Opinion
Civil Action No. 02-0937 (JDB).
December 21, 2004
Nathaniel D. Johnson, Waldorf, MD, Counsel for plaintiff.
Laurie Weinstein, Assistant United States Attorney, Washington, DC, Counsel for defendant.
MEMORANDUM OPINION
Plaintiff Diane Beland ("plaintiff") brings this Title VII discrimination claim against defendant Ann Veneman ("defendant") for actions taken by defendant in failing to hire plaintiff. Presently before the Court is defendant's motion for summary judgment. At a motions hearing on October 28, 2004, the Court, sua sponte, raised two issues for the parties to brief — the meaning of the term "same action" in 42 U.S.C. § 2000e-5(g)(2)(B) and whether plaintiff is entitled to a jury trial on a "mixed motive" affirmative defense. For the reasons that follow, the Court will deny defendant's motion for summary judgment. The Court finds, moreover, that the phrase "same action" in 42 U.S.C. § 2000e-5(g)(2)(B) means defendant must show that it would not have hired plaintiff, even in the absence of discrimination, and that plaintiff is entitled to a jury trial in this case.
Defendant's motion also sought to dismiss plaintiff's claim of a civil rights violation by the Department of Agriculture in the processing of her administrative claim and a claim for "declaratory relief." See Def. Mot. at 1-2. Plaintiff concedes these two points, leaving only her Title VII claim as a viable cause of action. See Pl. Opp'n at 2 n. 2.
BACKGROUND
The facts set forth in this Background Section are drawn from uncontradicted facts supported by the record found in defendant's Statement of Material Facts To Which There Is No Genuine Dispute ("Def. Statement") and plaintiff's Statement Of Material Facts In Dispute ("Pl. Statement").
In the vacancy announcement for the position, the basic eligibility requirements included 52 weeks of specialized experience that was at least equivalent to the next lower grade.See Def. Mot. Ex. 2. All applicants meeting the minimum eligibility requirements were evaluated across six selection criteria: (1) knowledge of the various functional specializations of EEO laws, regulations and the federal personnel management system; (2) knowledge of Title VII laws, regulations, policies and plans; (3) skill in oral communications; (4) ability to plan, direct, and review the work of subordinates; (5) skill in conducting research, analyzing and evaluating data; and (6) ability to interpret and apply regulations (hereinafter the "knowledge, skills, and ability criteria" or "KSA"). See Def. Statement ¶ 4.
The agency received 35 applications that met the minimum eligibility. Id. ¶ 5. The agency then appointed a three person merit promotion panel to review the eligible applicants across the six selection criteria. Id. ¶¶ 6-7. Each applicant received a score from zero to three for each of the six KSA categories.Id. ¶ 7. If the applicant's experience was directly related to a particular KSA, the applicant would receive a score of "three" for that category. Id. ¶ 8. A score of "two" was given when an applicant's experience was considered satisfactory, a "one" was for "barely acceptable" experience, and a "zero" was given when an applicant had no experience relevant to a particular criterion. Id. Each panel member independently reviewed the applicants, giving each a score for each KSA category. See Def. Mot. Ex. 3, Constance L. Green Affidavit ("Green Affidavit") ¶ 6. After they completed their review, the three panel members convened and discussed each applicant to reach a consensus score.Id.
In order to determine the "best qualified" of the 35 applicants who met the minimum eligibility, the agency set a merit panel cut-off score of 13. See Def. Statement ¶ 9. A total of eleven applicants met the cut-off score of 13, including plaintiff, who received a score of 13 from the review panel. See Def. Mot. Ex. 4. In addition to the plaintiff, six other individuals received a score of 13, one received a 14, one received a 15, and two received an 18. Id. Applicant A, the individual defendant argues would have been hired instead of plaintiff, received a perfect score of 18 from the panel. Id.
