Sims v Washington Metro Transit Authority Petition for Writ of Certiorari

    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

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.netSegtembe^^Ol^

mailto:belllawfirm@verizon.net


1

QUESTIONS PRESENTED

1. Does Rule 41(b) gives a trial court unbridled 
discretion to suppress highly relevant evidence 
of intentional employment discrimination in 
order to permit a wrongdoing employer, who has 
waived its affirmative defenses, to escape strict 
liability under Title VII for a supervisory 
created and maintained discriminatory and 
retaliatory hostile work environment?

2. Whether the D.C. Circuit’s decision upholding 
(without oral argument) a District Court’s grant 
of summary judgment in Sims’ hostile work 
environment claim as untimely by requiring 
that the component act of a retaliatory hostile 
work environment claim must be “materially 
adverse” or individually “actionable” is 
foreclosed by authority from this Court 
(particularly N atl R.R. Passenger Corp. v. 
Morgan and Burlington Northern & Santa Fe 
Railway Co. v. White) when the supervisory 
harassing reassignment of Sims to duties that 
were more difficult, dangerous and undesirable 
caused Sims to suffer a nervous breakdown?

3. Whether an employee who is forced out of an 
unremedied hostile work environment because 
of a nervous breakdown from unlawful 
harassment can claim a “current practice” at 
issue and use prior acts as background evidence 
in showing intentional employment 
discrimination before a jury?



11

TABLE OF CONTENTS

PAGE

OPINIONS BELOW ....................................................1

JURISDICTION ..........................................................1

CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED................ 1

STATEMENT ..............................................................2

A. Factual Background......................................... 3

B. The Proceedings Below.....................................8

REASONS FOR GRANTING THE W R IT .............. 18

I. There Is A Conflict In The Circuits 
Regarding The Impact of Morgan On The 
Need Of A Plaintiff To File and Exhaust 
A New Charge of Retaliation In Order to 
Recover on A Claim or to Use Prior Act 
Evidence Before a Jury; Petitioners Were 
Denied Due Process When The D.C. 
Circuit Refused Petitioners An Oral 
Argument Hearing With The Aid Of
Their Counsel................................................18

II. This Court Has A Duty To Ensure The 
Establishment Of Equal Justice In 
Employment Discrimination Cases.............21



Ill

III. The Decision Below Is Wrong and Cannot 
Be Reconciled with Controlling Authority 
From This Court, the National Policy 
Prohibiting Unlawful Employment 
Practices and The Remedial Scheme of 
Title VII ........................................................ 23

IV. K e y s ’ I n a b i l i t y  to C o m p ly  with  
Confusing, Partially Invalid and 
Inconsistent Orders Is Not Misconduct
Under the Authority of this Court...............25

1. Misunderstanding Regarding Invalid 
Portion of Pretrial Order Resulted In 
Keys’ Inability to Fully C om ply.............26

2. Inability to Comply: Trial Court’s 
Misapprehension of Physical 
Assault As Discrete Act Rather 
Than Component Act of Keys’
Hostile Work Environment.....................27

3. Inability to Comply: Trial Court’s 
Misapprehension of Internal Finding 
of Pattern of Supervisors Repeated 
Violations of WMATA’s EEO Policies 
As Inadmissible Discrete Evidence 
Rather Than Component Act of 
Keys’ Hostile Work Environment
Claims ...................................................... 28



IV

4. Inability to Comply: Inappropriate
Bench Rage and Intemperate Judicial 
Behavior in Presence of Jury .................. 29

5. Inability to Comply: Keys’ Mental
and Emotional Health Issu es.................. 30

V. There Was No Misconduct, Bad Faith
or Prejudice to W M ATA.................................31

VI. The Decision Below Is Exceptionally
Important and It Presents a Recurring 
Question of National Importance ................ 34

CONCLUSION ..........................................................36

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



V

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

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



VI

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



V ll

TABLE OF AUTHORITIES

Cases Pages

AyissfEtoh v. Fannie Mae, et al
No. 11-7127 (D.C. Cir. Apr. 5, 2013) .....................27

Ballou v. Henri Studios
656 F.2d 1147 (5th Cir. 1981)....................................32

Brisco v. Klaus
538 F. 3d 252, 258 (3rd Cir.2008) ...........................  32

Burlington Northern & Santa Fe Railway 
Co. v. White

548 U.S. 53, 57 (2006).................................... 3, 23, 24

Citizens Bank v. Alafabco
539 U.S. 52 (2003)...................................................... 3

Delisle v. Brin:Feld Township Police 
Department
94 F. App’x 247, 251-52 (6th Cir. 2004)................. 19

EEOC v. Troy State University
693 F. 2d 1353, 1357 (11th Cir.1983) .....................  25

Familias Unidas v. Briscoe
544 F. 2d 182 (5th Cir. 1976)...................................  32

Faragher v. City o f Boca Raton
524 U.S. 775, 788 (1998).......................................... 27

Gardner v. United States
211 F. 3d 1305 (D.C. Cir. 2000) .............................  31



V l l l

Gordon v. National Youth Work Alliance
675 F. 2d 356, 360 (D.C. Cir.1982).........................22

Harris v. Forklift Systems, Inc.
510 U. S. 17, 21-22 (1993)..........................................6

Hussain v. Nicholson
435 F. 3d 359, 366 (D.C. Cir. 2006) ......................... 4

Hendler v. United States
952 F. 2d 1364 (Fed Cir. 1991).............................  32

Jackson v. The Washington Monthly Co.
569 F. 2d 119, 123-24 (D.C. Cir. 1978)................... 33

Jones v. Calvert Group, Ltd.
551 F.3d 297, 303 (4th Cir. 2009) ...........................  19

LaShawn A. v. Barry
87 F. 3d 1389, 1393 (D.C. Cir. 1996).......................  33

Link v. Wabash Railroad Co.
370 U.S. 626,649 (1962) .........................................  23

Maggio v. Zeitz
333 U. S. 56,77-78 (1948) .......................................  25

M artinez v. Potter
347 F. 3d 1208,1210 (10th Cir.2003).......................  19

Minnette v. Time Warner
997 F. 2d 1023 (2d Cir. 1993).................................  30

Morgan and United Air Lines, Inc. v. Evans
431 U.S. 553, 557 (1977).......................................... 14



IX

National R.R. Passenger Corp. v. Morgan
536 U.S. 101 (2002).................................................... 3

Nealon v. Stone
958 F. 2d 584, 590 (4th Cir. 1992)...........................  19

Oscanyan v. Arms Co.
103 U.S. 261, 263 (1881).......................................... 32

Peterson v. Archstone Communities
637 F. 3d 416, 418 (D.C. Cir. 2011) ....................... 31

PNC Financial Services Group, Inc. v. C. I. R.
503 F. 3d 119, 126 (D.C. Cir. 2007) .......................  33

Powell v. Patterson
287 U.S. 45, 69 (1932).......................................... 3, 20

Purgess v. Sharrock
33 F. 3d 134 (2nd Cir. 1983).....................................  32

Seganish v. Safeway Stores, Inc.
406 F. 2d 653, 658 (D.C. Cir. 1968).........................  33

Singletary v. District o f Columbia
351 F. 3d 519 (D.C. Cir. 2003) ............................... 4

Smith v. Sheahan
189 F. 3d 529, 534 (7th Cir. 1999).........................  27

Societe International Pour Participations 
Industrielles Et Commerciales, S. A. v. Rogers 
357 U.S. 197 (1958)........................................ 3, 23, 25



X

Taylor v. Combustion Engineering, Inc.
782 F. 2d 525, 527 (5th Cir. 1986)...........................  33

Terry v. Ashcroft
336 F. 3d 128, 151 (2d Cir. 2003 )...........................  19

Thomas v. Miami Dade Pub. Health Trust
369 F. App’x 19, 23 (11th Cir. 2010) .........................19

