Sims v Washington Metro Transit Authority Appendix to Petition for Writ of Ceritorari
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September 9, 2013

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Brief Collection, LDF Court Filings. Sims v Washington Metro Transit Authority Appendix to Petition for Writ of Ceritorari, 2013. a776f984-c49a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/42d0c637-3a69-4c46-8308-8a594b4d426e/sims-v-washington-metro-transit-authority-appendix-to-petition-for-writ-of-ceritorari. Accessed July 30, 2025.
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No. IN THE SUPREME COURT OF THE UNITED STATES NIAMKE KEYS SHERRI SIMS, Petitioners, v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Respondent. On Petition For A Writ Of Certiorari To The United States Court of Appeals for the District of Columbia Circuit APPENDIX TO PETITION FOR WRIT OF CERTIORARI Robert L. Bell, Esquire Counsel of Record Bell Law Firm 1001 Connecticut Ave., N.W. Suite 402 Washington, D.C. 20036 (202) 842-4066 (202) 842-0320 (fax) belllawfirm@verizon.netSeptember 9, 2013 mailto:belllawfirm@verizon.net 1 TABLE OF CONTENTS APPENDIX PAGE A. Order Denying Petition for Rehearing En Banc (June 11, 2013)....................................la B. Judgment of the United States Court of Appeals for the District of Columbia Circuit (April 30, 2013) ...................................... 3a C. Order of the United States Court of Appeals for the District of Columbia Circuit Denying Opportunity for Oral Argument (April 5, 2013)....................................7a D. Memorandum and Order of the United States District Court for the District of Columbia Dismissing Title VII Case of Keys Mid-Jury Trial (February 25, 2011) . . . 9a E. Pretrial Order in Keys’ Case From the United States District Court for the District of Columbia (February 15, 2013) . . . . 30a F. Order in Keys’ Case From the United States District Court for the District of Columbia (September 22, 2010) ................. 45a G. Memorandum Opinion and Order of the United States District Court for the District of Columbia (September 18, 2008) 48a n H. Memorandum Opinion and Order of the United States District Court for the District of Columbia (April 27, 2005)........................... 66a I. Minute Order Denying Motion for Reconsideration (April 14, 2005)..................... 87a J. Memorandum Opinion and Order of the United States District Court for the District of Columbia (August 30, 2003).......... 89a K. WMATA’s Memorandum in Support of Motion in Limine to Exclude Plaintiffs Exhibits (August 9, 2010) ............. 99a L. Memorandum Opinion of the United States District Court for the District of Columbia in Jacqueline Wade v. WMATA, CA Nos. 01-0334 & 01-2385 (TTH) (April 5, 2006 )........ 102a la APPENDIX A United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 11-7011 September Term, 2012 i:01-cv-02619-RCL Filed Om June 11, 2013 Niamke Keys and Sherri D. Sims, Appellants v. Washington Metropolitan Area Transit Authority, Appellee BEFORE^ Garland, Chief Judge; Henderson, Rogers, Tatel, Brown,Griffith, and Kavanaugh, Circuit Judges O R D E R Upon consideration of appellants’ petition for rehearing en banc, and the absence of a request by any member of the court for a vote, it is ORDERED that the petition be denied. 2a Per Curiam FOR THE COURT: Mark J. Langer, Clerk By: /s/ Michael C. McGrail Deputy Clerk 3a APPENDIX B United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 11-7011 September Term, 2012 FILED ON: April 30, 2013 NIAMKE KEYS AND SHERRI D. SIMS, APPELLANTS v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, APPELLEE Appeal from the United States District Court for the District of Columbia (No. l:01-cv-02619) Before: GARLAND, C hief Judge, and ROGERS and GRIFFITH, Circuit Judges J U D G M E N T This appeal from a decision of the United States District Court for the District of Columbia was considered on the record and on the briefs filed by the parties. See FED. R. APP. P. 34(a)(2); D.C. CIR. R. 34(j). The court has afforded full consideration to the issues presented and has 4a determined that they do not warrant a published opinion. See D.C. CIR. R. 36(d). It is ORDERED and ADJUDGED that the judgment of the district court be affirmed. Appellants Niamke Keys and Sherri Sims filed suit in district court alleging that their former supervisors at the Washington Metropolitan Area Transit Authority discriminated against them, maintained a hostile work environment, and retaliated against them for pursuing administrative relief. The district court granted summary judgment against Sims. We affirm that ruling for the reasons stated in the district court’s opinion and order. See JA 576-78, 582-83. Sims’ sexual harassment and hostile work environment claims were barred because Sims failed to timely exhaust them before the EEOC. See JA 577; 42 U.S.C. §2000e-5(e)(l). Sims’ claims of retaliation were not actionable because they failed to allege actions that were “materially adverse” to her. JA 582-83. Sims alleged only two retaliatory actions that post dated the alleged sexual harassment. One was a “write up” for being three minutes late to work. See JA 1368. The other was a threat to dock her pay for being late that did not actually result in any pay being withheld. Id. Because neither action “could well dissuade a reasonable worker from making or supporting a charge of discrimination,” neither was “materially adverse” 5a to Sims. Taylor v. Solis, 571 F.3d 1313, 1320 (D.C. Cir. 2009). Although Keys’ case proceeded to trial, the district court ultimately dismissed it due to misconduct by Keys’ attorney. We affirm that dismissal as well. Our cases note three justifications for dismissal under FED. R. CIV. P. 41(b): “(l) prejudice to the other party; (2) failure of alternative sanctions to mitigate the severe burden that the misconduct has placed on the judicial system; and (3) deterrence of future misconduct.” Gardner v. United States, 211 F.3d 1305, 1309 (D.C. Cir. 2000). All three justifications are satisfied here. Keys’ counsel repeatedly elicited prejudicial testimony that was specifically forbidden by the court’s pretrial orders. See JA 3731, 3748, 3751, 3757, 3777, 3885-86. The district court attempted lesser sanctions ** including warning counsel in front of the jury, see, e.g., JA 3749, and instructing the jury mid testimony, see JA 3749 none of which stopped counsel from continuing his misconduct. Finally, the district court’s order sufficiently explained why deterrence was an important objective in dismissing the case in light of counsel’s persistent bad faith. See HA 29, 31-34. For these reasons, dismissal of the case was well within the district court’s discretion. See Peterson v. Archstone Communities, 637 F.3d 416, 418 (D.C. Cir. 2011) (holding that this court reviews dismissals under Rule 41(b) for abuse of discretion). 6a The Clerk is directed to withhold the issuance of the mandate herein until seven days after the disposition of any timely petition for rehearing. See FED. R. APP. P. 41(b); D.C. CIR. RULE 41(a)(1). FOR THE COURT: Mark J. Langer, Clerk BY: /s/ Jennifer M. Clark Deputy Clerk 7a APPENDIX C United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 11-7011 September Term, 2012 i:01-cv-02619-RCL Filed On: April 5, 2013 [1429211] Niamke Keys and Sherri D. Sims, Appellants v. Washington Metropolitan Area Transit Authority, Appellee BEFORE: Garland, Chief Judge, and Rogers and Griffith, Circuit Judges O R D E R The court concludes, on its own motion, that oral argument will not assist the court in this case. Accordingly, the court will dispose of the appeal without oral argument on the basis of the record and the presentations in the briefs. See Fed. R. App. 34(a)(2); D.C. Cir. Rule 34(j). 8a Per Curiam FOR THE COURT: Mark J. Langer, Clerk BY: /s/ Michael C. McGrail Deputy Clerk 9a UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA APPENDIX D ) ) NIAMKE KEYS, ) Plaintiff, ) ) v. ) Civil Action ) No. 01-2619 ) (RCL) ) WASHINGTON METROPOLITAN) AREA TRANSIT AUTHORITY, ) Defendant. ) ) _________________________________________ ) MEMORANDUM I. BACKGROUND In this Title VII employment discrimination case, plaintiff Niamke Keys alleges that defendant Washington Metropolitan Area Transit Authority (WMATA) discriminated against her on the basis of her gender and created a hostile work environment on the basis of her gender. The case proceeded to 10a trial, and the Court empaneled a jury on February 23, 2011. During the brief course of the trial, plaintiff and her counsel repeatedly violated this Court’s Pretrial Order [172] and Judge Leon’s Orders in the case.1 Plaintiff testified about the following topics, which violated the following court orders•' (l) defendant’s failure to promote plaintiff, in violation of the Court’s Pretrial Order [172] that plaintiff could not introduce evidence of discrete acts of discrimination that she did not administratively exhaust, (2) a physical assault at the workplace, in violation of the same, (3) unwanted sexual advances at the workplace, in violation of the same and Judge Leon’s Orders [156, 166] that plaintiff could not 1 This case was previously assigned to Judge Leon but was subsequently reassigned by consent to this Court on November 3, 2010 [168]. This Court held that it would “adhere to the prior rulings in this case made by Judge Leon” [172], 11a introduce evidence that does not concern the three alleged discriminating officials, and (4) findings of an investigation conducted by WMATA’s Office of Civil Rights (OCR), in violation of Judge Leon’s minute order dated September 24, 2007, Judge Leon’s Order [166] that plaintiff could not introduce evidence that pertains to the Office of Civil Rights’ investigation, and this Court’s Pretrial Order [172], Plaintiffs violation of the orders excluding evidence of the OCR investigation was the most egregious. Multiple court orders, issued over the course of several years, prohibited plaintiff from introducing such evidence. On October 5, 2006, defendant moved in limine “to prevent plaintiff, her counsel or her witnesses to present any evidence, to refer to, or to mention in any way, any findings by WMATA’s internal Office of Civil Rights in regard to a discrete act of discrimination involving plaintiff 12a Keys, which was the subject of an internal complaint of discrimination or to refer to any followup regarding these findings” [113]. On September 24, 2007, Judge Leon granted this motion by minute order. On April 25, 2008, plaintiff moved to reconsider this order [142], and on September 19, 2008, Judge Leon denied the motion for reconsideration [156]. At a May 13, 2010, evidentiary hearing, Judge Leon stated in reference to the EEOC and Office of Civil Rights investigations: “I am not going to let this be turned into a trial about the investigation that was conducted and the quality of the investigation and any allegation that you believe is out there about failure to investigate because I don’t believe that’s what this case is supposed to be about.” Tr. 97:12-25 [165]. Despite these orders, plaintiff still listed exhibits that dealt with EEOC and OCR 13a investigations. On August 9, 2010, defendant filed a motion in limine to exclude those exhibits on which plaintiff continued to rely, including “correspondence with the EEOC or the Office of Civil Rights, as well as their investigations, findings, interviews and memos” [163]. On September 24, 2010, Judge Leon granted the part of the motion requesting this relief, excluding “exhibits that pertain to the EEOC or Office of Civil Rights’ investigation” [166]. On February 15, 2011, this Court’s Pretrial Order reiterated Judge Leon’s rulings, finding that Judge Leon “sustained WMATA’s objection to . . . exhibits that pertain to the EEOC or Office of Civil Rights’ investigation,” and clarifying exactly which exhibits were excluded by Judge Leon’s rulings [172], Despite this lengthy history of motions and orders, plaintiff advised the jury of the OCR findings in her favor. That testimony left the Court 14a dumbfounded. The Court sustained defendant’s objection to the testimony and then attempted to take corrective action to avoid a mistrial. The Court tried to provide a curative instruction to the jury, explaining that the jury should ignore that testimony because it is the jury’s role