CHRI STI NA CONYERS WI L L I AMS, Plaintif f , v. ROBERT JOHNSON, et al. , Defendants

. UNITED STAT ES DIS TRICT COURT

F OR THE DIS TRICT OF COLUM BIA

Civil Action No. 06-02076 ( CKK)

MEMORAN DUM OP INION (Oc tober 31, 2010) Plaintiff Christi na Cony ers Williams (“Plaintiff”), bring s this action ag ainst the District of Columbi a (the “District”) , and her former supervisors Rober

t J ohnson, in his capac ity as the Senior Deputy

Direc tor of the Addic tion Prevention and Recove ry Administration (the “APRA”) of the District of Columbia De partment of H ealth (the “DOH ”), a nd David Anthony , in his capa city as Chief of Staf

f to the Senior De puty

Direc tor (collec tively , “De fenda nts”). Plaintiff contends that De fenda

nts violated her r ights unde r the District of Columbia Whistl eblower Protection Act (the “DCWPA”), D.C. Code §§ 1-615.01 et seq. , by reta liating a g ainst her f

or
rema rks she made duringtestimony befor e the District of

Columbi a Council (the “ D.C. Council”). Presently

befor e the Court ar e a numbe r of ostensibly evidentiar

y -re lated and othe r 1

The c laims at issue in this action have bee n prog ressively winnowed down ove r time. 1 Plaintiff’s Amended Complaint initially asser ted two ca

uses of a ction: in the first, Plainti ff alleg ed that De fenda

nts retaliated a g ainst her f or ac tivity

protec ted under

the Fir st Amendment – namely , Plaintiff’s testimony befor e the D.C. Council and he r re marks duringa private meeting with a D.C. Councilmember; in the sec ond, Plaintiff alleg ed that De fenda nts took or threate ned to take “pr ohibited personnel a ctions” ag ainst her f or these sa

me disclosures in violation of the DCWP A. SeeAm. Compl., Docket No. [13] , ¶¶ 101- 13. The Court dismissed Plainti ff’ s First Amendment cla im insofar as it was ba sed upon her testimony

befor e the D.C. Council and a lso dismiss ed any

potential DCWP A claim ag ainst Defe ndants J ohnson and Anthony in theirpretria l motions that will, when re solved, hopefully narr ow the par

ties’ foc us as they

move closer to trial. The Court will addre ss eac h motion in turn. I. BACKG ROUND 2 Plaintiff was employ ed as Chief of the Center

of Resea rch Eva luation and Gra

nts for the APRA and, beg inning in or a bout April 2005, was assig ned re sponsibili ty for the implementation of the APRA’s Client I nformation Sy stem (“ACI S”) softwa re, which was intende d to allow staff members to g o online to acc ess information collec ted from the A PRA’s clients. See W illiams v. Johnson , 701 F. Supp. 2d 1, 3 (D.D .C. 2010). J ohnson, the Senior Deputy Direc tor of the APRA, was Plaintiff’s supervisor a t the DOH, while Anthony was his Chief of Staff

. Id. On Fe bruar

y 14, 2006, Plaintiff and J ohnson attended a routine over sight he aringbefor e the D.C. Council Comm ittee on Hea lth, headed by Councilmember David Catania. Id. at 4. Duringthe cour se of the he aring , Councilmember David Catania aske d sever al questions reg ardingthe ACI S software

. Id. J ohnson beckone d Plaintiff to approac h the witness table a nd respond to the Councilmember ’s questions on the APRA’s beha lf. Id. at 4-5. Plaintiff did so, providing appr ox imately ten minutes of testimony

. Id. at 5. Plaintiff testified that, at that time, the ACI S software was c apable of collec ting only “demog raphic data” individual capac ities. See W illiams v. Johnson , 537 F. Supp. 2d 141 (D.D .C. 2008). Subsequently , the Court g rante d Def endants’ Motion for

Summary

J udg ment with respec t to Plaintiff’s First Amendme nt claim and DCWPA claim insofar as those c laims were based upon Plaintiff’s private me eting with a D.C. Councilmember. See W illiams v. Johnson , 701 F. Supp. 2d 1 (D.D.C. 2010). A s such, only Plaintiff’s claim that Def endants impermissibly

reta liated ag ainst her in violation of the DCWPA for re marks made befor e the D.C. Council re mains viable. Id. The Court assumes f

amiliarity with its prior opinions i n this action, which set for th in 2 detail the fa ctual and pr ocedur al bac kg round of this ca se, and sha ll therefor e only addre ss those fac ts as are nece ssary

to addre ss the discrete issues curr ently befor e the Court. 2– i.e. , the g ender and ra ce of

the APRA’s clients and the ty pe of dr ug s that the clients wer e using

. Id. Plaintiff also expressed her opinion that the ACI S sy stem would not be fully functional until November

