Herbert v. Architect of the Capitol

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CORNELL HERBERT,

Plaintiff,

v. Civil Action No. 09-01719 (CKK)

ARCHITECT OF THE CAPITOL,

Defendant.

MEMORANDUM OPINION
(January 31, 2013)

From 2004 through 2011, Plaintiff Cornell Herbert (“Herbert”), an African American,

was employed as a painter in the Paint Shop for the House of Representatives, which falls under

the supervision of Defendant, the Architect of the Capitol (“AOC”). In 2009, Plaintiff filed this

action against the AOC, claiming that he was discriminated and retaliated against in violation of

Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Congressional Accountability Act

of 1995 (the “CAA”). This Court previously granted-in-part and denied-in-part the AOC’s

motion for summary judgment. See Herbert v. Architect of Capitol, 839 F. Supp. 2d 284 (D.D.C.

2012) (setting forth the background of the case). This action is now in the pretrial stage of

litigation on the two remaining counts, Counts II and III, and is proceeding towards a jury trial

that is yet to be scheduled. Count II alleges that Herbert was retaliated against, due to his prior

complaints of discrimination, when the AOC did not select him to serve as a full-time “point

man” during a project in 2008. See Second Am. Compl. ¶¶ 44-47. Count III alleges that Herbert

was continuously subjected to a discriminatory and retaliatory hostile work environment while

he was working at the Paint Shop. See Second Am. Compl. ¶¶ 48-51. Presently before the Court

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are Plaintiff’s [62] Motion in Limine and the AOC’s [65] Motion in Limine, both of which

request relief in connection with various evidentiary disputes. Upon consideration of the parties’

submissions,1 the relevant authorities, and the record presently before the Court, and for the

foregoing reasons, the Court shall DENY Plaintiff’s [62] Motion in Limine and GRANT-IN-

PART and DENY-IN-PART the AOC’s [65] Motion in Limine.

I. LEGAL STANDARD

Although neither the Federal Rules of Civil Procedure nor the Federal Rules of Evidence

expressly contemplate motions in limine, the practice of allowing such motions has developed

over time “pursuant to the district court’s inherent authority to manage the course of trials.”

Luce v. United States, 469 U.S. 38, 41 n. 4, 105 S. Ct. 460, 83 L. Ed. 2d 443 (1984). Consistent

with the historical origins of the practice, motions in limine are “designed to narrow the

evidentiary issues for trial and to eliminate unnecessary trial interruptions.” Bradley v.

Pittsburgh Bd. of Educ., 913 F.2d 1064, 1070 (3d Cir. 1990). Broadly speaking, the Federal

Rules of Evidence permit the admission of “relevant evidence” – that is, evidence that “has any

tendency to make a fact [of consequence] more or less probable than it would be without the

evidence,” FED. R. EVID. 401 – provided it is not otherwise excluded by the Rules, the

Constitution of the United States, or an Act of Congress, FED. R. EVID. 402, and its probative

value is not “substantially outweighed by a danger of ... unfair prejudice, confusing the issues,

misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”

FED. R. EVID. 403.

1
While the Court renders its decision on the record as a whole, its consideration has focused on
the following documents: Pl.’s Mot. & Mem., ECF No. [62]; Def.’s Opp’n, ECF No. [67]; Pl.’s
Reply, ECF No. [68]; Def.’s Mot. & Mem., ECF No. [65]; Pl.’s Opp’n, ECF No. [66]; Def.’s
Reply, ECF No. [69]; Second Am. Compl., ECF No. [33]; Pretrial Stmt., ECF No. [64]. In an
exercise of its discretion, the Court finds that holding oral argument would not be of assistance in
rendering a decision. See LCvR 7(f).

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 In deference to their familiarity with the details of the case and greater experience in

evidentiary matters, trial judges are afforded broad discretion in rendering evidentiary rulings, a

discretion which extends to assessing the probative value of the proffered evidence and weighing

any factors against admissibility. Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384,

128 S. Ct. 1140, 170 L. Ed. 2d 1 (2008). The trial judge’s discretion extends not only to the

substantive evidentiary ruling, but also to the threshold question of whether a motion in limine

presents an evidentiary issue that is appropriate for ruling in advance of trial. United States v.

Valencia, 826 F.2d 169, 172 (2d Cir. 1987); accord Rosemann v. Roto–Die, Inc., 377 F.3d 897,

902 (8th Cir. 2004); United States v. Layton, 720 F.2d 548, 553 (9th Cir. 1983), cert. denied, 465

U.S. 1069, 104 S. Ct. 1423, 79 L. Ed. 2d 748 (1984), and overruled on other grounds by United

States v. W.R. Grace, 526 F.3d 499 (9th Cir. 2008). The trial judge has the “discretion to rule in

limine or to await developments at trial before ruling.” Stephen A. Saltzburg et al., FEDERAL

RULES OF EVIDENCE MANUAL §103.02[12] (9th ed. 2006). “[I]n some instances it is best to

defer rulings until trial, [when] decisions can be better informed by the context, foundation, and

relevance of the contested evidence within the framework of the trial as a whole.” Casares v.

Bernal, 790 F. Supp. 2d 769, 775 (N.D. Ill. 2011) (citation omitted).

II. DISCUSSION

The Court shall first address the AOC’s motion and thereafter turn to Plaintiff’s motion.

Because of the number and substantive variation of both parties’ requests, the Court shall discuss

the factual background relevant to each separate request within the context of its analysis of that

request. Further, because of the significant overlap between certain matters raised in the parties’

respective motions, the Court shall occasionally, in discussing one party’s motion, refer to

briefing submitted in connection with the opposing party’s motion.