to review the facts of the case de novo, so the results of an administrative finding should not play into that determination. The Court then admonished plaintiff and her counsel in front of the jury, instructing counsel to tell his client what she could and could not testify about. Whether this corrective action could ultimately have been sufficient to cure this egregious violation is questionable at best. How does a juror ever put out of their mind that there was an administrative agency finding of discrimination? At the close of the direct examination of plaintiff on February 23, the Court entertained 15a defendant’s motion for a mistrial. The Court reserved its ruling on the mistrial, but warned plaintiff and her counsel—as it had throughout the day after specific violations of court orders—that plaintiffs testimony could not go beyond the scope permitted by court orders. On February 24, during her re-direct examination, plaintiff testified that she had been physically assaulted at the workplace, in express violation of court orders. The Court sustained defendant’s objection to that testimony, instructing plaintiff not to use the word “assault,” because she had not made any claim for assault. Plaintiffs counsel said that he would ask a question to clarify the situation, but he only worsened the situation. Counsel asked plaintiff if she had been assaulted at the workplace, and plaintiff said that she had been assaulted by her supervisor. When the Court later 16a asked plaintiffs counsel why he sought to introduce this testimony, he argued that defendant had opened the door to the use of such testimony during the cross-examination of plaintiff. The Court told counsel that if he really believed that, he should have approached the Court and asked for permission to use this testimony. It is clear to the Court that counsel did not approach the bench about this testimony because he knew that the Court would not allow him to use this testimony. This showed counsel’s bad faith and was the final straw. Soon after the “physical assault” testimony, defendant renewed its motion for a mistrial. The Court granted that motion, declared a mistrial, and dismissed the jury. The Court denied defendant’s motion for reconsideration of its ruling on the mistrial. On the Court’s own motion, with the support of defendant, and after argument, the Court 17a then dismissed plaintiffs case pursuant to Federal Rule of Civil Procedure 41(b) for failure to comply with a court order.2 The Court issues this Memorandum in support of its oral order dismissing this case. II. DISCUSSION Federal Rule of Civil Procedure 41(b) provides in relevant part-’ “If the plaintiff fails to . . . comply with . . . a court order, a defendant may move to dismiss the action or any claim against it.” Such a dismissal “operates as an adjudication on the merits.” Fed. R. Civ. P. 41(b). “[A]n involuntary dismissal pursuant to Rule 41(b) is with prejudice 2 The Court may dismiss the action sua sponte. Jones v. Horne, No. 09-5128, 2011 WL 476623, at *10 (D.C. Cir. Feb. 11, 2011), QUOTING 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §2372 (3d ed. 2010 (‘[T[he district court may dismiss a complaint on its own motionf or want of prosecution or for failure to comply with a court order.”). 18a unless otherwise indicated in the dismissal order.” Jones v. Horne, No. 09-5128, 2011 WL 476623, at *10 (D.C. Cir. Feb. 11, 2011). “[Ujnder certain circumstances, dismissal may be an unduly severe sanction for a single episode of misconduct. A district court may dismiss under Rule 41(b) only after less dire alternatives have been explored without success.” Gardner v. United States , 211 F.3d 1305, 1308 (D.C. Cir. 2000). The Court finds that in this case, dismissal is an appropriate sanction, particularly because plaintiff has violated court orders numerous times and the Court has explored less dire alternatives without success. The D.C. Circuit has held that there are several justifications for dismissal of a case on the basis of attorney misconduct. Specifically, the Circuit has held: 19a There are three basic justifications for dismissal because of attorney misconduct: (l) prejudice to the other party; (2) failure of alternative sanctions to mitigate the severe burden that the misconduct has placed on the judicial system; and (3) deterrence of future misconduct. These justifications are not easily met. Prejudice, for instance, must be so severe as to make it unfair to require the other party to proceed with the case. Similarly, a malfeasant party places a severe burden on the judicial system if the court is required to expend considerable judicial resources in the future in addition to those it has already wasted, thereby inconveniencing many other innocent litigants in the presentation of their cases. The final rationale, deterrence, justifies dismissals when there is some indication that the client or attorney consciously fails to comply with a court order cognizant of the drastic ramifications. Id. at 1309 (citations and internal quotations omitted). The Court finds that these justifications are equally applicable here and may warrant dismissal when the misconduct in question is by a party as well as by an attorney. 20a Applying these criteria, the Court finds that dismissal is justified here. First, the Court finds that defendant has suffered significant prejudice. Despite Judge Leon’s Orders and this Court’s Pretrial Order specifically excluding certain types of testimony, plaintiff and her attorney have repeatedly insisted on bringing that inadmissible testimony to the attention of the jury. For example, the Court ordered that plaintiff could not discuss any discrete acts of discrimination that she did not administratively exhaust, including her allegations of unwanted sexual advances or physical assaults at the workplace. Despite this order, plaintiff inserted descriptions of such events into her testimony, placing them squarely before the jury. Plaintiffs counsel even had the gall to directly ask plaintiff about her workplace physical assault. This testimony is highly and unfairly prejudicial to 21a defendant. The Court holds that due to the repetitive and cumulative nature of the improper testimony, the jury has been tainted, and it would therefore be unfair to require defendant to continue in this matter. Second, the Court finds that alternative sanctions cannot mitigate the severe burden that the misconduct has placed on the judicial system. During the direct examination of plaintiff, the Court sustained defendant’s objections to the testimony and told plaintiff that the Court wanted to avoid a mistrial. The Court then gave plaintiff a severe reprimand, informing her that she could only testify within the bounds established by previous orders in this case. To reinforce that reprimand, the Court instructed plaintiff s counsel to have a private discussion with plaintiff, in which counsel could tell plaintiff exactly what she was permitted to testify 22a about. After that discussion, plaintiff at first appeared to try to keep her testimony within the bounds permitted by court orders. At the end of plaintiff s direct examination, defendant moved for a mistrial, on which the Court reserved judgment, making clear that it wanted to see whether cross- examination could cure any prejudice. But shortly after the start of plaintiffs re-direct examination, she expressly talked about a physical assault at the workplace, led on by plaintiffs counsel. This testimony was in violation of the Court’s prior orders and was highly prejudicial. The Court declared a mistrial soon after that testimony. Thus, the alternative sanctions that the Court attempted—including reprimanding both the plaintiff and plaintiffs lawyer during her testimony, warning her of the possibility of a mistrial, and granting a mistrial—were unsuccessful. The Court 23a finds that no alternative sanctions would allow defendant to have a fair trial. Third, the Court finds that dismissal is necessary to deter future misconduct. The D.C. Circuit has provided guidance for when the deterrence rationale is appropriate. When a party or attorney (l) fails to comply with a court order more than once, (2) acts in bad faith, and (3) has been provided warning by the Court of the consequences of such violation, then dismissal may be appropriate. Id. at 1309. Plaintiff and her counsel meet these criteria. First, plaintiff and her counsel failed to comply with court orders numerous times. After the first instance of non_compliance, the Court simply sustained an objection to the testimony. The Court then ordered plaintiff to testify in accordance with the Court’s orders. But she did not. She repeatedly discussed inadmissible subjects and thus repeatedly 24a failed to comply with court orders. Second, the Court finds that plaintiff and her counsel acted in bad faith. This constitutes “calculated, deliberate disregard of the court’s authority and the force of its orders.” Martin-Trigona v. Gellis & Bellinger, 830 F.2d 367, 369 (D.C. Cir. 1987). The Court’s Pretrial Order spelled out precisely what topics were admissible. Counsel was well aware of what plaintiff could discuss. He should have consulted with his client about these topics, but even if he irresponsibly did not do so before trial, the Court gave him an opportunity to do so during trial. Because counsel and plaintiff knew exactly what they were allowed to discuss, any such improper discussion could only have been conducted in bad faith. The Court cannot accept counsel’s professed justification that he understood the Pretrial Order to bar exhibits but not testimony related to the excluded topics, particularly 25a in light of Judge Leon’s September 24, 2007, minute order granting defendant’s motion in limine to prevent plaintiff and her counsel from “present[ing] any evidence, [ ] referring] to, or [ ] mentioning] in any way, any findings by WMATA’s internal Office of Civil Rights in regard to a discrete act of discrimination involving plaintiff Keys” [113]. And as the Court stated above, the Court is convinced that counsel was acting in bad faith when he failed to approach the Court to ask permission to use plaintiffs physical assault testimony. The Court rejects the claim of plaintiffs counsel that defense counsel opened the door to his bringing out plaintiffs testimony that she had suffered a physical assault. Counsel knew that the Court would deny him permission to use the assault testimony, but he asked plaintiff about the assault anyway, in the presence of the jury, and elicited her response that a 26a supervisor had physically assaulted her. Third, the Court finds that plaintiff and her counsel were provided warning by the Court of the consequences of such violation. The Court warned them of the possibility of a mistrial and told them multiple times that they had to comply with court orders. The Court will not tolerate such deliberate flaunting of its orders. As the D.C. Circuit held, “If the court is to discharge its function, its orders must be obeyed. When a party deliberately refused to comply with an order, and persists in such refusal in the face of impending dismissal, the court has no choice but to use the remedy provided by Rule 41(b) to dismiss.” Id. at 369. III. CONCLUSION Accordingly, this case will be dismissed with prejudice pursuant to Federal Rule of Civil 27a Procedure 41(b) for repeatedly failing to comply with court orders. A separate order shall issue this date. Signed by Royce C. Lamberth, Chief Judge, on February 25, 2011. 28a UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) NIAMKE KEYS, ) Plaintiff, ) ) v. ) Civil Action ) No. 01-2619 ) (RCL) ) WASHINGTON METROPOLITAN) AREA TRANSIT AUTHORITY, ) Defendant. ) ) ________________________________________ ) ORDER For the reasons stated in the accompanying memorandum, it hereby ORDERED that this case is DISMISSED WITH PREJUDICE pursuant to Federal Rule of Civil procedure 41(b) for repeatedly failing to comply with court orders. SO ORDERED. 29a Signed by Royce C. Lamberth, Chief Judge, on February 25, 2011. 