AMES v. NAPOLITANO

Filing 157

MEMORANDUM OPINION re: 149 Plaintiff's Motion for Judgment as a Matter of Law, or in the Alternative, for a New Trial. Please see the attached Memorandum Opinion for additional details. Signed by Judge Amit P. Mehta on 11/02/2018. (lcapm3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________

)
HARRIETT A. AMES,
)
)
Plaintiff,
)
)
v.
)
)
KIRSTJEN NIELSEN, Secretary of
)
Homeland Security, et al.,
)
)
Defendants.
)
_________________________________________ )

Case No. 13-cv-01054 (APM)

MEMORANDUM OPINION AND ORDER
I.

INTRODUCTION
After a four-day trial, a jury returned a verdict in favor of Defendants Department of

Homeland Security (“DHS”) and the Secretary of DHS on Plaintiff Harriett Ames’s discrimination
and retaliation claims under Title VII of the Civil Rights Act of 1964. Plaintiff is the former Chief
of the Personnel Security Branch within the Federal Emergency Management Agency (“FEMA”),
a component of DHS. Plaintiff brought this action under Title VII, alleging, among other things,
that FEMA discriminated against her on the basis of sex and race and retaliated against her for
engaging in prior protected activity by reassigning her to the position of Chief of the Training
Unit. 1

Plaintiff raised other claims in her Amended Complaint, see generally Am. Compl., ECF No. 29, but the court either
dismissed or entered summary judgment in favor of Defendants on those claims, see Ames v. Johnson, 121 F. Supp.
3d 126, 127 (D.D.C. 2015) (granting Defendants’ motion to dismiss Plaintiff’s claim under the Equal Protection
Clause); Ames v. Nielsen, 286 F. Supp. 3d 70, 75 (D.D.C. 2017) (granting Defendants’ motion for summary judgment
as to Plaintiff’s Title VII claims based on the limited suspension of adjudicatory authority within Plaintiff’s Branch
and the temporary detail of a DHS employee to Plaintiff’s Branch, but allowing Plaintiff’s Title VII claims based on
her reassignment to proceed to trial).
1

Before the court is Plaintiff’s Motion for Judgment as a Matter of Law or, in the
Alternative, for a New Trial, ECF No. 149. For the reasons set forth below, Plaintiff’s Motion is
denied.
II.

PLAINTIFF’S MOTION FOR JUDGMENT AS A MATTER OF LAW
The court begins with—and quickly dismisses—Plaintiff’s Motion for Judgment as a

Matter of Law under Federal Rule of Civil Procedure 50(b). Under Rule 50, a court may grant a
motion for judgment as a matter of law after a jury trial if it finds that “a reasonable jury would
not have a legally sufficient evidentiary basis to find for the [nonmoving] party on th[e] issue.”
FED. R. CIV. P. 50(a)(1). To determine whether this standard is met, the court “should review all
of the evidence in the record” and “must draw all reasonable inferences in favor of the nonmoving
party.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). “In doing so,
however, the court . . . may not make credibility determinations or weigh the evidence.” Id.
Here, Plaintiff acknowledges that credibility determinations are off-limits in evaluating a
party’s Rule 50 motion. See Pl.’s Mot. for J. as Matter of Law or, in the Alternative, for New
Trial, ECF No. 149, Pl.’s Mem. of P. & A., ECF No. 149-1 [hereinafter Pl.’s Mem.], at 6–7.
Nevertheless, Plaintiff asks the court to grant her Rule 50 motion because Defendants “failed to
rebut [her] prima facie case at trial by offering credible admissible evidence that there was a
legitimate business reason for the actions taken against [her].” Id. at 8 (emphasis added). Indeed,
her entire argument is premised on the credibility of various players involved in her reassignment.
Id. at 8; see id. at 3–4 (describing testimony of witnesses Cantu, Salazar, and Oliver as
“inconsistent” and/or “false”). True, there were some inconsistencies in the testimony regarding
the reasons for Plaintiff’s reassignment and who made the decision to reassign her. See id. at 3–
4. But it was within the province of the jury to assess the credibility of the witnesses in light of

