Jorge Ponce v. James H. Billington, Librarian , United States Library of Congress

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 9, 2012 Decided May 18, 2012
No. 11-5117
J ORGE P ONCE,
APPELLANT
v.
J AMES H. B ILLINGTON, LIBRARIAN , U NITED S TATES LIBRARY
OF C ONGRESS ,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cv-01028)
Michael J. Kator argued the cause and filed the briefs for
appellant. Kerrie D. Riggs entered an appearance.
Yuval Rubinstein and Melvin Radowitz were on the brief
as amici curiae AARP, et al., in support of appellant.
Michelle Lo, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Ronald C. Machen,
Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S.
Attorney.

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Before: TATEL and G ARLAND, Circuit Judges, and
S ILBERMAN , Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: Following trial, a jury rejected
appellant’s claim that the Library of Congress violated Title
VII of the Civil Rights Act of 1964 when it selected someone
else for an open position. Now seeking a new trial, appellant
argues that the district court erred by instructing the jury that
he had to prove that unlawful discrimination was the “sole
reason” for his non selection. Although we agree that “sole
reason” is not the correct standard, the jury instructions
themselves corrected any error by defining “sole reason” as
“but-for” causation. Recognizing, however, that our recent
Title VII employment discrimination cases have caused some
confusion, we take this opportunity to clarify the requirements
the statute places upon plaintiffs and the courts.
I.
Appellant Jorge Ponce, a Cuban American male, applied
for a position as Director of the Library of Congress’s Office
of Workplace Diversity but was passed over in favor of
Deborah Hayes, an African American female. Although
Hayes received the highest interview scores out of the sixteen
finalists for the position, she lacked some credentials that
Ponce possessed, such as a master’s degree in Library Science
and experience working as a librarian. After exhausting his
administrative remedies, Ponce filed suit in the United States
District Court for the District of Columbia, alleging that the
Library had discriminated against him on the bases of race,
sex, and national origin in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.

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Before empaneling the jury, the district court shared its
proposed jury instructions with the parties. In relevant part,
the instructions read:
Mr. Ponce bears the ultimate burden proving
intentional discrimination in violation of Title VII.
The Library is not required to prove that it did not
intentionally discriminate. In order to carry this
burden of proof, Mr. Ponce must prove that illegal
discrimination on the basis of race and/or national
origin and/or sex was the sole reason for his non
selection. That is he must prove that but for his race
and or but for his national origin and or but for his
sex, he would have been hired by the Library.
Trial Tr. at 34 (Sept. 30, 2010). Explaining the instruction, the
district court observed that “the but for language of course
comes right out of recent Supreme Court decisions,” and that
“the solely language comes out of” this court’s decision in
Ginger v. District of Columbia, 527 F.3d 1340 (D.C. Cir.
2008); Trial Tr. at 2 (Sept. 27, 2010). The district court
nonetheless expressed confusion about our case law, stating
that she hoped the losing party would appeal the jury
instructions “because the Circuit totally needs to straighten it
out.” Pretrial Tr. at 4 (Sept. 15, 2010).
Ponce objected to the instructions, urging the court to
strike the “sole reason” language. Ponce also asked the court
to use the “because of” causation language codified in Title
VII instead of “but for.” See 42 U.S.C. § 2000e-2(a) (“It shall
be an unlawful employment practice for an employer . . . to
discriminate against any individual . . . because of such
individual’s race, color, religion, sex, or national origin[.]”
(emphasis added)). Ponce’s lawyer then engaged in the
following exchange with the district court:

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MR. KATOR: [W]e have been saying all along that it
was because of. So I think that the answer would be
let’s just use the phrase [“]because of[”] because that’s
what’s in the statute. If we do that, then we avoid it.
THE COURT: The Supreme Court has recently told us
that because of means but for. So I’m going to stick in,
let me stick with but for sure.
MR. KATOR: There’s nothing wrong with that
certainly, Your Honor. But again, just because if we
don’t know we can’t go wrong with the statutory
definition, that much we know. Congress has said
because of.
THE COURT: I think I’m going to go with the way
I’ve modified it.
Trial Tr. at 5-6 (Sept. 27, 2010). Following trial, the jury
returned with a verdict in favor of the Library.
On appeal, Ponce contends that the wording of the jury
instructions constitutes reversible error. He also argues that
the district court erred by refusing to admit into evidence an
administrative recommendation that the Library find that
Ponce “was the subject of unlawful discrimination.” Ponce v.
Billington, Personnel Appeals Board Report 32, No. 08-1028,
ECF No. 43-4.
II.
We begin our analysis of the jury instruction issue with a
little black-letter law. Title VII provides that “[a]ll personnel
actions affecting employees or applicants for employment” in

