Nunnally v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

____________________________________
)
RONDA NUNNALLY, )
)
Plaintiff, )
)
v. ) Civil Action No. 08-1464 (PLF)
)
DISTRICT OF COLUMBIA, )
)
Defendant. )
____________________________________)

OPINION

This matter is before the Court on both parties’ Objections to Magistrate Judge

Deborah A. Robinson’s Report and Recommendation, issued on December 19, 2013. Magistrate

Judge Robinson recommended that the Court grant defendant’s motion for summary judgment

on a subset of plaintiff Ronda Nunnally’s claims under Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. § 2000e et seq., the District of Columbia Human Rights Act (“DCHRA”),

D.C. CODE § 2-1401.01 et seq. (2012 Repl.), and the District of Columbia Whistleblower

Protection Act (“DCWPA”), D.C. CODE § 1-615.51 et seq. (2012 Repl.), but that it deny the

motion in all other respects. Magistrate Judge Robinson further recommended that the Court

grant in part Nunnally’s motion for sanctions against the District of Columbia associated with its

spoliation of evidence, grant Nunnally’s request for an adverse inference and deny any further

sanctions. Both parties filed written Objections.

After careful consideration of the parties’ papers, the relevant legal authorities,

and the entire record in this case, the Court overrules almost all of the parties’ Objections and

affirms Magistrate Judge Robinson’s Report and Recommendation (“R&R”) in almost all
respects. The Court therefore affirms in part and reverses in part Magistrate Judge Robinson’s

R&R, grants in part and denies in part the District of Columbia’s motion for summary judgment,

and grants in part and denies in part Nunnally’s motion for sanctions. 1

I. FACTUAL AND PROCEDURAL BACKGROUND

The Court fully adopts Magistrate Judge Robinson’s thorough recitation of the

facts in her R&R, see R&R at 2-7, and recounts here only those facts necessary to clarify on

which claims Nunnally will be permitted to proceed to trial. 2 In 2004, Nunnally was a

Lieutenant in the District of Columbia Metropolitan Police Department (“MPD”), serving in

MPD’s Office of the Chief Information Officer. Plaintiff’s Statement of Additional Material

1
The papers considered in connection with the pending motions include: Fourth
Amended Complaint (“Am. Compl.”) [Dkt. 55]; the District of Columbia’s motion for summary
judgment [Dkt. 98]; Nunnally’s motion for sanctions [Dkt. 102]; the District of Columbia’s
opposition to Nunnally’s motion for sanctions [Dkt. 108]; Nunnally’s opposition to the District
of Columbia’s motion for summary judgment [Dkt. 109]; Nunnally’s reply in support of her
motion for sanctions [Dkt. 113]; the District of Columbia’s reply in support of its motion for
summary judgment [Dkt. 115]; Magistrate Judge Robinson’s R&R [Dkt. 127]; the District of
Columbia’s Objections (“Def. Obj.”) [Dkt. 130]; Nunnally’s Objections (“Pl. Obj.”) [Dkt. 131];
Nunnally’s opposition to the District of Columbia’s Objections [Dkt. 134]; the District of
Columbia’s opposition to Nunnally’s Objections [Dkt. 135]; the District of Columbia’s reply in
support of its Objections [Dkt. 137]; and Nunnally’s reply in support of her Objections [Dkt.
138].
2
The District of Columbia failed to provide with its summary judgment motion “a
statement of material facts as to which the moving party contends there is no genuine issue” as
Local Civil Rule 7(h)(1) requires, and Magistrate Judge Robinson therefore chose to rely entirely
on Nunnally’s statement of facts. R&R at 2 n.1. The District of Columbia’s so-called statement
of material facts affirmatively disputes how Nunnally frames the facts in her complaint, see, e.g.,
the District of Columbia’s Statement of Additional Material Facts (“Defs. SMF”) ¶¶ 18(c)(i),
18(d)(i), 18(e)(i), 19(a), 21(a), 22(a), 23(a), 25(a), 27(a), 28(a), 31(a) [Dkt. 98-2], and
characterizes Nunnally’s complaint as “alleg[ing]” certain facts. See, e.g., id. at ¶ 12. Magistrate
Judge Robinson properly exercised her discretion to disregard this statement by the District of
Columbia as noncompliant with Local Civil Rule 7(h)(1). The Court therefore overrules the
District of Columbia’s Objection to the contrary. See Husain v. Smith, No. 15-0708, 2016 WL
4435177, at *8 (D.D.C. Aug. 19, 2016) (“When a movant fails to provide this statement, the
Court is not obligated to do the legwork for the moving party . . . .”).

2
Facts (“Pl. SMF”) ¶ 35 [Dkt. 109-1]. Nunnally filed a complaint with MPD alleging sexual

harassment and discrimination on the basis of sex against her then-supervisor, Philip Graham.

Id. The claims in this case, however, stem only from the alleged retaliation against Nunnally in

response to that and subsequent complaints of harassment and discrimination. Importantly,

Nunnally’s claims are predicated not just upon retaliation in response to her sexual harassment

complaint against Graham, but also on continued retaliation in response to her subsequent

complaints about the conditions of her employment at MPD. As noted, her retaliation claims are

brought under Title VII of the Civil Rights Act of 1964, the DCHRA, and the DCWPA.

The Court understands from Nunnally’s Fourth Amended Complaint and her

Statement of Additional Material Facts that she alleges the following 12 instances of retaliation

or adverse employment action, in chronological order: (1) her May 2005 assignment to a utility

closet as an office, see Fourth Am. Compl. ¶ 29; Pl. SMF ¶ 43; (2) her November 2005 exclusion

from MPD headquarters, see Fourth Am. Compl. ¶ 36; (3) being denied the opportunity to select

her subordinates in May 2006, see Fourth Am. Compl. ¶ 37; Pl. SMF ¶ 81; (4) being denied the

ability to supervise the MPD Electronic Surveillance Unit in January 2007, see Fourth Am.

