UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DEBRA STOE,

Plaintiff, v. Civil Action No. 16-1618 (JDB) MERRICK B. GARLAND, U.S. Attorney General,

Defendant.

MEMORANDUM OPINION

Plaintiff Debra Stoe, a scientist in the Department of Justice’s (“DOJ”) Office of Science

and Technology (“OST”), was denied a promotion in 2014 to serve as OST’s Division Director.

Mark Greene, a younger man with less experience at OST, received the job instead. The selecting

official was plaintiff’s then-supervisor Chris Tillery. See Joint Pretrial Statement [ECF No. 41] at

5. Thereafter, Stoe brought suit against her employer, the U.S. Attorney General, alleging that

OST’s failure to promote her resulted from gender and age discrimination in violation of Title VII

of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act. In 2018, this

Court granted summary judgment to the government on both claims. Stoe v. Sessions,

(D.D.C. 2018). Stoe appealed, and the D.C. Circuit reversed, concluding that

“a reasonable jury could find that DOJ’s proffered nondiscriminatory reason for denying Stoe the

promotion . . . was pretextual and that discrimination was the real reason.” Stoe v. Barr,

(D.C. Cir. 2020) (quotation omitted). The case was remanded, and a trial date has now

been set.

1 Both parties have filed motions in limine to exclude certain evidence at trial. Plaintiff seeks

to prohibit post-selection evidence of Greene’s job performance. The government seeks to

preclude: (a) testimony by plaintiff’s coworker Christine Crossland that Tillery discriminated

against her and other women after Tillery became Crossland’s supervisor in 2017; (b) lay opinion

testimony by plaintiff and Crossland that Tillery’s treatment of plaintiff, Crossland, and other

women at DOJ was motivated by gender bias; and (c) evidence that Tillery denied plaintiff a

similar promotion in 2010, allegedly under circumstances suggesting discrimination. For the

following reasons, the Court will defer ruling on plaintiff’s motion until trial and will deny the

government’s motion.

Legal Standard

“Although neither the Federal Rules of Civil Procedure nor the Federal Rules of Evidence

expressly contemplate motions in limine, the practice of allowing such motions has developed over

time ‘pursuant to the district court’s inherent authority to manage the course of trials.’” Youssef

v. Lynch,

(D.D.C. 2015) (quoting Luce v. United States,

, 41

n.4 (1984)). “Consistent with the historical origins of the practice, motions in limine are ‘designed

to narrow the evidentiary issues for trial and to eliminate unnecessary trial interruptions.’”

(quoting Bradley v. Pittsburgh Bd. of Educ.,

, 1070 (3d Cir. 1990)). However, “in

some instances it is best to defer rulings until trial, [when] decisions can be better informed by the

context, foundation, and relevance of the contested evidence within the framework of the trial as

a whole.” United States v. Slatten,

, 143–44 (D.D.C. 2018) (quoting Casares

v. Bernal,

(N.D. Ill. 2011)). Here, the parties’ motions in limine raise

objections under Rules 401, 403, 404(b), and 701 of the Federal Rules of Evidence.

2 Rule 401 provides that “[e]vidence is relevant if . . . it has any tendency to make a fact”

“of consequence in determining the action” “more or less probable than it would be without the

evidence.” Fed. R. Evid. 401. Whereas irrelevant evidence is inadmissible, relevant evidence is

admissible unless specific grounds for exclusion apply. See Fed. R. Evid. 402.

Rule 403 instructs that “[t]he court may exclude relevant evidence if its probative value is

substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the

jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid.

403. Rule 403 does not bar all potentially prejudicial evidence. Instead, the term “unfair

prejudice” “means an undue tendency to suggest a decision on an improper basis, commonly,

though not necessarily, an emotional one.” United States v. Ring,

(D.C. Cir.

2013) (quoting Fed. R. Evid. 403 advisory committee’s note). “Rule 403 ‘tilts . . . toward the

admission of evidence in close cases.”

at 474 (quoting United States v. Moore,

(D.C. Cir. 1984)).

Rule 404(b), in turn, excludes “[e]vidence of any other crime, wrong, or act” besides the

subject of the instant lawsuit “to prove a person’s character in order to show that on a particular

occasion the person acted in accordance with the character.” Fed. R. Evid. 404(b)(1). “Rule

404(b) is a rule of inclusion rather than exclusion,” meaning that it only bars evidence that “lacks

any purpose but proving character.” United States v. Bowie,

, 929–30 (D.C. Cir.

