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October 15, 1996

JUDY J. JONES, Plaintiff,

The opinion of the court was delivered by: LAMBERTH

 This case comes before the court on three motions by defendant Washington Metropolitan Area Transit Authority (WMATA). Upon consideration of the filings and oral argument of counsel, the relevant law, and for the reasons more fully set forth below, it is hereby ORDERED that:

 1. WMATA's motion for leave to file a post-hearing brief is hereby GRANTED. The Clerk of the Court is directed to file the lodged brief.

 2. WMATA's motion to amend its previous legal memorandum opposing plaintiff Jones' motion for partial summary judgment is hereby DENIED.

 3. WMATA's motion for judgment as a matter of law or, in the alternative, for a new trial is hereby DENIED.

 A separate Memorandum Opinion II, issued this date, will address the non-jury issues tried before the court.


 Jones filed this action in March 1989 under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq., and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq., alleging that WMATA had denied her promotions in retaliation for her protected complaints of discrimination and also because of her sex, race and age. WMATA fired Jones in March 1991 and she amended her complaint to claim that her termination, as well as WMATA's subsequent refusal to reinstate her, were retaliatory.

 As narrowed, the case presented three claims of retaliation under the ADEA for the jury to decide: (1) WMATA's refusal to promote Jones to Senior Rail Operations Supervisor, TS-4, in 1987; (2) WMATA's refusal again to promote Jones to the same position when she applied for it in 1988; and (3) WMATA's termination of Jones in March 1991. The parties stipulated that if the jury found liability on any of these three claims, the court would decide the amount of any back pay due. But the jury still had to determine whether any violation was willful, Hazen Paper Co. v. Biggins, 507 U.S. 604, 616, 123 L. Ed. 2d 338, 113 S. Ct. 1701 (1993), as well as the amount of compensatory damages, if any, to be awarded in connection with any findings of retaliation, Moskowitz v. Trustees of Purdue Univ., 5 F.3d 279, 283-84 (7th Cir. 1993). Finally, the jury had to make willfulness and damage determinations in connection with WMATA's refusal to reinstate Jones, which the court had previously determined was unlawful.

 On October 20, 1994, the jury found in favor of WMATA on the 1987 TS-4 claim, but determined that WMATA's decisions to reject Jones for promotion to TS-4 in 1988 and to terminate her in March 1991 were the products of retaliation under the ADEA. The jury also decided that both actions were willful and that the refusal to reinstate was willful as well. The jury awarded Jones a total of $ 50,000 in compensatory damages - $ 10,000 for the 1988 refusal to promote and $ 20,000 apiece for the termination and refusal to reinstate.

 Because the events in this case predate the Civil Rights Act of 1991, Jones' Title VII claims must be decided by the court. Landgraf v. USI Film Prods., 511 U.S. 244, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994). First, the court must determine whether the above-mentioned personnel actions violated Title VII, independent of the jury's findings under the ADEA. Second, the court must decide whether the 1987 denial of Jones' promotion to Quality Assurance Inspector, TS-5 which arises solely under the sex discrimination provisions of Title VII and does not implicate the ADEA - was unlawful. Third, the court must decide issues of relief under both Title VII and the ADEA, including the amount of back pay owed Jones and the amount of liquidated damages due her under the ADEA given the jury's determination that the ADEA violations were willful, 29 U.S.C. § 626(b). The court must also decide the nature of any injunctive relief due, such as promotion and reinstatement, as well as Jones' request that WMATA and its Assistant General Manager in charge of Rail Transportation, Fady Bassily, be enjoined from further retaliation against her or other WMATA employees who engage in protected EEO activity. Jones also asks for attorneys' fees.


 WMATA requests leave to file a post-hearing brief that addresses two legal issues: (1) Whether under Title VII and the ADEA a defendant has a final opportunity to prove by clear and convincing evidence that an adverse employment action would have occurred even absent retaliatory motive. (2) What standard determines whether an adverse inference attaches to WMATA's loss of employee test scores pertaining to Jones' Title VII claim that she was denied a TS-5 promotion in 1987 because of sex discrimination.