U. S. Postal Service v. Aikens
460 U. S. 711, 716(1983) ........................................ 24

Wade v. WMATA
2006 U.S. Dist. LEXIS 16447
(App.l02a) (Apr 5, 2006).......................................... 28

Constitutional Provisions:

Pream ble...................................................................... 1
Fifth Amendment ........................................................1
Sixth Amendment........................................................1
Seventh Amendment....................................................1

Statutes-

42 U.S.C. § 1981a .......................
42 U.S.C. § 2000e .......................

Federal Rules of Civil Procedure'-

Rule 41(b) 1, 31, 32

to
 

to



XI

Miscellaneous^

A. Leon Higgingbotham, Jr., In The
M atter o f Color: Race and The
American Legal Process•' The Colonial
Period, p.313. (Oxford University Press 1978) . . .  34

Clermont and Schwab, Employment 
Discrimination Plaintiffs in Federal Court '
From Bad to Worse?
3 Harv. L. & Pol’y 103, 104 (2009)...................  21, 30

Selmi, Why are Employment Discrimination 
Cases So Hard to Win? 61 La. L. Rev. 555 
(2000-2001)........................................................  21, 30

Waterman, An Appellate Judge’s
Approach When Reviewing District Court
Sanctions Imposed For the Purpose
o f Insuring Compliance With Pretrial
Orders, 29 F.R.D. 420, 424 (1961) ........................ 25



1

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The judgment of the United States Court of 
Appeals for the District of Columbia Circuit is not 
reported, it appears in the appendix at App.3a. In 
Keys, the Memorandum and Order of the United 
States District Court for the District of Columbia is 
not reported, it appears in the appendix at App.9a-29a. 
In Sims, the Memorandum Opinion and Order of the 
United States District Court for the District of 
Columbia is reported at 408 F. Supp. 2d 1 (D.D.C2005) 
and appears in the Appendix at App.68a-88a.

JURISDICTION

The judgment of the District of Columbia Circuit 
was entered on April 30, 2013. App.3a. A timely 
petition for rehearing en banc was denied on June 11, 
2013. App. la. This petition for certiorari is filed within 
90 days of that date. This Court’s jurisdiction is 
invoked under 28 U.S.C. §1254.

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

The constitutional provisions involved are found 
in the Preamble (“to establish justice”), the Fifth 
Amendment (“due process of law”), the Sixth 
Amendment (right to counsel), and the Seventh 
Amendment (right to trial by jury) to the U.S. Const.



2

The statutory provisions involved are found in 
Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, as 
amended, by, among other things, the Civil Rights Act 
of 1991, 42 U.S.C. § 1981a, et seq., particularly the 
legislative history of the Civil Rights Act of 1991 as 
accompany the vetoed Civil Rights Act of 1990.

STATEMENT

Herein lies a joint Title VII case of an unlawful 
hostile work environment that is twice-told by two 
African-American women, petitioners Niamke Keys 
and Sherri Sims, who were unlawfully harassed by 
their supervisors, while working with WMATA in jobs 
traditionally held by men, to the point of both women 
suffering nervous breakdowns that forced them out of 
the workplace. Unable to obtain relief elsewhere, 
petitioners turned to the federal courts in the District 
of Columbia to vindicate their rights. Now petitioners 
respectfully pray that a writ of certiorari issue to 
review the judgment of the United States Court of 
Appeals for the District of Columbia Circuit. App.la. 
After an appeal was taken by petitioners below, the 
District of Columbia Circuit - without the benefit of 
oral argument - the orders and judgments of the 
United States District Court for the District of 
Columbia by (l) affirming the grant of summary 
judgment against Sims and, (2) affirming a pointless 
and unjust exaction of retribution that aborted Keys’ 
jury trial - mid-testimony to the jury. The lower 
federal courts have defied the authority of this Court 
and the publicly declared will of Congress by of 
exercising unbridled judicial discretion to effect a 
manifest injustice on blameless victims and to let their



3

unlawfully harassing supervisors and employer off 
scot-free.

Neither the actions of the District of Columbia 
Circuit nor the District Court below has any sound 
basis in law, in fact or in justice. Both lower federal 
courts have acted in a flagrant disregard for 
controlling precedents of this Court. Accordingly, 
Petitioners respectfully request this Court to grant 
their petition for certiorari, summarily reverse the 
decisions below, and remand for further proceedings 
not inconsistent with NationalR.R. Passenger Corp. v. 
Morgan, 536 U.S. 101 (2002), Burlington Northern & 
Santa Fe Railway Co. v. White, 548 U.S. 53, 57 (2006), 
Powell v. Patterson, 287 U. S. 45, 69 (1932) and 
Societe International Pour Participations Industrielles 
Et Commerciales, S. A. v. Rogers, 357 U.S. 197 (1958), 
as well as, Title VII as amended by the Civil Rights 
Act of 1991. See, e.g, Citizens Bank v. Alafabco, 539 
U.S. 52 (2003)(summarily reversing misapplication of 
this Court’s FAA precedent). Alternatively, this Court 
should grant plenary review.

A. Factual Background

Petitioners were both long-term employees of 
WMATA, working as electrical mechanics. Keys was 
one of the first working female mechanics hired by 
WMATA in 1984 at its Brentwood Facility in the 
District of Columbia. Sims started in 1986 as a 
similarly situated female working as a electrical 
mechanic. In their Second Amended Complaint, both 
Petitioners claimed that their “supervisors, co-workers 
and high ranking management officials” at “WMATA 
intentionally created, maintained and subjected” them



4

“to a hostile work environment because of their “sex 
and protected activities in opposing unlawful 
discrimination.” (Para. 72, Pit’s Second Amended 
Complaint). The Second Amended Complaint set forth 
Petitioners’ retaliatory hostile work environment claim 
and specifically identified the environment itself as the 
actionable wrong that they complained. Singletary v. 
District o f Columbia, 351 F. 3d 519 (D.C. Cir. 2003) 
(recognizing a retaliatory hostile work environment 
claim). Accord, Hussain v. Nicholson, 435 F. 3d 359, 
366 (D.C. Cir. 2006).

WMATA’s Brentwood facility “supports a 
multitude of repairable parts and functions for 
WMATA’s rail system.” In their workplace, Petitioners 
shared a common core of male supervisors, all of whom 
worked under the supervision of Kenneth Morford, 
Superintendent of the Brentwood Facility. The 
fulcrum of the succession of unlawful harassing acts 
suffered by Petitioners in the workplace emanated 
from the same source, i.e., the workplace controlled by 
Superintendent Morford and his cohort of harassing 
supervisors that included Ernest Matthews and James 
Thompson. As the only female working mechanics in 
the Component Shop at the Brentwood Facility, 
Petitioners were constantly insulted and propositioned 
by their male co-workers with unwanted sexual 
advances, lewd comments, sexual innuendos, 
unwelcomed sexual behavior and gestures that 
included sexual offensive artifice and unwelcomed and 
unconsenual touching of private parts. As a result, in 
the workplace, Petitioners were constantly subjected to 
an ongoing discriminatory and retaliatory hostile 
work environment, which was humiliating and 
physically threatening, and included repeated episodes



5

of actual physical violence, improper workplace 
touching and singling out Keys and Sims for the most 
difficult and undesirable work assignments and 
reassignments in the Brentwood Facility. Prtitioners 
were harmed emotionally, physically, and economically 
as a result of WMATA’s discriminatory and retaliatory 
hostile work environment.