Compl. ¶ 47; Pl. SMF ¶ 87; (5) her reassignment to MPD’s First District in January 2007; see

Fourth Am. Compl. ¶ 47; Pl. SMF ¶ 89; (6) being required to report to the First District weekly

while on sick leave in January 2007, see Fourth Am. Compl. ¶ 48; Pl. SMF ¶¶ 89-94; (7) the

confiscation of her MPD vehicle in January 2007, see Fourth Am. Compl. ¶ 51; Pl. SMF ¶ 96;

(8) the denial of her sick, annual, and family medical leave between 2007 and 2009, see Fourth

Am. Compl. ¶ 60; Pl. SMF ¶ 121 (citing Pl. Opp. Summary Judgment at Ex. 7 ¶ 27 [Dkt. 109-

9]); (9) her placement on AWOL status in July 2007, see Fourth Am. Compl. ¶ 61; (10) the delay

of her workers’ compensation and retirement board hearings between May 2007 and July 2008,

3
see Fourth Am. Compl. ¶¶ 25, 64, 66, 68; Pl. SMF ¶¶ 127, 129; (11) her forced retirement on

disability in June 2009, see Pl. SMF ¶ 129 (citing Pl. Opp. Summary Judgment at Ex. 57 [Dkt.

109-59]); and (12) MPD advising prospective employers after June 2009 that it had fired

Nunnally. See Pl. SMF ¶ 128 (citing Pl. Opp. Summary Judgment at Ex. 7 ¶ 29 [Dkt. 109-9]).

Magistrate Judge Robinson recommended granting summary judgment for the

District of Columbia on Nunnally’s Title VII and DCHRA retaliation claims based on adverse

employment actions numbers 6 and 10, R&R at 21-23, but allowing Nunnally to proceed to trial

on all other claims. In addition, Magistrate Judge Robinson limited the scope of Nunnally’s

DCWPA claim to retaliation (1) that occurred after May 7, 2008, because of the DCWPA statute

of limitations, id. at 29, and (2) for claims after that date to those where the protected disclosures

were a contributing factor in the employer’s adverse employment actions. Id. at 31. 3 Finally,

Magistrate Judge Robinson granted Nunnally’s motion for discovery sanctions, finding that an

adverse inference was appropriate at trial because Nunnally had adduced sufficient evidence to

show that MPD failed to preserve potentially relevant email records and that MPD understood

that it had a duty to preserve records in anticipation of this litigation. Id. at 37-38. Magistrate

Judge Robinson left the specific form of the adverse inference instruction, if any, for this Court

to determine at the time of trial. Id. at 39

3
The result of Magistrate Judge Robinson’s statute of limitations analysis is that
Nunnally’s DCWPA claim is limited to adverse employment actions 8, 10, 11, and 12 listed
above because those are the only ones that occured after May 7, 2008. While adverse
employment action 10 stretches to July 2008, Magistrate Judge Robinson had already
recommended granting summary judgment for the District of Columbia on that DCWPA theory
for lack of causation. R&R at 21.
4
 II. STANDARD OF REVIEW

A party may seek review of a magistrate judge’s decision by filing an Objection

pursuant to Rule 72 of the Federal Rules of Civil Procedure. Both parties filed Objections to

Magistrate Judge Robinson’s R&R regarding (1) the District of Columbia’s motion for summary

judgment under Rule 56 of the Federal Rules of Civil Procedure, and (2) Nunnally’s motion for

sanctions. Where, as here, a party files written objections to any part of a magistrate judge’s

R&R with respect to a dispositive matter, the Court considers de novo those portions of the

recommendation to which objections have been made, and “may accept, reject, or modify the

recommended disposition; receive further evidence; or return the matter to the magistrate judge

with instructions.” FED. R. CIV. P. 72(b)(3). The Court therefore reviews the Objections related

to the Magistrate Judge Robinson’s resolution of the District of Columbia’s motion for summary

judgment de novo.

A magistrate judge’s determination on a non-dispositive matter is entitled to

“great deference,” and the Court will set it aside only if it is “clearly erroneous or contrary to

law.” FED. R. CIV. P. 72(a); see also LOC. CIV. R. 72.2(c); Beale v. District of Columbia, 545 F.

Supp. 2d 8, 13 (D.D.C. 2008). The district court reviews Objections to the magistrate judge’s

factual findings or discretionary decisions for clear error. Am. Ctr. for Civil Justice v. Ambush,

794 F. Supp. 2d 123, 129 (D.D.C. 2011). Under this standard, the Court will affirm the

magistrate judge’s factual findings or discretionary decisions unless the court “is left with the

definite and firm conviction that a mistake has been committed.” Neuder v. Batelle Pac. Nw.

Nat’l Lab., 194 F.R.D. 289, 292 (D.D.C. 2000) (quoting United States v. U.S. Gypsum Co., 333

U.S. 364, 365 (1948)). By contrast, the “contrary to law” standard requires the Court to review

the magistrate judge’s legal conclusions — including any asserted misapplication of the relevant

5
statutes, case law, and rules of procedure — de novo. Intex. Rec. Corp. v. Team Worldwide

Corp., 42 F. Supp. 3d 80, 86 (D.D.C. 2013); see Am. Ctr. for Civil Justice v. Ambush, 794 F.

Supp. 2d at 129.

The Court notes that, although Nunnally requested a default judgment sanction in

her motion, see Sanctions Mot. at 15 [Dkt. 102], such a request does not transform her non-

dispositive motion into a dispositive one because Magistrate Judge Robinson did not enter, or

recommend entering, a default judgment. “The critical issue here is what sanction the magistrate

judge actually imposes, rather than the one requested by the party seeking sanctions.” CHARLES

ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, 12 FED. PRAC. & PROC. CIVIL § 3068.2

(2d ed. April 2016). “Even though a movant requests a sanction that would be dispositive, if the

magistrate judge does not impose a dispositive sanction the order falls under Rule 72(a) rather

than Rule 72(b).” Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1519-20 (10th Cir. 1995).

III. DISCUSSION

A. Claim and Issue Preclusion

A threshold question is whether Nunnally’s prior case in the District of Columbia

courts has claim or issue preclusion consequences for her claims here. See generally Nunnally v.

