United States District Court, District of Columbia
L. FRIEDMAN United States District Judge
matter is before the Court on both parties' Objections to
Magistrate Judge Deborah A. Robinson's Report and
Recommendation, issued on December 19, 2013. Magistrate Judge
Robinson recommended that the Court grant defendant's
motion for summary judgment on a subset of plaintiff Ronda
Nunnally's claims under Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. § 2000e et seq.,
the District of Columbia Human Rights Act
(“DCHRA”), D.C. Code § 2-1401.01 et
seq. (2012 Repl.), and the District of Columbia
Whistleblower Protection Act (“DCWPA”), D.C. Code
§ 1-615.51 et seq. (2012 Repl.), but that it
deny the motion in all other respects. Magistrate Judge
Robinson further recommended that the Court grant in part
Nunnally's motion for sanctions against the District of
Columbia associated with its spoliation of evidence, grant
Nunnally's request for an adverse inference and deny any
further sanctions. Both parties filed written Objections.
careful consideration of the parties' papers, the
relevant legal authorities, and the entire record in this
case, the Court overrules almost all of the parties'
Objections and affirms Magistrate Judge Robinson's Report
and Recommendation (“R&R”) in almost all
respects. The Court therefore affirms in part and reverses in
part Magistrate Judge Robinson's R&R, grants in part
and denies in part the District of Columbia's motion for
summary judgment, and grants in part and denies in part
Nunnally's motion for sanctions.
FACTUAL AND PROCEDURAL BACKGROUND
Court fully adopts Magistrate Judge Robinson's thorough
recitation of the facts in her R&R, see R&R
at 2-7, and recounts here only those facts necessary to
clarify on which claims Nunnally will be permitted to proceed
to trial. In 2004, Nunnally was a Lieutenant in the
District of Columbia Metropolitan Police Department
(“MPD”), serving in MPD's Office of the Chief
Information Officer. Plaintiff's Statement of Additional
Material Facts (“Pl. SMF”) ¶ 35 [Dkt.
109-1]. Nunnally filed a complaint with MPD alleging sexual
harassment and discrimination on the basis of sex against her
then-supervisor, Philip Graham. Id. The claims in
this case, however, stem only from the alleged retaliation
against Nunnally in response to that and subsequent
complaints of harassment and discrimination. Importantly,
Nunnally's claims are predicated not just upon
retaliation in response to her sexual harassment complaint
against Graham, but also on continued retaliation in response
to her subsequent complaints about the conditions of her
employment at MPD. As noted, her retaliation claims are
brought under Title VII of the Civil Rights Act of 1964, the
DCHRA, and the DCWPA.
Court understands from Nunnally's Fourth Amended
Complaint and her Statement of Additional Material Facts that
she alleges the following 12 instances of retaliation or
adverse employment action, in chronological order: (1) her
May 2005 assignment to a utility closet as an office,
see Fourth Am. Compl. ¶ 29; Pl. SMF ¶ 43;
(2) her November 2005 exclusion from MPD headquarters,
see Fourth Am. Compl. ¶ 36; (3) being denied
the opportunity to select her subordinates in May 2006,
see Fourth Am. Compl. ¶ 37; Pl. SMF ¶ 81;
(4) being denied the ability to supervise the MPD Electronic
Surveillance Unit in January 2007, see Fourth Am.
Compl. ¶ 47; Pl. SMF ¶ 87; (5) her reassignment to
MPD's First District in January 2007; see Fourth
Am. Compl. ¶ 47; Pl. SMF ¶ 89; (6) being required
to report to the First District weekly while on sick leave in
January 2007, see Fourth Am. Compl. ¶ 48; Pl.
SMF ¶¶ 89-94; (7) the confiscation of her MPD
vehicle in January 2007, see Fourth Am. Compl.
¶ 51; Pl. SMF ¶ 96; (8) the denial of her sick,
annual, and family medical leave between 2007 and 2009,
see Fourth Am. Compl. ¶ 60; Pl. SMF ¶ 121
(citing Pl. Opp. Summary Judgment at Ex. 7 ¶ 27 [Dkt.
