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John J. Breen v. Herbert L. Tucker

November 4, 2011

JOHN J. BREEN, PLAINTIFF,
v.
HERBERT L. TUCKER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

MEMORANDUM OPINION

I. Introduction.

On February 25, 1977, the District of Columbia (the "District") terminated plaintiff John J. Breen from his temporary employment with a former agency of the District government, and then when forced to reinstate him, failed to convert the position from temporary to permanent. Mr. Breen brought suit against the District alleging racial discrimination in violation of Title VII of the Civil Rights Act and prevailed on February 27, 1981. The Court ordered the District to reinstate Mr. Breen into a permanent position and awarded him pay and benefits, including retirement contributions, for the period during which Mr. Breen had not been employed following his termination by the District.

Mr. Breen now alleges that the District failed to comply with the Court's 1981 Order by failing to make the required retirement contributions. He requests that the Court hold the District in contempt for that failure. The District makes three arguments in its most recent opposition to that motion: (1) that Mr. Breen's motion is barred by the doctrine of laches, (2) that the evidence upon which Mr. Breen relies is inadmissible hearsay, and (3) that Mr. Breen has failed to show that the District violated the 1981 Order. For the reasons discussed below, the Court disagrees with the first argument, will assume without deciding that Mr. Breen's evidence is admissible as to the second argument, and agrees with the third argument. Mr. Breen's motion to enforce the judgment through contempt will therefore be denied.

II. Background and Procedural History.

Beginning in 1974, Mr. Breen, a white male, was employed by the District of Columbia Department of Environmental Services (the "Department"). Memorandum Opinion, Feb. 27, 1981, Case Number ("No.") 78-2222 ("1981 Mem. Op.") at 1, General Case Files, United Staes ("U.S.") District Court for the District of Columbia, Records of District Courts of the United States, Record Group 21, National Archives Building, Washington, D.C.*fn1 In 1976, following an argument and physical altercation with several black co-workers, Mr. Breen was suspended and, on February 25, 1977, his employment was terminated. Id. at 2. Although he had previously been employed as a permanent employee by the Department in another position, his employment at the time of his termination in 1977 was, as a result of a promotion, in a temporary position that "had a not-to-exceed (NTE) date of August 28, 1977." Id. at 1.

Mr. Breen administratively complained that his termination was racially motivated and was awarded reinstatement in 1978. Id. at 2--3. Although the Department technically reinstated Mr. Breen, it only did so through the NTE date of his temporary position, "claiming that the temporary position was finished." Id. at 3. "It was the practice of the Personnel Office at [the Department]," however, "to convert qualified employees whose temporary positions were about to expire[] to permanent positions at [the Department], especially when the employee had been a permanent employee" in the past. Id. at 1--2. Not only did the Department not follow that practice in Mr. Breen's case, it improperly "referred to his removal in evaluating" Mr. Breen for the several vacancies to which he later applied, resulting in him "not [being] selected although imminently qualified." Id. at 3. Mr. Breen administratively challenged his non-selections based on racial discrimination, id., which eventually led him to file two suits against the District: this case and Civil Action No. 80-709, alleging violations of Title VII of the Civil Rights Act.

The two cases were jointly tried and, on February 27, 1981, the Court rendered judgment in Mr. Breen's favor. See 1981Mem. Op. The Court ordered that the District reinstate Mr. Breen to a permanent position; pay him "back pay equal to the difference between his salary if he had not been discriminatorily terminated and that which he has received since August 28, 1977," the date his temporary position ended; provide Mr. Breen with "all fringe benefits" to which he would have been entitled but for his discriminatory termination; and pay his "reasonable attorney's fees and costs." Order, Feb. 27, 1981, Case No. 78-2222 ("1981 Order"), General Case Files, U.S. District Court for the District of Columbia, Records of District Courts of the United States, Record Group 21, National Archives Building, Washington, D.C. The Court specified that the fringe benefits it awarded included "retirement contributions." Id.

Mr. Breen ultimately retired on June 21, 1985. Interrogatory Response of John J. Breen to Kerslyn D. Featherstone, Assistant Attorney General, Civil Litigation Division, Office of the Attorney General for the District of Columbia (July 11, 2011) ("Interrog. Resp.") ¶ 3, ECF No. 21-1. Mr. Breen later received a form from the U.S. Office of Personnel Management ("OPM") dated October 7, 2005, which itemized his employment history but did not include Mr. Breen's employment between February 26, 1977 and July 25, 1981, id. ¶ 6-approximately the period for which the District was ordered to make contributions into Mr. Breen's retirement fund.

