Porter v. Shah

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 18, 2010 Decided June 1, 2010

No. 09-5167

MELVIN PORTER,

APPELLANT

v.

RAJIV SHAH,

ADMINISTRATOR, USAID,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:04-cv-01440-RBW)

Anne E. Langford argued the cause for the appellant. David

J. Cynamon, Thomas G. Allen, Susan E. Huhta and Gerard M.

Babendreier, were on brief.

Michelle Lo, Assistant United States Attorney, argued the

cause for the appellee. R. Craig Lawrence, Assistant United

States Attorney, was on brief.

Before: HENDERSON, ROGERS and GARLAND, Circuit

Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.

2

KAREN LECRAFT HENDERSON, Circuit Judge: Melvin

Porter appeals the district court’s grant of summary judgment to

the defendant on his 14-count complaint alleging various acts of

retaliation and race and sex discrimination by his employer, the

United States Agency for International Development (USAID).

Porter v. Fulgham, 601 F. Supp. 2d 205 (D.D.C. 2009) (Porter

II Mem. Op.). We affirm the court’s judgment on Counts I-IV

because we agree that Porter failed to rebut USAID’s legitimate

reasons for not promoting him to two positions, Counts VIII and

X based on res judicata and Count XII because the alleged

retaliatory performance assessment did not constitute a

materially adverse employment action. We reverse the district

court’s judgment on Counts V and VI because a reasonable juror

could conclude that Porter was substantially more qualified for

the position of Deputy Chief in the Personnel Operations

Division than the person selected to fill it and on Count XIV

because the unfavorable interim performance assessment of

Porter was a materially adverse employment action.

I.

Porter, a 59-year-old black male, began working for the

United States government in 1975 at the Bureau of Standards

and was hired by USAID in 1985 to work in its Office of Human

Resources at General Schedule (GS) pay grade level 13 (GS-13).

In 1987, he was promoted to GS-14, where he remained for the

duration of his USAID employment despite repeatedly applying

for promotion to GS-15 positions.

From 1988 to 1995, Porter filed a series of equal

employment opportunity complaints alleging sex- and race-

based discrimination, as well as retaliation for filing the

discrimination complaints and a lawsuit. Porter settled the

complaints in 1992 and in 1995, after which USAID transferred

him to the Bureau for Policy and Program Coordination where

he worked as a GS-14 Administrative Officer until September

2007.

3

In August 2000, Porter filed an action in the district court

alleging race and gender discrimination and retaliation. Porter

v. U.S. Agency for Int’l Dev., C.A. No. 00-1954 (D.D.C. filed

Aug. 11, 2000) (Porter I). In June 2002, a jury returned a

verdict in Porter’s favor on two of six counts of retaliatory non-

promotion, awarding him $30,000 in damages. In its judgment

on the verdict, the district court enjoined USAID “from

retaliating against [Porter] for his protected activity under Title

VII.” Judgment at 2, Porter I (D.D.C. Feb. 3, 2003). In June

2003, Porter moved for an order to show cause why USAID

should not be held in contempt for violating the injunction,

alleging that his immediate supervisor, Barbara Turner, had

retaliated against him by (1) denying him a 2001 bonus despite

his “Excellent” performance assessment and (2) assigning him

a “Needs Improvement” assessment in 2002. Mot. of Pl. Porter

for an Order to Show Cause at 1, Porter I (D.D.C. June 24,

2003). The district court issued a show cause order, directing

USAID to explain why it denied the 2001 bonus and issued the

negative assessment. The court subsequently discharged the

show cause order, finding “no evidence of contempt in the

record” as Porter was not entitled to either a performance award

in 2001 or an “Excellent” performance rating in 2002.

Memorandum Order, at 2, Porter I (D.D.C. Nov. 25, 2003)

(Show Cause Discharge Order).

Porter continued to apply for GS-15 positions but without

success. On August 24, 2004, he filed the instant action against

USAID, asserting 14 counts, 10 of which are at issue on appeal:

(1) discriminatory denial of promotion to the position of GS-15

Supervisory Labor Relations Specialist (Count I); (2) retaliatory

denial of promotion to the same position (Count II); (3)

discriminatory denial of promotion to the position of GS-15

Administrative Officer in the Global Bureau (Count III); (4)

retaliatory denial of promotion to the same position (Count IV);

(5) discriminatory denial of promotion to the position of GS-15

Deputy Chief in the Personnel Operations Division (Count V);

