United States District Court, District of Columbia
DENISE A. BANKS, Plaintiff,
SONNY PERDUE,  U.S. Secretary of Agriculture, Defendant.
MEMORANDUM OPINION AND ORDER
P. MEHTA, UNITED STATES DISTRICT JUDGE.
Denise Banks brought this action under Title VII of the Civil
Rights Act of 1964 against Defendant Secretary of the U.S.
Department of Agriculture (“USDA” or
“Defendant”), alleging, among other things, that
she was discriminatorily removed from her Senior Executive
Service position while employed at USDA based on her sex and
race. Plaintiff's discrimination claims survived summary
judgment and proceeded to trial. At trial, the jury agreed
that Plaintiff's sex was a motivating factor in her
demotion and returned a damages award of $100, 000. The jury,
however, found in favor of USDA on Plaintiff's race
jury's verdict lies at the heart of the parties'
motions that are now before the court. In a motion filed
under Rule 50 of the Federal Rules of Civil Procedure, USDA
argues that the verdict cannot be sustained and asks the
court to enter judgment as a matter of law in its favor on
Plaintiff's sex discrimination claim. Alternatively,
Defendant seeks a new trial pursuant to Rule 59. Plaintiff,
on the other hand, maintains that the verdict should be
upheld and, by her own motion, seeks an equitable award
consisting of reinstatement to the Senior Executive Service,
back pay, and a clean employment record.
reasons stated below, the court concludes that: (i) the jury
had a reasonable basis to find that USDA discriminated
against Plaintiff on the basis of sex when it removed her
from her Senior Executive Service position; (ii) USDA is not
entitled to a new trial; and (iii) Plaintiff is entitled to
reinstatement to the Senior Executive Service, a clean
record, and back pay, albeit in an amount less than she
seeks. Accordingly, the court denies Defendant's Motion
for Judgment as a Matter of Law or, in the Alternative, for a
New Trial, and grants in part Plaintiff's Amended Motion
for Reinstatement, Back Pay, and Clean Record.
DEFENDANT'S MOTION FOR JUDGMENT AS A MATTER OF LAW OR, IN
THE ALTERNATIVE, FOR A NEW TRIAL
January 2000, Plaintiff Denise Banks was demoted from her
Senior Executive Service (“SES”) position at
USDA. Def.'s Mem. in Support of Its Pending Mot. for J.
as a Matter of Law or, in the Alternative, for a New Trial,
ECF No. 151 [hereinafter Def.'s Mot.], Ex. 1, ECF No.
151-1 [hereinafter Trial Tr.], at 32-33. Specifically,
Plaintiff was removed from her position as Deputy Director of
Employment in USDA's Office of Civil Rights and demoted
to a GS-15 position. Id. at 32-33, 37-38; Def.'s
Mot., Ex. 2, ECF No. 151-2 [hereinafter Def.'s Ex. 2];
Def.'s Mot., Ex. 3, ECF No. 151-3 [hereinafter Def.'s
Ex. 3]; see Mem. of Points & Authorities in
Opp'n to Pl.'s Am. Mot. for Reinstatement, Backpay,
and Clean Record, ECF No. 174 [hereinafter Def.'s
Opp'n], at 2-3. Plaintiff has remained at USDA working in
less senior GS-15 positions ever since her demotion, but she
has never again occupied an SES position. See
Pl.'s Am. Mot. for Reinstatement, Back Pay, and Clean
Record, ECF No. 170 [hereinafter Pl.'s Am. Mot.], at
Def.'s Opp'n at 7-8; Def.'s Notice of Filing
Exs., ECF No. 175 [hereinafter Def.'s Exs.], Ex. MM, ECF
No. 175-38 [hereinafter Def.'s Ex. MM].
time relevant to this lawsuit, USDA's Office of Civil
Rights was directed by Rosalind Gray. Trial Tr. at 430. Gray,
in turn, supervised three deputy directors, id. at
431, two of whom are central to this case: Plaintiff and
Jeremy Wu. In February 1999, Plaintiff began working as
Deputy Director for Employment and oversaw a staff of
approximately 50 people. Id. at 209, 338, 431. Wu,
an Asian-American male, was Deputy Director for Systems and
Administration and oversaw a staff of approximately six
people. Id. at 34, 212-13, 462-63; Def.'s Answer
to First Am. Compl., ECF No. 16 [hereinafter Answer], ¶
16; see Trial Tr. at 16.
and Wu were members of the SES, the highest career-level
position in the federal government. Trial Tr. at 43. Members
of the SES are executives at various agencies, and the only
more senior positions in the federal government are
presidential appointees. See Id. at 200; cf.