30a APPENDIX E UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) NIAMKE KEYS, ) Plaintiff, ) ) v. ) ) ) ) WASHINGTON METROPOLITAN) AREA TRANSIT AUTHORITY, ) Defendant. ) ) ________________________________________ ) PRETRIAL ORDER This Court will adhere to the prior rulings in this case made by Judge Leon; the Court will not revisit those rulings. Within that framework, and upon consideration of the parties’ Second Amended Pretrial Statements [167, 171], the arguments of counsel at the January 31, 2011, pretrial conference, Civil Action No. 01-2619 (RCL) 31a and the entire record in this case, the Court enters the following Pretrial Order. In his September 22, 2010, Order [166], Judge Leon granted in part and denied in part defendant WMATA’s Motion in Limine to Exclude Plaintiffs Exhibits [163], Specifically, he sustained WMATA’s objections to the following categories of plaintiffs exhibits ̂ (l) exhibits that pertain to the EEOC or Office of Civil Rights’ investigation, listed in defendant’s motion under heading “A”; (2) exhibits that do not concern the three alleged discriminating officials (Morford, Matthews, or Thompson), listed in defendant’s motion under heading “B”; (3) exhibits that pertain to dismissed plaintiff Sherri Simms, listed in defendant’s motion under heading “C”J (4) exhibits that contain allegations of events that occurred prior to June 29, 1999, listed—along with several exhibits to which Judge Leon overruled the 32a objections—in defendant’s motion under heading “F ’; (5) exhibits that are barred by the April 27, 2005, Order [84] dismissing claims of retaliation and any claims of discrete acts which occurred prior to August 1996 and prior to June 29, 1999, listed in defendant’s motion under heading “G”>' and (6) exhibits barred by WMATA’s conceded September 13, 2006 Motion in Limine [103], listed in defendant’s motion under the second heading “H.” Judge Leon accordingly ordered that all exhibits listed by defendant under those headings should be excluded. Under heading “F,” Judge Leon’s Order excluded exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 89, 90, 91, 101, 102, 103, 104, 118, 119, and 120, but did not exclude exhibits 48, 88, and 105. The Court does not have enough information about exhibit 129 to determine whether it falls within this 33a ruling, but the point is moot, because exhibit 129 is excluded under heading “B.” Judge Leon’s Order thus excluded the following plaintiff s exhibits: 1-19, 22-31, 34-46, 49-58, 66-76, 79-91, 101-105, 110-120, 124-130. To the extent that plaintiff listed those exhibits for use at trial in her Second Amended Pretrial Statement [167], defendant’s objection to the exhibits is sustained. The following plaintiffs exhibits, therefore, were not excluded by Judge Leon’s Order: 20-21, 32-33, 47-48, 59-65, 77-78, 92-100, 106-109, 121-123, 131-132. Judge Leon deferred judgment to this Court on three categories of plaintiffs exhibits: (l) exhibits that reference discrete acts that were not administratively exhausted, listed in defendant’s motion under heading “D”; (2) exhibits that relate to 34a plaintiffs grievances or “results of investigation by foreman,” listed in defendant’s motion under heading “E”; and (3) correspondence between plaintiff and politicians, listed in defendants’ motion under the first heading “H.” The Court will address them in turn. First, the Court will sustain defendant’s objection to plaintiff s exhibits that reference discrete acts that were not administratively exhausted. The following exhibits fall within this objection and have not been excluded by Judge Leon’s Order: 32, 47, 48, 92, 106, and 109. Judge Leon held that for the purpose of proving a hostile work environment claim, harassing acts involving the three managers named in the EEOC charge—Ernest Matthews, James Thompson, and Kenneth Morford—“that occurred outside the statutory filing period may be considered so long as 35a at least one of the acts that contributed to the hostile environment occurs within the filing period” [155]. The questions now before the Court—on which Judge Leon deferred judgment to this Court—are (l) whether a discrete act of discrimination can be included in a hostile work environment, (2) if so, whether that discrete act must be separately administratively exhausted before it can be included in a claim, (3) whether a discrete act must be administratively exhausted if it is brought as an independent claim—that is, not as part of a hostile work environment claim, and (4) whether evidence of a discrete act that was not administratively exhausted is admissible for any other purpose. As to the first question, the Court finds that a discrete act of discrimination cannot be included in a hostile work environment claim. Hostile work environment claims contain “a series of separate 36a acts” of harassment that “may not be actionable on [their] own,” but that “collectively constitute one unlawful employment practice.” N atl R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115, 127 (2002). This type of claim is “in direct contrast to discrete acts,” which are actionable on their own. Id. at 115; see also Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618, 638 (2007), rev ’don other grounds by Lilly Ledbetter Fair Pay Act of 2009, 42 U.S.C. § 2000e-5e (“Morgan distinguished between ‘discrete’ acts of discrimination and a hostile work environment. . . . Morgan is perfectly clear that when an employee alleges ‘serial violations,’ i.e., a series of actionable wrongs, a timely EEOC charge must be filed with respect to each discrete alleged violation.”); Dickens v. Dep’t o f Consumer & Regulatory Affairs, 298 Fed. App’x 2, 3 (D.C. Cir. 2008) (“[F]or statute-of-limitations 37a purposes there are only two kinds of Title VII violations- ‘discrete acts’ and ‘hostile work environments.’”). The Court does not reach the second question, because it finds that a discrete act cannot be brought as part of a hostile work environment claim. As to the third question, the Court finds that when a discrete act is brought as a separate claim, it must be administratively exhausted. See Morgan, 536 U.S. at 113. As to the fourth question, the Court finds that evidence of a discrete act of discrimination that was not administratively exhausted is admissible as “background evidence in support of a timely claim.” Id. The discrete act, however, may only serve as “relevant background evidence in a proceeding in which the status of a current practice is at issue.” United A ir Lines, Inc. v. Evans, 431 U.S. 553, 557 (1977), quoted in Morgan, 536 U.S. at 112>' see also 38a Law v. Continental Airlines Corp. , 399 F.3d 330, 334 (D.C. Cir. 2005). Plaintiff Keys is alleging that defendant WMATA continues to violate Title VII. In her Second Amended Pretrial Statement [167], she states that she continues to request injunctive relief. But as the parties both orally represented to the Court, plaintiff is now a retired employee. Although plaintiff claims to be seeking injunctive relief, any such injunctive relief would be decided by the Court, not by the jury. Thus, this evidence is not admissible before the jury. In sum, the Court finds that evidence of a discrete act that was not administratively exhausted is admissible only as background evidence in support of any injunctive relief against WMATA. Because the Court—not the jury—will decide whether plaintiff is entitled to injunctive relief, the evidence will not be admitted at trial. Further, evidence of a discrete act is not 39a admissible as part of a hostile environment claim or as an independent, actionable claim. Second, the Court will sustain defendant’s objection to plaintiffs exhibits that relate to plaintiffs grievances or “results of investigation by foreman.” The following exhibits fall within this objection and have not been excluded by Judge Leon’s Order- 92—100 and 106—108. Defendant objects to the exhibits on several grounds: (l) the exhibits are either grievances or are “results of investigation,” and they should be excluded for the same reasons as the exhibits relating to the EEOC or Office of Civil Rights investigations, (2) the exhibits are hearsay, and (3) the exhibits contain material excluded by Judge Leon’s previous Orders. As to the first ground, the Court will sustain defendant’s objection. At the May 13, 2010, evidentiary hearing, Judge Leon stated in reference 40a to the EEOC and Office of Civil Rights investigations- “I am not going to let this be turned into a trial about the investigation that was conducted and the quality of the investigation and any allegation that you believe is out there about failure to investigate because I don’t think believe that’s what this case is supposed to be about. “ Tr. 97:19-23 [165]. As discussed above, he then excluded all exhibits that pertain to the EEOC or Office of Civil Rights’ investigations [166]. The Court finds that similar logic applies to the grievance and results of investigation exhibits as to the EEOC and Office of Civil Rights investigations exhibits. The Court finds that the jury would be confused by these exhibits at trial, because neither the grievances nor the sufficiency of WMATA’s responses to the grievances are at issue. Thus, in accordance with Judge Leon’s prior rulings, the Court will exclude 41a these exhibits. Because the Court is sustaining defendant’s objection on the first ground, the Court does not reach the second or third grounds. The Court notes, however, that the fisted exhibits would have been subject to serious hearsay concerns. Third, the Court will defer judgment on defendant’s objection to plaintiffs exhibits that contain correspondence between plaintiff and politicians. The following exhibits fall within this objection and have not been excluded by Judge Leon’s Order: 121—123. The Court finds that defendant’s objections are simply hearsay objections that the Court can resolve during trial. The Court will address all hearsay and any other evidentiary objections at trial. Finally, the Court will sustain defendant’s objection to the introduction of the depositions of Cynthia Myers and Devin Walker. These depositions 42a are barred by Judge Leon’s minute order dated September 24, 2007, and his order [166] dated September 22, 2010. In these orders, Judge Leon ruled that all evidence of the EEOC and Office of Civil Rights investigations is not admissible. This includes deposition testimony. After review of Ms. Myers and Mr. Walker’s depositions, the Court concludes that these depositions do not shed light on any of the plaintiffs actual allegations; rather, these deponents discuss the EEOC and Office of Civil Rights investigations. Furthermore, although Ms. Myers is WMATA’s 30(b)(6) deponent on anti- discrimination and anti-retaliation polices, the Court finds that this testimony is no longer relevant in light of defendant’s statement that it will not assert an affirmative defense under Faragher v. City o f Boca Raton, 524 U.S. 775 (1998). Defendant has stated ̂“WMATA is no longer asserting that it had 43a an established policy against sexual harassment and that it exercised reasonable care to prevent and correct any harassment and that the plaintiff unreasonably failed to take advantage of any corrective or preventive opportunities provided by WMATA.” Def.’s Mot. Exclude Test. 4 [143], Because defendant’s policies are no longer at issue, Ms. Myers’s 30(b)(6) testimony is no longer relevant. Accordingly, it is hereby ORDERED that to the extent that plaintiff listed the following exhibits for use at trial in her Second Amended Pretrial Statement [167], defendant’s objection to their introduction at trial is SUSTAINED: 1-19, 22-32, 34-58, 66-76, 79-120, and 124—130; and it is furthermore ORDERED that the Court will DEFER JUDGMENT on defendant’s objections to plaintiffs 44a remaining exhibits, which arê 20—21, 33, 59—65, 77-78, 121-123, and 131-132; and it is furthermore ORDERED that the defendant’s objection to the introduction of the depositions of Cynthia Myers and Devin Walker is SUSTAINED; and it is furthermore ORDERED that counsel shall call their witnesses and produce evidence as indicated in their pretrial conference discussions and in accordance with their Second Amended Pretrial Statements and any permitted modifications thereto. SO ORDERED. Signed by Royce C. Lamberth, Chief Judge, on February 15, 2011. 