4

(6) retaliatory denial of promotion to the same position (Count

VI); (7) retaliatory denial of a performance bonus in 2001

(Count VIII); (8) retaliatory issuance of an adverse performance

assessment for 2002 (Count X); (9) retaliatory issuance of an

adverse interim performance assessment in July 2003 (Count

XII); and (10) retaliatory issuance of an adverse interim

performance assessment in September 2004 (Count XIV).1

USAID moved for summary judgment, which the district

court granted on all counts in an opinion and order filed March

9, 2009. See Porter II Mem. Op., 601 F. Supp. 2d at 238 &

n.21. First, the court concluded that Counts VIII and X were res

judicata because “the plaintiff received the equivalent of a final

judgment on the merits of his retaliation claims concerning the

2001 bonus and his 2002 performance review” in Porter I’s

Show Cause Discharge Order. 601 F. Supp. 2d at 217.

Second, the court analyzed the claims for discriminatory or

retaliatory non-promotion in Counts I-VI under the familiar

burden-shifting framework set out in McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973). Under this framework, the initial

burden rests on the plaintiff to establish a prima facie case of

discrimination or retaliation. Gaujacq v. EDF, Inc., 601 F.3d

565, 576-77 (D.C. Cir. 2010). The burden then shifts to the

employer to produce a legitimate, nondiscriminatory or

nonretaliatory reason for its action. Id. After the employer

produces a legitimate justification for its action, the McDonnell

Douglas framework disappears and the court determines

whether a reasonable jury could infer discrimination or

retaliation based on all of the evidence, including “ ‘not only the

prima facie case but also the evidence the plaintiff offers to

attack the employer’s proffered explanation for its action and

1

As the district court noted, Porter did not contest USAID’s

summary judgment motion as to Counts VII, IX, XI, and XIII. Porter

II Mem. Op., 601 F. Supp. 2d at 212 n.4.

5

other evidence of retaliation.’ ” Id. at 577 (quoting Jones v.

Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009)). For each of

Porter’s six counts of non-promotion, the district court

concluded that, whether or not Porter had made out a prima facie

case, he failed to show USAID’s legitimate nondiscriminatory

or nonretaliatory reason for not selecting him was pretextual.2

Finally, on Counts XII and XIV, alleging retaliatory adverse

performance assessments, the court concluded that neither

assessment qualified as a material “adverse action” because

neither was “the type of personnel action that would objectively

deter a reasonable employee from making a claim of

discrimination.” 601 F. Supp. 2d at 236 (citing Burlington N. &

Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006)).

Porter filed a timely notice of appeal on May 5, 2009.

II.

We review a grant of summary judgment de novo. Miller

v. Hersman, 594 F.3d 8, 10 (D.C. Cir. 2010). “Summary

judgment is appropriate ‘if the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there

is no genuine issue as to any material fact and that the movant

is entitled to judgment as a matter of law.’ ” Id. (quoting Fed. R.

Civ. P. 56(c)) (other internal quotation omitted). “In assessing

whether a genuine issue exists, we ‘view the evidence in the

light most favorable to the nonmoving party.’ ” Id. (quoting

Quigley, 569 F.3d at 453). Applying this standard, we address

each of the contested counts.

2

Because USAID asserted a legitimate, nondiscriminatory or

nonretaliatory reason for each of the non-promotions, whether Porter

“actually made out a prima facie case is . . . irrelevant.” Brady v.

Office of Sergeant at Arms, 520 F.3d 490, 494-95 (D.C. Cir. 2008);

see also Jones, 557 F.3d at 678.

6

A. Counts VIII and X

The district court held that Counts VIII and X—alleging the

retaliatory denial of a performance bonus in 2001 and the receipt

of a “needs improvement” performance assessment in

2002—constituted res judicata because both claims had been

adjudicated in Porter I’s Show Cause Discharge Order, which

rejected Porter’s claim that USAID violated the non-retaliation

injunction as it found “no evidence of contempt in the record.”

Show Cause Discharge Order at 2. We agree with the district

court that the Show Cause Discharge Order rendered the two

claims res judicata.

“ ‘Under the doctrine of res judicata, or claim preclusion, a

subsequent lawsuit will be barred if there has been prior

litigation (1) involving the same claims or cause of action, (2)

between the same parties or their privies, and (3) there has been

a final, valid judgment on the merits, (4) by a court of competent

jurisdiction.’ ” Capitol Hill Group v. Pillsbury, Winthrop,

Shaw, Pittman, LLC, 569 F.3d 485, 490 (D.C. Cir. 2009)

(quoting Smalls v. United States, 471 F.3d 186, 192 (D.C. Cir.