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 A. The AOC’s Motion in Limine

The AOC’s Motion in Limine requests the following relief: (1) that the AOC be

permitted to present at trial evidence of Plaintiff’s arrest, indictment, and criminal conviction to

interrogate witnesses who testify about Plaintiff’s emotional pain and suffering; (2) that the AOC

be permitted to present at trial testimony from the Chief Clerk of the House Committee on

Oversight and Government that Plaintiff sexually harassed her; (3) that the Court preclude

Plaintiff from offering evidence of the “Tonda Cave” investigation – an internal investigation

concerning disruptive behavior in the Paint Shop; (4) that the Court preclude Plaintiff from

offering evidence about discipline given to Calogero DiPasquale, a white male who was also a

painter in the Paint Shop and whom Plaintiff argues received more favorable treatment than

Plaintiff; (5) that the Court seat a jury of twelve; and (6) that the Court preclude Plaintiff from

offering evidence of discrete acts that allegedly contributed to the creation of the hostile work

environment which are not referred to in Plaintiff’s statement of his claims in the parties’ Joint

Pretrial Statement. The Court shall address each request in turn.

1. Evidence Regarding Plaintiff’s Arrest, Indictment, and Criminal Conviction

The AOC contends, based upon information gleaned from an online news article, that

Plaintiff was arrested, indicted, and convicted for “slashing his former wife’s boyfriend with a

butcher’s knife.” Def.’s Reply at 1. Although Plaintiff decries the AOC’s reliance on a

newspaper article, challenges the AOC’s “salacious” characterization of the events, and asserts a

blanket objection to the overall accuracy of AOC’s allegations, see Pl.’s Opp’n at 1, 2 & n.2,

Plaintiff does not contest the following underlying facts: that Plaintiff was arrested on September

27, 2009, for assaulting his former wife’s boyfriend; that on January 20, 2010, Plaintiff was

indicted on charges of attempted first-degree murder and malicious assault (which the news

article reported carried possible sentences of three to fifteen years, and two to ten years,

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respectively); that Plaintiff was tried in March 2011; that on March 10, 2011, after a three-day

trial, a petit jury found Defendant guilty of two counts of misdemeanor battery, which were

merged at his sentencing on May 23, 2011; that Plaintiff was sentenced to one year in prison; and

that because of his conviction and sentence to jail, Plaintiff resigned from his employment at the

Paint Shop. Def.’s Mem. at 2-3. See also Pl.’s Opp’n, Ex. 1 (May 25, 2011 Cir. Ct. of Jefferson

Cty, West Va. Sentencing Order).

The AOC requests that the Court permit it to introduce evidence regarding the fact of,

and circumstances surrounding, Plaintiff’s arrest, indictment, and conviction. Notably, the AOC

does not purport to offer the evidence pursuant to Federal Rule of Evidence 609, which provides

for impeachment of a witness’s character for truthfulness by evidence of a criminal conviction.

Def.’s Reply at 2. Rather, the AOC argues that the evidence is relevant to two issues in this case.

First, the AOC asserts that it provides the explanation for Plaintiff’s resignation. The Court need

not address this argument, however, because the parties have indicated their agreement to enter

into a stipulation to the effect that Plaintiff resigned his position for purely personal reasons

having nothing to do with the environment or conditions of his employment, and that he does not

contend that his claim for damages should include the fact that he resigned from the Paint Shop.

See Pl.’s Mem. at 6; Pl.’s Opp’n at 2-3; Def.’s Reply at 2.

The AOC’s second point, however, remains fiercely contested. Plaintiff is claiming that

he suffered emotional damages as a result of the discrimination and retaliation he endured at the

Paint Shop – some of which, the AOC argues, occurred after his arrest. Def.’s Mem. at 3. At

trial, Plaintiff intends to offer four witnesses who will testify about his emotional pain and

suffering – including friends and/or relatives and Plaintiff’s treating physician. Pl.’s Opp’n at 2.

Plaintiff will himself presumably testify to the same. The AOC argues that “[a]ppropriate

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impeachment of that testimony will be inquiry into the other issues in Plaintiff’s life at the

relevant time period that were the likely causes of Plaintiff’s emotional pain and suffering – e.g.,

the fact that he faced the possibility of a lengthy prison sentence.” Def.’s Mem. at 3.

Plaintiff counters that the “real reason” behind the AOC’s introduction of this evidence is

to embarrass Plaintiff and prejudice the jury against him. Pl.’s Opp’n at 1. He argues that the

prejudice that would result from the introduction of evidence about his encounter with the

criminal justice system substantially outweighs any minimal relevance the criminal proceedings

may have to the question of his hostile environment damages. Id. at 5-6. Plaintiff further argues

that the introduction of such evidence could lead to a time-consuming “mini-trial” regarding the

circumstances of Plaintiff’s arrest, incitement, criminal trial, conviction, and incarceration. Id.

Accordingly, Plaintiff submits that all evidence relating to his criminal activity be excluded as

more prejudicial than probative pursuant to Federal Rule of Evidence 403. Id.

Upon consideration of the parties’ arguments, it is clear to the Court that, in light of

Plaintiff’s anticipated proffer at trial of evidence regarding his alleged emotional damages,

evidence that other stress factors in his life (particularly those as objectively taxing as divorce

and criminal justice proceedings) were more significant contributors to Plaintiff’s emotional pain

and suffering than the alleged problems at work, would be highly probative as to Plaintiff’s

entitlement to recover damages. While Plaintiff argues that his arrest and subsequent conviction

are of minimal relevance because they occurred at the “tail end” of his employment at the Paint

Shop, Plaintiff provides no factual support whatsoever for this argument. See Pl.’s Mem. at 7. It

is not even clear to the Court on which date Plaintiff’s employment with the AOC terminated.

To be sure, this is not entirely surprising, given Plaintiff’s pattern of vague submissions

throughout the course of this litigation. Indeed, even at this late stage in the action, the Court

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observes that Plaintiff has failed, in his statement of claims and description of proposed witness

testimony included in the parties’ present Joint Pretrial Statement, to sufficiently specify the

discrete conduct upon which his hostile environment claim is based, not to mention the

timeframes applicable thereto. It is expected that the revised Joint Pretrial Statement, which by

prior order of this Court, is to be filed on March 4, 2013, will cure these defects. See Order (Jan.

