COULIBALY v. KERRY et al
Filing
100
MEMORANDUM OPINION granting in part and denying in part 85 Defendant's Motion for Partial Summary Judgment; granting in part 86 Defendant's Motion to Compel Fees; deferring ruling on 84 Plaintiff's Motion to Exclude Expert Opinion. See document for details. Signed by Judge Rudolph Contreras on 3/31/2020. (lcrc1)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TIEMOKO COULIBALY,
Plaintiff,
v.
MICHAEL R. POMPEO,
Defendant.
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Civil Action No.:
14-712 (RC)
Re Documents Nos.: 84, 85, 86
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR PARTIAL SUMMARY
JUDGMENT; GRANTING IN PART DEFENDANT’S MOTION TO COMPEL FEES; DEFERRING
RULING ON DEFENDANT’S MOTION TO EXCLUDE EXPERT OPINION
I. INTRODUCTION
Plaintiff Tiemoko Coulibaly has brought this action against the U.S. Secretary of State
(“Defendant”). He alleges Title VII and Family Medical Leave Act (“FMLA”) violations
stemming from his time employed by Defendant at the Department of State’s Foreign Service
Institute (“FSI”).
Defendant now moves for partial summary judgment with respect to certain kinds of
claims, evidence, and relief. See Def.’s Mot. for Partial Summ. J. at 1, ECF No. 85 (moving for
summary judgment “with respect to Plaintiff’s claims (1) based on a hostile work environment;
(2) based on [Plaintiff’s] midyear performance evaluation; and (3) for back pay and front pay”). 1
Because genuine issues of material fact remain with respect to Dr. Coulibaly’s hostile work
environment claims, the Court will deny the motion in that respect. As for Dr. Coulibaly’s
claims based on his midyear performance evaluation, the Court accepts Defendant’s argument
1
All page numbers in this opinion refer to the ECF page numbers.
that the evaluation itself is not an actionable adverse action, but agrees with Dr. Coulibaly that it
can be considered as a part of an alleged pattern of retaliation and discrimination. Thus
construed and narrowed, the Court grants the Defendant’s motion as to that issue. Finally, the
Court will defer ruling on Defendant’s motion as to Dr. Coulibaly’s claims for back and front
pay. Such remedies are equitable and raise questions that would be better considered in the
context of a post-trial proceeding.
Also ripe are Dr. Coulibaly’s motion to partially exclude the expert opinion of Dr. Laura
Malowane, ECF No. 84, and Defendant’s motion to compel fees, ECF No. 86. For reasons
explained below, the motion to exclude is deferred and the motion to compel fees is granted in
part.
II. BACKGROUND 2
As recounted in an earlier opinion, Dr. Coulibaly joined FSI as a French instructor in
1999. Mem. Op. Denying Parties’ Cross-Motions for Summ. J., ECF No. 47. He taught students
and provided input into course planning and development and, according to several co-workers,
was well-regarded as a teacher and colleague. Id. at 3. After initially being hired as a contractor,
Dr. Coulibaly began a direct-hire appointment on June 19, 2011. Id. at 3–4.
The main events giving rise to Dr. Coulibaly’s hostile work environment claim took place
shortly after that appointment, when Dr. Laura Fyfe was assigned to be his direct supervisor.
Def.’s Stmt. Undisputed Facts (“Def.’s SOF”) at 1, ECF No. 85-7; Pl.’s Resp. Def.’s Stmt.
Undisputed Facts (“Pl.’s SOF”) at 1, ECF No. 90-1. Since 2009, Dr. Fyfe and Dr. Coulibaly had
communicated on friendly terms, with Dr. Fyfe mentioning that her late husband was, like Dr.
Coulibaly, originally from the Ivory Coast (or Côte d’Ivoire). Def.’s SOF at 2. She eventually
2
Unless otherwise noted, the recited facts are undisputed by the parties, at least for the
purposes of the motion for summary judgment.
2
confided more details about her life with her husband, including that he exhibited aggressive
behavior. Id. She also mentioned that her husband was a member of an ethnic group called the
Bété, whose members she described as “violent” or “aggressive.” Id. Dr. Coulibaly is not, in
fact, a Bété member, id., but he was raised by one, Pl.’s SOF at 2. The record does not establish
whether Dr. Fyfe actually knew that Dr. Coulibaly was not a member of the Bété, Pl.’s SOF at 2,
or whether Dr. Fyfe knew that he was raised by a member of the group. Dr. Fyfe later admitted
it was “not great judgment” to generalize about an ethnic group in the workplace. Id. at 25.
Shortly after Dr. Fyfe became Dr. Coulibaly’s supervisor, he began feeling that she was
providing “very hostile negative feedback” and “criticis[m]” and “was trying to find any pretext”
and “excuse to blame him.” Pl.’s SOF at 3. For example, Dr. Fyfe once said that Dr. Coulibaly
“cannot even understand elementary think.” Def.’s SOF at 2. Things came to a head over Dr.
Fyfe’s request for a particular kind of lesson plan, which Dr. Coulibaly found “confus[ing].”
Def.’s SOF at 3. On November 8, 2011, the two met to discuss their concerns in the presence of
a supervisor, Ms. Keller-Lally. Def.’s SOF at 5. According to Dr. Coulibaly’s later recollection
of the meeting, Dr. Fyfe became “very emotional” and suggested that he had “an ax to grind
against [her]” because her former husband was also from the Ivory Coast. Pl.’s SOF at 8–9. For
his part, Dr. Coulibaly understood that Dr. Fyfe was “blaming me for being Ivorian, for being
against her because her former husband was from Côte d’Ivoire and talking to me about my
background.” Pl.’s SOF at 9. In her deposition, Dr. Fyfe also described Dr. Coulibaly’s tone in
various emails during this period as “belligerent,” “aggressive,” and “antagonistic.” Pl.’s SOF at
25; see also Def.’s Resp. Pl.’s SOF at 2, ECF 93-3. She also described his behavior in a
particular interaction as “menacing.” Pl.’s. SOF at 25 (quoting Pl.’s Opp. Mot. Summ. J. Ex. 1
(“Fyfe Tr.”) at 39, ECF No. 90-2 (“I felt like he was—he was out to get me. He was menacing
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me. He was staring at me down the hall.”)). She later conceded that her request of Dr. Coulibaly
for a particular kind of lesson plan may not have been fully justified. Def.’s SOF at 5 (“Dr. Fyfe
conceded that ‘[her suggested approach] may not be a typical way to do reading and that
Tiemoko [Coulibaly] was rightly confused by her sending him that.’”) (quoting Def.’s Mot. for
Partial Summ. J. Ex. B (“EEO Investigation Report”) at 17, ECF No. 85-3).