2006)). Counts VIII and X meet all of these requirements.

Porter’s failure to secure a bonus and his adverse rating were

both litigated in the post-judgment proceeding in Porter I by the

same parties (Porter and USAID) and the district court issued a

final decision on the claims’ merits, finding no retaliation

because Porter was not entitled to a bonus or an “Excellent”

rating. As the district court below explained:

The record in Porter I reflects that the parties fully

briefed and provided evidentiary support on the issue

of whether those acts constituted retaliation, and a

member of this Court weighed the factual evidence

proffered and rendered a judgment on the merits of

those matters. The plaintiff having been afforded the

opportunity to litigate his retaliations claims as to the

2001 bonus and 2002 performance evaluation on the

7

merits in his 2000 lawsuit against the defendant, and

having received the equivalent of a final judgment on

the merits rendered by a court of competent

jurisdiction on these same claims he seeks to pursue in

this case, the Court finds that Counts VIII and X are

barred by the doctrine of res judicata.

601 F. Supp. 2d at 217.

Porter asserts res judicata should not apply because he was

not given a “full and fair opportunity” to litigate the merits. See

Nixon v. United States, 978 F.2d 1269, 1298 (D.C. Cir. 1992)

(Henderson, J., concurring) (“To apply res judicata, the litigants

or their privies must have had a full and fair opportunity to raise

the claim in an earlier proceeding.”). In particular, Porter claims

he should have been afforded discovery and an evidentiary

hearing. But Porter was not entitled to discovery or an

evidentiary hearing as a matter of right; whether to afford him

either one was a matter within the trial court’s discretion. See

Ned Chartering & Trading, Inc. v. Republic of Pakistan, 294

F.3d 148, 151 n.1 (D.C. Cir 2002) (“decision to hold an oral

hearing is committed to ‘the discretion of the court’ ” (quoting

then D.D.C. Local Rule 7.1(f) (now D.C.D. LCvR 78.1)); Ikossi

v. Dep’t of Navy, 516 F.3d 1037, 1040 (D.C. Cir. 2008) (court

reviews denial of discovery for abuse of discretion). He had the

opportunity to—and did—submit extensive documentary

evidence. If he felt the court abused its discretion in failing to

afford him discovery or a hearing, he could have appealed the

court’s discharge of the show cause order, asserting abuse of

discretion. Because he forwent the opportunity to appeal, the

two claims decided against him in Porter I are res judicata

here.3

3

Relying on the Second Circuit’s decision in Marvel Characters,

Inc. v. Simon, 310 F.3d 280 (2d Cir. 2002), Porter contends res

judicata does not apply because the district court “could not have

8

B. Counts I-VI

Counts I, III and V all allege the discriminatory denial of

promotion to distinct GS-15 positions, while Counts II, IV and

VI allege retaliatory denial of promotion to the same three

positions. Because USAID offered a legitimate reason for

denying each promotion, the “central inquiry” for the court is

“whether the plaintiff produced sufficient evidence for a

reasonable jury to find that the employer’s asserted

non-discriminatory reason was not the actual reason and that the

awarded damages in the post-judgment contempt proceedings.” Reply

Br. at 8; see Marvel, 310 F.3d at 287 (“[R]es judicata does not bar

subsequent litigation when the court in the prior action could not have

awarded the relief requested in the new action.”). While Porter is

technically correct that the court could not have awarded “damages”

in the civil contempt proceeding, it could have provided equivalent

relief “ ‘to compensate [Porter] for losses sustained,’ through a fine

payable to [him].” United States v. Waksberg, 112 F.3d 1225, 1226

(D.C. Cir. 1997) (quoting United States v. United Mine Workers of

Am., 330 U.S. 258, 303-04 (1947)); see, e.g., Equal Employment

Opportunity Comm’n v. Local 638, 81 F.3d 1162, 1177 (2d Cir. 1996)

(reversing excessive civil contempt fine against union for violating

court’s affirmative action order and remanding to recalculate remedy

to compensate with back pay only workers who actually suffered

discrimination). Moreover, that the burden of proof may be heavier

in a civil contempt proceeding than in a trial proceeding, see Shepherd

v. Am. Broad. Cos., 62 F.3d 1469, 1477 (D.C. Cir. 1995), is of no

moment in this case because the district court made clear that Porter

had not borne even the lightest of burdens. See Show Cause

Discharge Order at 2 (finding “no evidence of contempt”) (emphasis

added). Porter also argues USAID is “estopped” from asserting res

judicata because it adopted an inconsistent position in Porter I.

