UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ ) HARRIETT A. AMES, ) ) Plaintiff, ) ) v. ) Case No. 13-cv-01054 (APM) ) KIRSTJEN NIELSEN, Secretary of ) Homeland Security, et al., ) ) Defendants. ) _________________________________________ )

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

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

Homeland Security (“DHS”) and the Secretary of DHS on Plaintiff Harriett Ames’s discrimination

and retaliation claims under Title VII of the Civil Rights Act of 1964. Plaintiff is the former Chief

of the Personnel Security Branch within the Federal Emergency Management Agency (“FEMA”),

a component of DHS. Plaintiff brought this action under Title VII, alleging, among other things,

that FEMA discriminated against her on the basis of sex and race and retaliated against her for

engaging in prior protected activity by reassigning her to the position of Chief of the Training

Unit. 1

1 Plaintiff raised other claims in her Amended Complaint, see generally Am. Compl., ECF No. 29, but the court either dismissed or entered summary judgment in favor of Defendants on those claims, see Ames v. Johnson,

(D.D.C. 2015) (granting Defendants’ motion to dismiss Plaintiff’s claim under the Equal Protection Clause); Ames v. Nielsen,

(D.D.C. 2017) (granting Defendants’ motion for summary judgment as to Plaintiff’s Title VII claims based on the limited suspension of adjudicatory authority within Plaintiff’s Branch and the temporary detail of a DHS employee to Plaintiff’s Branch, but allowing Plaintiff’s Title VII claims based on her reassignment to proceed to trial). Before the court is Plaintiff’s Motion for Judgment as a Matter of Law or, in the

Alternative, for a New Trial, ECF No. 149. For the reasons set forth below, Plaintiff’s Motion is

denied.

II. PLAINTIFF’S MOTION FOR JUDGMENT AS A MATTER OF LAW

The court begins with—and quickly dismisses—Plaintiff’s Motion for Judgment as a

Matter of Law under Federal Rule of Civil Procedure 50(b). Under Rule 50, a court may grant a

motion for judgment as a matter of law after a jury trial if it finds that “a reasonable jury would

not have a legally sufficient evidentiary basis to find for the [nonmoving] party on th[e] issue.”

FED. R. CIV. P. 50(a)(1). To determine whether this standard is met, the court “should review all

of the evidence in the record” and “must draw all reasonable inferences in favor of the nonmoving

party.” Reeves v. Sanderson Plumbing Prods., Inc.,

(2000). “In doing so,

however, the court . . . may not make credibility determinations or weigh the evidence.”

Here, Plaintiff acknowledges that credibility determinations are off-limits in evaluating a

party’s Rule 50 motion. See Pl.’s Mot. for J. as Matter of Law or, in the Alternative, for New

Trial, ECF No. 149, Pl.’s Mem. of P. & A., ECF No. 149-1 [hereinafter Pl.’s Mem.], at 6–7.

Nevertheless, Plaintiff asks the court to grant her Rule 50 motion because Defendants “failed to

rebut [her] prima facie case at trial by offering credible admissible evidence that there was a

legitimate business reason for the actions taken against [her].” Id. at 8 (emphasis added). Indeed,

her entire argument is premised on the credibility of various players involved in her reassignment.

Id. at 8; see id. at 3–4 (describing testimony of witnesses Cantu, Salazar, and Oliver as

“inconsistent” and/or “false”). True, there were some inconsistencies in the testimony regarding

the reasons for Plaintiff’s reassignment and who made the decision to reassign her. See id. at 3–

4. But it was within the province of the jury to assess the credibility of the witnesses in light of

2 those inconsistencies and to determine how much weight, if any, to give their testimony.

