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 and because it is hearsay. Finally, WMATA asserts that my partiality and bias in the presence of the jury is a sufficient basis for a new trial.
A. Jury Instruction Regarding But-For Causation
WMATA contends that the jury should have been instructed that WMATA could avoid liability if it demonstrated by clear and convincing evidence that retaliation was not the but-for cause of the adverse personnel action against Jones; i.e., that Jones would have been fired even absent retaliation. See Berger, 843 F.2d at 1423, 1426; Chen v. GAO, 261 U.S. App. D.C. 244, 821 F.2d 732, 739 (D.C. Cir. 1987). Jones characterizes this requested instruction as a mixed-motive instruction. She claims that an assertion by WMATA that its adverse action would have occurred without retaliation is an affirmative defense, see Price Waterhouse v. Hopkins, 490 U.S. 228, 246, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989), which must be pleaded, see Fed. R. Civ. P. 8(c), or it is waived. According to Jones, WMATA did not argue joint motive but denied outright that retaliation occurred; in Jones' view, the issue is whether WMATA's alleged legitimate reason for its action is pretextual. WMATA points out, however, that our circuit in Berger allowed defendants final recourse in a retaliation case to dispute but-for causation without requiring that the defense be raised affirmatively in the pleadings.
Like the case at bar, Berger was pleaded as a pretext case. The court stated, however, that "the evidence presented by the parties ... suggest[s] that the reasons for the defendant's conduct are mixed, consisting of both retaliatory and legitimate factors. For that reason, this circuit has adopted a 'but for' test of causation." 843 F.2d at 1423. It seems that the evidentiary showing in Berger prompted the court to depart from a pretext model and adopt a mixed motive model - a precursor of the mixed motive paradigm later clarified in Price Waterhouse.
The circumstances here are quite different. In its post-hearing brief (at 3 & n.2) WMATA expressly confirms that this case was tried - not just pleaded - as a pretext case in which either legal or illegal motives, but not both, underlay the adverse employment actions. The evidence here was presented in one bundle for the trier to decide whether retaliation or a legitimate reason motivated the employer. WMATA denied a retaliatory motive altogether; it never produced evidence showing an alternative, lawful basis for its conduct co-existent with a retaliatory motive. There is, accordingly, no reason for a mixed motive instruction.
In a case tried under the rubric of pretext, the defendant does not get a second bite at the apple to show that it would have taken the same action anyway. Even if the mixed motive paradigm adopted by the court in Berger were still good law after Price Waterhouse (as later modified by the Civil Rights Act of 1991, 42 U.S.C. § 2000e-2(m)), WMATA would at a minimum have been required to introduce evidence of a dual motive at trial. Instead, it argued that a non-pretextual legitimate reason was its sole motivating factor.
B. WMATA's Further Objections to Jury Instructions
WMATA also sought a jury instruction, which the court rejected, that Jones had no right to counsel at her meeting with Al Brown. Jones insists that she did not claim a right to counsel, so a jury instruction on that subject was unnecessary. WMATA replies that whether Jones had a right to counsel is relevant in assessing the reasonableness of her conduct in refusing to meet with Brown. According to WMATA, Jones' unreasonable refusal to meet with her superior was an important factor that resulted in her termination in 1991.
A jury instruction is of course inappropriate unless the underlying issue is firmly established in law. In this instance, it is not at all clear that Jones had no right to counsel. She agreed to meet with her immediate supervisor, Albert Yorro, without counsel present, but declined to meet with Brown, a higher-level official with whom she had already experienced difficulties, unless her attorney was in attendance. The meeting with Brown was to be investigatory in nature - in connection with the so-called red ribbon incident. When a public employee is under investigation, with potential loss of liberty or property, due process may require that the employee be represented by counsel. See Hannah v. Larche, 363 U.S. 420, 442, 4 L. Ed. 2d 1307, 80 S. Ct. 1502 (1960) ("when governmental agencies adjudicate or make binding determinations which directly affect the legal rights of individuals, it is imperative that those agencies use the procedures which have traditionally been associated with the judicial process").
WMATA cites Hannah for the proposition that government employees typically are not entitled to be represented by counsel in an investigatory proceeding. But Hannah involved the Civil Rights Commission, a purely investigative agency. The Court was careful to note that when the "governmental action does not partake of an adjudication, as for example, when a general fact-finding investigation is being conducted, it is not necessary that the full panoply of judicial procedures be used." Id. Here, by contrast, the investigation was followed directly by Jones' termination - clearly an adjudicatory function.
Although the Court in Hannah held that the Civil Rights Commission "does not adjudicate, [and therefore] it need not be bound by adjudicatory procedures," id., the Court went on to suggest that due process would be a greater concern if "the Commission's proceedings might irreparably harm those being investigated by subjecting them to ... the distinct likelihood of losing their jobs," id. at 443.
The court concludes that there is sufficient uncertainty surrounding the circumstances of Jones' meeting with Brown to foreclose a jury instruction that Jones had no right to counsel as a matter of law.
