Porter, Melvin v. Natsios, Andrew S.

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 6, 2005 Decided July 1, 2005

No. 04-5061

MELVIN PORTER,

APPELLANT

v.

ANDREW S. NATSIOS, ADMINISTRATOR,

UNITED STATES

AGENCY FOR INTERNATIONAL DEVELOPMENT,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 00cv01954)

Robert K. Kelner argued the cause for appellant. With him

on the briefs were Eric C. Bosset, Noah B. Monick, and Susan E.

Huhta.

Peter S. Smith, Assistant U.S. Attorney, argued the cause

for appellee. With him on the brief were Kenneth L. Wainstein,

U.S. Attorney, and Michael J. Ryan, Assistant U.S. Attorney. R.

2

Craig Lawrence entered an appearance.

Before: GINSBURG, Chief Judge, and ROGERS and ROBERTS,

Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge: Melvin Porter sued his employer

for violating Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e et seq. (2000), after he was passed over for promotion

to three different GS-15 positions. Although the jury rejected

his allegations of racial discrimination, it found that retaliation

against him for his previous complaints of racial discrimination

was a motivating factor in his employer’s decision not to select

him for two of the GS-15 positions and awarded him $30,000 in

compensatory damages. As further relief, the district court

awarded Porter prejudgment interest on the damages award, his

attorney’s fees and costs, and enjoined the employer from

retaliating against Porter in the future, but denied his request for

back pay and placement in a GS-15 position. The only issue on

appeal is whether the district court abused its discretion by

denying an award of back pay and a GS-15 placement. Porter

contends it did for two reasons: first, because the district court

erred as a matter of law by determining that the employer would

not have promoted Porter to either of the two GS-15 positions in

the absence of retaliation, after deciding, upon Porter’s

objection, not to instruct the jury on the same issue under the

Civil Rights Act of 1991 (“1991 Act”), 42 U.S.C. § 2000e-

5(g)(2)(B) (2000); and second, because the district court, in

rejecting Porter’s request for back pay and placement in a GS-

15 position, failed adequately to consider the deterrent purpose

of Title VII, and clearly erred in finding that the employer would

not have selected Porter for either GS-15 position in the absence

of retaliation. We hold that the district court did not abuse its

discretion in determining under 42 U.S.C. § 2000e-5(g)(1) that

3

back pay and a GS-15 placement did not constitute appropriate

equitable relief. Accordingly, we affirm the judgment of the

district court.

I.

Melvin Porter, an African-American male, has been

employed by the United States Agency for International

Development (“USAID”) since 1985. Since his promotion to a

GS-14 position in 1987, he has been repeatedly passed over for

advancement to a GS-15 position, despite receiving numerous

positive performance evaluations. Porter claims that USAID’s

failure to promote him “is part of a larger atmosphere of

hostility and opposition towards the professional advancement

of black males within the Agency.” Complaint ¶ 16, at 3. In

1992 and 1994, Porter filed two Equal Employment Opportunity

(“EEO”) complaints alleging racial discrimination, which were

later settled. In 1995, according to Porter, USAID transferred

him from the Office of Human Resources, where he had been

employed since 1985, to the Bureau for Policy and Program

Coordination because of hostility toward him within the Office

of Human Resources for filing his 1994 EEO complaint. Id. ¶

15, at 3.

In April 1996, Porter applied for a GS-15 position in the

Bureau for Latin America and the Caribbean (“LAC”), but the

position went to an Asian-American female. Porter maintains

that he was denied a fair opportunity to compete for the position

when his name was initially omitted from the list of best

qualified candidates, that a less-qualified candidate was pre-

selected for the position before the vacancy was announced, and

that USAID discriminated against him on the basis of his race

and gender and retaliated against him for his prior EEO activity,

because an official named in his two EEO complaints had

participated in the promotion decision. Id. ¶¶ 17-19, at 4. Two

years later, in March 1998, when Porter applied for a GS-15

4

position in the Personnel Operations Division (“POD”) of the

Office of Human Resources, a white male who Porter claims

had no experience with the agency’s foreign service personnel

system was selected for the position. Porter maintains that he

was denied the POD position because of his race and his prior

EEO activity. Id. ¶ 21, at 4-5. In April 1998, Porter applied for

another GS-15 position in the Executive Management (“EM”)

Division of the Office of Human Resources. Although he did

not initially rank among the best qualified candidates, he later

received a perfect score on an independent evaluation of the

candidates, at which point the agency canceled the vacancy

announcement. USAID re-advertised the position in November

1998 as a foreign service position and selected a white male

foreign service officer who Porter alleges had no substantive

experience with personnel management. Id. ¶¶ 22-26, at 5.

