Franklin-Mason v. Johnson

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

Renewed MOTION in Limine by B.J. PENN.

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7 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA) ROXANN J. FRANKLIN-MASON,)) Plaintiff,)) v.) Civil Action No. 03-0945 JEB) RAY MABUS,) Secretary of the Navy,)) Defendant.) _________________________ _____) RENEWED MOTION IN LIMINE AND SUPPORTING MEMORANDUM OF POINTS AND AUTHORITIES Pursuant to this Court's minute order of April 14, 2016, defendant submits this motion in limine in advance of the trial of this case, which is now scheduled to commence September 7, 2016. This motion addresses issues that need to be resolved pretrial in that they relate (a) to arguments that plaintiff should not be allowed to make to the jury, (b) to the preclusion of certain "me too" witnesses that plaintiff stated in the 2012 joint pretrial statement would be called as witnesses in her case-in-chief, (c) to the preclusion of testimony by plaintiff's psychiatric expert, her treating social worker, and her treating psychiatrist that is barred by the settle- ment of plaintiff's earlier case and by the decision by the Court of Federal Claims that defendant did not breach the settlement agreement, (d) to the size of the jury 1 7 panel, and (e) to a jury visit to the office where plaintiff claims that she was segregated by race. To understand this motion, a brief summary of the case and of a related case may be useful. This case was filed in 2003. It is, however, related to Roxann J. Franklin- Mason v. John H. Dalton, Secretary of the Navy, 96cv2505. In the earlier case, plaintiff contended that she was discriminated against on the basis of her race (African-American) and gender when she was constructively discharged from the Military Sealift Command in 1989. The earlier case was settled in 1999 by a stipulation of settlement whereby, among other relief, plaintiff was instated as a GS 13, Step 10, employee of the Naval Fleet Auxiliary Force (PM-1), a part of the Military Sealift Command, at the Washington Navy Yard. Her reinstatement did not, however, end the litigation. She proceeded to file multiple motions to enforce aspects of the settlement agreement that she asserted had been violated. After extended litigation over whether the 1999 breach-of-settlement-agreement issue belonged in this Court or in the Court of Federal Claims, the Court of Appeals ordered that the case be transferred to the Court of Federal Claims. Franklin-Mason v. Mabus, 742 F.3d 1051 (D.C. Cir. 2014) The Court of Federal Claims recently granted summary judgment to defendant after finding that the 1999 settlement agreement was not breached. 2 7 Franklin- Mason v. United States, 126 Fed.Cl. 149, 154-60 (2016). Although that judgment has been appealed, it remains currently binding on plaintiff under the doctrine of issue preclusion (collateral estoppel). "[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." S. Pac. Commc'ns. Am. Tel. & Tel. Co., 740 F.2d 1011, 1018 (D.C. Cir. 1984). In the joint pretrial statement entered on May 7, 2012, ECF No. 74, plaintiff contended the following: Plaintiff Roxann Franklin-Mason, an African American female, previously employed at the Department of Navy, alleges that the Agency created a hostile work environment and retaliated against her for engaging in protected activities and for attempting to enforce the terms of a Court Order of a prior EEO case, when: 1) she was denied the restoration of certain "use-it-or-lose-it" leave; 2) she was moved to a smaller cubicle in a secretarial and racially segregated portion of the office; 3) she was subjected to harassment about the amount of leave she was taking; 4) she was denied training she had requested; 5) she was not given performance appraisals; 6) she was threatened with disciplinary action; and 7) she was not given job duties or responsibilities commensurate with the position promised to her in the Court Order. Plaintiff alleges that these acts, as a whole, operated as a constructive dismissal, forcing Plaintiff into early retirement. 