45a APPENDIX F UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA NIAMKE KEYS, ) ) Plaintiff, ) ) v. ) Civil Action ) No. 01-2619 WASHINGTON METROPOLITAN ) (RCL) AREA TRANSIT AUTHORITY, ) ) Defendant. ) ORDER (September 22, 2010) [163] Now before the Court is defendant Washington Metropolitan Area Transit Authority’s (“WMATA”) Motion in Limine to exclude plaintiffs exhibits. WMATA objects to all of plaintiffs exhibits on the grounds that they are inadmissible hearsay., In addition, WMATA objects to specific exhibits on the basis of nine separate categories. They are- 46a (1) exhibits that pertain to the EEOC or Office of Civil Rights’ investigation; (2) exhibits that do not concern the three alleged discrimination officials (Morford, Matthews, or Thompson; (3) exhibits that pertain to dismissed plaintiff Sherri Sims; (4) exhibits that reference discrete acts that were not administratively exhausted; (5) exhibits that relate to plaintiffs grievances or “results of investigations by foreman”; (6) exhibits that contain allegations prior to January 2000 and are thus barred by Judge Friedman’s Order in Bansal v. WMATA, No. 96-2228; (7) exhibits that are barred by this Court’s April 27, 2005 Order dismissing claims of retaliation and any claims of discrete acts which occurred prior to August 1996 and prior to June 29, 1999; (8) correspondence between plaintiff and politicians; (9) exhibits barred by WMATA’s conceded Sept. 13, 2006 Motion in Limine [#103]. 47a It is hereby ORDERED that WMATA’s Motion in Limine [#163] is GRANTED in part and DENIED in part. Specifically, WMATA’s Motion in Limine is, as to WMATA’s reqauest that all of plaintiffs exhibits be excluded as heresay, DENIED as to categoriesl-3 and 7, GRANTED; as to categories 6, GRANTED IN PART insofar as the Court will exclude any exhibits that concern allegations of events that occurred prior to June 29, 1999 and DENIED IN PART insofar as the Court will allow exhibits that concern allegations of events that occurred on or between June 29, 1999 and January 13, 2000; as to category 9, DENIED as moot; as to categories 4, 5, and 8m, the Court will reserve judgment for Chief Judge Royce C. Lamberth, who has graciously agreed to preside over the trial of this case; and it is further ORDERED that the parties are to file updated Pretrial Statements consistent with this Order not later than October 22nd . 2010. SO ORDERED. M __________________________ RICHARD J. LEON United States District Judge 48a APPENDIX G UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA NIAMKE KEYS, et al. ) ) Plaintiff, ) ) v. ) Civil Action ) No. 01-2619 WASHINGTON METROPOLITAN) (RCL) AREA TRANSIT AUTHORITY, ) ) Defendant. ) MEMORANDUM OPINION (September 18, 2008) This matter is before the Court on defendant's motions to exclude the testimony of plaintiffs expert and to exclude evidence of certain alleged discriminatory acts, and plaintiffs' motions for reconsideration. Because the expert testimony will not assist the trier of fact, and the evidence at issue is insufficiently related to 49a plaintiffs hostile work environment claim, defendant's motions are GRANTED in part and DENIED in part. Plaintiff Keys and former plaintiff Sherri Sims do not provide any new evidence or argument in support of their reconsideration motions; therefore, those motions are DENIED. BACKGROUND Plaintiff Niamke Keys-an employee of the Washington Metropolitan Area Transit Authority (WMATA)-filed suit pursuant to Title VII and other statutes, alleging that she is a victim of discrimination, retaliation, and a hostile work environment. On April 27, 2005, the Court dismissed all of plaintiffs claims, except the allegations of gender discrimination and a hostile work environment. The case is set to proceed to trial on these remaining claims. 50a The defendant made two motions seeking to exclude evidence at trial. The first motion aims to prevent plaintiff from introducing certain evidence at trial; the second argues for the exclusion of the testimony of plaintiffs expert witness. Plaintiff filed the EEOC complaint that forms the basis of this case on November 22, 2000. Def.'s Mot. to Exclude Evidence of Alleged Discriminatory Acts ("Def. Evid. Mot.") at 2. Originally claiming retaliation, she amended the charge on January 2, 2001 to allege a hostile work environment. Id. Plaintiff names three supervisors in her EEOC charge. However, to support her hostile work environment claim, she seeks to introduce evidence of discriminatory treatment by individuals unnamed in the document. Plaintiffs interaction with these other individuals took place in other W1VLATA offices over the course of her 20 years of 51a employment. Id. at 8-10. Defendant insists that these allegations are no longer actionable on their own either because they fall outside the statute of limitations in Title VII or because they were not administratively exhausted. Defendant therefore urges that evidence pertaining to those allegations be excluded from the present case. Id. at 8. Defendant also opposes plaintiffs use of the expert testimony of Bernice Sandler at trial. Plaintiff offers Dr. Sandler's testimony as support for her argument that WMA TA failed to take adequate steps to prevent unlawful employment practices and that WMATA's policies and procedures are deficient. PL Opp. Mot. t 7. D e f e n d a n t moved to strike Dr. Sandler's testimony on multiple grounds, arguing that Dr. Sandler's testimony was no longer relevant because WMA TA did not intend to argue that it had an established 52a sexual harassment policy, that WMATA exercised reasonable care to prevent and correct sexually harassing behavior, or that the plaintiff unreasonably failed to take advantage of corrective or preventative opportunities presented by WMATA. Def. Mot. to Exclude Test, of Plaintiffs Expert ("Def. Expert Mot.") at 7. Defendant argues that because Dr. Sandler's testimony relates only to these non-relevant issues, it should be stricken. Plaintiff Keys and former plaintiff Sherri Sims each filed motions for reconsideration of this Court's earlier decisions. Keys asks the Court to reconsider its decision to exclude evidence of the findings from WMATA's Office of Civil Rights on her complaints of discrimination and retaliation. Sims moves for reconsideration of the dismissal of her case. ANALYSIS I. Motion to Exclude Expert Testimony 53a The Federal Rules of Evidence state that an expert may testify if that testimony "will assist the trier of fact to understand the evidence or to determine a fact in issue." Fed. R. Evid. 702. Under the two-step Daubert test, expert testimony must be excluded ifi (l) it is not reliable? or (2) it is not relevant. Daubert v. M errell DowPbarms., Inc., 509 U.S. 579, 597 (1993) (Rule 702 assigns to the trial judge the task of ensuring "that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand."). Assuming that Dr. Sandler's methods and techniques are reliable, the Court finds that the second factor of the Daubert test- relevance -is not met in this case. Expert testimony is irrelevant if it has no bearing on any issue in the case, Halcomb v. Washington M etro. Area Transit Auth.,.526F. Supp. 2d 24, 31(D.D.C.2007), or if it "relates to matters of 54a common sense" that a jury can decide for itself. Robertson v. McCloskey, 676 F. Supp. 351,353 (D.D.C. 1988); see also Salem v. United States Lines Co., 370 U.S. 31, 35(1962) (a court can exclude expert testimony "if all the primary facts can be accurately and intelligibly described to the jury, and if they... are as capable of comprehending the primary facts and of drawing correct conclusions from them as are witnesses possessed of special or peculiar training....") (internal citations omitted). The plaintiff offers Dr. Sandler's testimony in support of its allegation that "WMATA failed to take adequate steps to prevent the unlawful employment practices against Plaintiff Keys and regarding the deficiencies of WMA TA's policies and procedures with regard to the pervasive work gender discrimination and retaliatory and sexual hostile work environment in the record." PI. Opp. 55a Mot. 7. Because this information is neither relevant to the case as it currently stands nor helpful to the trier of fact, it will be excluded. The evidence is irrelevant because WMATA has represented that it will no longer assert that it had an established sexual harassment policy, that it exercised reasonable care to prevent and correct sexually harassing behavior, or that the plaintiff unreasonably failed to take advantage of corrective or preventative opportunities presented by WMA TA. Def. Expert Mot. at 7. In essence, WMATA will not assert the affirmative defense laid out by the Supreme Court in Faragher v. Boca Raton, 524 U.S. 775, 807 (1998). See also Burlington Indus., Inc. v. EUerth, 524 U.S. 742, 765 (1998) ("The defense comprises two necessary elements' (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing 56a behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise"). In the absence of this affirmative defense, a plaintiff can prove vicarious liability by showing a supervisor with immediate (or successively higher) authority over the employee created an actionable hostile work environment. Faragher, 524 U.S. at 807. Defendant's sexual harassment policies thus have no relevance to the plaintiffs case, and the expert's testimony, which sheds light only on topics covered in the affirmative defense, will be excluded. See Halcomb, 526 F. Supp. 2d at 31 (excluding expert testimony that had no bearing on plaintiffs claims). Moreover, even if the evidence of a sexual harassment policy were relevant to the case, questions of WMATA's failure to prevent the 57a discrimination or deficiencies in the sexual harassment policy are readily answerable by the jurors themselves. Indeed, a jury is capable of comprehending the facts and drawing correct conclusions about WMATA1 s actions and policies _or lack thereof • without the assistance of an expert. In the final analysis, the matter is one of "common sense," Robertson, 676 F. App. at 353, and therefore not an area where expert testimony will "assist the trier of fact." Fed. R. Evid. 702. As Professor Wigmore stated, the admissibility of expert testimony is guided by one essential question "On this subject can a jury from this person receive appreciable help?" WIGMORE ON EVIDENCE § 1923(3d ed. 1940). With respect to Dr. Sandler, the answer in this instance is "no." The Court will therefore exclude her testimony. 58a II. Motion to Exclude Evidence Evidence is relevant if it has a "tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401. Relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." Fed. R. Evid. 403. A district court has wide discretion to determine the admissibility of evidence, and assessments of the evidence's probative value and dangers are matters "first for the district court's sound judgment." Sprint/United Mgmt. Co. v. Mendelsohn, 128 S.Ct. 1140, 1145 (2008) (quoting United States v. Abel, 469 U.S. 45, 54 (1984)). 59a It is up to the court "to determine whether the acts about which an employee complains are part of the same actionable hostile work environment practice." National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 120 (2002). Conduct that "involve [s] the same type of employment actions, occur[s] relatively frequently, and [is\ perpetrated by the same managers" can be included in a single hostile work environment claim. Morgan, 536 U.S. at 120 (emphasis added); see also Vickers v. Powell, 493 F.3d 186, 199 (D.C. Cir. 2007); Akonji v. Unity Healthcare, Inc., 517 F. Supp. 2d 83, 92 (D.D.C. 2007). Absent a showing that the alleged discriminatory acts of individuals not named in her EEOC charge are part of plaintiffs current hostile work environment claim, evidence of those incidents cannot be included as part of this case. 60a The plaintiff has failed to show an adequate connection between the conduct alleged in the EEOC charge -which was perpetrated by three named managers -and various other actions spanning twenty years, sixteen supervisors, and several different work sites. See Greer v. Paulson, 505 F.3d 1306, 1314-16 (D.C. Cir. 2007) (a court "cannot infer [continuity of one hostile environment] after the passage of time, particularly [where] the employer has presented evidence of 'intervening action'" such as reassignments to new supervisors and work sites). Therefore, allegations against supervisors other than those named in the EEOC charge are inadmissible because plaintiff did not show they were part of a single hostile work environment rather than a series of independent, unrelated acts. 61a WMATA argues that certain acts involving the three managers named in the charge - Ernest Matthews, James Thompson, and Kenneth Morford •are untimely and should also be barred. The Court disagrees. Acts that are part of a hostile work environment claim ■ as all harassing conduct alleged to have been performed by these managers undoubtedly are -and that occurred outside the statutory filing period may be considered "so long as at least one of the acts that contributed to the hostile environment occurs within the filing period." Vickers, 493 F.3d at 198. The plaintiff stated in the EEOC charge that the most recent act of discrimination took place on October 10, 2000, well within the filing period. Therefore, any acts involving these three managers - whether alleged in the complaint or not -are not time barred and can be presented to the jury. 62a III. Motions for Reconsideration Finally, plaintiff Keys and former plaintiff Sherri Sims each move for reconsideration of this Court's past decisions. Because neither plaintiff provides new evidence or persuasive arguments as to why the Court should not abide by its earlier decisions, both motions are denied. CONCLUSION For the foregoing reasons, defendant's motion to exclude expert Bernice Sandler's testimony is GRANTED. Defendant's motion to exclude any evidence of alleged discriminatory acts that are untimely, not exhausted or outside the scope of plaintiffs EEOC charge is GRANTED in part and DENIED in part. The two motions for reconsideration - one filed by plaintiff Keys, the other by former plaintiff Sims - are also DENIED. 