1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CASSANDRA M. MENOKEN,

Plaintiff ,

v. CHARLOTTE A. BURROWS, in her official capacity as Chair of the U.S. Equal Employment Opportunity Commission,

Defendant. No. 16

- cv - 2480 (DLF)

MEMORANDUM OPINION AND ORDER This is a civil rights action brought by Cassandra M. Menoken, an attorney formerly employed by the U.S. Equal Employment Opportunity Commission (EEOC), against Charlotte A. Burrows, the EEOC’s Chair, in her official capacity

. 1 More than five months ago, t he Court scheduled

— at Me noken’s request

— a jury trial to begin on January 17, 2024. 2 Min. Order of Aug. 3, 202 3

. One week b efore trial, however, the plaintiff repeatedly failed to appear in c ourt and authorized her the n - standby counsel to advise the Court that she had no intention of participating further in the Court ’ s proceedings. Since then, the plaintiff has made a series of allegations against this Court. Among other thing s, the plaintiff alleges that the Court has shown a “ dismissive attitude about the case ” and a

1 The parties agree that Charlotte A. Burrows, the Commission’s chair, is the sole defendant in this case and is only a defendant in her official capacity. Tr. of Mot. Hrg. at 28:11

– 14 (Dec. 19, 202 3 ).

2 This case was reassigned by the Clerk ’ s Office to the undersigned on August 31, 2021, following the D.C. Circuit ’ s affirmance in p art, reversal in part, and remand in Menoken v. Dhillon , 975 F.3d 1 (D.C. Cir. 2020).2

“lack of regard for [ the plaintiff ] as an attorney deserving of professional respect .” Pl. ’ s Resp. to
E EOC ’ s Mot. to Dismiss at 2 , Dkt. 114

. The plaintiff has also complained of “a veritable explosion of filings and orders from the Government and the Court since December 26, 2023 , ” all of which caused “chaos and confusion

. . . predictably wreaking havoc on Plaintiff’s efforts to prepare for
trial

. ” Id. at 1

– 2. What Menoken fails to acknowledge , however , is that the “chaos and confusion” that has ensued has not stemmed from any actions t aken by the Court or by opposing counsel , but rather from the plaintiff ’ s repeated failure s to comply with court o rders

. Now before the Court , unsurpris ingly, is the defendant’s motion to dismiss this case under Federal Rule of Civil Procedure 41(b) and the Court’s inherent authority. Dkt. 113. For the reasons that follow, the Court will grant the motion.
I. BA CKGROUND The conduct underlying the de fendant ’ s motion began after the Court issued r ulings on the defendant ’ s re newed motion for summary judgment , which granted summary judgment to the defendant on some but not all o f the plaintiff ’ s claims, and the plaintiff ’ s motion for reconsideration

. At an August 3, 2023 hearing, Menoken

— a former EEOC attorney w ho has over 35 years’ experience , Pl.’s Pretrial Stmt. at 3, Dkt. 94

— in dicated that she “ [was] confused by the Court’s written ruling , ” as “ there were areas, facts, that have gotten conflated, have gotten overlooked , ” Tr. of Status Hrg. at 12:7

– 9 (Aug. 3, 2023). T he C ourt restated orally that only two of the plaintiff ’ s claims had survived s ummary judgment

. Id. at 12: 15

– 21. The plaintiff did not seek an interlocutory appeal of the Court ’ s summary judgment o rder or mandamus relief from it. Nor did she file a recusal motion

. Instead, she ignored the Court ’ s rulings

. I n pretrial proceedings , the plaintiff subsequently submitted proposed jury instructions3

that included instructions on claims the Court had explicitly rejected at the summary judgment stage , including (for example) a claim for failure to accommodate under the Rehabilitation Act

. Compare Pl.’s Proposed Jury Instr. at 7

– 8, Dkt. 86 , with Mem. Op. at 4

– 8 (Feb. 2 , 2023) , Dkt. 53

. She also refused to acknowledge in h er pretrial statement that the Court’s summary judgment opinion narrow ed her claims under Title VII of the Civil Rights Act and the Rehabilitation Act. Pl.’s Pretrial Stmt. at 5, Dkt. 94

