United States District Court, District of Columbia
STEPHANIE A. GILLIARD, Plaintiff,
JELENA MCWILLIAMS, Chairman, Federal Deposit Insurance Corporation, et al., Defendants.
MEMORANDUM OPINION RE DOCUMENT NO. 69
RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE
Plaintiff's Motion to Seal
Gilliard filed this lawsuit against the Chairman of the
Federal Deposit Insurance Corporation (“FDIC”)
and other FDIC employees, alleging racial discrimination, a
hostile work environment, retaliation, and other claims. Ms.
Gilliard and the FDIC eventually agreed on a settlement, and
the case was dismissed with prejudice. Now, Ms. Gilliard
claims that the public availability of the case has impeded
her employment opportunities, so she has asked the Court to
seal the entire action. As the Court will explain below,
however, there is no legal basis for sealing a case under
these circumstances. Ms. Gilliard's motion to seal is
Court presumes familiarity with its prior opinions in this
matter. See Gilliard v. Gruenberg (Gilliard I), 302
F.Supp.3d 257 (D.D.C. 2018); Gilliard v. McWilliams
(Gilliard II), 315 F.Supp.3d 402 (D.D.C. 2018). This
opinion therefore provides only the facts and allegations
that are relevant to the pending motion.
Gilliard worked at the FDIC as a Senior Administrative
Specialist (“SAS”) in the Administrative
Management Section (“AMS”), Strategic Planning,
Budget and Reporting Branch (“SPBR”) of the
Division of Risk Management Supervision (“RMS”).
Am. Compl. ¶ 4, ECF No. 15; Gilliard Aff. at 1,
Defs.' Mot. to Dismiss, Ex. A, ECF No. 18-1. In this
lawsuit, Ms. Gilliard asserted that her time at the FDIC was
marked by consistent “harassment, discrimination,
infliction of severe emotional distress, threats, disparate
treatment and more from her supervisors.” Pl.'s
Mot. for Protective Order at 3, ECF No. 46. She alleged that
she was denied several promotions, lost employment
responsibilities, received unfavorable performance reviews,
and was exposed to a generally hostile work environment, both
because of her race and out of retaliation for submitting
claims to the Equal Employment Office (“EEO”).
See generally Am. Compl.
attempt to gather evidence in support of her EEO claims, Ms.
Gilliard began to surreptitiously record conversations with
two of her former supervisors, Janice Butler and Phillip
Mento. 2d Am. Compl., ECF No. 53. Ms. Butler and Mr. Mento
eventually learned of the recordings, though, and they
ordered Ms. Gilliard to stop-going as far to threaten
disciplinary action if she continued. See Id.
¶¶ 45, 67-68. Ms. Gilliard believed that this order
was given as further retaliation for engaging in protected
EEO activity and constituted additional evidence of a hostile
work environment. See Id. ¶ 69. She therefore
filed suit in this Court, alleging claims of racial
discrimination, a hostile work environment, retaliation and
reprisal for protected EEO activity, prohibited personnel
practices, and intentional infliction of extreme emotional
and physical distress. See Id. ¶¶ 10-98.
filing suit, Ms. Gilliard was instructed by Benjamin Vaughan,
her then-supervisor at the FDIC, to attend an investigatory
interview about her allegations. See Order to
Participate in Investigatory Interview, Defs.' Opp'n
to Pl.'s Mot. for Protective Order, Ex. U, ECF No. 52-21.
During that interview she was ordered to provide copies or
transcripts of all audio recordings that she made of FDIC
employees without their permission. See
Administrative Inquiry at 1-4, Defs.' Opp'n to
Pl.'s Mot. for Protective Order, Ex. V, ECF No. 52-22;
see also Order to Provide Audio Files, Defs.'
Opp'n to Pl.'s Mot. for Protective Order, Ex. W, ECF
No. 52-23. The FDIC provided three reasons for this demand
for the recordings: (1) to perform a complete investigation
of Ms. Gilliard's allegations against Mr. Mento and Ms.
Butler, (2) because the FDIC suspected that Ms. Gilliard had
continued to make recordings in defiance of her
superiors' prior order, and (3) because the recordings
might contain confidential information about FDIC employees.
See Gilliard II, 315 F.Supp.3d at 408; see
also Second Order to Produce Recordings at 2, Defs.'
Opp'n to Pl.'s Mot. for Protective Order, Ex. X, ECF
No. 52-24. Ms. Gilliard refused to hand over the recordings,
arguing that she had a right to make the tapes, that the FDIC
was not entitled to them outside of the normal course of
discovery, that the FDIC had provided her with a timetable
that was “ridiculous” and “oppressive,
” and that the FDIC had requested the tapes only to
harass her and retaliate against her for bringing her EEO
claims. Pl.'s Mot for Protective Order at 1-12.
attempt to prevent the FDIC from obtaining the recordings or
retaliating against her for failing to release them, Ms.
Gilliard asked the Court for a protective order, temporary
restraining order, and preliminary injunction. See
Pl.'s Mot. for Protective Order; Pl.'s Mot. for TRO
and Prelim. Inj., ECF No. 47. The Court denied those motions,
however. See Gilliard II, 315 F.Supp.3d. at 419. The
Court concluded that Ms. Gilliard had failed to show the good
cause necessary for a protective order. Id. at 412.
And with respect to the motion for temporary restraining
order and preliminary injunction, the Court held that she had
not established that she was likely to suffer irreparable
harm, or that the “balancing of the equities and public
interest considerations tip[ped] in her favor.”
the Court's decisions, the parties entered into a
settlement agreement, voluntarily dismissing Ms.
Gilliard's complaint with prejudice. But months later,
Ms. Gilliard filed the present motion to seal the entire
docket in the case and “the decision regarding the tape
recordings.” Pl.'s Mot. to Seal, ECF No. 69. In
that motion, she argues that her attempts to become a federal
employee have been hindered and that offers of employment
have been rescinded after Google searches of her name
revealed the events of this case, namely her surreptitious
recordings of her co-workers. Id.
decision about a party's motion to seal must first begin
by “recognizing this country's common law tradition
of public access to records of a judicial proceeding.”
United States v. Hubbard, 650 F.2d 293, 314 (D.C.
Cir. 1980). “Access to records serves the important
functions of ensuring the integrity of judicial proceedings
in particular and of the law enforcement process more
generally.” Id. However, this tradition of
access to judicial records is not without its exceptions.
“Every court has supervisory power over its own records
and files” and access to those documents may be denied
where they might become “a vehicle for improper
purposes.” Nixon v. Warner Commc'ns, 435
U.S. 589, 598 (1978).
“district court has wide discretion” in
determining whether to seal a record in its entirety or in
part. EEOC v. Nat'l Children's Ctr., 98 F.3d
1406, 1410 (D.C. Cir. 1996). When making such a
determination, the “starting point” is “a
‘strong presumption in favor of public
access.'” Id. at 1409 (quoting Johnson
v. Greater Southeast Cmty. Hosp. Corp., 951 F.2d 1268,
1277 (D.C. Cir. 1991). The D.C. Circuit has then identified
“six factors that might act to overcome this
presumption: (1) the need for public access to the documents
at issue; (2) the extent of previous public access to the
documents; (3) the fact that someone has objected to
disclosure, and the identity of that person; (4) the strength
of any ...