63a /s/_____________________ RICHARD J. LEON United States District Judge 64a UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA NIAMKE KEYS, ) ) Plaintiff, ) ) v. ) Civil Action ) No. 01-2619 WASHINGTON METROPOLITAN ) (RCL) AREA TRANSIT AUTHORITY, ) ) Defendant. ) ORDER For the reasons set forth in the Memorandum Opinion entered this 18th day of September, 2008, it is hereby ORDERED that the Defendant’s Motion for Exclusion of Bernice Sandler’s Testimony is GRANTED. It is further ORDERED that Defendant’s Motion in Limine to Exclude Any Evidence of Alleged Discriminatory Acts is GRANTED in part and 65a DENIED in part. Evidence of conduct that does not involve one of the three managers named in the EEOC charge is inadmissible. It is further ORDERED that plaintiffs Motion for Reconsideration of Trial Court’s Ruling Excluding Evidence of WMATA’s Office of Civil Rights Findings Regarding Keys’ Complaints of Unlawful Employment Discrimination is DENIED. It is further ORDERED that former plaintiff Sims’ Motion for Reconsideration of the Trial Judge’s Order Dismissing Her Gender Discrimination, Retaliation and Hostile Work Environment Claims is DENIED. SO ORDERED. IsL___________________________ RICHARD J. LEON United States District Judge 66a APPENDIX H UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA NIAMKE KEYS, et al. ) ) Plaintiff, ) ) v. ) Civil Action ) No. 01-2619 WASHINGTON METROPOLITAN) (RCL) AREA TRANSIT AUTHORITY, ) ) Defendant. ) MEMORANDUM OPINION AND ORDER (April 27, 2005) [# 14, 57] The plaintiffs, Niamke Keys and Sherri Sims, are employed by Washington Metropolitan Area Transit Authority ("WMATA") as mechanics, and they allege that WMATA has subjected them to a policy and practice of discouraging and abusing women who function as mechanics. They argue that this policy violates the D.C. Human Rights Act and Title VII, and that the violations have altered their 67a working conditions in violation of § 1981. Moreover, they allege that the discriminatory conduct by WMATA's employees was intentional and severe enough to entitle them to relief for intentional infliction of emotional distress. Before this Court are two dispositive motions filed by WMATA. The first is a motion to dismiss the §1981 claims, the D.C. Human Rights Act claims, the intentional infliction of emotional distress claims, and any claims for punitive damages. The second motion is one for summary judgment on the remaining theories, including gender discrimination, hostile work environment, and retaliation in violation of Title VII For the following reasons, the Court GRANTS the Motion to Dismiss, and GRANTS IN PART AND DENIES IN PART the Motion for Summary Judgment. 68a MOTION TO DISMISS To succeed on a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the defendant must persuade the Court that the plaintiffs have failed to allege sufficient facts to state a claim upon which relief could be granted. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In considering a motion to dismiss, this Court must construe the factual allegations in favor of the plaintiffs. Scheuer v. Rhodes, 416 U.S. 232, 236, overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982). If the defendant can show that there is no set of facts on which the plaintiffs could recover, the motion must be granted. Conley, 355 U.S. at 45-46. In their opposition to WMATA's motion to dismiss, plaintiffs conceded that they could not state a claim pursuant to either the D.C. Human Rights Act or§ 1981, effectively leaving only the intentional 69a infliction of emotional distress ("IIED") claim. In order to state a claim against a corporation for the intentional torts committed by its employees, the plaintiffs must establish the corporation's liability under the theory of respondeat superior. A corporation is only liable for the torts of its employees if those acts are committed within the scope of their employment. Penn Central Transp. Co. v. Reddick, 398 A.2d 27, 29 (D.C. 1979). "The mere existence of the master and servant relationship is not enough to impose liability on the master." Id. Accordingly, plaintiffs must plead facts, which, if true, demonstrate that the alleged conduct of WMATA's employees was an outgrowth of their work assignments, or an integral part of their business activities, interests, or objectives, thereby establishing WMATA's liability for its employees' conduct. Id. at 31-32. They have not done so here. 70a Indeed, in their opposition to the motion to dismiss, plaintiffs admit that the alleged physical assault and other incidents of harassment "were by no means within the scope of the official duties of WMATA employees." Opp'n at 3. Thus, plaintiffs have failed to state a claim for IIED against i WMATA and Count IV is dismissed. MOTION FOR SUMMARY JUDGMENT In order to prevail on summary judgment, the moving party must demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 560. The moving party may rely on "the pleadings, depositions, answers to interrogatories, and admissions on file, together 1 1 Because of its ruling on the IIED claim, the Court will not address the punitive damages issues raised in the motion to dismiss. 71a with the affidavits, if any," to show that there is no genuine issues for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). To defeat a summary judgment molion, the non- moving party may not rely solely on allegations or conclusory statements. Anderson v. Liberty Lobby, Inc., A ll U.S. 242, 255 (1986). Instead, the non-moving party must present evidence that creates a genuine issue as to any material fact. Id. In considering the motion, the Court must draw all justifiable inferences in the non-moving party's favor. Id. at 255. A Timeliness of Gender Discrimination and Hostile Work Environment Claims Title VII makes it unlawful "to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's ...sex...." 42 U.S.C. § 2000e-2(a)(l). The plaintiffs allege 72a that WMATA violated Title VII because it carried out a policy and practice of discriminating against women by subjecting them to gender discrimination, a hostile work environment, and retaliation. 2nd Am. Compl.§§ 67-68, 71. Before filing a suit under Tit le VII, however, a plaintiff must exhaust her administrative remedies by filing a complaint with the EEOC regarding the alleged discriminatory actions. Park v. Howard Univ., 7IF.3d 904, 907 (D.C. Cir. 1995). Here, the plaintiffs' claims are partially based on conduct that allegedly occurred outside of the 180‘day limitations period. Because this Court has authority to consider only those actions that were administratively exhausted, id., it must first determine which of the alleged actions can form a basis of the plaintiffs' Title VII claims. The Court will review separately each of plaintiffs' claims. 73a 1. Sims'Allegations of Hostile Work Environment and Sexual Harassment are Time Barred The EEOC complaint filed by Sims on December 22, 2000, contains several allegations^ (1) sexual harassment by Mr. Thompson; (2) unfavorable job assignments; (3) failure to thoroughly investigate complaints,' and (4) unnecessary written disciplinary reports. PL Ex. C, at 458_59. WMATA argues that the gender discrimination and hostile work environment claims raised by Sims in this action should be dismissed as untimely because her EEOC complaint contains no allegations of any sexual harassment by Mr. Thompson that occurred within 180 days of the EEOC complaint. Mot. Summ. J. at 9. The Court agrees and grants summary judgment for the defendant on Sims' gender discrimination and hostile work environment claims, which are based 74a on the alleged sexual harassment imposed upon her by Mr. Thompson. In a Title VTI action, Sims can properly challenge only those allegations that were contained in an EEOC complaint, or are "like or reasonably related to the allegations of the charge and growD out of such allegations." Park, 71 F.3d at 907 (internal quotation marks omitted). Any allegation in an EEOC complaint, however, is time-barred if it is not filed within 180 days of the employment practice. N at’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002). Although Sims' affidavit in support of her EEOC complaint alleges harassment by Mr. Thompson beginning as early as 1990, the latest allegation made by her concerning Mr. Thompson's sexual harassment occurred in April 2000. PI. Ex. C, at 458-59. Sims filed her EEOC complaint alleging sexual harassment 75a on December 22, 2000. Def. Stmt. Facts if 13. Even if the April 2000 incident occurred on the last day of the month, more than 180 days had elapsed before Sims filed her complaint. Therefore, her 2 claims based on sexual harassment are untimely. Accordingly, the gender discrimination claims in Count I and the hostile work environment claims in Count II are dismissed as to Sims. 2. Keys' Discrimination and Retaliation Claims Based on Discrete Acts are Untimely The EEOC complaint filed by Keys on November 22, 2000, and amended on January 2, 2001, contains allegations ofi (l) retaliation,' (2) harassment; (3) unlawful reassignment; (4) undesirable work assignments,' and (5) hostile 2 The Court also notes that the EEOC found that Sims’ “sexual harassment claim [was] untimely....” Def. Ex. 17. 76a work environment. PL Ex. C, at 304-05. WMATA similarly argues that Keys is unable to pursue discrimination and retaliation claims on the basis of actions that were not timely pursued. The Court agrees for the following reasons. First, because Keys did not bring a suit after receiving a right to sue letter following her August 2, 1996 EEOC complaint, she has waived any sex, race, religious discrimination, and retaliation claims that occurred prior to August 1996. Indeed, it is well established that a failure to file suit within 90 days after receiving a right to sue letter is grounds for dismissal. Josiah-Faeduwor v. Communications Satellite Corp., 785 F.2d 344, 345 (D.C. Cir. 1986). Thus, since Keys did not file an action based on her August 1996 EEOC complaint, she has waived her right to recover for any 77a retaliation claims and any discrimination claims based on the discrete acts that occurred prior to August 1996. Similarly, Keys has waived her right to file any retaliation claims for any incidents prior to June 29, 1999, the day she filed her EEOC complaint alleging retaliation. PL Ex. C, at 274. There is no evidence in the record to demonstrate that Keys filed a civil action after receiving her right to sue notice on September 17, 1999. Since Keys did not file an action within 90 days of receiving the right to sue letter, she waived any claims for incidents of 3 retaliation that occurred prior to June 29, 1999. 