2

those inconsistencies and to determine how much weight, if any, to give their testimony.
See Williams v. Johnson, 870 F. Supp. 2d 158, 162 (D.D.C. 2012) (“[B]ecause the fundamental
function of the jury is ‘to select, from among conflicting inferences and conclusions, that which it
finds most reasonable,’ ‘the court cannot substitute its view for that of the jury, and can assess
neither the credibility nor weight of the evidence.’”) (first quoting Metrocare v. Wash. Metro. Area
Transit Auth., 679 F.2d 922, 924 (D.C. Cir. 1982); then quoting Scott v. District of Columbia, 101
F.3d 748, 752 (D.C. Cir. 1996)). Thus, for the same reasons stated at trial, Plaintiff’s Motion for
Judgment as a Matter of Law is denied. See Jury Trial Tr., ECF No. 145, at 840–41 (denying
Plaintiff’s Rule 50(a) motion for same reasons court denied Defendants’ Rule 50(a) motion); see
also id. at 839–40 (denying Defendants’ Rule 50(a) motion); Jury Trial Tr., ECF No. 142, at 361–
64 (same). Viewing the evidence in the light most favorable to Defendants, a reasonable jury
could have credited the non-discriminatory and non-retaliatory reasons offered for Plaintiff’s
reassignment. See Def.’s Opp’n to Pl.’s Mot. for J. as Matter of Law or, in the Alternative, for
New Trial, ECF No. 152, at 3–5 (summarizing evidence presented at trial); see also Williams, 870
F. Supp. 2d at 162 (“The jury’s verdict must stand ‘unless the evidence and all reasonable
inferences that can be drawn therefrom are so one-sided that reasonable men and women could not
disagree.’”) (quoting Scott, 101 F.3d at 752).
III.

PLAINTIFF’S MOTION FOR NEW TRIAL
Having concluded that Plaintiff is not entitled to judgment as a matter of law under Rule

50, the court turns to Plaintiff’s alternative argument that a new trial is warranted under Rule 59.
Rule 59 allows a court to grant a new trial after a jury verdict “for any reason for which a new trial
has heretofore been granted in an action at law in federal court.” FED. R. CIV. P. 59(a)(1)(A). “The
authority to grant a new trial . . . is confided almost entirely to the exercise of discretion on the part

3

of the trial court.” Queen v. Schultz, 310 F.R.D. 10, 21 (D.D.C. 2015) (alteration in original)
(quoting Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980)). While the trial court is
entrusted with the exercise of discretion, “[a] new trial should be granted only where the court is
convinced that the jury verdict was a seriously erroneous result and where denial of the motion
will result in a clear miscarriage of justice.” Lee v. District of Columbia, 19 F. Supp. 3d 281, 286
(D.D.C. 2014) (internal quotation marks omitted).
Plaintiff offers five reasons why she is entitled to a new trial under Rule 59. As discussed
below, none of these reasons warrant upsetting the jury’s verdict.
A.

“False Testimony” of Plaintiff’s Supervisors

Plaintiff first claims that she is entitled to a new trial because “[t]he previous false
testimony by Messrs. Cantu, Salazar, and Oliver”—coupled with Defendants’ “failure to offer any
admissible, credible evidence from these decision-makers to rebut plaintiff’s prima facie cases of
discrimination and retaliation”—make clear that the jury’s verdict in favor of Defendants was a
“seriously erroneous result.” Pl.’s Mem. at 9; accord id. (“Thus, denial of this motion would result
in a ‘clear miscarriage of justice.’”). The court need not linger over this first argument, as it is
based on the same erroneous premise advanced in support of Plaintiff’s motion for judgment as a
matter of law: that the court can countermand a jury’s credibility determination. Therefore, the
court rejects this argument for largely the same reasons stated above. Cf. Vander Zee v.
Karabatsos, 589 F.2d 723, 729 (D.C. Cir. 1978) (“The trial court’s contrary view of the credibility
of the witnesses does not justify the granting of a new trial.”); Hancock v. Wash. Hosp. Ctr., 13
F. Supp. 3d 1, 10 (D.D.C. 2014) (holding that weight of evidence did not mandate new trial under
Rule 59 where court already found that plaintiff failed to meet Rule 50 standard).

4

B.