31, 2013), ECF. No. [74].

The Court need not belabor the point except to note that Plaintiff cannot on the one hand

attempt to claim damages for employment induced emotional distress for a time period lasting

over six years from 2004 through 2011, see Pretrial Stmt. at 1, without subjecting himself to

cross-examination about other stress factors present in his life during that time. The Court

further notes that, among those incidents that Plaintiff does identify in his Second Amended

Complaint (the operative complaint in this action) as having occurred on a specific date, or range

of dates, more than a few are alleged to have occurred after both the dates of his purported arrest

(September 27, 2009) and alleged indictment (January 20, 2010). See Second Am. Compl. ¶ 36

(verbal assault and physical threats from a co-worker relating to a dispute about the music

playing on Plaintiff’s radio in May 2010); id. ¶ 36-37 (reprimand regarding incident described in

paragraph 36 received by Plaintiff on May 25, 2010); ¶ 38 (continual assignment to difficult and

grunt work, until and including the time of the filing of the Second Amended Complaint, on

February 22, 2011). Other “ongoing” conduct of which Plaintiff has complained apparently

continued at least until, and including, March 30, 2011, the date on which he filed his opposition

to the AOC’s summary judgment motion – which was after his March 10, 2011 trial and

conviction. See, Pl.’s Stmt. of Facts, ECF No. [43-1] ¶ 115 (“Since approximately April 2009,

when Plaintiff initiated this hostile work environment action, Plaintiff has not been assigned to

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work on desirable assignments or so called high-profile jobs … “), ¶ 116 (“Plaintiff has regularly

been assigned to paint a large storage area, which is extremely hot and lacks adequate

ventilation.”).

While the Court recognizes the high probative value of evidence regarding other stress

factors in Plaintiff’s life during the time relevant to his alleged emotional distress, the Court is

also mindful of the fact that granting the AOC free reign to question Plaintiff and Plaintiff’s

witnesses regarding all of the circumstances of Plaintiff’s alleged criminal activity runs the risk

of unfairly prejudicing Plaintiff in the jurors’ eyes as an “out of control, jealous ex-husband who

was convicted of ‘slashing his former wife’s boyfriend with a butchers’ knife.’” See Pl.’s Reply

at 2. Thus, in order to mitigate any danger of unfair prejudice, the Court shall grant the AOC its

request, subject to certain substantive limitations. See, e.g., Barber v. Malaniuk, Civ. A. No. 08-

6363, 2012 U.S. Dist. LEXIS 83099, at *21 (N.D. Ill. June 8, 2012) (denying motion for new

trial in a wrongful imprisonment case, where the court found that because evidence of a

subsequent arrest, conviction, and incarceration was highly probative insofar as the defendants

argued it was a supervening cause of the plaintiff’s alleged emotional distress, such evidence was

admissible, subject to the following limitations so as to avoid unfair prejudice: “the jury was

informed only that, after the night in question, [the] plaintiff had been convicted of an unrelated

crime and served time in prison. The defense was precluded from disclosing that [the]

[p]laintiff’s conviction was a felony conviction[.] The Court also immediately provided the jury

with a limiting instruction, immediately thereafter, stating it ‘may consider this testimony [of the

conviction] only for the limited purpose of determining the issue of emotional distress and

damages.”).

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 Accordingly, the Court, in an exercise of its discretion, shall GRANT-IN-PART and

DENY-IN-PART AOC’s request. The Court shall permit the AOC to cross-examine Plaintiff

and Plaintiff’s witnesses regarding Plaintiff’s involvement in the criminal justice system, but

such questioning shall be offered only to impeach Plaintiff on the issue of his alleged emotional

distress and shall additionally be subject to the various substantive limitations hereafter

delineated by the Court. Specifically, where appropriate based upon the scope (and timeframe)

of testimony given at trial by Plaintiff or Plaintiff’s witnesses on the issue of Plaintiff’s alleged

emotional distress, the AOC may raise on cross-examination the following matters: that on

September 27, 2009, Plaintiff was arrested for non-work related conduct; that on January 20,

2010, Plaintiff was criminally charged; that Plaintiff was tried in March 2011; and that Plaintiff

was convicted of a crime on March 10, 2011. Because the Court has been provided with no

information about the date of Plaintiff’s resignation from the Paint Shop or the dates of his

imprisonment, it declines to issue a ruling, on the record before it, as to the admissibility of the

fact of Plaintiff’s May 23, 2011 sentencing or his imprisonment. Of course, should Plaintiff

open the door by offering detail about any of these matters, the AOC may request the Court to

revisit these limitations at that time. 2 Further, before the AOC commences its cross-examination

of Plaintiff or any of Plaintiff’s witnesses who testify as to Plaintiff’s alleged emotional distress,

both parties shall have the opportunity to raise with the Court, outside of the presence of the jury,

any concerns they may have regarding the proper scope of the AOC’s inquiry into Plaintiff’s

involvement in the criminal justice system. Finally, Plaintiff may propose, and the Court shall

2
While the Court does not purport to forecast the testimony at trial, it notes – merely for
explication – that the sort of testimony which might “open the door” may include, for example,
testimony regarding the nature of the crime for which Plaintiff was charged, or testimony that,
due to his supervisors’ alleged discriminatory and retaliatory conduct, he suffered residual
emotional distress well after the date of his resignation from the Paint Shop.

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provide, a limiting instruction, alerting the jurors to the narrow purpose for which they may

consider this evidence.

