Fogg v. Gonzales

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 12, 2007 Decided June 29, 2007

No. 05-5439

MATTHEW F. FOGG,

APPELLEE/CROSS-APPELLANT

v.

ALBERTO GONZALES, ATTORNEY GENERAL FOR THE UNITED

STATES DEPARTMENT OF JUSTICE,

APPELLANT/CROSS-APPELLEE

Consolidated with

05-5440

Appeals from the United States District Court

for the District of Columbia

(No. 94cv02814)

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

for appellant/cross-appellee. With him on the briefs were

Jeffrey A. Taylor, U.S. Attorney, and R. Craig Lawrence,

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

Attorney, entered an appearance.

Frank J. Costello, Jr. argued the cause and filed the

briefs for appellee/cross-appellant.

Before: GINSBURG, Chief Judge, and HENDERSON and

GARLAND, Circuit Judges.

Opinion for the Court filed by Chief Judge GINSBURG.

Concurring opinion filed by Circuit Judge HENDERSON.

GINSBURG, Chief Judge: Matthew F. Fogg sued his

employer, the United States Marshals Service (USMS), for

discriminating against him on the basis of his race. A jury

awarded him $4,000,000 in damages; the district court remitted

the award to the statutory maximum of $300,000 and Fogg made

a motion for equitable relief. The court granted the motion to

the extent of awarding Fogg back pay through the date of his

dismissal but denied his request for front pay, expungement of

his personnel record, and reinstatement. On appeal we reversed

the order concerning equitable relief and remanded the matter to

the district court to reconsider the issue-preclusive effect of the

jury’s verdict.

On remand a different district judge granted Fogg additional

equitable relief in the form of back pay from the date of his

dismissal to the date of the court’s order, which amount the

court increased (“grossed up”) by 14% to offset the adverse tax

consequences of a lump sum award, but again denied Fogg front

pay. Both parties appeal. We now affirm both the award of

back pay and the denial of front pay but reverse the district

court’s judgment to the extent of the “gross up.”

I. Background

The facts relevant to this appeal are set out fully in the

opinion of the district court on remand, see Fogg v. Gonzales,

407 F. Supp. 2d 79, 81-84 (2005) (Restani, J.). In brief, this is

what happened. In 1978 Fogg became a deputy U.S. Marshal in

Washington, D.C. In 1985 he filed an Equal Employment

Opportunity (EEO) complaint with the USMS alleging racial

3

discrimination because he had “received a harsh reprimand” and

transfer “ostensibly as punishment for having misused a

government car.” Id. at 81. From 1989 to 1992 Fogg was

assigned to a task force that tracked fugitives. Twice during his

time on the task force he was not given his regularly scheduled

performance rating and he did not receive an expected

promotion from the GS-12 to the GS-13 level. Fogg was

eventually promoted to GS-13, but by 1993 he had been

“stripped of most of his task force supervisory responsibilities”

and was “out of the field and in a desk job.” Id. at 82. All this

occurred with his 1985 EEO complaint still unresolved.

Experiencing “severe psychological stress,” Fogg stopped

working in March 1993. In December of that year the USMS

gave Fogg a “fitness-for-duty” examination and in November

1994 ordered him back to work; Fogg reported to work but left

after a “few hours.” Id. He did not return to work and did not

comply with two subsequent directives to appear for a fitness-

for-duty examination. In 1995 the USMS dismissed Fogg for

insubordination and he appealed to the Merit Service Protection

Board (MSPB), which upheld his dismissal as lawful.

Fogg then sued the USMS. A jury found the agency had

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

§ 2000e-16, by subjecting him to a racially hostile work

environment from 1985 until his dismissal in 1995 and by

discriminating against him on account of his race in 12 of the 13

instances he had alleged. The jury awarded $4,000,000 in

compensatory damages, which the district court remitted to

$300,000 in accordance with the cap placed upon damages by

the 1991 Amendments to Title VII, id. § 1981a(b)(3)(D). The

court granted in part and denied in part Fogg’s subsequent

motion for equitable relief: It awarded him back pay,

“retroactive promotion and benefits at the [GS-13] level from

November 21, 1991,” the date upon which the 1991

4

Amendments became effective, to July 27, 1992, and at the

Grade 14 level from that date through the date of his dismissal

in 1995, but denied his request to expunge the record of his

dismissal and for reinstatement, front pay, and back pay after the

date of his dismissal because the court “adhered to the MSPB’s

finding that the dismissal was valid,” Fogg, 407 F. Supp. 2d at

84.