Porter maintains that USAID’s actions in connection with the

EM position were based on racial discrimination and retaliation

for his prior EEO activity. Porter also claims that he was denied

a position on the agency’s Special Awards Committee because

of his race and his prior EEO activity. Id. ¶¶ 27-28, at 6.

On May 2, 2001, Porter sued USAID for discriminating and

retaliating against him in violation of Title VII. Specifically, the

complaint alleged “a continuous and uninterrupted course of

discriminatory conduct that occurred between 1996 and the

present, during which time Caucasian and Asian individuals

with inferior qualifications were selected for positions within the

Agency for which [he] was qualified and for which he had

applied.” Id. ¶ 3, at 2. The complaint sought an injunction

against future discrimination and retaliation, as well as relief

that would “make [Porter] whole,” including back pay and

benefits, placement in a GS-15 position that he would have

attained but for USAID’s discrimination and retaliation,

compensatory damages for “emotional distress, physical pain,

mental anguish, and humiliation,” and attorney’s fees and costs.

5

Id. ¶ 39, at 8-9. In its answer to the complaint, USAID admitted

that Porter had received numerous positive performance

evaluations of “exceeds fully successful,” “excellent,” and

“exceptional,” but denied all allegations of discrimination and

retaliation. It asserted in its pretrial statement of defenses that

“there was no discrimination or retaliation in the three selections

at issue” and that Porter “would not have been selected for any

of the three positions even in the absence of discrimination.”

Def.’s Pretrial Statement ¶ 3, at 2. USAID also proposed a jury

instruction and special interrogatory on the “same action”

affirmative defense established by the 1991 Act, 42 U.S.C. §

2000e-5(g)(2)(B), asking the jury to determine, if it found

discrimination or retaliation, whether USAID “would have taken

the same action even in the absence of discrimination or

retaliation.”

At the close of the evidence, the district court sustained

Porter’s objection to USAID’s request for a jury instruction on

the “same action” affirmative defense. Instead, as Porter

requested, the district court instructed the jury to determine

whether discrimination or retaliation was “a motivating factor”

in USAID’s decision not to promote Porter to each of the three

positions “even though other factors may also have played a role

in that decision.” The instruction stated that “Mr. Porter is not

required to prove that his race or protected activity was the only

reason for USAID’s decision,” but that “[i]f you find that Mr.

Porter has proven by a preponderance of the evidence that racial

discrimination or retaliation more probably than not motivated

USAID, then you must find for Mr. Porter.” Finding that

USAID had not discriminated against Porter on the basis of his

race or gender with respect to any of the three positions, but that

it had retaliated against him in deciding not to promote him to

the POD and EM positions, the jury awarded Porter $15,000 in

compensatory damages for each of those claims.

6

Porter then petitioned the district court for equitable relief,

including back pay and placement in a GS-15 position, relying

on Lander v. Lujan, 888 F.2d 153 (D.C. Cir. 1989), for the

proposition that district courts “must strive to grant ‘the most

complete relief possible’ in cases of Title VII violations,” id. at

156 (quoting Franks v. Bowman Transp. Co., 424 U.S. 747, 764

(1976)), and “[i]n particular, the courts must make the victim

‘whole’ by ‘plac[ing him], as near as may be, in the situation he

would have occupied if the wrong had not been committed,’” id.

(second alteration in original) (quoting Albemarle Paper Co. v.

