Petition for Writ of Certiorari — Patricia A. Allen, Petitioner v. Scott Bessent, Secretary of the Treasury
Supreme Court briefDec 10, 2024
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APPENDIX TABLE OF CONTENTS
Appendix A: United States Court of Appeals
for the District of Columbia Circuit, Order,
March 21, 2024 .................................................
la
Appendix B: United States District Court
for the District of Columbia, Memorandum
Opinion, June 9, 2023 .................................
4a
Appendix C: United States Court of Appeals
for the District of Columbia Circuit, Denial of
En Banc Rehearing, Order, July 15, 2024 .... 49a
Appendix D: Bureau of Engraving and Printing,
52a
Offense/Incident Report, June 9, 2008
Appendix E: Transcript Excerpt
54a
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
September Term, 2023
l:18-cv-01214-RC
No. 23-5153
Filed On: March 21, 2024
Patricia A. Allen,
Appellant
v.
Janet L. Yellen, Official Capacity as Secretary
of the Treasury,
Appellee
BEFORE: Millett, Pillard, and Wilkins, Circuit
Judge
ORDER
Upon consideration of appellant's amended brief
and corrected appendix; appellee's motion for
summary affirmance, the corrected opposition thereto,
and the reply; and appellant's corrected motion for
remand, the opposition thereto, and the reply, it is
ORDERED that the motion for remand be
la
denied and that the motion for summary affirmance be
granted. The merits of the parties' positions are so
clear as to warrant summary action. See Taxpayers
Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir.
1987) (per curiam). The district court properly declined
to consider appellant's list of undisputed facts and
party admissions, which was not necessary to her
motion for judgment as a matter of law or for a new
trial and would have allowed her to significantly
exceed the 45-page limit for that motion. Furthermore,
appellant has not shown any error or abuse of
discretion in the district court's denial of her motion
for judgment as a matter of law or a new trial. See,
e.g., Boodoo v. Cary, 21 F.3d 1157, 1161 (D.C. Cir.
1994) ("The court may not substitute its judgment for
that of the jury," and "the jury's verdict must stand
unless the evidence, together with all inferences that
can reasonably be drawn therefrom is so one-sided
that reasonable men could not disagree on the
verdict.") (internal quotation marks omitted).
Moreover, to the extent that she has not waived or
forfeited any argument based on Chambers v. District
of Columbia, 35 F.4th 870 (D.C. Cir. 2022) (en banc),
appellant has not shown any Chambers-based error,
let alone plain error, in the jury instructions or any
other aspect of the case. Nor has she shown any other
reversible error in the district court's rulings.
I
2a
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
September Term, 2023
No. 23-5153
Pursuant to D.C. Circuit Rule 36, this
disposition will not be published. The Clerk is directed
to withhold issuance of the mandate herein until seven
days after resolution of any timely petition for
rehearing or petition for rehearing en banc. See Fed. R.
App. P. 41(b); D.C. Cir. Rule 41
Per Curiam
3a
APPENDIX B
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
PATRICIA A. ALLEN,
Plaintiff,
v.
JANET YELLEN, Secretary of the Treasury,
Defendant.
Civil Action No.: 18-1214 (RC)
Re Document No.: 187
MEMORANDUM OPINION
DENYING PLAINTIFFS’ MOTION FOR
JUDGMENT AS A MATTER OF LAW OR, IN
THE ALTERNATIVE, FOR A NEW TRIAL
I. INTRODUCTION
Plaintiff Patricia Allen, an African-American
woman, brought this employment discrimination
action against Janet Yellen, the Secretary of the
Treasury, in her official capacity. Ms. Allen alleged
that her employer, the United States Bureau of
Engraving and Printing (the "Bureau"), subjected her
to a hostile work environment based on race, gender,
and retaliation in violation of Title VII of the Civil
Rights Act of 1964 ("Title VH"), as amended, 42 U.S. §
4a
2000e, et seq., due to the behavior of a white coworker,
Andrew Wilson, and the Bureau's related response.
After an eight-day trial, the jury returned a
unanimous verdict in favor of the government on all
three (i.e., race, gender, and retaliation) counts. Ms.
Allen now moves for judgment as a matter of law or, in
the alternative, for a new trial. This is a high bar.
Because the jury had ample grounds at trial to find
that Ms. Allen did not meet her burden of proof, the
Court will deny Ms. Allen's motion.
II. LEGAL STANDARD
A. Renewed Motion for Judgment
as a Matter of Law
In ruling on a Rule 50(b) motion, the Court
"do[es] not... lightly disturb a jury verdict." Radtke v.
Lifecare Mgmt. Partners, 795 F.3d. 159,163 (D.C. Cir.
2015) (ellipsis in original) (quoting Muldrow v.
Re-Direct, Inc., 493 F.3d 160,165 (D.C. Cir. 2007)); see
also Breeden v. Novartis Pharm. Corp., 646 F.3d 43, 53
(D.C. Cir. 2011) ("[Jjudgment as a matter of law is
'highly disfavored' because it 'intrudes upon the
rightful province of the jury'" (quoting Boodoo v. Cary,
21 F.3d 1157, 1161 (D.C. Cir. 1994))). The Court must
resolve all reasonable inferences in the nonmovant's
favor. See Breeden, 646 F.3d at 53. The Court cannot
substitute its view for the jury's view, assess
witnesses' credibility, or weigh the evidence. See Scott
v. District of Columbia, 101 F.3d 748, 753 (D.C. Cir.
1996). And "[e]ven if the Court finds the evidence that
led to the jury verdict unpersuasive, or that it would
have reached a different result if it were sitting as the
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fact-finder, that is not a basis for overturning the
jury's verdict and granting judgment as a matter of
law." Pitt v. District of Columbia, 558 F. Supp. 2d 11,
15-16 (D.D.C. 2008) (citing 9 Moore's Federal Practice
§ 50.60[1] at 50-87 (3d ed. 2002)). The jury's verdict
will stand if the evidence in support is "'significantly
probative' and 'more than merely colorable.'" Scott, 101
F.3d at 753 (quoting Ferguson v. F.R. Winkler GMBH
& Co. KG, 79 F.3d 1221, 1224 (D.C. Cir. 1996)). In
other words, "[jjudgment as a matter of law is
appropriate only if the evidence and all reasonable
inferences that can be drawn therefrom are so
one-sided that reasonable men and women could not
have reached a verdict in [defendant's] favor."
Muldrow. 493 F.3d at 165 (quoting McGill v. Munoz,
203 F.3d 843, 845 (D.C. Cir. 2000)).1
B. Motion for a New Trial
A district court "may ... grant a new trial on all
or some of the issues-and to any party- ... after a jury
trial, for any reason for which a new trial has
heretofore been granted in an action at law in federal
1 A post-trial motion for judgment as a matter of law may
be granted only upon grounds advanced in a pre-verdict motion;
that is, a movant who omits a theory from a pre-verdict Rule 50
motion waives the theory as a basis of its post-verdict renewal.
See Campbell v. District of Columbia, 894 F.3d 281, 286 (D.C. Cir.
2018). Here, Ms. Allen's counsel moved for a directed verdict at
the close of evidence but did not advance any theories or
arguments. Tr. at 1166:8-14. Nonetheless, "in the interest of
reaching any necessary issues and conclusively resolving this
case," the Court will consider Ms. Allen's post-verdict motion for
a judgment as a matter of law. Klayman, 2019 WL 1244079, at *6.
6a
court." Fed. R. Civ. P. 59(a)(1)(A). This rule commits
the decision whether to order a new trial to the court's
discretion; it generally means that a court "should
grant a new trial if the verdict is against the weight of
the evidence, damages are excessive, for other reasons
the trial was not fair, or substantial errors occurred in
the admission or rejection of evidence or the giving or
refusal of instructions." Klayman v. Judical Watch,
Inc., No. 6-cv-670, 2019 WL 1244079, at *5 (D.D.C.
Mar. 18, 2019) (citation omitted), aff'd, 6 F.4th 1301
(D.C. Cir. 2021). The court should exercise its
discretion to order a new trial "sparingly and
cautiously" because it "should be mindful of the jury's
special function in our legal system and hesitate to
disturb its finding." Id. (citations omitted). Also
guiding the court's discretion is the "well-settled
principle that Rule 59 is not a vehicle for relitigating
old issues, presenting the case under new theories,
securing a rehearing on the merits, or otherwise
taking a second bite at the apple." Moore u. Hartman,
102 F. Supp. 3d 35, 65 (D.D.C. 2015) (internal
quotation marks and citation omitted). Thus, the court
should grant a new trial "only where [it] is convinced
the jury verdict was a seriously erroneous result and
where denial of the motion will result in a 'clear
miscarriage of justice.'" Klayman, 2019 WL 1244079,
at *5 (internal quotation marks and citation omitted)
(emphasis in original). All of this means that "[t]he
jury verdict stands 'unless the evidence and all
reasonable inferences that can be drawn therefrom are
so one-sided that reasonable men and women could not
disagree on the verdict.'" Id. (quoting Czekalski v.
LaHood, 589 F.3d 449, 456 (D.C. Cir. 2009)).
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III. ANALYSIS
To succeed on a discriminatory or retaliatory
hostile work environment claim under Title VII, a
plaintiff must show that the workplace was
"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). Rather than cabin
"conditions" to a narrow contractual definition, "the
phrase 'terms, conditions, or privileges of employment'
[of 42 U.S.C. § 2000e-2(a)(l)] evinces a congressional
intent 'to strike at the entire spectrum of disparate
treatment' in employment, which includes requiring
people to work in a discriminatorily hostile or abusive
environment." National R.R. Passenger Corp. v.
Morgan, 536 U.S. 101,116 (2002) (cleaned up) (quoting
Harris, 510 U.S. at 21). However, this standard is not
tantamount to a "general civility code" for the
workplace. Vance u. Ball State Univ., 570 U.S. 421,452
(2013) (Ginsburg, J., dissenting) (quoting Oncale, 523
U,S, at 81).