On appeal we reversed and remanded the district court’s

order denying Fogg’s motion for equitable relief, explaining:

The jury found for Fogg on all the issues[,] as to which its

verdict is binding. It also responded to special

interrogatories with findings that disparate treatment and/or

retaliation motivated both the order requiring Fogg to report

for a fitness-for-duty-examination in 1995 and Fogg’s

subsequent dismissal .... Yet the district court appears

explicitly to have rejected those findings in deciding that

equitable relief was not appropriate.

Fogg v. Ashcroft, 254 F.3d 103, 110 (2001). The district court

had “suggested the possibility of a reconciliation between its

own findings and those of the jury .... But the court never

explained how the two sets of findings could be squared.” Id.

We therefore directed the district court to “reconsider [Fogg’s]

claims for equitable relief in light of a correct understanding of

the issue preclusive effect of the jury’s verdict.” Id. at 114.

On remand the district court concluded the jury had found

for Fogg on the “single-motive” or “pretext” theory of

discrimination, as provided in 42 U.S.C. § 2000e-2(a)(1), and

not on a “mixed-motive” theory under § 2000e-2(m). Using the

single-motive theory, a plaintiff proves an unlawful employment

practice pursuant to the burden-shifting framework of

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

5

explicated in Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S.

248 (1981): If the plaintiff 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 [based upon

his race],” id. at 253, or, as in this case, was subject to adverse

employment decisions based upon his race, see, e.g., Porter v.

Natsios, 414 F.3d 13, 18 (D.C. Cir. 2005), then the burden of

production shifts to the defendant to rebut that inference with

“evidence of a legitimate reason” for its decision; the plaintiff,

of course, retains the burden of persuasion. See id. at 18.

Using the mixed-motive theory, a plaintiff can establish an

unlawful employment practice by showing that “discrimination

or retaliation played a ‘motivating part’ or was a ‘substantial

factor’ in the employment decision,” id. (citing Price

Waterhouse v. Hopkins, 490 U.S. 228 (1989)), “without proving

that an impermissible consideration was the sole or but-for

motive for the employment action.” Id. at 19.* In a mixed-

motive case 42 U.S.C. § 2000e-5(g)(2)(B) provides the

employer with a “limited affirmative defense” that “does not

absolve it of liability, but restricts the remedies available to a

plaintiff.” Porter, 414 F.3d at 19 (quoting Desert Palace, 539

U.S. at 94). More particularly, if the plaintiff makes out a

violation under § 2000e-2(m), but the defendant “demonstrates

that [it] would have taken the same action in the absence of the

impermissible motivating factor,” then the district court may

grant declaratory or injunctive relief and attorney’s fees, but

“shall not award damages or issue an order requiring any ...

reinstatement, hiring, promotion, or payment.” 42 U.S.C.

§ 2000e-5(g)(2)(B); see Desert Palace, 539 U.S. at 94

*

A plaintiff may also, of course, use evidence of pretext and the

McDonnell Douglas framework to prove a mixed-motive case. See

Desert Palace, Inc. v. Costa, 539 U.S. 90, 92, 99-102 (2003).

6

(“available remedies [under § 2000e-5(g)(2)(B)] include only

declaratory relief, certain types of injunctive relief, and

attorney’s fees and costs”).

The district court found the jury instructions were

ambiguous as to whether this was a single-motive or a mixed-

motive case but the post-trial proceedings clarified that the

parties and the trial judge had treated it as a single-motive case.

The Government had argued in its motion for judgment as a

matter of law pursuant to Rule 50(b) of the Federal Rules of

Civil Procedure that Fogg’s case “falls far short of what is

necessary to prove that the proffered reason for [his] termination

(insubordination) was a pretext for discrimination and

retaliation.” Fogg, 407 F. Supp. 2d at 86. The district court

therefore determined to “continue to treat [the case as a pretext

case] in accordance with the law of the case doctrine.” Id.

Proceeding upon that basis, the district court reasoned that the

jury’s findings “as to disparate treatment and/or retaliation

necessarily mean that it determined that race motivated the

USMS’s actions in [the] twelve specific instances where it found

liability”; and, the jury’s findings of fact being binding upon the

court, the MSPB’s determination that Fogg had been lawfully

dismissed for insubordination — to which the trial judge

erroneously had “adhered” — did not prevent the district court

from awarding equitable relief under § 2000e-5(g)(2)(B). Id.