“Continuing Discovery Abuses”

The court easily disposes of Plaintiff’s second argument, too. While Plaintiff contends that
Defendants’ “continuing discovery violations” warrant a new trial, see Pl.’s Mem. at 9, no such
violations occurred. As the court explained in denying Plaintiff’s motion in limine to exclude
Kimberly Lew’s November 2, 2011 email and testimony at trial, Defendants’ disclosures were
timely, albeit barely, and thus automatic exclusion was not warranted under Rule 37(c)(1). See
Pretrial Hr’g Tr., ECF No. 140, at 17–18. Furthermore, to mitigate any prejudice to Plaintiff
caused by Defendants’ last-minute disclosures, the court ordered Defendants to make Ms. Lew
available for a deposition before trial. See Omnibus Pretrial Order, ECF No. 116, ¶ 1.
To the extent Plaintiff claims that she was prejudiced by the late timing of Ms. Lew’s
deposition, which took place only four days before trial, see Pl.’s Mem. at 9, it is Plaintiff who
waited approximately a year and a half to complain to the court about the lateness of disclosures
related to Lew, 2 see Minute Order, Sept. 27, 2016 (setting October 21, 2016 as discovery deadline);
Pl.’s First Mot. in Limine, ECF No. 92 (dated April 20, 2018) (seeking to exclude evidence
concerning Lew). Rather than raising the issue at the Post-Discovery Conference, see Hr’g Tr.
(draft), Oct. 25, 2016, at 2–4, or in her request to reopen discovery pursuant to Rule 56(d), see
Pl.’s Opp’n to Mot. for Summ. J., ECF No. 76, at 32, 3 Plaintiff waited until she filed her first
motion in limine to formally raise the issue with the court. Plaintiff cannot now be heard to
complain about the timing of Lew’s deposition when Plaintiff failed to exercise diligence in trying
to obtain her testimony on an earlier date.
Defendants produced Ms. Lew’s email after close of business on the date of the discovery deadline. See Pl.’s First
Mot. in Limine, ECF No. 92, Mem. of P. & A., ECF No. 92-1, at 8. Defendants supplemented their initial disclosures
to identify Ms. Lew as a possible witness two days before discovery closed. Id. at 5.

2

Plaintiff complained in her Opposition to Defendants’ Motion for Summary Judgment that Defendants had identified
Lew and Marshall as decision-makers for the first time in connection with summary judgment, see Pl.’s Opp’n to Mot.
for Summ. J.. at 11–12, 23, 32, but never asked the court to order a post-deadline deposition of Lew.
3

5

Additionally, in her present motion, Plaintiff fails to identify any concrete way in which
the timing of the deposition actually prejudiced her. Instead, she simply states that she was “denied
the opportunity of using the surprise Lew admission”—that is, that Ms. Lew “had no personal
knowledge” about the reasons she gave, and Defendants adopted, in recommending Plaintiff’s
reassignment—when “planning her case, issuing discovery requests, taking depositions, and
preparing for trial.” Pl.’s Mem. at 9–10. This assertion is perplexing, as Plaintiff cross-examined
Ms. Lew at trial about her lack of personal knowledge. Jury Trial Tr., ECF No. 143, at 560–61.
In any event, Plaintiff’s generic proclamation of harm does little to convince the court that it erred
in denying Plaintiff’s motion in limine, let alone that such an error resulted in a “clear miscarriage
of justice.” See Moore v. Hartman, 102 F. Supp. 3d 35, 139 (D.D.C. 2015) (“[T]he standard for
granting a new trial is not whether minor evidentiary errors were made but rather whether there
was a clear miscarriage of justice.” (internal quotation marks omitted)); cf. Muldrow ex rel. Estate
of Muldrow v. Re-Direct, Inc., 493 F.3d 160, 167 (D.C. Cir. 2007) (noting, in context of finding
no abuse of discretion in district court’s decision to deny defendant’s motion for new trial, that
plaintiff’s expert’s testimony “did not run afoul of Rules 26 or 37—or if it did, the testimony was
nonetheless admissible because any transgression was harmless under Rule 37”).
C.

Ms. Lew’s November 2, 2011 Email and Trial Testimony

Next up is Plaintiff’s third argument, in which Plaintiff faults the court for allowing
Defendants to use Ms. Lew’s November 2, 2011 email as well as her trial testimony “to explain
and justify the decision to transfer Ms. Ames.” Pl.’s Mem. at 10. Plaintiff contends that she is
entitled to a new trial because (1) the court erroneously admitted the November 2, 2011 email and
Ms. Lew’s testimony about the email, and (2) Defendants improperly relied on this evidence in
closing arguments. See id. at 10–16. The court addresses each of these contentions in turn.

6

1.