Graham, 56 A.3d 130 (D.C. 2012). Magistrate Judge Robinson could not “determine which

claims were resolved by the jury in the Superior Court action.” R&R at 16-17. But even if she

had been able to do so, she said she would have found no issue or claim preclusion because the

Superior Court action focused only on Graham’s conduct during 2003-04, while the present case

does “not share the same nucleus of facts” and focuses on “other employees of MPD, from 2004

through 2009.” Id. at 18. Magistrate Judge Robinson did not evaluate the preclusive effect of

the Superior Court’s ruling on a District of Columbia motion in limine because “the court’s order

6
was in the form of an oral ruling . . . and neither party has offered the transcript as an exhibit.”

Id. at 19 n.7.

The doctrine of claim preclusion “holds that a judgment on the merits in a prior

suit bars a second suit involving identical parties or their privies based on the same cause of

action.” Apotex, Inc. v. FDA, 393 F.3d 210, 217 (D.C. Cir. 2004). “The District of Columbia,

like the majority of jurisdictions, has adopted the Second Restatement’s transactional approach

under which a cause of action, for purposes of claim preclusion, comprises all rights of the

plaintiff to remedies against [the defendant] with respect to all or any part of the transaction, or

series of connected transactions, out of which the action arose.” Stanton v. District of Columbia

Court of Appeals, 127 F.3d 72, 78 (D.C. Cir. 1997) (citations and internal quotation marks

omitted). Whether two claims are the same “‘turns on whether they share the same nucleus of

facts.’” Nat’l Res. Def. Council v. EPA, 513 F.3d 257, 261 (D.C. Cir. 2008) (quoting Apotex,

Inc. v. FDA, 393 F.3d at 217).

Likewise, the doctrine of issue preclusion or collateral estoppel commands that

“‘once a court has decided an issue of fact or law necessary to its judgment, that decision may

preclude relitigation of the issue in a suit on a different cause of action involving a party to the

first case.’” United States v. All Assets Held at Bank Julius, --- F. Supp. 3d ----, 2017 WL

90658, at *7 (D.D.C. Jan. 10, 2017) (quoting Yamaha Corp. of Am. v. United States, 961 F.2d

245, 254 (D.C. Cir. 1992)). “Issue preclusion applies if three conditions are met: ‘First, the

issue must have been actually litigated, that is, contested by the parties and submitted for

determination by the court. Second, the issue must have been actually and necessarily

determined by a court of competent jurisdiction in the first . . . [case]. Third, preclusion in the

7
second . . . [case] must not work an unfairness.’” Id. (quoting Otherson v. Dep’t of Justice, 711

F.2d 267, 273 (D.C. Cir. 1983)).

The Court agrees with Magistrate Judge Robinson’s analysis of both claim and

issue preclusion and therefore overrules the District of Columbia’s Objection to the contrary.

The record simply does not indicate what claims Nunnally put before the jury in her Superior

Court trial. Nor is there any evidence in the record concerning what evidence the Superior Court

excluded in limine. It therefore is not possible for the Court to determine (1) whether the causes

of action in the Superior Court action overlap with this case, or (2) whether Nunnally actually

litigated those causes of action in the Superior Court action. Even if the record did contain this

evidence, Magistrate Judge Robinson is correct that the present suit concerns different subject

matter — retaliation versus sexual harassment — and a different period of time — 2004-09

versus 2003-04. The Court therefore finds no claim or issue preclusion in this case based on

Nunnally’s Superior Court action.

B. Title VII and DCHRA Claims

Both parties object to Magistrate Judge Robinson’s resolution of the ultimate

issue of whether summary judgment is warranted with respect to Nunnally’s theories of liability

under Title VII and the DCHRA. 4

4
Magistrate Judge Robinson refused to consider several arguments concerning
Nunnally’s Title VII and DCHRA claims that the District of Columbia raised for the first time in
its reply brief, Dkt. 115. R&R at 20-21. The District of Columbia objects that it made new
arguments because it could not “pin down Nunnally’s byzantine accusations.” Def. Obj. at
18-19 [Dkt. 130]. The Court sees no reason to deviate from the normal rule, applied by
Magistrate Judge Robinson here, that “an argument first made in a reply brief is forfeited.”
Bartko v. SEC, 845 F.3d 1217, 1224 (D.C. Cir. 2017).

As discussed, the Court traces 10 of Nunnally’s 12 alleged adverse employment
actions back to the text of her Fourth Amended Complaint, so they can hardly be viewed as

8
 Summary judgment is appropriate only if “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the movant is entitled to judgment as a matter of

law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see Baumann v. District of

Columbia, 795 F.3d 209, 215 (D.C. Cir. 2015); FED. R. CIV. P. 56(a), (c). In making that

determination, the Court must view the evidence in the light most favorable to the nonmoving

party and draw all reasonable inferences in its favor. Baumann v. District of Columbia, 795 F.3d

at 215; see Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (per curiam); Anderson v. Liberty

Lobby, Inc., 477 U.S. at 255; Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011). A disputed

fact is “material” if it “might affect the outcome of the suit under the governing law.” Talavera

v. Shah, 638 F.3d at 308 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 248). A dispute

over a material fact is “genuine” if it could lead a reasonable jury to return a verdict in favor of

the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Grimes v. District of

Columbia, 794 F.3d 83, 94-95 (D.C. Cir. 2015); Paige v. DEA, 665 F.3d 1355, 1358 (D.C. Cir.

2012). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate

inferences from the facts are jury functions, not those of a judge at summary judgment. Thus,

[the court does] not determine the truth of the matter, but instead decide[s] only whether there is

a genuine issue for trial.” Barnett v. PA Consulting Grp., Inc., 715 F.3d 354, 358 (D.C. Cir.

2013) (quoting Pardo-Kronemann v. Donovan, 601 F.3d 599, 604 (D.C. Cir. 2010)); see also

“byzantine” or difficult to decipher. See supra at 3-4. The District of Columbia’s new
arguments in its reply brief do not concern the remaining two adverse employment actions:
(1) her forced retirement on disability in June 2009, and (2) MPD advising prospective
employers after June 2009 that it had fired her. The Court therefore overrules the District of
Columbia’s Objection.
9
Tolan v. Cotton, 134 S. Ct. at 1866; Baumann v. District of Columbia, 795 F.3d at 215; Allen v.

Johnson, 795 F.3d 34, 38 (D.C. Cir. 2015).