The district court went on to award Fogg various forms of

equitable relief: (1) expungement from his employment record

of his dismissal for insubordination; (2) back pay, as before, for

the period from the effective date of the 1991 Amendments to

his dismissal in 1995; and, because the jury found racial

discrimination motivated the orders leading to Fogg’s dismissal

and the court thought it “reasonable to infer that, absent the

USMS’s impermissible actions, Fogg would have continued to

be an employee of the USMS,” id. at 89, (3) back pay from his

7

dismissal until the date of the court’s order in July 2005. The

court rejected the Government’s arguments that Fogg had failed

to mitigate his loss of wages and that his receipt of worker’s

compensation should prevent him from recovering back pay, on

the ground advanced by Fogg that any effort he might have

made to find comparable employment would have been futile as

long as his USMS personnel record showed he had been

dismissed for insubordination. The district court also increased

the award of back pay by 14% to offset the “adverse tax

consequences of a lump sum award.” Id. at 91. The court

denied reinstatement and “front pay,” that is, the amount Fogg

would earn from continued employment by the USMS in the

months and years following entry of the court’s order. Id. at 92-93.

The Government appeals the award of back pay and the

14% gross up. Fogg cross-appeals the court’s refusal of front

pay.

II. Analysis

The Government argues the district court abused its

discretion in awarding Fogg back pay because the court (1),

based upon the unfounded distinction between a “single-motive”

and a “mixed-motive” case under Title VII, did not allow the

USMS to raise the “same-action” defense; (2) scaled the award

up to the GS-14 level from July 1992 onward; and (3) “grossed

up” the award to offset taxes. In his cross-appeal Fogg argues

the district court erred in denying him front pay on the grounds

that he (1) had not established a link between the discrimination

against him and his putative disability and (2) had “unclean

hands” by virtue of having misrepresented himself as a deputy

U.S. Marshal after he had been fired.

In reviewing a decision regarding equitable relief from a

violation of Title VII, we “consider[] whether the [d]istrict

8

[c]ourt 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.” Porter, 414 F.3d at 17

(internal quotation marks and citation omitted). In the latter

regard, we consider 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” reached.

Peyton v. DiMario, 287 F.3d 1121, 1126 (D.C. Cir. 2002)

(internal quotation marks and citation omitted).

A. Back Pay

1. Statutory interpretation. The Government first argues

the district court erred by distinguishing between a single-

motive and a mixed-motive case because Title VII sets but one

standard for liability and under that standard a defendant, in

order to preclude liability for monetary relief beyond attorney’s

fees and costs, need show only that it would have taken the same

action regardless of the plaintiff’s race. The Government also

argues the district court “erred by confusing the definition of

those practices that are prohibited” in § 2000e-2(a) with the

subsection that “actually sets forth how a violation is

established, § 2000e-2(m).”* In the Government’s view,

*

Subsection 2000e-2(a)(1) provides (emphases added):

It shall be an unlawful employment practice for an employer

... to fail or refuse to hire or to discharge any individual, or

otherwise to discriminate against any individual with respect

to his compensation, terms, conditions, or privileges of

employment, because of such individual’s race, color,

religion, sex, or national origin.

Subsection 2000e-2(m) provides (emphases added):

Except as otherwise provided in this subchapter, an unlawful

9

§ 2000e-2(a) is merely the “definition” of an unlawful

employment practice, whereas § 2000e-2(m) provides the

standard for liability. For the reasons that follow, we disagree

with both points.

On its face Title VII provides alternative ways of

establishing liability for employment practices based upon the

impermissible use of race or other proscribed criteria — one in

§ 2000e-2(a), which has been in the law since 1964, and another

in § 2000e-2(m), which the Congress added in 1991, see Civil

Rights Act of 1991, Pub. L. No. 102-166, § 107(a), 105 Stat.