Admission of Lew Email and Testimony

Before turning to the merits of Plaintiff’s evidentiary argument, the court makes an initial
observation: The court admitted Ms. Lew’s November 2, 2011 email, see Defs.’ Opp’n to Pl.’s
Apr. 20, 2018 Mot. in Limine, ECF No. 101, Ex. 2, ECF No. 101-2 [hereinafter Lew Email], as
well as her testimony about the email, see Jury Trial Tr., ECF No. 143, at 533–51, for the purpose
of showing “the reasons for why [Lew] made the recommendation” to her supervisor, Gregory
Marshall, that FEMA reassign Plaintiff to another unit within the Office of the Chief Security
Officer—not, as Plaintiff contends, for the purpose of establishing the truth of those reasons, i.e.,
that Plaintiff in fact acted as a “road block[]” and/or “halt[ed] training efforts,” see Jury Trial Tr.,
ECF No. 143, at 551; see also id. at 521–22, 531–32, 562–65. Thus, the evidence was admitted
for a non-hearsay purpose. Plaintiff’s arguments about why the email does not fall within the
business records exception to the hearsay rule are therefore beside the point. See Pl.’s Mem. at
11–13.
The question, then, is whether the court erred in admitting Ms. Lew’s email and testimony
as non-hearsay. It did not. In cases such as this one, where the plaintiff attempts to show that her
employer’s stated reason for an adverse action was a pretext for discrimination or retaliation, she
cannot establish pretext merely by demonstrating that the reason itself was false. Instead, she must
show that the employer could not have honestly and reasonably believed that the conduct
underlying the stated reason occurred. See Fischbach v. D.C. Dep’t of Corr., 86 F.3d 1180, 1183
(D.C. Cir. 1996) (“Once the employer has articulated a non-discriminatory explanation for its
action, . . . the issue is not the correctness or desirability of the reasons offered but whether the
employer honestly believes in the reasons it offers.” (cleaned up)); George v. Leavitt, 407 F.3d
405, 415 (D.C. Cir. 2005) (“[A]n employer’s action may be justified by a reasonable belief in the

7

validity of the reason given even though that reason may turn out to be false.”); see also Hampton
v. Vilsack, 685 F.3d 1096, 1101 n.8 (D.C. Cir. 2012) (“In a Title VII action, the question . . . is not
whether the underlying incidents occurred; rather, the issue is whether the employer honestly and
reasonably believed that the underlying incidents occurred.”) (cleaned up). Thus, the question of
pretext turns on whether the employer reasonably and honestly believed the proffered nondiscriminatory reason for the adverse action, not the truth or falsity of that reason.
Here, Lew’s email and testimony were relevant to show that her supervisor, Marshall, and
others in the decision-making chain honestly and reasonably believed that Plaintiff’s work
performance warranted her transfer. A reasonable juror could have concluded that Lew was the
first person to recommend that Plaintiff be reassigned, and that she did so for a non-discriminatory,
non-retaliatory reason. In early November 2011, Marshall asked Lew for “[her] recommendation
as to what we should do with FEMA personnel security.” Lew Email. Lew had assigned a
subordinate to work with the Personnel Security Branch following the release of an audit report
critical of the Branch, see Jury Trial Tr., ECF No. 143, at 533–34, and that subordinate related to
Lew that Plaintiff was impeding efforts to address the report’s concerns, see Lew Email. 3; Jury
Trial Tr., ECF No. 143, at 528–29, 533–37, 546–51; Jury Trial Tr., ECF No. 144, at 683–84. That
criticism apparently prompted Lew to make the recommendation to “move [Plaintiff] to another
security discipline within the office.” Lew Email. According to the testimony presented at trial,
Marshall took Lew’s recommendation and delivered it to the Executive Steering Group (“ESG”),
a committee assembled to address deficiencies identified in the audit report. Jury Trial Tr., ECF
No. 144, at 684–87. Cliff Oliver, Plaintiff’s third-line supervisor who sat on the ESG relayed the
recommendation to transfer Plaintiff to Jose Cantu, Plaintiff’s first-line supervisor, and left it to
Cantu to decide whether to implement the transfer. Jury Trial Tr., ECF No. 145, at 816–18, 822–

