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Ronda Nunnally v. Phillip Graham

November 22, 2012

RONDA NUNNALLY, APPELLANT/CROSS-APPELLEE,
v.
PHILLIP GRAHAM, ET AL., APPELLEES, AND E. SCOTT FRISON, JR., APPELLEE/CROSS-APPELLANT.



Appeals from the Superior Court of the District of Columbia (CAB-5963-04) (Hon. Natalia M. Combs Greene, Trial Judge)

The opinion of the court was delivered by: Reid, Senior Judge

Argued January 10, 2012

Before WASHINGTON, Chief Judge, BECKWITH, Associate Judge, and REID, Senior Judge.

In this employment discrimination case, filed by appellant/cross-appellee Ronda Nunnally and resolved by a jury verdict in favor of appellees Phillip Graham and the District of Columbia, we are faced with an appeal by Ms. Nunnally, and a cross-appeal by appellee/cross-appellant E. Scott Frison, Jr., Ms. Nunnally‟s former lawyer. Ms. Nunnally‟s appeal involves the following questions: (1) whether the trial court erred by failing to admit into evidence (a) an investigative report prepared by a unit of the Metropolitan Police Department ("MPD"), and (b) MPD‟s entire "exit letter" (rather than a redacted copy) relating to administrative action taken in response to Ms. Nunnally‟s complaint against Mr. Graham; (2) whether the trial court erred under the law of the case doctrine by dismissing Mr. Graham, in his individual capacity, from the lawsuit; and (3) whether the trial court erred by giving incomplete instructions to the jury. Mr. Frison‟s appeal raises the question whether his attorney‟s fees issue is properly before this court.

We affirm the trial court‟s judgments in Nos. 09-CV-505 and 09-CV-506.

FACTUALSUMMARY

The record shows that in July 2001, Ms. Nunnally, a lieutenant in the MPD, was moved to MPD‟s Information Technology Division, which later became the Office of the Chief Information Officer ("OCIO"). MPD hired Mr. Graham, a computer scientist, in or around September 2002; he became Chief Information Officer ("CIO") in January 2003. Mr. Graham created four deputy positions in December 2003 and designated Ms. Nunnally as one of his deputies.

Later, in May 2004, Ms. Nunnally filed an Equal Employment Opportunity ("EEO") complaint against Mr. Graham under Title VII of the 1964 Civil Rights Act; she alleged that Mr. Graham sexually harassed her and subjected her to a hostile work environment. Jacqueline Johnson, Manager of MPD‟s Diversity and EEO Compliance Unit, investigated the complaint and sent a report to MPD‟s Police Chief on December 16, 2004, recommending that Ms. Nunnally‟s "sexual harassment allegation be sustained," and referring the matter to the Chief of Police "for disciplinary action." MPD terminated Mr. Graham in March 2005.

Prior to MPD‟s resolution of her EEO complaint, Ms. Nunnally filed a civil action in the Superior Court against Mr. Graham and the District of Columbia, on July 30, 2004, alleging sexual harassment and retaliation under the District of Columbia Human Rights Act ("DCHRA"). She lodged an amended complaint in September 2004; and a second amended complaint in December 2004. A trial judge granted Mr. Graham‟s July 2005 motion to dismiss the second amended complaint against him; hence, he was effectively removed as a defendant in his individual capacity. Nevertheless, Ms. Nunnally filed a third amended complaint (referred to in part of the record as a second amended complaint) on September 25, 2007, more than two years after Mr. Graham had been dismissed, claiming sexual assault and sexual battery, as well as gender and sexual orientation discrimination, sexual harassment, hostile work environment, and retaliation under the DCHRA, and including Mr. Graham as a defendant in his individual capacity. The second trial court judge assigned to the case reinstated Mr. Graham as a defendant in his individual capacity. A third trial judge granted Mr. Graham‟s December 4, 2007, motion to strike or in the alternative to dismiss the September 25, 2007, third amended complaint; the motion was granted pursuant to Super. Ct. Civ. R. 15 (a) and (c), in part because the third amended complaint was time barred and did not relate back to the original complaint.