See Williams v. Johnson,

(D.D.C. 2012) (“[B]ecause the fundamental

function of the jury is ‘to select, from among conflicting inferences and conclusions, that which it

finds most reasonable,’ ‘the court cannot substitute its view for that of the jury, and can assess

neither the credibility nor weight of the evidence.’”) (first quoting Metrocare v. Wash. Metro. Area

Transit Auth.,

(D.C. Cir. 1982); then quoting Scott v. District of Columbia,

(D.C. Cir. 1996)). Thus, for the same reasons stated at trial, Plaintiff’s Motion for

Judgment as a Matter of Law is denied. See Jury Trial Tr., ECF No. 145, at 840–41 (denying

Plaintiff’s Rule 50(a) motion for same reasons court denied Defendants’ Rule 50(a) motion); see

also

at 839–40 (denying Defendants’ Rule 50(a) motion); Jury Trial Tr., ECF No. 142, at 361–

64 (same). Viewing the evidence in the light most favorable to Defendants, a reasonable jury

could have credited the non-discriminatory and non-retaliatory reasons offered for Plaintiff’s

reassignment. See Def.’s Opp’n to Pl.’s Mot. for J. as Matter of Law or, in the Alternative, for

New Trial, ECF No. 152, at 3–5 (summarizing evidence presented at trial); see also Williams,

(“The jury’s verdict must stand ‘unless the evidence and all reasonable

inferences that can be drawn therefrom are so one-sided that reasonable men and women could not

disagree.’”) (quoting Scott,

).

III. PLAINTIFF’S MOTION FOR NEW TRIAL

Having concluded that Plaintiff is not entitled to judgment as a matter of law under Rule

50, the court turns to Plaintiff’s alternative argument that a new trial is warranted under Rule 59.

Rule 59 allows a court to grant a new trial after a jury verdict “for any reason for which a new trial

has heretofore been granted in an action at law in federal court.” FED. R. CIV. P. 59(a)(1)(A). “The

authority to grant a new trial . . . is confided almost entirely to the exercise of discretion on the part

3 of the trial court.” Queen v. Schultz,

(D.D.C. 2015) (alteration in original)

(quoting Allied Chem. Corp. v. Daiflon, Inc.,

(1980)). While the trial court is

entrusted with the exercise of discretion, “[a] new trial should be granted only where the court is

convinced that the jury verdict was a seriously erroneous result and where denial of the motion

will result in a clear miscarriage of justice.” Lee v. District of Columbia,

(D.D.C. 2014) (internal quotation marks omitted).

Plaintiff offers five reasons why she is entitled to a new trial under Rule 59. As discussed

below, none of these reasons warrant upsetting the jury’s verdict.

A. “False Testimony” of Plaintiff’s Supervisors

Plaintiff first claims that she is entitled to a new trial because “[t]he previous false

testimony by Messrs. Cantu, Salazar, and Oliver”—coupled with Defendants’ “failure to offer any

admissible, credible evidence from these decision-makers to rebut plaintiff’s prima facie cases of

discrimination and retaliation”—make clear that the jury’s verdict in favor of Defendants was a

“seriously erroneous result.” Pl.’s Mem. at 9; accord

(“Thus, denial of this motion would result

in a ‘clear miscarriage of justice.’”). The court need not linger over this first argument, as it is

based on the same erroneous premise advanced in support of Plaintiff’s motion for judgment as a

matter of law: that the court can countermand a jury’s credibility determination. Therefore, the

court rejects this argument for largely the same reasons stated above. Cf. Vander Zee v.

Karabatsos,

(D.C. Cir. 1978) (“The trial court’s contrary view of the credibility

of the witnesses does not justify the granting of a new trial.”); Hancock v. Wash. Hosp. Ctr.,

(D.D.C. 2014) (holding that weight of evidence did not mandate new trial under

Rule 59 where court already found that plaintiff failed to meet Rule 50 standard).

4 B. “Continuing Discovery Abuses”

The court easily disposes of Plaintiff’s second argument, too. While Plaintiff contends that

Defendants’ “continuing discovery violations” warrant a new trial, see Pl.’s Mem. at 9, no such

violations occurred. As the court explained in denying Plaintiff’s motion in limine to exclude

Kimberly Lew’s November 2, 2011 email and testimony at trial, Defendants’ disclosures were

timely, albeit barely, and thus automatic exclusion was not warranted under Rule 37(c)(1). See

Pretrial Hr’g Tr., ECF No. 140, at 17–18. Furthermore, to mitigate any prejudice to Plaintiff

caused by Defendants’ last-minute disclosures, the court ordered Defendants to make Ms. Lew

available for a deposition before trial. See Omnibus Pretrial Order, ECF No. 116, ¶ 1.