Next, WMATA argues for an instruction to the jury 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. See Hazen Paper, 507 U.S. at 616. Jones insists that the "willfulness" instruction was faithful to Hazen Paper, and this court agrees. The Court held in Hazen Paper that "if an employer incorrectly but in good faith and nonrecklessly believes that the statute permits a particular age-based decision, then liquidated damages should not be imposed." Id. (emphasis added). In the ADEA context, liquidated damages (i.e., back pay) do not equate to - indeed they were in addition to - the underlying monetary damages assessed against the defendant. Id. at 608. Consequently, Hazen Paper does not speak to the propriety of money damages.
WMATA also protests the court's instruction to the jury that the EEOC decision in a case involving employee Joseph Taylor was "entitled to no weight" (WMATA's characterization of the instruction). The EEOC found that Taylor had not established by a preponderance of the evidence that retaliation played a role in WMATA's decision to downgrade Taylor's employment status. Jones responds that a cautionary instruction regarding the EEOC determination was appropriate. In fact, the instruction read to the jury did not use the phrase "no weight." It simply said that the EEOC "findings have no legal significance." The court elaborated: "Regardless of the findings of the EEOC about a particular person's case, that person has the right to go to court and have the case decided by a judge and jury." This is a correct statement of the law; the court rejects WMATA's protest.
Finally, WMATA contends that the court should not have instructed the jury that Jones engaged in protected activity when in 1985, jointly with her subordinates, she sent at letter to management protesting discrimination in the Rail department. An employer's interest in the smooth functioning of its business must be balanced against the employees' interest in resolving discrimination disputes. Toward this objective, the District of Columbia Circuit has held that an EEO protest is protected activity unless it is "expressed disruptively, insubordinately, or in a manner damaging to [the employer's] legitimate management interests." Parker v. Baltimore & Ohio R.R. Co., 209 U.S. App. D.C. 215, 652 F.2d 1012, 1019-20 (D.C. Cir. 1981). WMATA does not argue that Jones' 1985 protest was disruptive or insubordinate. Indeed, WMATA manager Mark Miller acknowledged at trial that the letter in question was polite. Moreover, WMATA has not shown that Jones' protest was damaging to WMATA's management interests. Absent such a showing, there is no basis upon which to conclude that Jones' actions were not protected. The court finds that the jury instruction was proper.
C. Admissibility of Evidence
WMATA maintains, first, that testimony by various witnesses - including Avon Mackel, Herbert Anzueto, Joan Lewis, and Joseph Taylor - alleging prior discriminatory acts by WMATA should not have been admitted. Jones responds that such testimony is relevant to prove that Fady Bassily and other WMATA officials regularly retaliate against employees who protest discrimination. The court holds that, at a minimum, evidence of prior discriminatory acts are relevant to WMATA's motive and intent, see Fed. R. Evid. 404(b), and on the facts of this case the danger of unfair prejudice from such evidence does not outweigh its probative value, see Fed. R. Evid. 403. See also Morris v. WMATA, 226 U.S. App. D.C. 300, 702 F.2d 1037, 1045 (D.C. Cir. 1983) ("The question of the legitimacy of the employer's motivation . . . is one upon which the past acts of the employer have some bearing").
Second, WMATA argues that 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, or should have been admitted only in a bifurcated damages hearing after liability had been determined, or at least the jury should have been instructed that the prior summary judgment was subject to appeal. These arguments are without merit. Facts found when summary judgment is partially granted are to be specified, and "upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly." Fed. R. Civ. P. 56(d).
Third, WMATA asserts that the court's finding of sex discrimination in Townsend v. WMATA, 746 F. Supp. 178 (D.D.C. 1990), is both hearsay and irrelevant to the present charge of retaliation. As to relevance, the fact that WMATA may have been engaged in widespread discrimination based upon sex, age, race or any other impermissible factor would certainly be relevant to its intent or motive to retaliate against those who complained of such discrimination.
On the hearsay question, Judge Harris of this court did indeed strike the factual findings of the Townsend case as hearsay in his recent opinion in Taylor v. WMATA, 922 F. Supp. 665 at 675-676 Civil Action No. 93-0891 (D.D.C. 1996). Jones counters, however, that the circumstances here are different; the Townsend case arose in connection with cross examination - only after WMATA had opened the door during its direct examination. The court is not persuaded by this explanation. WMATA's direct examination raised the question whether Bassily was familiar with the entry into this litigation of Kator, Scott & Heller, a law firm that had opposed WMATA in Townsend and that was hired to represent Jones in February 1991 after her then-current attorney had become ill. Testimony on WMATA's awareness that new attorneys were involved might "open the door" to establish that the same attorneys opposed WMATA in Townsend ; but it surely does not open the door to introduce the facts of the Townsend litigation.
On the other hand, even if the Townsend decision is hearsay, it is still admissible as an exception to the hearsay rule under Fed. R. Evid. 803(24). The requirements for admissibility are that the evidence: (a) has circumstantial guarantees of trustworthiness, (b) is offered on a material fact, and (c) is more probative on the point for which it is offered than other reasonably available evidence. Id. The court concludes that these requirements are met in this instance, and that the interests of justice were best served by admission of Townsend into evidence. Rule 803(24) also requires pre-trial notice. WMATA had ample notice; the question of the admissibility of Townsend was the subject of extensive pre-trial briefing.