Moody, 422 U.S. 405, 418-19 (1975)). USAID, in turn, again

invoked the “same action” affirmative defense under § 2000e-

5(g)(2)(B), and asked the district court to find by a

preponderance of the evidence that USAID would have taken

the same action regarding the POD and EM positions in the

absence of retaliation. Concluding that the jury verdict left it

free to decide the “same action” issue, the district court credited

the testimony of USAID’s witnesses and found that the agency

would not have selected Porter for either of the GS-15 positions

in the absence of retaliation. Accordingly, the district court

enjoined USAID from future retaliation and awarded Porter his

attorney’s fees and costs, as well as prejudgment interest on his

damages award, but denied back pay and a GS-15 placement,

concluding that these remedies were unnecessary to make Porter

whole.

II.

On appeal, Porter contends that the district court committed

legal and factual errors in denying him back pay and placement

in a GS-15 position. In reviewing the district court’s

determination of an appropriate remedy under Title VII, the

court considers “whether the District Court was ‘clearly

erroneous’ in its factual findings and whether it ‘abused’ its

traditional discretion to locate ‘a just result’ in light of

circumstances peculiar to the case.” Albemarle, 422 U.S. at 424

7

(quoting Langnes v. Green, 282 U.S. 531, 541 (1931)); see also

Peyton v. DiMario, 287 F.3d 1121, 1125-26 (D.C. Cir. 2002);

Barbour v. Merrill, 48 F.3d 1270, 1278 (D.C. Cir. 1995). While

the district court has “wide discretion to award equitable relief,”

the question for this court is whether the district court “failed to

consider a relevant factor” or “relied on an improper factor, and

“whether the reasons given reasonably support the conclusion.”

Peyton, 287 F.3d at 1126 (quoting Barbour, 48 F.3d at 1278).

Our deferential standard of review comports with the

recognition that the district court is in the best position to

determine the appropriate equitable relief in light of the

particular facts of the case, as it heard all of the evidence and

observed all of the witnesses at trial. See Fed. R. Civ. P. 52(a);

Bishopp v. District of Columbia, 788 F.2d 781, 785-86 (D.C.

Cir. 1986).

Title VII makes it an “unlawful employment practice” for

an employer to discriminate against an individual “because of

such individual’s race, color, religion, sex, or national origin,”

42 U.S.C. § 2000e-2(a)(1), or “because he has opposed any

practice made an unlawful employment practice by this

subchapter,” id. § 2000e-3(a). Absent direct evidence of

intentional discrimination or retaliation, see, e.g., Swierkiewicz

v. Sorema N.A., 534 U.S. 506, 511 (2002), an employee can

establish a prima facie case of an unlawful employment practice

under the “single motive” or “pretext” framework of McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973), and Tex as

Department of Community Affairs v. Burdine, 450 U.S. 248

(1981), if he proves by a preponderance of the evidence that he

“applied for an available position for which [he] was qualified,

but was rejected under circumstances which give rise to an

inference of unlawful discrimination [or retaliation].” Burdine,

450 U.S. at 253; see McDonnell Douglas, 411 U.S. at 802. The

burden of production then shifts to the employer to rebut the

presumption of discrimination or retaliation by presenting

8

evidence of a legitimate reason for its employment decision.

See Burdine, 450 U.S. at 254; McDonnell Douglas, 411 U.S. at

802. The employee retains the ultimate burden of persuasion

and may prove intentional discrimination or retaliation by

demonstrating that the employer’s proffered legitimate reason

is pretextual and not the “true reason” for the employment

decision. Burdine, 450 U.S. at 256; McDonnell Douglas, 411

U.S. at 804.

The “mixed motive” framework was established by the

Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 228

(1989), in recognition that the statutory phrase “because of”

does not mean “solely because of,” id. at 241. Under that

framework, an employee could establish a prima facie case of an

unlawful employment practice by demonstrating that

discrimination or retaliation played a “motivating part” or was

a “substantial factor” in the employment decision. Id. at 244

(plurality opinion); id. at 259 (White, J. concurring in the

judgment); id. at 276 (O’Connor, J., concurring in the

judgment). The employer could avoid all liability, however, if

it proved that it would have made the same employment

decision in the absence of the unlawful motive. Id. at 244-45.