That same month (November 2011), Dr. Coulibaly filed an EEO complaint. Two
supervisors—Dr. Fyfe and Debra Blake—asked him about the complaint. Pl.’s SOF at 25; see
Pl.’s Opp. Mot. Summ. J. Ex. 7 (“Blake Tr.”) at 11, ECF No. 90-8 (“He raised something about
his complaint. I asked if he had filed a complaint, he didn’t answer, and I apologized for
asking.”); Pl.’s Opp. Mot Summ. J. Ex. 2 (“Coulibaly Tr.”) at 41, ECF No. 90-3 (“Debra Blake
herself called me in her office several times to ask me about my discrimination claim, to ask me
if I filed a discrimination complaint.”); Coulibaly Tr. at 44 (“[Dr. Fyfe and Ms. Blake] called me
into their office and started bombarding me with questions about the discrimination. Why did
you go there? What did you do?”).
During this period, Dr. Coulibaly also received pointed criticism for his work; Dr. Fyfe
herself acknowledged that some of her critiques of his teaching were “pretty harsh.” Fyfe Tr. at
25. He also recounted that Dr. Fyfe “yell[ed] at me” and was “disrespectful” during a meeting.
Coulibaly Tr. at 18. He felt that he was singled out and subjected to requirements that other
employees were not. See Def.’s SOF at 7 (“Plaintiff brought to Ms. Blake a list of the teachers
who never posted a syllabus on the intranet and asked whether she had called them in for a
meeting to complain that they had not posted their syllabus, and she said no.”); Fyfe Tr. at 49 (Q:
“Did you in any way reprimand those [other] three instructors for not putting their syllabi on the
SharePoint, to your recollection?” A: “I don’t recall, no.”).
4
On December 27, 2011, Plaintiff received what he considered to be a negative
performance evaluation report, written by Dr. Fyfe. Def.’s SOF at 9. Dr. Coulibaly felt the
report was made in bad faith and was “just a tool used to prepare my termination.” Def.’s SOF
at 9. For example, it contained apparent falsehoods (such as that Dr. Coulibaly was not able to
teach beginners, when he had, in fact, taught beginners for two years) and referenced Dr. Fyfe’s
earlier criticism that she had already admitted was misplaced. Def.’s SOF at 9; Pl.’s SOF at 13–
14. A couple of days later, during a December 29, 2011 training session on syllabus preparation,
a supervisor (Mr. Casteuble) yelled at Dr. Coulibaly and told him to stop talking when Dr.
Coulibaly asked why he was being singled out for additional training. Def.’s SOF at 10.
Dr. Coulibaly went on medical leave in early 2012. Def.’s SOF at 13. He testified that
during this time, Mr. Casteuble and employees from human resources “harassed me with several
e-mails, phone calls.” Pl.’s SOF at 22. He also claims that he was denied leave requests for
improper reasons and subjected to additional, unnecessary requirements when requesting leave.
Def.’s SOF at 13; Pl.’s SOF at 26. He was ultimately terminated in April 2012 for “unacceptable
conduct,” including “inappropriate interactions with supervisors, and . . . failure to follow
established procedures for requesting leave.” See Mem. Op. at 24, ECF No. 47 (quoting Letter
from Catherine Russell to Tiemoko Coulibaly (Apr. 2, 2012), ECF No. 26-8).
III. ANALYSIS
A. Motion for Summary Judgment
1. Legal Standard
A court may grant summary judgment when “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). A “material” fact is one capable of affecting the substantive outcome of the
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litigation, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), while a dispute is
“genuine” if there is enough evidence for a reasonable jury to return a verdict for the nonmovant, see Scott v. Harris, 550 U.S. 372, 380 (2007).
The principal purpose of summary judgment is to streamline litigation by disposing of
factually unsupported claims or defenses and determining whether there is a genuine need for
trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). The movant bears the initial
burden of identifying portions of the record that demonstrate the absence of any genuine issue of
material fact. See Fed. R. Civ. P. 56(c)(1); Celotex, 477 U.S. at 323. In response, the nonmovant must point to specific facts in the record that reveal a genuine issue that is suitable for
trial. See Celotex, 477 U.S. at 324. In considering a motion for summary judgment, a court
cannot make credibility determinations or weigh the evidence. See Czekalski v. Peters, 475 F.3d
360, 363 (D.C. Cir. 2007). All underlying facts and inferences must be analyzed in the light
most favorable to the non-movant. See Anderson, 477 U.S. at 255. That said, conclusory
assertions offered without any evidentiary support do not establish a genuine issue for trial. See
Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).
2. Motion for Summary Judgment as to Plaintiff’s Hostile Work Environment Claim
Defendant argues that Dr. Coulibaly’s hostile work environment claim is deficient in
three respects: (1) the alleged conduct was not sufficiently severe or pervasive, (2) the alleged
conduct was not based on Dr. Coulibaly’s protected status, and (3) in any case, the Defendant
promptly acted to address Dr. Coulibaly’s concerns. The Court will address each argument. in
turn.
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a. Was the Relevant Conduct Severe or Pervasive?
To succeed on a discriminatory or retaliatory hostile work environment claim under Title
VII, a plaintiff must show that the harassment was so “permeated with discriminatory
intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of
the victim’s employment and create an abusive working environment.” Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75, 78 (1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17,
21 (1993)); accord Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008). “The key
terms . . . are ‘severe,’ ‘pervasive,’ and ‘abusive,’ as not just any offensive or discriminatory
conduct rises to an actionable hostile work environment.” Lester v. Natsios, 209 F. Supp. 2d 11,
22 (D.D.C. 2003) (citing Oncale, 523 U.S. at 78). The test has both subjective and objective
dimensions: the plaintiff must “subjectively perceive the environment to be abusive” and the
conduct must be “severe or pervasive enough to create an objectively hostile or abusive work
environment.” Harris, 510 U.S. at 21–22 (1993).
Defendant acknowledges that Dr. Coulibaly subjectively perceived the harassment as
severe or pervasive, but suggests that, viewed objectively, it did not rise to that level. In
particular, Defendant argues that the period of alleged harassment was comparatively brief (less
than six months) and was similar to non-actionable cases involving mere supervisor criticism and
workplace discipline. See Def.’s Mem. Support Summ. J. (“Def.’s Br.”) at 19, ECF No. 85-1.
Dr. Coulibaly contests this characterization and distinguishes the cases cited by the Defendant,
noting that Dr. Coulibaly “alleges far more than simple issues with his supervisors’ approach.”
Pl.’s Mem. Opp. Def.’s (“Pl.’s Br.”) at 14, ECF No. 90.
Whether a work environment is objectively hostile ultimately depends on the particular
acts “taken as a whole.” Whorton v. Washington Metro. Area Transit Auth., 924 F. Supp. 2d
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334, 353 (D.D.C. 2013). “Very rarely will such fact-based determinations be appropriate for
determination on summary judgment,” Armstrong v. Reno, 172 F. Supp. 2d 11, 24 (D.D.C.
