Palmquist v. Shinseki

• Decision Date: 26 August 2011
• Docket Number: No. 1:07–cv–00098–JAW.,1:07–cv–00098–JAW.
• Citation: 808 F.Supp.2d 322,25 A.D. Cases 489
• Parties: Mark S. PALMQUIST, Plaintiff, v. Eric K. SHINSEKI, Secretary, Department of Veterans Affairs, Defendant.
• Court: U.S. District Court — District of Maine

25 A.D. Cases 489

808 F.Supp.2d 322

Mark S. PALMQUIST, Plaintiff,

v.Eric K. SHINSEKI, Secretary, Department of Veterans Affairs, Defendant.

No. 1:07–cv–00098–JAW.

United States District Court, D. Maine.

Aug. 26, 2011.

David G. Webbert, Elizabeth L.J. Burnett, Johnson & Webbert, LLP, Augusta, ME, for Plaintiff.

Halsey B. Frank, U.S. Attorney's Office, Portland, ME, for Defendant.

ORDER ON POST–VERDICT MOTIONS TO AMEND THE JUDGMENT, FOR JUDGMENT AS A MATTER OF LAW, AND FOR NEW TRIAL

JOHN A. WOODCOCK, JR., Chief Judge.

Faced with an adverse jury verdict in this action for retaliation in violation of the Rehabilitation Act, 29 U.S.C. § 701, et seq., Mark S. Palmquist seeks to amend the judgment to grant him mixed-motive remedies, judgment as a matter of law, and, in the alternative, a new trial. The Court denies Mr. Palmquist's motion for mixed-motive remedies because the law does not authorize those remedies in retaliation cases under the Rehabilitation Act and denies Mr. Palmquist's motions for judgment as a matter of law and for a new trial because the jury's verdict is supported by the evidence.

I. STATEMENT OF FACTSA. Procedural History

On December 2, 2010, after a four day trial, the jury issued a verdict finding the United States Department of Veterans Affairs (VA) not liable for retaliating against Mr. Palmquist in violation of the Rehabilitation Act. Verdict Form (Docket # 174). Specifically, the jury found that Mr. Palmquist had engaged in protected activity, that his supervisor took an adverse employment action by giving him a negative employment reference for a promotion he sought, and that retaliation for the protected activity was not a motivating factor in the adverse employment action. Id. The jury found that retaliation was a motivating factor in the VA's decision not to hire Mr. Palmquist for the position, but it found that the VA would have made the same decision without the consideration of retaliation. Id.

On January 3, 2011, Mr. Palmquist moved for judgment as a matter of law, to amend the judgment, and for a new trial. Pl.'s Mots. to (1) Renew Trial Mots. for J. as Matter of Law; (2) to Am. Dec. 3, 2010 J.; and (3) for New Trial (Docket # 185) ( Pl.'s Mot.). On January 24, 2011, the VA responded. Def.'s Opp'n to Pl.'s Mots. to Renew, Am. the Verdict, and for New Trial (Docket # 188) ( Def.'s Opp'n ). On February 7, 2011, Mr. Palmquist replied to the VA's response. Pl.'s Reply in Supp. of Pl.'s Mots. to (1) Renew Trial Mots. for J. as Matter of Law; (2) to Am. Dec. 3, 2010 J.; and (3) for New Trial (Docket # 189) ( Pl.'s Reply ). B. The Evidence at Trial

1. Mr. Palmquist's Case

a. Sherry Aichner's Testimony

Sherry Aichner has worked for the VA since 1973. Trial Tr. I 57:18–20 (Docket # 181). In 2004, she was a supervisor in the VA's nursing home care unit in Iron Mountain, Michigan. Id. 58:1–4. She hired Mr. Palmquist to join the unit in April 2004 as a Unit Coordinator. Id. 99:10–13. Beginning May 20, 2004, she supervised Mr. Palmquist in that role. Id. 58:1–21, 60:10–12. When Ms. Aichner interviewed Mr. Palmquist she thought he seemed “upbeat” and “jolly;” she thought he had a “positive personality” that would fit with their units. Id. 101:8–10.

Ms. Aichner knew that Mr. Palmquist had a ten-point hiring preference for disabled veterans that entitled him to certain hiring preferences. Id. 65:12–22. She was further aware that Mr. Palmquist applied for the position of Chief of Voluntary Services in July 2004 and that he was not interviewed for the position. Id. 66:3–11. When he was not interviewed, Mr. Palmquist told Ms. Aichner that he was qualified for the position and that he was going to talk to the Equal Employment Opportunity (EEO) specialist and write his congressman about his concern at not being interviewed. Id. 66–21–67:14. Ms. Aichner understood his concern to be that his veteran's preference rights were not being honored. Id. 67–68. She knew that he had a right to make those complaints and that it would be unlawful to retaliate against him for making those complaints. Id. 68. She testified that she did not hold Mr. Palmquist's complaints against him. Id. 125:14–21.