Id. at 530. In 1999, Banks was in her first year as a
member of the SES, which is a probationary period.
Id. at 208, 294, 527. At the same time, Wu was in
his second year as a member of the SES and had completed his
probationary term. See Id. at 44-45.
members at USDA are subject to performance evaluations by
their supervisor. See Id. at 460-62, 539. The
supervisor's evaluation is in turn reviewed by the
Performance Review Board (“PRB” or
“Board”), a collection of SES officials from
other parts of USDA. See Id. at 295, 461-62; see
also Id. at 461 (testimony from Gray explaining that
“PRB rating boards are evaluation peer-review boards
that are set up throughout all of the departments of
government to evaluate [SES] members”).
November 1999, Gray gave both Plaintiff and Wu
“unsatisfactory” performance appraisals and
recommended that they be terminated from the SES. Def.'s
Ex. 2; Def.'s Mot., Ex. 4, ECF No. 151-4 [hereinafter
Def.'s Ex. 4]. The appraisals for both executives
contained four performance “elements, ” or review
criteria: (1) development and support of programs and policy;
(2) delivery of programs and/or functions; (3) management of
resources; and (4) civil rights. Id. For each
executive, three of the four elements were considered
“critical, ” see id.; Trial Tr. at 41,
459-60, although different elements were designated as
critical for each executive, according to his or her
respective job duties, see Trial Tr. at 458-60,
465-66. “Management of resources” was critical
for Wu because he managed the budget, contracting, and other
resource issues in the Office of Civil Rights. See
Trial Tr. at 464-65. “Development and support of
programs and policy” was critical for Plaintiff, but
not Wu, because Plaintiff developed programs and policies.
Id. at 458- 59, 465-66. Gray gave Plaintiff a
“does not meet fully successful” in two elements:
(1) development and support of programs and policy and (2)
delivery of programs and/or functions. Def.'s Ex. 2. Gray
gave Wu a “does not meet fully successful” for
one element: delivery of programs and/or functions.
Def.'s Ex. 4. Under the rating scale, these assessments
gave each executive a summary rating of
“unsatisfactory.” Def.'s Ex. 2; Def.'s
Ex. 4; see Trial Tr. at 466. Gray recommended that
both be removed from the SES. Def.'s Ex. 2; Def.'s
Ex. 4; see Trial Tr. at 532-33. In late 1999, Sally
Thompson, Acting Assistant Secretary for Administration,
reviewed and signed off on Plaintiff's and Wu's
performance appraisals. Trial Tr. at 33, 180, 515; Def.'s
Mot. at 4-5; Def.'s Ex. 2; Def.'s Ex. 4; see
Trial Tr. at 536-37.
appraisals then went to the PRB for review. Def.'s Mot.
at 4; see Trial Tr. at 45, 527- 28. In December
1999, Plaintiff submitted an approximately 40-page rebuttal
of Gray's appraisal to the PRB. Trial Tr. at 181. The PRB
reviewed Plaintiff's rebuttal and had some additional
questions for Gray, who, in turn, submitted a supplemental
statement. See Id. at 182.
review of a supervisor's evaluation and recommendation,
the PRB issues its own summary rating, either concurring with
or changing the supervisor's rating. Cf. Id. at
42, 532-34. For Wu, the PRB changed the summary rating to
“minimally satisfactory” and recommended that Wu
be reassigned. See id.; Def.'s Ex. 4. Wu's
appraisal includes written comments from the PRB that
“[t]he designation of element #2 as critical not clear
to the executive. The [PRB] gave the executive the benefit of
the doubt and changed the designation to noncritical, thus
changing the summary rating for Mr. Wu to Minimally
Satisfactory.” Def.'s Ex. 4. But for Plaintiff, the
PRB concurred with Gray's summary rating and recommended
Plaintiff's removal from the SES. See Trial Tr.
at 295-96; Def.'s Ex. 2. Plaintiff's appraisal does
not contain any written comments. See Def.'s Ex.