Congress responded to the Price Waterhouse mixed motive

framework by enacting section 107(a) of the 1991 Act, Pub. L.

No. 102-166, 105 Stat. 1075, which amended Title VII to

provide standards for mixed motive cases. See Desert Palace,

Inc. v. Costa, 123 S. Ct. 2148, 2151 (2003). The 1991 Act

provided for employer liability based on evidence that an

impermissible consideration was “a motivating factor” in the

employer’s decision:

[A]n unlawful employment practice is established

when the complaining party demonstrates that race,

color, religion, sex, or national origin was a motivating

9

factor for any employment practice, even though other

factors also motivated the practice.

42 U.S.C. § 2000e-2(m) (emphasis added). In such cases, the

1991 Act also limited the employer’s exposure to certain

remedies by establishing a “same action” affirmative defense:

On a claim in which an individual proves a violation

under section 2000e-2(m) of this title and a respondent

demonstrates that the respondent would have taken the

same action in the absence of the impermissible

motivating factor, the court —

(i) may grant declaratory relief, injunctive relief . . .,

and attorney’s fees and costs . . . ; and

(ii) shall not award damages or issue an order

requiring any admission, reinstatement, hiring,

promotion, or payment . . . .

Id. § 2000e-5(g)(2)(B) (emphasis added). Thus, the mixed

motive framework of the 1991 Act allows an employee to

establish a Title VII violation under § 2000e-2(m) without

proving that an impermissible consideration was the sole or but-

for motive for the employment action, while providing the

employer with a “limited affirmative defense” under § 2000e-

5(g)(2)(B) “that does not absolve it of liability, but restricts the

remedies available to a plaintiff.” Desert Palace, 123 S. Ct. at

2151.

As a threshold matter, we note that Porter’s case implicates

several issues that have not been presented to the court by the

parties on appeal. First, although every circuit to address the

issue has held that the mixed motive provisions of the 1991 Act

10

do not apply to retaliation claims,1 it remains an open question

in this circuit. See Borgo v. Goldin, 204 F.3d 251, 256 n.6 (D.C.

Cir. 2000). Because neither party contends that the 1991 Act

does not apply to Porter’s retaliation claim, the issue will remain

an open question in this circuit after this appeal. Second, for

reasons we will explain, it is unnecessary to decide whether the

“same action” defense under § 2000e-5(g)(2)(B) is an issue

reserved for the jury. Third, in the absence of a cross-appeal by

USAID, the court has no occasion to decide whether the district

court erred in denying USAID’s request for a jury instruction on

the “same action” defense.

A.

Porter contends that the district court erred as a matter of

law in determining for itself whether USAID would have

selected Porter for the POD or EM positions in the absence of

retaliation. He maintains that the “same action” defense did not

apply to his case, and that even if it did, it should have been

decided by the jury rather than the district court. Porter first

contends that the “same action” defense does not apply to his

case because both parties litigated the case as a single motive or

pretext case, not a mixed motive case. Porter points out that his

consistent position throughout trial was that discrimination and

retaliation were the only plausible reasons for USAID’s decision

not to promote him to each of the three GS-15 positions and that

USAID’s consistent position was that discrimination and

retaliation played no role whatsoever in its decision not to

1

See, e.g., Pennington v. City of Huntsville, 261 F.3d 1262

(11th Cir. 2001); Speedy v. Rexnord Corp., 243 F.3d 397 (7th Cir.

2001); Matima v. Celli, 228 F.3d 68 (2d Cir. 2000); Norbeck v. Basin

Elec. Power Coop., 215 F.3d 848 (8th Cir. 2000); Kubicko v. Ogden

Logistics Servs., 181 F.3d 544 (4th Cir. 1999); Woodson v. Scott

Paper Co., 109 F.3d 913 (3d Cir. 1997); Tanca v. Nordberg, 98 F.3d

680 (1st Cir. 1996).

11

promote him to each of those positions. Porter also points to the

district court’s denial of a jury instruction on the “same action”

defense after he objected on the ground that USAID “took [the

defense] off the table” when all of its witnesses “categorically

den[ied] that any impermissible motive played a role in the

decision-making.”

