492 F.3d 447 (D.C. Cir. 2007), 05-5439, Fogg v. Gonzales

Docket Nº:05-5439, 05-5440.
Citation:492 F.3d 447
Party Name:Matthew F. FOGG, Appellee/Cross-Appellant v. Alberto GONZALES, Attorney General for the United States Department of Justice, Appellant/Cross-Appellee.
Case Date:June 29, 2007
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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492 F.3d 447 (D.C. Cir. 2007)

Matthew F. FOGG, Appellee/Cross-Appellant


Alberto GONZALES, Attorney General for the United States Department of Justice, Appellant/Cross-Appellee.

Nos. 05-5439, 05-5440.

United States Court of Appeals, District of Columbia Circuit.

June 29, 2007

Argued January 12, 2007.

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[Copyrighted Material Omitted]

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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.


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

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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 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 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.

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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, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), as explicated in Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (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, 101 S.Ct. 1089, 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, 109 S.Ct. 1775, 104 L.Ed.2d 268 (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, 123 S.Ct. 2148). 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, 123 S.Ct. 2148 ("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

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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...

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