Franklin-Mason v. Johnson

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

MOTION for Reconsideration re Order, by ROXANN J. FRANKLIN-MASON

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA) ROXANN J. FRANKLIN-MASON)) Plaintiff,)) v.) Civil Action No. 03-0945 JEB) B.J. BENN) Secretary of the Navy,)) Defendant.)) PLAINTIFF'S MOTION FOR RECONSIDERATION OF RULING ON CONSTRUCTIVE DISCHARGE AND RULING ON WITNESSES COMES NOW, plaintiff, Roxann Franklin Mason, by and through her undersigned counsel, and respectfully requests reconsideration of the Court's Order, dated August 24, 2016, relating to its ruling on Ms. Franklin Mason's constructive discharge claim as it is contrary to prevailing case law in this Circuit. See Dashnaw v. Pena, 12 F.3d 1112, 1115 (D.C. Cir. 1994); Clark v. Marsh, 665 F.2d 1168, 1171 n. 4 (D.C. Cir. 1981). Ms. Franklin Mason also requests reconsideration of the Court's ruling on witnesses. 1) Ms. Franklin Mason has advised defendant of the filing of this motion, and defendant objects to the relief requested. 2) In April 2003, Ms. Franklin Mason filed a civil action alleging that defendant, her then current employer, had retaliated against her for engaging in protected activity and that those retaliatory acts were ongoing. Ms. Franklin Mason proffered six nondiscrete events in support of her claim of retaliation. R. 1. 3) On October 15, 2003, Ms. Franklin Mason was threatened with discipline relating to the facts and events alleged in the complaint. See R. 40 Report and Recommendation, at 6. As 1 a result of the threats of discipline, Ms. Franklin Mason filed for a preliminary injunction in Civil Action 96-2505. Id. 4) From that point to June 2004, Ms. Franklin Mason was assigned literally no work to perform and her efforts to get reassigned and transferred were going nowhere. 5) Accordingly, while she was litigating and seeking judicial relief in two different courts, Ms. Franklin Mason determined that her continued employment was undermining her health and her working conditions were intolerable. On or about June 3, 2004, Ms. Franklin Mason tendered her resignation and advised defendant that she was being constructively discharged from her employment. Ex. A, SF 50. 6) On February 2, 2005, an evidentiary hearing before the magistrate judge was held on Ms. Franklin Mason's motion to enforce the settlement agreement in Civil Action 96-2505 prior to the matter being transferred to the Court of Federal Claims. During the hearing, the magistrate judge discussed Ms. Franklin Mason's Title VII damages in this case with agency counsel: Haynes: The damages, Your Honor, would be obviously she could get compensatory damages up to $300,000. She presumably could get back pay, front pay -- THE COURT: Back pay from when to when? MR. HAYNES: Well, if they found that she had -- if they found that we retaliated against her, causing her to be constructively discharged, then she would be entitled to back pay from that moment until the decision by the jury. Ex. B, Excerpts of Evidentiary Hearing, February 3, 2005 at 96. 7) On April 15, 2005, defendant filed a partial motion for summary judgment. By that motion, defendant alleged that five of the events alleged in the complaint should be dismissed as discrete claims that, together, did not constitute a hostile work environment. 2 Defendant also argued that another event, the post-filing threat of discipline, was not actionable under a claim for hostile work environment. R. 26. 8) Defendant did not protest the post-filing threat of discipline claim on the basis that it had not been timely asserted. Id. 10) Despite actual knowledge of Ms. Franklin Mason's intent to assert constructive discharge, defendant did not protest that claim on summary judgment. Id. 11) In opposing defendant's motion, Ms. Franklin Mason stated in her Rule 7(h) Statement of Material Fact that defendant's ongoing actions had led to Ms. Franklin Mason's "constructive discharge." Ex. C, Opposition to Motion for Summary Judgment at ¶33. Ms. Franklin Mason also argued that the "numerous incidents. . . demonstrate a persisted and pervasiveness pattern of retaliatory action" and: as a direct a proximate result of the actions by MSC managers, Ms. Franklin- Mason suffered extreme emotional distress and her health deteriorated. She could no longer bear the intolerable working conditions and her mental state became weakened by the actions of MSC management. In the end, she was forced to take a constructive discharge or retirement because she could no longer work. Id. at 5. 12) In clarifying the precise contours of her case, Ms. Franklin Mason explained that the "overarching theme of the retaliation is the degradation and eventual demoralization of Ms. Franklin-Mason." Id. Ms. Franklin Mason further detailed that "the issues at dispute are not the action which directly breached the agreement, but the related conduct of repeated harassment of Ms. Franklin-Mason when she protested that the Stipulation was being violated." Id at 9. According to Ms. Franklin Mason, further, "in its continuing demoralization of Ms. Franklin- Mason's professional status, the Agency then refused to give her performance appraisals from September 2000 until she was forced to leave Federal service in 2004. Id at 12. Ms. Franklin 3 Mason also averred, "it would have been futile to seek a transfer or apply to other government organizations because she did not have a recent performance evaluation to include with any such transfer request or application." Id. at 13, 17. 13) Finally, Ms. Franklin Mason alleged that post-litigation evidence was admissible and probative to intent and evidence of pretext. Aka v. Washington Hospital Center, 156 F.3d 1284, 1289 (D.C. Cir. 1998(en banc). Id. at 29. 14) In proffering that the nondiscrete events must be taken as a whole to establish retaliation, Ms. Franklin Mason cited in her summary judgment motion [as she did during the pretrial conference] National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) to distinguish between discrete discriminatory acts and nondiscret acts that involve repeated conducted comprising of a series of separate acts that collectively constitute on "unlawful employment practice." National R.R. Passenger Corp. v. Morgan, 536 U.S. at 115-117. 