Franklin-Mason v. Johnson

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

Memorandum in opposition to re {{95}} MOTION in Limine filed by ROXANN J. FRANKLIN-MASON.

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8 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ROXANN J. FRANKLIN MASON)) Plaintiff,)) v.) Civil Action No. 03-945 (JEB))) RAY MARBUS)) Defendant.) _______________________________________) PROCEDURAL HISTORY On November 9, 2001, Ms. Franklin-Mason filed the last of four motions to enforce the Court's Order defendant agreed to abide by and for sanctions and equitable relief. Fifteen years later, adjudication on defendant's violation of the District Court's Order remains outstanding. This action against defendant under Title VII of the United States Civil Rights Act for acts of discrimination, hostile work environment, retaliation and constructive termination arises out of defendant's violation of the Court Order it voluntarily entered into and in retaliation for Ms. Franklin-Mason's efforts to enforce that Order. On October 31, 1996, Ms. Franklin-Mason filed her original suit against defendant. Ms. Franklin-Mason submitted that the Navy violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e, when the Military Sealift Command of the Department of the Navy failed to promote her to a position to which she was qualified; created a hostile working environment; took acts of reprisal against her; and constructively discharged her from her employment. The case was assigned to the Honorable Emmet G. Sullivan and on April 7, 1999, the parties filed a Stipulation of Settlement and Order. 1 8 By the Stipulation Agreement and Order, the Navy agreed to reinstate Ms. Franklin- Mason's employment with MSC, recognize her 23 years of seniority status and appoint her as a "Senior Financial Analyst/Advisor to the Financial Manager of the Naval Auxiliary Force Program (PM1)" at a grade level 13, step 10. The Order also required the Navy to deduct the appropriate amounts for contribution to Ms. Franklin-Mason's thrift savings account and reinstatement of her CSRS Retirement Fund. The Navy was further ordered to "make a thrift savings account available to Ms. Franklin-Mason. Ms. Franklin-Mason was also entitled to have an annual 5% deduction calculated for the time period from January 1990 through April 11, 1999. The Navy additionally agreed to provide Mrs. Franklin Mason with appropriate orientation, training and educational benefits. The Order further stipulated that Ms. Franklin-Mason would "not be required to work directly for or be supervised by William Savitsky, Robert Hofman, or Donald Petska in the normal course of her duties. The Navy also agreed "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." Further, the Navy promised that Mrs. Franklin Mason's resignation of employment would be rescinded, and within 60 days from the date of the Court's approval of the Stipulation of Settlement, the Navy was required to "expunge from its records, and more specifically from Plaintiff's record(s), any information and/or reference to the notice of proposed removal issued to Plaintiff, all medical records associated with the proposed removal, as well as the AWOL status and LWOP status for the time period of February 28, 1988 to June 6, 1988." The Stipulation of Settlement and Order further stated that it "contains the entire agreement between the parties and supersedes any and all previous agreements, whether written 2 8 or oral, between the parties relating to this subject matter." It further provided that it could "not be modified or waived unless such modification or waiver is reduced to writing and signed by each of the parties." The Order then stated that "execution of this stipulation shall constitute a dismissal of this action with prejudice, effective upon approval by the Court, pursuant to Federal Rules of Civil Procedure 41(a)(i)(ii)(sic)." Finally, the agreement stated, "Should any party breach terms of this Stipulation of Settlement, the other party shall have the right to seek enforced of the Stipulation with the Court including, but not limited to, monetary damages." On or about April 15, 1999, Judge Sullivan approved and entered the Order. On December 10, 1999, Ms. Franklin-Mason filed an emergency motion to enforce the terms of the Stipulation of Settlement and Order. On May 12, 2000, Judge Sullivan denied without prejudice Ms. Franklin-Mason's motion to enforce the terms of the Stipulation of Settlement and Order after ordering the parties to meet and confer in an attempt to resolve the issues of settlement implementation. On May 21, 2001, Ms. Franklin-Mason filed another motion to enforce the Stipulation of Settlement and Order. On October 24, 2001, Judge Sullivan denied Ms. Franklin-Mason's motion to enforce the Stipulation of Settlement