 WMATA asks the court to use its inherent powers to permit the post-hearing brief to be filed. Since the time of the hearing, WMATA has had an opportunity to review the case law on adverse inferences and to review the pleadings in Berger v. Iron Workers Reinforced Rodmen Local 201, 269 U.S. App. D.C. 67, 843 F.2d 1395 (D.C. Cir. 1988), cert. denied, 490 U.S. 1105, 104 L. Ed. 2d 1018, 109 S. Ct. 3155 (1989), regarding burdens of proof in Title VII cases. Jones asks, however, that the motion for leave to file be denied on the ground that WMATA's post-hearing brief contains no new material.

 In light of the complexity of the substantive legal issues and the time pressures of both the jury trial and the bench trial, the court grants WMATA's motion for leave to file. Upon inquiry from chambers, counsel for Jones has indicated that he is content with his prior submissions on the underlying issues and does not seek to file a further response on the merits.


 In its May 1993 opposition to Jones' motion for partial summary judgment, WMATA stated that Mark Miller, a WMATA manager and chairman of the selection panel that denied Jones' promotion to TS-4 in 1988, "considered that Ms. Jones' decision to sign a protest letter with subordinates whom she supervised evidenced below average attitude." Seventeen months later, Miller disavowed any such consideration in his testimony at trial. Accordingly, WMATA seeks to withdraw the statement from its summary judgment opposition thereby preventing Jones from using the statement to impeach Miller. WMATA argues that evidence does not come in through the unsubstantiated statements of counsel, but through testimony; i.e., an inadvertent mischaracterization by an attorney does not establish factual conflict. Jones responds that an inconsistency between the statement of counsel and Miller's testimony is no reason to strike the former; indeed, that is why Jones used the statement to impeach Miller.

 Although both parties concur that admissions made in a pleading are binding, they dispute whether similar binding effect should be accorded to admissions made in legal memoranda. See, e.g., 10A CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2723, at 65-66 (1983). The court need not resolve this dispute. The question is not whether the admission should have binding effect but whether it is properly in the case at all. The court holds that a statement in a legal memorandum submitted in opposition to a motion for summary judgment may be weighed by the finder of facts along with any subsequent modification or revocation of that statement. Moreover, WMATA's post-trial motion to change what they filed in May 1993 is untimely; the motion was filed two months after the jury rendered its verdict and 19 months after the original submission of the memorandum.


 In support of its motion for a new trial, WMATA alleges, first, that the jury should have been instructed that WMATA was entitled to a final opportunity to prove by clear and convincing evidence that an adverse employment action would have occurred even absent retaliatory motive. Second, WMATA protests four other instructions - two of which were proposed by WMATA but rejected by the court, and two of which were presented to the jury over WMATA's objection: (1) the jury should have been instructed that Jones had no right to counsel at her March 1991 meeting with Al Brown, a manager in Rail Transportation; (2) the jury should have been instructed that if WMATA had a good faith belief that Jones was denied a promotion for a lawful reason, then Jones was not entitled to money damages; (3) the jury was improperly instructed that the decision of the Equal Employment Opportunity Commission (EEOC) in a case involving employee Joseph Taylor was entitled to no weight; and (4) the jury was improperly instructed that Jones was engaged in protected activity when in 1985, jointly with her subordinates, she protested discrimination in the Rail department.

 Third, WMATA raises three matters concerning the admissibility of evidence: (1) testimony by various witnesses alleging prior discriminatory acts by WMATA should not have been admitted; (2) this court's initial holding in Jones v. WMATA, Civil Action No. 89-0552 (D.D.C. Aug. 6, 1993), that WMATA retaliated by failing to reinstate Jones, should not have been admitted; and (3) the court's finding of sex discrimination in Townsend v. WMATA, 746 F. Supp. 178 (D.D.C. 1990), is not relevant to the present charge of retaliation and therefore inadmissible - both on that ground ...

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