To the extent Plaintiff claims that she was prejudiced by the late timing of Ms. Lew’s

deposition, which took place only four days before trial, see Pl.’s Mem. at 9, it is Plaintiff who

waited approximately a year and a half to complain to the court about the lateness of disclosures

related to Lew, 2 see Minute Order, Sept. 27, 2016 (setting October 21, 2016 as discovery deadline);

Pl.’s First Mot. in Limine, ECF No. 92 (dated April 20, 2018) (seeking to exclude evidence

concerning Lew). Rather than raising the issue at the Post-Discovery Conference, see Hr’g Tr.

(draft), Oct. 25, 2016, at 2–4, or in her request to reopen discovery pursuant to Rule 56(d), see

Pl.’s Opp’n to Mot. for Summ. J., ECF No. 76, at 32, 3 Plaintiff waited until she filed her first

motion in limine to formally raise the issue with the court. Plaintiff cannot now be heard to

complain about the timing of Lew’s deposition when Plaintiff failed to exercise diligence in trying

to obtain her testimony on an earlier date.

2 Defendants produced Ms. Lew’s email after close of business on the date of the discovery deadline. See Pl.’s First Mot. in Limine, ECF No. 92, Mem. of P. & A., ECF No. 92-1, at 8. Defendants supplemented their initial disclosures to identify Ms. Lew as a possible witness two days before discovery closed.

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

5 Additionally, in her present motion, Plaintiff fails to identify any concrete way in which

the timing of the deposition actually prejudiced her. Instead, she simply states that she was “denied

the opportunity of using the surprise Lew admission”—that is, that Ms. Lew “had no personal

knowledge” about the reasons she gave, and Defendants adopted, in recommending Plaintiff’s

reassignment—when “planning her case, issuing discovery requests, taking depositions, and

preparing for trial.” Pl.’s Mem. at 9–10. This assertion is perplexing, as Plaintiff cross-examined

Ms. Lew at trial about her lack of personal knowledge. Jury Trial Tr., ECF No. 143, at 560–61.

In any event, Plaintiff’s generic proclamation of harm does little to convince the court that it erred

in denying Plaintiff’s motion in limine, let alone that such an error resulted in a “clear miscarriage

of justice.” See Moore v. Hartman,

(D.D.C. 2015) (“[T]he standard for

granting a new trial is not whether minor evidentiary errors were made but rather whether there

was a clear miscarriage of justice.” (internal quotation marks omitted)); cf. Muldrow ex rel. Estate

of Muldrow v. Re-Direct, Inc.,

(D.C. Cir. 2007) (noting, in context of finding

no abuse of discretion in district court’s decision to deny defendant’s motion for new trial, that

plaintiff’s expert’s testimony “did not run afoul of Rules 26 or 37—or if it did, the testimony was

nonetheless admissible because any transgression was harmless under Rule 37”).

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

Next up is Plaintiff’s third argument, in which Plaintiff faults the court for allowing

Defendants to use Ms. Lew’s November 2, 2011 email as well as her trial testimony “to explain

and justify the decision to transfer Ms. Ames.” Pl.’s Mem. at 10. Plaintiff contends that she is

entitled to a new trial because (1) the court erroneously admitted the November 2, 2011 email and

Ms. Lew’s testimony about the email, and (2) Defendants improperly relied on this evidence in

closing arguments. See

at 10–16. The court addresses each of these contentions in turn.

6 1. Admission of Lew Email and Testimony

Before turning to the merits of Plaintiff’s evidentiary argument, the court makes an initial

observation: The court admitted Ms. Lew’s November 2, 2011 email, see Defs.’ Opp’n to Pl.’s

Apr. 20, 2018 Mot. in Limine, ECF No. 101, Ex. 2, ECF No. 101-2 [hereinafter Lew Email], as

well as her testimony about the email, see Jury Trial Tr., ECF No. 143, at 533–51, for the purpose

of showing “the reasons for why [Lew] made the recommendation” to her supervisor, Gregory

Marshall, that FEMA reassign Plaintiff to another unit within the Office of the Chief Security

Officer—not, as Plaintiff contends, for the purpose of establishing the truth of those reasons, i.e.,

that Plaintiff in fact acted as a “road block[]” and/or “halt[ed] training efforts,” see Jury Trial Tr.,

ECF No. 143, at 551; see also

at 521–22, 531–32, 562–65. Thus, the evidence was admitted

for a non-hearsay purpose. Plaintiff’s arguments about why the email does not fall within the

business records exception to the hearsay rule are therefore beside the point. See Pl.’s Mem. at

11–13.