and Order but granted her leave to file a supplemental motion to enforce the Stipulation of Settlement and Order. On November 9, 2001, Ms. Franklin-Mason filed her supplemental motion to enforce and for sanctions. By that motion, Ms. Franklin-Mason asserted that the Navy had breached the following provisions of the Agreement: ¶2. Defendant agrees to reinstate Plaintiffs employment with the Military Sealift Command ("MSC"). Plaintiffs 23 years of seniority status is and will be recognized. Plaintiff shall be appointed as a Senior Financial Analyst/Advisor to the Financial Manager of the Naval Fleet Auxiliary Force (NFAF) Program (PM1) of the MSC. The position shall be graded a Level 13, Step 10. Plaintiff shall report for duty on April 12, 1999; ¶6. Defendant shall make a thrift savings account available to Plaintiff. Plaintiff 3 8 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 shall be deducted from the back pay award of Plaintiff's settlement proceeds; ¶9. Defendant agrees to provide Plaintiff with orientation and other related activities to assist her in carrying out the duties and responsibilities of the position. Plaintiff is eligible to receive and should be considered for any and all educational benefits afforded to personnel employed at her grade/level; and ¶10. Defendant agrees that Plaintiff shall not be required to work directly for or be supervised by William Savitsky, Robert Hofman, or Donald Petska in the normal course of her duties. The Defendant 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. R. 74. Pursuant to the trial court's retained authority to enforce its order, Ms. Franklin-Mason requested that the Navy: [G]ive Plaintiff in the full and complete sense the position of Senior Financial Analyst/Advisor with the specified responsibilities and duties outlined by the Agency in its January 27, 1999 memorandum. Moreover, Plaintiff is to be given a full, complete and professional orientation to explain the workings and expectations associated with this position, which shall include performance of business management functions. As well, all managers in her chain of command shall receive a full and detailed briefing from the Agency and its attorneys regarding the terms and conditions of this Agreement and this court's expectation that the Agreement shall be implemented immediately and without any retaliation or negative professional or workplace repercussions. If Defendant is incapable for any reason of achieving this, then the Defendant shall propose to this court a reassignment of Plaintiff to a position similar in nature, where she can be assured of a fair and impartial (non-hostile) assumption of work related duties and responsibilities, and pursuant to which all other provisions of the Agreement will be preserved; The Agency should reconcile all issues related to Plaintiff's TSP and retirement accounts consistent with the April 9, 1999 Agreement and the concerns referenced here. To wit, the Agency should provide to Plaintiff a full status report regarding these funds; Further, the Agency shall take all steps to ensure that education and training decisions regarding Plaintiff are made in a fair and impartial manner and that she be given the treatment caused by Defendant 's actions, and further Defendant shall compensate Plaintiff for the pain and suffering that she experienced as a result of Defendant's non-implementation of the Agreement; 4 8 Plaintiff has been required to retain legal counsel at her own expense. Should she prevail in this manner, the court should require the Government to pay all legal fees and costs; and Lastly, the court should require the Government to submit a quarterly status report regarding its compliance with this court's order for a 48 month period. By March 2002, Ms. Franklin-Mason began to experience a recurrence of the medical condition that required her to take leave in 1988 because of the on-going job related stress, and took another extended medical leave. When Ms. Franklin-Mason returned to work after her sick leave absence in November 2002, Capt. Penix had left the agency and was replaced by Capt. Herb. According to Herb, he did not believe he could assign financial work to Ms. Franklin- Mason because it would require her to interact with the Comptroller's office and "came up with" some non-financial work for Ms. Franklin-Mason to do as a concession. Herb later reversed his position and curiously decided that Ms. Franklin Mason should do work that was financial in nature. Ms. Franklin-Mason and her counsel vigorously protested that the assignments required the "substantial interaction" with the Comptroller's Office she had sought to avoid and, accordingly, violated the parties' settlement. By July 8, 2002, Judge Sullivan had recused himself from Ms. Franklin-Mason's case, and the Honorable Judge Richard