2. On January 10, 2000, Charles Rawls, Chairman of the PRB,
signed both Plaintiff's and Wu's appraisals on behalf
of the PRB. See Def.'s Ex. 2; Def.'s Ex. 4.
final action could be taken on Wu, Wu departed for an SES
position within the Department of Energy. See Trial
Tr. at 528, 530. The chair of the PRB told Gray that when Wu
appeared before the PRB, Wu requested that his SES status be
retained because he had accepted a position at the Department
of Energy and planned to transfer. Id. at 530. He
further told Gray that the PRB would not proceed with
Wu's evaluation if Gray declined to submit supplemental
materials to the PRB. Id. Gray did not submit any
additional materials to the PRB. Id. Wu transferred
to the Department of Energy around January 2000. See
Id. at 528.
appraisal, however, was forwarded to then-Secretary of
Agriculture, Dan Glickman, for a final rating and approval.
Id. at 295-96. On January 19, 2000, Glickman issued
a final rating of “unsatisfactory” for Plaintiff
and signed the performance appraisal. Id. Wu's
appraisal does not contain Glickman's signature.
See Def.'s Ex. 4.
Glickman signed Plaintiff's performance appraisal, it was
forwarded to Paul Fiddick, who had joined USDA in or around
November 1999 and had replaced Thompson as the Assistant
Secretary for Administration. Trial Tr. at 301-03. Fiddick
sat on the PRB that fall, including the PRB panel that
reviewed Plaintiff's performance. See Id. at
545-46. Fiddick sent Plaintiff a letter on January 24, 2000,
informing her of her demotion. Def.'s Ex. 3. The letter
states as the reason for her demotion
“unsatisfactory” performance during her
probationary period. Id. At trial, Fiddick testified
that he did not remember the PRB proceedings evaluating
Plaintiff. See Trial Tr. at 546. He also said that,
when he sent the demotion letter to Plaintiff, he was just
affirming the action of an independent body, the PRB.
Id. at 541-42. Effective January 29, 2000, Plaintiff
was assigned to a GS-15 position as Special Assistant to the
Deputy Director for Programs in the Office of Civil Rights.
Def.'s Ex. 3.
her demotion, Plaintiff prepared a rebuttal to Gray's
supplemental statement and gave it to Fiddick. Trial Tr. at
185-86, 547; see Pl.'s Mem. in Opp'n to
Def.'s Mots. for J. as a Matter of Law, ECF No. 152
[hereinafter Pl.'s Opp'n], Ex. 4, ECF No. 152-4.
Fiddick testified that his calendar shows that he held three
meetings in March, April, and June 2000, when he assumes he
discussed her request for reconsideration. See Trial
Tr. at 547-48; see also Id. at 517 (Gray testimony
that Fiddick said that he had met with Plaintiff and her
attorney following the PRB's decision); id. at
559-60 (Plaintiff testimony that she met with Fiddick in late
1999 and early 2000). Fiddick ultimately denied
Plaintiff's request. Cf. Id. at 546-47.
filed an EEO complaint regarding her demotion in February
2000. See Answer ¶ 8. In February 2007, USDA
issued a final agency decision upholding Plaintiff's
demotion. Cf. Id. Plaintiff appealed, and the
EEOC's Office of Federal Operations affirmed USDA's
decision. Am. Compl., ECF No. 15, ¶ 8; see
Answer ¶ 8.
filed a Complaint in this court in October 2007, which she
amended in August 2008. See generally Am. Compl. In
her five-count Amended Complaint, Plaintiff alleged that USDA
discriminated against her on the basis of race, sex, and age.
See Id. ¶¶ 53-57. The parties cross-moved
for summary judgment, and in March 2013, then-Chief Judge
Roberts granted and denied those motions in part. Judge
Roberts granted USDA's motion as to Plaintiff's
hostile work environment claims as well as several of her
retaliation claims, but allowed Plaintiff's race, age,
and sex discrimination claims and other retaliation claims to
proceed. See Banks v. Vilsack, 932 F.Supp.2d 185
(D.D.C. 2013). On the eve of trial, the court granted
Plaintiff's motion to amend her complaint to include only
claims that she was discriminated against on the basis of
race and sex when she was removed from the SES in 2000.