2006. Id. Acc ordingto Plainti ff, these statements re veale d that the ACI S software was, de spite signific ant monetar y expenditures, a “ma

jor failure .” Id. at 15. By Plaintiff’s acc ount, Defe ndants’ har assment beg an immediately followingher testimony befor e the D.C. Council. Id. at 6. Amongother thing s, Plainti ff a lleg es that Johns on held an unpr ece dented “ debrie fing ” session the da y afte r the he aring , duringwhich he blamed Plaintiff for doinga “poor job of answe ring ” Councilmember Catania’s que stions and for making the APRA look like “crooks,” and thre atene d to hold Pl aintiff liable f or the fa ilures of the A CI S sy stem. Id. at 6-7. Ac cordingto Plainti ff, f rom that point forwa

rd, her purportedly

“g ood workingrela

tionship” with J ohnson soured, a nd additional reta liatory

and har assing conduct followed. Id. Not long the rea fter, Plaintiff’ s husband ar rang ed for

her to have a private mee ting with Councilmember Catania , which took place on Marc h 8, 2006. Id. at 7. Those in attenda nce discussed De fenda

nts’ alleg ed har assment of Plaintiff, as we ll as various problems re g ardingthe ACI S software and the APRA’s c ontrac tual rela tionship wit h its vendor, Softscape , Inc. (“Softsca pe”)

. Id. Plaintiff alleg es that Johns on, with assistance f rom Anthony , then attempted to ter minate her f or fa ilure to comply

with D.C. residenc y

pref ere nce r equire ments – namely , a statutory require ment that she re main a re sident of the District of Columbia for a cer tain leng th of time. Id. at 11. In May

2006, the DOH issued a

Notice to Show Cause why Plaintiff’s employ

ment should not be forfe ited. Id. Pre-he aringconfe renc es we re he ld that same month, and an
3evidentiar

y hear ing w as held in June. Id. The c harg es we re ultimately dismiss ed, on the ba sis that (1) the “e vidence fail[ed] t o establish that [P laintiff] was g rante d a re sidency require ment,” and the ref ore the DOH “ ha[d] not met its burden of proof

to show that [P laintiff] was require d to live in the District for five y ear s from the date of a

ppointment,” and (2) “[e]ven assuming arguendo that [P laintiff] rece ived a residenc y pref ere nce . . . [t]he failure of the [DOH] to foll ow its procedur es in providing a written notice to the [Plaintiff] and obtaininga wr itten cer tification that she re ceive d notification of the re sidency

require ments deprived [Plaintiff] of adequate notice and doe s not comply with basic due proce ss.” Id. II. LEGAL STANDARD Motions in limine are desig ned to nar row the e videntiary

issues at trial. The F eder al Rules of Evidence g ener ally permit the admission of “r eleva nt evidence ” – i.e. , evidenc e having “any tendenc y ” to make the exis tence of any fac t of conseque nce mor e proba ble or less proba

ble – provided it is not otherwise excluded by the Rules, the Constitut ion, or an Ac t of Congr ess, and its probative value is not “substantially outweig hed” by

the dang er of

unfair pr ejudice, c onfusion of the issues, or misleadingthe jury , or by considerations of undue delay , waste of time, or the needle ss presentation of cumulative evide nce. F ed. R. Evid. 401-03. In defe renc e to their familiarity

with the details of the c ase a nd g reater e x perie nce in e videntiary matters, district courts ar e af

forde d broad discr etion in rende ringevidentiar y ruling s, a discre tion which extends to assessing the probative value of the proff ere d evidenc e and w eig hing a ny fac tors ag ainst admissibili ty
. Sprint/Unit ed Mgm t. Co. v. Mende lsohn , 552 U.S. 379, 384 (2008). In light of the ir limit ed purpose , motions i n limine “should not be used to re solve fac tual

4disputes,” which r emains the “ function of a motion for summary

judgme nt, with its

acc ompanying a

nd cruc ial proce dural saf

eguards.” C & E Servs., I nc. v. A shland Inc. , 539 F. Supp. 2d 316, 323 (D.D.C. 2008). Rather , parties should targ et their a rguments to demonstrating why cer tain cate g ories of e vidence should (or should not) be introduce d at trial, and dire ct the district court to specif

ic evidenc e in the re cord that would favor or disfavor the introduction of those particula

r categ ories of e vidence

. U.S. ex rel. El-Amin v. G eorge W ashington Univ. , 533 F. Supp. 2d 12, 19 (D.D.C. 2008). With t hese pr inciples in mind, the Court turns to t he var ious motions brought by

the par ties. III. DISCUSS ION Although the Court takes this opportunity to resolve the pa

rties’ outstandingpretria l motions, and certa inly

does not fore see a

need to r evisit the issues addre ssed her ein, the Court nonetheless r ecognizes that it cannot pr edict with absolute c erta inty how eve nts will unfold at trial. Acc ording ly , this Memorandum Opinion sets forth the Court’s a naly sis based upon the

rec ord as it now stands and the arguments articulate d by the par ties in their respe ctive motions. As evidenc e is prese nted at trial, howe ver, the parties may find it desirable to re -ra ise discre te evidentiar y issues addre ssed her e. To be clea r, they are not absolutely

fore closed fr om doing so. Where a ppropriate , a par

ty wantingto revisit an evidentiar y ruling should, conspicuously , bring the matter to the Court’s attention and be pre pare d to summarize the Court’s orig inal ruling and explain why

that ruling should be modified in light of ne w evidenc e or a chang e in circ umstances. How ever , the par ties are cautioned that this i s not an invitation to recycle old arguments. Wit h these c avea ts, the Court procee ds to the merits of the par ties’ re spective motions.