Roberts was reassigned the matter. On January 30, 2003, Judge Roberts referred Franklin Mason's November 9th motion to Magistrate Judge John M. Facciola for Report and Recommendation. On April 28, 2003, Ms. Franklin-Mason filed the instant action. By her complaint, Ms. Franklin-Mason requested injunctive relief and damages for disparate treatment, hostile work environment and retaliation under Title VII. R. 1. Ms. Franklin-Mason's complaint averred that: ¶ 10. Despite these motions to enforce the Agreement, Defendant continues to 5 8 be in breach and refuses to comply with the terms of the Agreement. In fact, instead of assigning Ms. Franklin-Mason to the office promised in the Agreement, Defendant has transferred all financial positions, including Ms. Franklin-Mason's unit, to the Office of the Comptroller, the department that discriminated against her and gave rise to her earlier discrimination complaints. ¶11. Some of the other terms the Agency has repudiated include failure to give Ms. Franklin-Mason work commensurate with the position of a Senior Financial Analyst/Advisor, failure to contribute to a thrifts savings account, failure to remove negative information from Ms. Franklin-Mason's personnel file, and failure to separate her assignments from the work of the Office of the Comptroller. ¶ 18, 19. ¶ 13. Ms. Franklin-Mason filed, for a third time, yet another motion to enforce the settlement agreement, and for sanctions, on or about November 9, 2001 in Case No. 96-CV-2505. Since filing her third motion to enforce the settlement agreement in November 2001, Defendant has continued to discriminate and retaliate against Ms. Franklin-Mason by harassing her about leave, denying her training assigning her back to the Office of the Comptroller, the office found by the EEO AJL to have discriminated against her, and failing to provide her with annual performance evaluations and cash awards. R. 1; ¶12; 16, 20, 21. By her complaint, Ms. Franklin-Mason also demanded reinstatement and back-pay and lost benefits, promotion to a GM 14 position, compensatory damages for pain and suffering, and equitable relief. On October 15, 2003, Herb advised Ms. Franklin-Mason that the work assignments did not violate the Settlement Agreement and continued refusal to perform the assignments would result in disciplinary action. In response, Ms. Franklin-Mason filed a preliminary injunction. From the date of her return until her constructive termination from the Navy, Ms. Franklin- Mason literally did nothing. By June 2004, none of the issues relating to Ms. Franklin-Mason's motion had been resolved, and Ms. Franklin-Mason was constructively discharged from the Navy that month for the second time. Evidentiary hearings on Ms. Franklin-Mason's motion were held on February 2, 3, 4 and 6 8 April 8, 2005 before Magistrate Facciola. Ms. Franklin-Mason argued that remedies for the violation of the court order should lie in tort, Title VII remedies and the court's power to sanction the Navy for violation of its order. On March 21, 2006, the Magistrate Judge filed a Report and Recommendation on Ms. Franklin-Mason's motion to enforce the Court's Order. Addressing the merits of Ms. Franklin-Mason's motion, Magistrate Judge Facciola found that the Navy had "substantially breached" the Consent Decree from the time of Ms. Franklin-Mason's reinstatement to Penix's departure. Specifically, the magistrate found that Ms. Franklin-Mason's: [I]nability to secure assignments that were consistent with the position description was a result of MSC's failure to create the GS-15 Financial Manager position that I have found the parties anticipated would come into creation when [Franklin Mason] returned to work. That failure not only affected what plaintiff was asked to do but the circumstances under which she did it, including whom she reported to [and] the nature of her supervision. Three years after Magistrate Judge Facciola issued his Report and Recommendation, on May 22, 2009, Judge Roberts ordered Ms. Franklin-Mason's case transferred to the United States Court of Federal Claims. On July 23, 2010, Judge Braden transferred Ms. Franklin-Mason's matter back to the United States District Court for the District of Columbia. On January 27, 2012, Judge Roberts issued a Final Order, denying Franklin Mason's motion to enforce the Stipulation of Settlement and Order on the basis that that the Tucker Act conferred exclusive jurisdiction to the United States Court of Federal Claims. Franklin-Mason v. Penn, 616 F.Supp.2d 97 (D.D.C. 2009). On February 14, 2014, the United States Court of Appeals for the District of Columbia Circuit affirmed Judge Roberts' ruling and Ms. Franklin-Mason's motion to enforce her settlement agreement and the Court's Order was transferred to the Court of Federal Claims. On March 9, 2015, Ms. Franklin-Mason