                               UNITED STATES DISTRICT COURT
                               FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                          )
DENISE A. BANKS,                          )
                                          )
      Plaintiff,                          )
                                          )
              v.                          )                         Case No. 07-cv-01807 (APM)
                                          )
SONNY PERDUE, 1 U.S. Secretary of         )
Agriculture,                              )
                                          )
      Defendant.                          )
_________________________________________ )

                            MEMORANDUM OPINION AND ORDER

I.      INTRODUCTION

        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,



1
 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the court substitutes the current Secretary of
Agriculture as the defendant in this case.
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

II.      DEFENDANT’S MOTION FOR JUDGMENT AS A MATTER OF LAW OR, IN
         THE ALTERNATIVE, FOR A NEW TRIAL

         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



2
 The court apologizes to the parties, particularly to Plaintiff, for the inordinate amount of time that the Rule 50 motion
has been pending. No motion, let alone a post-trial motion, should take so long to resolve.
3
  For convenience, the court cites to Exhibit 1 of Defendant’s Motion, which compiles all of the daily jury trial
transcripts and includes sequential page numbering. The individual trial transcripts may be found in ECF Nos. 142–
147.


                                                            2
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 44;

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



4
    Citations to Plaintiff’s Amended Motion are to the page numbers electronically generated by CM/ECF.

                                                         3
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




                                                 4
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




                                                 5
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



                                                6
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.



                                                 7
       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



                                                 8
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



                                                   9
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




                                                 10
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.




                                                  11
       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 reasons stated below, a

reasonable jury could have found the evidence presented supports either approach.

                               i.      Comparator evidence

       For a female employee to be similarly situated to a male counterpart, “all of the relevant

aspects of her employment situation” must be “nearly identical to those of the male employee.”

Holbrook v. Reno, 196 F.3d 255, 261 (D.C. Cir. 1999) (internal quotation marks omitted). “Factors

that bear on whether someone is an appropriate comparator include the similarity of the plaintiff’s

and the putative comparator’s job and job duties, whether they were disciplined by the same

supervisor, and, in cases involving discipline, the similarity of their offenses.” See Burley v. Nat’l

Passenger Rail Corp., 801 F.3d 290, 301 (D.C. Cir. 2015). Whether another employee is similarly

situated is usually a question of fact for the jury. See Wheeler, 812 F.3d at 1116.

       Here, the jury could have found that Wu and Plaintiff were similarly situated based on the

fact that: (i) both Plaintiff and Wu were members of the SES—the highest career position in the

federal government; (ii) both were deputy directors in USDA’s Office of Civil Rights; (iii) both

shared the same supervisor, Gray, who was the director of the Office of Civil Rights; and (iv) both

received an unsatisfactory rating for poor work performance from Gray and were recommended

for removal from the SES at the same time. Cf. id. at 1116–19 (finding evidence sufficient to treat

plaintiff and coworkers as comparators where they worked in the same or comparable units and

there was a genuine issue as to whether they were subject to the same decision makers and whether

they engaged in misconduct of comparable seriousness). To be sure, there are some differences



                                                 12
between Plaintiff and Wu, but those differences are not significant enough to render them

insufficient comparators as a matter of law. For instance, Plaintiff was in her probationary year

in the SES at the time of her unsatisfactory rating, and Wu was not. But that difference is mitigated

by the fact that Wu was only in his second year of serving in the SES, as well as evidence that

Plaintiff and Wu were evaluated in the same manner regardless of their seniority in the SES. See

Trial Tr. at 44–45, 527–28. Plaintiff and Wu also had different job duties because they led different

sections. The jury, however, reasonably could have discounted that difference and placed greater

weight on the fact that Plaintiff and Wu shared the same rank and both were in the same situation:

they were before the PRB, having been recommended by their common superior, Gray, for

removal from the SES for poor work performance. Ultimately, these modest differences between

Plaintiff and Wu do not warrant disturbing the jury’s verdict.

       USDA’s post-trial contention that Wu and Plaintiff cannot be considered comparators as a

matter of law rests largely not on some legal or position-based distinction, but rather on the

employees’ treatment by the PRB. See Def.’s Mot. at 25–27. USDA asserts that the Board

articulated a legitimate reason for treating Plaintiff and Wu differently—namely, that Plaintiff was

aware of all of her critical performance elements and Wu was not. Id. at 25. For that reason,

USDA argues, the two are not similarly situated. Id. But USDA cannot bootstrap its claimed

nondiscriminatory reason for treating Plaintiff and Wu differently into an argument that Plaintiff

and Wu are not comparators. The question whether two employees are similarly situated is distinct

from whether their different treatment gives rise to an inference of discrimination. Cf. Wheeler,

812 F.3d at 1115–16 (failing to list the actions taken or not taken against the proposed comparator

as a factor bearing on whether another employee is an appropriate comparator).




                                                 13
       Moreover, even if Wu’s professed ignorance of one of his critical performance elements

could be considered a potential distinguishing factor, see Def.’s Mot. at 27, the jury reasonably

could have rejected it. There was sufficient evidence presented at trial for the jury to disbelieve

Wu’s claimed obliviousness. Gray testified that Wu received a “package” when he took the job

as deputy director and that, upon receipt of the package, “not only did he sign off and accept his

position, his job description, but he also accepted his performance standards at that time.” Trial

Tr. at 523. Thus, from Gray’s testimony, the jury could find that Wu in fact did have knowledge

of his critical performance elements and that his later claim of ignorance before the PRB was not

credible. Additionally, Wu was in the SES for a year longer than Plaintiff when they received

negative performance appraisals from Gray. See id. at 44–45. From that fact the jury reasonably

could have found it implausible that Wu, a long-time employee of the federal government, see id.

at 462, would not have known the full scope of his job duties and responsibilities, see id. at 619

(arguing in closing that Wu’s asserted lack of knowledge was not credible in light of his

experience). And, although USDA alludes to the difference in Plaintiff’s and Wu’s “critical

elements” as a distinguishing factor between them, Def.’s Mot. at 26, the jury readily could have

found that difference to be immaterial when the key question presented was why Wu was treated

differently from Plaintiff when both were adjudged by Gray to have performed unsatisfactorily

with regard to their respective job responsibilities and recommended for removal from the SES.

In the end, it is the jury’s province to weigh the evidence. Viewing that evidence in the light most

favorable to Plaintiff here, the jury reasonably could have found that Wu and Plaintiff were

similarly situated.