2001), particularly given that the Court is not permitted to weigh the evidence or assess the
credibility of witnesses. Here, these considerations make it impossible for the Court to conclude
that, as a matter of law, the incidents here were not sufficiently severe or pervasive. Viewing the
evidence in a light most favorable to Dr. Coulibaly, a reasonable factfinder could conclude that
racial considerations or stereotypes permeated his work environment and compromised his
ability to perform his job. In particular, the record suggests that Dr. Coulibaly was, over a period
of months leading up to his termination, variously yelled at, singled out for criticism,
inappropriately asked about his EEO complaints, and subjected to leave requirements that others
were not. These acts go beyond the “simple teasing, offhand comments, and isolated incidents”
that have been considered insufficiently serious. Faragher v. City of Boca Raton, 524 U.S. 775,
788 (1998) (internal citations and quotations omitted). There are, of course, alternative ways of
viewing these events, but a reasonable jury could accept Dr. Coulibaly’s characterization.
Accordingly, while the objective evidence of workplace hostility remains less than
overwhelming, it is enough—particularly because it includes a number of events that can be
viewed as stepping stones leading to Dr. Coulibaly’s termination—to overcome the summary
judgment bar.
b. Was the Relevant Conduct Based on Dr. Coulibaly’s Race, Ethnicity, National Origin, or
Participation in Protected Activity?
Additionally, to prevail on a discriminatory or retaliatory hostile work environment
claim, a plaintiff must show that he or she was harassed because of his or her protected status.
Lester, 209 F. Supp. 2d at 22; see also Holmes-Martin v. Sebelius, 693 F. Supp. 2d 141, 166
(D.D.C. 2010) (noting that the the plaintiff must provide a linkage “between the allegedly
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harassing behavior and the claimed ground of discrimination or her participation in protected
activity”). Defendant argues here that Dr. Coulibaly has not shown the requisite causal
connection between the alleged harassment and Dr. Coulibaly’s race, ethnicity, national origin,
or EEO activity. See Def.’s Br. at 22.
In response, Dr. Coulibaly first highlights his interactions with Dr. Fyfe. Admittedly, Dr.
Fyfe did not state outright that she was discriminating against Dr. Coulibaly because of his race,
ethnicity, or national origin. But she did ask if he had “an ax to grind against [her] because of
her ex.” Pl.’s SOF at 9. For his part, Dr. Coulibaly understood this to mean that she was
“blaming me for being Ivorian, for being against her because her former husband was from Côte
d’Ivoire and talking to me about my background.” Pl.’s SOF at 9. Even though Dr. Frye’s
statement is couched as accusation of prejudice against her by Dr. Coulibaly, a rational jury
could infer that she was making negative assumptions about Dr. Coulibaly due to his shared
national origin with her abusive ex-husband. Her comments describing Dr. Coulibaly’s emails
and behavior as “aggressive,” “belligerent,” and “menacing” provide further support for this
theory, because these characterizations parallel the stereotypes she allegedly held as a result of
her experiences with her late husband who was also from the Ivory Coast. Pl.’s. SOF at 25.
Dr. Coulibaly also points to evidence that he was less favorably treated than a white
instructor who became a direct hire on the same day as he did. Def.’s SOF at 7; see also Pl.’s Br.
at 11 (“Other instructors, including those of a race different than Dr. Coulibaly, were not
reprimanded in any way for failing to submit syllabi at all, even after the December 29, 2011
training.”); Fyfe Tr. at 49 (“Q. Did you in any way reprimand those three instructors for not
putting their syllabi on the SharePoint, to your recollection? A. I don’t recall, no.”).
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Finally, Dr. Coulibaly alleges, with support in the record, that multiple supervisors asked
him about his EEO activity. See, e.g., Coulibaly Tr. at 44 (“[Dr. Fyfe and Ms. Blake] called me
into their office and started bombarding me with questions about the discrimination. Why did
you go there? What did you do?”); id. at 41 (“Debra Blake herself called me in her office several
times to ask me about my discrimination claim, to ask me if I filed a discrimination complaint.”).
This evidence, in various ways, connects the alleged harassment to Dr. Coulibaly’s
various protected statuses. It could suggest to a finder of fact that Dr. Fyfe was poorly disposed
towards Dr. Coulibaly because he was from the Ivory Coast and that Dr. Coulibaly was treated
less favorably than white employees. It also permits the inference that Dr. Coulibaly’s EEO
activities sparked retaliatory animus in his supervisors, which in turn encouraged them to
manufacture further criticism of his work, behavior, and leave practices. See Burton v. Donovan,
210 F. Supp. 3d 203, 215 (D.D.C. 2016) (finding sufficient evidence of retaliatory motive in part
because a supervisor was “improperly interested in Plaintiff’s prior protected activity and the
possibility that she might engage in future protected activity”), aff’d sub nom. Burton v. Carson,
No. 17-5190, 2018 WL 1391543, at *1 (D.C. Cir. Feb. 21, 2018); Holcomb v. Powell, 433 F.3d
889, 903 (D.C. Cir. 2006) (“At the prima facie stage of a retaliation claim, a plaintiff’s burden ‘is
not great; [she] merely needs to establish facts adequate to permit an inference of retaliatory
motive.’”) (quoting McKenna v. Weinberger, 729 F.2d 783, 790 (D.C. Cir. 1984)) (alteration in
original).
Again, the evidence is not overwhelming, and Dr. Fyfe’s remarks about her ex-husband,
in particular, are subject to different interpretations. But it is enough to merit a jury’s
consideration.
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c. Did Defendant Take Prompt Action to Address Dr. Coulibaly’s Concerns—and Was Dr.
Coulibaly Required to Prove That It Did Not?
Finally, Defendant suggests that “Plaintiff cannot establish that Defendant failed to take
action to address the concerns that he raised,” which Defendant understands to be an element of
a hostile work environment claim. Def.’s Br. at 25–26. Some cases have indeed articulated that
as a general requirement. See, e.g., Lester, 290 F. Supp. 2d at 22 (“To establish a prima facie
hostile work environment claim, plaintiff must demonstrate that,” among other things, “the
employer knew or should have known of the harassment, but failed to take any action to prevent
it.”). But subsequent cases have clarified that this element applies only to cases involving
harassment by co-workers—that is, situations in which the employer is not directly responsible,
but could be vicariously liable. See Ayissi-Etoh, 712 F.3d 572, 577 (D.C. Cir. 2013) (citing
Faragher, 524 U.S. at 789) (“To establish liability when a plaintiff is harassed by his or her coworkers, the plaintiff must prove that the employer was at least negligent in not preventing or
correcting the harassment.”). In contrast, “[w]hen, as here, the plaintiff is harassed by
supervisors with immediate (or successively higher) authority, the supervisors are treated as the
employer’s proxy.” Ayissi-Etoh, 712 F.3d at 577 (internal citations and quotations omitted).
