Franklin-Mason v. Johnson

District of Columbia, dcd-1:2003-cv-00945

Emergency MOTION Clarification of the Pretrial Order by B.J. PENN

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0 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA) ROXANN J. FRANKLIN-MASON,)) Plaintiff,)) v.) Civil Action No. 03-945) RAY MABUS,) Secretary of the Navy,)) Defendant.) ___________________________________) DEFENDANT'S EMERGENCY MOTION FOR CLARIFICATION OF THE PRETRIAL ORDER AND SUPPORTING MEMORANDUM Pursuant to Rule 7(b)(1) of the Federal Rules of Civil Procedure, defendant, Ray Mabus, Secretary for the Navy, requests clarification of the Court's Order of August 24, 2016. Because it was defendant's understanding that certain issues were decided at the pretrial conference but not memorialized in the Order and because there were other issues raised in the parties' joint pretrial statement, ECF No. 108, which were not addressed during the pretrial conference, defendant moves for clarification of the Court's Order. (Defendant is ordering a transcript of that hearing but will not receive it for another day or two.) Because the trial of this case starts on September 7, 2016, defendant requests that this motion be heard on an expedited basis. Undersigned counsel forwarded a copy of this motion to plaintiff's counsel last evening, and she advised that she opposes this motion. First, the Court ordered that "Plaintiff may not introduce evidence regarding her alleged post-2003 constructive termination." At the pretrial hearing, it was defendant's understanding that plaintiff may be precluded from introducing evidence of any allegedly retaliatory conduct that occurred after the filing of her complaint on April 28, 2003. Defendant seeks clarification as 0 to whether plaintiff is precluded from introducing evidence of any allegedly retaliatory conduct that occurred after the filing of her complaint on April 28, 2003. Second, plaintiff listed Greg Brodrick on her witness list and described his testimony as follows: Mr. Brodrick is an African American male and former co-worker of Plaintiff. He is expected to testify that African American employees in Plaintiff's office were subjected to a segregated work area, hostile work environment, disparate treatment and retaliation and denial of promotional opportunities. Mr. Brodrick will testify about his observations of the Agency's treatment of Plaintiff. Joint Pretrial Statement, ECF No. 108, at 15. Mr. Brodrick was not selected for a GS-14 position at the Naval Fleet Auxiliary Force, but a non-selection does not cast any light on whether defendant would retaliate against an employee who exercised his or her rights under the laws barring employment discrimination. At the pretrial conference, it was defendant's understanding that Mr. Brodrick's testimony would be limited to his observations of the Navy's treatment of plaintiff and that he (nor any other witness) would be permitted to testify regarding discrimin- ation, hostile work environment, or disparate treatment, as those issues are irrelevant to the issue of retaliation. Because the pretrial order does not address Mr. Brodrick's testimony, defendant seeks clarification as to the limits of his testimony. Third, in her statement of claims in the joint pretrial statement, plaintiff states that "Defendant disregarded Mrs. Franklin Mason's TSP allocation designation." Joint Pretrial Statement, ECF No. 108, at 6. In the related breach of settlement agreement case before the United States Court of Federal Claims, Ms. Franklin Mason likewise alleged that the Navy did not fund the Thrift Savings Plan (TSP) fund of her choice. See Am. Compl., Franklin Mason v. United States, No. 09-640, ECF No. 23, ¶ 73. Defendant raised the issue that the claim was barred by collateral estoppel in the Joint Pretrial Statement, but the issue was not addressed at the pretrial conference. 2 0 Pursuant to the settlement agreement, the Navy was required to establish a TSP account for Ms. Franklin Mason and fund it retroactively for the period that she was separated from Federal service in the 1990's. 1 In the Court of Federal Claims, the Government moved for summary judgment on this claim, establishing that the Navy created a thrift savings account for plaintiff, deposited $36,000 into that account, and credited $15,395.01 to her account, which represented the amount that the $36,000 would have earned had it been invested in the G Fund for the period she was separated from Federal service. 2 Because plaintiff filled out an election form showing her intent that all future contributions be allocated 10% to the G Fund and 90% to the C Fund, upon her return to service, contributions from plaintiff's paychecks were made as she had elected. Although the settlement agreement contains no language regarding the type of fund into which the $36,000 was deemed to have been invested for the period she was separated from Federal service, plaintiff argued before the Court of Federal Claims that the Navy should have calculated her lost earnings based upon the interest rates earned by the higher-performing C 1 Specifically, the settlement agreement required the Navy to take the following actions regarding Ms. Franklin Mason's TSP account: Defendant shall make a thrift savings account available to Plaintiff. Plaintiff shall be entitled to have an annual 5% deduction calculated for the time period from January 1990 through April 11, 1999. Based on this calculation, $36,000.00 shall be deducted from the back pay award of Plaintiff's settlement proceeds. Plaintiff's annual salary for the covered time period is attached as Exhibit A – "Salary Progression." Settlement Agreement, ¶ 6. 