The eleven applicants' names were placed on a "Roster of Best Qualified." Id. This list was then given to the selecting official, David Montoya ("selecting official"), a Hispanic and former Agency Director. See Pl. Opp'n Ex. 2, David F. Montoya Affidavit ("Montoya Affidavit") ¶ 3. The selecting official did not know the scores each applicant received from the merit panel.Id. According to the selecting official, he believed he could select any of the eleven applicants because all of them were rated as best qualified. Id. The selecting official stated that the most important factors in selecting an individual were management and leadership qualities. Id. ¶ 13. The selecting official did not conduct interviews of any applicants. Id. ¶ 3. According to the selecting official, he did not conduct a category by category review of the KSA's for each applicant, but rather looked for applicants with management and leadership skills. Id. ¶ 14. On or around March 31, 1999, the selecting official chose Rafael Berrios ("the selectee"), also a Hispanic, for the position of Supervisory Equal Employment Specialist. Id. ¶ 3.
Plaintiff, upon learning that she was not hired for the position, contacted an Equal Employment Office ("EEO") counselor and filed an administrative complaint alleging discrimination.See Def. Statement ¶ 12. After an investigation, the agency determined that the selecting official discriminated on the basis of race when he chose Rafeal Berrios for the position. See Def. Mot. Ex. 5 at 1. The agency found that the selectee was not as qualified as plaintiff. Id. at 3. Despite making this finding and the finding of discrimination, however, the agency determined that it would have selected Applicant A for the position anyway, noting this applicant's perfect score of 18 from the merit panel.See Def. Mot. Ex. 5 at 4. Therefore, according to the agency, absent discrimination it would have taken the same action as it pertained to plaintiff, so she was not entitled to damages beyond injunctive, declaratory, and attorney fees relief. Id. at 4-5.
The Equal Employment Opportunity Commission ("EEOC") affirmed the decision of the agency. See Def. Statement ¶ 16. In doing so, the EEOC also found that Applicant A and others would have been chosen for the position ahead of plaintiff, even in the absence of discrimination by the selecting official. Id. The EEOC ordered the agency only to pay plaintiff's attorney fees, and institute corrective action. Id. ¶ 17. Plaintiff then brought this action in federal court alleging that the agency discriminated against her in violation of Title VII and she was entitled to full relief, including back pay.
LEGAL STANDARD
Summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact.See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by "informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. (quoting Fed.R.Civ.P. 56(c)).
In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position.Id. at 252. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (internal citations omitted). Summary judgment is appropriate if the non-movant fails to offer "evidence on which the jury could reasonably find for the [non-movant]." Id. at 252.
ANALYSIS
Presently before the Court is defendant's motion for summary judgment. In adddition, two other issues require consideration — the meaning of "same action" in 42 U.S.C. § 2000e-5(g)(2)(B) and whether plaintiff is entitled to a jury trial on the "mixed motive" affirmative defense. Each issue will be addressed in turn below.A. Defendant's Motion for Summary Judgment
Defendant moves for summary judgment on the ground that there is uncontradicted evidence in the record that defendant would have taken the same action in the absence of the admitted discrimination. Specifically, defendant argues that although it admits that there was discrimination in the hiring of Rafael Berrios for the position, another applicant — Applicant A — would have been hired instead of plaintiff anyway, and therefore under 42 U.S.C. § 2000e-5(g)(2)(B) plaintiff is not entitled to damages. Plaintiff responds that there are material facts in dispute that prevent summary judgment for defendant — namely whether defendant would have hired Applicant A over her.
Plaintiff has already received declaratory and injunctive relief in the administrative complaint process, as well as attorney's fees associated with that complaint. See Def. Mot. Ex. 5.
The instant case is not a typical Title VII action in that defendant has admitted discrimination in the selection process for the position of Supervisory Equal Employment Specialist.See Def. Mot. at 11. Where discrimination is acknowledged, the traditional McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), burden shifting framework is unnecessary. Instead, pursuant to 42 U.S.C. § 2000e-5(b)(2)(B), when discrimination is established a court may award plaintiff damages unless the defendant can show that it "would have taken the same action in the absence of the impermissible motive." Furthermore, on the question whether the employer would have taken the same action after conceding discrimination, the burden is on the defendant. See 42 U.S.C. § 2000e-5(b)(2)(B) ("respondent demonstrates that the respondent would have taken the same action . . .") (emphasis added); Lewis v. American Foreign Serv. Assoc., 846 F.Supp. 77, 80-81 (D.D.C. 1993) (finding the 1991 Civil Rights Act left untouched the standard of proof articulated in Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989), which imposed the burden on the defendant in a mixed-motive defense). Defendant must satisfy that burden by a preponderance of the evidence. See Berger v. Iron Workers Reinforced Rodmen Local 201, 170 F.3d 1111, 1126 (D.C. Cir. 1999) (preponderance of the evidence standard applies to all factual questions in a Title VII case, regardless of which party bears the burden).