109-9]); (9) her placement on AWOL status in July 2007,
see Fourth Am. Compl. ¶ 61; (10) the delay of
her workers' compensation and retirement board hearings
between May 2007 and July 2008, see Fourth Am.
Compl. ¶¶ 25, 64, 66, 68; Pl. SMF ¶¶ 127,
129; (11) her forced retirement on disability in June 2009,
see Pl. SMF ¶ 129 (citing Pl. Opp. Summary
Judgment at Ex. 57 [Dkt. 109-59]); and (12) MPD advising
prospective employers after June 2009 that it had fired
Nunnally. See Pl. SMF ¶ 128 (citing Pl. Opp.
Summary Judgment at Ex. 7 ¶ 29 [Dkt. 109-9]).
Judge Robinson recommended granting summary judgment for the
District of Columbia on Nunnally's Title VII and DCHRA
retaliation claims based on adverse employment actions
numbers 6 and 10, R&R at 21-23, but allowing Nunnally to
proceed to trial on all other claims. In addition, Magistrate
Judge Robinson limited the scope of Nunnally's DCWPA
claim to retaliation (1) that occurred after May 7, 2008,
because of the DCWPA statute of limitations, id. at
29, and (2) for claims after that date to those where the
protected disclosures were a contributing factor in the
employer's adverse employment actions. Id. at
Finally, Magistrate Judge Robinson granted Nunnally's
motion for discovery sanctions, finding that an adverse
inference was appropriate at trial because Nunnally had
adduced sufficient evidence to show that MPD failed to
preserve potentially relevant email records and that MPD
understood that it had a duty to preserve records in
anticipation of this litigation. Id. at 37-38.
Magistrate Judge Robinson left the specific form of the
adverse inference instruction, if any, for this Court to
determine at the time of trial. Id. at 39
STANDARD OF REVIEW
may seek review of a magistrate judge's decision by
filing an Objection pursuant to Rule 72 of the Federal Rules
of Civil Procedure. Both parties filed Objections to
Magistrate Judge Robinson's R&R regarding (1) the
District of Columbia's motion for summary judgment under
Rule 56 of the Federal Rules of Civil Procedure, and (2)
Nunnally's motion for sanctions. Where, as here, a party
files written objections to any part of a magistrate
judge's R&R with respect to a dispositive matter, the
Court considers de novo those portions of the
recommendation to which objections have been made, and
“may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter
to the magistrate judge with instructions.”
Fed.R.Civ.P. 72(b)(3). The Court therefore reviews the
Objections related to the Magistrate Judge Robinson's
resolution of the District of Columbia's motion for
summary judgment de novo.
magistrate judge's determination on a non-dispositive
matter is entitled to “great deference, ” and the
Court will set it aside only if it is “clearly
erroneous or contrary to law.” Fed.R.Civ.P. 72(a);
see also Loc. Civ. R. 72.2(c); Beale v. District
of Columbia, 545 F.Supp.2d 8, 13 (D.D.C. 2008). The
district court reviews Objections to the magistrate
judge's factual findings or discretionary decisions for
clear error. Am. Ctr. for Civil Justice v. Ambush,
794 F.Supp.2d 123, 129 (D.D.C. 2011). Under this standard,
the Court will affirm the magistrate judge's factual
findings or discretionary decisions unless the court
“is left with the definite and firm conviction that a
mistake has been committed.” Neuder v. Batelle Pac.
Nw. Nat'l Lab., 194 F.R.D. 289, 292 (D.D.C. 2000)
(quoting United States v. U.S. Gypsum Co., 333 U.S.
364, 365 (1948)). By contrast, the “contrary to
law” standard requires the Court to review the
magistrate judge's legal conclusions - including any
asserted misapplication of the relevant statutes, case law,
and rules of procedure - de novo. Intex. Rec.
Corp. v. Team Worldwide Corp., 42 F.Supp.3d 80, 86
(D.D.C. 2013); see Am. Ctr. for Civil Justice v.