Thus, “for hostile work environment claims involving the conduct of a supervisor, the plaintiff
need not allege as an element of the claim that the employer knew, or should have known, of the
harassment and failed to take action to prevent further harassment.” Slate v. Pub. Def. Serv. for
the D.C., 31 F. Supp. 3d 277, 302 n.12 (D.D.C. 2014). As a result, even if Defendant were
correct that Dr. Coulibaly had failed to make such a showing, it would not entitle Defendant to
summary judgment.
For all these reasons, Dr. Coulibaly’s hostile work environment claim survives summary
judgment.
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3. Motion for Summary Judgment as to Plaintiff’s Claim “Based” on the Midyear Evaluation
Report
In one of Dr. Coulibaly’s earlier responses to a set of interrogatories, he characterized his
negative performance evaluation report as an “adverse employment action.” Def.’s Br. at 26
(quoting Pl.’s Suppl. Objections and Responses to Def.’s Interrogatories Nos. 1 and 11 (May 18,
2018)). Defendant contends that such a midyear review had no bearing on Dr. Coulibaly’s
“position, grade level salary, promotional opportunities, or otherwise caused direct economic
harm to Plaintiff” and thus, as a matter of law, “does not constitute a materially adverse
employment action that can support a discrimination and retaliation claim under Title VII.”
Def.’s Br. at 26–27; see also Russell v. Principi, 257 F.3d 815, 818 (D.C. Cir. 2001) (“[N]ot
everything that makes an employee unhappy is an actionable adverse action.”).
In response, Dr. Coulibaly clarifies that “[t]he December 2011 Performance Appraisal
Report is another piece of evidence demonstrating the pattern of hostile and harassing behavior
by FSI supervisors against Dr. Coulibaly, and it further demonstrates that FSI supervisors were
retaliating against Dr. Coulibaly for engaging in protected EEO activity.” Pl.’s Br. at 19–20.
Defendant replies that this explanation “sidesteps Defendant’s arguments without responding to
them.” Def.’s Reply at 9, ECF No. 93.
The Court agrees with Defendant that the parties seem to be speaking past one another.
Defendant, taking Dr. Coulibaly’s interrogatory response at its word, seeks clarity on whether a
claim based on the performance appraisal report alone would be viable; Dr. Coulibaly, does not
contest that argument and indeed seems to be disavowing any such theory. For what it is worth,
the Court agrees with Defendant—a claim based on the mid-year evaluation report alone,
without more details, would not be actionable. See Douglas v. Donovan, 559 F.3d 549, 552
(D.C. Cir. 2009) (“Because ‘significant’ and ‘objectively tangible’ harm is required, performance
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evaluations ordinarily are not actionable under Title VII . . .”). But the Court accepts Dr.
Coulibaly’s characterization and agrees that the report can be considered as evidence of “a
pattern of retaliation and discrimination by FSI supervisors that ultimately culminated in Dr.
Coulibaly’s termination.” Pl.’s Br. at 19. Thus, narrowly understood as seeking to dismiss a
freestanding claim based on the evaluation as a separate adverse action (to the extent such a
claim was ever raised), the Defendant’s motion for summary judgment is granted.
4. Motion for Summary Judgment as to Plaintiff’s Claim for Lost Wages
Defendant also moves for summary judgment “with respect to Plaintiff’s claim for at
least $959,850 3 in lost wages.” Def.’s Br. at 2. In Defendant’s view, Dr. Coulibaly has
conceded that the has not mitigated his loss of income because he has not looked for a job since
he left FSI in April 2012. Id.; see also Def.’s Mot. for Partial Summ. J. Ex. E (“Excerpts from
Plaintiff’s 4/9/2018 Interrogatory Responses”) at 4, ECF No. 85-6 (“[A]s a result of his treatment
during and termination from his employment with FSI, [Dr. Coulibaly] suffers from various
medical conditions that have now rendered him permanently disabled and unable to work or
otherwise to mitigate damages that arose after his termination.”) (emphasis added). According to
Defendant, this means that “Plaintiff has the burden to establish that there was no suitable
alternative employment available to him and that he was unable to work due to Defendant’s
conduct,” and “[g]iven that Plaintiff has not disclosed any medical experts, he will be unable to
meet his burden on this issue.” Def.’s Br. at 2. Disagreeing, Dr. Coulibaly argues (1) that
Defendant bears the burden of proving that alternative employment existed and (2) that there is
“well-developed record evidence and testimony” establishing that Dr. Coulibaly was disabled
3
The Court understands this figure to be the amount of damages (in terms of lost income
and benefits) estimated by Dr. Coulibaly’s expert, Dr. Korenko. See Pl.’s Mot. to Exclude
Mitigation Op. of Dr. Laura Malowane Ex. B (“Expert Report of Dr. George G. Korenko”), ECF
No. 84-2.
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and that “his disability was the result of his treatment and termination at the hands of the
Government.” Pl.’s Br. at 20.
a. Legal Framework
Title VII allows for back pay as a remedy. See 42 U.S.C. § 2000e-5(g)(1); see
also Loeffler v. Frank, 486 U.S. 549, 558 (1988) (recognizing Title VII’s provision for back pay
as “a manifestation of Congress’ intent to make ‘persons whole for injuries suffered through past
discrimination’”) (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975)). Front pay
(that is, future, post-judgment lost earnings) can also be awarded if the reinstatement is
unavailable. See Barbour v. Merrill, 48 F.3d 1270, 1279 (D.C. Cir. 1995) (“The presumption
that back pay will extend through the date of judgment derives from the related presumption that
the employer will then rectify the discrimination by hiring or reinstating the employee. When
that preferred remedy is unavailable, front pay is appropriate.”) (internal citations omitted).
At the same time, Title VII requires claimants to minimize their damages. See 42 U.S.C.
§ 2000e-5(g)(1). Even though the statutory duty rests on the claimant, “[t]he employer has the
burden of proving failure to mitigate.” Peyton v. DiMario, 287 F.3d 1121, 1128 (D.C. Cir.
2002). In other words, failure to mitigate is an “affirmative defense” to claims for lost wages.
Barbour, 48 F.3d at 1280. Generally, employers carry their burden by establishing that (1) the
claimant did not make reasonably diligent efforts to find other suitable employment and (2) other
suitable employment was, in fact, available. See, e.g., Hutchison v. Amateur Elec. Supply, Inc.,
42 F.3d 1037, 1044 (7th Cir. 1994). 4
4
Relatedly, and as the parties discuss, see Def.’s Br. at 28–29; Pl.’s Br. 20–23, some circuits
have held that if a defendant can prove that a plaintiff did not make a reasonable or good faith
effort to seek employment, then the defendant is relieved of the burden of establishing that
suitable alternative employment opportunities existed. See, e.g., Greenway v. Buffalo Hilton
Hotel, 143 F.3d 47, 54 (2d Cir. 1998). And the D.C. Circuit seems to have endorsed this
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However, different rules generally apply when the claimant is completely unable to work
due to a disability. In these circumstances, courts understandably do not focus on whether the
disabled claimant sought work or whether suitable employment was available. Instead, courts
seem to generally hold that back pay is unavailable, at least when the employer bears no
responsibility for the disability. See Thornley v. Penton Pub., Inc., 104 F.3d 26, 31 (2d Cir.
