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Nunnally v. District of Columbia

United States District Court, District of Columbia

March 22, 2017

RONDA NUNNALLY, Plaintiff,
v.
DISTRICT OF COLUMBIA, Defendant.

          OPINION

          PAUL L. FRIEDMAN United States District Judge

         This 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.

         After 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.[1]

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The 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.[2] 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.

         The 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]).

         Magistrate 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 31.[3] 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

         II. STANDARD OF REVIEW

         A party 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.

         A 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.

         The 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).

         III. DISCUSSION

         A. Claim and Issue Preclusion

         A 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.

         The 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).

         Likewise, 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. 1983)).

         The 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.

         B. Title VII and DCHRA Claims

         Both 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.[4]

         Summary 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. Cir. 2015).

         Title 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 ...


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