The question, then, is whether the court erred in admitting Ms. Lew’s email and testimony

as non-hearsay. It did not. In cases such as this one, where the plaintiff attempts to show that her

employer’s stated reason for an adverse action was a pretext for discrimination or retaliation, she

cannot establish pretext merely by demonstrating that the reason itself was false. Instead, she must

show that the employer could not have honestly and reasonably believed that the conduct

underlying the stated reason occurred. See Fischbach v. D.C. Dep’t of Corr.,

(D.C. Cir. 1996) (“Once the employer has articulated a non-discriminatory explanation for its

action, . . . the issue is not the correctness or desirability of the reasons offered but whether the

employer honestly believes in the reasons it offers.” (cleaned up)); George v. Leavitt,

(D.C. Cir. 2005) (“[A]n employer’s action may be justified by a reasonable belief in the

7 validity of the reason given even though that reason may turn out to be false.”); see also Hampton

v. Vilsack,

, 1101 n.8 (D.C. Cir. 2012) (“In a Title VII action, the question . . . is not

whether the underlying incidents occurred; rather, the issue is whether the employer honestly and

reasonably believed that the underlying incidents occurred.”) (cleaned up). Thus, the question of

pretext turns on whether the employer reasonably and honestly believed the proffered non-

discriminatory reason for the adverse action, not the truth or falsity of that reason.

Here, Lew’s email and testimony were relevant to show that her supervisor, Marshall, and

others in the decision-making chain honestly and reasonably believed that Plaintiff’s work

performance warranted her transfer. A reasonable juror could have concluded that Lew was the

first person to recommend that Plaintiff be reassigned, and that she did so for a non-discriminatory,

non-retaliatory reason. In early November 2011, Marshall asked Lew for “[her] recommendation

as to what we should do with FEMA personnel security.” Lew Email. Lew had assigned a

subordinate to work with the Personnel Security Branch following the release of an audit report

critical of the Branch, see Jury Trial Tr., ECF No. 143, at 533–34, and that subordinate related to

Lew that Plaintiff was impeding efforts to address the report’s concerns, see Lew Email. 3; Jury

Trial Tr., ECF No. 143, at 528–29, 533–37, 546–51; Jury Trial Tr., ECF No. 144, at 683–84. That

criticism apparently prompted Lew to make the recommendation to “move [Plaintiff] to another

security discipline within the office.” Lew Email. According to the testimony presented at trial,

Marshall took Lew’s recommendation and delivered it to the Executive Steering Group (“ESG”),

a committee assembled to address deficiencies identified in the audit report. Jury Trial Tr., ECF

No. 144, at 684–87. Cliff Oliver, Plaintiff’s third-line supervisor who sat on the ESG relayed the

recommendation to transfer Plaintiff to Jose Cantu, Plaintiff’s first-line supervisor, and left it to

Cantu to decide whether to implement the transfer. Jury Trial Tr., ECF No. 145, at 816–18, 822–

8 23. Cantu ultimately concluded that Plaintiff’s transfer was warranted. See Defs.’ Mot. for Summ.

J., ECF No. 73, Ex. 30, ECF No. 73-7. When viewed against this sequence of events, the relevance

of Lew’s email and testimony is obvious. That proof tended to show that Plaintiff’s superiors

reasonably and honestly believed that there were legitimate non-discriminatory and non-retaliatory

grounds for Plaintiff’s reassignment. Lew’s email and testimony thus were properly admitted as

non-hearsay.