1997) (“The remedy in a discriminatory discharge case is intended to compensate a plaintiff only
for ‘losses suffered as a result of defendant[’s] discrimination,’ and does not extend to granting
back pay for a period when a plaintiff would have been unable, due to an intervening disability,
to continue employment.”) (quoting Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, 145
(2d Cir. 1993)); Lathem v. Dep’t of Children & Youth Servs., 172 F.3d 786, 794 (11th Cir. 1999)
(“[C]ourts exclude periods where a plaintiff is unavailable to work, such as periods of disability,
from the back pay award.”). Our Circuit does not appear to have expressly articulated such a
rule, but has suggested that it would be reasonable to terminate back pay once a plaintiff has
“become disabled or voluntarily retired.” Fogg v. Gonzales, 492 F.3d 447, 454 (D.C. Cir. 2007).
If the employer caused the disability through its discriminatory conduct, however, back pay is
still available. See, e.g., Johnson v. Spencer Press of Maine, Inc., 364 F.3d 368, 384 (1st Cir.
2004) (“[A]n employee who cannot mitigate damages because of the unlawful actions of the
employer can still receive back pay.”); Durham Life Ins. Co. v. Evans, 166 F.3d 139, 157 (3d
exception. See N.L.R.B. v. Madison Courier, Inc., 472 F.2d 1307, 1319 (D.C. Cir. 1972)
(Madison Courier I); Conn v. Am. Nat’l Red Cross, 149 F. Supp. 3d 136, 152 (D.D.C. 2016)
(citing Madison Courier I for this proposition). As the Greenway court noted, this rule’s
“underlying rationale is that an employer should not be saddled by a requirement that it show
other suitable employment in fact existed—the threat being that if it does not, the employee will
be found to have mitigated his damages—when the employee, who is capable of finding
replacement work, failed to pursue employment at all.” Greenway, 143 F.3d at 54. As this
reasoning suggests, the rule is premised on the assumption that the plaintiff is “capable of finding
replacement work” and thus appears to be of no relevance here.
15
Cir. 1999) (“Because [the employer’s] conduct affirmatively impaired [the employee’s] ability to
mitigate her damages, it would be inequitable to reduce her back pay award in this case.”);
Lathem, 172 F.3d at 794 (“[A] Title VII claimant is entitled to an award of back pay where the
defendant’s discriminatory conduct caused the disability.”).
There does not appear to be significant case law on the burden of proof in such a setting.
However, the Fifth Circuit has reasoned that
[w]hile we have recognized that the burden of proving a failure to mitigate
damages by finding substantially equivalent work rests on the defendant, we have
never held that when a plaintiff seeks front and back pay on the theory that she is
disabled as a result of the defendant’s conduct, the plaintiff is not obliged to prove
up this theory by establishing that the defendant’s violation of Title VII caused
her disability. The better rule, we think, is to place the burden on the plaintiff to
prove such a claim.
Gamboa v. Henderson, 240 F.3d 1074 (5th Cir. 2000) (citation omitted). That rule appears
sound, as medical causation issues can be complex and will often require the testimony of a
physician or treating doctor—something within the plaintiff’s initial control, though obviously
subject to a defendant’s rebuttal. See, e.g., Gotthardt v. Nat’l R.R. Passenger Corp., 191 F.3d
1148, 1156 (9th Cir. 1999) (“Although [plaintiff] had been treated for PTSD for a limited period
before [defendant] subjected her to the hostile work environment, the district court’s finding of
causation is plausible in light of the extensive testimony of [plaintiff’s] treating psychologist and
psychological expert, that the hostile environment at [defendant] caused [plaintiff’s] disability.”).
b. Analysis
In this case, as mentioned above, Dr. Coulibaly represents that he is permanently
“disabled and cannot engage in gainful employment” and that he did not make any attempt to
return to work since his termination. Pl.’s Br. at 24. He does argue, however, that the
“Government’s treatment and termination of Dr. Coulibaly caused his disability.” Id. at 25. The
16
main issue, then, is whether there is sufficient evidence that Defendant caused his permanent
inability to find alternative work, thereby relieving him of his statutory duty to mitigate damages
(and, as a result, entitling him to (1) back pay, up until a potentially favorable judgment in this
case and (2) front pay, calculated based on his worklife expectancy). 5
Defendant argues that Dr. Coulibaly will be unable to show make this showing.
Specifically, Defendant suggests that Dr. Coulibaly will not be able to present his own opinion
regarding medical causation, see Fed. R. Evid. 701 (precluding a lay witness from testifying
about “scientific, technical, or other specialized knowledge within the scope of Rule 702”), or
relay any out-of-court statements that he heard from his physicians, see Fed. R. Evid. 801, 802
(hearsay). Def.’s Br. at 30. Additionally, Defendant argues, Dr. Coulibaly did not disclose any
expert witnesses that will be testifying about medical causation issues, so there will be no expert
opinions on the subject. Id. (citing Fed. R. Civ. P. 26(a)(2)); see also Def.’s Reply at 1–2 (“Now
realizing that he has no expert opinion testimony to support his disability, or that the disability
was caused by the Defendant’s alleged conduct, Plaintiff pivots . . . Without a medical expert,
Plaintiff cannot prove the complex medical question of whether Defendant’s conduct, as opposed
to another contemporaneous stressful life event, caused his alleged disability.”).
Dr. Coulibaly does not dispute that some medical causation testimony is necessary, but
maintains that it is sufficient that he “disclosed multiple treating psychiatrists,” including a Dr.
Hamlin, in his initial disclosures 6 and responses to interrogatories, and that the parties have
5
Again, whether there were alternative employment opportunities available does not
appear to be relevant to this analysis here; it is difficult to see why a defendant’s liability should
hinge on the existence or non-existence of jobs that a plaintiff, due to a disability, concededly
had never sought and would never seek. See supra n. 4.
6
Dr. Coulibaly’s citation here makes clear that Dr. Hamlin was disclosed initially under
Rule 26(a)(1)(A)(i), along with a variety of potential fact witnesses; he was not identified as an
expert witness. See Pl.’s Br. Ex. 27 at 4, ECF No. 90-28. Dr. Coulibaly does not offer any
17
discussed these providers’ opinions during multiple depositions. See Pl.’s Br. at 25. He also
cites medical records, including a March 2012 letter from Dr. Hamlin, which noted his mental
health symptoms and observed that “[t]here was no elicited evidence of [any] mental health issue
prior to his current traumatic employment situation.” Pl.’s Br. Ex. 29 at 2–3, ECF No. 90-30.