1071, 1075, in response to the Supreme Court’s decision in

Price Waterhouse. See Desert Palace, 539 U.S. at 94. In Price

Waterhouse the Court held that an employer could “avoid a

finding of liability [under § 2000e-2(a)(1)] ... by proving that it

would have made the same decision even if it had not allowed

[an impermissible factor] to play” a role in its thinking. 490

U.S. at 244-45 (plurality opinion) (footnote omitted). If the

Government is correct that § 2000e-2(m) now provides the

“single standard” for establishing an unlawful employment

practice, then it must be because the 1991 Amendments

somehow repealed the standard in effect theretofore. But

nothing on the face of the 1991 addition suggests a case may no

longer be brought under § 2000e-2(a) — as they have been since

1964 — and repeals by implication are very much disfavored,

see TVA v. Hill, 437 U.S. 153, 189-90 (1978).

The Government attempts to avoid the interpretive norm

against implied repeals by describing the change wrought by the

addition of § 2000e-2(m) as converting § 2000e-2(a) from a

employment practice is established when the complaining

party demonstrates that race, color, religion, sex, or national

origin was a motivating factor for any employment practice,

even though other factors also motivated the practice.

10

standard of liability to a definition, but the effect is the same in

that an option previously open to plaintiffs would be foreclosed

without the Congress having spoken to the issue. Therefore, we

cannot infer from the addition of § 2000e-2(m) the implicit

repeal of § 2000e-2(a) as a standard for establishing liability in

preference to the more straightforward inference that § 2000e-

2(m) adds an additional way of establishing liability. See Desert

Palace, 539 U.S. at 94 (stating that § 2000e-2(m) “establishes an

alternative for proving that an ‘unlawful employment practice’

has occurred”) (dictum).

We note also that no Court of Appeals, and only one district

court, has interpreted Title VII, as amended, as the Government

would have us do. Compare Dare v. Wal-Mart Stores, Inc., 267

F. Supp. 2d 987, 990-92 (D. Minn. 2003) (concluding that after

Desert Palace, § 2000e-2(m) applies to single-motive claims),

with, e.g., Carey v. Fedex Ground Package Sys., Inc., 321 F.

Supp. 2d 902, 915 (S.D. Ohio 2004) (criticizing and declining to

follow Dare). Indeed, this court, albeit in a case where the point

was not contested, viewed the “mixed motive” framework of

§ 2000e-2(m) as an alternative rather than the exclusive way of

establishing liability. See Porter, 414 F.3d at 18 (describing two

distinct frameworks for liability and characterizing the 1991

Amendments as “provid[ing] standards for mixed motive cases”)

(emphasis added); cf. Desert Palace, 539 U.S. at 94 n.1

(expressly leaving open question “when, if ever, [§ 2000e-2(m)]

applies outside of the mixed-motive context”).

In sum, the district court properly concluded both that there

are alternative ways of establishing liability under Title VII and

that the “same action” showing is a defense to damage liability

only under the mixed-motive theory of § 2000e-2(m). The

remaining question is whether the district court abused its

discretion in concluding the case was litigated under the single-

motive theory of § 2000e-2(a).

11

The district court explained that the Government could not

— after the jury had returned its verdict and the Government

had filed a post-trial motion for judgment as a matter of law in

which it treated the case as one involving a single motive —

switch positions and argue on remand the case really involved

mixed motives. Fogg, 407 F. Supp. 2d at 86. We note also that

the trial court had denied the motion on the same basis, see id.

(“the jury obviously inferred from the evidence ... that occult

racism was more likely the reason than any other for Fogg’s

misadventures”) (quoting Mem. & Order (July 1, 1999) at 6).

It is clear, therefore, the district court did not abuse its discretion

in concluding the case was tried as a single-motive case.

2. Duration and level of back pay. The Government next

argues the district court abused its discretion in awarding back

pay from Fogg’s dismissal in 1995 until the entry of judgment

in 2005. The Government posits first that such an award should

be made only to a plaintiff who, unlike Fogg, is entitled to

reinstatement but whose reinstatement the district court deems

inadvisable. The Government also characterizes the district

court’s decision to run back pay to the date of judgment as

“arbitrary.”

Fogg parries this thrust with the Government’s own

acknowledgment that “[s]everal courts have held ... back pay

awards can run to the date of judgment.” See, e.g., Thorne v.