5A. Plaintif f’s Motion in L imine to Bar the District from Presenting Evidenc e Concerning its Defense unde r § 12-309 of the D.C. Code Plaintiff has moved in limine to, in her words, “ bar[] t he district from litigating its claimed de fense under § 12- 309 of the District of Columbia Code.” Pl.’s Mot. in Limine and Mem. of P. & A . in Supp. Thereof to Ba r the District fr om L itigatingits 12-309 Defe nse in View of the Passag e of the 2009 Amendment to the Whistl eblower Protection Act, Doc ket No. [90] , at 1. Historically , section 12-309 of the D.C. Code has re quired a g g rieve d employ ees to notify the District of cla ims pursuant to the DCWP A within six months after the alleg ed injury or dama g e was sustained. See Paynev. District of Columbia , __ F. Supp. 2d __, 2010 WL3833036, at *12 (D.D.C. Sept. 29, 2010). He re, f ollowing he r re signation, Pl aintiff alleg edly did not provide proper notice that she intende d to assert a claim for c onstructive discha rg e in violation of the DCWP A. SeeDef

.’s Omnibus Opp’n to Pl.’s Mots. in Limine (“D ef.’ s Opp’n”) , Docke t No. [95] , at 2 n.1. 3 In support of her

motion in limine , Plaintiff relies upon ce rtain ame ndments to the DCWP A, which we re sig ned by D.C. May or Adria

n Fe nty in J anuar y 2010 and ente red into eff ect in Mar ch 2010 – in both instances, se vera l months after dispositive motions i n this action

wer e due. A mong othe r thing s, those amendments re peal the r equire ment that individuals

asser ting c laims pursuant to the DCWP A notify the District of their c laims under § 12-309. Compare D.C. Code § 1-615.54(a ) (2009) (“A civil action broug ht pursuant to this section shall comply with the notice re quirements of § 12- 309”), with D.C. Code § 1-615.54(a )(3) (2010)
The pre cise c ontours of the District’s pr esumed § 12-309 de fense are not clear . In 3 particula r, the pa rties’ re spective pa

pers do not indicate whether the District’s def

ense is limited to Plainti ff’ s claim for c onstructive discha rg e or e x tends to other alleg edly reta liatory

acts. 6(“Sec tion 12-309 shall not apply to any civil action broug ht under this section.”) . The pa rties principally

dispute whether

the amendme nts should apply retroa ctively . Howeve r, Plaintiff’s moving pa

pers g o much fa

rther, a ddressingin depth why the notice she provided to the District is, irrespec tive of the re troac tive application of the amendments, c ompliant with the strictures of § 12-309. SeePl.’s Reply Mem. in Supp. of Pl.’s Mot ion in Limine to Ba r the District fr om L itigatingits 12-309 Defe nse in View of the Passag e of the 2009 Amendment to the Whis tleblower Protec tion Act, Docke t No. [98] , at 4-9. The Court agree s that resolution of whethe r Plaintiff was r equire d to provide notice unde r § 12-309 and, if so, whether the notice she provided wa s sufficient, c ould substantially narr ow the issues that nee d to be addr essed at trial, but disagr ees tha t a motion in limine is the proper vehicle to do so. Such issues ar e more appropr iately addre ssed in the context of a motion for summary judgme nt, with its acc ompany ing a nd cruc ial proce dural saf

eguards. See C & E Servs. , 539 F. Supp. at 323. Ac cording ly , the Court shall deny Plaintiff’s [90] Motion in Limine

. Neve rtheless, Plaintiff ra ises relatively straig htforwa

rd leg al questions that may be re solved by the Court. As such, to the extent they intend to assert a

§ 12-309 def

ense in this action, Def endants shall promptly

file a suppleme ntal motion for summary judgme nt addre ssing these discrete issues. The pa

rties shall propose a

n appropr iate brie fingschedule

. 4
The Court is mindful of Plaintiff’s observation that, irrespec tive of the re cent c hang e in 4 law, De fenda

nts could have r aised the issue of the suffic iency

of any § 12-309 notice in a

motion for summary

judgme nt. Although the F eder al Rules of Civil P roce dure do not re quire pa rties to file motions for summary judgme nt, seeFe d. R. Civ. P . 56(b) ( “A pa rty ag ainst whom relief

is soug ht may

move . . . for summar

y judgme nt on all or part of the claim.”) (empha sis added), the Court ag ree s that Defe ndants could have – and should have – raised a ny § 12-309 def

ense in its ear lier pape rs. Althoug h the Court is, for this rea son, hesitant to allow Def endants lea

ve to file a supplemental motion for summary judgme nt, the permissive nature of the F eder al Rules of Civil Procedur e, couple d with the rec ent cha ng e in controllinglaw and the Court’s view that re solution 7B. Plaintif f’s Motion in L imine to Bar the District from Relitigat ing Plainti ff’s Compliance with D.C. Residency Prefere nce R equireme nts Plaintiff next asks this Court – ag ain, in her w ords – to rule that the D istrict “is bound by the dec ision of its own Office of Personne l that found that [she] did not violate the District of Columbi a Residenc y