2. Testimony of the Chief Clerk of the House Committee on Oversight and
Government that Plaintiff Sexually Harassed Her

The parties’ Joint Pretrial Statement indicates that Plaintiff will testify “[t]hat his

colleagues made frivolous complaints about him to the Equal Employment Opportunity and

Conciliation Programs Division, including a frivolous complaint of sexual harassment.” Pretrial

Stmt., Ex. 1, at 2. While the Pretrial Statement does not provide further detail as to the timing or

source of the alleged frivolous complaint of sexual harassment, Plaintiff’s opposition brief makes

clear that this proposed testimony refers to Plaintiff’s allegation that in early 2009, his co-

worker, Gilbert Norwood, submitted a false report to the AOC’s EEO Office that accused him of

sexually harassing women in the workplace. Pl.’s Opp’n at 6. To counter this proposed

testimony, the AOC intends to offer testimony from Linda Good, the Chief Clerk of the House

Committee on Oversight and Government, that she was sexually harassed by Plaintiff in April

2011, and that she filed a complaint regarding this alleged harassment with the EEO Office.

Def.’s Mem. at 4; Pretrial Stmt., Ex. 2, at 8. The AOC argues that such evidence is permissible

to impeach Plaintiff’s claim that Mr. Norwood’s accusations regarding Plaintiff’s harassing

conduct towards women were false. Def.’s Mem. at 4.

Plaintiff argues that this must be excluded as improper character evidence under Federal

Rule of Civil Procedure 404(b), and this Court agrees. 3 Federal Rule of Evidence 404(b) –

3
Although Plaintiff does not raise this issue in his opposition brief, the Court observes that as
part of Plaintiff’s objections to Ms. Good’s testimony asserted in the parties’ Joint Pretrial
Statement, Plaintiff also argues that Ms. Good’s testimony should be excluded because the AOC
failed to supplement its discovery responses to include the documents relating to Ms. Good. See
Pretrial Stmt., Ex. 2 at 8. Because the Court finds today that the evidence should be excluded
under Federal Rule of Civil Procedure 404(b), it need not reach the merits of Plaintiff’s
alternative argument regarding the purported inadequacy of the AOC’s discovery disclosures.

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which applies in both civil and criminal cases, Huddleston v. U.S., 485 U.S. 681, 685, 108 S. Ct

1496, 1499 (1988) – provides that “[e]vidence of a crime, wrong, or other act is not admissible to

prove a person’s character in order to show that on a particular occasion the person acted in

accordance with the character,” but “may be admissible for another purpose,” including proving

“motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack

of accident.” FED. R. EVID. 404(b)(1), (2). Importantly, the party offering the evidence need not

show that the evidence is being offered for one of the purposes specifically enumerated in the

rule. United States v. Bowie, 232 F.3d 923, 929-30 (D.C. Cir. 2000). Rather, the party need only

show that it is offered for a valid purpose other than to prove a person’s propensity to commit

similar acts. Id. at 929 (“Although the first sentence of Rule 404(b) is framed restrictively, the

rule itself is quite permissive, prohibiting the admission of [“other acts”] evidence in but one

circumstance—for the purpose of proving that a person’s actions conformed to his character.”)

(internal marks and citation omitted).

To be sure, if Plaintiff was claiming that Ms. Good’s complaint against him was false and

a component act contributing to his alleged hostile work environment, the AOC would

unquestionable be entitled to put Ms. Good on the stand. But Plaintiff has made no such claim.

Similarly, if Mr. Norwood’s complaint concerned Plaintiff’s conduct towards Ms. Good, Ms.

Good’s testimony that she was sexually harassed by Plaintiff would be permissible to impeach

Plaintiff’s claim that Mr. Norwood’s allegations against him were fabricated. But this is not the

case either. Plaintiff has unambiguously asserted, and the AOC nowhere disputes, that “Ms.

Good was not the subject of [Mr.] Norwood’s allegations to the AOC’s EEO Office in 2009.”

Pretrial Stmt., Ex. 2, at 8. See also Pl.’s Opp’n at 6. Indeed, the AOC’s own description of Ms.

Good’s testimony is limited to testimony about allegedly “inappropriate comments made to her

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by [P]laintiff in April 2011” – approximately two years after Mr. Norwood submitted his

complaint to the EEO Office. Def.’s Mem. at 4 (emphasis added); Pretrial Stmt., Ex. 2, at 8.

Given the fact that Plaintiff does not rely on Ms. Good’s complaint to support his hostile

work environment claim, nor does Mr. Norwood’s complaint appear to be based in any way on

Plaintiff’s conduct towards Ms. Good, Ms. Good’s testimony would not – and could not –

controvert Plaintiff’s claim that the earlier-in-time accusations made about him to the EEO

Office were false. Rather, the only logical value of Ms. Good’s testimony would be to show

that, because Plaintiff sexually harassed Ms. Good in 2011, he likely possessed a propensity for

harassing conduct and therefore Mr. Norwood’s allegations that Plaintiff sexually harassed other

women in the office two years prior must have been true. In other words, the only plausible use

of Ms. Good’s testimony would be to “prove [Plaintiff’s] character in order to show that on a

particular occasion [Plaintiff] acted in accordance with the character” – the single use that is

strictly prohibited by Rule 404(b).

For the foregoing reasons, and based on the present record, the AOC’s request that the

Court permit it to present testimony from Ms. Good that Plaintiff sexually harassed her is

DENIED. Of course, the AOC remains free to offer, as it intends to do, impeachment testimony

from Mr. Norwood himself regarding Mr. Norwood’s personal observations of Plaintiff’s sexual

harassment of women at work (which, as understood by the Court, does not include Plaintiff’s

conduct towards Ms. Good) in order to discredit Plaintiff’s contention that Mr. Norwood’s

allegations against him were fabricated. See Pretrial Stmt., Ex. 2, at 7.

3. Evidence Regarding the Tonda Cave Investigation

Among the evidence Plaintiff intends to offer in support of his hostile work environment

claim is evidence of the AOC’s alleged instigation of an intimidating investigation into a

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“troublemaker” in the Paint Shop. Specifically, in his Second Amended Complaint, Plaintiff

alleges that:

In late December 2006 or early January 2007, then Assistant Superintended of the
Architect of the Capitol, Robert Gleich, informed Tonda Cave, a Senior Human
Resources Specialist who typically handled disciplinary actions, that there was a
‘troublemaker’ in the Paint Shop and that an investigation should be launched with a
stated goal of intimidating the ‘troublemaker’ into ceasing his allegedly ‘disruptive’
activities. The alleged troublemaking was found to be [Plaintiff.]. His ‘troublemaking’
was his formal and informal complaints of discrimination and retaliation.

