discharge was a result of her unreasonable and aggressive manner at work. See McKenzie v. Sawyer, 221 U.S. App. D.C. 288, 684 F.2d 62, 71 (D.C. Cir. 1982). At such a point, the plaintiff would reassume the burden to show that the defendants' reasons were only pretextual. Id. If evidence is presented which shows a mixed cause for Dr. Joshi's discharge, i.e., both lawful and unlawful reasons, the plaintiff can prevail only if she shows she would have retained her job but for a retaliatory motive. If the plaintiff would have lost her job anyway, absent retaliation for the 1980 EEOC complaints, there was no unlawful retaliation. See Williams v. Boorstin, 213 U.S. App. D.C. 345, 663 F.2d 109, 117 (D.C. Cir. 1980).
Dr. Joshi has not satisfied the first step because she did not make a prima facie case of retaliation. Dr. Joshi asserts that the protected activities in which she engaged were the filings of the 1980 complaints and lawsuits leading to the consent order of November 1980. However, since these activities were the subject of the consent order and hence were merged into the final judgment, they may not serve as the basis of a prima facie case of retaliation in a Title VII lawsuit. "A valid agreement of compromise and settlement of a case properly pending in a court of competent jurisdiction . . . constitutes a merger and a bar of all claims properly litigable in such case." 47 Am. Jur. 2d Judgments § 1093 (1964). See United States v. American Telephone and Telegraph Co., 524 F. Supp. 1336, 1353 n. 70 (D.D.C. 1981). Only the consent order itself may be the basis of further litigation.
Furthermore, even if a prima facie case had been made, legitimate, nondiscriminatory, and nonpretextual reasons existed for the decision not to hire Dr. Joshi. Testimony at trial made it clear that the decision was made on the basis that she was not compatible with the group of emergency room doctors who were hired by the hospital, that she could not work cooperatively with the staff and management of the hospital, that she was a disruptive force, and that if she had been hired, other doctors may have resigned. The defendants introduced evidence of examples of her working difficulties, such as her constant complaints about her supervisor's scheduling decisions; (2) her failure to report to work or to arrange alternative scheduling on December 18, 1980; her failure to work or notify of her intent not to work on December 27, 1980; and three incidents in which the plaintiff demonstrated a lack of judgment, i.e., the Bryan Bostich brouhaha, the rerouting argument of December 1980, and the unfavorable physician's assistant's evaluation from a student with whom she cannot remember working. At trial, one of her former supervisors at Greater Southeast Community Hospital summarily characterized Dr. Joshi as "at best, uncommunicative, at worst, verbally abusive."
These factors, individually rather trivial but collectively quite revealing, were corroborated by testimony as to other positions in which she has been employed. For example, Dr. Mehdi Nabavi, the Associate Director of Emergency Services at the Southern Maryland Hospital Center (where plaintiff worked in 1981-83), testified that he intended to have Dr. Joshi placed on probation following behavior which he described as "bizarre, rude, uncontrolled, and volatile." See n. 3, infra. Dr. Joshi was terminated from the Shaw Community Comprehensive Health Center in 1976 for disciplinary reasons. Dr. Edwin McCampbell from that organization testified that her "history at Shaw was marked by personality conflicts."
Plaintiff's hostile nature became evident to the Court in the nonconciliatory, abrasive language reflected in the pleadings and in the letters and documents received as exhibits. There is no question but that among the chief reasons she was not hired by the hospital when PHS stopped staffing the emergency room was Dr. Joshi's incompatibility with the highly desirable goal of achieving a smoothly functioning emergency room. A place of split-second decisions, critical medical needs, and limited personnel is no place for a person unwilling and unable to work as a teamplayer.
The Plaintiff's Discovery Abuse and False Testimony
The discovery and pretrial aspects of this case were handled by United States Magistrate Arthur L. Burnett, Sr. As part of discovery, defendants sought information as to Dr. Joshi's employment at the Southern Maryland Hospital Center, specifically directed to whether she had been reprimanded and placed on probation there. Dr. Joshi did not produce certain documents which defendants believed were in her possession, and she denied having been put in a probationary status.
In April 1984, defendants sought the sanction of dismissal under Fed. R. Civ. P. 37 for what they asserted to be Dr. Joshi's willful failure to provide the discovery required. Magistrate Burnett conducted an evidentiary hearing on the matter on May 29 and June 19, 1984. Particularly at issue was a memorandum dated March 16, 1984, from Dr. Nabavi to Dr. Joshi.
Plaintiff was one of the witnesses at the hearing. On five occasions she flatly denied having received the memorandum; on a sixth she asserted that she had no recollection of it.
On July 26, 1984, Magistrate Burnett issued a Memorandum and Order denying defendants' motion for sanctions. Faced with what was then a difficult credibility determination, he concluded that Dr. Joshi was "a credible witness." He concluded in part:
Indeed, the defendants' evidence failed to establish that Dr. Joshi ever received or saw the memorandum written by Dr. Nabavi which used the word probation.