Title VII’s anti-retaliation provision makes it unlawful for “an employer [to]

‘discriminate against’ an employee . . . because that individual ‘opposed any practice’ made

unlawful by Title VII or ‘made a charge, testified, assisted, or participated in’ a Title VII

proceeding or investigation.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 56

(2006) (quoting 42 U.S.C. § 2000e-3(a)). The DCHRA similarly prohibits “retaliat[ion] against

. . . any person in the exercise or enjoyment of, or on account of having exercised or enjoyed . . .

any right granted or protected under this chapter.” D.C. CODE § 2-1402.61(a) (2012 Repl.).

“The elements of a retaliat[ion] claim are the same under [the] DCHRA as under the federal

employment discrimination laws.” Allen-Brown v. District of Columbia, 174 F. Supp. 3d 463,

481 (D.D.C. 2016) (internal quotation marks omitted). “[F]ederal case law addressing questions

arising in Title VII cases is applicable to the resolution of analogous issues raised regarding

DCHRA claims.” Ali v. District of Columbia, 697 F. Supp. 2d 88, 92 n.6 (D.D.C. 2010) (citing

Howard Univ. v. Green, 652 A.2d 41, 45 n.3 (D.C. 1994)); see also Gaujacq v. EDF, Inc., 601

F.3d 565, 576-77 (D.C. Cir. 2010); Whitbeck v. Vital Signs, Inc., 116 F.3d 588, 591 (D.C. Cir.

1997) (“District of Columbia courts interpreting the DCHRA ‘have generally looked [for

guidance] to cases from the federal courts’ arising under federal civil rights statutes.” (quoting

Benefits Communication Corp. v. Klieforth, 642 A.2d 1299, 1301-02 (D.C. 1994))).

“A plaintiff may prove her Title VII discrimination or retaliation claim with direct

evidence, for example through a statement that itself shows racial bias in the employment

decision. Alternatively, a plaintiff may base her claim on circumstantial evidence under the

familiar McDonnell Douglas burden-shifting framework.” Nurriddin v. Bolden, 818 F.3d 751,

10
758 (D.C. Cir. 2016). Here, Nunnally offers no direct evidence, and the Court therefore will

analyze Nunnally’s Title VII and DCHRA claims under McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973). The McDonnell Douglas burden-shifting framework contains three steps.

First, the burden is on the employee to make a prima facie case of retaliation or discrimination.

411 U.S. at 801-02. “To establish a prima facie case of retaliation based on circumstantial

evidence, a plaintiff must show that (1) ‘[s]he engaged in statutorily protected activity’;

(2) ‘[s]he suffered a materially adverse action by h[er] employer’; and (3) ‘a causal link connects

the two.’” Doak v. Johnson, 798 F.3d 1096, 1107 (D.C. Cir. 2015) (quoting Solomon v. Vilsack,

763 F.3d 1, 14 (D.C. Cir. 2014)).

Second, if the employee makes out a prima facie case, the burden shifts to the

employer to offer a legitimate, nondiscriminatory reason for the challenged action. Morris v.

McCarthy, 825 F.3d 658, 668 (D.C. Cir. 2016). Third, if the employer does so, the McDonnell

Douglas burden-shifting analysis “falls away,” id., and “the district court must resolve one

central question: Has the employee produced sufficient evidence for a reasonable jury to find

that the employer’s asserted [non-retaliatory] reason” for its adverse employment action “was not

the actual reason and that the employer intentionally [retaliated] against the employee” on the

basis of the employee having engaged in a statutorily protected activity? Brady v. Office of

Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008); see also Gaujacq v. EDF, Inc., 601 F.3d

at 576. “The employee can survive summary judgment by providing enough evidence for a

reasonable jury to find that the employer’s proffered explanation” for an adverse employment

action “was a pretext for retaliation or discrimination.” Morris v. McCarthy, 825 F.3d at 668;

see Nurriddin v. Bolden, 818 F.3d at 758-59.

11
 1. Prima Facie Case For Delays in Nunnally’s Workers’
Compensation and Retirement Board Hearings

Magistrate Judge Robinson held that Nunnally had failed to allege a prima facie

case of retaliation under step one of McDonnell Douglas with respect to the asserted delay of her

workers’ compensation and retirement board hearings because Nunnally did not adduce facts

showing that the cause for the delays of her hearings between May 2007 and July 2008 was her

protected activity. R&R at 21-23. Nunnally objects that she engaged in protected activity

throughout this period sufficient to establish causation. Pl. Obj. at 6-7 [Dkt. 131].

To demonstrate causation in a Title VII or DCHRA case, “traditional principles of

but-for causation” apply, and a plaintiff must show “that the unlawful retaliation would not have

occurred in the absence of the alleged wrongful action or actions of the employer.” Univ. of

Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013). “A plaintiff may establish a causal

connection between his participation in a protected activity and an adverse action through

temporal proximity alone by showing that (1) the employer knew that the plaintiff engaged in

protected activity, and that (2) the adverse action took place shortly after plaintiff’s participation

in that activity.” Moses v. Howard Univ. Hosp., 474 F. Supp. 2d 117, 124 (D.D.C. 2007) (citing

Holcomb v. Powell, 433 F.3d 889, 903 (D.C. Cir. 2006)). But “cases that accept mere temporal

proximity between an employer’s knowledge of protected activity and an adverse employment

action as sufficient evidence of causality to establish a prima facie case uniformly hold that the

temporal proximity must be very close.” Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273

(2001) (per curiam) (internal quotation marks omitted). The D.C. Circuit has held that ten

months, see McCormick v. District of Columbia, 752 F.3d 980, 986 (D.C. Cir. 2014), eight

months, see Payne v. District of Columbia, 722 F.3d 345, 354 (D.C. Cir. 2013), and two and a

12
half months, see Taylor v. Solis, 571 F.3d 1313, 1322 (D.C. Cir. 2009), were not close enough

for temporal proximity.