3 7 Argument A. Plaintiff should not be allowed to argue that defendant violated the settlement agreement in the earlier case or acted in bad faith. Under the doctrine of collateral estoppel, plaintiff cannot argue that defendant violated the settlement agreement or acted in bad faith because the Court of Federal Claims has already determined that the Navy did not breach the settlement agreement and acted in good faith to execute the agreement. Specifically, plaintiff cannot relitigate whether she was "given job duties or responsibilities commensurate with the position promised to her in the Court Order,"1 [First] Joint Pretrial Statement, ECF No. 74, or any other issue already decided by the Court of Federal Claims. "Under collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case." U.S. Postal Serv. v. Am. Postal Workers Union, 553 F.3d 686, 696 (D.C. Cir. 2009). "Three elements must be satisfied for a final judgment to preclude litigation of an issue in a subsequent case: '[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 issue must have been actually and necessarily determined by a court of competent 1 The settlement agreement was signed by Judge Sullivan, and is thus the "Court Order" to which plaintiff is referring. 4 7 jurisdiction in that prior case [; and] [3] preclusion in the second case must not work a basic unfairness to the party bound by the first determination." Proctor v. D.C., 74 F. Supp. 3d 436, 450-51 (D.D.C. 2014) (quoting Martin v. Dep't of Justice, 488 F.3d 446, 454 (D.C. Cir. 2007)). All three elements are met here. First, to the extent that plaintiff is arguing that the Navy breached the settlement agreement or acted in bad faith in executing the agreement, those issues have already been contested by the parties and the Court of Federal Claims has decided both issues in the Government's favor. See Franklin-Mason, 126 Fed. Cl. at 154-61. Specifically, plaintiff is raising the same issue regarding her job duties that she raised in her breach of settlement agreement case. In the [First] Joint Pretrial Statement, plaintiff contends that "she was not given job duties or responsibilities commensurate with the position promised to her in the Court Order." [First] Joint Pretrial Statement, ECF No. 74. In her breach of settlement agreement case, plaintiff similarly argued that she "was never given the appropriate assignments and supervision for her position." Franklin-Mason, 126 Fed. Cl. at 160. Specifically, plaintiff argued that "[d]espite the Settlement Agreement's requirement that Plaintiff work as a GS–13 Senior Financial Analyst/Advisor to the Financial Manager of the Naval Fleet Auxiliary Force Program (PM–1) of MSC, 5 7 Plaintiff was not given substantive financial assignments." Id. The Court of Federal Claims rejected plaintiff's arguments and determined that the "Navy acted in good faith to provide [her] with assignments commensurate with her position." Id. at 162. The Court found that plaintiff received financial assignments and her supervisor, Captain Michael Herb, "developed a performance plan with financial management assignments" for her, but that she "refused to contribute any input into the performance plan" and "refused to sign the plan." Id. Accordingly, the issue of whether plaintiff was given job duties commensurate with her position was contested by the parties and submitted to the Court of Federal Claims for determination. Second, the issues of whether the Navy breached the settlement agreement and whether the Navy acted in bad faith, and the specific issue regarding her job duties were all actually and necessarily determined by a court of competent jurisdiction. "A determination ranks as necessary or essential only when the final outcome hinges on it." Bobby v. Bies, 556 U.S. 825, 835 (2009). The final outcome in the other case hinged upon the decision of the Court of Federal Claims that the Navy did not breach the settlement agreement and acted in good faith. Specifically, the Court of Federal Claims' decision that the Navy did not act in bad faith in executing the agreement hinged upon its finding that the Navy "provide[d] 6 7 [her] with assignments commensurate with her position." Franklin-Mason, 126 Fed. Cl. at 162. Moreover, the Court of Federal Claims was a court of competent jurisdiction. See Franklin-Mason, 742 F.3d at 1058 (finding that the Court of Federal Claims has jurisdiction over the breach of settlement agreement allegations). Third, it is not unfair to apply the doctrine of collateral estoppel to prevent plaintiff from arguing that the Navy breached the settlement agreement, acted in bad faith, or did not give her