filed an amended complaint in the Court of Federal Claims alleging breach of contract, breach of the duty of good faith and fair dealing and 7 8 fraud in the inducement. On March 30, 2016, the Court of Federal Claims denied Ms. Franklin-Mason's motion for summary judgment and granted defendant's cross-motion. In its ruling, the Court of Federal Claims agreed with Ms. Franklin-Mason that defendant failed to appoint a "Financial Manager" as contemplated in the settlement agreement but ruled that that derivation did not constitute a "material breach" of the settlement agreement. The Court of Federal Claims made no specific ruling or findings on other averments, including whether the failure by defendant to provide Ms. Franklin-Mason with duties anticipated was a material breach as conceded by defendant. The Order by the Court of Federal Claims relating to whether defendant's conduct was a material breach of its contract with Ms. Franklin-Mason is pending appeal. The merits of Ms. Franklin-Mason's request for sanctions and equitable relief under the Court Order remains, to this day, utterly unresolved. ARGUMENT 1 I. Ms. Franklin-Mason Is Not Collaterally Estopped From Pursing Her Discrimination Claims Arising From Defendant's Failures To Abide By The Court's Order And Her Efforts For Enforcement. It cannot now be disputed that for 20 years, Roxann Franklin Mason navigated a white male patriarchy at the United States Navy that repeatedly thwarted her ambition and callously punished her efforts for redress by maliciously orchestrating her termination and shipping her off to professional purgatory. By her motion to enforce the court's Stipulation Order, Ms. Franklin- Mason proffered substantial evidence that the Navy settled her case by, well, thwarting her ambition and shipping her off to professional purgatory. Despite having voluntarily entered into 1 Although defendant cites the Joint Pretrial Statement filed four years ago by the parties' as the basis for what it believes are Ms. Franklin-Mason's trial claims, the Court has granted the parties an opportunity to amend and/or supplement the 2012 pretrial statement. 8 8 a consent order that imposed on it good faith efforts to provide Ms. Franklin-Mason with meaningful redress, the Navy has not been made to pay for its protracted recalcitrance by the court. Partly this has been the product of the passage of time in which her efforts to enforce compliance with the order out lasted Ms. Franklin-Mason's reasonable ability to withstand the Navy's continuing discriminatory treatment. Now, over sixteen years after Ms. Franklin-Mason's first enforcement motion was filed, and ten years after the Magistrate's Report and Recommendation was entered finding that it had materially breached the agreement, defendant now insists that Ms. Franklin-Mason should be estopped from presenting evidence that is the gravamen of her Title VII case. Defendant's efforts are devoid of merit. In Kokkonen v. Guardian Life Insurance Co., the Supreme Court held that federal district courts retain ancillary jurisdiction over the breach of a settlement agreement where "the parties' obligation to comply with the terms of the settlement agreement [was] made apart of the order of dismissal." 511 U.S. 375, 379-380 (1994). By Kokkonen, the Supreme Court underscored the district court's inherent power to protect its proceedings, vindicate its authority and effectuate its decrees. Id. Indeed, "even after final judgment a district court retains ongoing jurisdiction to consider violations of its orders and judgments." See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 396 (1990). Under the Tucker Act, however: The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. 28 U.S.C. §1491(a)(1). Specifically, the Tucker Act permits three kinds of claims against the 9 8 government: (1) contractual claims, (2) noncontractual claims where the plaintiff seeks the return of money paid to the government and (3) noncontractual claims where the plaintiff asserts that he is entitled to payment by the government. Id. Jurisdiction over Tucker Act claims is exclusively vested in the United States Court of Federal Claims for claims in excess of $10,000, while another statutory grant of jurisdiction—the so-called "Little Tucker Act"—allows the court to entertain similar suits against the United States for claims of less than $10,000 concurrently with the federal district courts. 