. What is more, she submitted pretrial materials that were not plausibly consistent with the Court ’ s summary judgment ruling , including two proposed exhibits the Court specifically excluded at an earlier motions hearing. Compare id. at 8 (listing Exhibit 9, Dr. Madsen’s report, and Exhibit 15, an email exchange with Lisa Williams referring to the claims of an EEOC employee named Lwanda Okello ) , and Pl. ’ s Mem. in Opp ’ n t o Def. ’ s Mot. for Summ. J. Ex. N, Dkt. 45

- 15 ( providing a copy of Exhibit 15), with Tr. of Mot. Hrg. at 14:9

– 22, 21:10

– 14 (Dec. 19, 2023) (excluding both items pur suant to the defendant ’ s moti on in limine )

. Desp ite a request from the defendant , Dkt. 9 7, the Court did not sanction Menoken for her disregard of the Court ’ s pretrial rulings

. But o n January 5, 2024, a fter defense counsel submitted a filing indicating that they could not identify the plaintiff’ s exhibits, the Court ordered the plaintiff to produce and identify certain exhibits to the defendant so that the defendant could prepare for trial. Min. Order of Jan. 5, 2024. The plaintiff refused and instead invited the defendant to file a motion to dismiss the case

. Pl.’s Obj. & Resp. to the Court’s Jan. 5, 2024 Min. Order at 3, Dkt.
108 ; Email from Cassandra M. Menoken to Dou glas Dreier, Brenda Gonzalez Horowitz, and Brian Hudak (Jan . 5, 2024) , Dkt. 112

- 1 . On January 8, the Court again ordered the plaintiff to comply with the Court’s order of January 5, 2024 and set a status hearing for 2:30 pm the following day. Min. Order of Jan. 8, 2024. The plaintiff again refused and did not attend the status conference. Email from Cassandra M. Menoken to Douglas Dreier (Jan. 8, 2024) , Dkt. 111

- 1

.4

The plaintiff was given further o pportunities to comply with this Court ’ s orders, but

re fused

. The Court set ano ther status conference for 9:00 am the following day, which the plaintiff did not attend. Min. Order of Jan 9, 2024. The Court also instructed the parties to send copies of
t he i r exhibits to chambers , which the plaintiff failed to do. Id. In addition , the plaintiff failed to attend a pretrial conference previously set for January 11, 2024, despite a court order specifically instructing her to appear. Min. Order of Jan. 4, 2024, Dkt. 103. With trial fast approaching and with no path to prepare for trial without the plaintiff , the government filed a motion to dismiss this case under Rule 41(b) and the Court’s inherent authority.
Dkt. 113.
II. DISCUSS ION Under Federal Rule of Civil Procedure 41(b), “[i]f [a] plaintiff fails to prosecute or to comply with [the Federal Ru les] or a court order, a defendant may move to dismiss [the plaintiff’s] case.” Fed. R. Civ. P. 41(b). Rule 41(b) authorizes dismissal when a litigant fails to appear at hearings, Bristol Petroleum Corp. v. Harris , 901 F.2d 165, 166

– 67 (D.C. Cir. 1990), or displays “conspicuous disregard” for a “trial court’s order[s],” Automated Datatron, Inc. v. Woodcock , 659 F.2d 1168, 1170 (D.C. Cir. 1981). The Court also has the “inherent power” to “dismiss a complaint for failure to prosecute .

. . when circumstanc es make such action appropriate.” Link v. Wabash
R

. R. Co. , 370 U.S. 626, 633 (1962).