In defendant's motion for summary judgment, the dispositive issue is whether Applicant A was more qualified than plaintiff for the position of Supervisory Equal Employment Specialist, so that defendant would have selected Applicant A over plaintiff in the absence of discrimination. For defendant to prevail, then, it must establish an absence of any genuine dispute regarding whether Applicant A was more qualified than plaintiff.See Celotex Corp., 477 U.S. at 323. This is a very high hurdle to clear because not only does defendant bear the burden on its motion, but defendant also bears the burden of persuasion on this issue at trial, and hence must put forth evidence that establishes by a preponderance of the evidence that it would have selected Applicant A absent discrimination. See Berger, 170 F.3d at 1126.
In a typical Title VII case, where a plaintiff must establish discrimination, the D.C. Circuit court has said in a dispute involving relative job qualifications, the plaintiff must show "far superior" qualifications to establish an inference of discrimination, and survive summary judgment. See Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1294 (D.C. Cir. 1998); Stewart v. Ashcroft, 352 F.3d 422, 429-30 (D.C. Cir. 2003). However, in this case, plaintiff has already established discrimination so these cases and analysis is inapposite.
In support of its motion, defendant conducts a comparison between the applications of plaintiff and Applicant A. Defendant notes that Applicant A is an attorney with experience as an administrative judge and trial attorney with the EEOC. See Def. Mot. Ex. 8. Applicant A also established a district office and was the first, according to her application, to initiate pre-hearing settlement conferences, a practice adopted across the EEOC. Id. Defendant argues that plaintiff, by contrast, does not have comparable experience. According to defendant, plaintiff's application indicates her area of expertise is diversity, which is not directly relevant to the Supervisory Equal Employment Specialist position. See Def. Mot. Ex. 1 Furthermore, defendant points out that the merit panel scored plaintiff significantly lower than Applicant A — Applicant A scored a perfect 18, while plaintiff received only a 13, the minimum necessary to be considered best qualified. See Def. Mot. Ex. 4.
Not surprisingly, plaintiff contests defendant's arguments regarding her relative qualifications vis-a-vis Applicant A. Plaintiff observes that Applicant A's experience as a trial attorney and administrative judge are not required qualifications for the Supervisory Equal Employment Specialist position. See Def. Mot. Ex. 2. Furthermore, plaintiff argues that her EEO management experience is more valuable than Applicant A's experience as an attorney or administrative judge. See Pl. Opp'n at 8; Def. Mot. Ex. 1. In particular, plaintiff highlights several things from her application — her experience in the area of EEO counseling, investigations, mediation and issuing recommendations for final agency action — which are directly related to the skills required for the Supervisory Equal Employment Specialist position. Id. This contrasts sharply with Applicant A's experience, according to plaintiff, which is principally in the field of labor law. See Def. Mot. Ex. 8. Plaintiff also argues that her previous position of Equal Employment Manager was very similar to that of Supervisory Equal Employment Specialist, making her an excellent choice for the position. See Pl. Opp'n at 9; Def. Mot. Ex. 1. Finally, plaintiff observes that she had more supervisory experience than Applicant A. See Pl. Opp'n at 9;compare Def. Mot. Ex.'s 1 8.
When assessing the evidence put forth by defendant and plaintiff, the Court is guided by one question — has defendant presented undisputed facts that establish by a preponderance of the evidence that defendant would have hired Applicant A over plaintiff. Although defendant characterizes the record as showing beyond dispute that Applicant A is "far superior" to plaintiff, the record before this Court does not establish that. First, a comparison between the applications of plaintiff and Applicant A does not establish that Applicant A is clearly more qualified than plaintiff. The principal qualifications of Applicant A, her work as a trial attorney and administrative judge, which defendant cites as crucial, occurred more than 14 years prior to her application for the Supervisory Equal Employment Specialist position. See Def. Mot. Ex. 1.