28 U.S.C. §1346. Here, Ms. Franklin Mason and the Navy entered into a consent decree approved and "fiated" by Judge Sullivan. The order expressly retained jurisdiction for purposes of enforcement, including the potential imposition of monetary damages. See Buckhannon Board & Care Home v. West Virginia Dep't of Health and Human Services, 532 U.S. 598 (2001); Smyth v. Rivero, 282 F.3d 268 (4th Cir. 2002). The magistrate indeed proffered that the parties could not have been more explicit that they desired and expected that the agreement would be "reflected in, and be enforceable as, a judicial decree that is subject to the rules generally applicable to other judgments and decrees." Rufo v. Inmates of the Suffolk County Jail, 502 U.S. 367, 378 (1992); Beckett v. Air Line Pilots Ass'n, 995 F.2d 280, 286 (D.C. Cir. 1993). Simply put, it was clearly the parties' intent that the District Court retain jurisdiction and its ancillary powers to enforce its own order against the Navy and neither the Tucker Act nor the determination by the Court of Federal Claims obviates the District Court's inherent power to enforce its decree. 2 Moreover, Ms. Franklin-Mason's original motions did not even request 2 Two unpublished opinions of the Federal Circuit have held that the Court of Federal Claims does not possess jurisdiction to enforce consent decrees against the federal government. Mynard v. Office of Personnel Mgmt., 2009 WL 3320583 at *5 (Fed. Cir. 2009); Blodgett v. United States, 101 F.3d 713 (Fed. Cir. 1993). 10 8 damages other than sanctions and attorney fees. Instead, Franklin Mason sought to invoke the court's contempt powers to coerce specific performance of the Navy's non-monetary promises, as well as imposing compliance reporting on the Navy. Years went by and, without the realistic threat that the district court would actually use its coercive powers, the Navy did nothing to fulfill its court order obligations. Put simply, even now, there has been no change in legal context or status that would preclude Ms. Franklin-Mason from seeking enforcement of the Stipulation of Settlement and Order in the District Court. To be sure, collateral estoppel or "issue preclusion," bars successive litigation of "an issue of fact or law" that "is actually litigated and determined by a valid and final judgment." Restatement (Second) of Judgments §27. The exception to this common law principle is when a change in [the] applicable legal context intervenes. Id. Collateral estoppel precludes a party from rearguing a particular issue in an ongoing litigation when: 1) the same issue now being raised must have been contested by the parties and submitted for judicial determination in the prior case; 2) the issues must have been actually and necessarily determine by a court of competent jurisdiction in that prior case; 3) preclusion in the second case must not work a basic unfairness to the party bound by the first determination. McLaughlin v. Bradlee, 803 F.2d 1197, 2101 (D.C. Cir. 1986). Issues preclusion prejudices the party bound when the losing party lacked any incentive to litigate the point in the first proceeding, but the stakes in the second trial are of a vastly greater magnitude. Othersons v. Department of Justice, 439 U.S. 322, 330 (1979); see also Blonder-Tongue Labs., Inc. v. University of Ill. Found., 402 U.S. (1971)(fairness is implicate whenever there is a risk that "prior proceedings were seriously defective"). Finally, collateral estoppel is generally inappropriate when the issues are one of law and there has been a change in the legal context after the first decision." Pharm. Care Mgmt. Ass'n. v. District of Columbia, 522 11 8 F.3d 443, 447 (D.C. Cir. 2008). As an initial matter, defendant has waived its right to assert this affirmative defense by failing to assert it in its responsive pleading. Rule 8(c) of the Federal Rules of Civil Procedure states: "In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including ... estoppel, ... res judicata, ..." A failure to plead an affirmative defense as required by this rule results in the forced waiver of that defense and its exclusion from the case. Rotec Industries, Inc. v. Mitsibushi Corp., 348 F.3d 1116, 1119 (9th Cir. 2003). Defendant did not seek to preserve the affirmative defense of collateral estoppel or res judicata in its Answer to Ms. Franklin-Mason's complaint although she was actively litigating her enforcement action at the time. Nor did defendant seek summary judgment on issue of whether Ms. Franklin-Mason was given job duties or responsibilities that were commensurate with her position as "senior financial analyst/advisor" or on the issue of collateral estoppel. R. 26 p. 3. See Smith v. Sushka, 117 F.3d 965,969 (6th Cir.1997). Accordingly, defendant should be precluded from asserting this affirmative defense particularly since it has concede that Ms. Franklin-Mason was not given duties commensurate with the agreed upon position. Moreover, defendant has proffered only the most conclusory argument that the issues presented in the Court of Federal Claims were "identical" to the issues raised in this Title VII matter. Here, of course, Ms. Franklin-Mason has raised legal issues arising under the Civil Rights Act, including