Here, the delays, cancellations, or abrupt changes in Nunnally’s retirement and

workers’ compensation proceedings occurred in May 2007, July 2007, February 2008, and July

2008. Am. Compl. ¶¶ 66, 64, 68. Those dates overlap with Nunnally’s acts of emailing

supervisors, filing internal complaints with MPD, and contacting her elected representatives

about the alleged retaliation and hostile work environment. Pl. SMF ¶¶ 97, 106-116 (citing

complaints in January, July, August, and October of 2007, and April, June, September, October,

and December of 2008). The District of Columbia offers no contrary evidence. The Court

concludes that Nunnally has demonstrated sufficient temporal proximity to permit a jury to

consider whether there was a causal link between her protected activity and these adverse

employment actions. It therefore will sustain Nunnally’s Objection to Magistrate Judge’s

Robinson’s R&R with respect to this claim. The District of Columbia is not entitled to summary

judgment on Nunnally’s theory of Title VII and DCHRA liability concerning delays in her

workers’ compensation and retirement board hearings.

2. Step Three of McDonnell Douglas for All of Nunnally’s
Other Alleged Adverse Employment Actions

For all of Nunnally’s other alleged adverse employment actions, the District of

Columbia does not dispute that Nunnally has successfully alleged a prima facie claim of

retaliation under Title VII or the DCHRA. See Def’s. Obj. at 16-18 [Dkt. 130]. The District of

Columbia agrees that Nunnally engaged in protected activity when she made various complaints

and suffered each of the 12 adverse employment actions the Court has identified. See supra at

13
3-4. 5 Nor does it argue a lack of sufficient temporal proximity with respect to 11 of them. The

District of Columbia maintains, however, that it had a legitimate, nondiscriminatory reason for

taking adverse employment actions against Nunnally: “a pending sexual harassment claim filed

by one of her subordinates against her.” Defs. MSJ at Ex. G, ¶ 8 [Dkt. 98-3 at 85]; see also Def.

Obj. at 17 [Dkt. 130]. It is established that complaints from “other employees [] that they had

been sexually harassed by the Plaintiff . . . are certainly non-discriminatory and legitimate

reasons for terminating an individual’s employment,” or taking other adverse employment

actions against her. Regan v. Grill Concepts-D.C., Inc., 338 F. Supp. 2d 131, 138-39 (D.D.C.

2004).

As discussed previously, see supra at 10-11, “where an employee has suffered an

adverse employment action and an employer has asserted a legitimate, [non-retaliatory] reason

for the decision, the district court need not — and should not — decide whether the plaintiff

actually made out a prima facie case under McDonnell Douglas.” Brady v. Office of Sergeant at

Arms, 520 F.3d at 494 (emphasis in original). The question in this case therefore concerns step

three of McDonnell Douglas: Viewing the evidence in the light most favorable to Nunnally,

would her evidence allow a reasonable jury to conclude that the District of Columbia’s proffered

reason for the 12 adverse employment actions was not the actual reason for those actions and that

the District of Columbia retaliated against her on the basis of her protected activity?

The Court agrees with Magistrate Judge Robinson that summary judgment for the

District of Columbia is warranted with respect to Nunnally being required to report to the First

District weekly while on sick leave in January 2007. R&R at 21-23. The District of Columbia

5
It may be more accurate to say that the District of Columbia does not dispute the
factual basis for any of Nunnally’s 12 alleged adverse employment actions. See supra note 2.

14
attached to its motion for summary judgment examples of sign-in sheets showing a number of

employees in addition to Nunnally who were required to report to the First District while on sick

leave. Def. MSJ at Ex. H [Dkt. 98-3]. Faced with that evidence, a reasonable jury could not

“infer that the [sick leave sign-in] policy was selectively enforced against [Nunnally] in

retaliation for her protected activity.” R&R at 23. The Court therefore overrules Nunnally’s

Objection to the contrary, see Pl. Obj. at 3-4, and grants summary judgment to the District of

Columbia on Nunnally’s claim that it was retaliation to require her to report to the First District

weekly while on sick leave in January 2007.

As for each of Nunnally’s other alleged adverse employment actions, the Court

overrules the District of Columbia’s Objection to Magistrate Judge Robinson’s decision to

permit Nunnally to proceed to trial. See Def. Obj. at 16-18. The District of Columbia does not

provide individualized reasons for why it treated Nunnally the way it did in each of those

circumstances. See supra note 2. Rather, it argues that those adverse employment actions “do

not evidence [retaliation]” under step three of McDonnell Douglas because “they call into

question how the District made decisions about the reorganization” of MPD. Id. at 18. The

Court understands this to be essentially an argument that the Court should not look behind the

District of Columbia’s business judgment: “As courts are not free to second-guess an

employer’s business judgment, a plaintiff’s mere speculations are insufficient to create a genuine

issue of fact regarding an employer’s articulated reasons for its decisions and avoid summary

judgment.” Brown v. Brody, 199 F.3d 446, 458-59 (D.C. Cir. 1999) (internal quotation marks

omitted), abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53

(2006). While claims based on speculation do not create issues requiring a trial, “the business

judgment rule does not compel the award of summary judgment” where a plaintiff’s evidence

15
raises genuine issues of material fact that the Court cannot decide as a matter of law. Cf.

Armenian Assembly of Am., Inc. v. Cafesjian, 692 F. Supp. 2d 20, 39 (D.D.C. 2010), aff’d, 758

F.3d 265 (D.C. Cir. 2014).

Here, the Court finds much more than mere speculation from which a reasonable

jury could find that the District of Columbia’s proffered explanation for the adverse employment

actions was not the true explanation. To take just one example, the evidence shows that when

Nunnally filed a harassment complaint against her supervisor in 2004, she was reassigned to the

Major Narcotics Division, but when her subordinate filed a similar complaint against Nunnally,

it was Nunnally who was reassigned. Pls. SMF ¶ 36; Memorandum in Support of MSJ at 10.6

Viewed in the light most favorable to Nunnally, the Court believes that a reasonable jury could

find that this disparate response shows that the District of Columbia’s purported non-retaliatory

reason for reassigning Nunnally was a pretext for retaliation. The purported business judgment

of the District of Columbia therefore does not warrant summary judgment.