"To be actionable, charged behavior need not
drive the victim from her job, but it must be of such
severity or pervasiveness as to pollute the working
environment, thereby 'alter [ing] the conditions of the
victim's employment.'" Id. (quoting Harris, 510 U.S. at
21-22). "Whether a work environment is objectively
hostile ultimately depends on the particular acts
8a
'taken as a whole.'" Coulibaly u. Pompeo, No.
14-cv-712, 2020 WL 1536185, at *4 (D.D.C. Mar. 31,
2020) (citations omitted) (quoting Whorton v.
Washington Metro. Area Transit Auth., 924 F. Supp. 2d
334, 353 (D.D.C. 2013); see also Armstrong v. Reno,
172 F. Supp. 2d 11, 24 (D.D.C. 2001)).
In this case, the jury reasonably concluded that
Ms. Allen had failed to meet her burden to show that
she was entitled to relief on any of her claims. Because
that is the case, neither judgment as a matter of law
nor a new trial is justified. Ms. Allen's briefing appears
to fundamentally misunderstand the governing
standards under Rule 50(b) and Rule 59(a). See
generally Pl.'s Mem. in Support of Am. Mot. for a
Direct Verdict as a Matter of Law Alternative for a
New Trial Under Fed. R. Civ. P., Rule 50(a) and 50(b)
and Rule 59 ("PL's Mot."), ECF No. 187. Her motion
"mentions 'credibility dispute' or 'credibility contest'
eleven times." Def.'s Opp'n to Pl.'s Mot. for J. as a
Matter of Law or, in the Alternative, for a New Trial
("Def. 's Opp'n") at 9, ECF No. 192 (citing Pl.'s Mot. at
15, 16, 35, 36, 38, 39, 42, 43, 56)). But it is blackletter
law that"[credibility determinations, the weighing of
the evidence, and the drawing of legitimate inferences
from the facts are jury functions, not those of a judge."
Martinez v. District of Columbia, 503 F. Supp. 2d 353,
351 (D.D.C. 2007) (cleaned up) (quoting Reeves v.
Sanderson Plumbing Prods., 530 U.S. 133, 150-51
(2000)). The question before the Court is not whether
the Court would weigh the evidence differently. See
Scott, 101 F.3d at 753 (explaining that "the court
cannot substitute its view for that of the jury, and can
assess neither the credibility nor weight of the
9a
evidence"); Ames v. Nielsen, No. 13-cv-01054,2018 WL
5777391, at *1 (D.D.C. Nov. 2, 2018) (denying a
plaintiffs Rule 50 motion in Title VII case where "her
entire argument is premised on the credibility of
various players involved"), aff'd sub nom., Ames v.
Wolf, 820 F. App'x 1 (D.C. Cir. 2020). Instead, 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
have reached a verdict in [defendant's] favor." United
States ex rel. Miller v. Bill Harbert Int'l Constr., Inc.,
608 F.3d 871, 899 (D.C. Cir. 2010).2
The Court will analyze Ms. Allen's hostile work
environment claims in the following order: race,
gender, and retaliation.3 The jury reasonably
2 In her reply brief, Ms. Allen argues that the Bureau's
alleged failure to completely investigate Ms. Allen's complaints
"deprived Plaintiff of the evidence needed for a favorable jury
verdict." Pl.'s Response to Def.'s Opp'n ("Pl.'s Reply") at 5, ECF
No. 193; see id. at 8 ("Defendant deprived Plaintiff of an Equal
Employment Opportunity to an investigation of her harassment
claims against her harasser"). This argument is puzzling for a
number of reasons. First, it suggests that Ms. Allen's evidence at
trial was insufficient to render a verdict in her favor-but this
directly undermines Ms. Allen's motion. Second, Ms. Allen
overlooks the fact that her testimony at trial was itself evidence,
as well as testimony about any purported failure to investigate by
the Bureau, and that the jury considered the credibility of these
allegations in assessing Ms. Allen's claims.
3 Ms. Allen followed her motion by filing a "List of
undisputed facts and party admissions in support of motion" ECF
No. 188 at 1. The Court declines to consider this document, which
is not only inappropriate at this stage but also an improper
10a
A
concluded that Ms. Allen did not meet her burden to
establish relief under any of these claims.
A. Discriminatory Hostile Work
Environment Based on Race
To prevail on this claim, "[a] plaintiff must ...
demonstrate that there exists some linkage between
the hostile behavior and the plaintiffs membership in
a protected class." Roman v. Castro, 149 F. Supp. 3d
157, 170 (D.D. C. 2016) (internal quotation marks
omitted). In other words, as the Title VII statute puts
it, the hostile environment must have been "because of
Plaintiffs race. 42 U.S.C. § 2000e-2; see also Coulibaly,
2020 WL 153618, at *4 ("[T]o 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.");
Allen v. Mnuchin, No. 18- cv-1214, 2019 WL 2581323,
at *10 ("Plaintiff must also establish that Defendant's
alleged hostile work environment discrimination was
because of the cited protected attribute in each
instance.") (emphasis in original).
1. Mr. Wilson's Behavior
At trial, Ms. Allen introduced several witnesses
attempt to bypass her briefs 45-page limit. See Min. Order (Dec.
15, 2022); LCvR 7(e). The Court also declines to consider Ms.
Allen's revised reply brief, ECF No. 194, which was filed without
permission of the Court. The Court ran a redline and is satisfied
that none of the minor edits in the revised reply brief would alter
the Court's analysis.
11a
□
(including herself) to describe the racial hostile work
environment she allegedly experienced due to her
co-worker, Mr. Wilson. The government presented a
different theory to the jury: it argued that Mr. Wilson's
behavior was motivated by politics, not race. The Court
will proceed to describe the numerous incidents Ms.
Allen highlighted at trial involving Mr. Wilson,
organized roughly by chronological order.
Ms. Allen's case relied heavily on an April 30,
2008 incident-known as the "trash can
incident"—involving Mr. Wilson, an African-American
female co-worker named Sireda Foster, and herself.
Ms. Allen testified that on that day, she and Ms.
Foster were at the Bureau watching CNN news during
their break time. Tr. at 796:2-5. Mr. Wilson was also in
the room, but their backs were turned away from him.
Id. at 796:6. Ms. Allen made a comment about high gas
and food prices and the need to get Republicans out of
office. Id. at 796:6-11. All of a sudden, she felt a trash
can coming toward her. Id. at 796:12-13. Turning
around, she discovered that Mr. Wilson had thrown or
kicked the trash can in her direction. Id. at 796:12-17,
81:6-3.4 Frightened, Ms. Allen left the room and tried
to call her supervisor, Julie Evans, for help. Id. at
796:18-22. Moments later, Ms. Foster found Ms. Allen
4 On direct examination, Ms. Allen testified that Mr.
Wilson threw the trash can toward her. Id. at 796:16-17. On
cross-examination, however, she admitted that in a September 17,
2008 EEO complaint she stated that Mr. Wilson kicked the trash
can toward her chair. Id. at 835:11-16. Ms. Allen's counsel has
since described Mr. Wilson's action as a kick. See id. at
1236:12-13; PL's Reply at 10.
12a
on a different floor of the building; Ms. Foster, too,
appeared upset. Id. at 797:12-15. She told Ms. Allen
that after Ms. Allen had left the room, Mr. Wilson said
to Ms. Foster, "[k]ill the coon." Id.; see id. at 53:1-23.
According to Ms. Allen, this racial slur means "kill
Black people." Id. at 797:12-15; see also id. at 55:22-24
(Ms. Foster testifying that this phrase is equivalent to
"kill the [N-word]").
At trial, the government conceded that Mr.
Wilson's behavior with respect to the trash can was
inappropriate, but it contested whether Mr. Wilson
had uttered the racial slur. A reasonable jury could
conclude from the conflicting evidence in the record
that Mr. Wilson did not utter the phrase, "[k]ill the
coon." The government impeached both Ms. Allen and
Ms. Foster's testimony on this point by showing the
jury that both of them made statements under oath
prior to trial that never mentioned Mr. Wilson uttering
the racial slur. For example, on cross-examination, Ms.
Foster admitted that the voluntary statement she gave
to agency police officer Donald Snow immediately after
the incident never mentioned Mr. Wilson's alleged
racial slur. Id. at 84:8-13. Nor did Ms. Foster mention
the racial slur in her EEO declaration that she
submitted six months after the incident, id. at
84:17-87:22, or in her EEO declaration dated January
13, 2012, id. at 88:15-89:10. In her 2012 EEO
declaration, Ms. Foster responded "no" to the question,
"Have you ever personally witnessed [or] overheard
Mr. Wilson making any derogatory comments and/or
verbally threaten the Complainant [Ms. Allen] in any
way concerning her race, sex or creating a hostile work
environment for the Complainant? If yes, when
13a
(dates), what happened] and what was said?" Id. at
89:25-90:8. And in 2020, Ms. Foster was asked at the
beginning of her deposition whether she wanted to
change anything in her voluntary statement or her
EEO declarations, and she said no. Id. at 97:10-98:14.
Ms. Foster told the jury that she did not
mention the alleged racial slur in her voluntary
statement for fear of losing her job. See id. at 96:7-11.
According to Ms. Foster, when she told Ms. Evans
about the racial slur, Ms. Evans threatened that
reporting the incident would "make things hard" for
Ms. Foster. Id.5 But the government pointed out that
this reasoning would not explain why Ms. Foster
continued to leave the alleged racial slur out of her
subsequent sworn statements. Ms. Foster told the jury
that in 2009, she moved to a different department
within the Bureau and stopped working under Ms.
Evans, and that by 2015, Ms. Foster had left the
Bureau altogether to work for the FDA. Id. at
75:15-77:17. The jury could reasonably conclude that
Ms. Foster's previous statements were true and that
her alleged fear of reprisal was not.
