Franklin-Mason v. Johnson

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

RESPONSE (OBJECTIONS) TO ORDER OF THE COURT re {{87}} Order on Motion in Limine filed by ROXANN J. FRANKLIN-MASON.

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ROXANN J. FRANKLIN MASON)) Plaintiff,)) v.) Civil Action No. 03-945 (RWR/JMF))) RAY MARBUS)) Defendant.) __________________________________________) PLAINTIFF'S OBJECTIONS TO THE MAGISTRATE JUDGES ORDER GRANTING DEFENDANT'S MOTION IN LIMINE COMES NOW, Roxann J. Franklin Mason, by and through her undersigned counsel, and hereby respectfully submits these objections to the magistrate judge's Order granting defendant's Motion In Limine. On April 25, 2012, nine years after Ms. Franklin Mason filed her complaint in this case and three years after this Court denied his motion for summary judgment, defendant filed a motion in limine to preclude an instruction to the jury that the issue of whether defendant breached the settlement agreement is not before them and should not be part of their deliberations." Defendant's Motion In Limine at 6. Defendant also requested that plaintiff be precluded from arguing to the jury "about aspects of the alleged breach of the settlement agreement that are unrelated to plaintiff's actual work at the Naval Fleet Auxiliary Force after her reinstatement, such as whether plaintiff's TSP account was calculated properly." Id. In seeking this relief, defendant cited no controlling authority in support of its motion nor did he articulate any undue prejudice that might arise. By his order granting defendant's motion, the magistrate judge held that Ms. Franklin 1 Mason "must be precluded from asserting that the defendant breached the settlement agreement." Memorandum Order R. 87, p. 3. The magistrate further ordered that "while [Ms. Franklin Mason] my point to the lawsuit she filed as her protected activity and state it was settled, and that thereafter the defendant engaged in retaliatory behavior, she may not state or argue that this behavior was in breach of the settlement agreement." The magistrate judge's order, however, misconstrues the explicit and fundamental gravamen of Ms. Franklin Mason's case. ARGUMENT As this Court well knows, Ms. Franklin Mason settled her 1996 lawsuit against defendant in 1999, and the settlement agreement between the parties was reduced to a Court Order and Stipulation of Settlement. The Court is also very aware that beginning in 1999, Ms. Franklin Mason filed four motions alleging that defendant had violated the Court's Order by breaching the terms of the settlement and asking that the Court enforce its order. In April 2003, Ms. Franklin Mason filed this complaint for discrimination, unlawful retaliation as the result of her filing the motions to enforce and internal EEO agency complaints, hostile work environment and constructive termination. R. 1. Specifically, Ms. Franklin Mason averred that she had been the victim of illegal retaliation for "seeking to enforce the settlement agreement." R. 1, p. 4-7. Among the issues Ms. Franklin Mason alleged constituted unlawful retaliation was defendant's breach of the settlement agreement. Id. at §§17, 19. On April 15, 2005, defendant sought partial summary judgment for Ms. Franklin Mason's claims. R. 26. By his motion, defendant conceded that Ms. Franklin Mason's "protected activity" supporting her claim for retaliation was her "pursui[t] . . . to enforce the settlement in the earlier case." R. 26, p. 2. Significantly, defendant specifically omitted from its partial summary judgment motion Ms. Franklin Mason's claims that were at the heart of her 2 motions to enforce the settlement and Order, that she was not given duties and responsibilities consistent with her new title of senior financial analyst/advisor. Id. pp. 3-4. And, indeed, by its motion in limine, even defendant did not argue that Ms. Franklin Mason be precluded from either referring to the settlement agreement "in connection with some of the events that [she] alleges were retaliatory" or arguing that a breach of the settlement agreement related to her working conditions constituted unlawful retaliation. R. 69, p. 6. As an initial matter, the magistrate judge's reliance on Ms. Franklin Mason's prior 1996 lawsuit as the basis for her protected activity is misplaced. R. 87, p. 3. Ms. Franklin