Sims v Washington Metro Transit Authority Appendix to Petition for Writ of Ceritorari

    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).



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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



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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



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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],



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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



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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.



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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



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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



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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



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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



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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.



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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



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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



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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



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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.



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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



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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



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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*



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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



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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