Likewise, the jury could have discredited Ms.
Allen's testimony on the same basis. As with Ms.
5 Ms. Foster claimed that after the trash can incident, she
first went to find Ms. Evans but could not find her. Id. at
95:5-96:18. Then she went to the police, who told her that she
needed to speak with her supervisor first. Id. She then spoke with
Ms. Evans before giving the voluntary statement to the police. Id.
The jury could have questioned Ms. Foster's account of this
sequence of events, in fight of Mr. Snow's testimony, infra.
14a
Foster, Ms. Allen claimed that she feared for her job
and therefore did not mention the alleged racial slur in
her voluntary statement or subsequent EEO
declarations. Id. at 798:1-10. But on
cross-examination, Ms. Allen acknowledged that her
First Amended Complaint, filed in this Court in late
2018, still did not mention the racial slur. Id. at
840:4-841:13. Neither Ms. Allen's interrogatory
responses, id. at 841:14-842:21, nor her deposition in
2020, id. at 843:18-845:10, mentioned it, either. As the
government pointed out in its closing, the first time
Ms. Allen ever claimed Mr. Wilson uttered the racial
slur was in 2021, seven months after Ms. Foster's
deposition and over 12 years after the trash can
incident. Id. at 1275:3-11.
In addition, the jury could have reasonably
credited Mr. Snow's testimony, which contradicted Ms.
Allen and Ms. Foster's testimony. Mr. Snow has served
as a police officer at the Bureau for over twenty years.
Id. at 164:7-15. When the trash can incident occurred,
the Bureau dispatched Mr. Snow to the scene. Id. at
166:16-25. Prior to this moment, he had no
interactions with Ms. Allen, Ms. Foster, or Mr. Wilson
besides exchanging greetings or pleasantries with
them in the hallway. Id. at 165:8-166:18. Upon
arriving at the scene, Mr. Snow spoke with all three
individuals about the incident. Id. at 160:1-16. He
never heard Ms. Allen or Ms. Foster tell him about Mr.
Wilson's alleged racial slur. Id. at 176:17-20. Nor did
he ever tell them not to mention the alleged racial slur
in their voluntary statements. Id. at 176:21-177:3. Mr.
Snow further testified that he did not require Ms.
Allen and Ms. Foster to first speak to Ms. Evans before
15a
speaking with him, and that he could not recall a
situation where he would impose a requirement like
this because his job was to "just collect the facts and
what is happening and what did happen." Id. at
177:5-178:3. The jury had access to Mr. Snow's
incident report, which was created on the same date as
the incident. Id. at 170:16-22; PI. 's Ex. 10 (Mr. Snow's
incident report); see also Pl.'s Ex. 7 (Ms. Allen's
voluntary statement); Def.'s Ex. 3 (Ms. Foster's
voluntary statement). The jury heard Mr. Snow
describe how, within thirty or so minutes of his arrival
at the scene, Ms. Allen and Ms. Foster gave voluntary
statements to him which he attached to his incident
report, and that neither their conversation with him or
their statements indicated that Mr. Wilson had made
the racial slur. Tr. at 173:14-177:4.
Finally, the jury could have also credited Ms.
Evans's testimony concerning the trash can incident.
Ms. Evans testified that she was "certain" that neither
Ms. Allen nor Ms. Foster ever told her that Mr. Wilson
made the racial slur. Id. at 967:17-25, 968:13-18. She
stated that she would have remembered the racial slur
were it uttered because "that phrase connotates
violence and ill intent." Id. at 968:1-8. Ms. Evans also
testified that she never instructed Ms. Allen or Ms.
Foster not to make a pohce report. Id. at 968:25 -969:2.
The jury assessed Ms. Allen and Ms. Foster's
version of events against Mr. Snow and Ms. Evans's
conflicting account. It was reasonable for the jury to
weigh the conflicting testimony and conclude that Mr.
Wilson never uttered the racial slur. It is possible that
a jury could have given greater weight to Ms. Allen
16a
and Ms. Foster's testimonies despite their
impeachment and the existence of conflicting
testimony. But that is not the standard that governs a
motion under Rule 50(b) and Rule 59(a). See Atlanta
Channel, Inc. v. Solomon, No. 15-cv-1823, 2022 WL
3976109, at *4 (D .D .C. Sept. I, 2022) ("But the fact
that there was evidence from which the jury might
reasonably have concluded that the Spectrum Act was
foreseeable in 1999 does not establish that it was
unreasonable for them to weigh conflicting evidence
and conclude that the Spectrum Act was not
foreseeable.") (emphasis in original).
Ms. Allen also relies on several other incidents
to support her race-based hostile work environment
claim. The next one is a June 4, 2008 incident
involving Mr. Wilson and Rachelle Wright, another
African-American woman who worked at the Bureau.
See Tr. at 41:23-42:2. Ms. Allen was not present
during this incident but learned about it afterwards
from Ms. Wright. See id. at 881:15-21. On that day,
Ms. Wright was in the Bureau's paper lab with Mr.
Wilson. Id. at 188:6-13. Mr. Wilson was watching
coverage of the 2008 election on the Bureau's internal
news network, Bureau News Network ("BNN"), while
Ms. Wright was at the back of the lab. Id. at 188:7-13,
222:10-12. Ms. Wright overhead Mr. Wilson say,
"There's no [fucking] way a black man gonna become
president," while punching his own hand. Id. at
188:7-13. Ms. Wright left the lab and reported the
incident to Ms. Evans. Id. at 189:7-13. She also met
with Ms. Allen the same day, and the two of them filed
a police report. Id. at 189:24-190:3. At trial, Ms.
Evans's testimony largely corroborated Ms. Wright's
17a
account of the incident. Id. at 969:9- 19. The
government does not dispute that Mr. Wilson made
this statement. Id. at 1276:11-14.
The jury could reasonably find that this single
incident was not probative of a race-based hostile work
environment. The Court instructed the jury that
"[rjarely is one incident so severe to constitute a
hostile work environment. Even a few isolated
incidents of offensive conduct do not usually amount to
actionable harassment." Id. at 1347:16-18; accord
Ayissi-Etoh u. Fannie Mae, 712 F.3d 572, 579 (D.C.
Cir. 2013) (Kavanaugh, J., concurring). But an
incident involving "a deeply offensive racial epithet" or
"physical assault" could have alone created a hostile
work environment. Tr. at 1347:18-22; accord
Ayissi-Etoh, 712 F.3d at 580 (Kavanaugh, J.,
concurring). Although Mr. Wilson's statement was
race-based, it did not involve a racial epithet. Nor did
Mr. Wilson direct this statement toward Ms. Allen-in
fact, she was not present during this incident but only
learned about it afterwards. See Tr. at 881:15-21.
While that fact is not necessary to a discriminatory
hostile work environment claim, see Mem. Op. at
17-18, ECF No. 108, the jury could reasonably find
that the statement, placed in the context of the
incident-and the context of all of the incidents
described at trial-was not severe or pervasive enough
to support Ms. Allen's claim. See id. at 14-15; Lester u.
Natsios, 290 F. Supp. 2d 11, 31 (D.D.C. 2003)
(observing that "[cjonduct directed at others rather
than at plaintiff... is less indicative of a hostile work
environment"); Garza v. Blinken, No. 21-cv-2770,2023
WL 2239352, at *7 (D.D.C. Feb. 27, 2023) ("[T]he
18a
impact of'second-hand harassment' is obviously not as
great as the impact of harassment directed at the
plaintiff' (quoting Gleason v. Mesirow Fin., Inc., 118
F.3d 1134, 1144 (7th Cir. 1997))).
The next incident-known as the "coughing
incident"—occurred three years later, on July 27, 2011.
Tr. at 889:21-890:9. The jury heard Ms. Allen testify
that this was only the second incident that occurred
between Mr. Wilson and her since she began working
for the Bureau in 2007. See id.; see also id. at
805:20-25 (Ms. Allen claiming that she "didn't have
any interaction with Mr. Wilson" between April 30,
2008 and July 27, 2011).6 On that day, Ms. Allen and
Mr. Wilson happened to be walking down the same
hallway at the same time. Id. at 891:6-14. Mr. Wilson
drew near to Ms. Allen and coughed. Id. at 808:4-11.
Ms. Allen testified that Mr. Wilson's cough was
intentionally directed at her, and some of the residue
hit her face. Id. As she moved away from him, Ms.
Allen asked Mr. Wilson to cover his mouth, and he
responded, "Only a stupid idiot would say cover your
mouth." Id. at 808:4-20.
The jury could reasonably conclude that this
6 Ms. Allen also testified, however, that Mr. Wilson
chased her in the hallway each year between 2008 and 2014. Tr.
at 936:5-11; see Pl.'s Mot. at 21. But several witnesses testified
that Mr. Wilson walked with a cane, see, e.g., Tr. at 231:7-10 (Ms.
Wright), id. at 775:6-8 (Ms. Gonzalez), id. at 912:10-18 (Ms. Allen),
and one witness testified that she never saw him chasing anyone
down the hallway, see id. at 709:6-17 (Dr. Soto). The jury could
have reasonably discredited Ms. Allen's testimony on this point.
19a
incident had little to no probative value to Ms. Allen's
race-based claim. For starters, in light of the passage
of three whole years in between the 2008 incidents and
this one, the jury had reason to question whether the
alleged discrimination was sufficiently "pervasive." Id.
at 1347:3-15 (instructing the jury to consider "the
totality of the circumstances" including "the frequency
of the harassing conduct"); accord Bing v. Architect of
Cap., No. 16-cv-2121,20J-9 WL 4750223. at *6 (D.D.C.
Sept. 30, 2019). In addition, the jury could have
reasonably found that this incident had nothing to do
with Ms. Allen's race. Nothing in Mr. Wilson's speech
or conduct suggested that he acted this way because
Ms. Allen was African-American. To the contrary,
several witnesses at trial testified about Mr. Wilson's
generally unkempt state, including his poor hygiene
and chronic coughing problems. Tr. at 220:4-9 (Ms.