Second Am. Compl. ¶ 22.

The AOC moves to preclude all evidence about the “Tonda Cave” investigation on the

grounds that during Plaintiff’s deposition, Plaintiff “admi[tted] that he only learned the facts

leading him to believe that the investigation was targeted at a troublemaker in the Paint Shop as a

result of discovery in [an earlier civil] case.” 4 Def.’s Mem. at 5. The AOC argues that because

none of Plaintiff’s deposition testimony supports a finding that, at the time of the investigation,

Plaintiff believed the investigation to be directed at him, the investigation could not constitute

evidence of a workplace that was “permeated with discrimination, ridicule and insult that is

sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an

abusing working environment,” as is required to sustain a hostile work environment claim. Id. at

6 (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)). Put differently, the AOC

argues, Plaintiff cannot recover damages for the Tonda Cave investigation because any

emotional pain and suffering Plaintiff may have experienced as a result of learning about the

purpose of the investigation constitutes unrecoverable “litigation-induced stress” resulting from

discovery in his earlier employment discrimination case – not from his experiences at work. Id.

4
The AOC refers here to a separate action brought by Plaintiff against the AOC in this Court,
which was litigated through the summary judgment stage and dismissed. See Herbert v. Architect
of Capitol, 766 F. Supp. 2d 59 (D.D.C. 2011). Herbert elected not to appeal the Court’s decision
in that case.

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at 7. Further, the AOC argues, for the first time on reply, that permitting Plaintiff to pursue the

Tonda Cave investigation at trial would add at least three witnesses and multiple exhibits, and

would also present a substantial risk of confusing the jury by diverting its attention from the

claims before it. Def.’s Reply at 7.

The Court finds the foregoing arguments unavailing. First, to the extent the AOC argues

that evidence concerning the Tonda Cave investigation is irrelevant because Plaintiff did not

learn that he was the target of such investigation until well after it had concluded, such position

lacks sufficient support in the record to warrant a pretrial evidentiary ruling. The Court finds

inadequate AOC’s reliance on Plaintiff’s perceptibly equivocal statements that he “later on

learned … what [Ms. Cave] was doing” as a result of discovery in the prior law suit, see Def.’s

Mem. at 5-6, especially when viewed within the broader context of several other statements

indicating that Plaintiff was not only aware of the investigation at the time it was conducted but

also had reason, based upon information contemporaneously relayed to him by coworkers whom

Ms. Cave had questioned about Plaintiff, to believe that the investigation was targeted at him.

See, e.g., Pl.’s Opp’n, Ex. 6 (Feb. 16, 2011 Herbert Dep. Excerpts), at 70-71; id, Ex. 7 (Oct. 21,

2008 Herbert Dep. Excerpts), at 60-62. Any inconsistencies that exist between Plaintiff’s

deposition testimony and his testimony at trial regarding Plaintiff’s perception of, and alleged

injury resulting from, the Tonda Cave investigation are fodder for cross-examination at trial and

shall go to the weight that the jury attaches to Plaintiff’s claims about the investigation – not to

whether evidence about the investigation is admissible.

Second, to the extent the AOC argues that, even if relevant, evidence regarding the Tonda

Cave investigation should be precluded pursuant to Federal Rule of Evidence 403, see Def.’s

Reply at 7, it is well-established that the Court need not consider arguments raised for the first

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time on reply. See Baloch v. Norton, 517 F. Supp. 2d 345, 348 n.2 (“If the movant raises

arguments for the first time in his reply to the non-movant’s opposition, the court [may] either

ignore those arguments … or provide the non-movant with an opportunity to respond.”), aff’d,

550 F.3d 1191 (D.C. Cir. 2008). Further, even if the Court were to consider the argument, it

would not warrant a different result based upon the present record. Evidence of an investigation

by an employer, purportedly intended to discourage an employee from asserting complaints of

discrimination and retaliation, would unquestionably be probative of said employer’s liability on

a hostile work environment claim. Testimony from those who instigated or conducted such an

investigation, or presentation of exhibits relating to the investigation, would be highly relevant to

Plaintiff’s claim and as such can hardly be said to be unnecessary or a waste of time. Further,

the AOC has failed to explain why presenting evidence directly pertinent to a component act of

Plaintiff’s hostile work environment claim would “divert” the jury’s attention from the claims

before it. The Court notes, however, that to the extent the testimony, as it unfolds at trial,

provides significantly stronger support for the AOC’s position that Plaintiff did not, and could

not, have perceived the investigation as offensive at the time it was occurring, and that the

evidence is otherwise irrelevant to Plaintiff’s claims, the AOC may request that the Court revisit

the admissibility of evidence concerning the Tonda Cave investigation at that time.

For the foregoing reasons, and based on the present record, the AOC’s request that the

Court exclude evidence regarding the Tonda Cave investigation is DENIED. 5 However,

5
The Court pauses to note that this holding, based on the present record, should in no way be
viewed as inconsistent with the Court’s holding in Herbert, 766 F. Supp. 2d 59, which granted
the AOC summary judgment on Plaintiff’s claims that the AOC discriminated and retaliated
against him by conducting the Tonda Cave investigation. There, the Court dismissed Plaintiffs
retaliation and discrimination claims relating to the investigation on the basis that no reasonable
fact finder could find that the investigation was sufficiently adverse to support Plaintiff’s claims
for discrimination or retaliation. Id. at 79. As the Court has previously explained: “[T]o the
extent the Court determined that these claims were not sufficiently adverse to be actionable

15
Plaintiff is cautioned that his testimony regarding the Tonda Cave investigation must be limited

to his experience and personal knowledge at the time of the investigation. Plaintiff may not

testify as to information he learned about the investigation through subsequent civil discovery. 6