3 3 WMATA also argues that Keys' discrimination claims arising out of her 1996 and 1999 charges are untimely because she did not file an individual action following the Bansal action. Because the Court has determined that Keys waived any discrimination claims based on discrete acts alleged in the 1996 and 1999 EEOC complaint, it need not 78a 3. Keys' Gender Discrimination and Hostile Work Environment Claims are Timely Keys' claims for gender discrimination and hostile work environment under Title VII are based on the allegation that WMATA had a policy of discouraging and abusing woman who worked as mechanics. Indeed, gender discrimination "includes creating a hostile or abusive work environment if the harassment is sufficiently abusive to affect a 'term, condition, or privilege' of employment." Davis v. Coastal In ti Sec., Inc., 275 F.3d 1119, 1122 (D.C. Cir. 2002) (citation omitted). Since Keys' gender discrimination claims are, in essence, based on her hostile work environment allegation, the Court must determine whether she address this argument. 79a timely raised these allegations in her EEOC complaint and, if so, which actions may be considered by the Court in determining liability. In her EEOC complaint, as amended on January 2, 2001, Keys alleged that she was "subjected to a hostile work environment due to the harassment by supervisors...." PI. Ex. C, at 304-05. In support of this allegation, Keys identifies several discrete acts that contributed to the hostile work environment. Id. WMATA contends that Keys' attempt to cobble together discrete acts of discrimination and retaliation that occurred both prior to and after the date of her original complaint are legally insufficient to state a hostile work environment claim. The Court disagrees. A hostile work environment claim "is composed of a series of separate acts that 80a collectively constitute one 'unlawful employment practice.'" N atl R.R., 536 U.S. at 117. The Supreme Court has held that the term "practice" applies to both discrete acts and single occurrences, each starting a new clock for filing charges with the EEOC. Id. at 112. Indeed, where discrete acts of discrimination are separately actionable "unlawful employment practice[s]," id. at 114, a hostile work environment claim is "based on the cumulative effect of individual acts," id. at 115. Accordingly, if Keys' EEOC complaint, as amended, alleges any act "contributing to the claim" that occurred within the 180-day limitations period, "the entire time period of the hostile environment may be considered by a Court for the purposes of determining liability." Id. at 117. Here, in her EEOC complaint, Keys made allegations supporting 81a her hostile work environment claim that occurred within the required 180 days, therefore making her hostile work environment claim timely. Accordingly, the Court denies WMATA's motion for summary judgment as to Keys' gender discrimination and hostile work environment claims. B. Keys' and Sims' Retaliation Claims To state a claim for retaliation under Title VII, a plaintiff must show that: (l) she was engaged in a protected activity; (2) there was an adverse personnel action; and (3) there was a causal connection between the protected activity and the personnel action. Morgan v. Fed. Home Loan Mortgage Corp., 328 F.3d 647, 651 (D.C. Cir. 2003). Neither Keys, nor Sims, have met these requirements. 82a In her November 22, 2000 EEOC complaint, as amended on January 2, 2001, Keys alleged that her supervisor "harassed" her because she had complained of harassment in the past. PI. Ex. C, at 304-05. These allegedly retaliatory acts of harassment included Keys reassignment to a different shop and the requirement that she work on an undesirable project. Id. Assuming arguendo that Keys' allegations of retaliation for complaining about the harassment she was allegedly experiencing rise to the level of actionable personnel decisions, Keys still must demonstrate a causal connection between the protected activity (i.e., complaints about harassment) and the alleged retaliation. She has failed to do so here. Seventeen months elapsed between Keys' protected activity in 1999 and her 83a reassignment to the Motor Shop in June 2000. Keys Affidavit f 4 (showing no activity between filing her EEOC complaint and the reassignment). There is no evidence in the record to establish, or even infer,4 the existence of a causal connection between Keys protected activity and her reassignment over a year later. Moreover, there is no evidence in the record to demonstrate that Keys was assigned to an undesirable project in retaliation for her protected activity. Accordingly, 4 Absent direct evidence establishing the causal connection, "[a] causal connection may be inferred by showing that the employer had knowledge of the employee's protected activity, and that the adverse personnel action took place shortly after that activity." Brodetski v. Duffey, 141 F. Supp. 2d 35, 42 (D.D.C. 2001) (internal quotation marks omitted). But, a reliance on temporal proximity requires that the plaintiff demonstrate tht only a short period of time elapsed between the protected activity and the adverse action. Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001). 84a WMATA is granted summary judgment as to Keys' retaliation portion of Count II because there is insufficient evidence of a causal connection between her protected activity and the retaliation she alleges. Finally, with regard to Sims, in her EEOC complaint she alleged that her supervisor retaliated against her by issuing unnecessary written disciplinary reports. PI. Ex. C, at 458_59. While adverse personnel decisions are actionable if they "constitute 0 a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits," Burlington Industs., Inc. v. Ellerth, 524 U.S. 742, 761 (1998), our Circuit has held that formal criticism or poor performance 85a evaluations are not adverse personnel actions, Brown v. Brody, 199 F.3d 446, 458 (D.C. Cir. 1999). Moreover, "an employment decision does not rise to the level of an actionable adverse: action,... unless there is a tangible change in duties or working conditions constituting a material employment disadvantage." Walker v. WMATA, 102 F. Supp. 2d 24, 29 (D.D.C. 2000). Since Sims has failed to demonstrate any tangible change in her duties or working conditions as a result of this alleged retaliation, WMATA's motion for summary judgment as to her allegations of retaliation is granted. ORDER For the reasons set forth above, it is this 27th day of April, 2005 hereby 86a ORDERED that the Defendant's Motion to Dismiss Parts of Counts I and II, All of Counts III and IV, and Any Claim for Punitive Damages of the. Second Amended Complaint of Joint Plaintiffs Keys and Sims [# 14] is GRANTED, and it is further ORDERED that the Defendant's Motion for Summary Judgment [# 57] is GRANTED IN PART AND DENIED IN PART, and it is further ORDERED that the parties shall appear for a Status Conference on May 12th. 2005 at 3-00. SO ORDERED. M ______________________________ RICHARD J. LEON United States District Judge 87a APPENDIX I From: PCD ECFNotice@dcd.uscourts.gov To: PCD ECFNotice@dcd.uscourts.gov Subject: Activity in Case l:01-cv-02619-RJL KEYS et al v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY “Order on Motion for Reconsideration” Date: Mon, 14 Nov 2005 16:38:31 -0500 ***NOTE TO PUBLIC ACCESS USERS*** You may view the filed documents once without charge. To avoid later charges, download a copy of each document during this first viewing. U.S. District Court District of Columbia Notice of Electronic Filing The following transaction was received from lcrjll, entered on 11/14/2005 at 4:38 PM EDT and filed on 11/14/2005 Case Name: KEYS et al v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY Case Number: LOl-cv-2619 Filer-' Document Number: mailto:PCD_ECFNotice@dcd.uscourts.gov mailto:PCD_ECFNotice@dcd.uscourts.gov 88a Docket text: MINUTE ORDER denying [85] MOTION for Reconsideration re [84] Memorandum & Opinion. It is further ORDERED that the parties appear for a status hearing in Courtroom #7 at 11 -00am on December 20, 2005. Signed by Judge Richard J. Leon on 11/14/05. (lcrjll,) The following document(s) are associated with this transaction. LOl-cv-2619 Notice will be electronically mailed to: Corliss Vaughn Adams corhssv@att.net. Robert L. Bell Bumble842@aol.com, Janice Lynn Cole ilcole@wmata.com. Jay R. Goldman jgoldman@wmata.com l :01'cv*2619 Notice will be electronically mailed to: mailto:corhssv@att.net mailto:Bumble842@aol.com mailto:ilcole@wmata.com mailto:jgoldman@wmata.com 89a APPENDIX J UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA F I L E D NIAMKE KEYS, et al., ) AUG 30 2003 ) Plaintiffs, ) n a n c y m a y e r ) WHITTINGTON, CLERK ) U.S. DISTRICT COURT v. ) Civil Case ) Number 01- WASHINGTON METROPOLITAN) 2619 (RJL) AREA TRANSIT AUTHORITY ) ECF MEMORANDUM OPINION AND ORDER (August 30, 2003) (#29) Before the Court is plaintiffs' self-styled motion for a "preliminary injunction. " Plaintiffs - Niamke Keys ("Keys") and Sherri D. Sims ("Sims") -filed this motion on October 1, 2002, almost one year after filing their complaint in this case. They ask this Court to enjoin the defendant, Washington Metropolitan Area Transportation Authority ("WMATA"), "from taking any further 90a action in retaliation against Plaintiffs and to create a non-hostile work environment for Plaintiffs . . . in ...WMATA's Component Shop until such time as the Court may hear and decide Plaintiffs' case on the merits." Pls.'s Mot. at 1. Because plaintiffs have failed to show the existence of any irreparable, let alone imminent, harm, the Court denies plaintiffs' motion for a preliminary injunction. STATEMENT OF THE FACTS Plaintiffs Niamke Keys and Sherri D. Sims are both employees of WMATA, and have been employed by WMATA since 1984 and 1986, respectively. In the underlying second amended complaint filed in this Court on January 3, 2002,1 both plaintiffs claim that they have suffered discrimination on the basis 'Plaintiffs filed their original complaint on December 17, 2001. 91a of their race (African American); sexual harassment; retaliation; and a hostile work environment on the basis of both sex and race due to the actions of their colleagues and supervisors at WMATA. In their motion for injunctive relief, plaintiffs contend that even though they both have been on extended leaves of absence (Sims since August 2002 and Keys since August 2001) immediate injunctive relief is necessary as they continue to suffer repeated and ongoing acts of retaliation. However, neither has cited an example of any such conduct that has occurred after their leave of absence commenced and is now ongoing. Indeed Keys - who has been on leave from WMATA since August 2001 due to emotional distress * lists the same acts of alleged discriminatory conduct in her motion for a preliminary injunction that she included in her complaint, some of which occurred as long as seven 92a years ago.2 Keys argues that injunctive relief is now required so that she can “return to a non-hostile work environment.” Plt.’s Mot. At 16. 2Plainti£f Keys, like Sims, is currently on leave from WMATA. Keys contends that her doctor forced her to take leave beginning in August 2001 in order to recover from emotional distress caused by the retaliation and harassment she experienced at WMATA. Both in the amended complaint and in her motion for preliminary injunction, Sims makes the following allegations^ that WMATA supervisors gave her unfavorable work assignments when other workers of comparable seniority, or less, did not receive those assignments; that she was forced to work with a WMATA employee whom she had accused of sexually harassing her; that supervisors gave her poor work evaluations and harassed her in retaliation for complaints Keys filed with the Equal Employment Opportunity Commission (“EEOC”); that supervisors gave her tasks which they knew would be impossible for Sims to physically perform; and that she was physically assaulted by a supervisor. In response to these events, Keys claims that she filed grievances with WMATA and the District of Columbia Office of Human Rights (“DCOHR”), as well as complaints with the EEOC. Keys alleges that WMATA’s Office of Civil Rights found there was “sufficient evidence to support a probable cause finding that the reassignment of. . . Keys . . . was a ‘violation of WMATA’s Equal Opportunity Policy...’” 