8

23. Cantu ultimately concluded that Plaintiff’s transfer was warranted. See Defs.’ Mot. for Summ.
J., ECF No. 73, Ex. 30, ECF No. 73-7. When viewed against this sequence of events, the relevance
of Lew’s email and testimony is obvious. That proof tended to show that Plaintiff’s superiors
reasonably and honestly believed that there were legitimate non-discriminatory and non-retaliatory
grounds for Plaintiff’s reassignment. Lew’s email and testimony thus were properly admitted as
non-hearsay.
Belatedly, Plaintiff insists that, even if relevant, the Lew evidence was excludable under
Federal Rule of Evidence 403. See Pl.’s Reply to Def.’s Opp’n to Mot. for J. as Matter of Law, or
in the Alternative, for New Trial, ECF No. 155 [hereinafter Pl.’s Reply], at 10. As a threshold
matter, the court rejects that argument for the simple reason that Plaintiff raises it for the first time
in her reply brief. See Forman v. Korean Air Lines Co., 84 F.3d 446, 448 (D.C. Cir. 1996).
Moreover, even if the court were to consider the argument, the probative value of the Lew evidence
was not substantially outweighed by the danger of unfair prejudice. See Fed. R. Evid. 403. As
already discussed, the Lew evidence was probative of the non-discriminatory, non-retaliatory
reason offered for Plaintiff’s transfer. The risk that the jury would use the evidence for an improper
purpose—to infer that Plaintiff in fact impeded efforts to improve the Branch—was mitigated by
three limiting instructions given by the court. First, after Ms. Lew finished testifying about the
contents of the email on direct examination, the court instructed the jury as follows:
[T]here are references in th[e] email to observations and
understandings that Ms. Lew had about what was transpiring in the
training division.[4] You should not take those observations and
understandings as the truth of what, in fact, was happening; rather,
you should take them as the reasons for why she made the
recommendation that she made.

4

The court misspoke but clearly meant the Personnel Security Branch, not the training division.

9

Jury Trial Tr., ECF No. 143, at 551. The court reiterated this instruction after Plaintiff completed
her cross-examination of Ms. Lew:
I want to just reiterate the limiting instruction I gave earlier. You’ve
now heard Ms. Lew testify that some of what she heard about—
some of the basis of that email [were] things she was told [by]
others. Once more, you should not accept what she was told by
others for the truth but, rather, it’s being provided to you as
background for why she made the recommendation she did.
Id. at 562–63. And the court admonished the jury one final time during its instructions delivered
before closing arguments. Jury Trial Tr., ECF No. 146, at 948–49; accord Final Jury Instrs., ECF
No. 129, at 5. 5 These limiting instructions provided Plaintiff ample protection against unfair
prejudice. Cf. Penry v. Johnson, 532 U.S. 782, 799 (2001) (“We generally presume that jurors
follow their instructions.”); United States v. Crews, 856 F.3d 91, 97 (D.C. Cir. 2017) (“We
generally presume that ‘a jury will follow an instruction to disregard inadmissible evidence
inadvertently presented to it’ absent ‘an overwhelming probability that the jury will be unable to
follow the court’s instructions.’”) (quoting Greer v. Miller, 483 U.S. 756, 766 n.8 (1987)).
The foregoing conclusions are supported by binding precedent that Plaintiff fails to cite—
Desmond v. Mukasey, 530 F.3d 944 (D.C. Cir. 2008). In Desmond, the plaintiff, a trainee at the
FBI Academy, brought disparate treatment and retaliation claims under the Rehabilitation Act.
See id. at 946–47. In his retaliation claim, the plaintiff alleged that he was refused a promotion
from the FBI Academy after he filed an equal employment opportunity complaint based on his
disability. See id. at 950–52. To establish a non-retaliatory reason for his non-promotion, the
5

The instruction reads as follows:
Some evidence was admitted for a limited purpose only. Specifically, the court admitted
Defendant’s Exhibit 3 into evidence. Contained within Exhibit 3 are statements about Ms. Ames
that were based on what others told Ms. Kimberly Lew. Ms. Lew also provided some testimony as
to those observations by others. I permitted the observations of others as reflected in the email and
Ms. Lew’s testimony solely for the purpose of providing context for the recommendation Ms. Lew
made. You shall not consider those observations for the truth of the matter asserted.