job duties commensurate with the position outlined in the settlement agreement. "In examining 'unfairness' for the purposes of issue preclusion, the D.C. Circuit has been primarily concerned with whether 'the losing party clearly lacked any incentive to litigate the point in the first trial, but the stakes of the second trial are of a vastly greater magnitude.'" Proctor, 74 F. Supp. 3d at 453 (quoting Yamaha Corp. of Am. v. United States, 961 F.2d 245, 254 (D.C. Cir. 1992)). After fifteen years of litigation, plaintiff did not lack an incentive to litigate her breach of settlement agreement and bad faith claims in the other case, nor did she lack an incentive to litigate the job duties issue because that was the basis of her bad faith claim. Moreover, plaintiff argued that she was owed damages in excess of $6.5 million in the breach of settlement agreement case, which is a further indication of her incentive to litigate that claim. See Second Am. Compl. at 29-30, Franklin-Mason v. United States, No. 09-640, ECF No. 23. Because plaintiff had an 7 7 incentive to litigate the case in the Court of Federal Claims, it is not unfair to apply the doctrine of issue preclusion against her here. Because the elements of collateral estoppel are met and because the decision of the Court of Federal Claims precludes the arguments plaintiff raised in that case even though the case is now on appeal, the Court should preclude plaintiff from arguing that the Navy breached the settlement agreement, acted in bad faith, or did not provide her job duties commensurate with her position. See S. Pac. Commc'ns Co., 740 F.2d at 1018. Four of the witnesses that plaintiff identified in the 2012 joint pretrial statement relate only to the breach of settlement issue and should, therefore, not be permitted to testify: these were Abbey Hairston, Gregory Smith, Alexander Shoaibi, and Sophia Korczyk. Ms. Hairston is plaintiff's former attorney, Mr. Smith is an attorney at the U.S. State Department who used to be counsel for the Navy, and Mr. Shoaibi is an Assistant United States Attorney. Ms. Hairston, Mr. Smith, and Mr. Shoaibi were responsible for negotiating and executing the settlement agreement, but can provide no relevant testimony regarding plaintiff's retaliation claim. Plaintiff hired Ms. Korczyk as an expert witness in the breach of settlement agreement case to render an opinion regarding the amount of funds that plaintiff contended should have been deposited by the Navy into her Thrift Savings Program 8 7 (TSP) account. Plaintiff did not allege that the Navy retaliated against her by failing to deposit funds in her TSP. See [First] Joint Pretrial Statement, ECF No. 74. Moreover, even if plaintiff did make this allegation in this case, this Court should preclude any testimony regarding the Navy's contributions to plaintiff's TSP account because the Court of Federal Claims held that the Navy did not violate the provision of the settlement agreement related to plaintiff's TSP account. Franklin- Mason, 126 Fed. Cl. at 159. Accordingly, because the testimony of Ms. Hairston, Mr. Smith, Mr. Shoaibi, and Ms. Korczyk relate only to her breach of settlement agreement claim, the testimony of these witnesses is irrelevant and should be precluded under the doctrine of collateral estoppel. B. Plaintiff should not be allowed to argue that she was subjected to a hostile work environment. Plaintiff's complaint, ECF No. 1, only alleged two counts. The first was retaliation and the second was breach of the settlement agreement. The second count was earlier dismissed by plaintiff. Docket minute entry for October 22, 2004. Because plaintiff did not allege a hostile work environment count in her complaint, she should not be allowed to argue at trial that she was subjected to a hostile work environment. C. Plaintiff's "me too" witnesses should be excluded. In the 2012 joint pretrial statement plaintiff listed three "me too" witnesses who she asserts would testify that 9 7 they also were subjected to discrimination at the Military Sealift Command: Greg Brodrick, Pam Hall, and Ronald Coates. Defendant does not believe that these individuals worked in the Naval Fleet Auxiliary Force with plaintiff, and they therefore do not qualify as "me too" witnesses. The most frequently cited opinion in this District in recent years on "me too" evidence is Nuskey v. Hochberg, 