The Court therefore agrees with Magistrate Judge Robinson’s recommendation to

deny summary judgment to the District of Columbia on Nunnally’s Title VII and DCHRA claims

with respect to most of her alleged adverse employment actions. The District of Columbia is

entitled to summary judgment on her claim that Nunnally was required to report to the First

District weekly while on sick leave in January 2007 in retaliation for protected activity, but

Nunnally may proceed to trial on all other remaining adverse employment actions. The Court

6
The Court is aware that Nunnally did not raise this differential treatment argument
until her opposition to the District of Columbia’s Objections. Opp. of Def. Obj. at 15 [Dkt. 134].
The evidence underlying this argument was present in the record before Magistrate Judge
Robinson, however. Given the Court’s de novo standard of review of a magistrate judge’s R&R
on a summary judgment motion, see supra at 5-6, the Court finds it appropriate to apply the
hornbook principle that appellate courts “may affirm the district court on any ground supported
by the record.” Chambers v. Burwell, 824 F.3d 141, 143 (D.C. Cir. 2016).

16
overrules the District of Columbia’s Objection and sustains in part and overrules in part

Nunnally’s Objection.

C. DCWPA Claim

The Court agrees with Magistrate Judge Robinson’s recommendation that much

of the District of Columbia’s summary judgment motion with respect to Nunnally’s DCWPA

claim should be denied and that the claim should proceed to trial. The Court will address in turn

(1) the District of Columbia’s Objection to Magistrate Judge Robinson’s analysis of the DCWPA

statute of limitations, and (2) both parties’ Objections to Magistrate Judge Robinson’s analysis of

the causal connection between Nunnally’s protected disclosures and the retaliation she allegedly

suffered.

1. DCWPA Statute of Limitations

The District of Columbia objects to Magistrate Judge Robinson’s analysis of the

2010 amendments to the DCWPA’s statute of limitations. Def. Objections at 22-23 [Dkt. 130].

The gravamen of the District of Columbia’s Objection is that Nunnally’s DCWPA claims are

time barred even under the 2010 amendment to the DCWPA’s statute of limitations for unknown

violations because Nunnally was aware of her claims at the time of the alleged retaliatory

conduct. Id. 7 The Court will overrule the District of Columbia’s Objection with respect to the

statute of limitations analysis.

Under the 2010 amendments to the DCWPA’s statute of limitations in D.C. CODE

§ 1-615.54(a)(2) (2012 Repl.), a DCWPA action is timely if instituted “within 3 years after a

7
Neither party objects to Magistrate Judge Robinson’s conclusion that the pre-2010
notice requirement contained in D.C. CODE § 12-309 (2012 Repl.) is inapplicable to Nunnally’s
DCWPA claim. The Court agrees with Magistrate Judge Robinson on this point.

17
violation occurs” or “within one year after the employee first became aware of the violation,”

whichever occurs first. D.C. CODE § 1-615.54(a)(2). While the District of Columbia Court of

Appeals has never squarely addressed whether the 2010 amendment to the DCWPA statute of

limitations is retroactive, the District of Columbia Superior Court has held at least twice that it is

retroactive, and Judge Gladys Kessler of this Court, collecting those cases, has agreed. Sharma

v. District of Columbia, 791 F. Supp. 2d 207, 212-13 (D.D.C. 2011). Judge Kessler concluded

that, “[i]n line with applicable D.C. law, this Court holds that the 2010 Amendments to the

DCWPA’s statute of limitations . . . are procedural and therefore retroactive.” Id. at 214. The

Court agrees with Judge Kessler’s retroactivity analysis.

A violation of the DCWPA occurs when a plaintiff suffers retaliation as a result of

“protected disclosures,” Freeman v. District of Columbia, 60 A.3d 1131, 1141 (D.C. 2012), and a

plaintiff must file a claim under the Act within one year after she first becomes aware of the

violation. D.C. CODE § 1-615.54(a)(2). Nunnally filed her Second Amended Complaint on May

7, 2009, see Dkt. 22, and sought leave to file her Fourth Amended Complaint to add the DCWPA

claim on November 5, 2010. See Dkt. 49. Magistrate Judge Robinson found that Nunnally’s

theory of DCWPA liability concerning “disclosures related to MPD’s alleged treatment of [her]

during her employment” after May 7, 2008, was timely because those claims related back to

Nunnally’s Second Amended Complaint. By contrast, Magistrate Judge Robinson held that

Nunnally’s DCWPA claims concerning “disclosures related to other alleged misconduct

unrelated to [her] employment at MPD” were untimely because those disclosures did not relate

back to her Second Amended Complaint. R&R at 27-28. As a result, under Magistrate Judge

Robinson’s analysis, Nunnally’s DCWPA claim is limited to adverse employment actions 8, 10,

11, and 12. See supra at 3-4.

18
 The Court agrees with Magistrate Judge Robinson. Nunnally filed her Second

Amended Complaint on May 7, 2009, and fully described therein the retaliation for protected

disclosures she made about MPD’s treatment of her individually. See Dkt. 22 ¶¶ 9, 12-16, 27.

As such — under D.C. CODE § 1-615.54(a)(2)’s one-year statute of limitations for known

violations — Nunnally’s DCWPA claim is timely as to retaliation occurring after May 7, 2008,

based on her protected disclosures about MPD’s treatment of her individually because that

retaliation related back to Nunnally’s Second Amended Complaint that she filed on May 7, 2009.

See Dkt. 22. But Nunnally’s Second Amended Complaint is silent regarding retaliation for

protected disclosures she made about MPD’s “unethical activities” and “pervasive retaliation”

unrelated to her, which first appear in her Fourth Amended Complaint. See Am. Compl.

¶¶ 87-88. Nunnally therefore has no timely DCWPA claims based on her protected disclosures

about MPD’s “unethical activities” and “pervasive retaliation” unrelated to her because those

allegations do not relate back.

2. DCWPA Merits

The parties both lodged Objections as to whether Nunnally has shown a causal

connection between her protected disclosures and the instances of retaliation (or adverse

employment actions) alleged in her complaint. Def. Obj. at 23; Pl. Obj. at 7-9. Specifically, the

District of Columbia argues that Nunnally has shown no causation at all, see Def. Obj. at 23,

while Nunnally objects that she has shown causation for every instance of retaliation, even those

for which Magistrate Judge Robinson recommended granting summary judgment to the District

of Columbia. Pl. Obj. at 7-9.