To the extent Porter contends that USAID waived the “same

action” defense or failed to provide adequate notice of its

intention to raise the defense at the remedial stage of the

proceedings, that contention is unavailing. While USAID did

not assert the defense in its answer to the complaint, an

“omission of an affirmative defense is not fatal as long as it is

included in the pretrial order.” Pulliam v. Tallapoosa County

Jail, 185 F.3d 1182, 1185 (11th Cir. 1999) (citing Fed. R. Civ.

P. 16(e)). In its pretrial statement of defenses, USAID asserted

not only that “there was no discrimination or retaliation in the

three selections at issue,” but also that Porter “would not have

been selected for any of the three positions even in the absence

of discrimination.” Along with its pretrial statement, USAID

proposed a jury instruction on the “same action” defense asking

the jury to find whether USAID would have taken the same

action in the absence of discrimination or retaliation and to note

that finding on its verdict form. Moreover, USAID stated during

a pretrial conference that it intended to raise the “same action”

defense with respect to the issue of back pay. Therefore,

USAID gave adequate notice of its intention to raise the “same

action” defense at the remedial stage of the proceedings.

Porter’s contention that the “same action” defense is

inapplicable because the case was litigated on a single motive or

pretext theory is also unavailing because, consistent with the

jury instructions, the jury did not find that retaliation was the

sole or “true” motive for USAID’s decision not to promote

Porter to the POD or EM positions. Rather, under the standard

12

for mixed motive cases established in § 2000e-2(m), the jury

found that retaliation was “a motivating factor” in USAID’s

decision not to promote Porter. It is true that the jury

instructions referred to a pretext theory, stating that “Mr. Porter

contends that [USAID’s] explanations [for its decision] are a

pretext for unlawful discrimination and retaliation” and that

“Mr. Porter can prove pretext by persuading you by a

preponderance of the evidence that his race and/or prior

protected activity was more likely the basis for his non-

selections than the reasons given by USAID, or by persuading

you that the reasons given by USAID are not believable.”

Nonetheless, the instructions clearly stated that the jury did not

have to find that an impermissible consideration was the “only

reason” or the “real motive” for USAID’s decision in order to

find for Porter. Had Porter wanted to establish liability under

the higher evidentiary burden of a single motive theory, he could

have requested an instruction asking the jury to find that an

impermissible consideration was the sole motive, rather than “a

motivating factor,” for USAID’s decision not to promote him to

each of the GS-15 positions. Instead, he agreed to an instruction

that relied on a mixed motive theory to establish liability upon

a lesser evidentiary showing and thus exposed himself to the

possibility of a “same action” defense.

To the extent Porter contends that the district court’s

determination of the “same action” issue violates the “law of the

case” established by the court’s denial of a jury instruction on

the “same action” defense, that contention also fails. Nothing in

the record indicates that the district court denied the instruction

on the ground that the defense did not apply to Porter’s case;

rather, the court appeared to be concerned about the length of

the special interrogatories required by such an instruction.

Indeed, because “the questions of statutory violation and

appropriate statutory remedy are conceptually distinct,” Johnson

v. Brock, 810 F.2d 219, 223 (D.C. Cir. 1987) (quoting Smith v.

13

Sec’y of the Navy, 659 F.2d 1113, 1220 (D.C. Cir. 1981))

(internal quotation marks omitted), the district court properly

distinguished between its denial of a jury instruction on the

“same action” defense under § 2000e-5(g)(2)(B) and its

determination of appropriate equitable relief under § 2000e-

5(g)(1), cf. id. at 224 (citing Day v. Mathews, 530 F.2d 1083,

1085 (D.C. Cir. 1976) (per curiam)). Under § 2000e-5(g)(1), a

district court may enjoin an employer from engaging in an

unlawful employment practice and may “order such affirmative

action as may be appropriate,” including the placement of an

employee in a position with back pay, “or any other equitable

relief as the court deems appropriate.” During the remedial

stage of the proceedings, the district court may make factual

findings to determine appropriate “make whole” relief under §

2000e-5(g)(1), cf. Albemarle, 422 U.S. at 424, as long as the

findings are consistent with the jury verdict, see Fogg v.