The supervisors at the Brentwood Facility were 
fully aware of the hostile work environment that 
Petitioners were forced to endure, because the 
supervisors encouraged, condoned and participated in 
creating and maintaining it. Whenever Petitioners 
complained by protesting or opposing the unlawful 
harassment by their supervisors in the workplace, 
Morford and the harassing supervisors abused their 
powers by employing retaliatory techniques against 
Petitioners such as (l) discriminatory harassment by 
reassignments of Petitioners from job responsibilities, 
duties and locations that are easier or more agreeable 
to those that were more arduous, undesirable and 
dangerous, as well as, (2) employing gender targeted 
harassment such as repeated threats of summary 
suspensions and/or threats of denial of training, 
docking pay, actual suspensions or threatened 
terminations of Petitioners. The unrelenting 
supervisory harassment of petitioners forced them to 
take medical leave and to request preliminary 
injunctive relief as protection to allow them to work in 
a non-hostile workplace. While the District Court at 
times used the names of Keys and Sims 
interchangeably in its Order denying injunctive relief, 
he well summarized the actionable environment 
Petitioners (as two peas in a hostile pod) were forced to 
endure. See, App.92n.2 and App.93n.3.



6

While this Court has made it clear in Harris v. 
Forklift Systems, Inc., 510 U. S. 17, 21-22 (1993), that 
“Title VII comes into play before the harassing conduct 
leads to a nervous breakdown”, in this case, Petitioners 
were not able to secure injunctive protection from the 
federal court even with indisputable evidence of 
concrete psychological harm and injury caused by the 
hostile work environment. In fact, causing 
psychological harm to the working women at 
Brentwood was a term and condition of employment 
for women working as mechanics. For example, on one 
occasion, Keys was threatened by a supervisor not to 
assist mechanic Sarah Reynolds who was having a 
stroke in workplace (JA-693-696)(“I was not able to 
assist her when she had the stroke because my 
supervisor was threatening that I better not go to her, 
and she was afraid to come to me”).

The environment was the actionable wrong 
because the supervisors under Morford were out of 
control at Brentwood. For example, Petitioner Keys 
was intentionally and repeatedly assigned by her 
supervisors to work with a co-worker that was known 
to sexually harass Keys and other women in the 
workplace. He even forced her to touch his private 
parts while the supervisor watched. (JA-700'01) (“They 
were in my presence, like me to you, and my 
supervisor, Robert Williams, is like at this wall. This 
is his window where he sits and watches me being 
attacked”)(JA-702)(“And he grabbed my hand and put 
it down at his penis and began to rub his penis with 
my hand. And I broke away from him and I went, 
well, I was going to my supervisor’s office to report 
this. But there was no need, because he was sitting



7

there watching. He was sitting in there watching the 
activity”).

In order to obtain relief from the gender-based 
hostility and physical violence directed at them in the 
workplace, Petitioners sought internal and external 
aid; yet, the discriminatory and retaliatory hostile 
work environment continued unabated. Petitioners’ 
expert witness opined that Petitioners did all the 
things that people experiencing discriminatory 
harassment are advised to do to remedy their 
situations. (JA-916). During the entire period of their 
employment at the Brentwood workplace, Petitioners 
experienced an unremedied workplace permeated with 
discriminatory intimidation, ridicule, and insult that 
were so severe and pervasive as to alter the conditions 
of their employment.

Petitioners’ work environment at Brentwood 
became so intolerably hostile and abusive that it 
seriously affected their psychological well being to such 
an extent that they had nervous breakdowns and their 
doctors had them medically removed from the hostile 
workplace. Only working women such as Petitioners 
were subjected to the aggravated hostile work 
environment that their male supervisors forced them 
to endure in order to work as Electro-Mechanics. (JA- 
3407-3409). The psychological breaking point for Keys 
came in August 2001 as a direct result her supervisors 
imposing repeated improper work quotas on her which 
were not placed on her male co-workers. (JA-3442- 
3444). WMATA determined several months before 
that the supervisors’ imposition of work quotas and 
unfair reassignment of Keys were unlawfully 
discriminatory and retaliatory (JA-1192-1199). Sims’



8

psychological breaking point came in August 2002 
when her supervisors imposed upon her a permanent 
reassignment to one of the most undesirable 
assignment for an Electro-Mechanic, i.e., the “Ramp”, 
a place where paints and other toxic fumes and 
chemicals are stored and metal parts are repaired. (JA- 
3444-3448)(The EEOC determined several months 
before, that the supervisors’ assignment of Petitioner 
Sims to the “Ramp” was unlawfully discriminatory and 
retaliatory. (JA'2880).

B. The Proceedings Below

WMATA’s Internal Office of Civil Rights

In June 2000, Keys filed internal claims of 
unlawful employment discrimination and retaliation 
against her supervisors Matthews and Morford with 
WMATA’s Office of Civil Rights (hereafter “CIVR”). 
Keys complained that because of gender and protected 
activities, she was being reassigned from job 
responsibilities and duties that were easier or more 
agreeable to those that were more arduous and less 
desirable. Following an internal investigation of all of 
the circumstances, WMATA’s CIVR found :”there is 
sufficient evidence to support a probable cause finding 
of discrimination in this complaint....It is further 
concluded that given the current attitudes and morale 
of employees within the Component Shop, Mr. Morford 
and Mr. Matthews no longer maintain the proper 
rapport nor professional relationship needed to 
effectively manage their employees in a way to 
maximize productivity for the benefit of the authority. 
Having such a large number of employees complaining



9

about the same managers is problematic for the 
Authority and must be dealt with quickly and swiftly.”

Nonetheless, with full knowledge of the probable 
cause findings by its own CIVR, WMATA did not take 
any effective disciplinary actions against any of the 
supervisors nor did WMATA take any effective actions 
to correct or cure the discrimination and retaliation 
findings in Keys’ favor. Instead, WMATA supervisors 
attempted to intimidate WMATA’s CIVR employee, 
Devin Walker, who tried to cure the hostile work 
environment at Brentwood. (JA-1212-13)(“ As you may 
recall, Mr. Baker reiterated a comment he previously 
made to me in September that while he appreciates 
CIVR’s assistance in this matter, he will not be told by 
CIVR what actions he will take based upon our 
investigation. As a member of the EEO staff, 
comments like this from managers convey a certain 
level of disrespect and disregard for the function of 
CIVR and the entire EEO process....There appears to 
be a pattern established in probable cause findings 
where managers are very reluctant to take appropriate 
disciplinary action against other managers who have 
been found to have violated WMATA’s EEO Policy”).

Sims also filed internal claims of unlawful 
sexual harassment, employment discrimination and 
retaliation against her supervisors with WMATA’s 
CIVR. Sims filed internally with WMATA’s CIVR on 
July 17, 2000. (JA-1343). However, before filing her 
internal complaint with WMATA’s CIVR, she “met 
with the EEO Investigator on June 12, 2000" and “on 
the next day she was reassigned to work on the 85% 
Mode, in retaliation for meeting with EEO.” (JA-1345). 
In Sims’ internal complaint to WMATA’s CIVR, she



10

specifically alleged that she was being sexually 
harassed by her supervisor Thompson and that he had 
“docked her pay” because she had “denied Mr. 
Thompson’s sexual advances over the past 10 years.” 
(JA-1342).

Moreover, Sims specifically alleged in her 
internal complaint that the basis of her employment 
complaint was sex, retaliation and “sexual 
harassment.” (JA-1342). In addition, Sims further 
expressly alleged in her internal complaint filed with 
CIVR that the unlawful employment practices that she 
complained about were occurring in WMATA’s 
“Brentwood” office by her supervisor, “James 
Thompson” and that other supervisors who were also 
involved were “Ken Morford, Ernest Matthews” and 
“Lemuel Proctor.” (JA-1342). However, because of 
continuing harassment from supervisors and 
concerned about the effectiveness of filing internally, 
by October 2000, Sims had lost confident in WMATA’s 
CIVR’s ability to resolve her complaint and to protect 
her in the workplace.

Petitioners Filed With EEOC

After exhausting all internal avenues for relief, 
Petitioners sought help externally in hope of having 
the discriminatory and retaliatory hostile work 
environment in the Brentwood Facility abated. 
Petitioners sought help from the D. C. Human Rights 
Office, the EEOC, the D. C. Council , their 
Congresswoman and various private attorneys. Prior 
to going to the EEOC in October 2000, Sims submitted 
numerous written complaints to workplace offices and 
officials within, and to her congressional



11

representative outside WMATA, regarding the 
constant harassment, discrimination, retaliation and 
hostile work environment created and maintained for 
her by Morford, Matthews, and other supervisors in 
the Brentwood workplace. (JA-1332)(Feb. 15, 2000), 
(JA-1334)(May 1, 2000), (JA-1338-39)(June 13, 2000), 
(JA-1353)(August 2, 2000), (JA-1363)(September 26, 
2000).

