Fogg v. Gonzales

While I have my reservations about whether this case was in fact tried as a *457“single motive” case,1 I concur in the judgment because the defendant originally moved for judgment as a matter of law and “treated the case as one involving a single motive” and then—presumably too late— “switched] positions and argue[d] on remand the case really involved mixed motives.” Maj. Op. at 454. I write separately on the “same action” issue—which comes up only in a “mixed motives” case and therefore is inapplicable here—to set down how I believe it should be analyzed and applied.

The “same action” showing has…