City of El Segundo, 802 F.2d 1131, 1136 (9th Cir. 1986) (“the

court should compute the backpay award from the date of the

discriminatory act until the date of final judgment”). Indeed, the

Government cannot muster a single case holding an award of

back pay to the date of final judgment was an abuse of

discretion. The best the Government can do is to cite cases

holding the district court did not abuse its discretion by

awarding back pay for a more limited period. See, e.g., Daniel

v. Loveridge, 32 F.3d 1472, 1477-78 (10th Cir. 1994) (no abuse

12

of discretion in running award from dismissal only to date

judgment was initially entered where judgment was later vacated

but re-entered after remand). The bottom line is: No abuse of

discretion either way, no surprise, and no cigar.

Alternatively, the Government argues the back pay period

should have ended in 1999 when Fogg said in a court filing he

was unable to return to work, from which the Government

argues he had either become disabled or voluntarily retired, see,

e.g., Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 168 (2d Cir.

1998) (“backpay period ends prior to judgment ... if the plaintiff

has theretofore retired”). The district court, however, did not

find Fogg had retired voluntarily or became disabled as of 1999,

notwithstanding the Government’s suggestion at one point that

Fogg’s receipt of Worker’s Compensation so implied — the

court’s rejection of which the Government has not appealed.

Hence, the court did not abuse its discretion in declining to end

the back pay period in 1999.

Relatedly, the Government argues the “record does not

support a finding that [Fogg] would have been promoted to the

[GS-14 level] on a permanent basis absent discrimination.”

What the record does show is that the jury specifically found the

USMS’s failures to promote Fogg first to the GS-13 and then to

the GS-14 level were in each instance “motivated by race.” See

Fogg, 407 F. Supp. 2d at 89. In the absence of any record

evidence suggesting the latter promotion would have been for

some reason only temporary, and the Government points to

none, it is quite impossible to say the district court abused its

discretion in treating the withheld promotion as permanent.

Indeed, on this record the court likely would have abused its

discretion if it had obliged the Government.

Finally, the Government argues Fogg failed to mitigate his

damages because he was not reasonably diligent in seeking other

13

suitable employment. See 42 U.S.C. § 2000e-5(g); Ford Motor

Co. v. EEOC, 458 U.S. 219, 232 (1982). Of course, the “burden

of establishing facts in mitigation of the back pay liability is ...

upon the violator,” Berger v. Iron Workers Reinforced Rodmen,

Local 201, 170 F.3d 1111, 1134 (D.C. Cir. 1999) (internal

quotation marks and citation omitted), here the Government.

We approach this issue cognizant of the Supreme Court’s

teaching that “the unemployed or underemployed [Title VII]

claimant need not go into another line of work, [or] accept a

demotion.” Ford Motor, 458 U.S. at 231. As for opportunities

in Fogg’s line of work, the district court accepted Fogg’s self-

evidently plausible assertion that because his employment

record showed the USMS had dismissed him for

insubordination, “any efforts to find a comparable law

enforcement position would have been futile.” 407 F. Supp. 2d

at 90. The Government, notwithstanding that it bears the burden

of proving failure to mitigate, simply ignores this point.

Lacking any evidence to the contrary, therefore, the district

court fairly inferred Fogg’s failure to mitigate his damages by

finding other police work was attributable to the Marshals

Service’s having terminated him purportedly for cause, and

hence did not abuse its discretion in preventing the Government

from profiting from its own wrongful conduct.

3. “Gross Up” of back pay. The Government also argues

the district court abused its discretion by “grossing up” its award

of back pay by 14% in order to relieve Fogg of the adverse tax-

consequences associated with recovering multiple years of pay

in a single year; most of the award will be taxed at a higher rate

than would have applied had the income been received year by

year. As the Government points out, the gross up conflicts with

our decision in Dashnaw v. Peña, 12 F.3d 1112, 1116 (1994), in

which we explained: “Absent an arrangement by voluntary

settlement of the parties, the general rule that victims of

14

discrimination should be made whole does not support ‘gross-

ups’ of backpay to cover tax liability. We know of no authority

for such relief.”

Fogg would have us distinguish Dashnaw on either of two

grounds: (1) it was “clearly ... a case where the size of the

award and the lack of delay” did not call for a gross up; and (2)

the district judge in this case, sitting by designation on the court

of appeals, had been a member of the panel that decided

Dashnaw and she presumably saw no inconsistency between the

present case and that precedent. Neither point is convincing.

First, Dashnaw was based upon the “complete lack of

support in existing case law for tax gross-ups,” id. at 1116, not

upon the lack of delay or the size of the award in that particular

case. Second, the district court in this case, in concluding that

a gross up was appropriate because the litigation was

“protracted,” Fogg, 407 F. Supp. 2d at 91, did not distinguish (or

even acknowledge) Dashnaw and instead relied solely upon the

Tenth Circuit’s earlier and directly contrary decision in Sears v.