       Finally, USDA argues that, even if Plaintiff and Wu can be considered comparators,

“Plaintiff offered no basis for a reasonable juror to question the bona fides of the Board’s stated



                                                14
reason” for treating Wu differently than Plaintiff. Id. at 28. In other words, USDA insists that the

Board’s nondiscriminatory reason for treating Plaintiff differently is not evidence of pretext. As

discussed, the reason the Board offered for not recommending Wu’s removal was that Wu did not

know that one of his performance elements was deemed critical. The sole evidence presented by

USDA of that rationale are typed comments at the conclusion of Wu’s performance appraisal,

which read: “The designation of element #2 as critical not clear to the executive. The [Board]

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 at 4; see also

Trial Tr. at 36–37, 41–42. 5 The jury was not, however, required to take the comments on Wu’s

performance appraisal as gospel. As already discussed, a reasonable juror could have rejected

Wu’s professed ignorance of his critical elements; correlatively, a reasonable juror could have

found that the PRB’s claimed reliance on Wu’s dubious explanation itself to be incredible. See

Conboy v. Bureau of Nat’l Affairs, Inc., 15 F.3d 1159 (tbl.), 1993 WL 524001, at *3 (D.C. Cir.

1993) (“Conboy is correct when he argues that the factfinder may find the employer’s explanation

sufficiently incredible to permit an inference of discrimination.”); cf. Reeves, 530 U.S. at 147

(“Proof that the defendant’s explanation is unworthy of credence . . . is probative of intentional

discrimination, and it may be quite persuasive. In appropriate circumstances, the [jury] can

reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a

discriminatory purpose.” (citation omitted)). Indeed, Plaintiff made that precise argument to the

jury. Trial Tr. at 627 (arguing that the Board’s rationale for treating Wu and Plaintiff differently

“[o]n its face . . . can’t be believed”).



5
  Judge Roberts excluded USDA’s proposed witness from the PRB, Charles Rawls, because USDA disclosed his name
too late. See Banks v. Vilsack, 292 F.R.D. 158 (D.D.C. 2013). As a consequence, USDA offered no testimony from
a member of the PRB about the Board’s decision-making.

                                                     15
       Moreover, the PRB’s formulation of the reason for the disparate treatment itself could have

planted seeds of doubt in the jurors’ minds. Giving Wu “the benefit of the doubt” is the kind of

subjective explanation that could have caused a reasonable juror to question the veracity of the

Board’s explanation. See Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1298 (D.C. Cir. 1998) (noting

that “courts traditionally treat explanations that rely heavily on subjective considerations with

caution”). Plaintiff urged the jury to draw that very conclusion. Trial Tr. at 662 (“[Wu] got, as

they said, the benefit of the doubt; Ms. Banks got no benefit whatsoever.”). At bottom, the question

whether USDA acted with discriminatory intent lies within the province of the jury, see Lapera v.

Fed. Nat’l Mortg. Ass’n, 210 F. Supp. 3d 164, 184 (D.D.C. 2016), and a reasonable jury here could

have concluded that the PRB’s proffered explanation for treating Wu more favorably was pretext.

The court sees no reason to second-guess the jury’s decision-making in this case.

                               ii.     Gray’s performance review and Fiddick’s refusal to
                                       reconsider
       Plaintiff’s theory of discrimination was not confined to the PRB. Based on the evidence

presented at trial, the jury also could have credited several other theories of pretext in reaching its

conclusion that Plaintiff’s sex motivated USDA’s decision. The court starts with Gray. There was

sufficient evidence presented at trial for a reasonable jury to find that Gray’s stated reason for

recommending Plaintiff’s demotion was false or was patently unreasonable, and that the

appraisal—upon which the PRB’s recommendation and Fiddick’s decision was based—was the

product of discrimination.     Gray recommended Plaintiff’s removal due to her alleged poor

performance. See generally Def.’s Ex. 2. The jury, however, heard evidence that, if believed,

would cast doubt on Gray’s credibility and the bona fides of her assessment of Plaintiff. For

instance, Plaintiff presented testimony from one of her second-level subordinates in the USDA

Office of Civil Rights, who stated that he had worked with about 50 people in the agency “who


                                                  16
had come or gone or who were still there who were absolutely incompetent,” unlike Plaintiff, and

that he was therefore “stunned” by her demotion. Trial Tr. at 362, 368; see also id. at 368 (noting

that in his 13 to 14 years in the Office, he had never seen anyone demoted other than Plaintiff).

He further testified that Plaintiff was “the first Second-Line Supervisor [he] had . . . in [his] time

there, ever, who knew Civil Rights,” id. at 368, and described her as “analytical,” “very

professional,” “hands-on,” “readily accessible,” and “supportive,” id. at 363. Moreover, for every

contention by USDA at trial that Plaintiff underperformed in her job, Plaintiff provided rebuttal

evidence. For example, as to Gray’s assertion that there were approximately 120 cases in which

decisions were drafted but not forwarded to her office for signature, see Def.’s Ex. 2 at 3, Plaintiff

testified that many of those cases were at earlier stages and therefore were not ready for Gray’s

review, Trial Tr. at 135, 172. Similarly, to rebut Gray’s assistant’s claims that Plaintiff was

difficult to locate during office hours, see Trial Tr. at 396–98, Plaintiff presented evidence from

her special assistant that she worked long hours and was available, id. at 329–30, 335–36. It was

up to the jury to resolve these factual disputes, and they reasonably could have found in Plaintiff’s

favor.

         USDA emphasizes that the question is not whether Plaintiff actually performed poorly, but

whether the employer honestly and reasonably believed she performed poorly. Def.’s Mot. at 16–

17; Def.’s Reply Mem. in Supp. of Mots. for J. as a Matter of Law or, in the Alternative, for a New

Trial, ECF No. 154 [hereinafter Def.’s Reply], at 21–22. Thus, even if Plaintiff created a jury

question as to whether the performance review was accurate, USDA argues, she failed to present

sufficient evidence casting doubt on the sincerity of Gray’s belief in Plaintiff’s poor performance.

