414 F.3d 13 (D.C. Cir. 2005), 04-5061, Porter v. Natsios

Docket Nº:04-5061.
Citation:414 F.3d 13
Party Name:Melvin PORTER, Appellant v. Andrew S. NATSIOS, Administrator, United States Agency for International Development, Appellee.
Case Date:July 01, 2005
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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414 F.3d 13 (D.C. Cir. 2005)

Melvin PORTER, Appellant


Andrew S. NATSIOS, Administrator, United States Agency for International Development, Appellee.

No. 04-5061.

United States Court of Appeals, District of Columbia Circuit

July 1, 2005

Argued May 6, 2005.

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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. Craig Lawrence entered an appearance.

Before: GINSBURG, Chief Judge, and ROGERS and ROBERTS, Circuit Judges.


ROGERS, Circuit Judge.

Melvin Porter sued his employer for violating Title VII of the Civil Rights Act of

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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 back pay and a GS-15 placement did not constitute appropriate equitable relief. Accordingly, we affirm the judgment of the district court.


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. pp 17-19, at 4. Two years later, in March 1998, when Porter applied for a GS-15 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

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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. pp 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. pp 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. 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...

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