Atchison, Topeka & Santa Fe Railway, Co., 749 F.2d 1451,

1456 (1984). The district court’s failure to consider a facially

applicable precedent of this circuit certainly qualifies as a

“fail[ure] to consider a relevant factor,” Peyton, 287 F.3d at

1126, and was therefore an abuse of discretion. On the basis of

binding circuit precedent, we reverse the judgment of the district

court insofar as it increased Fogg’s back pay award to account

for his higher tax liability.

B. Front Pay

In his cross-appeal Fogg “reluctantly” argues the district

court erred in refusing to award him front pay, that is,

prospective compensation from the date of judgment until the

date Fogg is eligible to retire. Front pay may be awarded to a

15

Title VII plaintiff who cannot work because of “psychological

injuries suffered ... as a result of the discrimination” in suit, or

“[i]n cases in which reinstatement is not viable because of

continuing hostility between the plaintiff and the employer or its

workers.” Pollard v. E.I. du Pont de Nemours & Co., 532 U.S.

843, 846 (2001).

The district court gave two grounds for denying front pay in

this case: (1) Fogg failed to establish a causal link between his

purported disability (“stress”) and the discrimination against

him; and (2) he had “unclean hands” because, in testimony

before the Congressional Black Caucus and on his website, he

had misrepresented himself as a deputy U.S. Marshal after he

had been discharged. See Precision Instrument Mfg. Co. v.

Auto. Maint. Mach. Co., 324 U.S. 806, 814 (1945) (doctrine of

unclean hands “closes the doors of a court of equity to one

tainted with inequitableness or bad faith relative to the matter in

which he seeks relief”). Because the latter ground for decision

was well within the district court’s equitable discretion, see id.

at 815 (unclean hands doctrine “necessarily gives wide range to

... court’s use of discretion in refusing to aid” litigant so tainted),

we need not address the former ground in order to affirm the

district court’s denial of front pay.

III. Conclusion

We affirm the judgment of the district court insofar as it

awards the plaintiff back pay and denies him front pay. We

reverse the judgment to the extent it awards the plaintiff a “gross

up” to offset the adverse tax consequences of a lump sum award.

The case is remanded to the district court for the entry of a

judgment in accordance herewith.

So ordered.

KAREN LECRAFT HENDERSON, Circuit Judge, concurring:

While I have my reservations about whether this case was in

fact tried as a “single motive” case,1 I concur in the judgment

because the defendant originally moved for judgment as a matter

of law and “treated the case as one involving a single motive”

and then—presumably too late—“switch[ed] positions and

argue[d] on remand the case really involved mixed motives.”

Maj. Op. at 11. I write separately on the “same action”

issue—which comes up only in a “mixed motives” case and

therefore is inapplicable here—to set down how I believe it

should be analyzed and applied.

The “same action” showing has been labeled an “affirmative

defense” by various circuit courts since it was codified in the

Civil Rights Act of 1991.2 See, e.g., Fields v. N.Y. State Office

1

At the time the case was tried, the district judge appears to have

treated it as a “mixed motives” case. See Tr. 2/25/2000 at 9 (while

jury found USMS discriminated against Fogg, district judge found

Fogg “was validly dismissed from the Marshals Service for

insubordination” and stated “I am not sure that [the two conclusions]

are altogether inconsistent”); see also Fogg v. Ashcroft, 254 F.3d 103,

111 (D.C. Cir. 2001) (“Because it is unclear exactly what effect the

court gave to the jury’s findings, we remand the equitable claims to

the district court so that it may reconsider the matter consistent with

the law of issue preclusion.”). We conclude today that the trial judge

was incorrect based on a different district judge’s characterization of

the case as “single motive” on remand. See Fogg v. Gonzalez, 407 F.

Supp. 2d 79, 86 (D.D.C. 2005) (“Considering the parties and the trial

court agreed previously that this case is a pretext case, the court will

continue to treat it as such in accordance with the law of the case

doctrine.”). I am not as certain as my colleagues that the district judge

on remand accurately read the trial and post-trial record.