Def.’s Mot. at 17. Contrary to USDA’s assertion, however, and as discussed immediately above,

Plaintiff did present sufficient evidence to cast doubt upon Gray’s belief that Plaintiff was



                                                 17
performing poorly, and it went beyond Plaintiff’s own testimony. Thus, this case stands in contrast

to cases in which the parties do not contest the facts about how an individual performed and only

take issue with a subjective appraisal based on largely uncontested facts. Cf. Royall, 548 F.3d at

146 (“Given the consistent testimony by several Union officers that they received complaints about

[plaintiff’s] work and the undisputed evidence that at least two tax payments for which he was

responsible were late”—which “alone could have been sufficient nondiscriminatory grounds for

terminati[on]”—“a reasonable jury could not find that the Union’s officers were lying, much less

that the Union’s ‘stated belief about the underlying facts [wa]s [un]reasonable in light of the

evidence.’” (fourth alteration in original) (quoting Brady, 520 F.3d at 495)); Waterhouse v. District

of Columbia, 298 F.3d 989, 995 (D.C. Cir. 2002) (“Because [plaintiff] did not contravene—and in

fact admitted—many of the deficiencies the defendants cited concerning her performance, she

failed to establish that her ‘employer’s proffered explanation [was] unworthy of credence.’”

(second alteration in original) (quoting Reeves, 530 U.S. at 143)). Accordingly, if the jury credited

Plaintiff’s evidence over Gray’s testimony, then the jury would have had a basis to find that Gray’s

negative performance evaluation of Plaintiff was a pretext for sex discrimination. Cf. George, 407

F.3d at 415–16.

       And then there is Fiddick. Fiddick sat on the PRB that considered both Plaintiff’s and

Wu’s performance appraisals. Trial Tr. at 546–47. Although the Board did not ultimately demote

Wu, it did recommend that Plaintiff be demoted, and Fiddick then executed that decision. See id.

at 44–46; cf. id. at 538–42. Plaintiff asked Fiddick to reconsider. Specifically, after Plaintiff

received notice of her demotion, she prepared a rebuttal statement and delivered it to Fiddick, in

which she addressed the allegations of her poor performance. Pl.’s Opp’n, Ex. 4, ECF No. 152-4.

Fiddick reviewed this material, yet denied her request for reconsideration. See Trial Tr. at 546–



                                                 18
48. For the same reasons that the jury could have doubted the PRB’s proffered explanation for

Plaintiff’s demotion, the jury could have questioned Fiddick’s story. The jury could have held

Fiddick accountable for curiously giving Wu the “benefit of the doubt,” but not extending similar

benefit to Plaintiff, either before the PRB or during the reconsideration process. Plaintiff pressed

the jury to reach that very conclusion. Id. at 622, 660–62. Moreover, Plaintiff questioned

Fiddick’s credibility because he could not recall many of the facts surrounding Plaintiff’s

demotion. Id. at 622; see also id. at 627 (arguing that Fiddick “took refuge in a long period of time

and in a large lack of memory to deny that he had involvement in this case”). It was for the jury

to decide whether Fiddick’s lapses in memory were innocent, or evidence of discriminatory

animus. In short, there was evidence regarding Fiddick’s actions from which the jury could infer

that Plaintiff’s sex was a motivating factor in her demotion.

       USDA attempts to short-circuit scrutiny of Fiddick’s conduct by arguing that his refusal to

reconsider Plaintiff’s demotion is not at issue in this case. See Def.’s Reply at 10, 14–15. But

Fiddick’s actions played a prominent role at trial, and Plaintiff argued in closing, without drawing

an objection, that the jury could infer discrimination from Fiddick’s inaction. Trial. Tr. at 622; see

also id. at 660 (asserting that the “real decision-makers were the Performance Review Board and

Mr. Fiddick”). There is simply no good reason for this court to ignore facts that were presented to

the jury in deciding whether to sustain its verdict.

       Lastly, USDA appears to argue that even if there were sufficient evidence for a reasonable

jury to find that Plaintiff’s sex motivated USDA’s decision to remove her from the SES, the jury

could not have reasonably concluded that USDA failed to meet its burden in showing that it would

have removed Plaintiff from the SES anyway. See Ponce, 679 F.3d at 844–45. The court rejects

this argument. The same evidence offered by Plaintiff to show pretext is relevant to the question



                                                 19
whether she would have been demoted anyway. See id. at 844. The jury here obviously weighed

that evidence carefully—it found that Plaintiff’s evidence was strong enough to establish her sex

as a motivating factor for her demotion, but not so strong as to constitute a determinative factor.

At this juncture, the court’s role is confined to verifying that the jury’s verdict was one that a

reasonable jury could have reached. Cf. Bowie v. Maddox, 540 F. Supp. 2d 204, 208 (D.D.C.

2008). Because the evidence was not so one-sided in favor of USDA so as to make the jury’s

verdict unreasonable, the court declines to override the jury’s verdict. Defendant’s Motion for

Judgment as a Matter of Law is denied.

               2.      Rule 59

                       a.      Legal standard

       The court turns now to USDA’s alternative argument that a new trial is warranted under

Rule 59. See Def.’s Mot. at 3, 29. Rule 59 allows a court to grant a new trial after a jury verdict

“for any reason for which a new trial has heretofore been granted in an action at law in federal

court.” Fed. R. Civ. P. 59(a)(1). “The authority to grant a new trial . . . is confided almost entirely

to the exercise of discretion on the part of the trial court.” Queen v. Schultz, 310 F.R.D. 10, 21

(D.D.C. 2015) (alteration in original) (quoting Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33,

36 (1980)). “A new trial should be granted only where the court is convinced that the jury verdict

was a seriously erroneous result and where denial of the motion will result in a clear miscarriage

of justice.” Lee v. District of Columbia, 19 F. Supp. 3d 281, 286 (D.D.C. 2015) (internal quotation

marks omitted).




                                                  20
                        b.      The merits

        In this case, USDA argues it is entitled to a new trial on two separate grounds: unfair

surprise and an inconsistent jury verdict. The court begins with the claim of unfair surprise.

                                i.      Unfair surprise

        “A party seeking a new trial on the grounds of unfair surprise must show that it was

deprived of a fair hearing and demonstrate ‘reasonably genuine surprise, which necessarily was

inconsistent with substantial justice and which resulted in actual prejudice.’” Hancock v. Wash.

Hosp. Ctr., 13 F. Supp. 3d 1, 9 (D.D.C. 2014) (quoting Sedgwick v. Giant Food, Inc., 110 F.R.D.

175, 176–77 (D.D.C. 1986)). Here, USDA asserts that it was caught off guard when, for the first

time at trial, Plaintiff argued that the PRB discriminated against her. Def.’s Mot. at 29–30. As

proof of surprise, USDA primarily points to: (1) Plaintiff’s amended complaint, which lacks any

mention of the PRB; (2) her initial disclosures, which do not list anyone on the PRB as a person

“likely to have discoverable information,” Fed. R. Civ. P. 26(a)(1)(A)(i); and (3) her response to

an interrogatory that asked her to identify all potential witnesses and facts surrounding her

demotion, which does not mention the Board. See Def.’s Mot. at 5–7, 24, 29; see also Def.’s Mot.,

Ex. 5, ECF No. 151-5; Def.’s Mot., Ex. 6, ECF No. 151-6. As a consequence of these omissions,

USDA claims that it was unable to prepare and present evidence to rebut at trial Plaintiff’s new

theory about the PRB. Def.’s Mot. at 29–30.