Wright), id. at 19-22; id. at 1015:17-23 (Ms. Evans); id.
at 773:25-774:20 (Ms. Gonzalez). A jury could
reasonably construe this incident as an example of Mr.
Wilson's repugnant (but not discriminatory) behavior
in the workplace. That is not a legally cognizable claim
under Title VII. See, e.g., Baloch, 550 F.3d at 1122
("Title VII, we have said, does not set forth 'a general
civility code for the American workplace.'" (citation
omitted)); Stewart v. Evans, 215 F.3d 1126, 1134-35
(D.C. Cir. 2002) (uttering profanities is insufficient to
constitute a hostile work environment).
The next incident-known as the "cane
incident"—occurred on February 23, 2012, about seven
months after the coughing incident. Tr. at 1291:4-6.
Ms. Allen testified that on that day, she was coming
out of the lab on the sixth floor and waiting for the
20a
elevator when she spotted Mr. Wilson approaching her
with his cane lifted. Id. at 810:25-811:8. She claimed
that Mr. Wilson "struck at" her twice with his cane. Id.
at 811:19-23. When the elevator doors opened, she
went in. Id. at 811:9-10. Mr. Wilson did not get in the
elevator with her. Id. at 911:24-912:3. After the
incident, Ms. Allen reported it to Ms. Evans and also
went to the police station to give a voluntary
statement. Id. at 812:22-813:11. During this time, Ms.
Allen was "screaming and hollering in the hallway"
and was in a "hysterical" state of mind. Id. at 814:714. She eventually went to the nurse's office and
received some medication to calm herself down. Id. at
815:14-23. The nurse asked her if she was attacked or
hit by the cane. Id. at 815:24-816:2. She told the nurse
that she was not hit with the cane, but that Mr. Wilson
"struck at" her with the cane. Id.
As with the coughing incident, the jury could
reasonably find that this incident was not probative of
a racially motivated hostile work environment. The
jury did not hear any evidence tying Mr. Wilson's
behavior to Ms. Allen's race. To the contrary, there
was evidence that Mr. Wilson lifted his cane out of
self-defense, in response to Ms. Allen yelling, "Stay
away." Id. at 457:13-458:4; Pl.'s Ex. 53 at 51 (voluntary
statement that Mr. Wilson gave to agency police on
same day of incident explaining that he raised his cane
in self-defense); see also Tr. at 981:13-18 (Ms. Evans
testifying that Mr. Wilson told her he raised cane in
"defensive gesture"). On cross-examination, Ms. Allen
denied that she told Mr. Wilson, "[s]tay away from me"
during this incident, but the government impeached
her with her 2020 deposition where she recalled
21a
saying, "Mr. Wilson, you're supposed to stay away
from me." Id. at 910:20-911:13.7 Once again, it was up
to the jury to weigh the conflicting evidence and
interpret the significance, if any, of this incident. Even
if the jury believed Ms. Allen that Mr. Wilson was
unjustifiably belligerent, it could have reasonably
declined to interpret this incident as evidence of a
racially discriminatory hostile work environment.
The next incident-known as the "break room
incident"-occurred on July 18,2012, about five months
after the cane incident. Id. at 922:15-16. According to
Ms. Allen, she was in the office break room eating
lunch when Mr. Wilson walked in and approached his
mailbox. Id. at 817:20-818:6. Ms. Allen ran out of the
break room and found Ms. Evans, who happened to be
in the hallway. Id. at 818:7-9. She told Ms. Evans that
Mr. Wilson had violated the 10-foot separation order
that the Bureau had issued to the two of them. Id.
According to Ms. Allen, Mr. Wilson came out of the
break room and overheard her conversation with Ms.
Evans. Id. at 921:9-16. According to Ms. Allen, he then
said to Ms. Allen, "If you tell one more thing on me."
Id. at 818:10-11.
As with the cane and coughing incidents, the
jury could reasonably find that the break room
incident was not probative of a racial hostile work
7 Following the cane incident, the Bureau issued a 10-foot
separation order to both Ms. Allen and Mr. Wilson that required
each party to stay at least ten feet apart from the other. Tr. at
915:4-916:21. This, along with the Bureau's other corrective
actions, are described in more detail below.
22a
environment. In fact, it could have viewed the incident
as a harmless, accidental encounter between Ms. Allen
and Mr. Wilson. Ms. Allen acknowledged on
cross-examination that Mr. Wilson went directly to his
mailbox and not to where she was sitting. Id. at
920:9-16. She also testified that she and Mr. Wilson
did not exchange any words during this incident. Id. at
920:17-19. In addition, Ms. Allen's testimony as to her
location in the break room relative to the mailbox area
was different from her deposition testimony in 2020,
which could further cast doubt on her recollection of
the event. Id. at 919:3-920:8. As for the "tell one more
thing" statement, the jury once again heard conflicting
testimony; Ms. Allen testified that Ms. Evans was
present when Mr. Wilson said the phrase, whereas Ms.
Evans testified that she did not personally hear Mr.
Wilson utter this phrase. Id. at 921:6-24, 1024:2-5. To
the extent the jury believed that Mr. Wilson uttered
this phrase, it could have reasonably concluded that,
given the context of the incident as a whole, it was not
racially motivated.
The next incident-known as the "hallway
incident"-occurred in October 2014, over two years
since the break room incident. Id. at 737:16-23. Ms.
Allen and her colleague Tracy Newell were walking
down the hallway to go to the cafeteria when she saw
Mr. Wilson coming from the cafeteria. Id. at
921:25-922:11. Ms. Allen stopped and told Ms. Newell
that they should go back. Id. at 925:1-7. The two
women turned around to allow Mr. Wilson to pass by.
Id. According to Ms. Allen, rather than passing her by,
Mr. Wilson stopped at the end of the hallway, picked
up his cane, and slammed it on the floor twice. Id. at
23a
925:10-24. Mr. Wilson did not speak to Ms. Allen and
ultimately did not end up walking near or past her. Id.
As with the prior incidents, the jury could have
reasonably made little of this chance encounter
between Ms. Allen and Mr. Wilson. Ms. Newell, who
testified at trial, had trouble remembering the details
of this incident. Id. at 738:1-14. She recalled that Ms.
Allen seemed "a little upset" and that they ended up
walking in another direction from Mr. Wilson "because
the two people wasn't [sic] supposed to meet." Id.
Jessica Gonzalez, who replaced Ms. Evans as Ms.
Allen's supervisor in 2013, id. at 923:10-16; id. at
754:6-11,8 testified that Mr. Wilson told her that he
was not even aware that Ms. Allen had been trying to
use the hallway on that occasion. Id. at 780:3-6.
Without more evidence about Mr. Wilson's intent or
actions, the jury reasonably disregarded the meaning
of this incident in relation to Ms. Allen's claim.
Finally, the jury heard testimony about events
that Ms. Allen claims reveal Mr. Wilson's racial
motive. Ms. Allen testified that once, when she and her
co-worker Diane Cripps were walking together in the
Bureau, Ms. Cripps told her that she saw Mr. Wilson
watching KKK content on his computer. Id. at
816:14-24. Ms. Allen did not personally see what was
on Mr. Wilson's computer screen. Id. at 817:2-6. Ms.
Ms. Gonzalez testified that she became Ms. Allen's
supervisor because of a lab reorganization within the Bureau, and
that this had "nothing to do" with Ms. Evans's handling of issues
between Ms. Allen and Mr. Wilson. Tr. at 790:2-5.
24a
Evans testified that when she investigated the matter,
Mr. Wilson showed her that he was looking at a comic
book and told her that he "personally found the KKK
abhorrent." Id. at 1058:12-19. Ms. Cripps did not
testify at trial. The jury could have reasonably credited
Ms. Evans's testimony and/or given little weight to Ms.
Allen's second-hand knowledge of an event that no
other witness corroborated at trial.
The jury also heard testimony from Brian
Horlor about outbursts he heard Mr. Wilson make in
2018. Mr. Horlor is a Bureau employee whose desk
shared a cubicle wall with Mr. Wilson's desk in 2018.
Id. at 325:13-23.9 For a period of time, Mr. Horlor
recorded Mr. Wilson's outbursts by typing them up
contemporaneously and emailing them to his
supervisor Clarissa Soto. Id. at 328:13-14, 33
7:4-338:4. Mr. Wilson made these "outbursts" at the
computer screen while "usually watching Fox News."
Id. at 338:7-17. He frequently directed his ire at
"liberals, Democrats, that sort of thing," id. at 341:2-5,
including white men such as Chuck Schumer, John
McCain, Robert Mueller, and Bernie Sanders, id. at
354:16-355:2; see, e.g., id. at 332:6-8 (recorded
statement saying "Put Robert Mueller in prison, put
him in prison for treason. He won't have a long
sentence, he'll be shot for treason").
9 Per the Court's limiting instruction, the jury considered
these post-2014 statements for the sole purpose of establishing
Mr. Wilson's motivations in the 2008-2014 period, and not to
assess Ms. Allen's alleged hostile work environment. Tr. at
1337:15-24.
25a
From Mr. Horlor's emails, Ms. Allen singles out
the phrases "horsewhipping," "hang nooses," and
"lynching mob" as evidence of Mr. Wilson's racial
animus. Id. at 336:18, 329:1, 336:16-17. The jury heard
Nichole Jenkins, an African-American woman who
worked at the Bureau's Office of Chief Counsel, testify
that "horsewhipping" did not invoke a racial
connotation for her. Id. at 621:18-25, 647:23-648:6; see
also id. at 349:23-350:5 (Mr. Horlor testifying that
"horsewhipping" is "[o]pen for interpretation"),
v Although Mr. Horlor testified that "hanging nooses"
and "lynching mob" had racial connotations, id. at
348:14-20; id. at 349:18-22, he also stated that they
were "margin cases ... open to interpretation." Id. at
351:2- 11. While the jury could have believed that
these phrases, considered in isolation, revealed Mr.