93a As to Sims, WMATA denies that the events that occurred after plaintiffs’ amended complaint was filed and which culminated in her medical leave of absence were the result of discrimination or retaliation by its employees.3 Indeed, her supervisors all state in their affidavits that they have no intention of terminating Sims’ employment or encouraging Sims to resign once she has recovered 3Sims claims that in July 2002, she was assigned to a WMATA work station (i.e., the “Brentwood Paint Booth” or “Ramp”) that was unsafe and dangerous due to the presence of toxic fumes. See Sims Aff. 8‘9. While working there, she claims she was the subject of harassment by her supervisors and co workers and became ill from the paint fumes. See id. f 8. At some point in early August 2002, while seeking medical attention for her adverse reaction to the fumes, she was required to submit to a drug test due to her supervisor’s alleged belief that she was either under the influence of drugs, or alcohol, while at work. During the pendency of the drug testing, Sims was diagnosed by a psychiatrist as suffering from an “adjustment disorder with anxious/depressive mood due to work related stress.” Id at If 25. She has been on leave from WMATA due to this disability since September 18, 2002. See id. f 30. 94a from the condition which is the basis of her medical leave. See Morford Aff. f 9; Matthews Aff. H 115 Thompson Aff. f 10. STANDARD OF REVIEW To obtain preliminary injunctive relief, plaintiffs must demonstrate the following factors-’ l) substantial likelihood of success on the merits! 2) that they would suffer irreparable injury if the defendant were not enjoined; (3) that an injunction would not substantially injure other interested parties, and 4) that the public interest favors issuing an injunction. See City Fed Financial Corp. v. Office o f Thrift Supervision, 58 F.3d 738, 746 (D.C. Cir. 1995); Mova Pharmaceutical Corp. v. Shalala, 140 F.3d 1060, 1066 (D.C. Cir. 1995). Plaintiffs need to make an equally strong showing as to each factor. Rather, the ‘factors should be viewed as a continuum more of one factor compensation for less of another.” 95a See Brown v. Artery, 654 F. Supp. 1106, 1114 (D.D.C. 1987). See also Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 559 F.2d 841, 843-44 (D.C. Cir. 1977); M assachusetts Law Reform Institute v. Legal Services Corp., 581 F.Supp. 1179, 1184 (D.D.C. 1984), affd, 737 F.2d 1206 (D.C. Cir. 1984). For the reasons set forth below, the Court finds that plaintiffs have not satisfied the test set forth in City Fed, therefore, their motion for preliminary injunction is denied. ANALYSIS Plaintiffs argue that they “will suffer irreparable harm if Defendant WMATA is allowed to continue to retaliate against them . . . while their cases are pending before this Court.” Pls.’s Mot. At 3 (emphasis added). Contrary to plaintiffs’ assertion, however, the alleged retaliation by WMATA is neither ongoing nor continuing. Plaintiff Sims has 96a been on leave from WMATA for almost one year: Plaintiff Keys for almost two. Plaintiff Sims argues that since she took leave, WMATA retaliated against her by applying its Medical Absenteeism policy in a discriminatory manner in order to prevent her from returning to work. However, as WMATA shows in its papers and exhibits, Sims failed to provide the necessary documentation of her medical leave in a timely manner, and she has been cleared by WMATA to return to work at any time.4 Any harm that occurred to Sims took place at least ten months ago, and neither Sims nor Keys offers evidence to show that WMATA or its employees have threatened or retaliated against the plaintiffs in any way since that time. Plaintiff Keys does not even allege that ASee Matthews Aff. f 11 10-11. See also Def.’s Opp’n Exh. “Department of Human Resources Office of Labor Relations Supervisor’s Labor Relations Manual May 1997. (Setting forth procedures for substance testing at work site). 97a any acts of discrimination or retaliation have occurred since the amended complaint was filed. Quite simply, there is no imminent harm the Court can enjoin.5 Furthermore, even if plaintiffs’ allegations were true, any economic harm plaintiffs have suffered due to their leaves of absence from work is best remedied, as WMATA contends, through monetary damages, rather than injunctive relief. In Beacon Theaters Inc. v. Westover, 359 U.S. 500, 506-07 (1959) (emphasis added), the Supreme Court made clear that the “basis of injunctive relief in the federal courts has always been irreparable harm and inadequacy o f legal rem edies.” Here, in their amended complaint, plaintiffs have sought a total of 5If WMATA were actively preventing defendant from returning to work by currently engaging in threats or other forms of retaliation, injunctive relief might be appropriate. However, this is not the case. 98a $6,000,000,000 in compensatory and punitive damages. Assuming, arguendo, plaintiffs claims survive defendant’s pending motion to dismiss, a legal remedy is available to plaintiffs to compensate them for the past occurrences of retaliation and discrimination. As plaintiffs are unable to make any showing of irreparable injury absent injunctive relief, the Court must deny plaintiffs’ motion for preliminary injunction. For the reasons set forth above, the Court hereby DENIES plaintiffs’ motion for preliminary injunction. SO ORDERED. M ________________________________________ RICHARD J. LEON UNITED STATES DISTRICT JUDGE 99a APPENDIX K UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Civil Division NIAMKE KEYS ) ) Plaintiff, ) ) v. ) Civil Action ) No. 01-2619 WASHINGTON METROPOLITAN ) (RCL DAR) AREA TRANSIT AUTHORITY, ) ) Defendant. ) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE WMATA’S MOTION IN LIMINE TO EXCLUDE PLAINTIFFS EXHIBITS Defendant moves in limine to exclude the following exhibits for the reasons cited herein and on the record at the hearing before the Court on May- 10, 2010. Because Plaintiff seeks to admit over 130 exhibits, WMATA has used a spread sheet, attached hereto as Exhibit 1, to chart its various objections to 100a each exhibit. An objection is noted by an asterisk) one exhibit may have several asterisks in multiple columns. WMATA discusses its objections, for most part, by way of the categories listed in Exhibit l .1 WMATA’s first objection is that all of Plaintiffs exhibits must be excluded as hearsay. All of Plaintiffs exhibits are hearsay; they are inadmissible as substantive proof of her allegations. Plaintiff may subpoena witnesses to testify where they may be cross_examined by Defendant in front of a jury; the jury will evaluate their credibility. But Plaintiff s documents must be excluded. 1WMATA refers to pages of the transcript of the hearing held May 13, 2008. It is WMATA’s understanding that the clerk’s office routinely files a copy of all transcripts on the docket. However, as of the day of this filing, WMATA has not seen a notice on the docket of the transcript’s being filed. WMATA will continue to check on the status and will send a courtesy copy of the transcript to both the Court and opposing counsel if the clerk’s office does not file the transcript in the next few days. 101a CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Defendant WMATA’s Motion in Limine was sent by e-mail to CORLISSV@ATT.NET this 9th day of August, 2010, tô Robert Bell, Esq. Bell Law Firm 1111 14th Street, NW Suite 777 Washington, DC 2005 Is/ Janice L. Cole Janice L. Cole mailto:CORLISSV@ATT.NET 102a APPENDIX L UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JACQUELINE WADE, ) ) Plaintiff, ) ) v. ) Civ No 01-0334 ) (TFH) WASHINGTON METROPOLITAN) Civ No 012385 AREA TRANSIT AUTHORITY, ) (TFH) et al. ) Defendants. ) MEMORANDUM OPINION Pending before the Court are Plaintiffs and Defendants' respective motions in limine and Defendant WMATA's motion for leave to present Rule 412 evidence. Having carefully considered the parties' submissions, oral arguments, and the entire record herein, the Court will grant the motions in part and deny the motions in part. 103a I. Plaintiffs Motion in Limine and Defendant WMATA's Motion for Leave Present Evidence Under Rule 412 of the Federal Rules of Evidence A. Testimony of Plaintiffs Alleged Sexual Behavior and/or Predisposition Testimony regarding Plaintiffs alleged sexual behavior may be admissible at trial on the issues of unwelcomeness, damages, and credibility. Such admissibility depends upon the testimony and evidence presented at trial. Whether the conduct Plaintiff complains of in her lawsuit was unwelcome is a material issue in this case. See Meritor Savings Bank v. Vinson. 477 U.S. 57,68 (1986) (quoting 29 C.F.R. § 1604.11(a)) ("The gravamen of any sexual harassment claim is that the alleged sexual advances were ’unwelcome"'). Plaintiffs alleged sexual conduct is also probative of the damages Plaintiff claims, as well as her credibility (if she testifies at trial that she never engaged in any of the 104a alleged conduct). Accordingly, the evidence regarding Plaintiff s sexual behavior is admissible if its probative value substantially outweighs the danger of harm or prejudice to Plaintiff. See Fed. R. Evid. 412(b)(2). As the Supreme Court stated in Vinson, the trier of fact in a hostile work environment case "must determine the existence of sexual harassment in light of 'the record as a whole' and 'the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred.'" Vinson. 477 U.S. at 69 (quoting 29 C.F.R. § 1604.11(b)). Clearly, the admission of this type of evidence would be damaging to Plaintiff. The fact that the conduct ascribed to Plaintiff, however, is similar in nature to the offensive conduct she alleges makes the contested testimony especially probative. The Court finds that the probative value of the challenged testimony substantially outweighs 105a the risk of harm or unfair prejudice to Plaintiff. Even though the challenged testimony passes the test of admissibility set forth in Rule 412, some may be excluded or limited, depending upon the evidence and testimony presented at trial. First, testimony or evidence regarding Plaintiffs alleged sexual behavior or predisposition of which the alleged perpetrators of the harassment in this case were unaware, shall not be admitted at trial. Testimony or evidence about any such conduct would have little, if any, probative value. Accordingly, such evidence is inadmissible. See Fed. R. Evid. 412(b)(2). Along those same lines, evidence regarding any activity outside of the workplace shall be barred, unless the alleged perpetrators of the harassment were present or involved. See Burns v. McGregor Electronic Indus.) Inc.. 989 F.2d 959, 963 (8th Cir. 1993) (holding plaintiffs "private life, regardless how reprehensible 106a the trier of fact might find it to be, did not provide lawful acquiescence to unwanted sexual advances at her work place by her employer"). Finally, it should be noted that the defense theory thus far has been fabrication. WMA T A denies that the incidents Plaintiff alleges ever actually occurred. If the defense chooses to pursue this theory at trial, the issue of unwelcomeness would drop out of the picture, eviscerating the probative value of the contested evidence on that issue. The evidence may still be allowed on the issues of credibility and/or damages, subject to a limiting instruction. B. Testimony of an Alleged Relationship with Michael Austin Testimony of an alleged relationship between Plaintiff and Michael Austin shall be allowed at trial. The Court finds that such evidence is admissible under Rule 412, as its probative value on 107a the issues of unwelcome ness, damages, and credibility substantially outweighs the danger of harm or unfair prejudice its admission would pose to Plaintiff. See Fed. R. Evid. 412(b )(2). Again, if at trial Defendant pursues its theory of fabrication with regard to the incidents alleged of Michael Austin, this evidence will not be admitted on the issue of unwelcomeness. The testimony may still be allowed on the issues of credibility and damages, subject to a limiting instruction. C. Testimony or Evidence Regarding Plaintiffs Divorce As Defendant has represented that it does not intend to present evidence regarding Plaintiffs divorce in order to prove promiscuity on her part, Plaintiff has withdrawn her objection to this evidence. 