Prefe renc e Ac t.” Pl.’s Mot. in Limine and Mem. of P. & A. in Supp. There of to Ba

r the District fr om Rearguing the Merits of the Attempt to Wrong fully Terminate Pl.’s Employ

ment with the District of Columbia, Docket No. [91], at 1 (emphasis omitted). As descr ibed above , in May

2006, the DOH c ommenced pr ocee dings to de termine whe ther Plaintiff’s employ

ment with the APRA should be forfe ited due to non-c ompliance with D.C. residenc y pref ere nce r equire ments. After an evide ntiary

hear ing w as held, the pr ocee dings w ere ultimately

dismiss ed by

the D.C. Off

ice of Personnel. Plaintiff now conte nds, citing the doctrine of collate ral e stoppel, that the final dec ision of the D.C. Offic e of Per sonnel should have prec lusive eff

ect a nd preve nt the District from re litigatingat trial the que stion of whether she violated D.C. reside ncy

pref ere nce r equire ments. Plaintiff’s argument is not withoutsome irony . This is not t he first time the Court has hear d this argument; Plainti ff r aised, a nd the Court reje cted, the ide ntical ar g ument in the context of Plaintiff’s Motion for Partial Summary J udg ment. See W

illiams v. Johnson , 701 F. Supp. 2d 1, 19-20 (D.D .C. 2010). As set forth in this Court’s prior Memora ndum Opinion, Pl aintiff’s entire c ollatera l estoppel argument is “premised on a mischara cter ization of the D.C. Office of Personnel’s f

inal decision,” which dismissed the char g es ag ainst Plainti ff on the ba sis that the

of these issues ma

y shorten the dur ation of trial and pr eser ve sca rce judicial resour ces, c ounsel in favor of per mitti ng Def

endants to file a

narr ow supplemental motion for summary judgme nt in these limited circumstanc es. 8District “fa iled to meet its burden of pr oof or f ollow its own procedur es.” Id. This Court stated, in no uncer

tain terms, that the D.C. Off ice of Personnel’s de cision was “not substantively equivalent to an a ffirmative finding that Plaintiff was neve r subject to any residenc y

require ment, such that the District’s c laims were ‘without merit.’” Id. at 20. The na ture of the D.C. Offic e of Personnel’s f

inal decision has not cha

ng ed in the months interveningsince Plaintiff first ra ised this argument. This is the law of the c ase, a nd Plaintiff’s argument fails for the very same
rea sons it did over seven months ag o. True, in de nying Plaintiff’ s Motion for Partial Summary J udg ment, the Court did observe that Plaintiff’s reque sts concer ning the prese ntation of evidenc e at tria l were “more appropr iately dealt with throug h a motion in lim ine,” id. , but that was not an invitation to recycle the ve ry same argument. To the extent Pl aintiff’s motion may be construe d as sug g esting that evidenc e
conce rningthe proprie ty

of the District’s inve stigation is of such litt le probative value that it is substantially

outweighed by

considera

tions of undue delay

or wa ste of time (a

dubious reading indeed) , it would sti ll be meritless. One of Plaintiff’s principal c ontentions in thi s action is that the District impermissibly reta liated ag ainst her by

investigating ( and subseque ntly bring ing char g es ag ainst her) conce rningher c ompliance with D.C. re sidency pref ere nce r equire ments. SeeAm. Compl. ¶¶ 60-70. For Plaintiff to prevail, the jury must assess whether

the District’s actions we re me re pr etext for reta liation. See Payne , 2010 WL3833036, at *12 (c iting Johnson v. District of Columbia , 935 A.2d 1113, 1118-19 (D .C. 2007)). Whether Plaintiff cla imed a residenc y pref ere nce a nd maintained a r esidenc e in D.C. surely bear s upon the question of

9whether

the District’s ac tions were unde rtake n for leg itimate, non-reta liatory rea sons. Id. For