Belatedly, Plaintiff insists that, even if relevant, the Lew evidence was excludable under

Federal Rule of Evidence 403. See Pl.’s Reply to Def.’s Opp’n to Mot. for J. as Matter of Law, or

in the Alternative, for New Trial, ECF No. 155 [hereinafter Pl.’s Reply], at 10. As a threshold

matter, the court rejects that argument for the simple reason that Plaintiff raises it for the first time

in her reply brief. See Forman v. Korean Air Lines Co.,

(D.C. Cir. 1996).

Moreover, even if the court were to consider the argument, the probative value of the Lew evidence

was not substantially outweighed by the danger of unfair prejudice. See Fed. R. Evid. 403. As

already discussed, the Lew evidence was probative of the non-discriminatory, non-retaliatory

reason offered for Plaintiff’s transfer. The risk that the jury would use the evidence for an improper

purpose—to infer that Plaintiff in fact impeded efforts to improve the Branch—was mitigated by

three limiting instructions given by the court. First, after Ms. Lew finished testifying about the

contents of the email on direct examination, the court instructed the jury as follows:

[T]here are references in th[e] email to observations and understandings that Ms. Lew had about what was transpiring in the training division.[4] You should not take those observations and understandings as the truth of what, in fact, was happening; rather, you should take them as the reasons for why she made the recommendation that she made.

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

9 Jury Trial Tr., ECF No. 143, at 551. The court reiterated this instruction after Plaintiff completed

her cross-examination of Ms. Lew:

I want to just reiterate the limiting instruction I gave earlier. You’ve now heard Ms. Lew testify that some of what she heard about— some of the basis of that email [were] things she was told [by] others. Once more, you should not accept what she was told by others for the truth but, rather, it’s being provided to you as background for why she made the recommendation she did.

at 562–63. And the court admonished the jury one final time during its instructions delivered

before closing arguments. Jury Trial Tr., ECF No. 146, at 948–49; accord Final Jury Instrs., ECF

No. 129, at 5. 5 These limiting instructions provided Plaintiff ample protection against unfair

prejudice. Cf. Penry v. Johnson,

(2001) (“We generally presume that jurors

follow their instructions.”); United States v. Crews,

(D.C. Cir. 2017) (“We

generally presume that ‘a jury will follow an instruction to disregard inadmissible evidence

inadvertently presented to it’ absent ‘an overwhelming probability that the jury will be unable to

follow the court’s instructions.’”) (quoting Greer v. Miller,

, 766 n.8 (1987)).

The foregoing conclusions are supported by binding precedent that Plaintiff fails to cite—

Desmond v. Mukasey,

(D.C. Cir. 2008). In Desmond, the plaintiff, a trainee at the

FBI Academy, brought disparate treatment and retaliation claims under the Rehabilitation Act.

See

at 946–47. In his retaliation claim, the plaintiff alleged that he was refused a promotion

from the FBI Academy after he filed an equal employment opportunity complaint based on his

disability. See

at 950–52. To establish a non-retaliatory reason for his non-promotion, the

5 The instruction reads as follows:

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

10 government offered as proof a 112-page investigation report that detailed the plaintiff’s “alleged

failures, infractions, and indiscretions at the Academy.”

. The report was prepared by a

subordinate and submitted to a superior, who in turn made the recommendation not to promote the

plaintiff up the chain of command.

at 950–51. The recommendation was accepted. See

at

952–53. On appeal, the plaintiff challenged the district court’s admission of the report, arguing it

had no probative value and in any event was inadmissible under Rule 403.

. The Circuit

rejected these arguments.

at 965–66. It held that the probative value of the report was

“obvious,” as it showed the information that the superior had before him when he made his

recommendation not to promote the plaintiff.

. As to the risk of unfair prejudice, the

Circuit held that such risk was sufficiently mitigated because the district court: (1) “refused to

admit the report for the truth of its substance”; (2) forbade both sides from bolstering or attacking

the report; and (3) “repeatedly admonished the jury to consider the report solely for the limited

purpose of showing [the superior’s] reliance.”

. This approach, the court concluded,

“kept the trial—and the jury—focused on events occurring after [the plaintiff] filed his EEO

complaint, striking a balance between providing the jury with the information it needed and

protecting [the plaintiff] from the risk of unfair prejudice.”