Most importantly, the actual selection process utilized by the agency, which defendant only minimally discusses in its motion, casts further doubt on defendant's contention that Applicant A would have been hired over plaintiff. The selecting official stated that his key criteria were the applicants' management and leadership experience. See Montoya Affidavit ¶ 11. When conducting a comparison of plaintiff and Applicant A on the issues of leadership and managerial experience, it is not clear who is more qualified, as both applicants have relevant experience. Compare Def. Mot. Ex. 1 with Def. Mot. Ex. 8. In addition, to the extent defendant relies upon the merit panel scores to justify that Applicant A was more qualified, the selecting official was not shown those scores, and in fact was told that he could select any of the eleven applicants. See Montoya Affidavit ¶ 3.
Finally, defendant relies on the stark difference between the merit panel scores of Applicant A and plaintiff as evidence of Applicant A's superiority. Def. Mot. at 14. However, this argument is severely undercut by the agency itself, which acknowledged the merit panel rating system is not an accurate gauge of an applicant's qualifications. See Def. Mot. Ex. 5. Within the agency's decision on plaintiff's administrative complaint, the agency noted "[y]our [i.e., plaintiff's] qualifications and those of many other candidates were objectively superior to those of the selectee." Id. The selectee scored a 14 from the merit panel while plaintiff only scored a 13. See Def. Mot. Ex. 4. If the agency has concluded that plaintiff was objectively better qualified than one applicant who received a higher score from the merit panel, it follows that she may also be as well or better qualified than others — including Applicant A — who received higher scores. This statement by the agency, then, casting doubt on the accuracy of the merit panel ratings, puts into dispute defendant's primary contention that Applicant A was significantly more qualified than plaintiff. In a motion for summary judgment, when material facts are in dispute the motion cannot be granted. See Anderson, 477 U.S. at 248.
Therefore, in consideration of entire record, the Court concludes that there are genuine factual issues as to whether Applicant A is more qualified than plaintiff and would have been hired instead of plaintiff absent discrimination. Those genuine issues prevent granting defendant's motion for summary judgment.See Celotex, 477 U.S. at 323. A dispute involving the relative qualifications of applicants is, by its very nature, a fact intensive inquiry, requiring the trier of fact to weigh the applications, selecting criteria, and selecting process. See Newton v. CBS, 841 F.Supp. 19, 22-23 (D.D.C. 1994) (noting that questions of relative qualifications of applicants are questions of fact best resolved by the trier of fact). This is especially true where defendant — the movant here — bears the burden on the question of relative qualifications. Although defendant may be correct that Applicant A is more qualified than plaintiff, defendant has not put forth undisputed evidence that would preclude a reasonable jury from finding for plaintiff. See Anderson, 477 U.S. at 252 (a trial is appropriate when a factual issue can reasonably be resolved in favor of either party).
B. Meaning of "Same Action"
The Court asked the parties to brief the following question — what is the meaning of "same action" within 42 U.S.C. § 2000e-5(g)(2)(B). In response, the parties presented alternative definitions of the term. Plaintiff argues that "same action" means defendant must prove it would still have hired the selectee, Rafael Berrios, even in the absence of discrimination. Defendant counters that the meaning of "same action" is that defendant would have taken the same action towards plaintiff — not hiring her — even in the absence of discrimination.
When interpreting the meaning of a disputed term in a statute, "the preeminent canon of statutory interpretation requires us to presume that the legislature says in a statute what it means and means in a statute what it says there." Bedrock Ltd., LLC v. U.S., 124 S.Ct. 1587, 1593 (2004) (quoting Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-254 (1992)). Furthermore, the statute must be read in its entire context to determine the proper meaning of the language. See McCarthy v. Bronson, 500 U.S. 136, 139 (1991).
The term "same action" in section 2000e-5(g)(2)(B), in isolation, does not strongly support either interpretation offered by the parties. The full text of section 2000e-5(g)(2)(B) reads:
On a claim in which an individual proves a violation under section 2000e-2(m) of this title and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court —
(I) may grant declaratory relief, injunctive relief (except as provided in clause (ii)), and attorney's fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 2000e-2(m) of this title; and
(ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment described in subparagraph (A).
The language itself, then, does not point definitively towards either plaintiff's position or defendant's position.