Wilson's racial motivation, it did not hear these words
in a vacuum.
Instead, the jury heard these three phrases in
the context of all of Mr. Wilson's recorded outbursts.
Viewing them together, the jury could reasonably
conclude that Mr. Horlor's email records support,
rather than undermine, the government's theory that
Mr. Wilson's behavior was motivated by political,
rather than racial, animus. The jury saw that Mr.
Wilson said, "[tjhey're going to hang nooses" next to
statements such as "[t]he Democrat [cjandidate should
be shot for treason" and "[y]ou need to be shot in the
head. You need to be shot." Pl.'s Ex. 12-1 (Aug. 31,
2018 email). And Mr. Wilson said "lynching mob" and
"[y]ou should be taken out and horse whipped" next to
statements such as ”[t]he only good commie is a dead
commie" and "Diane Feinstein should be removed.
26a
Communist." Id. (Sept. 4, 2018 email). The jury heard
Mr. Horlor characterize Mr. Wilson's outbursts as a
whole as "[ejxplosive" and "political." Id. at 347:10-14.
And Ms. Jenkins noted that although "historically
nooses were used to hang ... slaves or black people,"
"[t]here was no reference in Mr. Wilson's-in any of his
statements did he mention black people. He
specifically mentioned commies and specific
individuals in the Democratic Party." Id. at 648:8-16.
There was more than one way to interpret the
meaning of these statements, and the jury reasonably
chose not to take Ms. Allen's position.
After considering all of the evidence, the jury
reasonably determined that these incidents did not
demonstrate a hostile work environment based on
race. The jury understood that to prevail on her claim,
Ms. Allen had to show that "she was subjected to
discriminatory intimidation, ridicule, and insult that
is sufficiently severe or pervasive to alter the
conditions of her employment and create an abusive
working environment." Id. at 1347:4-7 (jury
instruction); accord Oncale, 523 U.S. at 78; Baloch,
550 F.3d at 1201. The jury reasonably concluded that
viewed as a whole, the evidence did not show that Ms.
Allen was subject to a hostile work environment
because of her race. The jury considered a record with
scant evidence of severe or pervasive conduct; indeed,
many of the incidents Ms. Allen attempted to string
together occurred months, if not years, apart. Several
incidents consisted of accidental encounters between
Ms. Allen and Mr. Wilson, and most of them appeared
to have nothing to do with race at all.
27a
Ms. Allen relied heavily on the trash can
incident to establish a race-based motive, but as
described above, the government impeached both Ms.
Allen and Ms. Foster concerning whether Mr. Wilson
ever uttered, "[k]ill the coon." From that incident
forward, the only incident where Mr. Wilson
specifically mentioned race was his interaction with
Ms. Wright, when he said, "There's no [fucking] way a
black man gonna become president." Tr. at 188:7-13;
id. at 222:10-23. Ms. Allen was not even present
during that incident. See id. at 881:15-21. The jury
could conclude that all of the other incidents showed
that Mr. Wilson was an unsavory or rude person who
had strong, sometimes even violent, feelings against
Democrats. In short, the jury had ample grounds to
find that based on the totality of the circumstances,
there was no hostile work environment because of Ms.
Allen's race. For that reason, neither judgment as a
matter of law nor a new trial is justified on this claim.
2. Bureau's Corrective Action
Even if the jury concluded that Ms. Allen
experienced a hostile work environment based on her
race, the Court will not disturb the verdict for the
alternative reason that the jury reasonably found that
the Bureau took appropriate corrective action. Recall
that this too defeats Ms. Allen's Title VII claim. "An
employer may be held liable for the harassment of one
employee by a fellow employee (a non-supervisor) if the
employer knew or should have known of the
harassment and failed to implement prompt and
appropriate corrective action." Curry u. District of
Columbia, 195 E.3d 654, 660 (D.C. Cir. 1999). Here, it
28a
is undisputed that Mr. Wilson was Ms. Allen's
co-worker. Thus, the Bureau is only liable if it failed to
take prompt and appropriate corrective action. The
Court instructed the jury to consider what corrective
actions the Bureau took, and whether it was prompt
and appropriate. Tr. at 1349:4-1350:10. The jury
reasonably found that the Bureau's actions were
prompt and appropriate.
The upshot of Ms. Allen's argument is that if the
Bureau had taken decisive action against Mr. Wilson
after the first incident between them, Ms. Allen would
not have experienced a hostile work environment
between 2008 and 2014. But the jury heard the
Bureau's Human Resources and Employees Relations
specialist, Marla Gissentanna, explain that the agency
follows a progressive discipline model. Id. at 396:19-24,
516:12-517:1, 522:23-523:8. She further explained that
the Bureau did not employ a "zero tolerance" method
of discipline but rather "look[ed] at things on a
case-by-case basis." Id. at 522:5-14. The jury likewise
heard from Ms. Jenkins, an attorney advisor in the
Bureau's Office of Chief Counsel during the time of
these incidents, who testified that the Bureau imposed
progressive discipline as required by law and the
Douglas factors. Id. at 625:22-628:19; see, e.g., Adair v.
Solis, 742 F. Supp. 2d 40, 66 (D.D.C. 2010) (discussing
Douglas factors in the context of employee discipline),
aff'd, 473 F. App'x 1 (D.C. Cir. 2012). Finally, the jury
heard instruction that "an agency is not liable,
although the alleged harassment persists, so long as
each response was reasonable," and that "[a]n agency
is not required to terminate an alleged harasser except
when termination is the only response that would be
29a
reasonably calculated to end the harassment." Tr. at
1350:5-10; accord Adler v. Wal-Mart Stores, Inc., 144
F.3d 664, 676 (10th Cir. 1998).
A jury could reasonably conclude that the
Bureau took prompt and appropriate corrective action
against Mr. Wilson in each of the following incidents:
Trash can incident. Ms. Evans held a meeting
with Ms. Allen and Mr. Wilson where Mr. Wilson
apologized to Ms. Allen. Tr. at 874:24-865:10. Ms.
Allen testified that although Mr. Wilson apologized,
both he and Ms. Evans had "smirks on their face" and
"[i]t was not sincere that he mean[t] it." Id. at
939:10-13. Ms. Evans, however, testified that neither
she nor Mr. Wilson smirked at Ms. Allen because it
was a "very serious situation" and "not funny." Id. at
966:5-12. She also testified that she did not perceive
Mr. Wilson's apology to be insincere. Id. at
966:24-967:1. It was up to the jury to decide whose
account of the meeting was credible, and it was
reasonable for them to believe Ms. Evans. Ms. Evans
also took other remedial steps. She proposed that Mr.
Wilson be suspended for two days without pay, and Dr.
Gupta (Ms. Evans's supervisor) approved the
suspension. Id. at 527:14-16, 533:21-534:4,
535:24-536:1; Def.'s Ex. 7 (notice of decision). In
addition, Ms. Evans and Dr. Gupta decided to move
Mr. Wilson's desk away from the same office space as
Ms. Allen. Tr. at 965:13-18, 1145:22-1146:1. Finally,
Ms. Evans reached out to an alternative dispute
resolution counselor in the EEO office; Mr. Wilson was
willing to participate, but Ms. Allen was not. Id. at
967:2-10.
30a
June 4, 2008 incident between Mr. Wilson and
Ms. Wright. Ms. Evans removed Ms. Wright from
working in the lab where the incident occurred. Id. at
189:18-23. Ms. Wright testified that she had no more
incidents with Mr. Wilson because Ms. Evans "kept
[them] apart." Id. at 214:20-215:1. Dr. Gupta held a
meeting with all of the parties and told them that
internal network news should no longer be played in
the lab, and he also asked "security to go through and
do periodic walk-throughs." Id. at 970:9-16. Ms. Evans
also testified that she considered moving Mr. Wilson to
a different position but could not identity one that fit
his skills as "GS 12 chemist." Id. at 970:22-971:3.
Cough incident. Ms. Evans met with Ms. Allen
and Mr. Wilson together and Mr. Wilson apologized to
Ms. Allen. Def.'s Ex. 16 (Ms. Evans's voluntary
statement). Ms. Evans wrote a memo summarizing the
event and describing the steps the Bureau took in
response. Def.'s Ex. 21. After meeting with both of
them, Ms. Evans notified the Bureau's Employee and
Labor-Management Relations Division for guidance.
Id. The next day, the Bureau's Violence Intervention
Team convened and recommended limited contact
between Mr. Wilson and Ms. Allen. Id. Ms. Evans also
talked to Mr. Wilson alone and advised him to cover
his cough and keep some tissues. Tr. at 978:8-9.
• .
Cane incident. The Violence Intervention Team
met the same day. Id. at 981:19-24. Ms. Evans testified
that the team could not reach a conclusion about what
happened but decided it was "advisable to issue orders
of separation... to keep at least 10 feet away and avoid
contact." Id. at 981:23-982:4. The 10-foot separation
31a
order required each party to maintain this distance
from the other. Id. at 915:4-916:21. Ms. Evans also
asked the office of security for camera footage of the
incident but was told that there were no recordings of
that area of the elevators. Id. at 983:5-17; seeDef.'s Ex.
46 (Ms. Evans's email exchange with office of security).
Break room incident. Ms! Evans, who happened
to be near the parties during this incident, spoke to
Ms. Allen and Mr. Wilson. Tr. at 1023:14-1024:15; see
Def. 's Ex. 59 (Ms. Evans's memo describing the event
and agency action). The Violence Intervention Team
met again and advised Ms. Evans to give Mr. Wilson
another copy of the 10-foot separation order and
remind him about the policy. Tr. at 1024:16-18. Ms.
