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).