                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


                                              )
MICHAEL CROSS,                                )
                                              )
               Plaintiff,                     )
                                              )
       v.                                     )      Civil Action No. 04-1253 (RMC)
                                              )
G. WAYNE CLOUGH, Secretary,                   )
Smithsonian Institution,                      )
                                              )
               Defendant.                     )
                                              )


                                 MEMORANDUM OPINION

               Michael Cross sues the Secretary of the Smithsonian Institution for allegedly

terminating his employment due to Mr. Cross’s protected activity under Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. § 2000e. Mr. Cross earlier prevailed before the Merit Systems

Protection Board on a claim that he was fired because of protected whistleblowing activities. See

Def.’s Notice of Supp. Authority [Dkt. # 116], Ex. 2 (Cross v. Smithsonian Institution, Dkt. No. DC-

1221-06-0039 (MSPB May 9, 2007)). The Smithsonian has filed a motion for summary judgment

on the theory that Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009), precludes “mixed

motive” retaliation claims under Title VII and that, having proved his discharge was because of

whistleblowing, Mr. Cross cannot also claim it was because of Title VII protected activity.

               Two wrongs do not make a right and a single action can, indeed, violate two separate

statutes. A “mixed motive” situation is one in which an employer counters a claim of unlawful

discrimination with a lawful nondiscriminatory reason for its adverse action. See Price Waterhouse

v. Hopkins, 490 U.S. 228, 241 (1989) (explaining that, in the context of that case, the anti-
discrimination provisions of Title VII applied to “those [employer] decisions based on a mixture of

legitimate and illegitimate considerations”).      Gross held that an employee claiming age

discrimination must demonstrate that “but for” the unlawful discrimination, no adverse action would

have occurred. See Gross, 129 S. Ct. at 2352.

               Mr. Cross is not alleging a “mixed motive” here. He claims that the Smithsonian had

two unlawful reasons for his termination: 1) his whistleblowing and 2) his Title VII protected

activity. Each is separately actionable. The Smithsonian’s motion for summary judgment [Dkt.

# 118] will be denied.

               Mr. Cross has also filed a motion for summary judgment in a renewed attempt to

prevent the Smithsonian from introducing after-acquired evidence. See Dkt. # 120. The Court found

that there were material facts in dispute with respect to this issue in a July 17, 2009 Order denying

each party’s prior motion for summary judgment. See Order [Dkt. # 106]. There have been no

changes of fact in the interim, therefore, Mr. Cross’s motion will be denied. A memorializing order

accompanies this memorandum opinion.



Date: March 11, 2010                                                 /s/
                                                      ROSEMARY M. COLLYER
                                                      United States District Judge




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