723 F.Supp.2d 229, 223 (D.D.C. 2010). There, the Court observed: Evidence of an employer's past discriminatory or retaliatory behavior toward other employees—so-called "me too" testimony—may, depending on the circumstances, be relevant to whether an employer discriminated or retaliated against a plaintiff. See Sprint v. Mendelsohn, 552 U.S. at 385–88, 128 S.Ct. 1140; Parker v. HUD, 891 F.2d 316, 321 (D.C.Cir.1989); Elion v. Jackson, 544 F.Supp.2d at 8. Such testimony is neither per se admissible nor per se inadmissible; the question whether such testimony is relevant and sufficiently more probative than unfairly prejudicial in a particular case is "fact-based and depends on many factors, including how closely related the evidence is to the plaintiff's circumstances and theory of the case." Sprint v. Mendelsohn, 552 U.S. at 387–88, 128 S.Ct. 1140. As this Court has explained, among the factors to consider are whether such past discriminatory behavior by the employer is close in time to the events at issue in the case, whether the same decisionmakers were involved, whether the witness and the plaintiff were treated in a similar manner, and whether the witness and the plaintiff were otherwise similarly situated. See Elion v. Jackson, 544 F.Supp.2d at 8; see also White v. United States Catholic Conference, Civil Action No. 97–1253, 1998 WL 429842, at *5 (D.D.C. May 22, 1998). 10 7 Unless plaintiff can by proffer or voir dire establish that the "me too" witnesses worked at the Naval Fleet Auxiliary Force with plaintiff or were otherwise somehow related to her case, this testimony should be excluded. D. Plaintiff's expert psychiatric witness and any other mental health witness should not be allowed to rely 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. The 1999 settlement stipulation, a copy of which is attached, included a release of plaintiff's claims against defendant relating to the events surrounding her alleged constructive discharge in 1989 from her employment at the Military Sealift Command. It would violate that release for her witnesses to rely on the 1989 events as a source of her mental health issues. Similarly, plaintiff's belief that defendant breached the settlement agreement cannot be a basis for testimony that her mental health issues flow from the alleged breach. After excluding the 1989 alleged constructive discharge and the alleged breach of the settlement agreement, it may be that plaintiff's expert witness and her treating physician and social worker will be unable to testify that the minor issues remaining in this case caused her the mental distress that she claims as a basis for damages. This issue will have to be addressed by voir dire before the witnesses are allowed to testify. 11 7 E. The Size Of The Jury. Defendant requests that the Court seat a jury panel numbering twelve individuals. Under the current Fed. R. Civ. P. 48, the Court Ashall seat a jury of not fewer than six and not more than twelve members. . . .@ Until 1970, it was assumed that the Constitution required a jury of twelve, since that number had been found in the English jury trial since the 1400's. Williams v. Florida, 399 U.S. 78 (1970), was decided that year, and it held, relying in part on certain social science studies, that a six-member jury did not violate a criminal defendant=s Sixth Amend- ment right to a jury trial. Williams was followed in 1973 by Colgrove v. Battin, 413 U.S. 149 (1973), which held that a jury of six satisfies the Seventh Amendment=s guarantee of trial by jury in civil cases. Justice Marshall, joined by Justice Stewart, dissented, relying in part on a recent social science study that had drawn into question whether a six-person jury was as effective in small-group decision-making as a twelve-person jury. 413 U.S. at 166 n.1. The final case in the trilogy, Ballew v. Georgia, 435 U.S. 223 (1978), held that a criminal defendant=s trial before a jury of less than six deprived him of his right to a jury trial guaranteed by the Sixth and Fourteenth Amendments. Justice Blackmun announced the judgment of the Court in Ballew and delivered an opinion that relied on scholarly work that had called into question the studies that the Court had earlier relied on in Williams. The more recent 12 7 scholarly work had found that a positive correlation exists between group size (up to twenty group members) and the quality of both group performance and group productivity. 