Evans also reached out to Mr. Wilson and offered to
check his mailbox for him to prevent him from having
to go into the break room in the future. Id. at
1024:19-25. She began checking his mail for him from
this point forward. Id. at 1025:1-3.
Hallway incident. Ms. Gonzalez asked the
parties to submit written statements to document the
event. Tr. at 761:11-22. Ms. Gonzalez also met with
her superior and Ms. Allen to discuss Mr. Wilson's use
of the second-floor hallway where Ms. Allen's office
was located. Id. at 778:21 -779:25. The Bureau told Mr.
Wilson to no longer use that hallway, and he agreed.
Id.
Despite the significant amount of evidence in
the record of the Bureau's corrective actions, Ms. Allen
maintains that they were insufficient. She points to
the Bureau's response to complaints about Mr. Wilson
32a
from Ms. Wright and two white employees, Gary Cloth
and Ken Kipperman, as points of comparison. But the
jury could reasonably conclude that the Bureau
appropriately tailored its response to each individual's
fact-specific circumstances, and that the Bureau's
response to Ms. Allen's complaints was commensurate.
Start with Ms. Wright. Recall that following Ms.
Wright's complaint that she heard Mr. Wilson yell,
"There's no [fucking] way a black man gonna become
President," Ms. Evans removed her immediately from
working in the same lab as Mr. Wilson. Ms. Allen
argues that the Bureau treated Ms. Wright more
favorably because they removed Ms. Wright from being
in the same environment as Mr. Wilson but did not do
the same for her, at least not initially. Tr. at
1240:11-14. Apparently, Ms. Allen was still working in
the same cubicle area as Mr. Wilson on May 8, 2008,
about a week after the trash can incident. Id. at
1075:5-13. But Ms. Evans testified that she placed an
administrative request to move Mr. Wilson's desk
away from Ms. Allen on April 30, 2008, the same day
as the trash can incident. Id. at 1163:6-13. Although
some of Mr. Wilson's magazines and files were still at
his old desk in May, and he would finger there
occasionally, Ms. Evans personally moved those files to
speed up the process of his move. Id. at
1163:21-1164:2. The jury also heard that unlike in Ms.
Allen's case, it was easier for Ms. Evans to move Ms.
Wright to a different position because Ms. Wright was
only a seventeen-year-old student intern at the time.
Id. at 224:16-225:5; see also id. at 237:8-9 (Ms. Wright
testifying that "our situations were two different
33a
ones").10
The jury also heard evidence involving an
incident between Mr. Wilson and a white employee,
Mr. Cloth. On June 25, 2012, Mr. Wilson was standing
at a copier outside the paper lab when Mr. Cloth
walked past him in route to the restroom. Tr. at
1025:23-1026:14. As Mr. Cloth walked by, Mr. Wilson
made an angry gesture and jabbed his cane in Mr.
Cloth's direction. Id. Mr. Cloth told Mr. Wilson that he
should not joke like that, and Mr. Wilson responded in
a raised voice that he was not joking. Id. In response
to this incident, Ms. Evans issued Mr. Wilson a letter
of warning. See PL's Ex. 71.
Ms. Allen argues that the Bureau treated Ms.
Allen unfairly because they did not investigate her
cane incident with Mr. Wilson, whereas they
investigated Mr. Cloth's complaint for several months
following the incident. But the jury could have
reasonably found that the Bureau did investigate Ms.
Allen's cane incident. As described above, the Violence
Intervention Team met the same day. Tr. at 981:19-22.
Ms. Evans testified that the team could not reach a
conclusion about what happened in her cane incident
10 Ms. Allen's counsel speculated to the jury that Ms.
Wright cut "some kind of deal" with Ms. Evans-allegedly, in
exchange for being moved out of the same environment as Mr.
Wilson, Ms. Wright agreed to remove the word "fucking" from her
report of what Mr. Wilson said. Tr. at 1240:17-24. But Ms. Wright
herself rejected this theory; she testified that Ms. Evans never
told her to omit certain words from her report or alter them in any
way. Id. at 217:2-15.
34a
but ultimately issued a ten-foot separation order to
Ms. Allen and Mr. Wilson. Id. at 915:4-916:21,
981:23-982:4. Ms. Evans also asked the office of
security for camera footage of the incident but was told
that there were no recordings of that area of the
elevators. Id. at 983:5-17; see Def.'s Ex. 46 (Ms.
Evans's email exchange with office of security).
Moreover, Mr. Cloth's case had different facts. Tr. at
1307:5-1308:25. First, the incident marked the second
time that Mr. Wilson had allegedly used his cane in an
inappropriate manner-and only four months after
being accused of raising his cane at Ms. Allen. Id. at
1307:12-20. And in Mr. Cloth's case, Mr. Wilson
admitted to threatening Mr. Cloth with his cane,
whereas in Ms. Allen's case, Mr. Wilson claimed he
was acting in self-defense. Id. at 1308:23-25,
457:13-458. Second, unlike the cane incident with Ms.
Allen, the incident with Mr. Cloth involved a
significant breach of security protocol. Id. at 1308:3-18.
Finally, the jury also learned that the Bureau
punished Mr. Wilson for the Cloth incident with a
letter of warning, see PI.' s Ex. 71, which the jury could
have found comparable to the Bureau's response to Ms.
Allen's cane incident.
The final comparator Ms. Allen relies on is Ken
Kipperman, a white employee who complained to the
Bureau about Mr. Wilson in January 2013. Tr. at
1027:11-17; Pl.'s Ex. 84 (Notice of Proposed Suspension
from Ms. Evans to Mr. Wilson). One day in the
Bureau, Mr. Wilson was at a vending machine trying
to make a purchase with his coins. Tr. at 1027:181028:2. When one of Mr. Wilson's coins fell on the
floor, he began stomping on it. Mr. Kipperman was in
35a
the area, and Mr. Wilson yelled at Mr. Kipperman in
a threatening manner to get away from him. Id. As a
result of this incident, Ms. Evans proposed suspending
Mr. Wilson for five days without pay. Id. at 1028:7-19;
Pl.'s Ex. 84. The notice stated that this severe penalty
was appropriate because Mr. Wilson had prior
warnings about similar outbursts and was currently
subject to a ten-foot separation order with a different
employee (i.e., Ms. Allen). Pl.'s Ex. 84 at 1-2. After
considering Mr. Wilson's written response, Ms. Evans
reduced the penalty to a two-day suspension. Def.'s Ex.
79 (notice of decision). Ms. Evans explained that a note
from Mr. Wilson's doctor describing his chronic
anxiety's role in his outbursts helped to mitigate the
penalty. Id.; Def.'s Ex. 60 (doctor's note). The jury
could have viewed the Bureau's response to the
Kipperman incident as appropriate and in harmony
with how it responded to Ms. Allen's incidents. In
short, the jury reasonably concluded that the Bureau's
corrective actions were prompt and appropriate. For
this independent reason, neither judgment as a matter
of law nor a new trial is justified on this claim.
B. Discriminatory Hostile Work
Environment Based on Gender
The jury also reasonably concluded that Ms.
Allen's second claim, discriminatory hostile work
environment based on her gender, was also meritless.
At the close of evidence, when the government moved
for judgment as a matter of law, the Court asked Ms.
Allen's counsel to explain his "best case" for why "Ms.
Allen was subjected to a hostile work environment
based on gender." Tr. at 1189:7-9. Ms. Allen's counsel
36a
argued that "Mr. Wilson treated [Ms. Allen] differently
based on her gender because he realized that there
was a woman who would not attack him." Id. at
1190:21-1191:3. But Ms. Allen highhghted virtually no
evidence in the record for the jury to draw the
conclusion that Mr. Wilson mistreated her because of
her gender, and instead focused her trial strategy
heavily on race. Ms. Allen's post-trial brief suffers from
the same defect in failing to identify what evidence
supports her gender-based hostile work environment
claim. Nonetheless, the Court will attempt to tease out
Ms. Allen's argument in an effort to consider this issue
fully.
There is some evidence in the record that shows
that Mr. Wilson behaved poorly around women. The
trash can incident involved two women-Ms. Allen and
Ms. Foster. Id. at 796:2-5. And the June 4, 2008
incident involved Ms. Wright, another woman. Id. at
188:6-13. In addition, Ms. Gonzalez testified that she
herself was afraid of Mr. Wilson. Id. at 742:1-14,
743:20-22. She described an incident at the Bureau in
the late 1990s or early 2000s when, after she pointed
out some errors in his work, he responded by angrily
banging his head five times on her door and storming
out of her office. Id. at 741:2-742:17.
But the jury also heard evidence that men were
victims of Mr. Wilson's behavior, too. The jury heard
that Mr. Wilson was unpleasant, rude, and sometimes
even violent toward men. As discussed above, Mr.
Cloth and Mr. Kipperman-two men at the
Bureau-each complained about Mr. Wilson's behavior,
which included making violent motions with his cane
37a
and stomping on the ground in rage. Id. at
1025:23-1026:14, 1027:11-1028:19. Mr. Wilson's
similarly repugnant behavior toward men is hard to
square with Ms. Allen's theory that Mr. Wilson singled
out women because they were less likely to push back.
Indeed, Ms. Allen, Ms. Foster, Ms. Wright, Ms.
Gonzalez, Mr. Cloth, and Mr. Kipperman all
complained to the Bureau about Mr. Wilson's behavior,
and the jury heard evidence about how the Bureau
investigated and punished him for these incidents.
As with Ms. Allen's race-based claim, a
reasonable jury could conclude that her gender-based
claim fails because the Bureau took prompt and
appropriate corrective action. If the Bureau only took
complaints from men seriously, Ms. Allen's
gender-based claim would have some force. But the
jury heard Ms. Wright-a woman-testify that Ms.
Evans adequately addressed her complaint about Mr.