disparate treatment, hostile work environment, constructive discharge, and unlawful retaliation. By contrast, the issues raised in the Court of Federal Claims were limited to whether defendant had materially breached its agreement with Ms. Franklin-Mason. Of course, the Court of Federal Claims was not a court of competent jurisdiction to adjudicate any of Ms. Franklin-Mason's claims under Title VII. Nor could the Court of Federal Claims, in the event it 12 8 found a material breach, as the magistrate had, order equitable relief, specific performance, reinstatement, prospective promotion, back-pay, front pay, or compensatory damages for pain and suffering and the violation of Ms. Franklin-Mason's civil rights. Rather, Ms. Franklin-Mason must establish that she was subjected to adverse employment actions and disparate treatment sufficiently severe and in retaliation for her engagement in protected activity. See e.g., Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006). Ms. Franklin-Mason can establish her burden of proof without a showing that defendant's conduct was a "material breach" of the settlement agreement under ordinary principles of contract construction. Thomas v. Dep't. of Housing and Urban Development, 124 F.3d 1439, 1442 (Fed. Cir. 1997). This difference in the burden of proof precludes application of the doctrine of collateral estoppel. One Lot Emerald Cut Stones and One Ring v. United States, 409 U.S. 232, 235 (1972); Chisholm v. Defense Logistics Agency, 656 F.2d 42 n.11 (3d Cir. 1981). In short, the ultimate issue decided by the Court of Federal Claims was whether the performance variance by the government was "material." Cast in this light, not only did Ms. Franklin-Mason lack any incentive to litigate her discrimination claims before the Court of Federal Claims, she was precluded from doing so. Ms. Franklin-Mason's civil matter in this case has been trial-ready for five years and, through no fault of her own, has been left to languish. To that end, that Franklin Mason has been substantially prejudiced by not only the delay in adjudicating this trial matter and her motion to enforce cannot be overstated. The stakes of a full and fair litigation of Ms. Franklin-Mason's Title VII claims and the interest of justice requires that relitigation not be foreclosed. Finally, where, as here, the Court of Federal Claims made no factual or legal determinations as to the gravamen of Ms. Franklin-Masons' breach of contract claim relating to 13 8 her duties and responsibilities, the prior proceedings "were seriously defective." Accordingly, defendant's request that Abbey Hairston, Ms. Franklin-Mason's prior counsel, and Gregory Smith and Alex Shoaibi, agency counsel, be precluded from testifying at trial is wishful thinking. Each of these witnesses has been offered as a fact witness to the substance of the Court's Order, Ms. Franklin-Mason's efforts to enforce the Order and defendant's responses thereto. The probative value of these witnesses is manifest. Similarly unavailing is defendant's attempt to preclude Ms. Franklin-Mason's economic expert, Sophia Korczyk or designee. In addition to issue relating to Ms. Franklin-Mason's TSP account, Ms. Korczyk has been offered as an expert as to Ms. Franklin-Mason's economic damages, including lost wages, benefits and front pay. II. Defendant Is Not Entitled To Preclude Ms. Franklin-Mason's Fact Witnesses. In its renewed motion in limine, defendant asks the Court for a pretrial ruling relating to three witnesses: Gregory Broderick, an NFAF employee, Pam Hall, an NFAF employee, and Ron Coates. As an initial matter, Ms. Hall and Mr. Coates have been proffered as pure fact witnesses to the treatment Ms. Franklin-Mason was subjected to by her tormentors. Accordingly, neither witness is a so-called "me too" witness. Gregory Broderick has been proffered as both a fact witness and an individual subjected to discriminatory treatment by defendant. Mr. Broderick, an African-American male was a GS- 13 under Nelson and Penix's supervision during the time of Ms. Franklin-Mason's tenure. Mr. Broderick was denied opportunities for promotion to GS-14 positions to the benefit of white males, including the GS-14 "billet" defendant claims it could not give Ms. Franklin-Mason. Mr. Broderick, further, was subjected to the same contemporaneous segregated office arrangement as Ms. Franklin-Mason by the same managing officials. Accordingly, Mr. Broderick will offer 14 8 probative testimony highly relevant to Ms. Franklin-Mason's claims. III. Defendant Is Not Entitled To Restrict Ms. Franklin-Mason's Evidence Of Pain, Suffering And Emotional Distress. By defendant's renewed motion, it requests that Ms. Franklin-Mason's treating physicians and mental health witnesses be precluded from "relying on plaintiff's alleged treatment by defendant