Concerned that OPM, which was serving as the retirement authority, did not appear to have a record of Mr. Breen's employment despite the 1981 Order's mandate that retirement contributions be made during the period of his discriminatory unemployment, Mr. Breen attempted to correct the omission of his employment by submitting relevant forms to OPM on November 11, 2005. Id. ¶ 11. Mr. Breen claims to have further pursued the matter through "[e]mails, mail[,] and phone calls through the years" thereafter. Id. After an apparent lack of success in remedying the omission, Mr. Breen "mailed a reminder to OPM" on July 4, 2009, id., and he received a response dated January 19, 2010, in which OPM claimed that it was "unable to find documentation of [his] service from February 26, 1977 to July 25, 1981." Letter from J. Blanks, Retirement Services Program, OPM, to John J. Breen (Jan. 19, 2010) ("OPM Letter"), ECF No. 2-1.

In March 2010, Mr. Breen filed a motion to enforce the judgment in this case as well as Civil Action No. 80-709.*fn2 See Motion for Enforcement of Judgment, ECF No. 2. The Court denied that motion because, "on the basis of the papers filed, the Court [could not] discern what is at issue in the motion" and thus could not "discern what relief the plaintiff seeks to be enforced or . . . conclude that the relief the plaintiff seeks this Court to enforce was in fact granted" in the 1981 Order. Id. at 2. In May 2010, Mr. Breen renewed his motion, specifically alleging that the District "did not make [the] retirement contributions" that had been ordered in 1981 and requested that the Court hold the District in contempt for violating the 1981 Order. Second Motion for Enforcement of Judgment ("Mot.") at 1, ECF No. 7.

The District opposed the second motion, arguing first that that Mr. Breen "'has provided no new information in his renewed motion to satisfy the Court's concerns' and that the Court therefore cannot identify what Mr. Breen seeks or whether he is entitled to it." Breen v. Tucker, 760 F. Supp. 2d 141, 143 (D.D.C. 2011) (quoting Defendant District of Columbia's Memorandum in Opposition to Plaintiff's Second Motion for Enforcement of Judgment at 2--3, ECF No. 8). The Court disagreed, concluding that "Mr. Breen is alleging that the United States Office of Personnel Management (OPM) is not currently providing him with the appropriate amount of retirement benefits he is entitled to receive" because the District failed to make contributions required by the 1981 Order, and that "Mr. Breen also clearly states the relief he is seeking: that the Court hold the District in contempt for violating the order to induce the District's compliance." Id. The District also argued that Mr. Breen's motion was barred by the doctrine of laches because he was not diligent in pressing his claims and because the District would be prejudiced if made to defend against accusations that it violated what was then a 29-year-old judgment. Id. at 144. The Court disagreed, concluding that Mr. Breen had been diligent, filing his original enforcement motion only approximately one month after receipt of the January 19, 2010 letter from OPM, and that the District would not be unduly prejudiced because, despite the passage of time, the Court found it "implausible that evidence . . . is not available" to allow the District to make its defense. Id. at 144--45. The Court thus ordered the District to respond to the merits of Mr. Breen's allegations, id. at 146, but also permitted the District to engage in limited discovery before submitting its response, see Memorandum Opinion and Order, ECF No. 19.

The District has now filed that response, in which it advances three arguments. See Defendant District of Columbia's Opposition to Plaintiff's Second Motion to Enforcement of Judgment ("Opp'n"), ECF No. 21. First, the District again argues that Mr. Breen's motion is barred by the doctrine of laches. Id. at 5--7. Because the Court has previously decided that the motion is not barred by laches, the Court construes this portion of the District's motion as a request for reconsideration based on new evidence. Such new evidence consists of documents showing Mr. Breen's knowledge of the discrepancy in OPM's records and his attempts to remedy that discrepancy prior to his receipt of the January 19, 2010 letter from OPM: the October 7, 2005 form that Mr. Breen received from OPM; the November 11, 2005 submissions by Mr. Breen to OPM; and Mr. Breen's follow-up communications, including a July 4, 2009 letter to OPM. This new evidence, however, does not change the Court's conclusions that Mr. Breen acted with due diligence or that the District would not be unduly prejudiced if made to defend against the merits of Mr. Breen's allegations.

The District's second argument is that the January 19, 2010 letter from OPM upon which Mr. Breen relies is inadmissible hearsay. Id. at 4. The Court need not decide whether the letter is hearsay, but will instead assume that it is admissible, because even with that assumption made, ...


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