Defendant is correct that generally “a treating physician who testifies as to her diagnosis
and treatment of the patient is [] giving expert testimony,” thereby triggering the expert
disclosure requirements of Rule 26(a)(2). Daniels v. Dist. of Columbia, 15 F. Supp. 3d 62, 69
(D.D.C. 2014); see also Nat’l R.R. Passenger Corp. v. Ry. Express, LLC, 268 F.R.D. 211, 216
(D. Md. 2010) (“[A] party may not circumvent the requirements of Rule 26 by employing a
witness, like a treating physician who treated an injured party, to provide testimony extending
into classic expert opinion regarding causation and prognosis.”). And Dr. Coulibaly does not
convincingly argue that the Rule 26(a)(2) disclosure requirements were met here. 7 He mostly
attempts to selectively quote Owens-Hart v. Howard Univ., 317 F.R.D. 1 (D.D.C. 2016) to
establish that his disclosure of medical records, plus his initial disclosures and interrogatory
responses, satisfies his obligations. But unlike here, the plaintiff in that case made a Rule
26(a)(2)(C) disclosure indicating that a treating physician would testify “as a fact witness as well
evidence that he specifically disclosed Dr. Hamlin, or any treating physician, as an expert
witness in accordance with Rule 26(a)(2) (“Disclosure of Expert Testimony”).
7
Because a treating physician is rarely an expert “retained or specially employed to
provide expert testimony in the case,” he or she usually is not required to submit a written expert
report. Fed. R. Civ. P. 26(a)(2)(B). However, such treating physicians, as experts, must still
disclose “the subject matter on which the witness is expected to present evidence under Federal
Rule of Evidence 702, 703, or 705” and “a summary of the facts and opinions to which the
witness is expected to testify.” Fed. R. Civ. P. 26(a)(2)(C)(i)–(ii). Of course, none of this
applies if, unlike here, a physician is being employed as “a mere fact witness[].” Daniels v. Dist.
of Columbia, 15 F. Supp. 3d 62, 71 (D.D.C. 2014); see also Rudder v. Williams, No. 09-cv-2174
2016 WL 10999915, at *2 (D.D.C. June 9, 2016) (deciding that, “[i]n light of plaintiffs’ failure
to disclose any experts under Rule 26,” their proffered “medical witnesses” could only “testi[f]y
to any observations that are not based upon medical understanding,” such as “when they saw a
particular plaintiff”).
18
as an expert witness regarding Plaintiff’s diagnosis, symptoms, treatment, accommodation
requests, deterioration over time, and her prognosis.” Id. at 2. Also unlike here, the disclosure
went on to summarize the doctor’s opinion, explaining that he would testify that the plaintiff's
work environment caused a permanent disability. Id. On top of all that, the disclosure also
included certain medical records. It was this overall “combination”—the plaintiff’s reasonably
detailed 26(a)(2)(C) disclosure, plus his medical records—that the court found to satisfy the rule.
Id. at 3.
Despite the inadequacy of Dr. Coulibaly’s expert disclosures, certain considerations
nonetheless weigh against granting summary judgment against him on this issue. Although the
case law is not completely consistent, front pay and back pay are generally considered to be
forms of equitable relief. See, e.g., Taylor v. State of R.I., Dep’t of Mental Health Retardation &
Hosps., 736 F. Supp. 15, 17 (D.R.I. 1990) (noting that “courts have almost universally defined
back pay under Title VII as equitable relief,” despite its monetary nature). For its part, our
Circuit has been clear that such remedies under Title VII are left to the equitable discretion of the
trial court. See Barbour, 48 F.3d at 1278 (noting, in its discussion of back pay and front pay
awards, that “under Title VII, a district court has wide discretion to award equitable relief”);
Peyton, 287 F.3d at 1125 (“This Court . . . reviews equitable relief, the standard for calculating
back pay and front pay, under an abuse of discretion standard.”).
As such, a plaintiff is not required to establish to the satisfaction of a jury an entitlement
to back or front pay; indeed, in the absence of the parties’ consent to try such claims before a
jury, that determination would be purely advisory. See Kolstad v. Am. Dental Ass’n, 108 F.3d
1431, 1440 (D.C. Cir. 1997) (finding jury’s determination of liability was binding, but its
determination of back pay was “advisory,” given that it represented a claim for “equitable
19
relief”), aff’d, 139 F.3d 958 (D.C. Cir. 1998) (en banc) (addressing unrelated issues), vacated
and remanded, 527 U.S. 526 (1999). In a similar vein, the Supreme Court has determined that
“Title VII contains no legal bar to raising backpay claims after the complaint for injunctive relief
has been filed, or indeed after a trial on that complaint has been had,” though it noted that it may
be appropriate “[t]o deny backpay because a particular cause has been prosecuted in an eccentric
fashion, prejudicial to the other party.” Albemarle Paper Co., 422 U.S. at 424. This is all
consistent with the statutory language. See 42 U.S.C. § 2000e-5(g)(1) (“If the court finds that the
respondent has intentionally engaged in or is intentionally engaging in an unlawful employment
practice charged in the complaint, the court may . . . order such affirmative action as may be
appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with
or without back pay . . . , or any other equitable relief as the court deems appropriate.”)
(emphasis added).
These considerations persuade the Court that it would be unwise to grant summary
judgment on back pay and front pay due to a failure to disclose a medical expert before trial. If
Dr. Coulibaly establishes liability, the Court will consider inviting supplemental briefing and
holding an evidentiary hearing on equitable remedies. Cf. Barbour, 48 F.3d at 1280 (remanding
“the front-pay issue to the district court for it to determine the amount and duration of relief that
will make [plaintiff] whole” and leaving to its discretion “whether to hold further evidentiary
proceedings on this issue”); see also U.S. Equal Employment Opportunity Comm’n v. Consol
Energy, Inc., 860 F.3d 131, 140 (4th Cir. 2017) (noting that “[a]fter briefing by the parties, the
court held an evidentiary hearing on equitable remedies, including front and back pay and lost
benefits . . .”); Vera v. Alstom Power, Inc., 189 F. Supp. 3d 360, 368 (D. Conn. 2016) (“After the
trial, the Court held an evidentiary hearing and oral argument to determine back pay and other
20
relief.”). Any deficiencies in Plaintiff’s disclosures can be more fully briefed and argued at that
stage. See Fed. R. Civ. P. 37(c)(1) (outlining potential consequences for failure “to provide
information or identify a witness as required by Rule 26(a) or (e),” including that “the party is
not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at
a trial”).