108a II. Defendant WMATA and Littlefield's Motion in Lim ine A. Testimony of Other Allegations of Discrimination Plaintiff intends to elicit testimony from nine other women who claim to have suffered discrimination and harassment at the hands of WMATA and its employees. It is undisputed that that of these nine women, four never filed discrimination complaints against WMATA. WMATA claims that the remaining five filed complaints about discrimination by different officials to different supervisors than those involved in the present action. Def.' s Mot. in Lim ine at 3-4. Plaintiff, on the other hand, claims that of the five who did file complaints, three complained about the same officials. PI.' s Opp 'n to Def. 's Mot. in Lim ine at 2. 109a 1. W itnesses who Filed Form al Com plaints Evidence of prior acts of discrimination are relevant and may be admitted to prove the defendant's motive or intent. See Hairston v. WMATA. No. Civ. 93-2127, 1997 WL 411946, at **5‘6 (D.D.C. April 10, 1997) (citing Morris v. WMATA. 702 F.2d 1037 (D.C. Cir. 1983); Miller v. Poretskv. 595 F.2d 780 (D.C. Cir. 1978)). Such evidence is admissible as long as it survives the Rule 403 balancing test. I<L at *6. In other words, it must be shown that the probative value of the testimony from third- party witnesses is not "substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed. R. Evid. 403. 110a Because of "the difficulties in proving discriminatory intent," the probative value of testimony from third-party witnesses in employment discrimination cases is high. See Webb v. Hvman. 861 F. Supp. 1094, 1112 (D.D.C. 1994). The probative value is only heightened, however, if the discrimination is "of the same character and type as that... alleged." White v. United States Catholic Conference. No. Civ. 97- 1253, 1998 WL 429842, at *5 (D.D.C. May 22, 1998) (Facciola, Mag. J.). Here, like Plaintiff, the challenged witnesses filed complaints of gender discrimination against WMAT A. The fact that some of the complaints may have involved supervisors other than those involved in the instant case does not deprive such evidence of its probative value. At issue is whether WMATA failed to take action to investigate or rectify the 111a treatment Plaintiff was allegedly receiving at the hands of her male co-workers, to properly train and supervise its supervisors, and to address a “pattern and practice” of sexual harassment and discrimination in the workplace. In other words, the focus is on the policies and practices of WMATA, not of individual supervisors. The testimony of other women who contend that WMATA’s policies were ineffective or failed to work for them is indisputably probative in this case. Plaintiff may call these witnesses at trial. 2. W itnesses Who Did n ot F ile Form al Com plaints Weighing the probative value against the risk of unfair prejudice comes out the other way for the witnesses Plaintiff proposes who did not file formal complaints against WMATA. Because 112a no complaint was filed, WMATA would likely have had no notice of the alleged incidents. As a result, those witnesses seem unable to shed light on WMATA’s policy or practices regarding sexual harassment. Testimony regarding other allegations of discrimination at WMATA by witnesses who did not file formal complaints shall be inadmissible at trial unless^ (l) the witness alleges discriminatory or harassing treatment by any or all of the alleged perpetrators in the instant case, or (2) the witness intends to testify that WMATA’s policy regarding sexual harassment was so deficient that she didn’t feel comfortable filing a complaint, or didn’t think that it would be of any benefit to do so. B. Evidence of Actions by Michael Austin 113a WMATA urges the Court to exclude testimony about any actions allegedly committed by Michael Austin. Def.’s Mot. in Lim ine at 4. On June 27, 2005, this Court dismissed Count IV of the Third Amended Complaint against Austin because it omitted all allegations of time and place, and thus gave Austin insufficient notice of the claim against him. Wade v. WMATA. Civ. No. 01-0334, 2005 WL 1513137, at *2 (D.D.C. June 27, 2005). In WMATA's view, "if the pleading failed to provide him notice, it failed to provide WMATA notice," and WMATA therefore cannot put forth a proper defense to these allegations. Def. 's Mot. in Lim ine at 5-6. The Federal Rules of Evidence do not allow for the suppression of relevant evidence simply because a party is unprepared for the admission of that evidence at trial. 114a Moreover, WMATA appears to misconstrue the Court's action in dismissing the count against Austin. In doing so, this Court wrote- "Count IV of Plaintiffs complaint is ... insufficient, as it does not give Austin fair notice of the claim against him. The complaint deprives Austin of information needed to prepare his defense." Wade. 2005 WL 1513137, at *2 (emphasis added). The Court held only that those allegations made against Austin in Count IV of the complaint were insufficient. IcL The counts against WMA T A, constituting entirely different claims, do not require that Plaintiff allege the time and place of Austin's acts, only that she give WMATA fair notice of her claims against i7by alleging the time and place of its acts, as alleged in those counts. The claims arise out of two different courses of conduct: Austin's alleged conduct in exposing himself to Plaintiff and WMATA's alleged conduct in failing to address 115a Plaintiff’s complaints stemming from this and similar incidents. Failure to plead the time and place of Austin's conduct does not constitute a failure to plead the time and place of WMATA's conduct. Consistent with this understanding, implicit in this Court's earlier opinion dismissing Count IV of the Complaint is the assumption that even though Plaintiff would be unable to proceed against Austin, she could still use his acts as a basis for her claims against WMATA. See id. at *3 (holding that Plaintiffs allegations of various workplace incidents, including Courts have employed a variety of factors to determine whether EEOC determinations should be excluded under Rule 403. See Coleman. 306 F.3d at 1345 (EEOC report properly excluded where it "was more conclusory than factual in nature"); Barfield v. Orange County. 911 F .2d 644, 650 (11th Cir. 1990) ("In deciding whether and what parts of 116a EEOC determinations and reports should be admitted, the district court may be guided by such considerations as whether the report contains legal conclusions in addition to its factual content..."); Paolitto, 151 F.3d at 65 (exclusion of agency determination appropriate where, among other things, proponent had the opportunity to present to the jury all evidence submitted to agency); Young, 327 F .3d at 624 (same); Johnson v. Yellow Freight System. Inc.. 734 F.2d 1304,1309 (8th Cir. 1984) (EEOC report had low probative value where "substantial evidence was presented to the jury on all matters summarized in the report"). The Court finds that the EEOC determinations do not survive the Rule 403 balancing test in this case. Here, the danger of unfair prejudice outweighs the decisions' probative value because the factual findings in the decisions are overshadowed by the legal conclusions 117a drawn, and because the facts in the report add little to the evidence that will otherwise be presented to the jury at trial. Accordingly, Defendant's motion is granted with respect to this issue. The EEOC determinations shall not be admitted, at trial. D. WMATA's Internal Findings WMATA next seeks to exclude its own internal investigatory findings with regard to Plaintiffs allegations of sexual harassment. WMATA contends that"[ t ]hese findings are protected by the deliberative process and self-evaluative privileges and should be excluded from evidence." Def. 's Mot. in Limine at 7. The deliberative process privilege "covers documents reflecting advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated." Dept, of Interior v, Klamath Water 118a Users Protective Ass'n. 532 U.S. 1, 8 (2001) (internal quotation marks omitted). Where, as here, a plaintiffs cause of action turns on the government's intent, the privilege is not properly asserted. See In re Subpoena Duces Tecum Served on the OCC, 145 F.3d 1422, 1424 (D.C. Cir. 1998). Further, the deliberative process privilege only protects government documents that are "both 'pre-decisional' ’deliberative. Broderick v. Shad. 117 F.R.D. 306, 310 (D.D.C. 1987) (quoting Coastal States Gas Corn. V. Dep't of Energy, 617 F.2d 854,866 (D.C. Cir. 1980)) (emphasis added). As Plaintiff correctly points out, here the documents were not prepared to aid a decision, but instead express WMATA's final decision on its investigation. Indeed, the document claims that WMATA has "completed its investigation" and purports to be "final." The deliberative process privilege is not 119a properly asserted here. WMATA also urges the Court to exclude the documents because they are protected by the self- evaluative privilege. The self-evaluative privilege is rarely recognized. FTC v. TRW. Inc.. 628 F.2d 207,210 (D.C. Cir. 1980) ("[C]ourts have appeared reluctant to enforce even a qualified 'self-evaluative' privilege). The purpose of the privilege is to encourage "confidential self-analysis and self- criticism." First Eastern Corn, v. Mainwaring. 21 F.3d 465,467 (D.C. Cir. 1994). In Mainwaring. the D.C. Circuit made clear that the self-evaluative privilege is only to be applied in an extremely limited set of circumstances, and that the court would be reluctant to expand it beyond cases involving public health or safety. Id. at 467 n.l. Neither is the case here. WMATA's internal investigatory findings are not protected by the self* 120a evaluative privilege. Finally, the documents are admissible under Rule 403, as they go to the heart of Plaintiffs lawsuit. WMATA's motion is denied on this issue. E. Evidence of Front or Back Pay WMA TA seeks to preclude testimony by Plaintiff s economist and vocational rehabilitation expert on the issues of front or back pay, arguing that because those remedies are equitable1,1 the jury may not award them, and any evidence of them would only serve to distract and prejudice the jury. Because front and back pay is a bench issue, Plaintiffs experts will be precluded from testifying on that issue. Plaintiff s economist and vocational 'See Chauffers. Teamsters and Helpers. Local No. 391 v. Terry. 494 U.S. 558, 572 (1990) (citing 42 U.S.C. § 2000e-5(g)) ("Congress specifically characterized backpay under Title VII as a form of 'equitable relief. "'). 121a rehabilitation expert may still testify at trial regarding Plaintiff s compensatory damages claims. The Court will hear the evidence of front and back pay at a later hearing on equitable relief, should a verdict be returned in Plaintiffs favor. F. Evidence of Nude Photographs WMAT A asks the Court to exclude at trial alleged statements by Michael Austin that he possessed nude photographs of Plaintiff, arguing that the statements are hearsay and unfairly prejudicial. The Court fmds that the statements are not hearsay, as they are not being offered to prove the truth of the matter asserted. See Fed. R. Evid. 801(c). The statements are not offered to prove that in fact Austin did possess such photographs. Rather, the statements are being offered to demonstrate the listener's state of mind, and to provide background information. The statements are being offered to 122a show that Austin claimed to have photographs of Plaintiff, contributing to the creation of a hostile work environment, which WMA T A did not remedy even after Plaintiffs complaints. Accordingly, the statement is admissible at trial as it is non-hearsay, and the danger of unfair prejudice it poses does not outweigh its probative value. WMATA's motion is denied as to this issue. G. WMATA's Revenue Statements Finally, WMA TA seeks to exclude its revenue statements from evidence at triaL Plaintiff has withdrawn her request to use these statements, but reserves the right to use this information for impeachment purposes. This issue is therefore no longer in dispute. III. Conclusion For the aforementioned reasons, the Court will grant in part and deny in part Plaintiffs Motion 123a in Limine, grant in part and deny in part Defendant's Motion in Limine, and grant in part and deny in part Defendant's Motion for Leave to Present Rule 412 Evidence. An appropriate Order will accompany this Memorandum Opinion. April 5, 2006 Is/ Thomas F. Hogan Chief Judge