Therefore, the next step is to examine the broader context of section 2000e-5(g)(2)(B) in an attempt to ascertain the meaning of "same action." See Kmart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) ("In ascertaining the plain meaning of [a] statute, the court must look to the particular statutory language at issue, as well as the language and design of the whole statute."). Within that inquiry, one requirement of section 2000e-5(g)(2)(B) is for a plaintiff to prove a violation under section 2000e-2(m). Once the plaintiff proves a violation, and a defendant has made the requisite showing of "same action," the remedial guidelines of section 2000e-5(g)(2)(B) are triggered. Therefore, we must examine section 2000e-2(m) in conjunction with section 2000e-5(g)(2)(B) for assistance in defining "same action." See Gundenkauf v. Stauffer Communs., 158 F.3d 1074, 1080 (10th Cir. 1998) (examining the language of section 2000e-2(m) and 2000e-5(g)(2)(B) together).
Section 2000e-2(m) reads as follows: "Except as otherwise provided in this sub-chapter, an unlawful employment practice is established when the complaining party demonstrates that race [or] color . . . was a motivating factor for any employment practice even though other factors also motivated the practice." Under section 2000e-2(m), a plaintiff proves a violation if she establishes that an impermissible consideration, i.e., race, was a factor in an employer's employment practice. Similarly, under section 2000e-5(g)(2)(B) an employer will not have to pay compensatory damages if it can establish that it would have taken the same action even though there were impermissible considerations. In both sections the impermissible motivations, i.e., the discrimination, pertain to either an "employment practice" or the "same action" Therefore, to read these provisions together in a consistent manner, the term "same action" must mean the same employment practice. This reading is consistent with plaintiff's own interpretation of "same action," which she describes as being the same employment action. See Pl. Supp. Br. at 4.
However, reading "same action" to mean the "same employment practice" does not necessarily resolve the issue at hand because an employment practice could mean hiring the selectee or not hiring the complainant. Therefore, one must examine whether the term "employment practice" is defined in the statute. In 42 U.S.C. § 2000e-2(a)(1) the statute defines an unlawful employment practice — it is unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwisediscriminate against any individual . . . because of such individual's race [or] color." Id. (emphasis added).
The only possible meaning of that language is that an employment practice means actions taken against someone. An employment practice is defined in terms of failing to hire "any individual" or otherwise discriminating against "any individual." These words connote actions taken against an individual (the complainant) not in favor of an individual (the selectee). In addition, other sections of 2000e-2 define specific employment practices, all of which use similar language indicating actions taken against an individual. See, e.g., 42 U.S.C. § 2000e-2(b) (employment agency practices); 42 U.S.C. § 2000e-2(c) (labor organization practices).
Reading sections 2000e-5(g)(2)(B), 2000e-2(m), and 2000e-2(a)(1) of Title VII together, then, the term "same action" must mean taking the same employment practice against an individual — here, not selecting plaintiff. Therefore, in section 2000e-5(g)(2)(B), the Court concludes that the term "same action" means the defendant must show it would have taken the same actionagainst the plaintiff — i.e., would not have hired plaintiff — even in the absence of the impermissible motivation.
Not only is this reading entirely consistent with the language and context of the statute, but the alternative meaning proposed by plaintiff would lead to an absurd result whereby every unsuccessful applicant for a position would be eligible to receive compensatory damages in a failure to hire case. If plaintiff were correct, and "same action" meant the same action towards the selectee, then every applicant who applied for a position could receive damages once discrimination is established. This is exactly the type of windfall section 2000e-5(g)(2)(B) is intended to avoid by separating declaratory, injunctive, and attorney's fees relief from compensatory damages.See 42 U.S.C. § 2000e-5(g)(2)(B) (permitting declaratory and injunctive relief and attorney's fees for a violation of section 2000e-2(m), but damages only if defendant would not have taken the same action).
C. Right to a Jury Trial
The other issue the Court asked the parties to brief is whether plaintiff is entitled to a jury trial when the only remaining issue is whether defendant would have taken the same action in the absence of discrimination. Defendant, citing Porter v. U.S. Agency for Int'l Dev., 240 F.Supp.2d 5, 7 (D.D.C. 2002), asserts that the only issue before the court is defendant's mixed motive affirmative defense, for which plaintiff is not entitled to a jury trial. Plaintiff argues that she has a statutory right to a jury trial on this remaining factual question because she seeks compensatory damages.