On October 27, 2000, Sims, unrepresented by 
counsel, went to the EEOC to file a formal complaint 
regarding WMATA’s unlawful employment practices 
against her. Because EEOC was not able to take a 
formal complaint that same day, she completed and 
filed a charge questionnaire with the EEOC, alleging 
that she was being sexually harassed, discriminated 
and retaliated against in her employment at WMATA. 
(JA-3957-3958). In Sims’ EEOC Charge Questionnaire, 
she stated the following “On May 13th 2000 I was 
written up, by Supv. James Thompson shortly after he 
made supv. I was written up as a result of further 
harassment and discrimination and retaliation I have 
been under this treatment since 1990 AND IS STILL 
being harassed. ” (JA-3958). Furthermore, on the 
section of the Charge Questionnaire asking the 
question “WHAT WAS THE MOST RECENT DATE 
THE HARM YOU ALLEGED TOOK PLACE?”, Sims 
wrote the following “I was written up on 10-3-00 By 
SUPV James Thompson....” (JA-3957). Sims’ Charge 
Questionnaire was submitted to EEOC signed under 
the penalty of perjury. (JA-3958).

Later, on December 22, 2000, Sims returned to 
the EEOC as scheduled, still unrepresented by counsel. 
However, this time EEOC allowed her to file a formal



12

complaint of employment discrimination and 
retaliation, that included her complaint of sexual 
harassment and “unfavorable job assignments. (JA‘ 
1366). Sims’ affidavit in support of her formal 
complaint of discrimination stated that: “In April 2000, 
Mr. Thompson was promoted to the position of 
supervisor, and became my immediate supervisor. 
After his promotion, Mr. Thompson continued with his 
harassment by coming up to me and asking me if he 
deserved a hug and a kiss since he was just promoted. 
It was not long after Mr. Thompson became my 
immediate supervisor that I started to receive 
unfavorable job assignments, such as working in a 
former cleaning closet where the fumes are 
unbearable, and no one else has to work, for what I 
believe to be in retaliation for not being receptive to his 
advances.” (JA'1367). Moreover. Sims identified the 
May 13, 2000 incident referenced in her charge 
questionnaire and identified two additional dates, 
September 15, 2000 and September 30, 2000, as 
incidents where she felt that her supervisors were 
continuing to unlawfully harass her in the workplace.

Following the completion of the EEOC’s 
investigation of Sims’ complaint, EEOC found that 
WMATA had engaged in discriminatory and 
retaliatory unlawful employment practices against 
Sims in violation of Title VII. (JA-2881). While the 
EEOC incorrectly viewed Sims’ sexual harassment 
plus complaint as a discrete act and concluded it was 
untimely, she clearly exhausted the issue with EEOC 
prior to filing a lawsuit in federal court. (JA-2880). 
Following the above EEOC’s determinations in her 
case, Sims received a Notice of Right to Sue dated 
December 21, 2001. Keys had also filed a complaint



13

with the EEOC which investigated her complaint. 
Keys’ Notice of Right to Sue was dated October 23,
2001.

Federal Court Filing

Seeking de novo review, an initial lawsuit was 
filed by Keys in federal court in the District of 
Columbia in December 2001. The Complaint was 
amended in January 2002 to add Sims as a party. The 
Second Amended Complaint of Petitioners was 
submitted to federal court as joint parties in February 
2002 and accepted for filing in March 2002. 
Petitioners had amassed an airtight case of an 
actionable hostile work environment case that included 
not only a mother lode of documentary evidence of the 
repeated harassing acts they were forced to endure, as 
well as, lay and professional witnesses to help meet 
their burden of persuasion at trial. The lawsuit was 
necessary because the unremedied work environment 
was so hostile and psychologically injurious for Keys 
that she suffered a nervous breakdown that forced her 
out of the workplace. Trying to avoid a nervous 
breakdown similar to Keys, Sims returned to the 
hostile work environment which had not changed; 
thus, Sims had to continue to oppose and protest the 
discriminatory and retaliatory harassment. After Sims 
was permanently reassigned to the dreaded ramp, her 
psychological well-being continued to deteriorate and 
she was forced on sick leave under the care of her 
treating physician. While the joint lawsuit was still 
pending in federal court in the District of Columbia, 
Petitioners jointly sought preliminary injunctive relief 
from Judge Leon in federal court. Petitioners were 
simply seeking a workplace free of the sexual hostility



14

and repeated harassing acts they were made suffer as 
working women. However, because the intoleable 
harassment had forced both women out of the 
workplace at the time they requested injunctive relief, 
Judge Leon determined that they were not presently in 
the workplace suffering any “threats or other forms of 
retaliation”, he denied their request for preliminary 
injunctive relief. App.97n.5 (“If WMATA were actively 
preventing defendant from returning to work by 
currently engaging in threats or other forms of 
retaliation, injunctive relief might be appropriate”). In 
the confusing Pretrial Order, the trial court 
misapprehended this Court’s holdings in Morgan and 
United Air Lines, Inc. v. Evans, 431 U.S. 553, 557 
(1977), regarding the use of prior discrete acts of 
discrimination as background evidence. See App. 37a- 
38a. The trial court mistakenly thought that an 
employee who forced out of a hostile work environment 
because of unlawful harassment could not claim a 
“current practice” at issue to exposed intentional 
employment discrimination before a jury. App. 38a 
(“Thus, this evidence is not admissible before the 
jury”).

Later, by Order dated April 27, 2005, the 
District Court dismissed as untimely Sims’ gender 
discrimination and hostile work environment claims 
and granted summary judgment as to Sims’ retaliation 
claims. (App.73a, App.81a). At the same time, the 
District Court denied WMATA’s dispositive motion 
regarding Keys’ gender discrimination and hostile 
work environment claims (App.78a), while granting 
summary judgment in favor of WMATA regarding 
Keys’ discrimination and retaliation claims based on 
discrete acts. (App.75a, App.81a). Because Petitioners



15

were mistreated in the workplace as working women 
mechanics, i.e., two peas in the same hostile pod of a 
workplace, Sims filed a motion for reconsideration of 
the District Court’s April 27, 2005 Order dismissing 
and granting summary judgment in favor of WMATA 
on all her claims in the Joint Amended Complaint. 
(App.88a). After the reconsideration was denied by 
minute order, Sims appealed to District of Columbia 
Circuit from the April 27, 2005 and November 14, 2005 
orders of the District Court granting summary 
judgment against Sims in favor of WMATA. By Order 
dated November 14, 2006, the D. C. Circuit dismissed 
Sims’ appeal determining that the District Court’s 
April 27, 2005 and November 14, 2005 orders “are not 
appealable orders under 28 U. S. C. §1291.”

Back before the District Court without Sims as 
a party, Keys’ remaining gender discrimination and 
hostile work environment claims in the Second 
Amended Complaint were set for trial numerous times 
by the first trial judge and repeatedly postponed 
because of the impact of judicial vacancies and the 
heavy criminal caseload. On May 13, 2010, the 
District Court held an evidentiary hearing. At the 
conclusion of the evidentiary hearing, counsel for Keys 
requested the District Court to set a new trial date. 
(JA-529). The District Court again indicated it would 
take another year because of its heavy criminal 
caseload, including “back to back long criminal trials.” 
(JA-529). In order not to prejudice Keys’ case by 
further delay, and in the interest of justice, Counsel for 
Keys respectfully requested the District Court to 
consider transferring Keys’ Title VII case to another 
member of the federal bench for a trial. (JA-529-530).