The case proceeded to trial, in April 2009, on Ms. Nunnally‟s sexual harassment, hostile work environment, and retaliation claims against the District. The jury responded "no" to each of the following three questions: (1) "[D]o you find that plaintiff has proven by a preponderance of the evidence that plaintiff was subjected to unwanted sexual advances by Phil Graham"; (2) "Do you find by a preponderance of the evidence that defendant, District of Columbia, unlawfully subjected the plaintiff, Ronda Nunnally, to a hostile work environment on the basis of her sex"; (3) "Do you find by a preponderance of the evidence that defendant, District of Columbia, retaliated against plaintiff, Ronda Nunnally, because of her protected activities in violation of D.C. Human Rights Act?" Consequently, the trial court entered judgment in favor of the District.

ANALYSIS

MS. NUNNALLY'S APPEAL

The Investigative Report

Ms. Nunnally argues that the trial court committed reversible error by failing to admit into evidence MPD‟s entire investigative report, as a party admission, business record, or public record. The District maintains that the trial court did not abuse its discretion by refusing to admit the entire report because it does not constitute a party admission, and because Ms. Nunnally failed to lay the proper foundation for the admission of the entire report as a business record or public record. The District further contends that even if the entire report were admissible as a party admission, business record, or public record, the trial court did not err in excluding it because its probative value would have been substantially outweighed by its prejudice to the District, had it been admitted. Ms. Nunnally responds, in part, by insisting that the District "adopted" the investigative report, as evidenced by its reliance on the report to fire Mr. Graham, and further, she claims the District "held up [the report‟s] existence (without ever letting the jury know what it actually said) as proof that the District acted in good faith in investigating [Ms.] Nunnally‟s complaint." She also maintains that a limiting instruction could have mitigated any prejudicial impact flowing from the report.

Before setting forth the legal principles that will guide our analysis of this issue, we summarize the investigative report and the trial court‟s discussion and rulings pertaining to the report. The report, prepared by Ms. Johnson, Manager of MPD‟s Diversity and EEO Compliance Unit, consists of sixty-six single-spaced pages, providing background information on Ms. Nunnally, and details about her complaint against Mr. Graham, obtained during Ms. Johnson‟s interview with Ms. Nunnally. The report contains a summary of taped interviews with approximately twenty-five persons, including seventeen individuals whose names were provided by Ms. Nunnally; several police officers or administrators; and Mr. Graham. In addition, there is an analysis of Ms. Nunnally‟s complaint, and other evidence, under Title VII of the Civil Rights Act of 1964. The report closes with three relatively short sections: 1) "Lack of Judgment" (with eight summary statements); 2) "Statement of Facts" (with eighteen summary statements); and 3) "Recommendation." Most of the persons interviewed did not indicate that they witnessed any inappropriate behavior between Ms. Nunnally and Mr. Graham; some of these persons reported what they had heard from Ms. Nunnally or others, or what others had heard from yet other persons. Three of those interviewed said they witnessed some touching of Ms. Nunnally by Mr. Graham that they considered inappropriate. Ms. Johnson recommended that Ms. Nunnally‟s "allegation of sexual harassment be sustained to support a violation of Title VII of the Civil Rights Act of 1964, as amended, and a violation of MPD‟s General Order 201.9, Equal Employment Program." She also "referred" the matter "to the Chief of Police for disciplinary action."

According to Ms. Nunnally, and reiterated by her at trial, the incidents began in April 2003 with very subtle comments by Mr. Graham. His conduct soon escalated to sending inappropriate cartoons, emails and text messages to Ms. Nunnally; unannounced visits to her home with gifts; constant demands that she join him for walks, lunch, dinner or drinks; groping of her thighs ...


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