Mason has never asserted such a claim. On the contrary, Ms. Franklin Mason's complaint asserts, in plain English, that her motions to enforce the Stipulation of Settlement and Order, as well as her internal administrative complaints, were the protected activity for which defendant retaliated against her. Even defendant concedes this issue, and the magistrate judge's sua sponte ruling to the contrary was in error. Defendant concedes, through its motion for partial summary judgment and its motion in limine, moreover, that the gravamen of Ms. Franklin Mason's complaint in this matter is that defendant breached its promises under the settlement in retaliation for her motions to enforce. In curiously asserting that "a breach cannot be, in any way, a factual issue in this case," the magistrate judge denudes Ms. Franklin Mason's case in a manner even defendant did not ask for and has never litigated. R. 87, p. 2. 1 Summary judgment has been litigated in Ms. Franklin Mason's favor, leaving her the right to pursue her claims under the theory of recovery that the 1 Indeed, the magistrate judge miscasts defendant's motion in limine as requesting that Ms. Franklin Mason be precluded from arguing "to the jury about any aspects of any claim that the settlement agreement was breached. [#69] at 6." R. 87 at 2. Defendant's motion in limine does not seek such sweeping relief. R. 69. 3 magistrate judge now rejects. Simply put, the magistrate judge's order is contradictory to the law of the case in this action. Most disappointing, though, is the magistrate judge's suggestion that Ms. Franklin Mason dismiss her Title VII lawsuit, waiving all of the substantive rights afforded to her under the Civil Rights Act, and simply litigate her motion to enforce the Court's Order that incorporated the settlement agreement. Contrary to the magistrate's posit, Ms. Franklin Mason's 1996 action seeks to invoke the Court's coercive powers, through finding the government in contempt and imposing sanctions, to enforce its 1999 Order. As the magistrate well knows and even points out, this Court has held that under the Tucker Act it does not have jurisdiction to enforce its Order relating to a settlement agreement against the United States. Id. at 3. And, of course, the Court of Federal Claims would not have jurisdiction to adjudicate Ms. Franklin Mason's instant Title VII claims. 2 Accordingly, the magistrate judge's proposal that Ms. Franklin Mason simply forego her federally protected rights and remedies under Title VII and solely litigate her fourteen-year-old enforcement action is utterly unacceptable. R. 87, p. 3. The magistrate judge ignores, most important, that this Court has specifically held that it possesses jurisdiction to adjudicate Ms. Franklin Mason's "separate action alleging discrimination and retaliation in violation of Title VII based upon her attempt to enforce the settlement agreement, Franklin-Mason v. Johnson, Civil Action No. 03-845 (RWR), which encompasses actions that occurred after she attempted to enforce the settlement agreement in this case." See Franklin-Mason v. Dalton, Civil Action No. 1:96-cv-02505-RWR-JMF, R. 156 at 8-9. 2 For its part, on appeal, defendant has argued neither this Court nor the Court of Federal Claims possess jurisdiction to adjudicate Ms. Franklin Mason's motion to enforce the settlement order. See Franklin Mason v. Mabus, United States Court of Appeals for the District of Columbia, Case No. 12-5057, Appellee's Reply Brief at 27. 4 In sum, Ms. Franklin Mason objects to the magistrate judge's order precluding any assertion at trial that her protected activity consisted of her motions to enforce the settlement order and that defendant breached its promises under the settlement in retaliation. Respectfully submitted, /s/ Lisa Alexis Jones Lisa Alexis Jones, Esq. Lisa Alexis Jones, PLLC 1230 Avenue of the Americas 7th Floor New York, N.Y. 10020 (646) 756-2967 (888) 755-6778 Fax orbitcv@erols.com Counsel for Roxann J. Franklin Mason Dated: June 12, 2013 CERTIFICATE OF SERVICE I hereby certify that on this 12th day of June 2013, I caused to be served a copy of the foregoing Objection via ECF, to: FRED E. HAYNES, ESQ. Assistant United States Attorney 555 Fourth Street, N.W., Room E-4110 Washington, D.C. 20530 fred.haynes@usdoj.gov /s/ Lisa Alexis Jones Lisa Alexis Jones 5