16

By Order dated September 22,2010, the District 
Court notified the parties of a case reassignment and 
issued its evidentiary rulings regarding the exclusion 
and admissibility of certain of Keys’ trial exhibits and 
“reserving] judgment for Chief Judge Royce C. 
Lamberth” as to certain exhibits in “categories 4, 5, 
and 8." (App. 47a). Formal notice of the reassignment 
of Keys’ civil case from Judge Leon to Chief Judge 
Lamberth was on November 3, 2010. Subsequent to 
the reassignment of Keys’ case to a new judge, a trial 
date was set for February 23, 2011 and a pretrial 
conference was held with the parties on January 31, 
2011. The Pretrial Order dated February 15, 2011 
addressed essential two matters- (l) that at trial he 
would adhere to the “prior rulings in this case made by 
Judge Leon” and (2) the use of exhibits at trial. 
(App. 30a).

Specifically, regarding the prior rulings of the 
Judge Leon, the Pretrial Order stated- “This Court will 
adhere to the prior rulings in this case of Judge Leon,' 
the Court will not revisit those rulings.” (App.30a). 
With respect to the trial exhibits, the Pretrial Order of 
Chief Judge Lamberth set forth his rulings. (App.43a- 
44a). The Pretrial Order demonstrated confusion 
regarding the exhibits excluded and to be used at trial. 
For example, regarding exhibit #105, the documents of 
the supervisor’s physical assault of Keys, one sentence 
in the Pretrial Order states Judge Leon “did not 
exclude exhibit0...1O5.” (App.32a). However, in the 
very next sentence, the Pretrial Order states “Judge 
Leon’s Order thus excluded . . .plaintiffs 
exhibitQ...105....” (App.33a). In order not to risk 
noncompliance, Keys chose not to use Exhibit 105 
during trial but to rely on testimony pursuance to the



17

law of the case regarding the June 29, 1999 physical 
assault (App.46a) and WMATA’s judicial admission. 
(App.lOOa).

A jury trial in Keys’ case commenced on 
February 23, 2011. (JA-43) After jury selection and the 
counsel for the parties presented their opening 
statements, the first witness called by Keys was 
Ernest Matthews, WMATA’s designated corporate 
representative. (JA-143). The second witness called in 
Keys’ case in chief was the plaintiff herself. (JA-180). 
Keys’ direct examination continued and concluded at 
the end of day one of the trial. (JA-222). The second 
day of Keys’ jury trial commenced with WMATA’s 
cross-examination of Keys that essentially consisted of 
questioning Keys regarding non-work related domestic 
disputes and an altercation and a messy divorce 
between Keys and her husband; an assault on Keys 
sustained on a WMATA train while she was employed 
with WMATA in a new trial position as station 
manager and details regarding the state of Keys’ 
mental condition and mental health treatment by her 
treating psychiatrist, Dr. Reginald Biggs, for 
posttraumatic stress disorder. (JA-3810-3882).

During the re-direct examination of Keys, 
Counsel for Keys followed the scope of the cross- 
examination of Keys by WMATA by first addressing 
the assault on the train while employed as a station 
attendant. (JA-3810-3811). Second, re-direct of Keys 
addressed the questioning of Keys regarding her 
divorce, domestic stressors involving her husband and 
stressors in her life during this period related to her 
“job and job situation” with WMATA. (JA-3883-3884). 
It was Keys’ truthful and proper curative response to



18

this last line of questioning, which included a puzzling 
counter-factual question put to Keys by a raging bench 
in the presence of the jury, i.e. (JA 3885)(THE 
COURT“‘you were not assaulted and you haven’t 
claimed you were assaulted at the job, right?”). 
Counsel for Keys respectfully requested permission 
from the trial court to clarify the record regarding the 
court counter-factual assertion from the bench. 
Express permission was granted to Keys to clarify of 
the record of the workplace “assault” in the presence of 
the jury. (JA 3885). However, Keys truthful response 
to the same “assault” question advanced by the trial 
bench served as the basis - - or pretext -- for the trial 
court’s usurping the jury fact-finding function, by 
aborting the jury trial by granting a mistrial and 
dismissing Keys’ Title VII case with prejudice below.

REASONS FOR GRANTING THE WRIT

I. There Is A Conflict In The Circuits Regarding 
The Impact of Morgan On The Need Of A 
Plaintiff To File and Exhaust A New Charge of 
Retaliation In Order to Recover on A Claim or 
To Use Prior Act Evidence Before A Jury; 
Petitioners Were Denied Due Process When 
The D.C. Circuit Refused Petitioners An Oral 
Argument Hearing With The Aid Of Their 
Counsel ___________________________________

The D. C. Circuit’s decision, upholding the 
District Court’s rulings below, conflicts with decisions 
of other circuits court regarding whether an employee 
needs to file a new or amended timely charge with the 
EEOC in order to recover for sexual harassment or



19

retaliation hostile environment (or to use evidence of 
a prior act as background evidence in showing 
intentional employment discrimination before a jury) 
when an employee, who is forced out of an 
unremedied hostile work environment for medical 
reasons, i.e., a nervous breakdown, continues to seek 
remedies under a claim of a “current” or “present” 
unlawful employment practice by her employer. 
(App.4a). Compare the basis given by one District 
Court judge below for denying preliminary injunctive 
relief to both Petitioners (App.97n.5 ), and the basis 
stated by the trial judge for excluding Keys’ use of 
exhibits of prior acts of employment discrimination 
and retaliation. App. 37a-38a.

Of the six federal circuits known to have 
considered this question since this Court’s decision in 
Morgan, i.e., the Second, Fourth, Sixth, Eighth, Tenth, 
and Eleventh, the federal courts have come to opposing 
conflicting conclusion resulting in a four to two conflict. 
Although preceding Morgan, but consistent with 
reasoning employed in Morgan, the Fourth Circuit 
permits a retaliation claim to be filed in court when 
the plaintiff alleges retaliation by her employer for 
filing the initial charge. Nealon v. Stone, 958 F. 2d 
584, 590 (4th Cir. 1992). Accord, Delisle v. Brimfield 
Township Police Department, 94 F. App’x 247, 251-52 
(6th Cir. 2004) and Jones v. Calvert Group, Ltd., 551 
F.3d 297, 303 (4th Cir. 2009). See also, Thomas v. 
Miami Dade Pub. Health Trust, 369 F. App’x 19, 23 
(11th Cir. 2010) and Terry v. Ashcroft, 336 F. 3d 128, 
151 (2d Cir. 2003).

In reaching a contrary opinion, the Tenth 
Circuit concluded, in M artinez v. Potter, 347 F. 3d



20

1208,1210 (10th Cir.2003), that this Court’s decision in 
Morgan does not permit a plaintiff to maintain a claim 
for “any discrimination like or reasonably related to 
the allegations of the EEOC, including new acts 
occurring during the pendency of the charge before the 
EEOC.” The Eighth Circuit follows the Tenth Circuit’s 
decision in M artinezby requiring a plaintiff to exhaust 
administrative remedies before filing a retaliation 
claim in court.

Because Petitioners were denied oral argument 
before the D.C. Circuit, they were deprived of the 
opportunity to understand and correct the Court’s 
misapprehension regarding its erroneous ruling 
regarding Sims’ hostile work environment claim. 
App.7a (“the court will dispose of the appeal without 
oral argument”). The basis of the District Court grant 
of summary judgment on Sims’ sexual harassment and 
retaliatory hostile work environment claim was so- 
called untimeliness of her filing; not an exhausting of 
her administrative remedies. App. 74a.

