United States District Court, District of Columbia
N. McFADDEN, U.S.D.J.
Donald Brett, a former employee of the U.S. Postal Service,
sued the Postmaster General under the Rehabilitation Act of
1973 for employment discrimination based on disability, for
retaliation based on protected activity, and for the creation
of a hostile work environment. In a prior Order, the Court
granted in part and denied in part the Postmaster
General’s motion for summary judgment. See Brett v.
Brennan, No. 1:15-CV-01613 (TNM), 2019 WL 4040682, at *1
(D.D.C. Aug. 27, 2019). The Postmaster General now moves for
reconsideration of the Court’s denial of her motion
with respect to Mr. Brett’s retaliation claim.
See Mot. for Recons. (“Mot.”), ECF No.
59(e) permits a court to alter or amend a judgment, but it
may not be used to relitigate old matters, or to raise
arguments or present evidence that could have been raised
prior to the entry of judgment.” Leidos, Inc. v.
Hellenic Republic, 881 F.3d 213, 217 (D.C. Cir. 2018)
(quoting Exxon Shipping v. Baker, 554 U.S. 471, 486
n.5 (2008)). Courts may grant a Rule 59(e) motion only
“(1) if there is an ‘intervening change of
controlling law’; (2) if new evidence becomes
available; or (3) if the judgment should be amended in order
to ‘correct a clear error or prevent manifest
injustice.’” Id. (quoting Firestone
v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)).
is no manifest injustice when “a party could have
easily avoided the outcome, but instead elected not to act
until after a final order had been entered.”
Ciralsky v. CIA, 355 F.3d 661, 665 (D.C. Cir. 2004).
“And the moving party has the burden of proving that
relief under Rule 59(e) is warranted.” Arabaitzis
v. Unum Life Ins. Co. of Am., 351 F.Supp.3d 11, 15
January 2010 EEOC affidavit, Mr. Brett wrote, “I am
convinced my superiors were motivated to retaliate against me
for a number of reasons and incidents . . .” and then
listed protected activity but also other non-protected
incidents. See Brett Aff. 4–5, ECF No.
53-11.According to the Postmaster General,
because Mr. Brett detailed multiple reasons for the adverse
actions at issue, there is no genuine issue about whether his
protected activity was the but-for cause of those adverse
actions. Mot. 2.
prevail on a retaliation claim, a plaintiff “must
establish that his or her protected activity was a but-for
cause of the alleged adverse action by the employer.”
Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S.
338, 362 (2013). According to the Postmaster General, Mr.
Brett’s claim fails because he admitted that there were
many reasons why the Postmaster General retaliated against
him-and only one was protected activity. Mot. 2.
First, to survive summary judgment, Mr. Brett need not
prove that his protected activity was a but-for
cause of the adverse actions. Rather, he merely “must
raise a genuine dispute over the employer’s honest
belief in its proffered explanation.” Morris v.
McCarthy, 825 F.3d 658, 671 (D.C. Cir. 2016). “A
plaintiff can meet this burden by casting doubt on the
objective validity of the employer’s
explanation.” Id. A jury, not the Court, will
decide whether Mr. Brett’s protected activity was a
but-for cause of the adverse actions here.
Mr. Brett’s particular statement in his affidavit,
“[t]he requirement of but-for causation in retaliation
claims does not mean that the protected activity must have
been the only cause of the adverse action.” Carlson
v. CSX Transp., Inc., 758 F.3d 819, 828 n.1 (7th Cir.
2014). Rather, it means that the adverse action would not
have happened without the protected activity. As the Supreme
Court has explained, “if poison is administered to a
man debilitated by multiple diseases, it is a but-for cause
of his death even if those diseases played a part in his
demise, so long as, without the incremental effect of the
poison, he would have lived.” Burrage v. United
States, 134 S.Ct. 881, 888 (2014). And again,
Nassar says that a plaintiff must prove that his
protected activity was “a but-for cause, ” not
“the but-for cause.” See Nassar, 570
U.S. at 362.
fact that a plaintiff admits that things other than
retaliation could explain his employer’s decisions is
relevant. See, e.g., Morales v. Gotbaum, 42
F.Supp.3d 175, 200 (D.D.C. 2014); Dunbar v. Foxx,
246 F.Supp.3d 401, 415–16 (D.D.C. 2017). For example,
it may be evidence that the employer’s proffered
reasons were honest. And the Court suspects that a jury would
find it relevant to its determination as to whether a
plaintiff has proven but-for causation. But such an admission
alone is not dispositive here.
cases, cited by the Postmaster General, do not suggest
otherwise. In Morales, the plaintiff provided
“no evidence” from which the court could infer
that the alleged adverse actions would not have happened but
for the plaintiff’s protected activity. 42 F.Supp.3d at
200. Not so here. For instance, there is evidence that his
supervisor was preparing his affidavit in response to the EEO
complaint the same week Mr. Brett’s requests for leave
was denied. See Brett, 2019 WL 4040682, at *8.
Dunbar, the court also denied summary judgment,
explaining that “a reasonable fact-finder might reach
different conclusions” about whether the adverse action
was caused by retaliatory animus over protected activity or
based on earlier events. 246 F.Supp.3d at 415–16. Here,
a reasonable fact-finder may believe that Mr. Brett’s
supervisors treated him this way because he was subordinate
or because he engaged in protected activity. That is
a jury question. The Postmaster General tries to distinguish
Dunbar, pointing out that “there is no basis
to parse pre-EEOC and post-EEOC conduct” here.
See Mot. 4. Sure, that would make his case for
causation stronger. Even so, the jury can decide whether Mr.
Brett has proven that the alleged actions would not have
occurred but for his protected activity.
the facts in the light most favorable to Mr. Brett, the Court
adheres to its prior determination that he has produced
evidence by which a reasonable jury could conclude that the
Postmaster General’s stated reason ...