Because Porter raises the argument for the first time in his reply brief,

we do not consider it. Schuler v. PricewaterhouseCoopers, LLP, 595

F.3d 370, 376 (D.C. Cir. 2010).

9

employer intentionally discriminated against the plaintiff on a

prohibited basis.” Adeyemi v. District of Columbia, 525 F.3d

1222, 1226-27 (D.C. Cir. 2008). The district court concluded

there was insufficient evidence to infer the asserted reasons were

pretextual and accordingly concluded that summary judgment

was appropriate. On de novo review, we reach the same

conclusion as to Counts I-IV but not as to Counts V and VI.

Counts I and II allege that in August 2000, shortly after

filing the complaint in Porter I, Porter applied for the position

of GS-15 Supervisory Labor Relations Specialist but was denied

the promotion because of his race and in retaliation for his “prior

protected activity.” 2d Am. Compl. ¶¶ 15, 29-33, Porter II (Oct.

12, 2005). The district court found unrebutted USAID’s

legitimate reasons for passing over Porter for another candidate

who “ ‘had practiced law for approximately ten years prior to

his selection for the [position],’ held a law degree from a

prestigious law school, and had experience performing the

legally related functions required of the position,” pointing out

that Porter “did not have a legal degree, had drafted only one

appeal, never prepared a final agency decision during his career

or wrote an agency-level Foreign Service decision, and had

never represented the Agency before the Foreign Service

Grievance Board, all tasks which he would be required to do if

he had been selected for the position.” Porter II Mem. Op., 601

F.3d at 220-21 (quoting Mem. of Points and Authorities in Supp.

of Def.’s Mot. for Summ. J., Porter II) (internal record citations

omitted; alteration in original).

Porter argues, as he did below, that the proffered legitimate

reasons are rebutted by the facts that (1) he was better qualified

than the candidate selected and (2) the selecting officer for the

position, Marilyn Marton, who had been found to have retaliated

against Porter in Porter I, “overhauled” the position’s “crediting

plan” which set out the criteria for grading applicants.

10

Appellant’s Br. at 27. Neither assertion, however, precludes

summary judgment on Counts I and II.

First, the record indicates that Porter was not “substantially

more qualified” to perform the duties listed in the vacancy

announcement than the successful candidate, H. David Kotz, a

lawyer with 10 years’ experience in labor and employee

relations.4 See Lathram v. Snow, 336 F.3d 1085, 1092 (D.C. Cir.

2003). Porter plainly lacked the “stark superiority of

credentials” over Kotz that can give rise to an inference of

pretext. Stewart v. Ashcroft, 352 F.3d 422, 429 (D.C. Cir.

2003); see also Adeyemi, 525 F.3d at 1227 (“The qualifications

gap must be great enough to be inherently indicative of

discrimination.”) (internal quotation omitted). Second, there is

nothing about the alleged “overhaul” of the crediting plan that

is, by itself, particularly indicative of discrimination or

pretext—it affected all applicants equally and nothing in its text

or about its circumstances ties it to discrimination or retaliation

4

The vacancy described the incumbent as the “senior advisor

relating to the Agency’s labor management obligations” with the

responsibility to render “final Agency decisions” on grievances and to

represent USAID before the Federal Labor Relations Authority, the

Foreign Service Labor Relations Board, the Federal Service Impasse

Panel and the Foreign Service Impasse Disputes Panel. USAID

Vacancy Announcement for “Supervisory Labor Relations Specialist,”

No. 00-2073-MW at 1-2 (opened Aug. 29, 2000) (ex. 6 to Def.’s’

Statement of Material Facts as to Which There is No Genuine Dispute,

Porter II (filed July 21, 2006) (Def.’s Statement)). Kotz’s resume

revealed he had represented USAID before the Foreign Service

Grievance Board, the Merit Systems Protection Board, the Equal

Employment Opportunity Commission and the General Accounting

Office, had drafted and reviewed “numerous grievance decisions” and

had engaged in “numerous discussions and negotiations with union

officials.” Resume of Harold David Kotz at 2. Porter had been

involved in a single contract negotiation, written only one appeal and

drafted no final agency decision. Def.’s Statement at 5.