Sims has been denied her expected rights of due 
process of law and the right to be heard by aid of 
counsel by the D.C. Circuit ignoring the basis of the 
District Court’s erroneous and arbitrary rulings 
regarding Sims’ sexual harassment and hostile work 
environment claims; and the trial court ruling of Keys’ 
right to use prior acts evidence in support of her sex 
discrimination and hostile work environment claims 
before a jury. Powell v. Patterson, 287 U. S. 45, 69 
(l932)(“If in any case, civil or criminal, a state or 
federal court were arbitrarily to refuse to hear a party 
by counsel, employed by and appearing for him, it 
reasonably may not be doubted that such a refusal



2 1

would be a denial of a hearing, and therefore, of due 
process in the constitutional sense”). Petitioners 
expressly requested to be heard by oral argument and 
tThe parties’ briefing addressed the stated errors of the 
District Court’s written opinion. However, both Sims 
and Keys were denied notice and an opportunity to be 
heard regarding the separate concerns of the D.C. 
Circuit when they were denied a hearing by oral 
argument before the D.C. Circuit.

II. This Court’s Duty To Ensure the
Establishment Of Equal Justice

As demonstrated by the mistreatment 
Petitioners received in the workplace and in the 
courtroom, trying to prevail in a meritorious case 
under Title VII is extremely difficult and has gone 
from bad to worse. See generally. Clermont and 
Schwab, Employment Discrimination Plaintiffs in 
Federal Court-From Bad to Worse?, 3 Harv. L. & Pol’y 
103, 104 (2009)> Selmi, Why are Employment 
Discrimination Cases So Hard to Win?, 61 La. L. Rev. 
555 (2000-2001).

The mandate of establishing justice and a more 
perfect union, imposes on this Court has a duty to 
make wayward federal courts safe and just for civil 
rights victims again. The plain language and meaning 
of the Preamble to the Constitution so provides. In 
this regard, Congress has passed Title VII establishing 
a national public policy prohibiting employment 
discrimination on the bases of, among other things, 
race and sex. While the federal courts continue to 
have broad discretion under the Federal Rules of Civil 
Procedure, the one-sided rigidity in federal judiciary



22

discretion - - favoring employers and mostly hostile to 
victims of unlawful workplace discrimination - -is no 
longer unbridled because it has been determined by 
Congress to produce unjust results that are 
inconsistent with the remedial purposes of Title VII. 
Rather, the flexible approach mandated by Congress in 
employment discrimination cases requires the exercise 
of a judicial discretion tempered by and subject to the 
fairness requirement implied into both the Federal 
Rules of Civil Procedure and Title VII. See, e.g., 
Gordon v. National Youth Work Alliance, 675 F. 2d 
356, 360 (D.C. Cir.1982). It is time that this Court 
made clear that fairness, not excess technicality, is the 
expected and accepted order of business in federal 
courts handling employment discrimination cases 
under Title VII.

Here, the lower federal courts departures below 
from the fairness mandate warrant the exercise of this 
Court’s supervisory powers in order tô  (l) to establish 
an equal justice system for African Americans and 
women in the Federal Judiciary as required by the 
Preamble and Article III; (2) to overrule the re- 
emergence of vestiges of any Dred Scott Jurisprudence 
from the federal judiciary! (3) to allow cameras in 
federal courtroom to curtail and record federal trial 
judge’s intemperate bench rage in the presence of 
juries in civil rights trials in court;(4) to properly 
instruct federal trial judges that they do not have 
unbridled discretion to ipse dixit dismiss meritorious 
jury trial before close of evidence! (5)to instruct federal 
trial judges that it is a violation due process and the 
6th Amendment to extract retribution from party- 
witnesses because they exercise their right to have aid 
of counsel during Title VII jury trials in order to reject,



23

if necessary, trial court imposition of misleading 
counter-factual assertions in the presence of jury; and 
(6) to instruct federal trial judges that truthful 
testimony under oath regarding a supervisor’s physical 
assault of a female employee in the workplace is so 
severe an incident as to be a component act of a hostile 
work environment claim and not a discrete act. Cf., 
Link v. Wabash Railroad Co., 370 U.S. 626,649 
(l962)(Black, J, dissenting)(“When we allow the desire 
to reduce court congestion to justify the sacrifice of 
substantial rights of the litigants in cases like this, we 
attempt to promote speed in administration, which is 
desirable, at the expense of justice, which is 
indispensable to any court system worthy of the 
name....Litigants with meritorious lawsuits are not 
likely to accept unfair rulings of that kind without 
exhausting all available appellate remedies ....I feel 
that this case is not likely to stand out in the future as 
the best example of American justice”).

III. The Decision Below Is Wrong and
Cannot Be Reconciled with Controlling 
Authority From This Court, the National 
Policy Prohibiting Unlawful Employment 
Practices and The Remedial Scheme of 
Title VII

The D.C. Circuit’s decision below is 
irreconcilable with this Court’s decisions in Morgan, 
536 U.S. 101, Burlington Northern & Santa Fe 
Railway Co. v. White, 548 U.S. 53, 57 (2006) and 
Societe International Pour Participations Industrielles 
E t Commerciales, S. A. v. Rogers, 357 U.S. 197 (1958), 
and the national policy prohibiting unlawful workplace 
harassm ent and intentional em ploym ent



24

discrimination. The decisions of the lower federal 
courts below are of such a peculiar departure from the 
rule of law and fairness as to have national importance 
and warrant that this Court exercise its supervisory 
powers in order to correct the unjust departure from 
accepted and proper judicial processes in a federal 
courtroom. Thus, this Court review of this petition 
should not be limited to just determining whether 
judicial discretion has been abused, more is required 
because of the importance of the substantial rights of 
the petitioners violated below and the important public 
interest in hearing civil rights cases on the merits to 
insure that federal courts remain accessible for the 
vindication of the important national policy prohibiting 
employment discrimination as set forth in Title VII of 
the Civil Rights Act of 1964, as amended. U. S. Postal 
Service v. Aikens, 460 U. S. 711, 716 (1983)

In Burlington Northern & Santa Fe Railway Co. 
v. White, 548 U. S. 53, 57 (2006), this Court held that 
a reassignment from job responsibilities and duties 
that are easier or more agreeable to those that more 
arduous a classic example of forbidden retaliation. 
Based on the totality of the circumstances impacting 
Petitioners as the two working women mechanics in 
the Component Shop, there were sufficient evidence for 
a “jury to reasonably conclude that Sims’ reassignment 
from her normal duties in the Component Shop to the 
“Ramp” would have dirtier, toxic and more arduous 
duties on the Ramp would have been materially 
adverse to a reasonable employee.



25

IV. Keys’ Inability to Comply with Confusing, 
Partially Invalid and Inconsistent Orders 
Is Not Misconduct Under the Authority of 
this Court

In Societe International Pour Participations 
Industrielles E t Commerciales, S. A. v. Rogers, 357 
U.S. 197, 211-213(1958), this Court held that a lower 
federal court’s dismissal of a case with prejudice was 
inappropriate where there was an inability of a party 
to comply with a pretrial order. Here, Keys and her 
counsel were involved in this litigation for nearly ten 
years from its filing to the trial. Keys and her counsel 
promptly and properly complied with all known orders 
and rules of the court during this period. Thus, the 
draconian sanction of dismissal took Keys and her 
counsel by surprised and the D. C. Circuit was remiss 
in not carefully reviewing this matter for the inability 
of
Keys and her counsel to comply. See, Waterman, An 
Appellate Judge’s Approach When Reviewing District 
Court Sanctions Imposed For the Purpose o f Insuring 
Compliance With Pretrial Orders, 29 F.R.D. 420, 424 
(1961)(hereafter “Waterman, An Appellate Judge 
Approach”)(“The sanctions of dismissal and of 
judgment by default are severe sanctions, and 
appellate judges believe they would be remiss in their 
duties if they chose to rubber stamp such orders of 
lower courts). See also, Maggio v. Zeitz, 333 U. S. 
56,77-78 (1948) and EEOC v. Troy State University, 
693 F. 2d 1353,1357 (11th Cir.l983)(“Aparty’s ...action 
grounded in a misunderstanding of a court order does 
not warrant dismissal”).