4. Evidence Regarding Discipline Given to Calogero DiPasquale

The AOC’s fourth request need not detain the Court for long. The AOC objects to the

admission of evidence and testimony that Plaintiff seeks to offer about the AOC’s discipline of

Calogero DiPasquale, a white male who also worked as a painter in the Paint Shop during

Plaintiff’s tenure at the AOC and whom Plaintiff argues was not disciplined for conduct that was

similar to the alleged conduct for which Plaintiff was disciplined. The Court finds the AOC’s

briefing regarding this category of evidence, comprised of only five short sentences, wholly

inadequate. The AOC does no more than cursorily assert as follows:

“At least thirteen of [P]laintiff’s proposed exhibits relate to DiPasquale, and they are
documents that were obtained during discovery. Apparently, [P]laintiff intends to offer
these exhibits to prove that DiPasquale, who is white, received more favorable treatment
than did [P]laintiff. This is not, however, evidence that [P]laintiff was subjected to a
hostile work environment. The only evidence relevant to that claim is evidence about
events that [P]laintiff endured in the workplace, not matters he later discovered via
discovery in civil actions.”

Def.’s Mem. at 7.

As Plaintiff appropriately replies, the AOC fails to grasp the purpose for which Plaintiff

offers this evidence. Pl.’s Opp’n at 10. It is well-settled that evidence that bears no connection

to the plaintiff’s protected status cannot support a hostile work environment claim. Harris v.

Wackenhut Servs., Inc., 419 F. App’x 1, 2 (D.C. Cir. 2011) (per curiam) (citing, inter alia,

standing alone, a different conclusion may be reached when they are considered collectively in
the context of his hostile work environment claim.” Herbert, 839 F. Supp. 2d 284, 299.
6
Although neither party raised the issue in their briefing, the Court deems it necessary to clarify
that this restriction on Plaintiff’s testimony should not be viewed as precluding counsel’s
presentation – upon laying a proper foundation at trial – of evidence, if any, that was obtained
through discovery that may be relevant to the AOC’s allegedly discriminatory and/or retaliatory
intent against Plaintiff in instigating and conducting the investigation.

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Richardson v. N.Y. State Dep’t of Corr. Serv., 180 F.3d 426, 440 (2d Cir. 1999)). Here, Plaintiff

contends that the fact that Mr. DiPasquale (who is Caucasion and who had not filed any

complaint with the EEO Office) was not disciplined for conduct that was similar to the alleged

conduct for which Plaintiff was disciplined demonstrates that the alleged hostile conduct directed

at Plaintiff was on the basis of his race and/or protected activity. Pl.’s Opp’n at 10-11. On reply,

the AOC does no more than repeat – nearly verbatim – the cursory argument asserted in its

opening memorandum, with the addition of an equally conclusory assertion that “the relevance

of the discipline given to DiPasquale must be based on the contention that the incident involving

him was of the same magnitude as the incident for which Plaintiff was disciplined” and because

“[t]he incidents were quite different[,] [t]he DiPasquale evidence should be excluded.” Def.’s

Reply at 8. Lamentably, the AOC fails to even identify the relevant incidents, not to mention to

explain why they were so “different.” As Plaintiff’s likewise conclusory assertion in its

opposition regarding the AOC’s failure to discipline DiPasquale for “similar” conduct is equally

unhelpful, the Court is left with no factual or legal content upon which to assess the evidence.

The Court declines to sift through the voluminous record in this case to make the AOC’s

arguments for it when it has chosen not to specify the grounds for its challenge or attach the

relevant documents to the present pleading. Accordingly, the Court declines to make any ruling

at this time regarding the admissibility of evidence regarding discipline given to Mr. DiPasquale.

For the foregoing reasons, and based on the present record, the AOC’s request that the

Court exclude evidence regarding Calogero DiPasquale is DENIED.

5. Plaintiff’s Request that the Court Seat a Jury of Twelve

The AOC requests that the Court seat a jury of twelve members, arguing that recent

scholarly studies have shown that a jury of twelve is superior in small-group decision-making to

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a jury of six, as well as resulting in a jury that better reflects the diversity of the community.

Def.’s Mem. at 8-9. Plaintiff counters that, in light of the administrative and judicial efforts

involved with managing a jury of twelve, the Court should seat a jury of eight members (two of

whom shall be alternates). Pl.’s Opp’n at 11.

Preliminarily, the Court observes that a request regarding the number of jurors to be

seated by the Court is not the proper subject of a motion in limine, the purpose of which is “to

narrow the evidentiary issues for trial and to eliminate unnecessary trial interruptions.” Graves

v. District of Columbia, 850 F. Supp. 2d 6, 11 (D.D.C. 2011) (citing Bradley v. Pittsburgh Bd. Of

Educ., 913 F.2d 1064, 1070 (3d Cir. 1990)) (emphasis added). Furthermore, the parties have

failed to explain why this case calls for management different to that of any other civil trial

before this Court. Federal Rule of Civil Procedure 48(a) provides that “[a] jury must begin with

at least 6 and no more than 12 members, and each juror must participate in the verdict unless

excused under Rule 47(c).” Therefore, there are no alternate jurors. In accordance with Rule

48(a), the Court shall seat a jury of nine members.

Accordingly, the AOC’s request that the Court seat a jury of twelve members is

DENIED.

6. Acts that Allegedly Contributed to the Creation of the Hostile Work Environment Not
Referred to in the Joint Pretrial Statement

Finally, the AOC raises a challenge to the following description of Plaintiff’s claims, set

forth in the parties’ Joint Pretrial Statement:

[Plaintiff] claims that he has been subjected to an ongoing hostile environment based on
his race and prior protected activity and that the hostile environment included, but was
not limited to: …

Def’s Mem. at 9-10 (citing Pretrial Stmt. at 3 (emphasis added)).