5 these re asons, the Court shall deny Plaintiff’s [91] Motion in Limine . At the pre trial confe renc e in this action, the parties should be pr epar ed to addr ess the question of what evidence may be prese nted at trial c oncer

ning the District’s investig ation into Pl aintiff’s c ompliance with D.C. residenc y require ments. C. Plaintif

f’s Motion in L imine to Bar the District from Cl aiming that a L egitimate Contract Existed with Sof tscape Plaintiff also moves “for

an orde r bar

ringthe District from c laiming that a leg itimate, bona fide contra ct with Softscape . . . e x isted in Febr uary 2005.” SeePl.’s Mot. in Limine and Mem. of P. & A . in Supp. Thereof to Ba r the District fr om Claimi ng that a L eg itimate, Bona Fide Contract with Softscape Ex isted in Febr uary , 2005 (“Pl.’s Softscape Mem.”), D ocket No. [93], at 1. Once ag ain, Plaintiff misconstrues the purpose of a motion in limine . Her e, Plaintiff does not argue that the c ontrac tual relationship between the A PRA and its vendor, Softscape , has no bear ing on the issues to be prese nted at trial. Quite the contra ry , Plaintiff contends that the alleg ed abse nce of

a bona fide contra ct betwe en the APRA and Softsca pe “supplies a

motive” for the District’s ef

forts to have Plaintiff terminated. Id. at 4. Indeed, it is the District that sug g ests 6
Strictly speaking , the question of whe ther Plaintiff ac tually violated D.C. reside ncy 5 require ments is imm ater ial. Rather, the que stion for the jury is whether the District acte d as it did out of a bona fide belief that Plainti ff wa s not in compliance. Of course , the forme r bea

rs on the latter, the primary

limit ation beingthat the District ca nnot rely upon afte r-a cquire d evidenc e to establish the contempora neous motives behind its actions. How this would even be helpful to Plaintiff is not im mediately appar ent. Plaintiff 6 appea rs to argue that, if ther e wa s no such contra ct, Plaintiff’s supervisors w ould have r eason to believe that she would disclose that fa ct to the D.C. Council. SeePl.’s Softscape Mem. at 4. The Court fails to see how this would “a ssist [ Plaintiff] in proving causa tion” on her D CW PA claim. Id. I t is undisput ed that Plaintiff did not actually disclose this information to the D.C. Council in the cour se of the F ebrua

ry 14, 2006 hear ing – the only claim re maining in this ac tion. W hile the 10that the contra ctual re lationship between the APRA and Softscape has little releva nce to the

rema ining c laims in thi s action. SeeDef .’s Opp’n at 4. The c urious positioni ng of the pa rties re veals the true nature of Plaintiff’s motion, which is not directed towa

rds demonstratingwhy

cer tain cate g ories of e vidence should or should not, for evidentiary re asons , be introduce d at trial. Instead, the sum total of Plaintiff’s a rgument (so far as the Court ca

n tell) is that the District failed to produc e a c opy of a phy sical contra ct betwee n the APRA and Softscape either in c onnection with its mandatory initial dis closures or

in response to Plainti ff’ s discovery reque sts, and that these a lleg ed fa ilures entitle her to an adve rse infere nce. SeePl.’s Softscape Mem. at 4. Properly speaking , Plaintiff’s motion is not a motion in limine at all, but rathe r a disguised motion for sanctions pursua nt to Fed. R. Civ. P. 37. But 7

even a ssuming Plaintiff’s alleg ations to be true, e ven assumingthat the complained- of conduc t falls within the ambit of Fe d. R. Civ. P . 37, and eve n assuming Plaintiff wa s not first require d to

subject of the A PRA’s contrac tual relationship wit h Softscape ma y have ha d some bea

ringupon Plaintiff’s private me eting with D.C. Councilmember Catania, seeAm. Compl. ¶¶ 54-55, the Court gr anted De fenda

nts summary

judgme nt on that claim. See W illiams v. Johnson , 701 F. Supp. 2d 1, 16-19 (D.D.C. 2010). As a result, the ca

usal conne ction that must be drawn is betwee n Plaintiff’s testimony befor e the D.C. Council and the a lleg ed re taliatory acts – that, a

nd nothing e lse. Speculation that Plaintiff’s super visors may

have taken ce rtain employ ment actions ag ainst Plainti ff out of a

conce rn that she mig ht hy pothetically

disclose the natur e of the contra ctual re lationship between the APRA and Softscape , if any thing, would se em to undermine Plaintiff’s ability

to prove such a

causa l connec tion. I t is not, however, this Court’s duty to tell Plaintiff how to prosecute her c ase. Given the ba sis of Plainti ff’ s motion, i t is non-sensical for her to sug g est that its 7 resolution in her fa

vor would bea

r upon the c redibility

of Johns on, who appa

rently testified in his deposition that he provided Plaintiff with a c opy of the c ontrac t. SeePl.’s Softscape Mem. at 4. Even if Plaintiff we re somehow entitled to an adve rse infe renc e prohibiting the District from disputing the a

bsence of a c ontrac tual relationship between the A PRA and Softscape at trial, that infere nce c ould not be used to impeac h J ohnson. One of the peculiar ities of our leg al sy stem is that a “f act” may be undisputed for

various proc edura l rea sons, and y et not true in ac tuality

.

11file a motion to compel, Plaintiff’s motion would neverthe less fail as untimely

. See Long v.