B. Motion to Exclude Expert Opinion
Separately, Dr. Coulibaly also moves to exclude in part the opinion of Dr. Malowane,
Defendant’s expert. See Mot. to Exclude Mitigation Op. of Dr. Laura Malowane (“Pl.’s Mot.
Exclude”), ECF No. 84; id. Ex. 1 (“Malowane Rep.”), ECF No. 84-1.
Like Dr. Coulibaly’s expert (Dr. Korenko), Dr. Malowane provides an estimate of
damages based on Dr. Coulibaly’s lost earnings and benefits. Assuming liability will be proven,
she provides two different estimates: (1) $616,598 if “it is found that Plaintiff’s actual posttermination earnings represent his earnings’ potential,” and (2) $96,580 if “it is determined that
Plaintiff’s actual post-termination earnings do not accurately represent his earnings’ potential.”
Malowane Rep. at 13. In other words, the first figure is based on the assumption that Dr.
Coulibaly was permanently unable to work due to Defendant’s conduct 8; the second on the
assumption that, counter to what is alleged, Dr. Coulibaly was actually able to mitigate his
damages through alternative employment.
Dr. Coulibaly’s motion takes issue only with the basis for this latter figure ($96,580),
which it refers to as Dr. Malowane’s “mitigation opinion.” Pl.’s Mot. Exclude at 8. Specifically,
it challenges the evidence (or more precisely, the alleged lack of evidence) supporting Dr.
8
Dr. Malowane makes clear she disagrees with this conclusion; she suggests elsewhere
that “Dr. Korenko [] fails to adequately address whether there is a causal link between
Defendant’s alleged wrongful conduct and Plaintiff’s lack of past employment and alleged lack
of future employability for the remainder of his life.” Malowane Rep. at 12.
21
Malowane’s assumptions about the time it would take Dr. Coulibaly to find a new job and
achieve pay parity with his old position. Id. at 2. Those calculations, however, could only be
relevant after a finding that Defendant was liable and (a) Dr. Coulibaly’s permanent disability
was not caused by Defendant (if it was caused by Defendant, the parties agree that damages are
at least $616,589 9) or (b) Dr. Coulibaly was not actually permanently disabled. Defendant has
not yet suggested the latter, and even under the former, there is still uncertainty about the
appropriate manner of calculating damages. See Johnson, 364 F.3d at 383 & n.17 (observing
that “[s]ome courts have adopted a rule that if a plaintiff is unable to mitigate damages due to a
disability not caused by the discriminatory employer, that disability cuts off back pay liability,”
but noting “[w]hy this should be so is not self-evident”).
Because of these uncertainties, and the possibility that some of these issues will be
mooted by later determinations of liability and causation, the Court will defer ruling on the
motion to exclude. If and when Dr. Malowane’s mitigation opinion becomes relevant, the Court
will reassess Dr. Coulibaly’s objections.
C. Motion to Compel Fees
Finally, Defendant also moves to compel Dr. Coulibaly to pay $8,436 in fees relating to
the deposition of Dr. Malowane. See Def.’s Mot. Compel Payment of Fees Related to Expert
Dep. (“Def.’s Fee Mot.”), ECF No. 86. Plaintiff objects. See Mem. Opp. Mot. Compel Payment
(“Pl.’s Fee Opp.”), ECF No. 89.
The facts are essentially undisputed. Through an appointment through the District Court’s
Civil Pro Bono Panel, Dr. Coulibaly is currently being represented by the lawyers at the firm of
9
The difference between Dr. Malowane’s estimate of $616,598 and Dr. Korenko’s
estimate of $959,850 appears to be in large part due the different discount rates used in each
side’s present-value adjustments. Malowane Rep. at 8, 11–12.
22
Kirkland & Ellis LLP. 10 After Dr. Malowane had submitted her expert report, Dr. Coulibaly’s
counsel requested the opportunity to depose her. See Def.’s Fee Mot. Ex. 2 (“Attorney
Correspondence”), ECF No. 86-4. Defendant’s counsel agreed, suggesting a few possible dates
and adding, “Please note that Dr. Malowane charges $570 per hour for depositions and that fee is
to be paid by Plaintiff under the Federal Rules.” Id. He also noted that “I have a conference call
scheduled for 4:30 [p.m.] on September 27, but I assume her deposition will not take all day.”
Id. Plaintiff’s counsel replied with a single line: “September 27 works for us. I am attaching the
subpoena and notice of deposition.” Id. She did not challenge the assertion that Plaintiff would
be responsible for paying the fees. She also did not seek to limit the potential costs of the
deposition, either by trying to negotiate a reduced rate or by limiting the deposition’s scope or
length (e.g., by confirming opposing counsel’s intimation that the deposition would last less than
a full day (or fewer than seven hours, see Fed. R. Civ. P. 30(d)(1))).
The deposition went ahead as scheduled and lasted around 3.5 hours (starting at 9:30 a.m.
and ending at 1:07 p.m., with a short break along the way). Def.’s Fee Mot. at 2. At the
deposition, it came out that Dr. Malowane was charging the Department of State a reduced rate
for her work on the case ($475/hour rather than $570/hour). See Pl.’s Fee Opp. Ex. A
(“Malowane Dep.”) at 15, ECF No. 89-1. In a declaration filed with the present motion, Dr.
Malowane has clarified that she offered this $95 dollar discount in a few exceptional cases
involving government clients. Def.’s Fee Mot. Ex. A (“Malowane Dec.”) at 2, ECF No. 86-2.
10
Dr. Coulibaly initiated the suit pro se and successfully moved to proceed in forma
pauperis. See Complaint, ECF No. 1; Minute Order (Apr. 8, 2014). Due to the complexity of
some of the issues raised and “[i]n light of Plaintiff’s indigent status,” the Court later appointed
counsel through the Civil Pro Bono Panel. Order Appointing Counsel (Sept. 26, 2016), ECF No.
40.
23
During the deposition, Dr. Malowane also mentioned that, as part of her preparation, she spent
“[a]bout an hour” discussing the case with government counsel. Malowane Dep. at 7.
About a week after the deposition, Dr. Malowane submitted an invoice to Dr. Coulibaly’s
counsel, requesting payment of $8,436. Def.’s Fee Mot. at 3. This sum represented 14.8 hours
of work at Dr. Malowane’s originally-disclosed billing rate of $570, broken down into 10.6
hours for “deposition preparation” (over four days) and 4.2 hours for the deposition itself
(including .7 hours of travel time). Id. Ex. 4 (“10/5/2018 Invoice”) at 4, ECF No. 86-6.
In a November 13, 2018 letter, Plaintiff’s counsel objected to the bill, arguing that (1)
paying would result in a “manifest injustice” due to Dr. Coulibaly’s indigent status, (2) Dr.
