Franklin-Mason v. Johnson

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

Memorandum in opposition to re {{69}} MOTION in Limine filed by ROXANN J. FRANKLIN-MASON.

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ROXANN J. FRANKLIN MASON,)) Plaintiff,)) v.) Case No. 1:03-cv-0945-RWR) RAY MABUS,) Secretary, Department of the Navy,)) Defendant.) _________________________________________) Plaintiff's Opposition to Defendant's Motion in Limine Comes Now the Plaintiff, by and through counsel, and files this opposition to Defendant's Motion in Limine, and in support thereof states as follows. The Agency has filed a motion in limine requesting that the court seat a jury of twelve because it is permitted to do so, and requesting that the court exclude certain evidence related to the settlement agreement. The motion in limine should be denied for a number of reasons. Concerning the number of jurors, Plaintiff objects to a jury of twelve and requests a jury of six. First, the court is not required to seat a jury of twelve. Further, this is a straightforward Title VII retaliation case, and there is nothing unusual about this case that would warrant seating more than the six to eight jurors, which are routinely seated in employment discrimination cases in the District of Columbia. Moreover, seating a jury of twelve will unnecessarily consume court resources in the jury selection process, and likely cause additional delays in increasing the likelihood of trial delay, if any juror is delayed in arriving at court or after a break on any day. Finally, since there is no requirement for a jury of twelve, Defendant's request appears to have 1 been made simply to increase the probability of adding confusion to the jury deliberations and to decrease the possibility of getting a unanimous verdict. This request should be denied. The Defendant also requests that the jury be instructed that the issue whether the Defendant breached the settlement agreement is not before them and is being litigated in another case, and that Plaintiff should be directed not to argue to the jury about the aspects of the alleged breach of the settlement agreement that are unrelated to Plaintiff's actual work at the Naval Fleet Auxiliary Force, such as whether the Agency calculated properly Plaintiff TSP contribution. In this complaint, the Plaintiff alleged that " . . . the Navy subjected her to adverse and disparate treatment and a hostile work environment in retaliation for her opposing the Navy's unlawful employment practices. Specifically, she asserted that ". . . the Navy refused to approve a request routinely granted to other employees to restore use-or-lose annual leave, moved her from an office with a window and office furniture to a significantly smaller windowless cubicle in an area segregated by race, made it harder for her than other employees to use family medical leave time to care for sick family members, denied her requests for developmental training routinely approved for other employees, refused to give her performance appraisals or evaluations which are essential for advancement, threatened to punish her if she did not perform work that she was instructed to do, and did not give her job duties or responsibilities commensurate with the position promised to her in the settlement agreement." Dkt. 52 at 2-3. Defendant's request for a limiting jury instruction is not proper in a motion in limine. Plaintiff specifically objects to the court giving an instruction to the jury that Plaintiff has other litigation pending. Such an instruction would be highly prejudicial to the Plaintiff and would give the jury the impression that Plaintiff is a serial litigant. Further, Plaintiff's prior settlement agreement will be seen and considered by the jury. Unlike the breach action, where Plaintiff 2 would need to prove that the Agency agreed to certain terms, and failed to abide by those terms, in this retaliation action, Plaintiff will need to prove, among other things, that she engaged in protected activity and the agency did not give her job duties or responsibilities commensurate with the position promised to her in the settlement agreement, and there is a nexus between her protected activity and the Agency's action. There would be no need for Plaintiff to present evidence that the Agency did not calculate properly the TSP contribution, unless that Agency attempts to argue that it complied with all terms of the settlement agreement. There is no basis for the Agency's motion in limine, and it should be denied. Respectfully submitted, /s/ David A. Branch David A. Branch, No. 438764 Law Office of David A. Branch & Associates, PLLC 1901 Pennsylvania Avenue NW Suite 802 Washington, DC 20006 (202) 785-2805 phone (202) 785-0289 fax dablaw@erols.com 3 Certificate of Service I hereby certify that on this 4th day of May, 2012, I caused a copy of the foregoing to be served electronically on counsel for Defendant listed below. Fred Elmore Haynes U.S. ATTORNEY'S OFFICE 555 4th Street, NW Room E - 4110 Washington, DC 20530 (202) 514-7201 Fax: (202) 514-8780 Email: fred.haynes@usdoj.gov /s/ David A. Branch David A. Branch 4