        Although Plaintiff unquestionably could have done more to make known that she would

ultimately argue that the PRB discriminated against her, USDA cannot reasonably claim that it

was “genuine[ly] surprised” by that contention at trial. See id. at 29. While it is true that Plaintiff’s

pleading does not explicitly identify the Board as a discriminator, the Amended Complaint gave

Defendant “fair notice” that the PRB’s decision-making would be relevant to Plaintiff’s



                                                   21
discrimination claims. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (noting that the

purpose of Rule 8(a)(2) is to “give the defendant fair notice of what the . . . claim is and the grounds

upon which it rests” (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957))).

Specifically, the Amended Complaint made clear that Plaintiff would attempt to prove

discrimination based on the disparate treatment between her and Wu. See Am. Compl. ¶ 16.

USDA, of course, knew that the PRB gave Wu “the benefit of the doubt,” but displayed no such

goodwill towards Plaintiff. Thus, there can be little question that Defendant had notice that the

PRB’s decision-making would be a central feature of Plaintiff’s case.

        Additional facts weigh against USDA’s claimed unfair surprise. At the summary judgment

stage, USDA expressly recognized that Plaintiff would be pointing to the PRB as a discriminator.

In a footnote in its opening brief, USDA wrote: “Plaintiff alleges that the fact that the Performance

Review Board did not remove the Asian male from SES shows that the reasons for Plaintiff’s

removal were pretext for unlawful discrimination. In doing so, Plaintiff adds yet another set of

decision-makers to the list of actors who she claims discriminated against her on the basis

of . . . sex.” See Def.’s Mot. for Summ. J., ECF No. 38, Def.’s Mem. of Points & Authorities in

Supp. of Mot. for Summ. J., ECF No. 38-2, at 6 n.1 (citation omitted). That passage is a clear

acknowledgment by USDA that Plaintiff would be using the PRB’s actions to make out her

discrimination claims.

        Moreover, USDA anticipated that at trial it would need to rebut Plaintiff’s contention that

the PRB discriminated against her. USDA designated Charles Rawls—the Chairman of the Board

at the time the PRB recommended removal of Plaintiff from the SES—as a witness in its Revised

Pretrial Statement. See Def.’s Revised Pretrial Statement, ECF No. 91, at 8. Rawls was to testify

about the Board evaluation process and explain “the considerations used by the 1999 PRB that



                                                  22
reviewed and approved of Ms. Banks’s unsatisfactory rating and removal from the SES and that

reviewed Gray’s decisions regarding Mr. Wu’s FY 1999 performance appraisal.” Id. Rawls never

testified, however, because Judge Roberts ruled that USDA had disclosed his name too late—a

mere eight days before trial. See Banks v. Vilsack, 292 F.R.D. 158, 160 (D.D.C. 2013). Nothing

prevented USDA from designating Rawls in a timely manner. See id. Thus, having recognized

the importance of establishing that the PRB treated Plaintiff and Wu differently for a non-

discriminatory reason, USDA cannot genuinely claim to have been unfairly surprised when, at

trial, Plaintiff pointed to the PRB’s evaluation process as proof of sex discrimination. The court

therefore finds that USDA’s contention that it suffered unfair surprise is without merit.

                                   ii.      Inconsistent verdict

        That leaves Defendant’s second ground for seeking a new trial under Rule 59: internal

inconsistencies in the jury’s verdict. See Def.’s Mot. at 30–31. “Claims that a jury verdict is

inconsistent impose a special obligation on the court to view the evidence in a manner that

reconciles the verdicts if possible, and to grant a new trial if not.” Halcomb v. Woods, 767 F. Supp.

2d 123, 132 (D.D.C. 2011) (quoting Hundley v. District of Columbia, 494 F.3d 1097, 1102 (D.C.

Cir. 2007)); cf. Gallick v. Baltimore & Ohio R.R. Co., 372 U.S. 108, 119 (1963) (“[I]t is the duty

of the courts to attempt to harmonize the answers, if it is possible under a fair reading of them:

Where there is a view of the case that makes the jury’s answers to special interrogatories consistent,

they must be resolved that way.” (internal quotation marks omitted)). 6 “‘[S]uccessful claims of

verdict inconsistency are rare,’ arising only when the jury has reached conclusions that ‘cannot




6
  While Halcomb analyzed inconsistencies in the jury’s verdict as a ground for new trial, see 767 F. Supp. 2d at 132,
the court notes that in Hundley, the D.C. Circuit addressed this question through the lens of Federal Rule of Civil
Procedure 49(b), which specifies when an answer to a written question that is inconsistent with the jury’s general
verdict may warrant a new trial. See Hundley, 494 F.3d at 1102; Fed. R. Civ. P. 49(b)(3)–(4).

                                                        23
reasonably be reconciled or sustained.’” Halcomb, 767 F. Supp. 2d at 132 (alteration in original)

(quoting Hundley, 494 F.3d at 1102).

       In this case, the Verdict Form asked the jurors a series of questions. It first asked whether

USDA removed Plaintiff from her SES position “because of intentional discrimination based upon

her sex.” Verdict Form ¶ 4. If the answer was “yes,” the jury was asked to decide whether

Plaintiff’s sex was a determinative factor or a motivating factor in USDA’s decision. See id. ¶ 5.

If the jury chose “determinative factor,” it proceeded straight to the question of damages; if the

jury chose “motivating factor,” it was directed to answer the following question:

               Although Plaintiff Denise Banks’s sex was a motivating factor in
               the USDA’s decision to remove her from her SES position, would
               the USDA have removed her from the position even if her sex had
               played no role in its decision?

Id. ¶ 6. If the answer to that question was “no,” the jury was then instructed to enter an award of

money damages. Id. ¶ 7. The jury here did exactly as instructed. It first found Plaintiff’s sex to

be a motivating, but not determinative, factor in USDA’s decision. See id. ¶ 5. It then considered

the question quoted above and answered it “no.” See id. ¶ 6. It then proceeded to award $100,000

in damages. See id. ¶ 7.