Wilson's behavior in the June 4, 2008 incident. Tr. at
236:15-24. Thus, the jury could reasonably infer that
neither Mr. Wilson nor the Bureau treated Ms. Allen
differently because of her gender. Neither judgment as
a matter of law nor a new trial is justified on this
claim.
C. Retaliatory Hostile Work Environment
The antiretaliation provision of Title VII
" [prohibits an employer from 'discriminat[ing] against'
an employee or job applicant because that individual
'opposed any practice' made unlawful by Title VII or
'made a charge, testified, assisted, or participated in'
a Title Vii proceeding or investigation." Burlington N.
38a
& Santa Fe Ry. Co. v. White, 548 U.S. 53, 56 (2006)
(quoting 42 U.S.C. § 2000e-3(a)). This Court has
previously explained that most courts have interpreted
"discriminatory intimidation," which is the phrase
used in Baird v. Gotbaum ("Baird I"), 662 F.3d 1246,
1250 (D.C. Cir. 2011), for the retaliatory
hostile-work-environment standard, "as requiring a
demonstration of retaliatory, rather than
discriminatory, intimidation-that is, intimidation
based on the employee's participation in protected
activity rather than her membership in a protected
class." Roman, 142 F. Supp. 3d at 166. "To prove
retaliation, a plaintiff must show that '(1) [she]
engaged in protected activity; (2) [s]he was subjected
to an adverse employment action; and (3) there was a
causal link between the protected activity and the
adverse action."' Baird v. Gotbaum ("Baird II'), 722
F.3d 166, 168 (D.C. Cir. 2015) (quoting Hairston v.
Vance-Cooks, 773 F.3d 266, 275 (D.C. Cir. 2014)).
To engage in protected activity, an individual
need not utter "magic words," but her "complaint must
in some way allege unlawful discrimination, not just
frustrated ambition." Broderick v. Donaldson, 437 F.3d
1226, 1232 (D.C. Cir. 2006); see also Peters v. District
of Columbia, 873 F. Supp. 2d 158, 202 (D.D.C. 2012)
("While informal complaints to management may
constitute protected activity, the plaintiffs must clearly
complain about discriminatory treatment."). The
adverse action must be "material," meaning "harmful
to the point that [it] could well dissuade a reasonable
worker from making or supporting a charge of
discrimination." Burlington N., 548 U.S. at 68, 57.
"This Circuit has recognized that a hostile work
39a
environment can constitute a materially adverse
action for retaliation claims." Chan Chan v. Child, 's
Nat 7 Med. Ctr., No. 18-cv-2102, 2019 WL 4471789, at
*8 (D.D.C. Sept. 18, 2019). In an earlier opinion, the
Court explained the type of conduct that could
constitute a retaliatory hostile work environment:
In a retaliatory hostile work environment
claim, a plaintiff argues that the
"cumulative effect," see Nat 'l R.R.
Passenger Corp., 536 U.S. at 115, of
"adequately linked" acts amount to a
"coherent hostile environment claim."
Baird II, 792 F.3d at 168 (citing Baird I,
662 F.3d at 1251). To be adequately
linked, such acts might, for example,
"involve the same type of employment
actions, occur relatively frequently, and
[be] perpetrated by the same managers."
Id. (citing Baird I, 662 F.3d at 1251
(alterations omitted)).
Allen, 2019 WL 2581323, at *8. The conduct must also,
of course, be sufficiently severe or pervasive, as
discussed above. Id.
In this case, the jury reasonably found that
there was no retaliatory hostile work environment. Ms.
Allen relies on primarily two arguments in support of
her retaliatory hostile work environment claim, but
40a
neither is persuasive.11 First, she argues that Ms.
Evans retaliated against her by assigning her and
other African-American women who had engaged in
protected activity to a clean-up crew on or around June
23, 2008. See Pl.'s Mot. at 2012; Def.'s Opp'n at 12. The
problem with this theory is that Ms. Evans testified
that she first learned about Ms. Allen's 2008 EEO
complaint four days after the clean-up duty had
already occurred. Tr. at 972:16-22; Def.'s Opp'n at
11-12. This sequence of events is fatal to Ms. Allen's
effort to attribute a retaliatory motive to Ms. Evans.
See Bergbauer v. Mabus, 934 F. Supp. 2d 55, 12
(D.D.C. 2013) (noting that retaliation requires that
"the defendant kn[o] w of plaintiffs protected activity").
11 Ms. Allen also seems to argue that the Bureau's
treatment of Ms. Wright is evidence of retaliatory motive because
it immediately moved Ms. Wright but not Ms. Allen. "It is well
established that, to be successful in the use of comparator
evidence, 'the plaintiff must point to a similarly situated employee
outside of a protected class[.]'" Sledge u. District of Columbia, 63
F. Supp. 3d 1, 17 (D.D.C. 2014) (emphasis in original) (citation
omitted). Here, for the reasons described in the corrective action
section, supra at 24 & n. 10, the jury could have reasonably
concluded that Ms. Wright was not an apt comparator because she
was a seventeen-year-old intern who was easier to move, and
because Mr. Wright herself testified that she was differently
situated than Ms. Allen. Cf Montgomery v. Chao, 546 F.3d 703.
707 (D.C. Cir. 2008) (finding proposed comparators were not
"similarly situated" to plaintiff where "[n]one of them had the
same position he had").
12
Ms. Allen's brief claims this incident occurred on July
23, 2008, but that is inconsistent with this Court's previous
opinion and the evidence at trial. See Mem. Op. at 4, 20 (citing
Opp'n Ex. 1 at ECF p.106, ECF No. 83-8); Tr. at 882:20-883:3.
41a
To the extent Ms. Allen identifies the protected
activity as her complaint to Ms. Evans about the trash
can incident (which preceded the clean-up duty
assignment), this theory suffers from a different flaw:
the jury could reasonably believe that it was not
protected activity. To establish protected activity, the
individual must "allege unlawful discrimination."
Broderick, 437 F.3d at 1232. But Ms. Allen did not
present the jury any documentation showing that she
made a complaint of discrimination. Her voluntary
statement to the police, for example, at most alleged
assaultive conduct (Mr. Wilson throwing or kicking the
trash can toward her chair), but that is not, standing
alone, protected by Title VII. Pl.'s Ex. 7 (Ms. Allen's
voluntary statement); see 42 U.S.C. § 2000e-3(a)
(defining protected activity as "oppos[ing] any practice
made an unlawful employment practice by this
subchapter"); Oncale, 523 U.S. at 80 ("Title VII does
not prohibit all verbal or physical harassment in the
workplace; it is directed only at ’discrimination}.'"
(emphasis and alteration in original)). That document
does not allege discrimination. And because the
government impeached both Ms. Allen and Ms. Foster
concerning whether Mr. Wilson ever uttered, "[k]ill the
coon," the jury could reasonably conclude that there
was no complaint of discrimination, and hence no
protected activity predating the clean-up assignment.13
13 The jury could have also reasonably found a lack of
causal connection between the trash can incident on April 30,
2008 and the clean-up duty on June 23, 2008, which occurred
about two months later. See Taylor v. Solis, 571 F.3d 1313, 1322
(D.C. Cir. 2009) (observing that two months may be too distant to
infer "retaliatory motive"). Likewise, Ms. Allen's passing
42a
In any event, even if the jury thought that Ms.
Allen engaged in protected activity and that Ms. Evans
knew about it before the clean-up assignment, the jury
could reasonably conclude that the clean-up
assignment was not retaliatory. At trial, the jury
heard testimony that Ms. Evans asked one of her
colleagues, Charlotte Lowe-Ma, to assign Ms. Allen,
Ms. Wright, and Ms. Foster to a clean-up detail as
retaliation for their complaints about Mr. Wilson. Tr.
at 809:9-810:2 (Ms. Allen), 231:11-232:16 (Ms. Wright);
63:3-64:4 (Ms. Foster). Ms. Allen testified that
clean-up duty was outside of their job descriptions and
that the Bureau assigned only the three of them to do
it. Id. Upon learning of this assignment, Ms. Allen
asked Ms. Evans why she had assigned three
African-American women to clean-up duty. Id. at
810:3-6. Afterward, Ms. Allen heard from Ms.
Lowe-Ma that other people would also join in the
clean-up duty. Id. at 810:7-10.
On cross-examination, the
government
impeached Ms. Foster with her 2008 EEO declaration
in which she stated the following about the
significance of the clean-up duty assignment: "I believe
that this was a big misunderstanding from both
parties." Id. at 103:18-104:11. Ms. Foster's declaration
explained that "When [Ms.] Lowe-Ma asked us
Rachelle Wright, Patricia Allen, and myself... we were
the only people present in the lunch area," "[s]o we all
argument that Ms. Evans retaliated against her by assigning her
and Mr. Wilson both to work in the durability lab on December 5,
2008,-over half a year since the trash can incident-is weak for the
same reason. Tr. at 943:11-944:9.
43a
took it as [if] we were the only people that had to
participate in the office clean up." Id. at 104:12-19
(alteration omitted). On cross-examination, however,
Ms. Foster appeared to back down from her
declaration and claimed that "Mrs. Evans only put
other people in the detail just so that it did not look
like we were being punished for what we did, for us
making the statements that we made." Id. at
101:11-22.
The jury heard contrary testimony from Ms.
Evans. Ms. Evans testified that the office clean-up was
needed to clear out some clutter for new office
equipment. Id. at 971:6-16. Charlotte Lowe-Ma
suggested to Ms. Evans that they ask Ken and Diane,
two white employees, to help. Id. at 971:16-22. Later
that day, Ms. Evans saw Ms. Allen, Ms. Wright, and
Ms. Foster in the break room, and told Ms. Lowe-Ma
to ask the three of them to help. Id. at 971:23-972:1.