2 Importantly, at the time that the parties entered into the settlement agreement in 1999, a regulation required that for individuals who, like plaintiff, "receive a back pay award or other retroactive pay adjustment for a period during which the participant was separated from Government employment. . . [l]ost earnings will be calculated and credited to the participant's account, in accordance with 5 CFR Part 1606, using the rates of return for the G Fund." 5 C.F.R. § 1605.4(a)(3) (1999) (emphasis added). 3 0 Fund rather than the G Fund and that its failure to do so violated her right to allocate the contribution as she wished. The court granted the Government's motion, stating that "[t]he settlement agreement. . . did not require the Navy to allocate the contributions into any particular Fund." Franklin Mason v. United States, 126 Fed Cl. 149, 159 (2016). Plaintiff is now attempting to relitigate the same issue that the Court of Federal Claims decided—whether the Navy wrongfully allocated the funds she received. Because plaintiff is attempting to relitigate an issue decided by the Court of Federal Claims, defendant requests that the Court bar plaintiff from introducing evidence regarding the TSP claim as that claim is barred by collateral estoppel. See S. Pac. Commc'ns Co. v. Am. Tel. & Tel. Co., 740 F.2d 1011, 1018 (D.C. Cir. 1984) ("[T]he federal rule and the rule in this circuit is that collateral estoppel may be applied to a trial court finding even while the judgment is pending on appeal."). Fourth, in her statement of claims in the joint pretrial statement, plaintiff states that "Defendant forced her to work under the supervisory chain of the responsible managers in her original Title VII case." Joint Pretrial Statement, ECF No. 108, at 6. In the related breach of settlement agreement case before the United States Court of Federal Claims, Ms. Franklin Mason likewise alleged that "her duties and supervision returned to the original discriminating officials, William Savitsky, Robert Hofman, and Donald Petska." See Am. Compl., Franklin Mason v. United States, No. 09-640, ECF No. 23, ¶ 71. Defendant raised the issue that the claim was barred by collateral estoppel in the Joint Pretrial Statement, but the issue was not addressed at the pretrial conference. Additionally, it will be difficult to resolve this issue before the jury without reference to the settlement agreement, which was an integrated contract. That agreement establishes that plaintiff refused to do certain financial-analysis work on the meritless ground 4 0 that it violated the term in the settlement agreement that she not be supervised or work directly for Messrs. Savitsky, Hofman, or Petska. Pursuant to the settlement agreement, plaintiff was precluded from working directly for or being supervised by William Savitsky, Robert Hoffman, or Donald Petska, and no one from the Office of the Comptroller was to be involved with the formal evaluation of plaintiff's work performance or in decisions regarding her employment status. 3 In the Court of Federal Claims, the Government moved for summary judgment on this claim, establishing that plaintiff worked directly for and was supervised by Captain Larry Penix from the time she returned to the Navy in 1999 until Captain Penix left the office in 2002, and then by Captain Michael Herb from 2002 until plaintiff left the Navy in 2004. The Government also established that no one from the Office of the Comptroller had any involvement in her formal evaluation or her employment status, and any limited involvement that she had with employees in that office did not violate the terms of her settlement agreement. The court granted the Government's motion, finding that plaintiff was supervised by Captain Penix and later Captain Herb, and further finding that the settlement agreement did not preclude plaintiff from merely interacting with individuals in the Office of the Comptroller. Franklin Mason, 126 Fed. Cl. at 160. The court further found that "nothing in the record evidenced that Mr. Savitsky, Hoffman, Petska, or anyone else in the Comptroller's Office 3 Specifically, the Settlement Agreement provided that: Plaintiff shall not be required to work directly for or be supervised by William Savitsky, Robert Hoffman, or Donald Petska in the normal course of her duties. The [Navy] further agrees that none of these individuals or any other personnel in the Office of the Comptroller shall be involved in any way with the formal evaluation of Plaintiff's work performance or in decisions made regarding Plaintiff's employment status. Settlement Agreement, ¶ 10. 