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the federal government “shall be made free from any
discrimination based on race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-16(a). It is well-established that
this provision “legislated for federal employees essentially the
same guarantees against . . . discrimination that previously it
had afforded private employees.” Barnes v. Costle, 561 F.2d
983, 988 & n.43 (D.C. Cir. 1977); see also Hackley v.
Roudebush, 520 F.2d 108, 142 n.138 (D.C. Cir. 1975)
(“Congress had the broader purpose of equalizing the
essential characteristic of private sector and federal employee
Title VII suits[.]”). Thus, the general provisions of Title VII
apply with equal force in both private and federal-sector
cases.
Title VII provides two separate ways for plaintiffs to
establish liability. First, 42 U.S.C. § 2000e-2(a)(1) bars
discrimination “because of . . . [an] individual’s race, color,
religion, sex, or national origin.” (emphasis added). A
plaintiff can establish liability under this section by proving
that a protected characteristic was a but-for cause of the
adverse employment action. See McKinney v. Dole, 765 F.2d
1129, 1138 (D.C. Cir. 1985), abrogated on other grounds by
Stevens v. Dep’t of the Treasury, 500 U.S. 1 (1991). We have
described this causation standard as “the ‘single-motive’ or
‘pretext’ theory of discrimination.” Fogg v. Gonzales, 492
F.3d 447, 451 (D.C. Cir. 2007). Because direct evidence of an
employer’s discriminatory motives is often elusive, a plaintiff
typically establishes but-for causation using the familiar
pretext framework established in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973). Under the McDonnell Douglas
framework, discrimination claims proceed in three steps: (1)
the plaintiff must prove a prima facie case of discrimination;
(2) if the plaintiff does so, then the burden shifts to the
defendant to articulate some legitimate, nondiscriminatory
reason for the action in question; and (3) if the defendant

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meets that burden, the plaintiff must show that the defendant’s
proffered reasons were “not its true reasons, but were a
pretext for discrimination.” Wiley v. Glassman, 511 F.3d 151,
155 (D.C. Cir. 2007) (per curiam) (internal quotation marks
omitted). See also Brady v. Office of Sergeant at Arms, 520
F.3d 490, 493–94 (D.C. Cir. 2008) (providing that when, as is
typical, “the employer asserts a legitimate, non-discriminatory
reason” for an adverse employment action, the prima facie
case “drops out of the picture,” and a plaintiff must simply
prove “that the employer’s asserted non-discriminatory reason
was not the actual reason and that the employer intentionally
discriminated against the employee on the basis of race, color,
religion, sex, or national origin”) (quotation marks and
citation omitted)).
In addition to the but-for standard, 42 U.S.C. § 2000e-
2(m) provides that “an unlawful employment practice is
established when . . . race, color, religion, sex, or national
origin was a motivating factor for any employment practice.”
(emphasis added). Authorizing what is known as a “mixed-
motive” case, this provision allows a plaintiff unable to
establish that a protected characteristic was the but-for cause
of an adverse employment action to prevail by showing that
unlawful discrimination was “a factor motivating the adverse
action.” Ginger, 527 F.3d at 1345. As with but-for causation,
a plaintiff can use evidence of pretext and the McDonnell
Douglas framework to prove a mixed-motive case. See Fogg,
492 F.3d at 451 n.*. Importantly, however, relief in a mixed-
motive case is limited to “declaratory relief,” certain
“injunctive relief,” and certain fees and costs if the defendant
“demonstrates that [it] would have taken the same action in
the absence of the impermissible motivating factor.” 42
U.S.C. § 2000e-5(g)(2)(B). By contrast, a plaintiff who
establishes but-for causation may recover damages, as well as
declaratory and injunctive relief. See Fogg, 492 F.3d at 451.