10

government offered as proof a 112-page investigation report that detailed the plaintiff’s “alleged
failures, infractions, and indiscretions at the Academy.” Id. at 965. The report was prepared by a
subordinate and submitted to a superior, who in turn made the recommendation not to promote the
plaintiff up the chain of command. Id. at 950–51. The recommendation was accepted. See id. at
952–53. On appeal, the plaintiff challenged the district court’s admission of the report, arguing it
had no probative value and in any event was inadmissible under Rule 403. Id. at 965. The Circuit
rejected these arguments. Id. at 965–66. It held that the probative value of the report was
“obvious,” as it showed the information that the superior had before him when he made his
recommendation not to promote the plaintiff. Id. at 965. As to the risk of unfair prejudice, the
Circuit held that such risk was sufficiently mitigated because the district court: (1) “refused to
admit the report for the truth of its substance”; (2) forbade both sides from bolstering or attacking
the report; and (3) “repeatedly admonished the jury to consider the report solely for the limited
purpose of showing [the superior’s] reliance.” Id. at 966. This approach, the court concluded,
“kept the trial—and the jury—focused on events occurring after [the plaintiff] filed his EEO
complaint, striking a balance between providing the jury with the information it needed and
protecting [the plaintiff] from the risk of unfair prejudice.” Id.
This court sees little material difference between this case and Desmond. If anything, the
report at issue in Desmond supplied a far greater risk of unfair prejudice, given its length and
multiple instances of “failures, infractions, and indiscretions” detailed therein. Here, by contrast,
the court admitted a single email and allowed limited testimony about why Lew made the transfer
recommendation and why Marshall forwarded it on to the ESG. Notwithstanding, this court still
put in place the same types of safeguards the Circuit in Desmond considered “sensible and well

11

within the district court’s discretion.” Id. If the trial court in Desmond did not err, neither did this
court.
2.

Defendants’ Reliance on Lew Email and Testimony in Summation

Plaintiff also maintains that she is entitled to a new trial because she was unfairly
prejudiced by defense counsel’s repeated efforts in summation to use Ms. Lew’s email and
testimony for an impermissible purpose: to argue that Plaintiff in fact had “halted” training efforts
and created “road blocks” to improving the Personnel Security Branch. Pl.’s Mem. at 10, 14–15;
see also Caudle v. District of Columbia, 707 F.3d 354, 359 (D.C. Cir. 2013) (“A new trial may be
granted based on improper jury argument.”). That argument fails for multiple reasons.
First, Plaintiff wildly overstates the centrality of Lew’s email and testimony to the
government’s closing argument. According to Plaintiff, Defendants’ “closing statement focused
on the agency’s contention that Ms. Lew’s email and her subsequent testimony were true . . .
[and] explain[ed] why Ms. Ames was transferred to a nonexistent position.” Pl.’s Reply at 11;
accord Pl.’s Mem. at 10 (arguing that counsel used evidence to demonstrate that Defendants had
a legitimate business reason for transferring Plaintiff). But of the thirty transcript pages comprising
Defendants’ summation, reference to Ms. Lew’s email or testimony concerning the transfer
recommendation appears on only five. Jury Trial Tr., ECF No. 146, at 988–89, 991–92, 995. On
those pages, defense counsel merely discusses the evidence in the context of explaining how the
recommendation came about in the overall chronology of events. See id. at 985–1006. The Lew
evidence therefore did not play the “central” role in Defendants’ summation that Plaintiff ascribes
to it. Pl.’s Mem. at 10.
Second, Plaintiff greatly exaggerates the defense closing as having “repeatedly and
blatantly sought to circumvent the Court’s limiting instruction[s].” Pl.’s Reply at 11. To be sure,

12

in the court’s view, defense counsel did attempt to cross the line once during summation. After
referencing the email to the jury for the first time, defense counsel stated, “I asked [Ms. Lew],
[d]id you want to make sure that email, the information’s correct? Yes.” Jury Trial Tr., ECF No.
146, at 989. Plaintiff objected, and the court sustained the objection, agreeing during a bench
conference that the argument made by defense counsel had suggested Ms. Lew’s
“recommendations have a basis in fact and that they were not inadmissible hearsay.” Id. at 990.
Thereafter, defense counsel did no more than highlight the text of the email and note that Marshall
received the transfer recommendation from Lew. See id. at 991–92. That was permissible. He
did not urge the jury, as Plaintiff contends, to find that Plaintiff, in truth, interfered with and
impeded efforts to address problems within the Personnel Security Branch. If anything, the court
guarded against that prospect by stating in response to an objection, “The jury understands what
the limitations are of that document. They’ve been instructed multiple times[.]” Id. at 991.
Finally, there is no reason to believe that the jury would have ignored the court’s multiple
limiting instructions, even if defense counsel’s summation went too far. By the time of closings,
based on the court’s thrice-delivered limiting instruction, the jury was acutely aware of the limited
purpose for which the court admitted Lew’s email and testimony. The court presumes that the jury
followed these limiting instructions. See Tennessee v. Street, 471 U.S. 409, 414–15 (1985).
Moreover, this is not a case where counsel egregiously and repeatedly exceeded the limitations
placed on the evidence. Cf. Caudle, 707 F.3d at 363 (distinguishing case where counsel “made a
single misstatement and ceased further misstatements after the district court sustained an
objection” from case where counsel made “four impermissible statements”). And, while defense
counsel’s use of the Lew evidence went to a central issue in the case—the legitimacy of
Defendants’ reasons for reassigning Plaintiff—Plaintiff exaggerates the closeness of the case. See