2

The characterization appears to come from the Supreme Court’s

decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). There

2

of Mental Retardation & Developmental Disabilities, 115 F.3d

116, 117 (2d Cir. 1997) (“[A]n instruction on the affirmative

defense of dual motivation is not required in all cases . . . .”). In

Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), the Supreme

Court in dicta described the showing as a “limited affirmative

defense,” id. at 94, and in Porter v. Natsios, 414 F.3d 13 (D.C.

Cir. 2005), we adopted the High Court’s description, id. at 19

(mixed motives framework of 1991 Act “provid[es] the

employer with a ‘limited affirmative defense’ under § 2000e-

the Court stated that section 2000e-2(a)(1) “meant to condemn even

those decisions based on a mixture of legitimate and illegitimate

considerations,” id. at 241 (plurality opinion), but that an employer

could avoid liability altogether by establishing that it would have

made the same employment decision absent any discriminatory

motive, id. at 242. In his plurality opinion, Justice Brennan declared,

“[T]he employer’s burden is most appropriately deemed an affirmative

defense.” Id. at 246. The Congress, however, changed the nature of

the mixed motives framework by limiting relief rather than foreclosing

liability. See H.R. Rep. No. 102-40(I), at 19 (1991) (“[W]here two

independent contributing factors, one discriminatory and the other

nondiscriminatory, were present, the remedies available to the

complaining party will be limited where the employer establishes that

it would have made the same adverse employment decision even

absent the discriminatory contributing factor. . . . However, the

presence of a discriminatory factor would still establish a Title VII

violation . . . .” (emphases added)); cf. Taylor v. United States, 821

F.2d 1428, 1433 (9th Cir. 1987) (Federal Rule of Civil Procedure 8(d)

“specifies that averments as to the amount of damage which defendant

does not deny in his answer are not deemed admitted. This provision

indicates that the Federal Rules do not consider limitations of damages

affirmative defenses . . . .” (emphasis omitted)), cert. denied, 485 U.S.

992 (1988). But cf. Simon v. United States, 891 F.2d 1154 (5th Cir.

1990) (damages limitation an affirmative defense); Jakobsen v. Mass.

Port Auth., 520 F.2d 810 (1st Cir. 1975) (same).

3

5(g)(2)(B).” (quoting Desert Palace, 539 U.S. at 94)). I believe,

however, that labeling the “same action” showing an affirmative

defense has created more confusion than clarity.

“An affirmative defense will defeat the plaintiff’s claim if it

is accepted by the district court or the jury.” 5 Charles Alan

Wright & Arthur R. Miller, Federal Practice & Procedure § 1270

(2007) (emphasis added) (citing Hartford Fire Ins. Co. v.

Annapolis Bay Charters, 69 F. Supp. 2d 756 (D. Md. 1999)). In

other words, an affirmative defense absolves the defendant of

liability. The “same action” showing, on the other hand, “does

not absolve [an employer] of liability, but restricts the remedies

available to a plaintiff.” Desert Palace, 539 U.S. at 94.3 That

is, if an employee “proves a violation under section 2000e-2(m)”

and the employer demonstrates that it “would have taken the

same action in the absence of the impermissible motivating

factor,” a court “may grant declaratory relief, injunctive relief

. . . , and attorney’s fees and costs” but may not award “damages

or issue an order requiring any admission, reinstatement, hiring,

promotion, or payment.” 42 U.S.C. § 2000e-5(g)(2)(B).

Because the “same action” showing limits the available court-

ordered relief, I believe that it is more analogous to a damages

3

The fact that Desert Palace’s “limited affirmative defense”

language appears in the same sentence that concludes that the

employer who successfully makes the “same action” demonstration is

nonetheless not relieved of liability but instead has limited exposure

to relief may at first seem contradictory. See Desert Palace, 539 U.S.

at 94 (“[W]ith respect to ‘a claim in which an individual proves a

violation under section 2000e-2(m),’ the employer has a limited

affirmative defense that does not absolve it of liability, but restricts the

remedies available to a plaintiff.”). But I read the Desert Palace

language to emphasize the “limiting” effect of the same action

showing rather than to define precisely the nature of the showing.

4

cap like Title VII’s cap, id. § 1981a(b)(3),4 than to an

affirmative defense—the court is constrained in awarding

equitable relief if the employer demonstrates that it would have

taken the same employment action in the absence of any

discriminatory motive.5 Accordingly, I believe the “same

4

Section 1981a(b)(3)(D) provides:

The sum of the amount of compensatory damages awarded

. . . for future pecuniary losses, emotional pain, suffering,

inconvenience, mental anguish, loss of enjoyment of life, and

other nonpecuniary losses, and the amount of punitive

damages . . . shall not exceed, for each complaining party —

...