       According to USDA, the jury’s answers are inconsistent with one another because the jury

found that “Plaintiff’s gender was not the ‘but for’ cause of her demotion by rejecting it as a

‘determinative factor,’” yet simultaneously “decided that her demotion occurred because gender

played a role in the decision—i.e., gender was the but for reason for the decision.” Def.’s Mot.

at 31. But there is no inconsistency. The jury’s answers clearly track the law of this Circuit




                                                24
governing single versus mixed-motive cases. See Ponce, 679 F.3d at 845. As the Circuit has

explained:

               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.” 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.”

Fogg v. Gonzales, 492 F.3d 447, 451 (D.C. Cir. 2007) (alterations in original) (citations omitted).

The jury’s verdict is entirely consistent with this mixed-motive standard. After it concluded that

Plaintiff’s sex was a motivating factor in her demotion, the jury then answered whether USDA

would have taken that same action “in the absence of the impermissible motivating factor.” It

answered that question “no.” Thus, USDA manufactures an internal tension that does not exist.

       Nevertheless, USDA further insists that the jury’s “illogical and conflicting results” cannot

be explained by the shifting burdens of proof, as Plaintiff claims, because “[t]he jury is not learned

in jurisprudence regarding burdens of proof and the verdict form assigns no burdens in presenting

the questions for the jury’s consideration.” Def.’s Reply at 25. But that argument ignores the jury

instructions delivered by Judge Roberts. As relevant here, the instructions provided:

                       Ms. Banks presents two theories as to how the USDA
               intentionally discriminated against her. . . .
                       To show that . . . sex was a determinative factor, the plaintiff
               must show that if not for her . . . sex, the defendant would not have
               made its employment decision about her. . . .
                       . . . [Y]ou should find for Ms. Banks if you find that the
               USDA’s explanation is not the true reason and that but for
               intentional discrimination based on Ms. Banks’s . . . sex, the USDA
               would not have removed Ms. Banks from her SES position in 2000.
                       To show that . . . sex was a motivating factor in the
               defendant’s decision, the plaintiff . . . . must only prove that


                                                 25
               her . . . sex played an actual or substantial role in the defendant’s
               decisions even though other factors may also have motivated the
               defendant.
                         ....
                         In order for you to find for the plaintiff, the plaintiff must
               prove by a preponderance of the evidence that one or more USDA
               officials intentionally discriminated against her. . . .
                         ....
                         If you find that . . . sex was a determinative factor in the
               defendant’s decision . . . then you must determine an amount that is
               fair compensation for the plaintiff’s damages.
                         If you find that the plaintiff’s . . . sex was a motivating, but
               not a determinative factor in the defendant’s employment decision,
               then you must decide whether the plaintiff is entitled to damages.
               The plaintiff is not entitled to damages if the defendant proves by a
               preponderance of the evidence that it would have treated the
               plaintiff the same even if the plaintiff’s . . . sex had played no role
               in the employment decision.

Instructions at 11–13, 15 (emphasis added); see also Trial Tr. at 610–14. These instructions

provided the jury with the roadmap it needed to resolve the parties’ dispute. The instructions

clearly distinguished between Plaintiff’s two theories of discrimination and identified the party

that shouldered the burden of proof as to each theory. Therefore, the instructions provided all the

“jurisprudence” necessary to resolve Plaintiff’s sex discrimination claim.

                                           *       *       *

       For the foregoing reasons, the court denies Defendant’s Motion for Judgment as a Matter

of Law or, in the Alternative, for a New Trial.

III.   PLAINTIFF’S MOTION FOR EQUITABLE RELIEF

       Having prevailed at trial, Plaintiff now seeks equitable relief. In her Motion, Plaintiff

seeks: (1) reinstatement to the SES, (2) back pay, and (3) the removal of any reference to her 2000

demotion from her Official Personnel File. See generally Pl.’s Am. Mot. USDA concedes that,

under the circumstances, expunging Plaintiff’s demotion from her record is an appropriate




                                                  26
equitable remedy. See Def.’s Opp’n at 3 n.3. Thus, only reinstatement and back pay are at issue.

The court will address each issue in turn.

       A.      Reinstatement

       District courts have wide discretion to award equitable relief under Title VII, including

reinstatement. Barbour v. Merrill, 48 F.3d 1270, 1278 (D.C. Cir. 1995); see id. at 1279; 42 U.S.C.

§ 2000e-5(g)(1). “The district court should fashion this relief so as to provide a victim of

employment discrimination the most complete make-whole relief possible.” Barbour, 48 F.3d at

1278. In Title VII cases, reinstatement is generally the “preferred remedy.” See Webb v. District

of Columbia, 146 F.3d 964, 976 (D.C. Cir. 1998). As with any general rule, however, there are

exceptions. Because “a successful Title VII plaintiff is entitled only to appropriate equitable

relief,” id. (citing 42 U.S.C. § 2000e-5(g)(1)), the court must “careful[ly] consider[] . . . the

circumstances of [each] particular case” to determine whether reinstatement is appropriate, id. For

example, the court may consider “evidence of extreme animosity between the plaintiff and the

defendant employer,” or “evidence that the employer is genuinely dissatisfied with the plaintiff’s

job performance.” Banks, 958 F. Supp. 2d at 83 (internal quotation marks omitted) (citing Webb,

146 F.3d at 977). Ultimately, the court’s discretion must be “guided by sound legal principles”

and “measured against the purposes which inform Title VII,” including to “make persons whole

for injuries suffered on account of unlawful discrimination.” Albemarle Paper Co. v. Moody, 422

U.S. 405, 416–18 (1975).

       USDA opposes Plaintiff’s reinstatement, citing her poor performance as a supervisory

employee while she was in the SES and thereafter. Def.’s Opp’n at 3, 7–18. In addition to evidence

related to Plaintiff’s performance as an SES member, USDA offers evidence of “significant issues

with [Plaintiff’s] supervisory performance” following her demotion in 2000. Id. at 8. According



                                                27
to USDA, Plaintiff has been tasked with supervisory duties in four different positions: (i) Chief of

the Policy Division (2004–2005); (ii) Chief of the Employee Complaints Division (2005–2007);

(iii) Director of the Data and Records Management Division (2009–2012); and (iv) Director of the

Corporate Services Division (2012–2013). Id. at 7–8. Yet, in each of those positions, USDA

contends, her work has been criticized. Id. at 8. Her purported supervisory deficiencies fall into

three main categories.         First, USDA contends that Plaintiff’s “failures to provide timely

performance evaluations and plans to her subordinates have continued since her demotion.” Id.