prior to the 1999 settlement" or defendant's alleged breach of the settlement agreement as a cause of her mental distress. Defendant unsurprisingly cites no controlling authority for the proposition that a treating physician and mental health expert are precluded from testifying to background information and causation factors relevant to their diagnosis of Ms. Franklin-Mason. Nor can it. Curiously, defendant has not withdrawn its own medical expert in this matter. Similarly unavailing is defendant's request that Ms. Franklin-Mason essentially be precluded from offering evidence of pain and suffering as a result of her belief that defendant was violating the Court's Order and her efforts to enforce the Order. IV. Defendant Is Not Entitled To A Jury Panel Of Twelve. Defendant, once again by its renewed motion in limine, asserts that "social science" requires that the Court seat twelve jurors for this single plaintiff Title VII trial. As the magistrate judge previously pointed out, defendant's use of a motion in limine for this purpose is wholly misplaced since the empanelling of the jury is a trial procedure rather than an evidentiary issue. Graves v. District of Columbia, 850 F. Supp. 2d 6, 10 (D.D.C. 2001). As defendant concedes, it is well-within the Court's discretion to empanel six jurors, and the "social science studies" relied upon by defendant do not superseded Rule 48 of the Federal Rules of Civil Procedure. Most important, this is not a criminal trial where the Sixth and Fourteenth Amendments' constitutional right to a trial by jury are implicated. The post-Williams scholastic critiques of the Supreme Court's holding that a six-member jury did not violate a criminal defendant's constitutional rights 15 8 under the Sixth Amendment have focused primarily on the composition of criminal juries. Williams v. Florida, 399 U.S. 78 (1970). As defendant concedes, nonetheless, neither Williams nor Colgrove v. Battin [413 U.S. 149 (1973)] have been overruled. Once again, this matter is a straightforward single plaintiff Title VII matter and six to eight jurors which are routinely seated in employment discrimination cases in the District of Columbia. Seating twelve jurors will unnecessarily consume court resources and incur potential delays in the seating of twice as many jurors. Put simply, defendant's transparent attempt to decrease the probabilities of a unanimous verdict must be rejected. V. There Exist No Probative Value In A Jury Visit To An Office Ms. Franklin-Mason Left Thirteen Years Ago. Thirteen years have elapsed since Ms. Franklin-Mason left government service and her offices at the Washington Navy Yard. Indeed, it is Ms. Franklin-Mason's understanding that many of the core functions of her former office have been relocated to Norfolk, Virginia. In short, defendant cannot possibly establish the probative value in a jury site visit of an office over a decade after the fact. Nor does it even try, and its frivolous request must be rejected. VI. Ms. Franklin-Mason Sufficiently Pled A Title VII Claim Under The Theory Of Hostile Work Environment. On at least four paragraphs in her Complaint, Ms. Franklin-Mason alleged that defendant had "harass[ed] her about her leave [R. 1, ¶12]" and that the "harassment included nearly daily emails and discussions. . . interrogating her about the need for leave and other unnecessary intrusions upon her privacy." R. 1, ¶16. Ms. Franklin -Mason further alleged that "as a result of this harassment, intimidation. . . Defendant caused Ms. Franklin-Mason significant emotional distress." R. 1 ¶ 20. Plaintiff further averred that she had been diagnosed with depression and anxiety by the discrimination in her work-place environment. Id. 16 8 Defendant contends that because Ms. Franklin-Mason did not set out a separate "Count" for alleging "Hostile Work Environment" in her complaint, that she did not so plead. Defendant is wrong. Ms. Franklin-Mason put defendant on sufficient notice that she was seeking recovery under the theory of hostile work environment and she was not required to plead this theory of recovery in a separate count. Defendant has more than thirteen years in which to clarify, if it needed any, the basis of Ms. Franklin-Mason's claims, and its twelfth-hour effort to dismiss a claim it long knew Ms. Franklin Mason was pursing is devoid of merit. WHEREFORE, Plaintiff Roxann Franklin-Mason respectfully requests that defendant's Motion in Limine be denied. 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: July 12, 2016 CERTIFICATE OF SERVICE I hereby certify that on this 12th day of July 2016, I caused to be sent via ECF Plaintiff's Opposition to Defendant's Motion in Limine, to: Fred E. Haynes, Esq. Assistant District Attorney 555 Fourth Street, N.W. Washington, D.C. 20530 /s/ Lisa Alexis Jones Lisa Alexis Jones, Esq. 17 8 18