See Banks v. Vilsack, 958 F.Supp.2d 78, 81 n.1
(D.D.C. 2013); see also Minute Order, June 17, 2013.
sex and race discrimination claims were tried before a jury
in August 2013. At three points during trial-at the close of
Plaintiff's case-in-chief, after the close of its own
case, and at the close of Plaintiff's rebuttal case-USDA
moved for judgment as a matter of law under Rule 50(a).
See Trial Tr. at 372-82, 551-54, 561-63. At each
point, Judge Roberts reserved ruling on the motion.
Id. at 382, 553, 563.
close of evidence, Judge Roberts instructed the jury on two
theories of intentional discrimination. See generally
Id. at 575-77, 601-15. He instructed that Plaintiff
could show either that her sex was a determinative
factor in her removal from the SES, or that her sex was a
mere motivating factor in USDA's decision.
See Final Instructions, ECF No. 124 [hereinafter
Instructions], at 11-13. The court further explained that
under the latter, “mixed-motive” theory, the jury
could only award Plaintiff damages if USDA failed to prove by
a preponderance of the evidence that it would have made the
same decision to demote Plaintiff even if her sex had played
no role in the decision. See Id. at 15.
jury returned a verdict that was favorable for Plaintiff in
part, finding that USDA removed Plaintiff from her SES
position because of intentional discrimination based on her
sex, but not on the basis of her race. Trial Tr. at 681;
see also Verdict Form, ECF No. 123. Importantly, in
finding in favor of Plaintiff on her claim of sex
discrimination, the jury did not conclude that Plaintiff
would have been demoted but for her sex, but instead
found that sex was a motivating factor in
Plaintiff's demotion and that USDA had not shown it would
have otherwise demoted Plaintiff. See Verdict Form.
The jury awarded Plaintiff $100, 000 in damages. Id.
then moved for judgment as a matter of law under Rule 50(b)
or, in the alternative, for a new trial under Rule 59. Trial
Tr. at 684-85; Def.'s Mot.; see also Def.'s
Oral Mot. for Rule 50(a) and 50(b), ECF No. 155. That motion
is now before the court.
Motion advances two bases for undoing the jury's verdict.
First, under Rule 50, Defendant contends that no reasonable
jury could have concluded from the evidence presented that
Plaintiff's sex was a motivating factor in her demotion.
To support that assertion, Defendant methodically identifies
each potential individual discriminator-Rosalind Gray, Sally
Thompson, Dan Glickman, and Paul Fiddick-and explains why the
evidence does not evince any discriminatory intent on that
individual's part. See Def.'s Mot. at 15-22.
Moreover, Defendant also disputes that the jury could have
reasonably concluded that the PRB discriminated against
Plaintiff. See Id. at 22-28. Defendant therefore
asks the court to vacate the judgment in favor of Plaintiff
on her sex discrimination claim and enter judgment in its
favor as a matter of law. See Id. at 1.
alternative, Defendant contends that a new trial is warranted
under Rule 59 for two reasons: (1) Plaintiff gave Defendant
no pre-trial notice of her theory that the PRB discriminated
against her and raised it for the first time mid-trial, thus
constituting prejudicial “unfair surprise, ” and
(2) the jury's verdict is internally inconsistent.
See Id. at 3, 29-31. With respect to the latter
ground, Defendant also argues that if the court were to enter
judgment on the jury's verdict and decline to order a new
trial, the court should at least do so “based on the
jury's finding that gender was a mere motivating but not
a determinative cause and, thus, award Plaintiff no
compensatory damages or equitable relief.” Id.
court starts with Defendant's Rule 50 argument and then
considers the grounds asserted for a new trial under Rule 59.
Rule 50 a. Legal standard
standard for considering a motion under Rule 50
“mirrors” the standard for summary judgment under
Rule 56. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986). “[T]he inquiry under each is the same:
whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided
that one party must prevail as a matter of law.”