Second, USDA argues that Plaintiff has continued to show “her inability as a supervisor to ensure

that EEO case materials are properly maintained and organized to allow for the proper functioning

of the agency’s EEO activities.” Id. at 10. Third, USDA cites Plaintiff’s “failure[] to communicate

essential information to her supervisors.” Id. at 13. As to each of these points, USDA cites to

multiple evaluations, e-mails, and letters relating to events that have occurred since 1999. Plaintiff,

for her part, vigorously pushes back against USDA’s criticism of her supervisory performance.

See generally Pl.’s Reply to Def.’s Opp’n to Mot. for Reinstatement, Back Pay, and Clean Record,

ECF No. 178 [hereinafter Pl.’s Reply].

        The court does not attempt, in the present posture, 7 to resolve whether Plaintiff is an

outstanding supervisor, merely a good one, or terrible at supervising other employees. Nor does

it need to. What the court takes away from the evidence submitted by the parties is that Plaintiff

is, at the very least, a competent federal employee who now has served for more than 35 years in

federal service. While surely she has made mistakes—who hasn’t?—she is a respected colleague

who is viewed as a positive contributor to the agency’s mission. Plaintiff has been rated “Superior”



7
  Although the court asked whether either party wished to have an evidentiary hearing on the appropriateness of
reinstatement as a remedy, both parties declined the invitation. See Hr’g Tr. (draft), Oct. 5, 2017, at 47–48, 54–56.


                                                        28
or “Outstanding” in 14 out of the 17 years since her demotion, including the time she served as

Chief of the Policy Division from 2004 to 2005 and as Director of the Data and Records

Management Division from 2009 to 2011—two of the periods during which Defendant alleges her

supervisory performance was deficient. Pl.’s Reply at 3; cf. Def.’s Ex. MM at 8–9.8 While the

three years for which she received a “fully successful” rating admittedly were periods in which

she held a supervisory position, Plaintiff’s performance appraisals indicate that she has been rated

positively on four separate occasions when serving in a supervisory capacity. See Def.’s Ex. MM

at 4 (superior for FY 2005); id. at 8–9 (outstanding for FY 2010 and FY 2011); Pl.’s Reply, Ex.

23, ECF No. 178-1 [hereinafter Pl.’s Ex. 23] (outstanding for FY 2016). Notably, Plaintiff has

never been rated below “fully successful.” Pl.’s Reply at 3; see Def.’s Ex. MM. More recently,

in June 2016, USDA assigned her to a new supervisory position, Deputy Director of the Office of

Adjudication. Pl.’s Reply at 2; see also Pl.’s Reply, Ex. 31, ECF No. 178-9, at 106–08. In this

role, she received a summary rating of “outstanding” in her 2016 performance appraisal. See Pl.’s

Ex. 23. The court doubts that USDA would continue to put Plaintiff in positions of supervisory

authority if her management and administration skills were as poor as USDA now suggests. Cf.

Kapche v. Holder, 677 F.3d 454, 465 (D.C. Cir. 2012) (stating that “‘as a general rule . . . neither

reinstatement nor front pay is an appropriate remedy’ if the employer has after-acquired evidence

of wrongdoing ‘of such severity that the employee in fact would have been terminated on those



8
  The court makes two clarifications here. First, there is no performance appraisal for the period during which Plaintiff
served as Chief of the Policy Division. See Def.’s Ex. MM. At least for purposes of back pay, USDA has conceded
that it will treat Plaintiff’s performance as “Outstanding,” as it has been unable to locate Plaintiff’s 2004 appraisal.
Def.’s Exs., Ex. PP, ECF No. 175-41, at n.1. The court finds no reason to assume otherwise for purposes of her
reinstatement, or at least no reason to adopt USDA’s argument that her performance was sub-par during this period,
because Defendant does not point to any record evidence to support such a conclusion. See Def.’s Opp’n at 7–15.
Second, while Plaintiff is correct that she received “outstanding” ratings during the 2009–2010 and 2010–2011 years
when she served as the Director of the Data and Records Management Division, see Def.’s Ex. MM at 8–9, the court
notes that she was the Director until August 2012, see Def.’s Exs., Ex. J, ECF No. 175-10, at 56. During the 2011–
2012 appraisal period, she received a rating of “Fully Successful.” Def.’s Ex. MM at 10.

                                                          29
grounds alone if the employer would have known of it at the time of the discharge’” (quoting

McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352, 362–63 (1995))).

       In the end, what USDA asks the court to do is to countenance continuing to deny Plaintiff

a senior status that she once had earned and enjoyed, but lost due to sex discrimination. The court

will not do so. The court therefore grants Plaintiff’s request for reinstatement to the SES.

       B.      Back Pay

       Plaintiff also seeks “back pay in the amount of $701,025 as of December 8, 2016, plus any

accrued back pay to the date of judgment and prejudgment interest at the Treasury rate.” Pl.’s Am.

Mot. at 1. To understand how Plaintiff reached the sum she seeks, as well as USDA’s objections

to such an award, some background is necessary.

       In Plaintiff’s initial motion for equitable relief, see ECF No. 161, she relied upon the expert

opinion of financial analyst Joseph Rosenberg. See Joint Motion for Discovery and to Extend

Briefing Schedule on Pl.’s Requests for Equitable Relief, ECF No. 162, at 2. Because Plaintiff did

not disclose Rosenberg as a potential expert or produce certain Office of Personnel Management

reports during discovery, USDA sought to strike the expert report and undisclosed documents. See

id. In order to resolve the dispute and eliminate any prejudice caused by Plaintiff’s untimely

disclosures, the court granted the parties’ request to re-open discovery with regard to Plaintiff’s

requests for equitable relief for a period of 75 days. See id.; Order, ECF No. 163.

       During this discovery period, Rosenberg timely amended his original report twice—once

on July 27, 2016, see Pl.’s Am. Mot., Ex. 6, ECF No. 170-1 [hereinafter Second Rosenberg

Report], and again on August 23, 2016, after he was deposed by USDA, see Def.’s Opp’n, Ex. EE,

ECF No. 175-31 [hereinafter Rosenberg Tr.]; Pl.’s Am. Mot., Ex. 7, ECF No. 170-2 [hereinafter

Third Rosenberg Report].      More than a month after the extended discovery period closed,



                                                 30
Rosenberg filed another amended report, dated December 8, 2016 (“Late Rosenberg Report”). See

Order, ECF No. 165, at 1 (setting October 26, 2016, as deadline for close of discovery); Pl.’s Am.

