Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Banks v. Perdue

United States District Court, District of Columbia

February 22, 2018

DENISE A. BANKS, Plaintiff,
SONNY PERDUE, [1] U.S. Secretary of Agriculture, Defendant.




         Plaintiff 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 discrimination claim.

         The 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.

         For the 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.[2]


         A. Background

         1. Factual Background

         In 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.[3] 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 4[4]; 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].

         At the 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.

         Plaintiff 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.

         All SES 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”).

         In 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.

         The 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.

         Upon 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.

         Before 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.

         Plaintiff's 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.

         After 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.

         After 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.

         2. Procedural History

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff's 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.

         At the 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.

         The 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.

         USDA 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.

         B. Discussion

         Defendant's 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.

         In the 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. at 29.

         The court starts with Defendant's Rule 50 argument and then considers the grounds asserted for a new trial under Rule 59.

         1. Rule 50 a. Legal standard

         The 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 standard).

         b. The merits

         The 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 reason.

         Although 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.

         In this 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.