Ms. Evans testified that in addition to asking these
three women, Ms. Lowe-Ma also asked Ken and Diane
and a few others to help. Id. at 972:2-6. As for who
actually participated in the clean-up besides Ms. Allen,
Ms. Wright, and Ms. Foster, the jury once again heard
conflicting testimony. Ms. Evans testified that there
were a mix of various races represented at the
clean-up. Id. at 972:7-11. Ms. Allen testified that she
did not know whether management had asked anyone
else to participate in the clean-up, and that if others
did, "[m]aybe they we[re] in another [area]" because
she did not see them. Id. at 884:17-24. Ms. Foster
initially testified that "just the three"
African-American women attended the clean-up, id. at
63:17-18, then appeared to agree that other people
44a
besides them attended the clean-up, id. at 100:13-16,
before finally stating that only one additional person
named Darielle (who was also an African-American
woman) joined the clean-up, id. at 102:2-12.
In the face of this conflicting evidence, the jury
could reasonably reach the conclusion that Ms. Allen's
interpretation of the clean-up duty was just a
misunderstanding. The jury heard consistent
testimony that Ms. Evans saw Ms. Allen, Ms. Wright,
and Ms. Foster together in the breakroom. Id. at
809:15-20 (Ms. Allen); id. at 971:23-972:1 (Ms. Evans).
The jury could have believed Ms. Evans's version of
the story and Ms. Foster's EEO declaration that there
was a misunderstanding. The jury also heard that Ms.
Evans and the Bureau had in fact taken certain
actions against Mr. Wilson in response to the trash can
incident and the June 4, 2008 incident involving Mr.
Wilson and Ms. Wright. Especially absent clear
evidence that it was just these three women who
performed the clean-up, the jury could have found the
government's account more believable.
Ms. Allen's second argument in support of her
retaliation claim centers on the Bureau's response to
the cane incident between Mr. Wilson and herself.
According to Ms. Allen, the Bureau retaliated against
her by refusing to investigate her complaint and
instead investigated her for allegedly lying about the
incident. Pl.'s Mot. at 25. The jury could have
reasonably found that the evidence weighed against
this argument. With respect to whether the Bureau
adequately investigated the matter, Ms. Evans
testified that the Bureau properly investigated the
45a
incident. Tr. at 290:15-16. The government presented
evidence supporting this testimony. See id. at 981:1
9-24 (Violence Intervention Team met the same day);
Def.' s Ex.46 (Ms. Evans's email exchange with office
of security for video footage); Tr. at 981:23-982:4 (Ms.
Evans testifying that the team could not reach a
conclusion about what happened but decided it was
"advisable to issue orders of separation ... to keep at
least 10 feet away and avoid contact").
With respect to the Bureau's investigation of
whether Ms. Allen made a false report, the jury could
reasonably conclude that the Bureau conducted this
investigation in good faith to determine what actually
happened during the cane incident. Ms. Allen testified
that she told Sergeant Henderson that Mr. Wilson
"struck at" her, hut that Sergeant Henderson
interpreted her statement to mean that Mr. Wilson
"struck" her. Tr. at 814:18-815:1. The jury had reason
not to attribute this misunderstanding to a retaliatory
motive. The jury heard Ms. Allen admit that in the
immediate aftermath of the cane incident, she was
"hysterical" and in "no state of mind," and even the
nurse was asking her if she was attacked or hit with
the cane.Id. at 813:12-20,815:18-23,913:9-10; see also
id. at 913:15-18 (Ms. Allen testifying, "When Sergeant
Henderson came to the health unit, he said that he
could have misunderstood me... because of my emotion
and state I was in. So there was some
misunderstanding somewhere ...."). The jury also
heard Ms. Allen testify that the Bureau ultimately
cleared her and concluded that she did not provide a
false report, another indication that the Bureau did
not use the investigation as a pretext for retaliation.
46a
Id. at 913:25-914:4. Moreover, there was no evidence
presented attributing retaliatory motive to Sergeant
Henderson, who was the reported source of the
misunderstanding.
Not only could the jury have found that the
record weighed against Ms. Allen's arguments, it could
also have credited affirmative evidence supporting the
government's position that no retaliatory hostile work
environment existed. In her 33 years at the Bureau,
Ms. Allen never received any disciplinary reports
against her. Id. at 791:18-20. And Ms. Allen testified
that she continued to receive praise and cash awards
after the trash can incident. Id. at 886:23-890:2 (Ms.
Allen receiving cash awards in 2009 and 2011); id. at
878:9-881:13 (Ms. Allen receiving praise from Ms.
Evans by emails). The jury could consider the Bureau's
positive treatment of Ms. Allen to cast further doubt
on her account of the agency's alleged retaliation.
Thus, neither judgment as a matter of law nor a new
trial is justified on this claim.14
14 Ms. Allen also appears to argue that Mr. Wilson
himself retaliated against her for engaging in protected activity.
Tr. at 1237:10-18. Although Ms. Allen did not develop this
argument at trial, she appears to rely on Mr. Wilson's "if you tell
one more thing on me" statement as an example. But the jury
could have reasonably believed that Mr. Wilson never uttered this
statement, see supra at 15-16, or that this statement was
insufficient in severity to constitute a hostile work environment
or causally connected in time to protected activity.
47a
IV. CONCLUSION
For the foregoing reasons, Plaintiffs motion for
judgment as a matter of law or, in the alternative, for
a new trial (ECF No, 187) is DENIED. An order
consistent with this Memorandum Opinion is
separately and contemporaneously issued.
Dated: June 9, 2023
RUDOLPH CONTRERAS
United States District Judge
48a
APPENDIX C
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
September Term, 2023
l:18-cv-01214-RC
No. 23-5153
Filed On: July 15, 2024
Patricia A. Allen,
Appellant
v.
Janet L: Yellen, Official Capacity as Secretary
of the Treasury,
Appellee
BEFORE: Srinivasan, Chief Judge, and Henderson,
Millett, Pillard, Wilkins, Katsas, Rao, Walker, Childs,
Pan, and Garcia, Circuit Judges
ORDER
Upon consideration of the petition for rehearing
en bane, the absence of a request by any member of
the court for a vote, and the motion for oral argument,
it is
ORDERED that the motion for oral argument be
denied. It is
49a
FURTHER ORDERED that the petition for
rehearing en bane be denied.
Per Curiam
BY:
FOR THE COURT:
Mark J. Langer, Clerk
/s/
Daniel J. Reidy
Deputy Clerk
50a
''r
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
September Term, 2023
l:18-cv-01214-RC
No. 23-5153
Filed On: July 23, 2024
Patricia A. Allen,
Appellant
v.
Janet L. Yellen, Official Capacity as Secretary
of the Treasury,
Appellee
MANDATE
In accordance with the order of March 21, 2024,
and pursuant to Federal Rule of Appellate Procedure
41, this constitutes the formal mandate of this court.
BY:
FOR THE COURT:
Mark J. Langer, Clerk
Is/
Daniel J. Reidy
Deputy Clerk
Link to the order filed March 21, 2024
51a
APPENDIX D
DEPARTMENT OF THE TREASURY
BUREAU OF ENGRAVING AND PRINTING
OFFENSE/INCIDENT REPORT
(Supplemental Continuation Sheet)
REPORT NUMBER
08-0143
NARRATIVE {Continued)
The following supplemental information is
provided by Corporal Carole A. Redman, SAC Badge
#13978:
On June 4, 2008, at approximately 0920 hours
I was dispatched to meet with Sgt. Henderson in
CPOC. Upon my arrival I was instructed to report to
the Testing lab in Room 605 (Annex) to obtain
additional statements of persons Involved In an
alleged employee complaint involving employee
Andrew Wilson. SAC Badge #10339.
I was admitted to the testing area by employee
Rosemary Kolesar, SAC Badge #13704. Ms. Kolesar
was working with Mr. Wilson and stated they had
been working together since approximately 0730 hours
in Room 605-A. Mr. Wilson exited the room while I
was speaking with Ms. Kolesar. When I departed the
area, I encountered Mr. Wilson in the hallway. Mr.
Wilson denied making any political comments on this
52a
date.
I then proceeded to the Paper Laboratory, Room
205 (Annex) to locate any further individuals who
might have witnessed the incident. There I spoke with
Mr. William Baum, SAC Badge #10330, who advised
that Mr. Wilson had been relocated to a desk next to
his about two weeks earlier by supervisor Julie Evans,
SAC Badge #10319. Ms. Evans was in a meeting and
not available for comment.
Attached to this report is the voluntary
statement submitted by employee Rachelle Wright,
SAC Badge #14440. Ms. Wright and employee Pat
Allen, SAC Badge #12818, were escorted by Sgt.
Henderson to the EEO Office, Room 606-A, and were
left there with EEO Counselor Mattie Wimberly, SAC
Badge #14175, for counseling on the matter.
No additional statements were obtained.
Halloway 6/9/2008
Badge No. 13978
6/4/08
Carole E. Redman
/s/
6/9/08
Is/
Edward Williams
53a
APPENDIX E
report?
A.
No.
Were there any other incidents involving Mr.
Q.
Wilson during this 2008 time frame with other
colleagues, other than Ms. Allen or Ms. Foster?
A.
Yes.
What was that? What was the other incident
Q.
that you recall?
That was on June 4th, 2008, there was a young
A.
lady, Rachelle Wright, who had just started that
summer with, you know, a group of students coming in
to do administrative work at the BEP and, you know,
doing working, you know, working part-time as they
went through college.
And I had her doing a special project on this something one of the engineers cooked up to get some
data, but she was working in the Paper Lab, and Mr.
Wilson was up at the computer in the front of the room
and put on the network news and was yelling and
hitting his hand and saying "There's no F'ing way a
black man was going to be president."
Q.
How did you find out about this?
54a
I -- Dr. Gupta told me about it. I understood
A.
that they've gone to the EEO office and talked to
Andre Faulk and I'm not sure where I was, but he
couldn't get hold of me. Dr. Gupta was in his office so
he sent them down to talk to him.
Ronda J. Thomas, RMR, CRR - Federal Official
Reporter
55a
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.