13

id. at 361 (listing closeness of case,centrality of issues, and steps taken to mitigate effects as three
factors courts should consider when determining whether error was harmless). Plaintiff is simply
incorrect that Defendants would have been left with “perjured testimony” and “no legitimate
business reason to explain the transfer” in the absence of the Lew evidence. See Pl.’s Reply at 14.
The record speaks for itself on that score.
Accordingly, a new trial is not warranted based on Defendants’ alleged improper use of the
Lew email and testimony during closing argument.
D.

Mixed-Motive Instruction

Moving on to Plaintiff’s fourth argument, Plaintiff asks the court to reconsider her request
for a mixed-motive instruction on her retaliation claim and to grant her a new trial as to that claim.
See Pl.’s Mem. at 16. The court declines the invitation for the same reasons it did before. In
University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338, 352 (2013), the
Supreme Court expressly eliminated the mixed-motive theory of liability for Title VII retaliation
claims, holding that such claims “require proof that the desire to retaliate was the but-for cause of
the challenged employment action.” The court therefore did not err in refusing to give a mixedmotive instruction on Plaintiff’s retaliation claim, and a new trial is not justified on this ground.
Furthermore, Plaintiff has consistently—and mistakenly—cited the Fourth Circuit’s
decision in Foster v. University of Maryland-Eastern Shore, 787 F.3d 243 (4th Cir. 2015), as
evidence of a Circuit split on the mixed-motive issue. See, e.g., Pl.’s Mem. at 16. But the split
referenced in Foster pertains to a question not relevant here— “whether Nassar has any bearing
on the causation prong of the prima facie case.” Foster, 787 F.3d at 250–51 (emphasis added).
Like Nassar, the question here arises in the context of a post-trial motion in a Title VII case and
does not turn on any such Circuit split. See Foster, 787 F.3d at 250 (“Nassar involved a post-

14

judgment motion for judgment as a matter of law in a mixed-motive case, and therefore did not
address the elements of a prima facie case of retaliation under the pretext framework.”); see also
Durant v. D.C. Gov’t, 875 F.3d 685, 697 (D.C. Cir. 2017) (“If the employer provides a legitimate,
nonretaliatory reason for its conduct, the burden-shifting framework disappears and the question
becomes whether a reasonable jury could infer retaliation from all the evidence . . . .” (cleaned
up)). In short, Plaintiff cites no authority that would have permitted a mixed-motive instruction
on her retaliation claim.
E.

“Reconsideration of Knowingly False Security Reports”

The final ground for a new trial asserted by Plaintiff challenges this court’s prior rulings
addressing Department of Navy v. Egan, 484 U.S. 518 (1988), and its progeny, which bar judicial
review of Title VII claims that require courts to evaluate the merits of security clearance
determinations. At the summary judgment stage, the court found that Egan did not apply to
Plaintiff’s Title VII claims based on her reassignment and allowed those claims to proceed to trial.
See Ames v. Nielsen, 286 F. Supp. 3d 70, 89–90 (D.D.C. 2017). Plaintiff later filed a motion in
limine seeking to preclude Defendants from asserting at trial that Plaintiff’s reassignment was
based on her improper granting of security clearances. See generally Pl.’s Second Mot. in Limine,
ECF No. 94. In denying Plaintiff’s motion, the court held that Defendants could present evidence
at trial “regarding the agency’s limited suspension of Plaintiff’s Branch’s responsibility for
security clearances as background for Plaintiff’s . . . reassignment.” The court further held that
Plaintiff could not, under Egan, challenge the reasons for the actions taken against the Branch.
Omnibus Pretrial Order ¶ 2.
It is this decision that forms the basis of Plaintiff’s motion for a new trial. See Pl.’s Mem.
at 17; Pl.’s Reply at 18–19. Plaintiff appears to ask the court to reconsider its prior motion in