Ashcroft, 254 F.3d 103, 110-11 (D.C. Cir. 2001). Here, the

district court concluded that because the jury verdict did not

address whether USAID would have taken the same action in

the absence of retaliation, the verdict left the district court free

to decide the issue during the remedial stage in determining

appropriate equitable relief under § 2000e-5(g)(1). Because the

district court’s finding was not inconsistent with the jury verdict,

we conclude that the court did not abuse its discretion.

Porter further contends that the district court erred as a

matter of law in deciding the “same action” issue because the

1991 Act reserves that issue to the jury. Pointing out that the

1991 Act created both the statutory “same action” affirmative

defense and the right to a jury trial under Title VII, Porter

contends that, consistent with the usual treatment of affirmative

defenses as jury issues, see, e.g., Tri County Indus., Inc. v.

District of Columbia, 200 F.3d 836, 840-41 (D.C. Cir. 2000),

Congress intended for the jury, as the trier of fact, to determine

whether the employer would have taken the same action in the

14

absence of an unlawful motive. While dicta in various cases

indicate that the “same action” defense is a factual issue

typically decided by the jury, see e.g., Desert Palace, 123 S. Ct.

at 2153, 2154; Borgo, 204 F.3d at 257-58; Pulliam, 185 F.3d at

1187, we need not decide whether the defense must be decided

by the jury under the 1991 Act or other applicable law. Even if

the court were to assume that the 1991 Act reserves the “same

action” defense under § 2000e-5(g)(2)(B) for the jury, Porter

waived any right to a jury instruction on that defense when he

objected to USAID’s request for that instruction and agreed

instead to an instruction that asked the jury only to determine

liability based on a finding of discrimination or retaliation as “a

motivating factor.” Having chosen to prove liability under the

less onerous standard of § 2000e-2(m), Porter cannot now

disavow that choice to avoid facing a “same-action” response to

his request for equitable relief.

Therefore, we hold that the district court did not err as a

matter of law in determining, as part of its assessment of the

appropriate equitable relief under § 2000e-5(g)(1), whether

USAID would have taken the same action with respect to the

POD and EM positions in the absence of retaliation.

B.

Porter’s other contentions that the district court abused its

discretion by denying him back pay and a GS-15 placement are

also unavailing. His contention that the district court failed to

give adequate consideration to the deterrent purpose of Title VII

is belied by the record. In denying Porter’s motion for

reconsideration of the denial of back pay and a GS-15

placement, the district court stated:

My conclusion in this case, after hearing all the

evidence and considering the entire record, was that

[Porter] would not have been given either of the two

15

GS-15 positions he sought in the absence of the

retaliation the jury found; that the jury’s award of

$30,000 did in fact restore him to the position where he

would have been if not for the retaliation, namely fairly

compensated for the insult of retaliation, but still at

GS-14 and still eligible for promotion; and that an

injunction against USAID would not only provide

[Porter] with an extra measure of protection in his

future applications, but also help eradicate any vestiges

of a culture of retaliation that may have existed at

USAID.

By granting relief that it concluded would make Porter whole

and prevent future retaliation, the district properly addressed the

“twin statutory objectives” of Title VII. Albemarle, 422 U.S. at

421. Moreover, while Porter invokes the presumption in favor

of awarding back pay established in Albemarle Paper Co. v.

Moody, that presumption rests partly on the premise that back

pay is necessary to make the employee whole because the

employee would have attained the position but for the

employer’s discrimination or retaliation. See id. at 418-21.

Because the district court found, consistent with the jury verdict,

that Porter would not have attained either of the GS-15 positions

in the absence of retaliation, it did not abuse its discretion by

denying back pay and a GS-15 placement.

Finally, contrary to Porter’s contention, the district court’s

finding that USAID would have taken the same action in the

absence of retaliation is not clearly erroneous. See Fed. R. Civ.