This court sees little material difference between this case and Desmond. If anything, the

report at issue in Desmond supplied a far greater risk of unfair prejudice, given its length and

multiple instances of “failures, infractions, and indiscretions” detailed therein. Here, by contrast,

the court admitted a single email and allowed limited testimony about why Lew made the transfer

recommendation and why Marshall forwarded it on to the ESG. Notwithstanding, this court still

put in place the same types of safeguards the Circuit in Desmond considered “sensible and well

11 within the district court’s discretion.”

If the trial court in Desmond did not err, neither did this

court.

2. Defendants’ Reliance on Lew Email and Testimony in Summation

Plaintiff also maintains that she is entitled to a new trial because she was unfairly

prejudiced by defense counsel’s repeated efforts in summation to use Ms. Lew’s email and

testimony for an impermissible purpose: to argue that Plaintiff in fact had “halted” training efforts

and created “road blocks” to improving the Personnel Security Branch. Pl.’s Mem. at 10, 14–15;

see also Caudle v. District of Columbia,

(D.C. Cir. 2013) (“A new trial may be

granted based on improper jury argument.”). That argument fails for multiple reasons.

First, Plaintiff wildly overstates the centrality of Lew’s email and testimony to the

government’s closing argument. According to Plaintiff, Defendants’ “closing statement focused

on the agency’s contention that Ms. Lew’s email and her subsequent testimony were true . . .

[and] explain[ed] why Ms. Ames was transferred to a nonexistent position.” Pl.’s Reply at 11;

accord Pl.’s Mem. at 10 (arguing that counsel used evidence to demonstrate that Defendants had

a legitimate business reason for transferring Plaintiff). But of the thirty transcript pages comprising

Defendants’ summation, reference to Ms. Lew’s email or testimony concerning the transfer

recommendation appears on only five. Jury Trial Tr., ECF No. 146, at 988–89, 991–92, 995. On

those pages, defense counsel merely discusses the evidence in the context of explaining how the

recommendation came about in the overall chronology of events. See

at 985–1006. The Lew

evidence therefore did not play the “central” role in Defendants’ summation that Plaintiff ascribes

to it. Pl.’s Mem. at 10.

Second, Plaintiff greatly exaggerates the defense closing as having “repeatedly and

blatantly sought to circumvent the Court’s limiting instruction[s].” Pl.’s Reply at 11. To be sure,

12 in the court’s view, defense counsel did attempt to cross the line once during summation. After

referencing the email to the jury for the first time, defense counsel stated, “I asked [Ms. Lew],

[d]id you want to make sure that email, the information’s correct? Yes.” Jury Trial Tr., ECF No.

146, at 989. Plaintiff objected, and the court sustained the objection, agreeing during a bench

conference that the argument made by defense counsel had suggested Ms. Lew’s

“recommendations have a basis in fact and that they were not inadmissible hearsay.” Id. at 990.

Thereafter, defense counsel did no more than highlight the text of the email and note that Marshall

received the transfer recommendation from Lew. See id. at 991–92. That was permissible. He

did not urge the jury, as Plaintiff contends, to find that Plaintiff, in truth, interfered with and

impeded efforts to address problems within the Personnel Security Branch. If anything, the court

guarded against that prospect by stating in response to an objection, “The jury understands what

the limitations are of that document. They’ve been instructed multiple times[.]” Id. at 991.

Finally, there is no reason to believe that the jury would have ignored the court’s multiple

limiting instructions, even if defense counsel’s summation went too far. By the time of closings,

based on the court’s thrice-delivered limiting instruction, the jury was acutely aware of the limited

purpose for which the court admitted Lew’s email and testimony. The court presumes that the jury

followed these limiting instructions. See Tennessee v. Street,

, 414–15 (1985).

Moreover, this is not a case where counsel egregiously and repeatedly exceeded the limitations

placed on the evidence. Cf. Caudle,

(distinguishing case where counsel “made a

single misstatement and ceased further misstatements after the district court sustained an

objection” from case where counsel made “four impermissible statements”). And, while defense

counsel’s use of the Lew evidence went to a central issue in the case—the legitimacy of

Defendants’ reasons for reassigning Plaintiff—Plaintiff exaggerates the closeness of the case. See

13

(listing closeness of case,centrality of issues, and steps taken to mitigate effects as three

factors courts should consider when determining whether error was harmless). Plaintiff is simply

incorrect that Defendants would have been left with “perjured testimony” and “no legitimate

business reason to explain the transfer” in the absence of the Lew evidence. See Pl.’s Reply at 14.