15

limine ruling in light of the evidence presented at trial—namely, Defendants’ “abandon[ment of]
prior sworn testimony of its principal witnesses and [a] stipulat[ion] that Ms. Ames never issued
any such interim Top Secret clearances.” Pl.’s Mem. at 17. In particular, Plaintiff contends that
she is entitled to a new trial “because the record now shows that the agency’s Egan defense and
concomitant limitation of plaintiff’s evidence was based on ‘knowingly false security reports or
referrals,’” Pl.’s Reply at 19 (quoting United States v. Old Chief, 519 U.S. 172, 186 (1997)). The
D.C. Circuit recognized knowingly false reporting as falling outside the Egan rule in Rattigan v.
Holder, 689 F.3d 764, 770 (D.C. Cir. 2012).
The court is confused by Plaintiff’s argument. For starters, the court allowed in as evidence
the limited suspension of the Personnel Security Branch’s security-clearance adjudication
authority only as background evidence to place into context why the Branch’s work was subject
to scrutiny. See Pretrial Hr’g Tr. at 24–25. There was no evidence that an improper clearance
determination made by Plaintiff or anyone else under her supervision was the cause of Plaintiff’s
transfer. Therefore, even if the court were to accept that the Branch’s limited suspension was
based on a false premise—which is a real reach, to say the least—such falsity had no causal
connection to the alleged adverse action.
Furthermore, Rattigan has no application here. There, the D.C. Circuit held that Egan does
not apply to Title VII claims premised on the assertion that “agency employees acted with a
retaliatory or discriminatory motive in reporting or referring information that they knew to be
false.” Rattigan, 689 F.3d at 771. But in that case, the plaintiff alleged that “the decision to refer”
another employee’s purported concerns about the plaintiff to the agency’s Security Division, which
prompted an investigation into the plaintiff’s security clearance, “amounted to unlawful retaliation
for [his] pursuit of discrimination claims.” Id. at 766. The exception announced in Rattigan thus

16

applied to “security reporting claims.” Id. at 771 (announcing “knowingly false standard for
security reporting claims”). Here, by contrast, the false accusations of which Plaintiff complains
arose in the context of the present litigation and took the form of discovery responses. See Pl.’s
Second Mot. in Limine, Mem. in Supp., ECF No. 94-1 at 2–4. They do not form the basis of the
claims alleged in her Amended Complaint. See generally Am. Compl., ECF No. 29. Rattigan is
therefore inapposite.
Finally, to the extent Plaintiff argues that she is entitled to a new trial because “the jury
should be able to hear that the justification for Ms. Ames’ transfer was so weak that the agency
felt it necessary to manufacture the claim of issuance of interim Top Secret security clearances to
justify its position,” Pl.’s Reply at 18, that argument makes little sense to the court. Not only did
the jury have as evidence a stipulation that no interim Top-Secret clearances were granted during
2010 or 2011, see Jury Trial Tr., ECF No. 142, at 309, but Plaintiff also questioned her former
supervisors at trial about the falsity of any previous statements to the contrary, see, e.g., id. at 270–
71, 313–16; Jury Trial Tr., ECF No. 143, at 558–59; see also Jury Trial Tr., ECF No. 146, at 978–
81, 1006–09, 1013 (relying on these inconsistencies in closing arguments). In sum, whatever
importance Plaintiff attaches to the inconsistent testimony offered by her supervisors concerning
the nature of interim security clearances granted (“Secret” or “Top-Secret”), that testimony does
not bring her Title VII claims within Rattigan. Nor does it provide any basis to grant her a new
trial, as she had the opportunity to confront the witnesses about any inconsistencies. 6

In her Reply, Plaintiff also maintains that she has “a separate actionable claim for the removal of her security
clearance duties as these actions were based on claims within the exception recognized in Rattigan.” Pl.’s Reply at 19.
The court assumes that this argument refers to its granting of summary judgment in favor of Defendants based on the
agency’s decision to suspend Plaintiff’s Branch from adjudicating security clearances for certain employees. See
Ames, 286 F. Supp. 3d at 79; see also Am. Compl. ¶¶ 19–33. The non-Egan reasons for that decision still stand,
however. See Ames, 286 F. Supp. 3d at 84 (holding that the July suspension did not qualify as an adverse action
because Plaintiff failed to show objectively tangible harm); id. (holding that Plaintiff’s retaliation claim failed as a
matter of law because there was no dispute that the suspension occurred before the alleged protected activity).

6

17

IV.

CONCLUSION AND ORDER
For the foregoing reasons, the court denies Plaintiff’s Motion for Judgment as a

Matter of Law, or in the Alternative, for a New Trial, ECF No. 149. Plaintiff shall respond
to Defendants’ Bill of Costs, ECF No. 139, no later than November 16, 2018

Dated: November 2, 2018

Amit P. Mehta
United States District Judge

18