Cross v. Small ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
MICHAEL CROSS, )
)
Plaintiff, )
)
v. ) Civil Action No. 04-1253 (RMC)
)
G. WAYNE CLOUGH, Secretary, )
Smithsonian Institution, )
)
Defendant. )
)
MEMORANDUM OPINION
Michael Cross sues the Secretary of the Smithsonian Institution for allegedly
terminating his employment due to Mr. Cross’s protected activity under Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. § 2000e. Mr. Cross earlier prevailed before the Merit Systems
Protection Board on a claim that he was fired because of protected whistleblowing activities. See
Def.’s Notice of Supp. Authority [Dkt. # 116], Ex. 2 (Cross v. Smithsonian Institution, Dkt. No. DC-
1221-06-0039 (MSPB May 9, 2007)). The Smithsonian has filed a motion for summary judgment
on the theory that Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009), precludes “mixed
motive” retaliation claims under Title VII and that, having proved his discharge was because of
whistleblowing, Mr. Cross cannot also claim it was because of Title VII protected activity.
Two wrongs do not make a right and a single action can, indeed, violate two separate
statutes. A “mixed motive” situation is one in which an employer counters a claim of unlawful
discrimination with a lawful nondiscriminatory reason for its adverse action. See Price Waterhouse
v. Hopkins, 490 U.S. 228, 241 (1989) (explaining that, in the context of that case, the anti-
discrimination provisions of Title VII applied to “those [employer] decisions based on a mixture of
legitimate and illegitimate considerations”). Gross held that an employee claiming age
discrimination must demonstrate that “but for” the unlawful discrimination, no adverse action would
have occurred. See Gross, 129 S. Ct. at 2352.
Mr. Cross is not alleging a “mixed motive” here. He claims that the Smithsonian had
two unlawful reasons for his termination: 1) his whistleblowing and 2) his Title VII protected
activity. Each is separately actionable. The Smithsonian’s motion for summary judgment [Dkt.
# 118] will be denied.
Mr. Cross has also filed a motion for summary judgment in a renewed attempt to
prevent the Smithsonian from introducing after-acquired evidence. See Dkt. # 120. The Court found
that there were material facts in dispute with respect to this issue in a July 17, 2009 Order denying
each party’s prior motion for summary judgment. See Order [Dkt. # 106]. There have been no
changes of fact in the interim, therefore, Mr. Cross’s motion will be denied. A memorializing order
accompanies this memorandum opinion.
Date: March 11, 2010 /s/
ROSEMARY M. COLLYER
United States District Judge
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