15) Accordingly, Ms. Franklin Mason proffered argument relating to her constructive discharge. Id. at 38. Specifically, citing Russ v. Van Scoyoc Associates, Inc. [122 F. Supp. 2d 29, 35 (D.D.C. 2000)(Establishing that the employee was constructively discharged is one way of establishing an element of a discrimination claim)], Ms. Franklin Mason argued that her constructive termination claim was subsumed as an element of her retaliation claim. Ms. Franklin Mason further adduced facts supporting her claim that that she was subjected to "aggravating circumstances." Ex. C at 37. 16) In short, by her summary judgment opposition, Ms. Franklin Mason put defendant on notice that under Morgan, she was asserting constructive discharge and the events leading up to the termination were nondiscrete events establishing a pattern and continuing violation of retaliation and aggravating circumstances. Id. at 38. 4 17) Moreover, in this Circuit, it is well-settled that a plaintiff can recover on a constructive discharge claim "despite the fact that she failed to allege the claim in either her administrative notice or complaint. Dashnaw v. Pena, 12 F.3d 1112 1115 (D.C. Cir. 1994); Clark v. Marsh, 665 F.2d 1168, 1171 n. 4 (D.C. Cir. 1981). It is equally well-settled that a post- litigation claim for constructive termination does not require administrative exhaustion where it is based on nondescrete acts of retaliation. See National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002); see also Fitzgerald v. Henderson, 251 F.3d 345 (2d Cir. 2001); Nealon v. Stone, 958 F.2d 584 (4th Cir. 1992); Satterwhite v. Smith, 744 F.2d 1380 (9th Cir. 1984). 18) In replying to Ms. Franklin Mason's opposition, defendant proffered not one argument disputing Ms. Franklin Mason's view of her constructive discharge claim. R. 58. 19) In denying defendant's summary judgment motion, the Court determined that Ms. Franklin Mason was asserting a "single indivisible claim" of retaliation, whether or not the individual events constituted discrete employment actions. Accordingly, the Court denied defendant's motion in toto, including the post-litigation event relating to the threats of discipline. The Court made no ruling or determination relating to constructive termination. Nor did defendant ask it to. 20) Defendant has never sought leave to file a motion to dismiss or amend its summary judgment motion to address this issue on the merits. 21) Defendant did not file a motion on the pleadings. 22) Defendant did not, even, file a timely motion in limine on this issue. 23) Accordingly, defendant waived any protest to the issue of constructive termination, and its one-sentence objection sans any argument whatsoever to a substantive issue in its pretrial statement did not cure this waiver. 5 24) Ms. Franklin Mason was denied a full and fair opportunity to present complete argument in opposing the preclusion of her constructive discharge issue. After waiting over twelve years, Ms. Franklin Mason will be substantially prejudiced and justice ill-served by the preclusion of a critical component of her action without the benefit of any briefing. 25) The Court's ruling on summary judgment allows Ms. Franklin Mason to present post-filing evidence relating to facts and events establishing intent and pretext, including defendant's threats of discipline. 26) Defendant has been aware of Ms. Franklin's claims relating to constructive termination since 2004, has never lodged any substantive protest and cannot now possibly establish any prejudice. 27) Ms. Franklin Mason also requests reconsideration of the Court's ruling that Marva Riley could not testify at trial. 28) The Court's ruling was based and accepted defendant's representation that Ms. Franklin Mason had failed to "disclosed" this witness during discovery. Ms. Franklin Mason argued in response that defendant had produced in discovery documents created by Ms. Riley, a human resources employee, relating to Ms. Franklin Mason's transfer requests and that names were identified during depositions. 29) Indeed, during the course of Michael Herb's deposition, Herb testified about Ms. Riley's participation in Ms. Franklin Mason's transfer efforts. See Ex. D. Herb also testified about Riley's role in crafting Ms. Franklin Mason's duties. Id. 30) In short, Marva Riley was a defense witness that defendant was required to disclose. Nothing in Rule 26 or defendant's requests for interrogatories required Ms. Franklin Mason to provide separate written disclosures of defendant's witnesses generally or witnesses 6 identified during the course of depositions or the parties' document production. Nor, of course, is Ms. Franklin Mason precluded from timely naming such witnesses as trial witnesses. Ms. Franklin Mason timely named as a trial witness a government witness that should have been disclosed by defendant in the first instance and subsequently indentified by a government witness during the course of discovery. 31) Defendant, accordingly, cannot possibly claim unfair surprise or prejudice by the inclusion of its own witness, Marva Riley, as a trial witness in this matter. WHEREFORE, Plaintiff Roxann Franklin Mason respectfully requests that it reconsider its determination relating to constructive termination and post-filing events adduced to establish intent and pretext and its ruling on witnesses and for any additional relief deemed just and proper. Respectfully submitted, /s/ Lisa Alexis Jones Lisa Alexis Jones, Esq. One Rockefeller Plaza 10th Floor New York, N.Y. 10020 (646) 756-2967 (888) 755-6778 Facsimile ljones@lisaajones.com Counsel for Plaintiff Dated: August 30, 2016 7 CERTIFICATE OF SERVICE I hereby certify that on this 30th day of August 2016, I caused to be sent via ECF Plaintiff's Motion for Reconsideration, to: Fred E. Haynes, Esq. Courtney Enlow, Esq. Assistant United States Attorneys 555 Fourth Street, N.W. Washington, D.C. 20530 /s/ Lisa Alexis Jones Lisa Alexis Jones, Esq. 8