Id. at 251-52. Judgment as a matter of law “is
highly disfavored because it intrudes upon the rightful
province of the jury.” Breeden v. Novartis Pharm.
Corp., 646 F.3d 43, 53 (D.C. Cir. 2011) (internal
quotation marks omitted). It is proper only if
“‘the court finds that a reasonable jury would
not have a legally sufficient evidentiary basis to find
for' the nonmoving party.” Id. (quoting
Fed.R.Civ.P. 50(a)(1)). A court evaluating a motion for
judgment as a matter of law, upon review of the entire
record, “must draw all reasonable inferences in favor
of the nonmoving party, and . . . may not make credibility
determinations or weigh the evidence.” Reeves v.
Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000);
see also Teneyck v. Omni Shoreham Hotel, 365 F.3d
1139, 1149 (D.C. Cir. 2004) (citing Reeves
question posed by Defendant's Motion for Judgment as a
Matter of Law is whether Plaintiff presented sufficient
evidence at trial to allow a reasonable jury to conclude that
her sex motivated USDA's decision to demote her. Title
VII “provides that ‘an unlawful employment
practice is established when . . . sex . . . was a
motivating factor for any employment
practice.'” Ponce v. Billington, 679 F.3d
840, 844 (D.C. Cir. 2012) (quoting 42 U.S.C. §
2000e-2(m)). Under this theory of discrimination, also known
as the “mixed-motive” standard, a plaintiff need
not prove that unlawful discrimination was the determinative
factor, or but-for cause, of the adverse employment action;
rather, she can prevail on a lesser showing that
discriminatory animus was merely a motivating factor for the
adverse action. Id. Importantly, however, in a
mixed-motive case, if the defendant demonstrates that it
“would have taken the same action in the absence of the
impermissible motivating factor, ” then the relief
available to the plaintiff is limited to declaratory relief,
certain injunctive relief, and certain fees and costs.
Id. (quoting 42 U.S.C. § 2000e-5(g)(2)(B)).
Thus, in the mixed-motive context, a defendant can avoid an
award of money damages by showing it would have taken the
adverse action against the employee for a non-discriminatory
the “but for” and “mixed-motive”
theories differ, the means of proving discriminatory intent
are the same. “As with but-for causation, a plaintiff
can use evidence of pretext and the McDonnell
Douglas framework to prove a mixed-motive case.”
Id. To demonstrate pretext, a plaintiff may present
evidence that similarly situated employees of a different
class received more favorable treatment. See Royall v.
Nat'l Ass'n of Letter Carriers, AFL-CIO, 548
F.3d 137, 145 (D.C. Cir. 2008) (citing Brady v. Office of
Sergeant at Arms, 520 F.3d 490, 495 (D.C. Cir. 2008)). A
similarly situated employee is one who is charged with an
offense of comparable seriousness and whose relevant
employment circumstances are the same as the plaintiff's
in all relevant respects. See Wheeler v. Georgetown Univ.
Hosp., 812 F.3d. 1109, 1115-16 (D.C. Cir. 2016).
Alternatively, a plaintiff “may attempt to demonstrate
that the employer is making up or lying about the underlying
facts that formed the predicate for the employment
decision.” Brady, 520 F.3d at 495. An employee
cannot, however, prove discrimination by showing that the
employer was merely mistaken about the predicate for the
adverse action. Rather, where an employer's stated belief
“is reasonable in light of the evidence, . . . there
ordinarily is no basis for permitting a jury to conclude that
the employer is lying about the underlying facts.”
Id.; see also George v. Leavitt, 407 F.3d 405, 415
(D.C. Cir. 2005) (“[A]n employer's action may be
justified by a reasonable belief in the validity of the
reason given even though that reason may turn out to be
false.”). So, as relevant here, an employee demoted for
inferior work performance cannot prove discrimination by
showing that her performance in fact met standards; instead,
she must prove that it was unreasonable for her employer to
reach such a subjective assessment.
case, Plaintiff attempted to show pretext in two ways. First,
she urged the jury to find pretext based on how Defendant
treated her case relative to Wu's. Second, Plaintiff
vigorously argued that Gray could not have reasonably
believed that her work performance warranted the
“unsatisfactory” rating that led to her demotion.
For the ...