“ As a rule . . . dismissal is in order only when lesser sanctions would not serve the interest of justice.” Bristol Petroleum , 901 F.2d at 167. “Considerations relevan t to ascertaining when dismissal . . . is warranted include the effect of a plaintiff’s dilatory or contumacious conduct on the court’s docket, whether the plaintiff’s behavior has prejudiced the defendant, and whether deterrence is necessary to protect th e integrity of the judicial system.” Id. “Deterrence . . . justifies5

dismissals when there is some indication that the client or attorney consciously fails to comply with a court order cognizant of the drastic ramifications.” Gardner v. United States , 2 11 F.3d 1305, 1309 (D.C. Cir. 2000) (citing cases). The plaintiff has willfully disregarded multiple court orders. The Court ordered the plaintiff to appear at three separate hearings; she appeared at none. Min. Order of Jan. 4, 2024; Min. Order of Jan. 8, 2024; Min. Order of Jan. 9, 2024. The Court ordered the plaintiff to produce and identify certain exhibits for the government and to send her trial exhibits to the Co urt; she did
not. M in. Order of Jan. 8, 2024; Min. Order of Jan. 9, 2024. And the Court granted the defendant summary judgment on several of the plaintiff ’ s claims; even so, the plaintiff ’ s pretrial statement and subsequent filings asserted those claims an yway . See , e.g. , Pl.’s Pretrial Stmt. at 3, Dkt. 94

. In the plaintiff ’ s own words, the plaintiff “ has not diverted time and energy ” to complying with many of the Court ’ s directives

. Se e, e.g. , Pl.’s Obj. & Resp. to the Court’s Jan. 5, 2024 Min. Order, Dkt. 108 (“Plaintiff’s response to the Court’s show cause Order is tha t she has not diverted time and energy to” complying with it

. ). 3
Given the plaintiff ’ s extreme , dilatory , and unprofessional conduct , the Court concludes that dismissal of this action with prejudice is appropriate under Rule 41(b) . Starting with the Court’s own docket, the Court finds that the plaintiff ’ s behavior has seriously impeded the Court’s “orderly processing and trial of cases.” Automated Datatron , 659 F.2d at 1170. Contrary to the Court’s instructions, the plaintiff has not shared her exhibit list with the Court . Nor has she appeared at the Court’s pretrial hearings. As a result, the Court has been unable to rule on the

3 A former government attorney with de ca des of experience , t he plaintiff is herse lf familiar with the Federal Rules of Civil Procedure and the consequences of failing to obey court orders. For tunately for the plaintiff, the defendant is not requesting that the Court hold her in contempt. See Taggart v. Lorenzen , 139 S. Ct. 1795, 1801

– 02 (2019). Nor is it seeking sanctions against her under Rule 11 or 28 U.S.C. § 1927.6

parties’ objections to wit nesses and exhibits or finalize its jury instructions , and it will not be able to proceed with trial without seriously disrupting its calendar. The Court is not willing to pursue lesser sanctions

— such as dismissal with out prejudice or further admonishment by the Court

— that would delay other litigants’ access to justice because the plaintiff refuse s to proceed in good faith. Cf. Shea v. Donohoe Const r . Co., Inc. , 795 F.2d 1071, 1076 (D.C. Cir. 1986) (“[T]he District Court is not required to disrupt its well

- planned trial schedule to find a new date for [a] missed trial.”); Bomate v. Ford Motor Co. , 761 F.2d 713, 714 (D.C. Cir. 1985). The plaintiff ’ s behavior has also p rejudiced the defendant and third parties. Defense witnesses have made plans to appear at trial next week, one that cannot take place because of the plaintiff ’ s intransigence. And because the plaintiff h as refused to identify her exhibits clearly, despite the Court’s multiple orders, defen se counsel plausibly represents that they still do not understand what evidence the plaintiff intends to present at trial. See Tr. of Status Hrg. at 9:11

– 13 (Jan. 9, 2023). For all these reasons, allowing the plaintiff ’ s case to continue would impose unfair costs on the defendant and others. Last but not least , “deterrence” in this case “is necessary to protect the integrity of the judicial system.” Bristol Petroleum , 901 F.2d at 167. As noted, the plaintiff is a former GS