The DCWPA, D.C. CODE § 1-615.51 et seq. (2012 Repl.), provides that “[a]

supervisor shall not take, or threaten to take, a prohibited personnel action or otherwise retaliate

19
against an employee because of the employee’s protected disclosure or because of an employee's

refusal to comply with an illegal order.” Id. § 1-615.53(a); see also Baumann v. District of

Columbia, 795 F.3d at 219-20. “To make out a prima facie claim of retaliation under the

[DCWPA], the plaintiff must show by a preponderance of the evidence that (i) she made a

statutorily protected disclosure, and (ii) the disclosure was a ‘contributing factor’ behind (iii) an

adverse personnel action taken by her employer.” Coleman v. District of Columbia, 794 F.3d 49,

54 (D.C. Cir. 2015) (internal citation omitted); see also Freeman v. District of Columbia, 60

A.3d at 1141. The DCWPA defines a “contributing factor” as “any factor which, alone or in

connection with other factors, tends to affect in any way the outcome of the [employment]

decision.” D.C. CODE § 1-615.52(a)(2). Courts have found gaps of eight months, Payne v.

District of Columbia, 722 F.3d 345, 354 (D.C. Cir. 2013), and four months, Johnson v. District

of Columbia, 935 A.2d 1113, 1120 (D.C. 2007), between the protected disclosures and the

adverse personnel action insufficient to meet the “contributing factor” prong. In addition,

“[w]ithout evidence, circumstantial or otherwise, that ‘the decision-maker[] responsible for the

adverse action had actual knowledge of the protected activity,’ [a plaintiff] has failed to create a

disputed fact question about whether the decision was retaliatory.” Coleman v. District of

Columbia, 794 F.3d at 64 (quoting McFarland v. George Washington Univ., 935 A.2d 337, 357

(D.C. 2007)).

The Court need not assess whether Nunnally’s protected disclosures were a

contributing factor to any retaliation she suffered before May 7, 2008, because those instances of

retaliation are time-barred under D.C. CODE § 1-615.54(a)(2). See supra at 17-19. That leaves

four alleged instances of retaliation: (1) the denial of her sick, annual, and family medical leave

between 2007 and 2009; (2) the delay of her workers’ compensation and retirement board

20
hearings between May 2007 and July 2008; (3) her forced retirement on disability in June 2009;

and (4) MPD advising prospective employers after June 2009 that it had fired Nunnally. See

supra at 3-4. The relevant questions for these remaining instances of retaliation are: (1) whether

there was sufficient temporal proximity between Nunnally’s protected disclosures and the

adverse employment actions to consider the disclosures a “contributing factor”; and (2) whether

the persons allegedly engaged in retaliation knew about the protected disclosures.

The Court concludes that Nunnally has not sufficiently shown temporal proximity

for her allegation that the District of Columbia denied her leave requests. Nunnally offers only

the general statement that Commander Groomes’s denied her leave requests “repeatedly” over a

two-year period, and she does not provide any direct evidence that Groomes was aware of her

protected disclosures. Pl. SMF ¶ 121; see also Am. Compl. ¶ 78. As to each of the remaining

three instances of alleged retaliation, however, the Court finds that the adverse employment

actions were taken sufficiently close in time to Nunnally’s protected disclosures that a jury could

find the protected disclosures to be a contributing factor. Nunnally’s allegation that the District

of Columbia abruptly delayed her retirement hearing in July 2008, see Am Compl. ¶ 68, is one

month after Nunnally’s letters to the D.C. Inspector General and City Councilmember Mary M.

Cheh, as well as one month after the period in which Nunnally began blogging about the

retaliation. Id. ¶¶ 71-72, 75. 8 The final two instances of retaliation in June 2009 — forced

retirement and advising prospective employers that Nunnally had been fired — allegedly

occurred during the same month that Nunnally testified before the D.C. Council concerning

“pervasive corruption within the police department.” Am. Compl. ¶ 77. With respect to whether

8
In the context of Nunnally’s Title VII and DCHRA claims, the Court explained
that the delays, cancellations, or abrupt changes in Nunnally’s retirement and workers’
compensation proceedings overlapped with Nunnally’s protected activity. See supra at 13.
21
Nunnally’s supervisors knew about her protected disclosures, she alleges — and the District of

Columbia does not dispute — that MPD Internal Affairs, the Office of Inspector General, and

Nunnally’s direct supervisor were all aware of her internal affairs complaints, blog entries, and

letters to elected officials. Pl. SMF ¶¶ 111, 120, 122, 126. The Court therefore is satisfied that

there are genuine issues of material fact such that Nunnally may proceed to trial concerning three

instances of retaliation under the DCWPA: (1) the delay of her workers’ compensation and

retirement board hearings between May 2007 and July 2008; (2) her forced retirement on

disability in June 2009; and (3) MPD advising prospective employers after June 2009 that it had

fired Nunnally.

The Court overrules the District of Columbia’s Objection and overrules in part

and sustains in part Nunnally’s Objections concerning causation for Nunnally’s various theories

of DCWPA liability.

D. Sanctions

Finally, the District of Columbia objects that an adverse inference sanction is not

warranted. Def. Obj. at 23-24. It contends that Nunnally has failed to demonstrate that the

District of Columbia lost, altered, or destroyed relevant evidence, or that the missing emails were

relevant to Nunnally’s claims. Id. at 25-27. 9 The Court reviews Magistrate Judge Robinson’s

factual findings concerning sanctions for clear error, but reviews her legal conclusion that those

facts warrant the sanction of an adverse inference at trial de novo. See supra at 5-6.

Rule 37(b) of the Federal Rules of Civil Procedure authorizes federal district

courts to impose sanctions when a party fails to obey a discovery order. FED. R. CIV. P. 37(b).