26

1. Misunderstanding Regarding Invalid
Portion of Pretrial Order Resulted
In Keys’ Inability to Fully Comply

During Keys’ trial below, many unresolved 
inconsistencies and conflicts in the fair application of 
the controlling law, i.e., Morgan, caused 
misunderstanding, confusion, mistakes and errors of 
law as to the admissibility of prior acts and component 
acts testimony to the jury. In the context of how the 
case reached the new trial judge for trial, Keys and her 
counsel understood the pretrial order to place a limit 
only on the presentation of certain of Keys’ trial 
exhibits; not the whole of Keys’ trial testimony that 
goes to the heart of her hostile work environment case. 
(JA3899). In reality, Keys’ failure to fully comply with 
the pretrial orders of the trial court was due to 
inability to comply caused by the confusing and 
misunderstanding, rather than willfulness, bad faith 
or misconduct, or any fault of Keys or her attorney. 
The D.C. Circuit and the trial court have unfairly 
erred by misapprehending Keys’ testimony and 
motivation below. They have unfairly confused Keys 
and her counsel’s misunderstanding of a part of the 
pretrial order with misconduct and bad faith. The 
trial court’s misapprehensions are rooted in its short­
term assignment to a complex and protracted hostile 
work environment case and its lack of intimate 
knowledge of not only the facts of the case and the 
controlling law of the case, but the judicial admissions 
of WMATA in the case. In short, Keys never had a fair 
chance during trial because the trial court did not view 
Keys’ case in the totality of the circumstances required 
by settled precedents of the Supreme Court applying



27

Title VII to a hostile work environment claim from 
Meritor to Morgan.

2. Inability to Comply: Trial Court’s 
Misapprehension of Physical Assault 
As Discrete Act Rather Than Component 
Act of Keys’ Hostile Work Environment

The problem encountered at trial with showing 
the supervisory physical assault of Keys as a 
component act of Keys’ hostile work environment was 
the trial court’s mistaken view of the law in regarding 
the physical assault inadmissibility as a discrete act 
rather than a severe incident constituting a hostile 
work environment. See, Smith v. Sheahan, 189 F. 3d 
529, 534 (7th Cir. 1999)(quoting Faragher v. City o f 
Boca Raton, 524 U.S. 775, 788 (1998)). See also, A yissf 
Etoh v. Fannie Mae, et al No. 11-7127 (D.C. Cir. Apr. 
5, 2013) (Kavanaugh, J.)(concurring)(“Courts and 
commentators alike agree that a single physical act - 
such as physical assault - can create a hostile work 
environment”). Accordingly, the sanction of dismissal 
with prejudice was inappropriate because Keys was 
understandably confused about the scope of her 
testimony regarding component acts of her hostile 
work environment claim as a result of the 
inconsistencies in the pretrial orders and the bench 
rulings during trial. Keys and her counsel were 
following the teachings of Morgan and the law of the 
case and were acting in bad faith.



28

3. Inability to Comply: Trial Court’s 
Misapprehension of Internal Finding 
of Pattern of Supervisors Repeated 
Violations of WMATA’s EEO Policies As 
Inadmissible Discrete Evidence Rather 
Than Component Act of Keys’ Hostile Work 
Environment Claims_________________

The D.C. Circuit upheld the trial court’s 
misapprehension of the admissibility of Keys’ 
testimony regarding WMATA’s Internal Finding in her 
favor regarding a pattern of supervisors repeated 
violations of WMATA’s EEO policies with impunity, as 
well as, intimidation of company’s civil rights workers. 
(JA1223'24)(“CIVR cannot expect employees to feel 
comfortable...when management appears to blatantly 
disregard the recommendations of this office”) and 
JA3748)(“I was afraid”). In addition, the D.C. Circuit 
ignored and left unresolved the confusion and conflict 
among different federal judges on the United States 
District Court for the District of Columbia regarding 
the admissibility of WMATA’s internal findings by 
CIVR. C£, Wade v. WMATA, 2006 U.S. Dist. LEXIS 
16447 (April 5, 2006) (Hogan) (App.ll7a -120a) 
(WMATA’s internal findings “admissible under Rule 
403, as they go to the heart of Plaintiffs lawsuit) and 
Keys v. WMATA, WMATA’s internal findings 
inadm issible as to “a discrete act of 
discrimination”) (App. 1 la - 12 a).



29

4. Inability to Comply: Inappropriate Bench
Rage and Intemperate Judicial Behavior
in Presence of Jury ________________

As an emotionally impaired witness, Keys was 
not treated by the trial court with the due dignity that 
she was constitutionally entitled as a party in a Title 
VII jury trial. (JA3749 and JA3885). And to compound 
matters, the D.C. Circuit has confused 
“misunderstanding” with misconduct by referencing 
the glaring indignities shown Keys as a basis for 
asserting that Keys’ counsel was engaged in 
“misconduct.” (App.5a) It would have taken a camera 
in the courtroom to reveal the reality of what actually 
occurred. Since that is impossible, the record that is 
available reveals that it was the trial court, not Keys 
or her counsel, that was acting intemperately in the 
presence of the jury by denying counsel for Keys 
request for a recess, directing counsel and Keys into a 
“corner” of the courtroom in the presence of the jury 
and providing the jury with a erroneous instruction on 
the law. JA 3749. Compare. Wade. App. 117a-120 
(providing as a matter of law that the instruction given 
the jury by the trial court was an improper statement 
of the law in the D.C. Circuit regarding an internal 
finding used as evidence in a hostile environment 
case). After waiting nearly a decade to get to trial, 
Keys did not have a full and fair opportunity for a fair 
jury trial because the newly assigned trial court was 
unfamiliar with the facts, pleadings and law of the 
case, as well as, manifested intemperate and hostile 
behavior directed at Keys and her counsel from the 
bench in the presence of the jury. (JA 3885)(THE 
COURT:“you were not assaulted and you haven’t 
claimed you were assaulted at the job, right?”). The



30

tone of these counter-factual judicial assertions from 
the bench in the presence of the jury froze Keys on the 
stand as a deer in headlights. When counsel for Keys 
ask permission from the trial court to inquire of Keys 
regarding the same matter in a clear, fair and dignified 
manner in the presence of the jury, Keys truthfully 
gave an answer to the matter raised by the trial court 
in the presence of the jury. However, the trial court 
again revealed his lack of an intimate knowledge of the 
facts and angrily declared a mistrial (JA 3915), and 
ultimately dismissed with prejudice Keys’ Title VII 
case (JA-34). Keys received neither a fair trial nor a 
fair hearing by the panel. See generally. Clermont and 
Schwab, Employment Discrimination Plaintiffs in 
Federal Court:From Bad to Worse?, 3 Harv. L. & Pol’y 
103, 104 (2009); Selmi, Why are Employment 
Discrimination Cases So Hard to Win?, 61 La. L. Rev. 
555 (2000-2001).

5. Inability to Comply: Keys’ Mental 
and Emotional Health Issues____

Without a doubt, it is well-documented that 
Keys has a meritorious Title VII case involving 
significant civil rights claims and that she is 
psychologically impaired. JA2930-3259. Even 
psychologically impaired employees are entitled to a 
non hostile work environment and to be treated with 
dignity in a courtroom under Title VII. En Z?ancreview 
is needed to insure that in this case and in future cases 
involving a hostile work environment claim tried to a 
jury, where repeated conduct by the employer is the 
essence of the claim, the trial courts are appropriately 
cautioned to be especially careful “not to dismiss a case 
too hastily on procedural grounds.” M innette v. Time



31

Warner, 997 F. 2d 1023 (2d Cir. 1993)(“Although a 
case should win only on its merits, it should not be lost 
on account of an ostensible procedural bar”). The trial 
court was informed that Keys’ psychiatrist was 
available in order to consider the psychological 
impairment that she suffered before dismissing her 
case. JA 3907. The need for discretion by the courts to 
be especially careful not to hastily or prematurely 
dismiss a case involving civil rights claims is not 
limited to the strong public policy prohibiting unlawful 
employment discrimination in the workplace, but 
includes the facts that civil rights cases permit the 
recovery for emotional distress by a psychologically 
injured or impaired Plaintiff. Thus, in the preparation 
and presentation of a civil rights case involving 
emotional distress and injury, an attorney must 
prepare and present evidence of liability and emotional 
injury, but he must also often manage and interact 
with a psychologically injured or impaired Plaintiff. A 
routine dismissal of such civil rights cases under Rule 
41(b) because a Plaintiff mentions prior acts or 
component acts of a hostile work environment claim 
would be inconsistent with the national policy of 
resolving civil cases on the merits and prohibiting 
intentional employment discrimination on the basis of 
sex.