Malowane’s hourly rate was unreasonable, both because she had not “justified” her customary
rate and that it was higher than she was charging her client in the same matter, and (3) Dr.
Malowane spent too much time preparing for the deposition. Id. Ex. 5 (“First McCarrick
Letter”), ECF No. 86-5. After Dr. Malowane sent additional invoices, Dr. Coulibaly’s counsel
asked her to desist and suggested that “[a]ny future fee request, if any, should come by way of a
motion before the Court under Fed. R. Civ. P. 26(b)(4)(E). Id. Ex. 6 (“Second McCarrick
Letter”), ECF No. 86-6. There was an attempted settlement: Defendant appears to have offered
to reduce Dr. Malowane’s hourly fee to $475, but Dr. Coulibaly’s counsel rejected that offer.
See Def.’s Fee Mot. at 3; Pl.’s Fee Opp. at 4.
a. Legal Standard
Rule 26(b)(4)(A) allows a party to take a deposition of an expert who may testify at trial.
Fed. R. Civ. P. 26(b)(4)(A). Rule 26(b)(4)(E), in turn, specifies that “the party seeking
discovery” must “pay the expert a reasonable fee for time spent in responding to discovery”
under that provision, “[u]nless manifest injustice would result.” Fed. R. Civ. P. 26(b)(4)(E).
24
Most courts, including a court in this district, agree that “time spent in responding to discovery”
includes the time used by an expert to prepare for a deposition. Barnes v. Dist. of Columbia, 272
F.R.D. 135, 137 (D.D.C. 2011).
“The party seeking reimbursement for the fee . . . bears the burden of establishing
reasonableness.” Id. When deciding whether an expert fee is reasonable, courts have considered
a whole host of factors, including “(1) the witness’s area of expertise, (2) the education and
training that is required to provide the expert insight that is sought, (3) the prevailing rates for
other comparably respected available experts, (4) the nature, quality and complexity of the
discovery responses provided, (5) the cost of living in the particular geographic area, (6) the fee
being charged by the expert to the party who retained him, (7) fees traditionally charged by the
expert on related matters, and (8) any other factor likely to be of assistance to the court in
balancing the interests implicated by Rule 26.” Coleman v. Dydula, 190 F.R.D. 320, 324
(W.D.N.Y. 1999).
b. Analysis
On the one hand, Dr. Coulibaly was likely eligible for relief under Rule 26(b)(4)(E)’s
“manifest injustice” standard, given his indigent status. See First S. Bank v. Fifth Third Bank,
N.A., No. 7:10-2097, 2014 WL 3868000, at *2 (D.S.C. Aug. 6, 2014) (“Courts have generally
found that ‘manifest injustice’ occurs [] where the deposing party is indigent or if requiring the
party to pay a deposition fee would create an undue hardship.”); Harris v. San Jose Mercury
News, Inc., 235 F.R.D. 471, 473 (N.D. Cal. 2006) (“To apply the exception, the court must find
that the plaintiff is either ‘indigent or that requiring him to pay a deposition fee incurred in
litigation that he voluntarily initiated would create an undue hardship.’”) (quoting Edin v. The
Paul Revere Life Insurance Co., 188 F.R.D. 543, 547 (D. Ariz. 1999)). Defendant argues to the
25
contrary, pointing out that parties proceeding in forma pauperis nonetheless “are responsible for
paying all fees and costs associated with subpoenas, including attendance fees and mileage under
Federal Rule of Civil Procedure 45(b)(1) and 28 U.S.C. § 1821.” Def.’s Reply in Further
Support Fee Mot. at 3 (“Def.’s Fee Reply”), ECF No. 92. But Rule 45 and 28 U.S.C. § 1821,
unlike Rule 26(b)(4)(E), do not include an express “manifest injustice” exception. Defendant
also cites Harris for the proposition that if a plaintiff already “has been given reasonably detailed
expert reports, and has his own expert covering many of the issues to which they will testify,” no
manifest injustice results from requiring payment of an opposing party’s expert fee (and
foregoing a deposition of that expert). Def.’s Fee Reply at 3–4. But in that case, the plaintiff
had “not demonstrated he is indigent in the conventional sense (as measured for instance by
qualification for in forma pauperis status),” so the court was applying a seemingly less friendly
“undue hardship” analysis. Harris, 235 F.R.D. at 473.
On the other hand, Plaintiff’s counsel had been reminded, via email, of Dr. Coulibaly’s
default obligations under Rule 26 and Dr. Malowane’s customary rate. At that point, Dr.
Coulibaly’s counsel could have negotiated the rate, proposed limiting the deposition, or sought
clarity from the Court about whether he would be required to pay. See, e.g., Harris, 235 F.R.D.
at 474 (plaintiff prospectively “ask[ed] to be relieved from paying the expert fees charge[d] by
Defendant’s experts as he normally would”). Defendant’s counsel—not unreasonably—took
Plaintiff’s counsel’s silence on this issue as assent.
Ultimately, particularly in light of “the nature, quality and complexity of the discovery
responses provided,” “the fee being charged by the expert to the party who retained [her],” and
the overall “interests implicated by Rule 26,” Coleman, 190 F.R.D. at 324, the Court finds it
would be reasonable to order payment of $6,555.00. This represents compensation for 4.2 hours
26
of Dr. Malowane’s time travelling to and attending the deposition (3.5 hours in deposition plus
0.7 hours travelling), plus an additional 9.6 hours for preparation, all at the rate Dr. Malowane
was charging to her client ($475/hour). It reflects a one-hour reduction from the amount of
preparation time actually billed by Dr. Malowane, based on her acknowledgment that she spent
this amount of time conferring with government counsel. See Malowane Dep. at 6–7. It strikes
the Court as unfair to charge Plaintiff for this time, given that the meeting was held for
Defendant’s benefit. Beyond this, however, the Court does not find it appropriate to further
reduce the fee. Overall preparation of 9.6 hours (the equivalent of one long day) is not
unreasonable, given that Dr. Malowane was facing a potentially day-long deposition by
sophisticated counsel in a matter with approximately one million dollars at issue. The Court
will, however, not require immediate payment, given Dr. Coulibaly’s circumstances and the
possibility that it could be later offset against a potential judgment or settlement.
IV. CONCLUSION
For the foregoing reasons, Defendant’s Motion for Partial Summary Judgment, ECF No.
85, is GRANTED IN PART and DENIED IN PART. Defendant’s Motion to Compel Payment
of Fees Related to Expert Deposition, ECF No. 86, is GRANTED IN PART, but the order will
reflect that payment is not required until final judgment is entered in this case. The Court defers
ruling on Plaintiff’s Motion to Exclude the Mitigation Opinion of Dr. Laura Malowane, ECF No.
84. An order consistent with this Memorandum Opinion is separately and contemporaneously
issued.
Dated: March 31, 2020
RUDOLPH CONTRERAS
United States District Judge
27
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