Mot., Ex. 8, ECF No. 170-3 [hereinafter Late Rosenberg Report]. The court, however, excluded

the Late Rosenberg Report as untimely, holding that the Third Rosenberg Report would be the

operative expert report. See Hr’g Tr. (draft), Oct. 5, 2017, at 46. Because this ruling came after

the close of briefing, Plaintiff’s back pay calculation is based on the Late Rosenberg Report,

including its $701,025 computation of back pay. See Pl.’s Am. Mot. at 1; Late Rosenberg Report

at 23.

         USDA raises a host of objections related to Rosenberg’s computation of back pay in his

Late Report, some of which presumably apply to the Third Rosenberg Report. In calculating

Plaintiff’s back pay, Defendant relies on an annotated demonstrative exhibit, which “correct[s]”

any assumptions that the agency contends are flawed. Def.’s Opp’n at 26. Otherwise, it uses the

assumptions underlying the calculations of the “most probable scenario” in the Third Rosenberg

Report. See id.; Def.’s Exs., Ex. PP, ECF No. 175-41 [hereinafter Def.’s Ex. PP]. Based on its

calculations, USDA argues that the maximum amount of back pay that Plaintiff is entitled to is

$280,699.03. See Def.’s Opp’n at 18; Def.’s Ex. PP. The Third Rosenberg Report, by contrast,

calculated a total of $625,384 in back pay based on the “most probable scenario.” See Third

Rosenberg Report at 4–5, 22. 9

         Based on the present record and the parties’ briefs, the court cannot—and should not—

attempt to calculate a final back pay award. Instead, the court will resolve USDA’s objections to




9
  Because the court finds reinstatement is an appropriate remedy here, it does not consider the substitute remedy of
front pay. Cf. Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 850, 853 (2001). Hence, the total award for
the “most probable scenario” is less than $722,711, which Rosenberg reached by adding the total front and back pay
awards together. See Third Rosenberg Report at 22.

                                                        31
Rosenberg’s analysis and leave it to the parties to propose an appropriate award in light of the

court’s rulings.

               1.     Mitigating income calculation

       To begin, USDA objects to the source of the numbers used to calculate Plaintiff’s

mitigating income—that is, the amount of income Plaintiff has received since her demotion in

2000. See Def.’s Opp’n at 21–23. In preparing his Second Report, Rosenberg identified Plaintiff

as the source for her actual compensation from 2000 to 2008, which he testified was derived from

Bank’s pay stubs or W-2 tax forms. Id. at 21–22; see also Second Rosenberg Report at 17;

Rosenberg Tr. at 90–91. In his Third Report, however, Rosenberg used the rates of pay set forth

in SF-50s contained in Plaintiff’s employment file. Def.’s Opp’n at 22 (citing Third Rosenberg

Report); see Pl.’s Am. Mot. at 14–15. His Late Report, however, reverts back to Plaintiff’s W-2

tax forms, as well as an income statement from the Social Security Administration, to tally

mitigating income. Def.’s Opp’n at 22 (citing Late Rosenberg Report at 3). USDA argues that

even though Rosenberg testified that using Plaintiff’s SF-50s to fix Plaintiff’s annual income

would be “more accurate,” his Late Report relies on the less accurate source of data. Id. USDA

insists that the SF-50s’ income figures be used to tabulate mitigating income. Id. at 25.

       This objection is largely moot, however. The court has since excluded the Late Rosenberg

Report, and USDA admits that the Third Report “us[es] the ‘more accurate’ rates set by [USDA]

and reflected on Banks’s SF-50s as the source of mitigating income.” Id. at 22, 25. Thus,

Plaintiff’s mitigating income should be calculated based on the bonuses and salary rates set forth

in Banks’ SF-50s or other relevant record contained in her official personnel file. See id. at 25.

The parties also should assume that Plaintiff did not receive any bonuses prior to 2005 in




                                                32
calculating her mitigating income, given the lack of any SF-50s in her file reflecting such bonuses.

See Def.’s Ex. PP at n.7.

               2.      Pay not received due to administrative error

       USDA also takes issue with the income figures that Rosenberg used from 2003 to 2007.

This objection relates to an administrative error that apparently resulted in a discrepancy between

the pay Plaintiff received and the pay set by USDA. See Def.’s Opp’n at 23. From 2003 to 2008,

Plaintiff’s salary, set by the Office of Civil Rights, did not increase even as her GS pay levels

increased. Id. Instead, Plaintiff’s salary remained fixed at $125,246 per year. Id. In September

2008, Plaintiff raised this issue with her supervisor. See Def.’s Exs., Ex. JJ, ECF No. 175-36.

USDA then issued a series of SF-52 forms to harmonize Plaintiff’s salary for 2003 to 2008 to the

corresponding appropriate GS-15, step 10, salary for those years. See Def.’s Opp’n at 23; Def.’s

Exs., Ex. KK, ECF No. 175-37. USDA also amended the SF-50s in Plaintiff’s official personnel

file to reflect the changes. Def.’s Opp’n at 23. While Plaintiff received the salary-differential

payment for the 2008 calendar year, she claims she did not receive those payments for 2003 to

2007. See Def.’s Exs., Ex. J, ECF No. 175-10 [hereinafter Def.’s Ex. J], at 88–89. She seeks to

recoup those sums here by calculating a salary mitigation figure that reflects the lesser income

actually received, as opposed to the greater income she should have received per her corrected SF-

50s. See Def.’s Opp’n at 23–24; cf. Pl.’s Am. Mot. at 14–15.         USDA opposes that request. It

argues that Plaintiff is not entitled to back pay from 2003 to 2007 to the extent such pay arises out

of the administrative errors. Such errors, USDA contends, are unrelated to Plaintiff’s demotion.

See Def.’s Opp’n at 23–24. The court agrees.

       In considering appropriate equitable relief, the court’s goal “is to restore the plaintiff[], as

nearly as possible, to the circumstances [she] ‘would have occupied if the wrong had not been



                                                 33
committed.’” Caudle v. District of Columbia, 825 F. Supp. 2d 73, 76 (D.D.C. 2011) (quoting

Lander v. Lujan, 888 F.2d 153, 156 (D.C. Cir. 1989)). Here, the “wrong” Plaintiff suffered was

demotion motivated by discriminatory animus.                      There is no connection between Plaintiff’s

demotion in 2000 and the loss of income she suffered from 2003 to 2007 due to administrative

errors. 10 Thus, Plaintiff’s back pay award should not account for such unrelated pay errors.

Instead, as stated above, Plaintiff’s mitigating income should be calculated by the rates set forth in

her SF-50s.

