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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.