Rehabilitation Act Retaliation Claims: After Gross, is the Causation Standard But-For or Motivating Factor?

   

Recently, the First Circuit, Judge Selya writing for the panel, held in Palmquist v. Shinseki, No. 11-2110, 2012 U.S. App. LEXIS 16028 (1st Cir. Aug. 2, 2012) that the but-for causation standard applies to retaliation claims brought under the Rehabilitation Act.  In doing so, the court focused on the language of the statute, noting that while the Rehabilitation Act adopts the remedial scheme of Title VII, it does not adopt Title VII’s motivating factor causation standard.  Instead, the Rehabilitation Act borrows its causation standard from the ADA, which states that no person shall retaliate against an individual “because such individual has opposed any [discriminatory] act or practice.” 42 U.S.C. § 12203(a).  As the Supreme Court in Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009) had construed similar language in the ADEA to require but-for causation, the First Circuit found that compelling.  The ADEA language that the Gross court construed states that it is unlawful to discriminate against an individual “because of such individual’s age.” 29 U.S.C. § 623(a)(1).  The First Circuit noted that those circuits that have analyzed the causation standard in the ADA, have split as to whether the motivating factor or the but-for causation standard applies.  For Circuit Courts holding that ADA cases are determined by the but-for causation standard, 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).  For Circuit Courts which have instead held that the motivating factor standard applies in ADA cases, see 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).  With respect to the above opinions of the Fourth, Fifth, and Eighth Circuits applying the motivating factor standard, Judge Selya characterizes plaintiff’s reliance on these cases as “hawking” these cases, and states that none of them are persuasive because they all predate Gross; whereas the Seventh Circuit’s opinion in Serwatka and the Sixth Circuit’s recent en banc opinion in Lewis discuss the impact of Gross, and conclude that but-for analysis applies.

The First Circuit in Palmquist also rejected plaintiff’s reliance on the Fifth Circuit’s opinion in Smith v. Xerox Corp., 602 F.3d 320 (5th Cir. 2010) in which a panel of that court held that “the Gross court made clear that its focus was on ADEA claims.” Id. at 330.  Judge Selya characterized the Fifth Circuit panel’s rationale as “whistling past the graveyard…” 

It should be noted that, on petition for rehearing in another case before the Fifth Circuit, Nassar v. Univ. of Tex. Sw. Med. Ctr., 688 F.3d 211 (5th Cir. 2012), Judge Jerry Smith wrote a vigorous dissent from the denial of rehearing, arguing that the Fifth Circuit’s opinion in Smith v. Xerox “is wrongly decided and presents a question of exceptional importance in employment law,” and that the Nassar case would be “a good vehicle for fixing that mistake.”

Recently, in Pulczinski v. Trinity Structural Towers, Inc., No. 11-2585, 2012 U.S. App. LEXIS 18494 (8th Cir. Aug. 31, 2012), a panel of the Eighth Circuit, with Judge Colloton writing, expressed “doubts about the vitality of the pre-Gross precedent,” specifically Chalfant v. Titan Distribution, Inc., 475 F.3d 982, 991 (8th Cir. 2007) (court seemed to construe “because of” in the ADA to mean that disability must be a “motivating factor” in the employer’s decision”).

Interestingly, section 5(a)(1) of ADA Amendments Act of 2008 (ADAAA) amended a portion of the ADA which may be relevant to this issue.  Specifically, that section of the ADAAA, in relevant part, struck the ADA’s prior language prohibiting discrimination “because of” an individual’s disability, and replaced that language with “on the basis of disability.”  (The full text of the relevant amendments is available on the EEOC’s website, here.)  Whether this change in the ADA’s language will have any relevance on the applicable causation standard applied in ADA cases is not entirely clear.  For example, a footnote in the Seventh Circuit’s opinion in Serwatka, cited above, took note of this amendment, but simply concluded that “[w]hether ‘on the basis of’ means anything different from ‘because of,’ and whether this or any other revision to the statute matters in terms of the viability of a mixed-motive claim under the ADA, are not questions that we need to consider in this appeal.” 591 F.3d at 961 n.1.  Similarly, in the Fifth Circuit’s opinion in Lewis, cited above, the Court noted this change in language in the ADAAA, but given the fact that the relevant facts of the case predated these amendments, the Court simply noted that “the amended law does not cover this lawsuit.” 681 F.3d at 315.  See also Gard v. United States Dep’t of Educ., 752 F. Supp. 2d 30, 36 (D.D.C. 2010)(while holding that the but-for causation standard applies in Rehabilitation Act cases, noting the above amendment in the language of the ADA, and opining that “the language differences between the Rehabilitation Act and the ADA may (or may not) be significant in an ADA case.”)

For an analysis of the related issue of post-Gross court rulings on whether the mixed motive analysis can be applied to FMLA claims, see Phillip K. Miles III, Esq., 3d Circuit Addresses FMLA Issues, Lawffice Space – McQuaide Blasko (Sept. 7, 2012), available here.

On a somewhat related note  on the topic of but-for causation in particular, in Ponce v. Billington, 679 F.3d 840 (D.C. Cir. 2012), the D.C. Circuit considered a Title VII non-selection case, in which the jury in the District Court proceedings below had been instructed that the plaintiff, who had pursued the case under a single-motive theory, had to prove that unlawful discrimination was the “sole reason” for his non-selection.  In upholding the judgment below, a panel of the D.C. Circuit, Judge Tatel writing for the panel, noted the Court’s prior holding in Ginger v. District of Columbia, 572 F.3d 1340, 1345 (D.C. Cir. 2008), which had stated that “a plaintiff may pursue a ‘single-motive case,’ in which he argues race (or another prohibited criterion) was the sole reason for an adverse employment action…” (emphasis added).  In clarifying that holding, the Court stated that “in Ginger, we used ‘sole motive’ as shorthand for but-for cause,” and cited prior holdings of the Court for the proposition that “we never said.. that a plaintiff in a but-for case must show that an adverse employment action occurred solely because of a protected characteristic.” Ponce, 679 F.3d at 846. To further clarify the point, the Court concluded by holding that “nothing in Title VII requires a plaintiff to show that illegal discrimination was the sole cause of an adverse employment action.  And mindful that ‘our words from loose using have lost their edge,’ Ernest Hemingway, Death in the Afternoon 63 (Scribner Classics 1999) (1932), we hereby banish the word ‘sole’ from our Title VII lexicon.” Id.

The Court in Ponce held that reversal would have been in order had the jury instruction stopped with a “sole reason” instruction, with nothing more.  However, the Court found no abuse of discretion, and therefore upheld the district court’s judgment, because the district court had clarified its jury instruction by defining “sole reason” as “but for” causation.

From the Supreme Court on down, the courts for some time now have been focused on causation issues in employment cases.  For a number of our prior posts on these issues, see, e.g., here (application of Gross to FMLA cases);  here, here, and here (causation and other issues in the Supreme Court’s Staub decision); here (the Sixth Circuit’s opinion in Lewis, cited above); here (additional post-Gross causation developments); here (more on causation under the Rehabilitation Act); and here (the Fifth Circuit’s opinion in Smith, cited above).  Thus, employment law practitioners would be well advised to keep a close eye on how this line of case law continues to develop.

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