- 15 attorney with more than 35 years of experience. Pl.’s Pretrial Stmt. at 3, Dkt. 94. She has served as a trial attorney and in senior government roles. Id. She also has personal experience with dispute resolution in the federal system: she has filed at least five administrative complaints within the EEOC and at least six lawsuits in fe deral court. Id. at 8 (listing four administrative complaints); Menoken v. McGettigan , 273 F. Supp. 3d 188, 193

– 95 (D.D.C. 2017) (listing an additional administrative complaint and three additional cases); Menoken v. MSPB , No. 2022

- 2301, 2023 WL 5970783 ( Fed. Cir. Sept. 14, 2023) (additional case). Yet despite her knowledge and expertise,7

the plaintiff has chosen to defy the Court’s orders repeatedly and obstruct the progress of her own

case . “On the spectrum of . . . misconduct,” the plaintiff ’ s behavior is “egregi ous” and warrants
dismissal. Wash. Metro Area Transit Comm’n v. Reliable Limo. Serv., LLC , 776 F.3d 1, 6 (D.C. Cir. 2015); cf. Bristol Petroleum , 901 F.2d at 166 (holding that plaintiff’s failure to appear at a single status conference, on pain of dismiss al, justified order dismissing case under Rule 41(b)). The plaintiff cannot claim that she did not see dismissal under Rule 41(b) on the horizon.
As a n experienced lawyer, she “ may be presumed to be familiar with Rule 41(b)’s dismissal sanction.” Camps v. C & P Tel. Co. , 692 F.2d 120, 124 (D.C. Cir. 1982). Independently, the defendant filed a motion referencing the possibility of Rule 41(b) sanctions in late Decemb er . S ee Def. ’ s Mot. for an Expedited Order Requiring Pl. to Comply with the Court ’ s Orders at 6

– 10, Dkt.
97 . T he Court warned the plaintiff ’ s standby counsel about the possibility of a Rule 41(b) motion
at a January 10, 2024 hearing and would have warned the plainti ff herself had she appeared. 4 The plaintiff also had advance notice of the motion because the Court ’ s order authorizing the defendant to file it appears on the Court’s docket, to which Menoken has access, and the Court ga ve the plaintiff a full day to respond to th e motion or request an extension of time to respond. Min. Order of Jan. 10, 2024; Min. Order of Jan. 11, 2024. Moreover, the plaintiff herself invited the defendant to file a motion to dismiss and said she would not oppose t he motion

. Email from Cassandra M. Menoken to Douglas Dreier, Brenda Gonzalez Horowitz, and Brian Hudak, Dkt. 112

- 1. Finally ,

4 On November 1, 2023, the plaintiff retained counsel to “support [her] with . . . motions in limine and [her] trial.” Pl.’s Consent Mot. to Extend Time at 1, Dkt. 69 (Nov. 1, 2023); see Dkt. 68. The Court subsequently ruled that the plaintiff could proceed “ pro se or as a represented party,” bu t could “not serve as [ pro se ] ‘co

- counsel’ with her attorney.” Min. Order of Dec. 26, 2023 (summarizing Tr. of Mot. Hrg. at 7:7

– 19 (Dec. 19, 2023)). Subsequently, although the plaintiff ’ s counsel did not file a motion to withdraw, she and the plaintiff informed t he Court that she would remain in the case in an advisory capacity only , Dkts. 103, 104 , and she alone appeared at the Court’s January 10, 2024 hearing. After the Court ’ s hearin gs on January 10 and January 11, the plaintiff ’ s counsel filed a motion to withdraw. Dkt. 115.8

the plaintiff affirmatively declined the Courtroom Deputy’s Microsoft Outlook invitation containing the link for the Court’s January 1 1, 2024 videoconference hearing , in which the Court discussed Rule 41(b) dismissal