11

against Porter specifically. Cf. Adeyemi, 525 F.3d at 1228-29

(re-advertising of position to seek level 12 applicants to fill two

remaining level 11 openings—after hiring five level 11s—not

indicative of discrimination because all level 11 non-incumbents

were similarly disadvantaged). And Porter has not shown that

changing the job criteria was “so irregular or inconsistent with

[USAID’s] established policies as to make its hiring explanation

unworthy of belief.” Simms v. Oklahoma ex rel Dep’t of Mental

Health & Substance Abuse Servs., 165 F.3d 1321, 1330 (10th

Cir. 1999). Nor can a finding of pretext rest on the bare fact of

Marton’s history with Porter. See id. (alleged past retaliatory act

by two job interviewers was “relevant” but “not enough to

impute sinister motivations to them during the . . . selection

process”).

We also uphold the grant of summary judgment on Counts

III and IV, which allege that in May 2001 USAID decided not

to advertise a vacancy for a GS-15 Administrative Officer in the

Global Bureau and instead laterally transferred a white male to

the position in order to prevent Porter from securing it,

discriminating against him on account of his race and retaliating

for his agency complaints and his successful litigation of Porter

I. 2d Am. Compl. ¶¶ 18-20, 34-38. The district court again

found unrebutted USAID’s legitimate reason for choosing the

selectee (and for electing not to open the position to

competition)—namely, “the selectee’s absolutely outstanding

credentials, including a long and distinguished career in the

personnel field, his publications, and college-level teaching

experience.” Porter II Mem. Op., 601 F. Supp. 2d at 222

(internal record quotations omitted). Porter does not challenge

the selectee’s qualifications but instead asserts as “evidence” of

pretext that Linda Lion, who, like Marton, had been involved in

the retaliation found by the Porter I jury and had testified at the

Porter I trial, made the non-competitive lateral transfer decision

while knowing Porter was the “most competitive candidate for

the position” within the department and that he would apply for

12

the position. Appellant’s Br. at 31. From all of this, Porter

claims, a jury could infer that Lion made the decision for the

purpose of discriminating and retaliating against him. Such

“speculations and allegations . . . are insufficient to create a

genuine issue of fact regarding [an employer’s] articulated

reasons for [its decisions] and avoid summary judgment.”

Brown v. Brody, 199 F.3d 446, 458-59 (D.C. Cir. 1999) (internal

quotation omitted). Lion’s involvement in both Porter I and

Porter II is, like Marton’s, insufficient by itself to establish

pretext. Further, Lion was authorized under USAID procedures

to fill the vacancy through a lateral transfer without a

competitive procedure, see Porter II Mem. Op., 601 F. Supp. 2d

at 223 & n.11—so that the lateral transfer was neither

“irregular” nor “inconsistent with [USAID’s] established

policies,” Simms, 165 F.3d at 1330. On this record, there was no

basis for the district court (nor is there for us) to reject USAID’s

legitimate reason for the lateral transfer. Summary judgment

was therefore appropriate.5

By contrast, summary judgment was not appropriate on

Counts V and VI, which charged USAID with gender

discrimination and retaliation in not promoting Porter in

November 2001 to the open position of Deputy Chief in the

Personnel Operations Division. The district court again accepted

USAID’s proffered reason for not selecting Porter, namely, that

5

Although we find certain facts Porter cites insufficient to rebut

USAID’s legitimate reasons for not promoting Porter to the position

of Supervisory Labor Relations Specialist or Global Bureau

Administrative Officer—such as the involvement of the same decision

makers who were found liable in Porter I, the “overhaul” of the job

criteria and the decision to bring in a lateral transfer—nonetheless, on

remand, these facts may be considered as evidence in deciding the

remanded counts. See Simms, 165 F.3d at 1330 (allegation of past

retaliation by superior is “relevant” to allegation of wrongful non-

promotion).

13

“the female selectee had over 34 years of experience in human

resource management, had been serving in a similar position to

that of Deputy Chief and had far more supervisory experience

than that of the plaintiff, even having supervised the plaintiff for

some time.” Porter II Mem. Op., 601 F. Supp. 2d at 224. The

record, however, casts doubt on USAID’s asserted reason for

rejecting Porter.