Howard Univ. , 561 F. Supp. 2d 85, 91 (D.D .C. 2008) (eve n absent a specifie d time limi t, motions for sanctions must be filed without “unre asonable delay”). I n the long and torture d history of discover

y in this action, the Court ex pressly informed the pa

rties that discover

y would close, a fter multiple extensions, on J anuar y 31, 2009. SeeMin. Order (Jan. 30, 2009). Plainti ff

was c autioned that she c ould not “seek the Court’s intervention [in dis cover y ] bey ond J anuar

y 31, 2009.” Id. As such, Plaintiff ca nnot be hea

rd to complain of a lleg ed discove ry failure s at this late date, now w ell over a y ear -and- a-ha lf afte r the c lose of discove ry . Moreove r, g iven that the District has a dmitted that the contrac tual relationship between the A PRA and Softscape ha s littl e, if a ny , rele vance to the rema ining c laims in thi s action, the Court har bors no conc ern that what minimal evidence that may touch upon the issue at tria l will needlessly delay the proce eding s. Acc ording ly , the Court shall deny Plaintiff’s [93] Motion in Limine

. D. The District’s Motion in L imine to ExcludeEvidenc e Conce rning Damages for Back Pay or Front Pay The District, for

its part, seeks to pre clude Plaintiff fr om introducing evidenc e or argument at trial conc erningher e ntitlement to damag es for back pa y or fr ont pay , on the basis that Plaintiff alleg edly

“voluntarily

resig ned” f

rom her position with the APRA. SeeMem. of P. & A . in Supp. of the District of Columbia’s Mots. in Limine (“D ef.’ s Mem.”), D ocket No. [92]. 8 The District initially

filed a f our-pa rt motion in limine seekingto prec lude the 8 introduction of, in addition to evidence conce rningdamag es for back pa y or fr ont pay , (a) the decla ration of Dor othy

Smit h, (b) pur

ported notes f

rom a c hief-of

-staff meeting , and (c ) the transcr ipt of the hea

ringbefor e the D.C. Council. SeeDef .’s Mem. at 1. Plaintiff opposed the District’s motion in it s entirety

. SeePl.’s Opp’n to the District of Columbia’s Mots. in Limine , Docke t No. [94] . There afte r, the District filed a reply in which it indicated that the pa rties have rea ched a g ree ment on a jury instruction that “will cure the District’s objec tion to admissi on” of the last of these items – i.e. , the transc ript of the hea ringbefor e the D.C. Council. See Def .’s 12The District’s a rgument proce eds in two stag es: first, bec ause Plaintiff re signe d from her position with the APRA to assume a position with the feder al g overnme nt, Plainti ff c annot establish the requisite nexus betwee n the attenda nt decr ease in her income and the a lleg ed re taliatory conduct at issue in this action; and, second, Plaintiff c annot re sort to the “construc tive discharg e” doc trine to salvag e her

post-resig nation damag es cla im because her w orkingconditions at the APRA were not so “intolerable” as to support a c laim for construc tive discharg e. Id. at 4. Under District of Columbia law, a c onstructive discha rg e occ urs when a

n employ er deliberately

makes wor

king c onditions “intol era

ble,” a nd drives the e mploy ee to involuntarily quit. Arthur Y

oung &Co. v. Sutherland , 631 A.2d 354, 362 (D.C. 1993). G ener ally speaking , workingconditions “rise to the re quisite level of intolera bleness if they

‘would lea d a re asonable person to re sign.’ ” Id. (quoting Atl. Richfield Co. v. District of Columbia Comm’n on Human Rights , 515 A.2d 1095, 1101 (D.C. 1986))

. Once established, a c onstructive discha rg e is treated 9
Reply to Pl.’s Opp’n to its M ots. in Limine , Docke t No. [100] , at 1. Ther efor e, the Court shall deny that prongof the District’s motion in limine as moot. Separately , afte r re viewingPlaintiff’s proff er in opposition, the District withdrew its motion as it relates to the fir st two items – i.e. , the decla ration of Dor othy

Smit h and the pur

ported notes f

rom a c hief-of

-staff meeting– without prejudice to rene w af

ter Plaintiff has attempted to provide a pr oper f oundation for their admission at trial. See id. ; Min. Order ( Oct. 26, 2010); De f.’s Not. Reg ardingits Mot. in Limine , Docke t No. [106] , at 1. As such, the Court sha ll deny the District’s motion, as it relates to these two items, as withdrawn. Perplexingly , Plaintiff objects to the District’s re liance on the Supreme Court’s 9 formulation of the c onstructive discha rg e doctr ine in Pennsylv ania State Police v. Sude rs , 542 U.S. 129 (2004). The Suders Court, in addressinga hostile environment c laim asserte d under fede ral e mploy

ment discrimination law, desc ribed the r eleva nt inquiry as follows: whethe r workingconditions “bec ome so intolerable that a re asonable person in the e mploy ee’ s position would have f

elt compelled to re sign.” Id. at 141. Admittedly , the D.C. Court of Appea ls did not expressly endorse this ex act f