. Further, the plaintiff cannot claim that the Court dismissed her case without exploring “less dire alternatives.” Trakas v. Quality B rands, Inc. , 759 F.2d 185, 187 (D.C. Cir. 1985) . The Court issued several orders and gave the plaintiff “ample opportunity” to comply with them. Automat ed
Datatron , 659 F.2d at 116 9 . When the plaintiff refused, the Court scheduled a hearing to try to resolve the impasse informally. Only after t he plaintiff twice refused to appear did the Court authorize the defendant to file a Rule 41(b) motion. And even then, the Court did not grant the motion until the plaintiff failed to appear at yet another hearing. Indulging the plaintiff further “would serve only to cou ntenance [her] repeated violations of the court’s . . . orders.” Stella v.
Mineta , 231 F.R.D. 44, 48 (D.D.C. 2005). The Court recognizes that this action has produced many “filings and orders . . . since December 26, 2023 , ” Pl.’s Resp. to EEOC’s Mot. to Dismiss at 1, Dkt. 114 , and that the Court’s ruling that the plaintiff could not simultaneously appear pro se and with counsel may have made her trial preparation more challenging, see Tr. of Mot. Hrg. at 7:7

– 19 (Dec. 19, 2023)

. But the plaintiff chose not to res pond to these challenges in good faith

— say , by seeking a continuance or an extension of the Court’s pretrial deadlines. Instead, s he refused to appear before the Court or honor its decisions

. In no circumstance is that response acceptable. The plaintiff ’ s mis conduct is partic ul arly astounding given her former status as an officer of the court. The plaintiff further argues that the defendant’s motion seeks to sanction her “for the contents of her Pretrial Statement[,] which makes clear her intention to exercise her right to try the claims she brought on the legal ‘theories’ she believes apply.” Pl.’s Resp. to EEO C ’ s Mot. to9

D ismiss at 2, Dkt. 114. As an initial mat ter, it is difficult to fathom , in light of her legal backg round and the Court’s multiple restatements of its summary judg ment ruling , why the plaintiff believes that she can disregard the Court ’s rulings on summary judgment . Putting that aside, the Court ’s decision on the pending motion does not turn on the contents of the plaintiff ’ s pretrial statement, even though the contents of that statement were difficult to reconcile with the Court’s clear orders. The Court instead dismisses this case because of the plaintiff ’ s repeated refusal to appear for hearings, clearly identify and produce her exhibits, and otherwise proceed with this case in good faith. Finally, in a January 11, 2024 status hearing, defense counsel informed the Court that the plaintiff had alleged in an interview with a reporter from Law360 that the Court sought to “punish[] her by granting her only 24 hours to respond to [ the defendant ’ s ] motion.” Grace Elletson, Ex

EEOC Atty Deserted Retaliation Suit, Agency Says , Law360 (Ja n. 10, 2024), https://perma.cc/CQQ5

- CXU9

. Nothing could be further from the truth. When the Court set its briefing schedule fo r the def endant ’ s Rule 41(b) motion , the Court had less than one week to figure
out how to resolve multiple substantive pretrial issue s , to choose whether to schedule other matters for next week, and to notify the jur y office of whether jurors were required to appear in its
courtroo m , all without any cooperation by the plaintiff. Until today, the Court was prepared to do its part to bring this matter to trial. The plai ntiff was not. A court cannot prepare for and conduct a civil trial with a plaintiff who refuses to prosecute her case. The plaintiff ’ s repeated misconduct and her failure to prosecute this case have seriously prejudiced the defendant

. B ecause no lesser sanction would take adequate account of the factors the Court has discussed, the Court will dismiss th e case with prejudice. See Jones v. Horne , 634 F.2d 588, 603 (D.C. Cir. 2011); LCvR 83.23. Accordingly, it is hereby10

ORDERED that the defendant’s Motion to Dismiss, Dkt. 113, is GRANTED

. It is further ORDERED that this action is dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b). The Clerk of Court is directed to close this case. SO ORDERED.

________________________ DABNEY L. FRIEDRICH January 12, 2024 United States District Judge