435 U.S. at 232-33. Williams, however, was not overruled, and it remains the law. Since the Williams decision, scholars have been extremely critical of its rationale and the Aexperiments@ that it relied on. Comment, ASix Of One Is Not A Dozen Of The Other: A Reexamination of Williams v. Florida And The Size Of State Criminal Juries,@ 146 U. Pa. L. Rev. 621, at note 163 (1998). There seems little doubt today that a jury of the traditional size (twelve) is superior in small-group decision-making to a jury of six, as well as resulting in a jury that better reflects the diversity of the community. This is reflected in a 1995 comment from Judge Patrick E. Higginbotham of the Fifth Circuit, then the chairman of the Judicial Conference=s Advisory Committee on Civil Rules: A lot has been written about the Judicial Conference decision in 1971 to reduce juries from 12 to 6 persons in civil cases. Virtually all scholarly writings on this subject have criticized 6-person juries. In an insightful article in the Hofstra Law Review, Chief Judge Richard S. Arnold (8th Cir.) forcefully argues for a return to the 12-person jury. Arnold highlights the historical reasons embedded in common law for 12-person juries and identifies the most glaring defect of 6-person juries. Statistical analysis and real life experience have demonstrated that 6-person juries 13 7 are unquestionably less likely than 12-person juries to include minority representation. A 12-person jury can better reflect community attitudes and experience. Other commentators also have shown that 6-person juries have produced inferior deliberations and more inconsistent jury decisions. The Third Branch, February 1995 issue (www.uscourts.gov/ttb). In light of the above, the Court should seat a jury of 12-persons, which it is authorized to do by Fed. R. Civ. P. 48(a). F. Jury visit to the office space where plaintiff alleges that she was segregated by race. Plaintiff contends that when the Naval Fleet Auxiliary Force moved to its current location she was assigned to a smaller cubicle in a secretarial and racially segregated portion of the office. To understand the falsity of this very serious allegation, it is necessary for the jury to visit that office space and observe its configuration and the relationship of the separate offices and the group of cubicles in the center of the space. The decision to conduct a site visit is a matter that is subject to the discretion of the trial court. United States v. Gray, 199 F.3d 547, 550 (1st Cir.1999). Here, defendant urges the Court to exercise its discretion and authorize the site visit. Conclusion For the reasons set forth above, the Court should grant defendant's motion in limine. 14 7 Respectfully submitted, CHANNING D. PHILLIPS, D.C. Bar #415793 United States Attorney for the District of Columbia DANIEL F. VAN HORN, D.C. Bar #924092 Chief, Civil Division BY: /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 202.250.2550 fred.haynes@usdoj.gov 15 7 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ROXANN J. FRANKLIN-MASON,)) Plaintiff,)) v.) Civil Action No. 03-00945 JEB) RAY MABUS,) Secretary of the Navy,)) Defendant.)) ORDER UPON CONSIDERATION of the motion in limine filed by defendant and the response thereto, it is this _____ day of _____________, 2016, ORDERED that the motion is granted; and it is further ORDERED that plaintiff will not argue to the jury that the settlement agreement in her earlier case was breached; and it is further ORDERED that plaintiff will not argue to the jury that she was subjected to a hostile work environment; and it is further ORDERED that plaintiff's "me too" witnesses are excluded from this trial; and it is further ORDERED that plaintiff's expert witness and her treating mental health professionals are barred as witnesses unless they can testify that plaintiff's current 16 7 mental health condition is solely the result of matters other than her alleged constructive discharged from the Military Sealift Command in 1989 and other than her belief that defendant breached the settlement agreement in her earlier case; and it is further ORDERED that a jury of twelve will be seated for the trial; and it is further ORDERED that a site visit to the offices of the Naval Fleet Auxiliary Force will be permitted. UNITED STATES DISTRICT JUDGE 17