ormulation in at least one c ase subse quent to the Supreme Court’s decision. See Darrow v. Dillingham &Murphy, LLP , 902 A.2d 135, 138 (D.C. 2006). H oweve r, the Court simply

cannot disce rn any

materia l disti nction betwee n the two formulations: both require that Plaintiff establish that her wor king c onditions were so intolera ble that a r easona

ble 13as “f

unctionally

the same a s an ac tual termination in damag es-e nhancing respe cts.” Pennsylv ania State Police v. Sude rs , 542 U.S. 129, 148 (2004). Although the District broadly claims that none of Plaintiff’ s alleg ations rise to the requisite leve l of “intolera bleness,” its per functory

moving pa

pers point to but one spec ific fa ct – namely , that Plaintiff waited to re sign until J une 2007, seve ral months afte r her “primar y tormentor” le ft the APRA. SeeDef .’s Mem. at 4. Plaintiff counte rs that she c ommenced he r
sear ch for alterna tive employ

ment long be fore her a ctual re signation, as ear ly as Oc tober 2006. SeeWil liams Decl. (Aug . 5, 2010), Doc ket No. [94-3], ¶ 1. I n addition, Plainti ff points to excerpts from he r deposition testimony , which she c ontends outline the circ umstances that compelled he r to resig n from the APRA. See Wil liams Dep. (De c. 22, 2008), D ocket No. [94-2], at 130:3-137:20. The Court nee d not – indeed, should not – resolve the se compe ting c laims here. T he District’s entire motion in limine hinge s on the contention that Plaintiff ca nnot establish that she

was c onstructively

discharg ed, but whethe r a pla intiff has met his or her burden in this reg ard is g ener ally “a que stion for the trier

of fa ct.” Arthur Y

oung , 631 A.2d at 362. In essenc e, the District asks this Court to decide, on a motion in limine , that there is no ge nuine issue as to the “intolera bleness” of

Plaintiff’s workingconditions at the APRA. L ike Plaintiff, the District misconstrues the purpose of a motion in limine , which should not be used to re solve fac tual disputes among the par

ties. C & E. Servs. , 539 F. Supp. at 323; see also U.S. ex rel. Miller v. Bill Harbert Int’l Constr. , No. 95-1231, 2007 WL861094, at *2 (D.D .C. Mar. 20, 2007) ( denying motion in limine addre ssed to issue of mater ial fac t); W instead v. District of Columbia , No. 04-

person, pr esente d with the same c onditions, would be led to resig n. 14887, 2010 WL2653323, at *4 (D.D .C. J uly 2, 2010) (the suf

ficienc y of evide nce “ is an issue to be dete rmined by

the finder

of fa ct upon consider ation of all of the e vidence prese nted”) . Indeed, at least one district court has de nied a ne arly identical motion in limine. See Davis v. G en. Acc ident Ins. Co. of Am. , No. 98-4736, 2000 WL1780235, at *4 (E.D. Pa. D ec. 4, 2000) (re jectingdefe ndants’ ar g ument that evidenc e on bac k and fr ont pay losses should be excluded; defe ndants wer e “a sking the Court to weig h in on the merits of the . . . c onstructive discha rg e claim”)

. Simpl y put, the District has cloaked a motion for summar y judgme nt in the form of a motion in limine , but the deadline to f ile dispositi ve motions has long sinc e passe d. SeeOrde r (F eb. 14, 2009), D ocket No. [65]; Am. M in. Order (Jul y 21, 2009). Simi larly , for obvious

1 0

rea sons, it is premature for motions for judgme nt as a matter of law. SeeFe d. R. Civ. P . 50(a) (1). Acc ording ly , the Court shall deny the District’s [92] Motion in Limine as it relate s to evidence or argument conce rningdamag es for back pa y or fr ont pay
. 1 1 E. Plaintif

f’s Motion to Clar ify her Praye r for Relief L astly , Plaintiff seeks an or der “ clar ify [i ng ] her prayer f or re lief to allow her

full relief available under the District of Columbia Whi stleblower Ac t.” Pl.’s Mot. to C larify her Pra y er f or Relief to Request F ull Relief Available Under the District of Columbia Whi stleblower Ac t and

In contra st to Defenda

nts’ § 12-309 def

ense ( which wa s raised by Plaintiff, is affe cted 1 0 by a re cent c hang e in controllinglaw, and pr esents re latively straig htforwa

rd leg al questions suitable for r esolution by

the Court), the Court see s no rea son to ex cuse D efe ndants’ fa ilure to include Plaintiff’s construc tive discharg e cla im in it s orig inal motion for summary judgme nt. Even if the D istrict’s motion was timely and other wise proc edura lly

sound, the Court 1 1 conclude s that the District’s showingis woefully inadequate to support a findingthat, as a ma tter of law, Plaintiff would be unable to mee t the leg al standar d for c onstructive discha rg e at tria l. 15Mem. of P. & A . in Supp. Thereof (“Pl.’s Mot. to Clarify ”), D ocket No. [99], at 1. Although hardly the model of a