Ambush, 794 F.Supp.2d at 129.
Court notes that, although Nunnally requested a default
judgment sanction in her motion, see Sanctions Mot.
at 15 [Dkt. 102], such a request does not transform her
non-dispositive motion into a dispositive one because
Magistrate Judge Robinson did not enter, or recommend
entering, a default judgment. “The critical issue here
is what sanction the magistrate judge actually imposes,
rather than the one requested by the party seeking
sanctions.” Charles Alan Wright, Arthur R. Miller &
Mary Kay Kane, 12 Fed. Prac. & Proc. Civil § 3068.2
(2d ed. April 2016). “Even though a movant requests a
sanction that would be dispositive, if the magistrate judge
does not impose a dispositive sanction the order falls under
Rule 72(a) rather than Rule 72(b).” Gomez v. Martin
Marietta Corp., 50 F.3d 1511, 1519-20 (10th Cir. 1995).
Claim and Issue Preclusion
threshold question is whether Nunnally's prior case in
the District of Columbia courts has claim or issue preclusion
consequences for her claims here. See generally Nunnally
v. Graham, 56 A.3d 130 (D.C. 2012). Magistrate Judge
Robinson could not “determine which claims were
resolved by the jury in the Superior Court action.”
R&R at 16-17. But even if she had been able to do so, she
said she would have found no issue or claim preclusion
because the Superior Court action focused only on
Graham's conduct during 2003-04, while the present case
does “not share the same nucleus of facts” and
focuses on “other employees of MPD, from 2004 through
2009.” Id. at 18. Magistrate Judge Robinson
did not evaluate the preclusive effect of the Superior
Court's ruling on a District of Columbia motion in
limine because “the court's order was in the
form of an oral ruling . . . and neither party has offered
the transcript as an exhibit.” Id. at 19 n.7.
doctrine of claim preclusion “holds that a judgment on
the merits in a prior suit bars a second suit involving
identical parties or their privies based on the same cause of
action.” Apotex, Inc. v. FDA, 393 F.3d 210,
217 (D.C. Cir. 2004). “The District of Columbia, like
the majority of jurisdictions, has adopted the Second
Restatement's transactional approach under which a cause
of action, for purposes of claim preclusion, comprises all
rights of the plaintiff to remedies against [the defendant]
with respect to all or any part of the transaction, or series
of connected transactions, out of which the action
arose.” Stanton v. District of Columbia Court of
Appeals, 127 F.3d 72, 78 (D.C. Cir. 1997) (citations and
internal quotation marks omitted). Whether two claims are the
same “‘turns on whether they share the same
nucleus of facts.'” Nat'l Res. Def. Council
v. EPA, 513 F.3d 257, 261 (D.C. Cir. 2008) (quoting
Apotex, Inc. v. FDA, 393 F.3d at 217).
the doctrine of issue preclusion or collateral estoppel
commands that “‘once a court has decided an issue
of fact or law necessary to its judgment, that decision may
preclude relitigation of the issue in a suit on a different
cause of action involving a party to the first
case.'” United States v. All Assets Held at
Bank Julius, --- F.Supp.3d ----, 2017 WL 90658, at *7
(D.D.C. Jan. 10, 2017) (quoting Yamaha Corp. of Am. v.
United States, 961 F.2d 245, 254 (D.C. Cir. 1992)).
“Issue preclusion applies if three conditions are met:
‘First, the issue must have been actually litigated,
that is, contested by the parties and submitted for
determination by the court. Second, the issue must have been
actually and necessarily determined by a court of competent
jurisdiction in the first . . . [case]. Third, preclusion in
the second . . . [case] must not work an
unfairness.'” Id. (quoting Otherson v.
Dep't of Justice, 711 F.2d 267, 273 (D.C. Cir.
