United States District Court, W.D. Washington, Tacoma
LOUIE M. ROSALES, Plaintiff,
RICHARD V. SPENCER, Secretary of the United States Department of the Navy, Defendant.
ORDER GRANTING PLAINTIFF'S MOTION FOR
RECONSIDERATION AND VACATING JUDGMENT AND ORDER ON
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Plaintiff Louie
Rosales's (“Rosales”) motion for
reconsideration. Dkt. 47.
4, 2019, the Court granted Defendant Richard Spencer's
(“Government”) motion for summary judgment in
part and denied it in part. Dkt. 45. In relevant part, the
Court granted the motion on Rosales's Title VII
retaliation claims. Id. On June 6, 2010, the Court
entered judgment in favor of the Government after Rosales
voluntarily dismissed his remaining breach of contract claim.
18, 2019, Rosales filed a motion for reconsideration arguing
in part that the Court applied an improper standard in
considering his retaliation claims. Dkt. 47. On June 20,
2018, the Court requested a response from the Government and
renoted Rosales's motion. Dkt. 48. On June 28, 2019, the
Government responded. Dkt. 49. On July 5, 2019, Rosales
replied. Dkt. 51.
for reconsideration are governed by Local Rule 7(h), which
provides as follows:
Motions for reconsideration are disfavored. The court will
ordinarily deny such motions in the absence of a showing of
manifest error in the prior ruling or a showing of new facts
or legal authority which could not have been brought to its
attention earlier with reasonable diligence.
Rules W.D. Wash. LCR 7(h). “[A] motion for
reconsideration should not be granted, absent highly unusual
circumstances, unless the district court is presented with
newly discovered evidence, committed clear error, or if there
is an intervening change in the controlling law.”
Kona Enters., Inc. v. Estate of Bishop, 229 F.3d
877, 890 (9th Cir. 2000) (quoting 389 Orange Street
Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)).
case, the Court concludes that it committed clear legal error
in granting the Government's motion. Rosales argues that
the Court improperly considered his claims under 42 U.S.C.
§ 2000e-3, which requires a plaintiff to establish
“but-for” causation, when it should have
considered his claims under 42 U.S.C. § 2000e-16, which
is the statute governing discrimination in federal employment
and employs a “more likely than not” causation
standard. Dkt. 47. In Gomez-Perez v.
Potter, 553 U.S. 474 (2008), the Supreme Court stated
that “[t]he Federal Government . . . has declined to
take a position on the question whether Title VII bans
retaliation in federal employment . . . and that issue is not
before us in this case.” Id. at 488 n.4. In
Nita H. v. Sally Jewell, Sec'y, Dep't of
the Interior, EEOC DOC 0320110050, 2014 WL 3788011
(E.E.O.C. July 16, 2014), the United States Equal Employment
Opportunity Commission (“EEOC”) took the position
that not only does Title VII prohibit retaliation in federal
employment but also that the standard is whether the
“protected activity more likely than not caused”
the adverse action. Id. at *9, *10 n.6. The second
proposition is inconsistent with the Supreme Court's
holding that under § 2000e-3 the plaintiff must prove
“but-for” causation between the protected
activity and the adverse employment actions. Univ.
of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338,
360 (2013). The EEOC explained the difference as follows:
In the Commission's view, the “but for”
standard (“but for” its retaliatory motive, the
employer would not have taken the adverse action, meaning
that the retaliatory motive made a difference in the outcome)
does not apply to retaliation claims by federal sector
applicants or employees under Title VII or the ADEA because
the relevant federal sector statutory language does not
employ the “because of” language on which the
Supreme Court based its holdings in [Nassar] and
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009)
(requiring “but for” causation for ADEA claims
brought under 29 U.S.C. § 623). These federal sector
provisions contain a “broad prohibition of
‘discrimination' rather than a list of specific
prohibited practices.” See Gomez-Perez v.
Potter, 553 U.S. 474, 487-88 (2008) (holding that the
broad prohibition in 29 U.S.C. § 633a(a) that personnel
actions affecting federal employees who are at least 40 years
of age “shall be made free from any discrimination
based on age” prohibits retaliation by federal
agencies); see also 42 U.S.C. § 2000e-16(a)
(personnel actions affecting federal employees “shall
be made free from any discrimination based on race, color,
religion, sex, or national origin”).
Nita H., 2014 WL 3788011, at *10 n.6. Thus, the
Federal Government has spoken on the issue, and Rosales has
established that the Court committed clear error in imposing
a “but-for” standard when considering his §
2000e-16 retaliation claims.
Government argues that the Court did not commit error for
numerous reasons. First, the Government contends that the
Ninth Circuit implements the “but-for” causation
standard in federal employment cases. Dkt. 49 at 3. However,
the cases the Government cites do not clearly address the
issue of retaliation against a federal employee under §
2000e-16. Id. (listing cases). For example, in
Arakaki v. Brennan, 17-15885, 2019 WL 2451080 (9th
Cir. June 12, 2019), the court stated that “Plaintiff
Keith Arakaki appeals the district court's order granting
summary judgment to his employer, the United States Postal
Service, on his employment discrimination claims brought
pursuant to Title VII, 42 U.S.C. § 2000e-3.”
Id. at 1. Therefore, the Government has failed to
show binding precedent implementing the “but-for”
standard on § 2000e-16 claims.
the Government argues that the EEOC opinion is non-binding
and relies on a difference in language between § 2000e-3
and § 2000e-16 that “does not make a
difference.” Dkt. 49 at 3-4. While the EEOC's
opinion is not binding, the Government fails to establish
whether it is entitled to deference. Udall v.
Tallman, 380 U.S. 1, 16 (1965) (“this Court shows
great deference to the interpretation given the statute by
the officers or agency charged with its
administration.”); 42 U.S.C. § 2000e-12
(“The Commission shall have authority from time to time
to issue, amend, or rescind suitable procedural regulations
to carry out the provisions of this subchapter.”).
Similarly, the difference in language did make a difference
to the EEOC, and the Government has failed to establish, at
least in this round of briefing, that § 2000e-3 and
§ 2000e-16 should be construed and interpreted
the Court GRANTS Rosales's motion for
reconsideration, Dkt. 47, and the Clerk shall
VACATE the order granting the
Government's motion for summary judgment, Dkt. 43, and
judgment, Dkt. 46. The parties shall file a joint status
report regarding how they intend to proceed with this matter.
The Court envisions an abbreviated trial schedule starting
with a dispositive motion deadline and ending with a new
trial date. The parties may also consider requesting a brief
from the EEOC as amicus curiae on the relevant issue.