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.