rtful dra fting , Plaintiff’s motion appear s to be direc ted towar ds remedy ing the omission of an express demand f or bac k pay

or fr ont pay

in the ad damnum clause in the Amended Complaint. See id. at 1. As a thre shold matter, it is not entirely clea r to this Court 1 2 why damag es for

back pa y and fr ont pay

would not be ca

ptured within the ambit of Plaintiff’s reque st for “suc h other a

nd further relief as the Court may

consider just and pr oper.” Am. Compl. at 24. I n any

event, the F eder al Rules of Civil P roce dure a re c lear : ever

y final judg ment other than a

defa ult judgment “should g rant the r elief to whic h the par ty is entitled, even if the party has not demande d that relief in its pl eading s.” F ed. R. Civ. P. 54(c). Althoug h the cour ts have c arve d out an exception to this rule where the opposing party would suffe r suffic ient prejudice wer e the omitted re lief g rante d, see, e .g. , First Am. Corp. v. Al-Nahyan , 17 F. Supp. 2d 10, 28 (D.D.C. 1998), the District claims no such pre judice her e and a ctually

conce des that Plaintiff may

be aw arde d all the re lief to which she is leg ally entitled in the event she preva ils on her c laim under the D CW PA. SeeDef .’s Resp. to Pl.’s Mot. t o Clarify her Pra y er f or Relief, 1 3

Elsewher e, Plaintiff furthe r re quests “that the [C] ourt rule that she is entitled to the 1 2 differ ence betwee n her sa lary from the Public Hea lth Service a nd the salar

y she would have ear ned had she not been c onstructively discharg ed.” Pl.’s Mot. to Clarify at 2. Plaintiff’s reque st, made in passingand without citation to any leg al authority , prese nts a question more appropr iately

raised in the c ontext of the pre trial confe renc e; at that conf ere nce, the parties should be prepa

red to a ddress what supplemental brief ing on da mag es, or other

leg al issues, may be helpf ul in anticipation of the trial in this action. The DCWPA ex pressly

contemplates the following cate g ories of r elief: a n injunction; 1 3 reinstateme nt to the same or a n equivalent position; reinstatement of the employ ee’ s seniority rig hts; restoration of lost benef its; back pay

and intere st on back pa

y ; compensatory

damag es; and re asonable costs and attorne y s’ fe es. D.C. Code § 1-615.54( a)( 1) (2010) . Whil e the statute does not direc tly

mention front pay , the D.C. Court of Appea ls has held that, in appropr iate circ umstances, a

n awa rd of f ront pay may be an a ppropriate substitut e for

reinstateme nt. See W atkins v. District of Columbia , 944 A.2d 1077, 1082-83 (D .C. 2008). Both fr ont pay and bac k 16Docke t No. [105] , at 1-2. Ac cording ly , the Court shall g rant Plaintiff’s [99] Motion to C larify

insofar a s Plainti ff will not be pre cluded f rom seeking

damag es for

back pa y and fr ont pay

based upon the omission of an express ref ere nce to those da

mag es in the Amende d Complaint and deny Plaintiff’s Motion to t he extent it may be construe d to seek other relief

. IV. CONCLUSION The Court has c onsidered the rema ining a rguments tendere d by

the par ties, and has conclude d that they

are without merit. There fore , and for the re asons stated a

bove, the Court shall: 1. DENY Plaintiff’s [90] Mot ion in Limine to Ba r the District fr om L itigating its 12-309 Defe nse in View of the Passag e of the 2009 Amendment to the Whis tleblower Protec tion Act; 2. DENY Plaintiff’s [91] Mot ion in Limine to Ba r the District fr om Rearguing the Merits of the Attempt to Wrong fully Terminate Plaintiff’s Employ ment with the District of Columbia; 3. DENY Plaintiff’s [93] Mot ion in Limine to Ba r the District fr om Claimi ng that a L eg itimate, Bona

Fide Contra ct with Softscape E x isted in Febr uary , 2005; 4. DENY the District’s [92] Motions in Limine ; and 5. GRANT-I

N-PART Plaintiff’s [99] Motion to C larify her Pra y er f or Relief insofar a s Plainti ff will not be pre cluded f rom seekingdamag es for back pay or fr ont pay

based upon the omission of an express refe renc e to those damag es in the Amende d Complaint and DENY-I N-PART Plaintiff’s Motion to C larify

in all other re spects.

pay are equitable r emedies, see W ashington Convention Ctr. Auth. v. Johnson , 953 A.2d 1064, 1081-81 (D.C. 2008), a

nd the par ties should be prepa

red to discuss at the pr etrial c onfer ence in this action what evide nce should be prese nted to the jury for its consider ation and what evidence is more appr opriately

prese nted to the Court alone. 17An appr opriate O rder acc ompanies this Memorandum Opinion. Date: October

31, 2010
/s/ COL L EEN KOL L AR-KOTEL L Y United States District J udg e

18