we to read section 505
as

expansively

as

the

plaintiff

suggests,

the

selective

incorporation of the ADA provisions through section 501 would be
rendered

nugatory

because

Title

liability standard and the remedy.

VII

would

control

both

the

This result would do violence

to the salutary principle that "courts, whenever possible, [should]
give meaning to every word and phrase contained in the text of a
statute."

United States ex rel. Ondis v. City of Woonsocket, 587

F.3d 49, 58 (1st Cir. 2009).

The only way to give the wording of

section 501 any practical effect is to find that the ADA's but-for
causation standard controls whether a defendant is liable for
retaliation. Where, as here, that standard has not been satisfied,
the Rehabilitation Act dictates that Title VII's mixed-motive
remedies do not pertain.
III.

CONCLUSION
We need go no further.3

For the reasons elucidated

above, the judgment of the district court is affirmed.
Affirmed.

3

The parties have not briefed, nor need we decide, an issue
suggested by Gross: whether the employee or the employer bears the
burden of showing or negating but-for causation in a Rehabilitation
Act case. Compare Gross, 557 U.S. at 177-80 (placing this burden
on employees under the ADEA), with Price Waterhouse, 490 U.S. at
241-42 (placing this burden on employers under Title VII), and
Ríos-Jiménez v. Principi, 520 F.3d 31, 39 (1st Cir. 2008) (citing
Price Waterhouse). The court below assigned the burden of proving
the absence of but-for causation to the employer, and the employer
has not challenged that decision.
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