Court agrees with Magistrate Judge Robinson's analysis of
both claim and issue preclusion and therefore overrules the
District of Columbia's Objection to the contrary. The
record simply does not indicate what claims Nunnally put
before the jury in her Superior Court trial. Nor is there any
evidence in the record concerning what evidence the Superior
Court excluded in limine. It therefore is not
possible for the Court to determine (1) whether the causes of
action in the Superior Court action overlap with this case,
or (2) whether Nunnally actually litigated those causes of
action in the Superior Court action. Even if the record did
contain this evidence, Magistrate Judge Robinson is correct
that the present suit concerns different subject matter -
retaliation versus sexual harassment - and a different period
of time - 2004-09 versus 2003-04. The Court therefore finds
no claim or issue preclusion in this case based on
Nunnally's Superior Court action.
Title VII and DCHRA Claims
parties object to Magistrate Judge Robinson's resolution
of the ultimate issue of whether summary judgment is
warranted with respect to Nunnally's theories of
liability under Title VII and the DCHRA.
judgment is appropriate only if “the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); see Baumann v. District of Columbia, 795
F.3d 209, 215 (D.C. Cir. 2015); Fed.R.Civ.P. 56(a), (c). In
making that determination, the Court must view the evidence
in the light most favorable to the nonmoving party and draw
all reasonable inferences in its favor. Baumann v.
District of Columbia, 795 F.3d at 215; see Tolan v.
Cotton, 134 S.Ct. 1861, 1866 (2014) (per curiam);
Anderson v. Liberty Lobby, Inc., 477 U.S. at 255;
Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir.
2011). A disputed fact is “material” if it
“might affect the outcome of the suit under the
governing law.” Talavera v. Shah, 638 F.3d at
308 (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. at 248). A dispute over a material fact is
“genuine” if it could lead a reasonable jury to
return a verdict in favor of the nonmoving party. See
Scott v. Harris, 550 U.S. 372, 380 (2007); Grimes v.
District of Columbia, 794 F.3d 83, 94-95 (D.C. Cir.
2015); Paige v. DEA, 665 F.3d 1355, 1358 (D.C. Cir.
2012). “Credibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge at summary
judgment. Thus, [the court does] not determine the truth of
the matter, but instead decide[s] only whether there is a
genuine issue for trial.” Barnett v. PA Consulting
Grp., Inc., 715 F.3d 354, 358 (D.C. Cir. 2013) (quoting
Pardo-Kronemann v. Donovan, 601 F.3d 599, 604 (D.C.
Cir. 2010)); see also Tolan v. Cotton, 134
S.Ct. at 1866; Baumann v. District of Columbia, 795
F.3d at 215; Allen v. Johnson, 795 F.3d 34, 38 (D.C.
VII's anti-retaliation provision makes it unlawful for
“an employer [to] ‘discriminate against' an
employee . . . because that individual ‘opposed any
practice' made unlawful by Title VII or ‘made a
charge, testified, assisted, or participated in' a Title
VII proceeding or investigation.” Burlington N.
& Santa Fe Ry. Co. v. White, 548 U.S. 53, 56 (2006)
(quoting 42 U.S.C. § 2000e-3(a)). The DCHRA similarly
prohibits “retaliat[ion] against . . . any person in
the exercise or enjoyment of, or on account of having
exercised or enjoyed . . . any right granted or protected
under this chapter.” D.C. Code § 2-1402.61(a)
(2012 Repl.). “The elements of a retaliat[ion] claim
are the same under [the] DCHRA as under the federal
employment discrimination laws.” Allen-Brown v.
District of Columbia, 174 F.Supp.3d 463, 481 (D.D.C.
2016) (internal quotation marks omitted). “[F]ederal
case law addressing questions arising in Title VII cases is
applicable to the resolution of analogous issues raised
regarding DCHRA claims.” Ali v. District of
Columbia, 697 F.Supp.2d 88, 92 n.6 (D.D.C. 2010) (citing
Howard Univ. v. Green, 652 A.2d 41, 45 n.3 (D.C.
1994)); see also Gaujacq v. EDF, Inc., 601 F.3d 565,
576-77 (D.C. Cir. 2010); Whitbeck ...