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And logically so. After all, if unlawful discrimination is the
but-for cause of an adverse employment action, it is
necessarily “a motivating factor” as well.
Even though we have described but-for and mixed-
motive cases as “alternative ways of establishing liability,” id.
at 453, a plaintiff may proceed under both theories
simultaneously. In Price Waterhouse v. Hopkins, 490 U.S.
228 (1989)—the Supreme Court decision Title VII’s mixed-
motive provision was intended to codify—the Court held:
[n]othing in this opinion should be taken to suggest
that a case must be correctly labeled as either a
“pretext” case or a “mixed-motives” case from the
beginning in the District Court; indeed, we expect that
plaintiffs often will allege, in the alternative, that their
cases are both. Discovery will often be necessary
before the plaintiff can know whether both legitimate
and illegitimate considerations played a part in the
decision against her.
Id. at 247 n.12 (plurality opinion). Thus, the Supreme Court
has clarified that a plaintiff need not expressly allege in the
complaint that the action is either a “pretext” or a “mixed-
motives” case since the plaintiff may need discovery to
correctly categorize his claim. Moreover, a plaintiff may
ultimately decide to proceed under both theories of liability.
Although a plaintiff need not plead a precise theory of
causation in the complaint, at some point he must place the
employer and court on notice as to the theory or theories
under which he intends to proceed. In Ginger, for example,
we held that a group of plaintiffs was required to argue that
race was a “motivating factor” if it wished the court to
consider a mixed-motive theory when ruling on a summary

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judgment motion. 527 F.3d at 1345. For the same reason, a
plaintiff who wants the court to deliver a mixed-motive jury
instruction must expressly request one at the proper stage of
litigation. There are, of course, risks to pursuing a mixed-
motive claim. A jury given both a mixed-motive and a but-for
instruction may, after weighing the evidence, decide to split
the baby and determine that although discrimination was a
“motivating factor,” the employer “would have taken the
same action in the absence of the impermissible motivating
factor.” 42 U.S.C. § 2000e-5(g)(2)(B). In such a scenario, the
remedy would be limited to declaratory and certain injunctive
relief (not including “admission, reinstatement, hiring, [or]
promotion”). Id. By contrast, a plaintiff who proceeds solely
under a but-for theory gives the jury an all-or-nothing choice:
either find for the plaintiff, in which case the remedy would
include monetary damages, as well as injunctive and
declaratory relief; or find against the plaintiff, in which case
the plaintiff would receive nothing.
The key issue in this case is whether the district court,
attempting to instruct the jury on the but-for theory of
liability, abused its discretion when it explained that “Ponce
must prove that illegal discrimination . . . was the sole reason
for his non selection.” Trial Tr. at 34 (Sept. 30, 2010)
(emphasis added). Czekalski v. LaHood, 589 F.3d 449, 453
(D.C. Cir. 2009) (“[T]he choice of language to be used in a
[jury] instruction . . . is reviewed only for abuse of
discretion.”)(internal quotation marks omitted). As an initial
matter, we agree with Ponce that “sole” and but-for cause are
very different. In the context of this case, for example, the
jury might have determined that Hayes was hired—and thus
Ponce rejected—because of two relevant but-for causes, both
of which were necessary to her selection: (1) her stellar
interview, for which she was ranked the highest among the
candidates, and (2) her race. In such a situation, a jury

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properly instructed as to but-for causation would find for the
plaintiff, whereas a jury taking a “sole cause” instruction
literally would find for the Library. Recognizing this concept,
the Supreme Court expressly held in McDonald v. Santa Fe
Trail Transportation Co. that nothing in Title VII requires a
plaintiff to “show that he would have in any event been
rejected or discharged solely on the basis of” a protected
characteristic. 427 U.S. 273, 282 n.10 (1976) (emphasis
added). Instead, “no more is required to be shown than that [a
protected characteristic] was a ‘but for’ cause.” Id.
It is true that our own Title VII cases have said that a
plaintiff may prevail in a motivating-factor (mixed-motive)
case without showing that unlawful discrimination was “the
sole or but-for motive for the employment action.” See Fogg,
492 F.3d at 451 (quoting Porter v. Natsios, 414 F.3d 13, 19
(D.C. Cir. 2005)). This merely means that a “motivating
factor” may be less significant than either a sole or but-for
cause. But we never said—nor could we given McDonald—
that a plaintiff in a but-for case must show that an adverse
employment action occurred solely because of a protected
characteristic. Indeed, in Porter v. Natsios, our first decision
to have used the “sole or but-for motive” language, we cited
the Supreme Court’s Price Waterhouse decision, explaining
that Price Waterhouse “recogni[zed] that the statutory phrase
‘because of’ does not mean ‘solely because of.’ ” Porter, 414
F.3d at 18 (quoting Price Waterhouse, 490 U.S. at 241); see
also Price Waterhouse, 490 U.S. at 241 n.7 (noting that
Congress “specifically rejected an amendment that would
have placed ‘solely’ in front of the words ‘because of’” in
Title VII). Then, in Ginger we used “sole motive” as
shorthand for but-for cause, suggesting that in a “single-
motive case,” a plaintiff “argues race (or another prohibited
criterion) was the sole reason for an adverse employment
action.” 527 F.3d at 1345. Understandably, then, the district