The record speaks for itself on that score.

Accordingly, a new trial is not warranted based on Defendants’ alleged improper use of the

Lew email and testimony during closing argument.

D. Mixed-Motive Instruction

Moving on to Plaintiff’s fourth argument, Plaintiff asks the court to reconsider her request

for a mixed-motive instruction on her retaliation claim and to grant her a new trial as to that claim.

See Pl.’s Mem. at 16. The court declines the invitation for the same reasons it did before. In

University of Texas Southwestern Medical Center v. Nassar,

(2013), the

Supreme Court expressly eliminated the mixed-motive theory of liability for Title VII retaliation

claims, holding that such claims “require proof that the desire to retaliate was the but-for cause of

the challenged employment action.” The court therefore did not err in refusing to give a mixed-

motive instruction on Plaintiff’s retaliation claim, and a new trial is not justified on this ground.

Furthermore, Plaintiff has consistently—and mistakenly—cited the Fourth Circuit’s

decision in Foster v. University of Maryland-Eastern Shore,

(4th Cir. 2015), as

evidence of a Circuit split on the mixed-motive issue. See, e.g., Pl.’s Mem. at 16. But the split

referenced in Foster pertains to a question not relevant here— “whether Nassar has any bearing

on the causation prong of the prima facie case.” Foster, 787 F.3d at 250–51 (emphasis added).

Like Nassar, the question here arises in the context of a post-trial motion in a Title VII case and

does not turn on any such Circuit split. See Foster,

(“Nassar involved a post-

14 judgment motion for judgment as a matter of law in a mixed-motive case, and therefore did not

address the elements of a prima facie case of retaliation under the pretext framework.”); see also

Durant v. D.C. Gov’t,

(D.C. Cir. 2017) (“If the employer provides a legitimate,

nonretaliatory reason for its conduct, the burden-shifting framework disappears and the question

becomes whether a reasonable jury could infer retaliation from all the evidence . . . .” (cleaned

up)). In short, Plaintiff cites no authority that would have permitted a mixed-motive instruction

on her retaliation claim.

E. “Reconsideration of Knowingly False Security Reports”

The final ground for a new trial asserted by Plaintiff challenges this court’s prior rulings

addressing Department of Navy v. Egan,

(1988), and its progeny, which bar judicial

review of Title VII claims that require courts to evaluate the merits of security clearance

determinations. At the summary judgment stage, the court found that Egan did not apply to

Plaintiff’s Title VII claims based on her reassignment and allowed those claims to proceed to trial.

See Ames v. Nielsen,

, 89–90 (D.D.C. 2017). Plaintiff later filed a motion in

limine seeking to preclude Defendants from asserting at trial that Plaintiff’s reassignment was

based on her improper granting of security clearances. See generally Pl.’s Second Mot. in Limine,

ECF No. 94. In denying Plaintiff’s motion, the court held that Defendants could present evidence

at trial “regarding the agency’s limited suspension of Plaintiff’s Branch’s responsibility for

security clearances as background for Plaintiff’s . . . reassignment.” The court further held that

Plaintiff could not, under Egan, challenge the reasons for the actions taken against the Branch.

Omnibus Pretrial Order ¶ 2.

It is this decision that forms the basis of Plaintiff’s motion for a new trial. See Pl.’s Mem.

at 17; Pl.’s Reply at 18–19. Plaintiff appears to ask the court to reconsider its prior motion in

15 limine ruling in light of the evidence presented at trial—namely, Defendants’ “abandon[ment of]

prior sworn testimony of its principal witnesses and [a] stipulat[ion] that Ms. Ames never issued

any such interim Top Secret clearances.” Pl.’s Mem. at 17. In particular, Plaintiff contends that

she is entitled to a new trial “because the record now shows that the agency’s Egan defense and

concomitant limitation of plaintiff’s evidence was based on ‘knowingly false security reports or

referrals,’” Pl.’s Reply at 19 (quoting United States v. Old Chief,

(1997)). The

D.C. Circuit recognized knowingly false reporting as falling outside the Egan rule in Rattigan v.