9
Nunnally does not object to Magistrate Judge Robinson’s conclusion that MPD’s
spoliation of evidence did not warrant the sanction of default judgment.
22
Magistrate Judge Robinson determined that spoliation, and not noncompliance with any

particular discovery order, was the basis for Nunnally’s requested sanction and that Rule 37(b)

therefore did not apply. R&R at 33. In such situations, however, “a court may issue appropriate

sanctions under its inherent power.” 3E Mobile, LLC v. Glob. Cellular, Inc., --- F. Supp. 3d ----,

2016 WL 7408830, at *2 (D.D.C. Dec. 22, 2016) (citing Shepherd v. Am. Broad. Cos., Inc., 62

F.3d 1469, 1474 (D.C. Cir. 1995)). 10 Such sanctions include “adverse findings of fact,

considering an issue established for the purpose of the action[, or] adverse inferences.” Id. at *3.

An adverse inference is “fundamentally remedial rather than punitive” and can be imposed

“whenever a preponderance of the evidence establishes that a party’s misconduct has tainted the

evidentiary resolution of the issue.” Shepherd v. Am. Broad. Cos., Inc., 62 F.3d at 1478.

Here, the District of Columbia’s alleged misconduct was “spoliation” of evidence,

defined as “the destruction or material alteration of evidence or the failure to preserve property

for another’s use as evidence in pending or reasonably foreseeable litigation.” D’Onofrio v. SFX

Sports Grp., Inc., No. 06-0687, 2010 WL 3324964, at *5 n.5 (D.D.C. Aug. 24, 2010) (internal

quotation marks omitted). “A party has a duty to preserve potentially relevant evidence . . . once

[that party] anticipates litigation.” Zhi Chen v. District of Columbia, 839 F. Supp. 2d 7, 12

(D.D.C. 2011) (internal quotation marks omitted). “Once a party reasonably anticipates

litigation, it must suspend its routine document retention/destruction policy and put in place a

10
Rule 37 of the Federal Rules of Civil Procedure was amended in December 2015
to explicitly provide for sanctions for failure to preserve electronically stored information even in
the absence of a specific court order. See FED. R. CIV. P. 37(e). “It authorizes and specifies
measures a court may employ if information that should have been preserved is lost, and
specifies the findings necessary to justify these measures. It therefore forecloses reliance on
inherent authority or state law to determine when certain measures should be used.” FED. R. CIV.
P. 37 Advisory Comm. Notes; see also Alabama Aircraft Indus., Inc. v. Boeing Co., No. 11-
03577, 2017 WL 930597, at *7-16 (N.D. Ala. Mar. 9, 2017) (offering a detailing analysis of the
2015 amendments to Rule 37(e) as applied to electronically stored information including emails).
23
‘litigation hold’ to ensure the preservation of relevant documents.” Zubulake v. UBS Warburg

LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003). “That obligation runs first to counsel, who has a

duty to advise his client of the type of information potentially relevant to the lawsuit and of the

necessity of preventing its destruction.” Zhi Chen v. District of Columbia, 839 F. Supp. 2d at 12

(internal quotation marks omitted).

“The sanctions available for the destruction of documents or evidence with notice

of their potential usefulness in litigation may include the assessment of fines or attorneys’ fees

and costs, the preclusion of certain lines of argument that might have been advanced by the

culpable party, and/or the issuance of an instruction informing jurors that they may draw an

adverse inference from the spoliator’s actions.” Zhi Chen v. District of Columbia, 839 F. Supp.

2d at 12. “When selecting the appropriate sanction, the Court must properly calibrate the scales

to ensure that the gravity of an inherent power sanction corresponds to the misconduct.” Davis

v. District of Columbia Child & Family Servs. Agency, 304 F.R.D. 51, 60 (D.D.C. 2014)

(internal quotation marks omitted). The choice of an appropriate sanction is “necessarily a

highly fact-based determination based on the course of the discovery process leading up to the

sanction.” Bonds v. District of Columbia, 93 F.3d 801, 804 (D.C. Cir. 1996). A court’s use of

its power to sanction misconduct “should reflect our judicial system’s strong presumption in

favor of adjudication on the merits.” Shepherd v. Am. Broad. Cos., Inc., 62 F.3d at 1475.

Here, Magistrate Judge Robinson did not clearly err in finding that the District of

Columbia failed to preserve potentially relevant email records and that MPD understood that it

had a duty to do so in anticipation of this litigation. The District of Columbia concedes that it

had a duty to preserve documents associated with this litigation. See Opp. to Sanctions Motion

at 3; Def. Obj. at 25. Magistrate Judge Robinson therefore appropriately found that Nunnally

24
sufficiently demonstrated that the District of Columbia failed to produce records of

correspondence that would have been responsive to her discovery requests. R&R at 37. Further,

the District of Columbia’s Objections themselves still offer no explanation for why it did not

preserve those emails. See Def. Obj. at 25-26. In light of the District of Columbia’s admitted

duty to preserve emails and its failure to offer any explanation for its failure to preserve them, as

well as Nunnally’s own production of responsive emails that the District of Columbia could have

preserved but did not, the Court sees no error — let alone clear error — in Magistrate Judge

Robinson’s conclusion that the District of Columbia acted negligently, warranting as a sanction

an adverse inference instruction at trial.

The District of Columbia’s Objection that Nunnally failed to show that the

missing emails are relevant is without merit. Def. Obj. at 26-27. “[I]n situations where the

document destruction has made it more difficult for a party to prove that the documents

destroyed were relevant, the burden on the party seeking the adverse inference is lower, and the

trier of fact may draw such an inference based even on a very slight showing that the documents

are relevant.” Gerlich v. U.S. Dep’t of Justice, 711 F. 3d. 161, 172 (D.C. Cir. 2013) (internal

quotation marks omitted). The Court finds that Magistrate Judge Robinson did not clearly err in

concluding that the District of Columbia’s missing emails were relevant to causation because

they “may demonstrate who knew about [Nunnally’s] protected activities.” R&R at 39. The

Court therefore overrules the District of Columbia’s Objection to the contrary. The Court will

decide the exact form of the adverse inference at the time of trial and not on summary judgment.

25
 IV. CONCLUSION

For the reasons set forth in this Opinion, the Court will affirm in part and reverse

in part Magistrate Judge Robinson’s R&R, grant in part and deny in part the District of

Columbia’s motion for summary judgment, and grant in part and deny in part Nunnally’s motion

for sanctions. An Order consistent with this Opinion shall issue this same day.

SO ORDERED.

/s/
PAUL L. FRIEDMAN
United States District Judge
DATE: March 22, 2017

26