5 0 participated in evaluating Plaintiff's job performance or decided her employment status." Id. Plaintiff is now attempting to relitigate the same issue that the Court of Federal Claims decided—whether she was supervised by Mr. Savitsky, Mr. Hoffman, or Mr. Petska from the Office of the Comptroller. Because plaintiff is attempting to relitigate an issue decided by the Court of Federal Claims, defendant requests that the Court bar plaintiff from introducing evidence regarding the supervision claim as that claim is barred by collateral estoppel. See S. Pac. Commc'ns Co., 740 F.2d at 1018. Defendant is entitled, however, to establish that plaintiff refused to perform certain financial analysis work because of her erroneous claim that to do so would violate the settlement agreement. Fifth, plaintiff lists Sophie M. Korczyk, Ph.D., "[o]r other designated expert witness" as an expert witness. Plaintiff describes Ms. Korczyk's testimony as follows: Ms. Korczyk is a financial analyst who prepared a report detailing how the Agency improperly calculated Plaintiff's TSP contribution. In addition, should Plaintiff prevail, Plaintiff will request an opportunity to permit Ms. Korczyk to present a calculation of back pay and front pay. Joint Pretrial Statement, ECF No. 108, at 18. In the joint pretrial statement, defendant objected to Ms. Korczyk's testimony on two grounds. First, the only expert report by Ms. Korczyk provided to defendant explained why she believed that the Navy had improperly calculated plaintiff's TSP contribution, one of the aspects of the settlement agreement. As set forth above, this testimony is barred by collateral estoppel. Additionally, she has never submitted an expert report by Ms. Korczyk—or any other expert—relating to backpay and frontpay calculations. Because defendant never received an expert report on backpay and frontpay calculations, and no expert opinions on these issues were disclosed to defendant, defendant requests that this Court bar plaintiff from presenting expert testimony on these issues pursuant to Rule 26(a)(2) of the 6 0 Federal Rules of Civil Procedure. It is, in any event, defendant's position that plaintiff, if she should prevail in this action, will not be entitled to any backpay or frontpay. Also unresolved at the pretrial hearing was the issue of testimony about damages. As plaintiff's counsel previously advised the Court, the gravamen of this retaliation case is the alleged breach of the settlement agreement, about which the Court has excluded testimony. Because the Court of Federal Claims has found that defendant did not breach that agreement, it is defendant's position that individuals testifying about plaintiff's emotional condition should not be allowed to base their testimony on plaintiff's statements to them that defendant breached the settlement agreement. Finally, defendant seeks clarification as to the Court's practice regarding witnesses who are listed on both plaintiff's and defendant's witness list. Both plaintiff and defendant have the following three witnesses on their witness lists: Captain Larry Penix, Captain Michael Herb, and Lucy Austin. In the event that plaintiff calls these witnesses in her case-in-chief, defendant seeks clarification as to whether the Court's practice is to have the witness testify once, such that defense counsel would go beyond the scope of direct examination and present testimony that the witness would have presented in the defense's case-in-chief, or to have the witness be recalled and testify for a second time during the defense's case-in-chief. Attached as an appendix is the settlement agreement in 96cv2505, the decision by the Court of Federal Claims on the breach-of-settlement agreement case, and the amended complaint filed in that case. Also attached is a proposed order reflecting the requested relief. Respectfully submitted, CHANNING D. PHILLIPS, D.C. Bar #415793 United States Attorney 7 0 DANIEL F. VAN HORN, D.C. Bar #924092 Acting Civil Chief /s/ Fred E. Haynes FRED E. HAYNES, D.C. Bar #165654 Assistant United States Attorney 555 Fourth Street, N.W., Room E-4110 Washington, D.C. 20530 202.514.7201 fred.haynes@usdoj.gov Counsel for Defendant 8 0 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA) ROXANN J. FRANKLIN-MASON,)) Plaintiff,)) v.) Civil Action No. 03-945) RAY MABUS,) Secretary of the Navy,)) Defendant.) ___________________________________) ORDER Upon consideration of defendant's emergency motion for clarification of the pretrial order and the record herein, it is this ____ day of __________, 2016, ORDERED That plaintiff may not introduce evidence of retaliatory acts that occurred after she filed the complaint on April 28, 2003; That Greg Brodrick cannot testify about his complaint of discrimination, the existence of a hostile work environment, or other disparate treatment; That evidence concerning the calculation of the amount of plaintiff's Thrift Savings Plan that was established on her return to federal service will not be permitted; That plaintiff cannot testify that she was required to work with individuals in the Office of the Comptroller that she was prohibited from working with under the terms of the settlement agreement; That Sophie M. Korczk, Ph.D., will not testify; That individuals who testify about plaintiff's emotional pain and suffering will be allowed to testify only if it is established through voir dire that they can differentiate in their testimony between plaintiff's emotional pain and suffering based on her belief that defendant had breached the settlement 9 0 agreement and her emotional pain and suffering based on alleged acts of retaliation unrelated to the alleged breach of the settlement agreement; and That witnesses being called by both parties will testify ______________. UNITED STATES DISTRICT JUDGE 10