P. 52(a). The district court credited the testimony of John

Martin, who was the selecting official for the POD position, and

Sandra Malone-Gilmer, who was a member of the interviewing

panel, that the candidate selected for the POD position was the

panel’s unanimous first choice following both of his interviews;

the district court also credited the testimony of Linda Lion, the

16

deputy assistant administrator for human resources, that she

wanted to fill the EM position with a foreign service officer

because most of the EM Division’s clientele were foreign

service officers. The district court found this testimony “both

credible and compelling.” While the district court observed that

the jury apparently found that USAID retaliated against Porter

in the processes leading up to the certification of finalists for the

POD position and to the decision to cancel the vacancy

announcement for the EM position, it concluded that the

preponderance of the record evidence regarding the actual

selections for the two positions “compels the conclusion that

[the same two candidates] would have been selected . . . had

there been no retaliation.” On reconsideration, the district court

noted that Porter’s case-in-chief with respect to the POD and

EM positions “consisted almost entirely of his own testimony”

and the testimony of one other witness who “had nothing to do

with” the interview process for the POD position or the decision

to re-advertise the EM position as a foreign service position.

Because the district court heard all of the evidence and

observed all of the witnesses at trial, this court defers to the

district court’s decision to credit testimony unless the testimony

is “so internally inconsistent or implausible on its face that a

reasonable factfinder could not credit it.” Bishopp, 788 F.2d at

786. Porter makes no such showing. Rather, he asks this court

to re-weigh the evidence, contending that the district court

abused its discretion by failing to resolve factual uncertainties

in his favor. See Br. of Appellant at 14 (citing Day, 530 F.2d at

1086; Trout v. Garrett, 780 F. Supp. 1396, 1407 (D.D.C. 1991)).

Porter maintains that he was the best candidate for the POD

position, pointing to evidence of his superior knowledge of

USAID’s personnel policies, and he attempts to discredit Martin

by referring to his own testimony that Martin fell asleep during

his interview. Given his superior qualifications and USAID’s

policy preference for an internal candidate, Porter contends that

17

the “most reasonable inference under the circumstances” is that

he would have been selected for the POD position if Martin had

not retaliated against him. Id. at 16. However, even were we to

agree with Porter’s view of the evidence, the district court’s

finding is not based on an “utterly implausible account of the

evidence.” Bishopp, 788 F.2d at 786. The district court credited

Martin’s testimony that the outside candidate was the

interviewing panel’s “unanimous first choice” for the POD

position because of his impressive responses to the interview

questions, his experience in overseas personnel management and

reorganization, and his expertise in the field, as demonstrated by

his teaching experience and publications. The testimony of the

other members of the interviewing panel corroborate Martin’s

testimony that the outside candidate outperformed Porter in the

interviews. Upon crediting this evidence, the district court could

permissibly find, see Anderson v. Bessemer City, 470 U.S. 564,

574 (1985), that in the absence of retaliation Porter would not

have been promoted to the POD position because the outside

candidate was better qualified and had a more impressive

interview.

Regarding the EM position, Porter’s emphasis on the

conflicting testimony of Linda Lion and of another USAID

witness only underscores why this court should defer to the

district court’s credibility determinations. While Porter points

to evidence that retaliation motivated Lion’s decision to cancel

the EM vacancy announcement and to re-advertise the position

as a foreign service position, the jury did not find that retaliation

was the only reason for these actions. Therefore, the district

court could credit Lion’s testimony that she wanted to hire a

foreign service officer for the EM position because most of the

EM Division’s clientele were foreign service officers, and it

could permissibly conclude from that testimony that Lion would

have canceled the vacancy announcement and re-advertised the

position as a foreign service position even if she had not

18

retaliated against Porter. Consequently, Porter fails to show that

the district court clearly erred in finding, based on the credited

testimony, that USAID would have taken the same action with

respect to the POD and EM positions in the absence of

retaliation.

Accordingly, because Porter fails to show that the district

court abused its discretion by denying back pay and placement

in a GS-15 position as part of his “make whole” relief, we affirm

the judgment awarding Porter $30,000 in compensatory

damages, with prejudgment interest, and his attorney’s fees and

costs, and enjoining USAID from retaliating against Porter for

his protected Title VII activities.