Winchell, not Mr.
Porter, Tr. of May 30, 2002 at 236), and nothing to do with the decision
to re-advertise the EM position as a Foreign Service Officer position.
Plaintiff's prima facie case was that he was qualified for both positions
but selected for neither; that there were irregularities in the
administrative processes for both selections; and that the selecting
officials were or must have been aware of his prior protected activity.
Plaintiff asserted that he had nothing more to prove than that
retaliation was a "motivating factor" in his non-selections, and he
requested a "motivating factor" instruction. I gave that instruction over
defendant's objection, notwithstanding that the Court of Appeals has yet
to decide whether the 1991 Civil Rights Act's "motivating factor"
standard applies to retaliation claims,*fn3 see Borgo v. Goldin,
204 F.3d 251, 255 n. 6 (D.C. Cir. 2000), and notwithstanding the views of
other judges of this Court that the "but for" causation standard is
appropriate for retaliation cases, see e.g., Sanders v. Veneman,
211 F. Supp.2d 10, 21 (D.D.C. 2002); Gregg v. Hay-Adams Hotel,
942 F. Supp. 1, 8 (D.D.C. 1996). At the same time, plaintiff objected to
defendant's request for the so-called "mixed motive" instruction, a
creation of the 1991 Act that offers a complete defense to liability for
damages if the employment action in question would have been taken anyway
in the absence of discrimination, 42 U.S.C. § 2000e-5(g)(2)(B). I
sustained plaintiff's objection and refused the instruction.
The jury's verdict finding defendant liable for retaliation thus
establishes nothing more than what plaintiff asked the jury to find: that
retaliation was a "motivating factor" in the two selection decisions. The
jury was not asked and did not answer the question whether the other
applicants would have been selected instead of the plaintiff in the
absence of any retaliatory motive.
Nor, in this post-1991 Act case, did the jury's motivating factor"
verdict answer that question as a matter of law. As footnote 6 to the
Court of Appeals' Borgo opinion points out, in a pre-1991 Act case, most
notably in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), proof that
an impermissible consideration was at least one of the motivating factors
of an adverse employment decision shifted the burden to the employer to
demonstrate that it would have made the same decision in the absence of
the unlawful motive. Borgo, 204 F.3d at 255 n. 6. Thus, in a pre-1991 Act
case, a jury's finding of liability necessarily embodied a subsidiary
finding that the employer had failed to sustain its burden. In a
post-1991 Act case, on the other hand, a jury's finding of liability does
not have the same effect, for "once a plaintiff proves discrimination to
have been a motivating factor, liability is established." Id. (citing
42 U.S.C. § 2000e-2(m)). The question of whether the employer would
have made same decision in the absence of the unlawful motive is not put
to the jury — and is not answered by the verdict — unless the
jury is either instructed on the affirmative defense afforded by
42 U.S.C. § 2000e-5(g)(2)(B) or given a special interrogatory.*fn4
The jury's "motivating factor" verdict in this case thus left open the
possibility of fashioning "make whole" relief that did not include backpay
Also before the Court is defendant's motion for reconsideration of the
entry of an injunction against USAID. That motion will be denied.
Injunctive relief is warranted by the jury's finding of retaliation and
Mr. Porter's difficult history at USAID. Injunctive relief is typical
where a successful Title VII plaintiff remains in the employ of the
defendant, and is moot only when there is no reasonable expectation that
the conduct will recur, or where interim events have completely
eradicated the effects of the alleged violation. Bundy v. Jackson,
641 F.2d 934, 946 n. 13 (D.C. Cir. 1981). The jury found retaliation to
have been a "motivating factor" in two separate hiring decisions
affecting the plaintiff, plaintiff continues to work at USAID, and USAID
has failed to demonstrate that retaliation is not likely to recur.
So ordered this 22nd day of November, 2002.