After Mr. Palmquist made his complaints, Ms. Aichner gave him four positive performance evaluations. Two were annual performance appraisals. Id. 58:22–59:13. The other two were written performance appraisals in connection with promotions for which he applied. Id. Each appraisal was entirely favorable and contained nothing negative. Id. 58:24–65:1. Despite the positive appraisals, she testified that Mr. Palmquist could become distracted and distracting at work. She testified that he would sometimes make loud noises that would distract others in the unit and that he occasionally used his computer for non-work purposes. Id. 109:4–111:2. She further testified that he would sometimes leave the unit during working hours to socialize, get food, see doctors without taking sick leave, or speak with the union representative. Id. 109:19–112:22. Ms. Aichner said this caused some problems in the unit. Id. 113:2–113:22. She spoke with Mr. Palmquist and resolved these issues. Id. 114:10–21. Despite the issues in the unit, Ms. Aichner maintained a friendly relationship with Mr. Palmquist. She testified that she liked Mr. Palmquist and helped him find a house near where she lived. Id. 115:13–116:15. As neighbors, she also got to know Mr. Palmquist's son, and the three of them would occasionally visit. Id. 116:18–117:21. Ms. Aichner testified that their friendly and neighborly relationship lasted until Mr. Palmquist moved to Maine in 2006 and that she still likes him. Id. 171:22–24.

In February 2006, Mr. Palmquist told Ms. Aichner that he had applied for a position with the VA in Tennessee. Id. 70:5–11. Ms. Aichner testified that Mr. Palmquist listed her as a reference because he thought she would give him a good reference. Id. 160:22–24. On March 9, 2006, Ms. Aichner received a phone call from Delores Tate asking for a reference in connection with Mr. Palmquist's application. Id. 70:12–15, 73:6–8, 161:5. Ms. Aichner told Ms. Tate that Mr. Palmquist was energetic, knowledgeable, and a quick learner. Id. 73:13–15, 165:7–9. She also told Ms. Tate that Mr. Palmquist is pro-veteran to the point he “goes overboard/oversteps the boundaries of his job.” Id. 73:16–20. She also reported that it is hard to get Mr. Palmquist to sit and that he wanders around a bit. Id. 73:21–24. She further reported that Mr. Palmquist “uses his service-connected preference and watches carefully to make sure he gets an interview,” and she gave Ms. Tate an instance when Mr. Palmquist did not get an interview so he went right away to a patient representative Id. 74:3–12. Ms. Aichner acknowledged that the instance referred to Mr. Palmquist's complaint to the EEO ¹ when he was not interviewed for the Chief of Voluntary Services position. Id. 74:13–75:11.

Ms. Aichner testified that she tried to answer Ms. Tate's questions honestly and thought her answers would be considered positive for Mr. Palmquist. Id. 77:4–80:12. Specifically, she testified that her comments about Mr. Palmquist being pro-veteran would be considered positive because he was applying for a position that involved helping veterans. Id. 79:14–80:1. She noted that she had called Mr. Palmquist pro-veteran in previous positive appraisals and that she intended to convey the same message to Ms. Tate. Id. 134:5–14, 140:17–141:12. Similarly, Ms. Aichner testified that she thought her reference to Mr. Palmquist's complaints would be considered positive because it would show his enthusiasm for advancement in the VA. Id. 80:16–81:6. She testified that she did not retaliate against Mr. Palmquist for making complaints and that she had no reason to retaliate because she was not involved in the interview or selection process for the Chief of Voluntary Services position. Id. 164:14:19.

Mr. Palmquist later came to Ms. Aichner's office “screaming and yelling” that he did not get the Tennessee position because she had given him a bad reference. Id. 165:12–17. Ms. Aichner responded that she did not believe she gave him a bad reference. Id. 167:4–15.

b. Delores Tate's Testimony

Delores Tate testified next in Mr. Palmquist's case. Ms. Tate works at the VA Regional Office in Nashville, Tennessee. Trial Tr. II 219:1–3 (Docket # 182). That office is a benefit entitlement center that processes claims for VA benefits. Id. 219:7–13. Ms. Tate explained that in 2006 Mr. Palmquist applied to be a Rating Veteran Service Representative (RVSR). Id. 190:24–25. An RVSR examines evidence and makes decisions based on VA laws and regulations regarding eligibility for compensation, pension, and any other benefits administered by the VA. Id. 225:16–20. An RVSR works at a desk in a boisterous office environment, should stay focused in such an environment, and should be fair and objective in evaluating claims. Id. 238:4–240:13.

Ms. Tate knew Mr. Palmquist had a ten point veteran's preference. Id. 191:19–21. Mr. Palmquist was qualified for the position and he was one of twenty applicants interviewed from a pool of seventy-two applicants. Id. 192:22–193:11. Ms. Tate and subject matter expert Glenda Taylor interviewed Mr. Palmquist on March 3, 2006. Id. 193:24–194:8. Ms. Tate thought Mr. Palmquist had a positive interview. Id. 194:17–24. He informed Ms. Tate and Ms. Taylor that he wanted a challenge and to use his master's degree. Id. 276:20–23. At the end of every interview, Ms. Tate and Ms. Taylor asked the applicant not to contact them and told the applicant that he or she would be notified of the final decision. Id. 254:5–255:1. However, on March 6, 2006, Ms. Tate received an email from Mr. Palmquist. Id. 278:1–3. In the email, Mr. Palmquist thanked Ms. Tate and Ms. Taylor for the chance to be interviewed and reiterated his qualifications. Id. 278:4–12. Ms. Tate thought the email was inappropriate because it violated her...