                   3.       Projected compensation

         USDA’s remaining objections relate to Rosenberg’s calculation of Plaintiff’s projected

compensation, i.e., the income that she could have expected to earn had she not been wrongfully

removed from her SES position. First, USDA attacks the premise of the “most probable” scenario

relied upon by Rosenberg. See Def.’s Opp’n at 25. Under this scenario, Plaintiff would have

received “outstanding” or “exceeds expectations” 11 ratings each year since her demotion in 2000.

Id.; see Third Rosenberg Report at 4–5. As USDA points out, however, Plaintiff “did not receive

such glowing reviews” in less demanding positions at the GS-15/10 level. Def.’s Opp’n at 25.

Thus, the court agrees that it was improper for Rosenberg to assume that Plaintiff would have

received such ratings as an SES member, when in fact she had not received them in her positions

at the GS-15/10 level.            Plaintiff’s back pay award instead should be based on her actual



10
   Plaintiff claims she has “availed herself of every avenue known to her to have USDA correct the underpayment,”
Pl.’s Reply at 12, and testified that these claims were part of the instant action, see Def.’s Ex. J at 91–92. Assuming
that to be true, Plaintiff still cannot dispute that on the eve of trial, she voluntarily dismissed “all issues in th[e] case
except whether USDA discriminated against [her] based on her race and sex when it removed her in 2000 from her
[SES] position . . . and demoted her to a GS-15 position.” Pl.’s Mot. for Partial Voluntary Dismissal and Mot. in
Limine, ECF No. 80, at 1; see Mem. Op. & Order, ECF No. 88. Additionally, the court takes no position on USDA’s
argument that the statutory time period to recover unpaid salary has now passed.
11
  The SES system uses the term “Exceeds Expectations” instead of “Superior” to describe the second highest appraisal
score. See Def.’s Ex. PP at n.1.

                                                            34
performance rating for the year in question. For example, in 2006, 2007, and 2012, Plaintiff

received a “fully successful” rating. See Def.’s Ex. MM at 5–6, 10. Accordingly, during those

years, Plaintiff’s projected compensation should be based on the estimated salary and award

distributions for USDA career SES employees with a “fully successful” rating.

       Second, USDA argues that Rosenberg, “based on no authority whatsoever[,] projected that

[Plaintiff] would have received elevations in [Executive Schedule ‘ES’] levels under the prior SES

pay system each year from 2000 to 2004.” Def.’s Opp’n at 25; see Def.’s Exs., Ex. HH, ECF No.

175-34, at 19–23; see also Third Rosenberg Report at 10 (“For years 2000–2003, step increases

from ES-1 to ES-4 were assumed for all levels. . . . Salaries in 2004 weren’t available and so were

averaged between the 2003 and 2005 salaries for each level.”); Rosenberg Tr. at 55 (explaining

that the 2004 average was based, in part, on “what she would have earned as an ES-4 in 2003”).

According to USDA, under the old ES-based SES pay system, promotions from one ES-level to

the next (with a corresponding pay increase) did not occur as Rosenberg assumes. Def.’s Opp’n

at 25. Specifically, Patricia Moore, Director of Executive Resources for USDA, testified that from

2000 to 2003, SES employees did not progress like a GS employee would expect to under the

grading system, provided their performance was satisfactory. Def.’s Exs., Ex. NN, ECF No. 175-

39 [hereinafter Def.’s Ex. NN], at 26–27; see Pl.’s Am. Mot. at 13. Instead, supervisors could

make recommendations to the Board based upon the employee’s performance, and the Board and

ultimately the Secretary would have “sole discretion . . . to give them that progression to the next

level.” Def.’s Ex. NN at 27. Importantly, an SES employee who received a rating of “outstanding”

would not necessarily progress to the next level. Id. at 27–28. Under the old system, progression

was based upon a number of factors, including the structure of the office. Id. at 28. As Moore




                                                35
testified: “If my boss was an ES-4, he probably wasn’t going to give me, as a subordinate, an ES-

5. So it was based on the position as well as my performance.” Id.

       Based on this uncontested testimony, the court agrees that Plaintiff’s projected

compensation should not rest on the assumption that her ES level would have increased each year

from 2000 to 2003. To hold otherwise would require speculation not only that Plaintiff would

have received high performance ratings during these years, but also that a myriad of other factors

existed to warrant the level increase. Such speculation cannot form the basis of a back pay award.

       Finally, USDA objects to Rosenberg’s projected salary increases from 2010 to 2013, as

SES salaries were frozen during this period by Executive Order. See Def.’s Opp’n at 25 (noting

2013 freeze); Def.’s Ex. PP at n.2 (“For years 2010 to 2013, USDA did not project a salary increase

because all SES salaries were frozen by OPM during this period of time.”). To the extent

Rosenberg does not account for such pay freezes in his Third Report, his calculations are

inaccurate. Plaintiff’s back pay should reflect such pay freezes. See generally Def.’s Exs., Ex.

OO, ECF No. 175-40 (2013 OPM Memorandum); Freeze on Pay Adjustments for Federal Civilian

Employees, U.S. Office of Pers. Mgmt. (Dec. 30, 2010), https://www.chcoc.gov/content/freeze-

pay-adjustments-federal-civilian-employees (2010 OPM Memorandum).

       The foregoing rulings obviously change the analyses with respect to back pay, and the court

is in a poor position to attempt to calculate how those rulings affect the ultimate award.

Accordingly, the court directs the parties to meet and confer and attempt to reach a resolution on

the amount of back pay in light of the court’s rulings. In updating the back pay calculations, the

parties shall also take into account the year 2017, as well any amounts that would be due to her in

2018 “through the date of judgment.” See Barbour, 48 F.3d at 1279.




                                                36
IV.    CONCLUSION AND ORDER

       For the foregoing reasons, Defendant’s Motion for Judgment as a Matter of Law or, in the

Alternative, for a New Trial is denied, and Plaintiff’s Amended Motion for Reinstatement, Back

Pay, and Clean Record is granted in part and denied in part.

       The parties shall meet and confer and, no later than 30 days from this date, file a Joint

Status Report indicating whether the parties have agreed on a total back pay amount in light of the

court’s rulings. If the parties cannot agree on a back pay award, the Report shall specifically

identify any disputes over calculations so that the court can make a final determination.

       The court will enter final judgment in this matter upon resolution of the back pay award.

The parties shall present the court with a draft order.




Dated: February 22, 2018                                  Amit P. Mehta
                                                          United States District Judge




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