Title VII, as amended in 1991, provides plaintiff with a right to a jury trial if compensatory damages are sought. See 42 U.S.C. § 1981a(c); Landgraf v. USI Film Prods., 511 U.S. 244, 247 (1994) (Civil Rights Act of 1991 provided the right to a jury trial under Title VII for claims seeking compensatory damages). Furthermore, the Supreme Court has found on numerous occasions that the Seventh Amendment right to a jury trial can be applicable based upon a statutory entitlement. See Curtis v. Loether, 415 U.S. 189, 194 (1974) (citing examples where by statute the constitutional right to a jury trial was triggered). When the right to jury trial attaches, it attaches to all factual issues needed to resolve an issue. See Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 510-11 (1959). It is not disputed by either party here that the question whether defendant would have taken the same action in not hiring plaintiff absent discrimination is a factual question. Therefore, this statutory language in 42 U.S.C. § 1981a(c) would seem to indicate that plaintiff has a right to a jury trial.
Notwithstanding this statutory directive, defendant cites the opinion in Porter as support for its contention that a mixed motive defense is not a jury question. The court in Porter noted, in dictum, that "[t]he question of whether the employer would have made the 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 in 42 U.S.C. § 2000e-5(g)(2)(B) or given a special interrogatory."Porter, 240 F.Supp.2d at 7. There, the judge instructed the jury on the question whether retaliation was a "motivating factor" in the plaintiff's non-selection, but did not give the jury the question whether plaintiff would have been selected in the absence of retaliation. Id. Instead, the judge made his own determination of that question. Id.
While dictum in Porter indicates the mixed-motive defense may not be appropriate for the jury, in Borgo v. Goldin, 204 F.3d 251 (D.C. Cir. 2000), a case cited in Porter, the D.C. Circuit appears to come to the opposite result. The D.C. Circuit stated, also in dictum, that a jury should decide the factual question of whether the adverse employment action would still have occurred in the absence of retaliation against plaintiff. Id. at 258. InBorgo the court addressed, inter alia, the district court's finding as a matter of law that the defendant would not have taken the same action in the absence of retaliation. Id. at 257-58. The D.C. circuit noted, when considering conflicting live testimony surrounding whether the defendant would have taken the same action, that "[t]he latter [conflict between testimony and documents], however, is a question of credibility for the jury, not a question of law for the court." Id. at 258.
What makes Borgo particularly illustrative is that the district court there stood in much the same position as this case. The district court had granted summary judgment on the discrimination question (finding discrimination) and the only issue that remained was whether the defendant would take the same action in the absence of the impermissible motive. Id. at 257. The district court initially put that question before a jury, before taking it from the jury on a directed verdict ruling that the D.C. Circuit then overruled. Id. at 257-58.
The proceedings in Borgo certainly provide a good model for this Court to follow. While neither case, Porter or Borgo, specifically resolved the issue whether a mixed-motive affirmative defense is a question for the jury or the court, the language and approach in Borgo certainly lend weight to the position that the mixed-motive factual question should go to the jury. Furthermore, both decisions agree that if a jury is properly instructed, it may make the factual determination on mixed motive. See Borgo, 204 F.3d at 258; Porter, 240 F.Supp.2d at 7; see also Desert Palace, Inc. v. Costa, 539 U.S. 90, 101-02 (2003) (holding that either direct or circumstantial evidence is sufficient for the jury to receive a mixed motive instruction). Therefore, in light of the general Title VII statutory directive for jury trial, and plaintiff's request for a jury trial on her present claim for compensatory damages, the Court concludes that it is appropriate to convene a jury as the trier of fact on defendant's mixed motive defense.
CONCLUSION
For the reasons stated above, the Court concludes that there is a genuine issue of material fact that is appropriate for determination by the trier of fact. Therefore, defendant's motion for summary judgment is denied. Furthermore, the Court concludes that the term "same action" in 42 U.S.C. § 2000e-5(g)(2)(B) means defendant must establish it would have taken the same action towards plaintiff — i.e., she would not have been selected even in the absence of discrimination. Finally, plaintiff is entitled to a jury trial on the question whether defendant would have taken the "same action" in the absence of discrimination. A separate order has been issued on this date.