Holder,

(D.C. Cir. 2012).

The court is confused by Plaintiff’s argument. For starters, the court allowed in as evidence

the limited suspension of the Personnel Security Branch’s security-clearance adjudication

authority only as background evidence to place into context why the Branch’s work was subject

to scrutiny. See Pretrial Hr’g Tr. at 24–25. There was no evidence that an improper clearance

determination made by Plaintiff or anyone else under her supervision was the cause of Plaintiff’s

transfer. Therefore, even if the court were to accept that the Branch’s limited suspension was

based on a false premise—which is a real reach, to say the least—such falsity had no causal

connection to the alleged adverse action.

Furthermore, Rattigan has no application here. There, the D.C. Circuit held that Egan does

not apply to Title VII claims premised on the assertion that “agency employees acted with a

retaliatory or discriminatory motive in reporting or referring information that they knew to be

false.” Rattigan,

. But in that case, the plaintiff alleged that “the decision to refer”

another employee’s purported concerns about the plaintiff to the agency’s Security Division, which

prompted an investigation into the plaintiff’s security clearance, “amounted to unlawful retaliation

for [his] pursuit of discrimination claims.”

. The exception announced in Rattigan thus

16 applied to “security reporting claims.”

(announcing “knowingly false standard for

security reporting claims”). Here, by contrast, the false accusations of which Plaintiff complains

arose in the context of the present litigation and took the form of discovery responses. See Pl.’s

Second Mot. in Limine, Mem. in Supp., ECF No. 94-1 at 2–4. They do not form the basis of the

claims alleged in her Amended Complaint. See generally Am. Compl., ECF No. 29. Rattigan is

therefore inapposite.

Finally, to the extent Plaintiff argues that she is entitled to a new trial because “the jury

should be able to hear that the justification for Ms. Ames’ transfer was so weak that the agency

felt it necessary to manufacture the claim of issuance of interim Top Secret security clearances to

justify its position,” Pl.’s Reply at 18, that argument makes little sense to the court. Not only did

the jury have as evidence a stipulation that no interim Top-Secret clearances were granted during

2010 or 2011, see Jury Trial Tr., ECF No. 142, at 309, but Plaintiff also questioned her former

supervisors at trial about the falsity of any previous statements to the contrary, see, e.g.,

at 270–

71, 313–16; Jury Trial Tr., ECF No. 143, at 558–59; see also Jury Trial Tr., ECF No. 146, at 978–

81, 1006–09, 1013 (relying on these inconsistencies in closing arguments). In sum, whatever

importance Plaintiff attaches to the inconsistent testimony offered by her supervisors concerning

the nature of interim security clearances granted (“Secret” or “Top-Secret”), that testimony does

not bring her Title VII claims within Rattigan. Nor does it provide any basis to grant her a new

trial, as she had the opportunity to confront the witnesses about any inconsistencies. 6

6 In her Reply, Plaintiff also maintains that she has “a separate actionable claim for the removal of her security clearance duties as these actions were based on claims within the exception recognized in Rattigan.” Pl.’s Reply at 19. The court assumes that this argument refers to its granting of summary judgment in favor of Defendants based on the agency’s decision to suspend Plaintiff’s Branch from adjudicating security clearances for certain employees. See Ames,

; see also Am. Compl. ¶¶ 19–33. The non-Egan reasons for that decision still stand, however. See Ames,

(holding that the July suspension did not qualify as an adverse action because Plaintiff failed to show objectively tangible harm);

(holding that Plaintiff’s retaliation claim failed as a matter of law because there was no dispute that the suspension occurred before the alleged protected activity).

17 IV. CONCLUSION AND ORDER

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

Matter of Law, or in the Alternative, for a New Trial, ECF No. 149. Plaintiff shall respond

to Defendants’ Bill of Costs, ECF No. 139, no later than November 16, 2018

Dated: November 2, 2018 Amit P. Mehta United States District Judge

18