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 Specifically, the AOC argues that “the time has past [sic] for [P]laintiff to add to the

events that he contends created the hostile work environment” and requests that the Court

preclude Plaintiff from presenting at trial any evidence of acts that allegedly contributed to the

creation of the hostile work environment other than those specified in the present Joint Pretrial

Statement. Id. In response, Plaintiff asserts that he has identified the relevant incidents at play in

the pretrial statement, responses to discovery, and his Second Amended Complaint (and the

Court shall add, in his submissions in response to the AOC’s summary judgment motion). Pl.’s

Opp’n at 12. Plaintiff acknowledges that he may not surprise the AOC with “significant

additional claims” at trial, but also asserts, correctly, that the Pretrial Scheduling and Procedures

Order issued in this case required Plaintiff to provide only “a sufficiently detailed description of

the factual and legal basis for each claim to provide Defendant[] and the Court with notice of the

contours of each individual claim[.]” Pl.’s Opp’n at 11-12; Order (May 31, 2012), ECF No. [54],

at 2.

The Court finds the AOC’s sweeping objection to potential testimony about “other

unspecified acts” too speculative and imprecise to warrant an evidentiary ruling on the record

before it. However, the AOC’s concerns are not lost on the Court. While it is true that when it

comes to claims for hostile work environment, a plaintiff is not required to plead in exhaustive

detail each and every component act, he must still set forth enough factual content to provide the

defendant with fair notice of his claim. Graves, 777 F. Supp. 2d 109, 121. Especially at this late

stage in the litigation, Plaintiff should have been able to set forth with sufficient particularity in

the Joint Pretrial Statement each of the component acts on which he intends to rely, so as not to

ambush the AOC with testimony about previously undisclosed factual allegations at trial.

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 For the foregoing reasons, the AOC’s broad request that the Court preclude Plaintiff from

presenting at trial any evidence of acts that allegedly contributed to the creation of the hostile

work environment other than those specified in the parties’ Joint Pretrial Statement is DENIED-

WITHOUT-PREJUDICE. However, in an effort to avoid unfair surprise at trial, the Court

shall, at the parties’ upcoming pretrial conference, based on the revised Joint Pretrial Statement

to be filed by March 4, 2013, entertain specific concerns about (and discuss the Court’s

expectations regarding) Plaintiff’s presentation of his hostile work environment claim.

B. Plaintiff’s Motion in Limine

Plaintiff’s motion in limine requests that the Court preclude the AOC from offering the

following four categories of testimony or other evidence: (1) “Evidence that [Plaintiff] was

convicted of misdemeanor battery; (2) Evidence that the AOC’s contract hearing officer upheld

the two reprimands; (3) Evidence that the [AOC] Concurred with the Reprimand; (4) Evidence

that [Plaintiff’s] supervisors have retired from the [AOC].” Pl.’s Mot. at 1.

Because the Court has already resolved the parties’ dispute regarding evidence of

Plaintiff’s criminal conviction, see supra Part II.A.1, it need not address the first category of

evidence. The Court shall turn, then, to the remaining three categories.

1. Evidence that the AOC’s Contract Hearing Officer Upheld the Issuance of Two
Reprimands Against Plaintiff and Evidence of the AOC’s Concurrence with the
Reprimands.

The Court shall address together Plaintiff’s second and third categories of challenged

evidence, as they relate to the same underlying factual allegations. Among the component acts

of Plaintiff’s hostile work environment claim are “two unsupported reprimands.” Pretrial Stmt.

at 3. Regarding the first of these purportedly unsupported reprimands, Plaintiff’s Second

Amended Complaint alleges the following:

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 On January 9, 2007, Mr. Williams [Plaintiff’s then supervisor] proposed to officially
reprimand [Plaintiff] for 1) failing to perform assigned duties and 2) using
inappropriate language in the workplace. … Subsequently, on May 10, 2007, the
[AOC] – by and through Frank Tiscione (Superintendent of the House Office
Buildings) – issued his concurrence of the decision to reprimand [Plaintiff]. On or
about June 18, 2007, the [AOC] – by and through Stephen Ayers (the Acting Architect
of the Capitol) – upheld the issuance of the Reprimand and the Letter of Reprimand
was formally issued to [ ] Plaintiff.

Second Am. Compl. ¶ 21.

Regarding the second reprimand, Plaintiff alleges:

On May 1, 2010, one of [Plaintiff’s] coworkers (one of the coworkers who accused him
of sexual harassment) verbally assaulted him and threatened him physically because he
was annoyed with the music that [Plaintiff] was playing on his personal radio.
[Plaintiff] remained calm during the tirade … On May 25, 2010, Shop Supervisor Ed
Williams initiated action to discipline [Plaintiff]. On information and belief, the [AOC]
took no disciplinary action against the employee who had berated and threatened
[Plaintiff]. … The Superintendent of the House Office Buildings concurred with the
letter of reprimand against [Plaintiff].

Second Am. Compl. ¶¶ 36-37.

To respond to these allegations, the AOC intends to offer as exhibits at trial the

recommendations by Mr. Williams to issue the reprimands, the concurrences by the Supervisors

of the House Office Buildings, and the formal letters of reprimand that were issued by the AOC

on June 15, 2007 and August 4, 2010, upon the AOC’s review of a report of findings and

recommendations of a hearing officer to whom the proposed reprimands were referred. The

AOC does not intend to offer the hearing officers’ reports; nor does it intend to call the hearing

examiners as witnesses at trial. Def.’s Opp’n at 3-5. Accordingly, the Court need not reach the

merits of Plaintiff’s request to preclude the AOC from offering into evidence the hearing

officers’ reports or testimony.

Plaintiff moves to exclude the AOC’s letters approving Mr. Williams’ proposals to

reprimand and the Superintendent’s concurrences. See Pl.’s Mem. at 11-12; Pl.’s Reply at 4.