(D) in the case of a respondent who has more than 500

employees in each of 20 or more calendar weeks in the

current or preceding calendar year, $300,000.

42 U.S.C. § 1981a(b)(3)(D). The damages cap, like the “same action”

showing, was enacted as part of the Civil Rights Act of 1991. Pub. L.

102-166, 105 Stat. 1071, 1072 (1991).

5

The “same action” language—enacted, to repeat, as part of the

1991 Act—is set forth in section 2000e-5(g)(2)(B) as follows:

(B) 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

(except as provided in clause (ii)), and attorney’s fees

and costs demonstrated to be directly attributable

only to the pursuit of a claim under section 2000e-

2(m) of this title; and

5

action” showing need not be raised until the remedy stage of the

proceedings.6 See Johnson v. Brock, 810 F.2d 219, 223 (D.C.

Cir. 1987) (“[I]n Title VII cases the questions of statutory

violation and appropriate statutory remedy are conceptually

distinct. . . . When a statutory violation is established, the case

proceeds to the remedy phase.”) (internal quotation omitted); cf.

Oliver v. Cole Gift Ctrs., Inc., 85 F. Supp. 2d 109, 112 (D. Conn.

2000) (“No plaintiff claiming damages under Title VII can

complain of unfair surprise, prejudice, or lack of opportunity to

respond when confronted with [the statute’s] limitation of

damages, because the limitation is part of the same statutory

scheme under which the plaintiff has brought his or her claim.”).

Moreover, characterizing the “same action” showing as a

(ii) shall not award damages or issue an order

requiring any admission, reinstatement, hiring,

promotion, or payment . . . .

42 U.S.C. § 2000e-5(g). Section 2000e-5(g)(2)(B) in no way

manifests that the respondent’s “demonstrat[ion],” if successful,

constitutes a “defense.” Id.

6

In Porter, we found it “unnecessary to decide whether the ‘same

action’ defense under § 2000e-5(g)(2)(B) is an issue reserved for the

jury.” 414 F.3d at 19. The district court in Porter had denied the

respondent’s requested jury charge on the same action showing. Id.

at 16. Porter noted that “dicta in various cases indicate that the ‘same

action’ defense is a factual issue typically decided by the jury,” id. at

21 (citing Desert Palace, 123 S. Ct. at 2153, 2154; Borgo v. Goldin,

204 F.3d 251, 257-58 (D.C. Cir. 2000); Pulliam v. Tallapoosa County

Jail, 185 F.3d 1182, 1187 (11th Cir. 1999)). But Porter upheld the

district court’s determination of the “same action” showing “as part

of its assessment of the appropriate equitable relief,” id., and as “not

inconsistent with the jury verdict,” id.

6

limitation on equitable relief indicates to me that 42 U.S.C.

§ 2000e-2(a)(1)—which provides that “[i]t shall be an unlawful

employment practice for an employer . . . to fail or refuse to hire

or to discharge any individual, or otherwise to discriminate

against any individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such

individual’s race”—and 42 U.S.C. § 2000e-2(m)—which

provides that “an unlawful employment practice is established

when the complaining party demonstrates that race . . . was a

motivating factor for any employment practice, even though

other factors also motivated the practice”—are best

characterized as evidentiary—not liability—alternatives. Cf.

Maj. Op. at 9. That is, if the fact-finder (whether judge or jury)

determines that discrimination was a “motivating factor” in an

employment decision, the employer is liable, 42 U.S.C. § 2000e-

2(m), but the employee’s remedies are limited if it is determined

that the employer would have taken the same action in the

absence of the impermissible factor, 42 U.S.C. § 2000e-

5(g)(2)(B). If, however, the fact-finder (whether judge or jury)

decides that discrimination alone motivated the decision, the

employer is, again, liable but equitable relief is not so limited.

Thus, the fact-finder’s view of the evidence—and not simply

how the parties frame their arguments—ultimately dictates

whether the “same action” determination need be made. See

Porter, 414 F.3d at 20 (jury charge manifested jury found mixed

motives and thus district court did not err in addressing “same

action” showing).