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court here read Ginger as requiring that the jury instruction
include “sole reason.” We thus take this opportunity to
clarify: nothing in Title VII requires a plaintiff to show that
illegal discrimination was the sole cause of an adverse
employment action. And mindful that “our words from loose
using have lost their edge,” Ernest Hemingway, Death in the
Afternoon 63 (Scribner Classics 1999) (1932), we hereby
banish the word “sole” from our Title VII lexicon.
This brings us to the jury instruction in this case. Had the
district court stopped at the end of the second sentence—
Ponce “must prove that illegal discrimination . . . was the sole
reason for his non selection”—we might well have reversed.
But caught between our language in Ginger and the Supreme
Court’s repudiation of a “sole cause” standard, the district
court sought to harmonize binding case law by defining “sole
reason” as “but for” cause. Specifically, immediately
following the “sole reason” language, the district court added
the following definition: “[t]hat is he must prove that but for
his race and or but for his national origin and or but for his
sex, he would have been hired by the Library.” Trial Tr. at 34
(Sept. 30, 2010). Given this clear definition of “sole reason,”
the instructions fairly and adequately conveyed the law to the
jury. We therefore see nothing in the jury instructions that
constitutes an abuse of discretion.
Nor did the district court err by failing to give a mixed-
motive instruction. Ponce argued his case only under a but-for
theory of liability. In his colloquy with the district court,
Ponce’s lawyer expressly confirmed that “we have been
saying all along that it was because of,” and further stated
“[t]here’s nothing wrong with that certainly,” when the
district court noted that “because of means but for.” Trial Tr.
at 5 (Sept. 27, 2010). Moreover, although Ponce contended at
oral argument before this court that he had submitted a

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proposed mixed-motive instruction to the district court, his
filings belie that assertion. Responding to the district court’s
request that the parties submit “proposed alternative
language” to its jury instructions, Ponce submitted a red line
version of the district court’s instructions with the “sole
reason” language crossed out. Had the district court accepted
this suggestion, the jury would have received a clear but-for
instruction. Nowhere in the record do we find any indication
that Ponce proposed a mixed-motive instruction.
III.
We can easily dispose of Ponce’s other argument: that the
district court erred when it excluded a portion of a report by
the Personnel Appeals Board of the Government
Accountability Office (PAB). After Ponce filed an
administrative complaint alleging discrimination, the Library
delegated investigation of that complaint to PAB. See Ponce
v. Billington, Personnel Appeals Board Report 1, No. 08-
1028, ECF No. 43-4 (explaining that because Ponce’s
“complaint concerned the selection of the Library official
responsible for processing discrimination complaints, the
Library entered into an Interagency Agreement” with GAO to
process and investigate the complaint). PAB ultimately
recommended that the Library determine Ponce “was the
subject of unlawful discrimination,” id. at 32—a
recommendation the Library rejected.
Prior to trial, Ponce moved to have the entire PAB report
admitted as evidence. Although the district court admitted the
“Factual Background” section of the report, it excluded the
remaining portions—including the recommended finding of
discrimination—because the analysis was “extraordinarily
weak” and “shouldn’t be before the jury.” Pretrial Tr. at 6.

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Ponce urges us to hold that recommendations of
administrative bodies, like PAB, are per se admissible. But
along with at least seven of our sister circuits, we think it best
to leave the admissibility of administrative reports in this
context to the discretion of the trial court. See Jamie Goetz,
Comment, Whose Opinion Really Matters? Admitting EEOC
Reasonable Cause Determinations as Evidence of
Discrimination, 76 U. Cin. L. Rev. 995, 1000 n.38 (2008)
(citing cases). As the Seventh Circuit explained: “A rule of
per se admissibility . . . would clearly undercut the district
court’s function as an independent fact-finder.” Tulloss v.
Near N. Montessori Sch., Inc., 776 F.2d 150, 154 (7th Cir.
1985).
Nor does Ponce point to anything in the record to suggest
that the district court abused its discretion in excluding the
PAB’s conclusion. Quite to the contrary, the district court
determined that the administrative recommendation and its
analysis were “extraordinarily weak.” Pretrial Tr. at 6. The
district court therefore determined that the recommendation
was “inadmissible as unduly prejudicial per Federal Rule of
Evidence 403.” Minute Order, Ponce v. Billington, No. 08-
1028 (Sept. 24, 2010). This seems right to us.
IV.
For the foregoing reasons, we affirm the jury verdict in
favor of the Library.
So ordered.

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