V. There Was No Misconduct, Bad Faith
or Prejudice to WMATA_____________

Three not easily met justifications for dismissal 
under Rule 41(b) are identified in Peterson v. 
Archstone Communities, 637 F. 3d 416, 418 (D.C. Cir. 
2011) and Gardner v. United States, 211 F. 3d 1305 
(D.C. Cir. 2000). Neither the trial court nor the D.C.



32

Circuit has fulfilled its judicial responsibility of 
obtaining a full understanding of the facts and 
circumstances pertinent to the dismissal in Keys’ case 
before undertaking an analysis of the factors for 
determining whether dismissal was warranted. See, 
Brisco v. Klaus, 538 F. 3d 252, 258 (3rd Cir.2008). 
Contrary to the D.C. Circuit’s conclusory adoption of 
the trial court’s conclusions, none of the three not 
easily met justifications for dismissal has been 
satisfied-'

(1) Prejudice to the other party: The D.C. 
Circuit misapprehends prejudice contemplated by 
Rule 41(b). See, Ballou v. Henri Studios, 656 F.2d 
1147 (5th Cir.l98l)(“[U]nfair prejudice as used in Rule 
403 is not to be equated with testimony simply adverse 
to the opposing party. Virtually all evidence is 
prejudice or it isn’t material”). See also, Wade, 
App.113 (“The Federal Rules of Evidence do not allow 
for suppression of relevant evidence simply because a 
party is unprepared for the admission of that evidence 
at trial”). Here, there was a lack of prejudice to 
WMATA because by WMATA’s judicial admissions 
(App. 100a.) and the wavier of its affirmative defenses. 
App.42a. Keys and her counsel’s reliance on these 
judicial admissions were reasonable. Oscanyan v. 
Arms Co., 103 U.S. 261, 263 (l88l)and Burgess v. 
Sharrock, 33 F. 3d 134 (2nd Cir. 1983). See also, 
Hendlerv. United States, 952 F. 2d 1364,1368-69(Fed. 
Cir. 1991), citing Familias Unidas v. Briscoe, 544 F. 2d 
182 (5th Cir. 1976).

(2) Failure of alternative sanctions. In the
context of a hostile work environment case, where 
repeated behavior in the essence of the claim, the trial



33

court really did not explore appropriate alternative 
sanctions. Since there was no prejudice to WMATA 
from Keys’ testimony regarding the four topics under 
Morgan, the mandatory alternative to mitigate any 
burden on the judicial system was for the trial court to 
follow the wise course by allowing the Keys to complete 
her case in chief, consistent with the teaching of 
Morgan and letting the case go to the jury. Seganish 
v. Safeway Stores, Inc., 406 F. 2d 653,658 
(D.C.Cir.1968) and Taylor v. Combustion Engineering, 
Inc., 782 F. 2d 525, 527 (5th Cir. 1986).

(3) Deterrence of future misconduct. There can 
be no deterrence to a honest misunderstanding caused 
by inconsistencies in a pretrial order that is not 
faithful to the teachings in the Morgan case and the 
law of the case. “Inconsistency is the antithesis of the 
rule of law." PNC Financial Services Group, Inc. v. C. 
I. R , 503 F. 3d 119, 126 (D.C. Cir. 2007”, quoting 
LaShawn A. v. Barry, 87 F. 3d 1389, 1393 (D.C. 
Cir. 1996). Under the circumstances, the inability to 
comply with a partially invalid pretrial order cannot be 
used as a basis for dismissal when Keys’ 
misunderstanding rendered her unable, in good 
conscience , to comply with the errors in the pretrial 
order. As was recognized in Jackson v. The 
Washington M onthly Co., 569 F. 2d 119, 123-24 (D.C. 
Cir. 1978), for lay persons unfamiliar with the 
fundamental workings of the law, public confidence in 
the legal system is not enhanced by punishing 
blameless litigants’’ for misdoings of components of 

the legal system.



34

VI. The Decision Below Is Exceptionally
Important and It Presents a Recurring
Question of National Importance______

In further exercise of its constitutional powers, 
the Congress has reviewed and corrected by legislation 
what it has determined as a pattern of unjust rulings 
from the federal judiciary in employment 
discrimination cases that were yielding unfairly 
crabbed and narrow interpretations of Title VIL 
Judicial notice can be taken by this Court of the Civil 
Rights Act of 1991 (42 U.S.C. §1981a) and the 
extensive legislative history to the vetoed Civil Rights 
Act of 1990. In the interest of justice, the Congress has 
not only limited the unbridled discretion of federal 
judges, but has attempted to correct abuses of federal 
power by the federal judiciary in the repeated 
dismissal of meritorious employment discrimination 
cases. Thus, fairness can not longer be assumed by 
either African-Americans or working women litigants 
in federal courts. See generally, Lilly Ledbetter Fair 
Pay Act of 2009, 42 U.S.C. §2000e-5e.

This case demonstrates the draconian re-emergence in 
federal courts of the national problem wrought by the 
ignominious jurisprudence of the Dred Scott tradition. 
Despite the Civil War, the Civil War Amendments and 
the modern Civil Rights Movement, this Court has 
never formally overruled or rejected the Dred Scott 
jurisprudence by express and definitive authority from 
this Court. In fact, prior to the Civil War 
Amendments, “no federal court in America had ruled 
that slavery was inconsistent with the national legal 
tradition.” See, A. Leon Higgingbotham, Jr., In The 
M atter o f Color: Race and The American Legal



35

Process' The Colonial Period, p.313. (Oxford University 
Press 1978). The egregiousness of the injustice below 
is a result of the lower federal courts blatantly 
ignoring and misapplying the authority of this Court 
in the Morgan case. This means that victims of 
unlawful employment discrimination are left without 
a remedy in egregious cases such as presented by 
Petitioners. This is a national problem and the 
situation is of national importance because egregious 
cases might be seen as intractable and avoided in the 
certiorari review process. This was the same dilemma 
confronting the federal judiciary during the long period 
of slavery in this nation.

The recurring problem of national importance for 
this Court is that it authored a decision that legalized 
the enslavement of African Americans and has never 
formally overruled the Dred Scott decision. The Dred 
Scott decision was possible only by overlooking 
contrary evidence, contrary common law and common 
sense. In fact, from a careful review of a portion of 
Rule 10 of the Rules of this Court, there is found an 
express embodiment of the Dred Scott tradition that is 
contributing to lower federal courts egregious 
mishandling of Title VII cases brought by African 
Americans and women. Here, the offensive portion of 
Rule 10 states that this Court will “rarely” exercise its 
discretion by granting certiorari to correct “erroneous 
factual findings or the misapplication of a properly 
stated rule of law.” This portion of Rule 10 is 
inconsistent with the letter and spirit of Constitution 
and its Amendments.



36

CONCLUSION

The petition for writ of certiorari should be 
granted. The Court may wish to consider summary 
reversal.

Respectfully submitted,

Robert L. Bell 
Counsel of Record 
Bell Law Firm
1001 Connecticut Ave, NW, Ste 402 
Washington, D.C. 20036 
(202) 842-4066 
(202) 842-0320 (fax)
b e l l l a w f i r m @ v e r i z o n . n e t

September 9, 2013

mailto:belllawfirm@verizon.net