Rehab Act plaintiff must show ‘but-for’ causation, rules 1st Circuit

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A Rehabilitation Act plaintiff could not recover damages for retaliation without showing that his complaints about disability discrimination were the “but-for” cause of his failure to obtain a promotion, the 1st Circuit has ruled in affirming judgment.

The plaintiff obtained a job with the U.S. Department of Veterans Affairs after sustaining a brain injury during military service in Iraq. As a disabled veteran, the plaintiff was entitled to a preference in federal employment.

Shortly after being hired, the plaintiff complained to the agency’s equal employment opportunity officer that he was not being given the full veterans’ preference when he applied for other positions within the agency. After being denied a promotion two years later, the plaintiff sued the agency for retaliation under the Rehabilitation Act. According to the plaintiff, he was denied the promotion because of his earlier complaints concerning disabled veterans’ rights.

The district court entered a verdict in the agency’s favor after a jury found that, while retaliation was a motivating factor in the decision not to promote the plaintiff, it was not the but-for cause of that decision.

The 1st Circuit agreed that the plaintiff was required to establish but-for causation.

“The causation standard incorporated in the Rehabilitation Act makes unlawful an employer’s retaliation because of an employee’s opposition to discriminatory practices. It thus requires retaliation to be the but-for cause of an adverse employment action in order for the plaintiff to obtain a remedy,” the court said.

It noted that it appeared to be the first federal appellate court to decide the issue.

U.S. Court of Appeals, 1st Circuit. Palmquist v. Shinseki, No. 11-2110. Aug. 2, 2012. Lawyers USA No. 993-3412.