The job description of the Deputy Chief position stated that

a “B.A./B.S. in personnel management, business administration

or international business management is required[,] [and a]

M.A./M.S. is desired.” 601 F. Supp. 2d at 225 (quoting Def.’s

Statement of Material Facts as to Which There is No Genuine

Dispute, ex. 32 at 6, Porter I (filed July 21, 2006)). In lieu of

the “required” bachelor’s degree in business, Porter, whose

bachelor’s degree is in political science, holds a second master’s

degree in business (he has a master of science in business and a

master’s degree in business administration); the selectee, by

contrast, was a high school graduate with no college degree at

all. Given that the two candidates’ qualifications were otherwise

close, as the district court acknowledged, 601 F. Supp. 2d at

225, the substantial educational discrepancy could lead a

reasonable jury to conclude that Porter was “markedly more

qualified” than was the selectee, “thus throwing into doubt the

reason given for his rejection.” Aka v. Washington Hosp. Ctr.,

156 F.3d 1284, 1299 (D.C. Cir. 1998) (en banc). Accordingly,

USAID was not entitled to summary judgment on Counts V and

VI.

C. Performance Assessments

Finally, we address the grant of summary judgment on

Counts XII and XIV, alleging that Porter received a retaliatory

adverse interim performance assessment in, respectively, July

2003 and September 2004. The district court granted summary

judgment on each count on the ground that the evaluations were

14

not material adverse actions so as to constitute actionable

retaliation. We agree as to Count XII but not Count XIV.

“In order to prevail upon a claim of unlawful retaliation, an

employee must show she engaged in protected activity, as a

consequence of which her employer took a materially adverse

action against her.” Taylor v. Solis, 571 F.3d 1313, 1320 (D.C.

Cir. 2009) (internal quotation omitted). “A materially adverse

action is one that ‘could well dissuade a reasonable worker from

making or supporting a charge of discrimination.’ ” Id. (quoting

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57

(2006)) (other internal quotation omitted). The 2003 interim

assessment falls short of this standard.

On July 7, 2003, in a face-to-face meeting, Turner assessed

Porter as “borderline unacceptable” and criticized his

performance of various tasks. The assessment was delivered

orally, with no written record placed in Porter’s personnel files,

and it was superseded by his year-end annual review. Decl. of

Melvin C. Porter ¶¶ 58-59 (dated Sept. 15, 2006) (Porter Decl.)

(ex. 1 to Pl.’s Rule 7.1(h) Statement in Resp. to Def.’s Statement

of Undisputed Material Facts (filed Sept. 19, 2006) (Pl.’s

Statement)); see Automated Directives System (ADS) 462.3.1.1,

462.3.6.6 Thus, the interim assessment did not affect Porter’s

“ ‘position, grade level, salary, or promotion opportunities’ ”

and was therefore not a materially adverse action. Taylor v.

Solis, 571 F.3d at 1321 (quoting Baloch v. Kempthorne, 550

F.3d 1191, 1199 (D.C. Cir. 2008)).

Count XIV presents a different situation. In it, Porter

alleges Turner retaliated against him again in the 2004 interim

assessment. On September 1, 2004, Turner issued him a

6

At year’s end, Turner assessed Porter as “Needs Improvement,”

an assessment later overturned by an “Appraisal Committee.” Porter

Decl. ¶¶ 58-59.

15

“Notification of Unacceptable Performance”—a rating that

“informs an employee that his or her performance teetered on

the lowest rating possible for an Agency employee.” Porter

Decl. ¶ 62; see 2d Am. Compl. ¶¶ 28, 63. In contrast to the 2003

interim assessment, the 2004 evaluation was in writing and was

placed in Porter’s personnel file notwithstanding USAID’s

policy that “[n]ormally, interim evaluations are retained in the

operating unit and not submitted to the Office of Human

Resources for filing in an employee’s Official Evaluation File.”

ADS 462.3.6.1; see Porter Decl. ¶ 63. Moreover, it was

accompanied by a 120-day “Performance Improvement Plan”

(PIP), which “outline[d] the required activities and level of

performance” needed to upgrade his evaluation to “needs

improvement.” Memo. from Barbara N. Turner to Melvin

Porter at 1 (dated Sept. 1, 2004) (Pl.’s Statement ex. 56); see

Porter Decl. ¶ 61. Under Civil Service regulations and USAID

policies, the rating and the PIP could expose him to removal,

reduction in grade, withholding of within grade increase or

reassignment. See 5 C.F.R. § 432.104; ADS 462.3.3.1. Given

their serious consequences affecting Porter’s “ ‘position, grade

level, salary, or promotion opportunities,’ ” the negative

assessment together with the PIP constituted a material adverse

action. Taylor v. Solis, 571 F.3d at 1321 (quoting Baloch, 550

F.3d at 1199).

For the foregoing reasons, we affirm the district court’s

summary judgment on Counts I-IV, VIII, X and XII and reverse

its judgment on Counts V, VI and XIV. We remand for further

action consistent with this opinion.

So ordered.