D. Partiality and Bias of the District Judge
As a final ground upon which to demand a new trial, WMATA questions my impartiality and accuses me of bias in the presence of the jury. In particular, WMATA argues that the court exceeded permissible limits in its ardent questioning of WMATA witnesses, and that the court communicated to the jury its belief regarding WMATA's guilt. In United States v. McCord, 166 U.S. App. D.C. 1, 509 F.2d 334 (D.C. Cir. 1974) (en banc), cert. denied, 421 U.S. 930, 44 L. Ed. 2d 87, 95 S. Ct. 1656 (1975), our circuit reviewed Judge Sirica's aggressive questioning of Watergate witnesses. The court held that the defendant was not deprived of a fair trial, and observed that "the judge . . . is not a passive by-stander in the arena of justice, a spectator at a 'sporting event'; rather he or she has the most pressing affirmative responsibility to see that justice is done in every case." 509 F.2d at 347 (footnotes omitted).
In the present case, the court's questioning was sparing, focused, fair, and an appropriate exercise of its "affirmative responsibility to see that justice is done in every case." McCord shelters judicial intervention - even in a criminal case - more active than anything that occurred in this civil proceeding. See also Kennedy v. Los Angeles Police Dep't, 901 F.2d 702, 709 (9th Cir. 1989) (reversal not warranted even though court's questions were "quite pointed and intemperate"; court did not impede counsel's questioning of witnesses, nor preempt counsel's function, nor assume role of witness or advocate, nor misstate factual accounts, nor introduce evidence; "very few cases outside of the criminal law area support an appellate finding of general judicial misconduct during trial").
Furthermore, the court instructed the jurors that they "should not take my questions to witnesses as any indication of the Court's opinion .... Remember at all times that you, as jurors, are at liberty to disregard all comments of the Court in arriving at your own findings as to the facts." STANDARDIZED JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA, No. 1-7. The court elaborated upon this point, reiterating that
the law of the United States permits the Judge to comment to the jury on the evidence in the case. Such expressions, when made, are only expressions of the Judge's opinion as to the facts, and you are not bound by that opinion. If, during the course of this trial or this charge, I have made or make any comment on any evidence, or any comment which you interpret as an expression or intimation of opinion as to any fact, you are free to disregard it. Your are the sole and exclusive judges of all issues of fact in this case.
You are not to permit yourself to be influenced by anything the Court has said or done which you might think suggested to you that he is inclined to favor the claims or positions of either party. I have not intended to express or to intimate any opinion as to what witnesses are worthy of belief or disbelief; what facts are established; which facts have not been established; or what inferences should be drawn from the evidence. If any expression of mine has seemed to indicate an opinion relating to any of these matters, I instruct you to disregard that seeming indication.
Id., No. 1-6, 1-8.
Absent contrary indication, it is not unreasonable to conclude that the jury followed these instructions. See, e.g., United States v. Perholtz, 268 U.S. App. D.C. 347, 842 F.2d 343, 361 (D.C. Cir.), cert. denied, 488 U.S. 821, 102 L. Ed. 2d 42, 109 S. Ct. 65 (1988).
V. WMATA'S MOTION FOR JUDGMENT
WMATA asks the court to overturn two of the jury's findings: (1) that WMATA retaliated against Jones by denying her promotion to TS-4 in 1988, and (2) that WMATA retaliated against Jones by terminating her in 1991. At the outset, the court takes note of the rigorous standard for overturning a jury verdict: "If (1) the elements of a prima facie case are present, and (2) there exists sufficient evidence for a reasonable jury to reject the defendant's proffered reasons for its actions, then the evidence is sufficient to allow the jury to determine whether intentional discrimination has occurred, and we are without power to reverse the jury's finding." Gaworski v. ITT Commercial Fin. Corp., 17 F.3d 1104, 1109 (8th Cir.), cert. denied, 130 L. Ed. 2d 310, 115 S. Ct. 355 (1994).
Rule 50 of the Federal Rules of Civil Procedure provides that "the court may grant a motion for judgment as a matter of law" if "there is no legally sufficient evidentiary basis for a reasonable jury to have found" for the non-moving party. Judgment as a matter of law should only be granted "if, viewing the evidence in the light most favorable to the plaintiff and giving [her] the advantage of every fair and reasonable inference that the evidence may permit, there can be but one reasonable conclusion drawn." Richardson v. Richardson-Merrell, Inc., 273 U.S. App. D.C. 32, 857 F.2d 823, 827 (D.C. Cir. 1988), cert. denied, 493 U.S. 882, 107 L. Ed. 2d 171, 110 S. Ct. 218 (1989).
A. Retaliatory Denial of Promotion to TS-4 in 1988
In St. Mary's Honor Center v. Hicks, 509 U.S. 502, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993), the Supreme Court held that a prima facie case, together with the discrediting of the defendant's putative nondiscriminatory explanation for its conduct, is sufficient to sustain a finding of discrimination:
The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination, and . . . no additional proof of discrimination is required.