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The first argument Plaintiff makes in support of exclusion of the AOC’s approval letters is that

the letters are irrelevant because “it is not the language used in the reprimand that makes the

disciplinary action a part of the hostile environment” but rather “the fact that the discipline was

proposed and imposed for no legitimate reason.” Pl.’s Mem. at 11-12. The Court finds this first

argument untenable and frankly, a waste of the parties’ time and the Court’s limited resources.

Putting aside the fact that Plaintiff’s Second Amended Complaint specifically references the

AOC’s decision to uphold one of the reprimands, see Second Am. Compl. ¶ 21 – which is in

itself indicative that Plaintiff’s arguments regarding relevance are not only erroneous but also

disingenuous – the Court agrees with the AOC that the letters are relevant to the issue of whether

the process by which the formal reprimands were issued, and the language used therein,

demonstrates a hostile working environment (or the lack thereof). See Def.’s Opp’n at 6-7.

Plaintiff also argues that the letters should be excluded as unfairly prejudicial pursuant to

Federal Rule of Evidence 403 because the letters refer to the use of a hearing officer to examine

the proposed reprimands. Pl.’s Mem. at 9-11. Specifically, Plaintiff argues that the fact that an

independent hearing officer may have found the reprimands warranted, after Plaintiff had already

received the informal reprimand letters from his direct supervisor, would mislead the jury into

thinking that the reprimands were legitimate and free of retaliatory and/or discriminatory animus

simply because the hearing officers upheld them. Pl.’s Mem. at 9-11. Plaintiff further explains

that because the hearing officers conducted only a “substantial evidence” review, and the process

did not permit Plaintiff to present witnesses or to challenge the credibility of those AOC officials

who were responsible for discipline, the presentation of the AOC’s letters referencing the use of

a hearing officer would give the jury a “false impression that a thorough independent

investigation and hearing resulted in a determination that the reprimands were justified and

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appropriate.” Id.; Reply at 4. Finally, Plaintiff contends that to the extent the Court permits

introduction of the AOC formal reprimand letters (or any other testimony referencing the hearing

officers’ decisions) at trial, Plaintiff would be compelled to “launch a mini-trial” regarding the

hearing officer’s review process in order to demonstrate that the hearing officer did not consider

the available evidence of discrimination and retaliation. Pl.’s Mem. at 11. In his opening brief,

Plaintiff requests that in the event the Court denies his request to exclude the evidence, the Court

permit him to call Marguerite Donnelly, the hearing officer. Id. Plaintiff adds a litany of

additional proposed rebuttal evidence and witnesses in his reply brief, including the Architect

himself and the Chief of the Employee Labor Relations Branch for the AOC. Pl.’s Reply at 5.

For reasons already stated, the Court finds that the AOC’s approval letters are of

significant probative value with respect to Plaintiff’s claims that the AOC’s two reprimands were

among the acts that contributed to the allegedly hostile work environment. The Court also finds

that any danger that the jury may misinterpret the letters’ reference to hearing officer reports

could easily be alleviated through the use of stipulations, reasonable inquiry on cross-

examination, and/or a limiting instruction. Because Plaintiff waited until his reply to specify the

various categories of evidence that he would proffer to counter the introduction of the AOC’s

approval letters, the AOC has had no occasion to submit its views as to the admissibility of such

evidence.

In view of the foregoing considerations, and based on the present record, the Court shall

DENY Plaintiff’s request to exclude the formal letters of reprimand that were issued by the AOC

on June 15, 2007 and August 4, 2010. The parties shall meet and confer to attempt to reach an

agreement regarding the use of additional evidence, stipulations, and/or limiting instructions to

mitigate the potential for any unfair prejudice that might result from the letters’ reference to the

23
use of hearing officers. The parties shall be prepared to discuss these matters with the Court at

the upcoming pretrial conference.

2. Evidence of Plaintiff’s Supervisors’ Retirement from the AOC

Lastly, Plaintiff moves for an order prohibiting the AOC from raising at trial the fact that

any supervisors in Plaintiff’s chain of command, including former Paint Shop Supervisor, Edwin

Williams; former Assistant Superintendent, Robert Gleich; and former Superintendent, Frank

Tiscione, have retired from the AOC. Pl.’s Mem. at 13. Plaintiff argues, in an utterly conclusory

fashion, that exclusion of such evidence is warranted under Federal Rule of Evidence 401

because it is not relevant to any of Plaintiff’s claims or the AOC’s defenses. Id. Plaintiff also

argues that the evidence should be excluded as unfairly prejudicial under Federal Rule of

Evidence 403 because there exists a “significant danger” that, in a “close case,” “even a

reasonable juror might take incorrectly … the fact that the responsible officials’ have retired into

consideration when determining the [AOC’s] liability and/or Plaintiff’s damages,” for example,

by finding the AOC liable “simply because the supervisor is no longer in a position to

discriminate or retaliate against employees” or by “sympathiz[ing] with the supervisor(s) due

solely to the fact that they have retired.” Id.

Plaintiff provides no further explication and cites no legal authority – none – in support

of its request. In the Court’s view, evidence of the dates of each supervisor’s tenure at the AOC

provides a helpful and necessary context for the jury’s understanding of the timeline of events at

issue in the case. Further, as the jury will be specifically instructed as to the elements required

for a finding of liability, Plaintiff’s ill-defined concerns regarding the jurors’ potential reactions

to the mere fact of a particular AOC official’s retirement is speculative and simply

unsubstantiated.

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 Accordingly, for the foregoing reasons, the Court shall DENY Plaintiff’s request for an

order precluding the AOC from raising at trial the fact that any supervisors in Plaintiff’s chain of

command have retired from the AOC.

III. CONCLUSION

For the foregoing reasons, the Court shall DENY Plaintiff’s [62] Motion in Limine and

GRANT-IN-PART and DENY-IN-PART the AOC’s [65] Motion in Limine.

An appropriate order accompanies this Memorandum Opinion.

_____ /s/_____________ ____
COLLEEN KOLLAR-KOTELLY
United States District Judge

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