2000) (citing United States v. Crowder,

(D.C. Cir. 1998) (en banc)). Thus,

evidence of “other bad acts,” may be used for a non-character-related purpose, such as proving

motive or intent, see Fed. R. Evid. 404(b)(2), as long as the evidence is not prohibited under Rule

403, see United States v. Mathis,

(D.C. Cir. 2000) (citing United States v. Gaviria,

(D.C. Cir. 1997)).

3 Finally, Rule 701 permits lay opinion testimony that is “‘(a) rationally based on the

witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining

a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge’ of the

sort that is properly the subject of expert opinion testimony under [Rule] 702.” United States v.

Williams,

(D.C. Cir. 2016) (quoting Fed. R. Evid. 701). Rule 701 “was

designed to ensure that any opinions offered by a lay witness are based on personal, ‘first-hand

knowledge or observation,’”

(quoting Fed. R. Evid. 701 advisory committee note on proposed

rule), “and ‘a process of reasoning familiar in everyday life,’”

(quoting Fed. R. Evid. 701

advisory committee’s note to 2000 amendment).

Analysis

The Court assumes familiarity with the facts of this case, as laid out more fully in Stoe,

324 F. Supp. 3d at 182–185, and Stoe, 960 F.3d at 629–38, and will turn directly to analyzing the

parties’ motions.

I. Plaintiff’s Motion in Limine

The Court begins with plaintiff’s motion to exclude evidence “relating to the post-selection

job performance of the Division Director selectee, Mark Greene” under Rules 401 and 403. See

Pl.’s Mot. in Limine (“Pl.’s Mot.”) [ECF No. 40] at 1. The government concedes that evidence of

how well Greene ultimately performed as the Division Director is irrelevant because that

information was unknown at the time of his 2014 selection and thus could not have motivated the

selection decision. See Def.’s Opp’n to Pl.’s Mot. (“Def.’s Opp’n”) [ECF No. 43] at 5–6. The

case law is clear on this point. See McKennon v. Nashville Banner Pub. Co.,

, 359–

60 (1995) (reasoning that “[t]he employer could not have been motivated by knowledge it did not

have” at the time of the firing decision and “cannot now claim that the employee was fired for [a]

4 nondiscriminatory reason” based on after-acquired evidence); see also, e.g., St. John v. Napolitano,

, 95 n.10 (D.D.C. 2013) (excluding post-selection job performance as “irrelevant

because it had not yet occurred at the time of . . . selection”), aff’d sub nom. St. John v. Johnson,

(D.C. Cir. 2015); Bruno v. W.B. Saunders Co., Civ. A. No. 86-2282,

, at *11 (E.D. Pa. Oct. 31, 1988) (“[I]n the context of employment discrimination, the

inquiry is limited to the empirical knowledge of the employer at the time he made the hiring

decision. Hindsight bootstrapping is impermissible.”).

Nevertheless, the government seeks to present testimony that, following Greene’s 2014

promotion to Division Director, Greene implemented a new vision “for standards development

and conformity assessment”1 on a different theory of relevance. See Def.’s Opp’n at 2, 3.

According to the government, this testimony is not admissible to show how well Greene performed

as Director, but instead to corroborate the interview panelists’ testimony that they were

“impressed” by “the vision that [Greene] articulated” at his interview “for the future of standards

development and conformity assessment” and, in fact, chose Greene for the Director role “based

on the strength of his interview.” See id. at 1, 3.

The Court agrees with the government that in theory limited evidence of Greene’s post-

2014 conduct is relevant. “Once the employer has articulated a non-discriminatory explanation

for its [employment] action, . . . the issue is not ‘the correctness or desirability of the reasons

offered . . . [but] whether the employer honestly believes [those] reasons.’” Fischbach v. D.C.

Dep’t of Corr.,

(D.C. Cir. 1996) (quoting McCoy v. WGN Cont’l Broad. Co.,

(7th Cir. 1992)); see also Ames v. Nielsen, Civ. A. No. 13-1054 (APM), 2018

1 A “conformity assessment program” is, in Tillery’s words, a program to “ascertain how well a piece of equipment or technology . . . conforms to an established standard.” See Dep. of George Tillery Tr. (July 28, 2017) (“Tillery Dep. Tr.”) [ECF No. 45-1] at 104:9–15.

, at *3 (D.D.C. Nov. 2, 2018) (“[T]he question of pretext turns on whether the

employer reasonably and honestly believed the proffered non-discriminatory reason for the

adverse action.”). Evidence that Greene actually implemented a visionary new standards process

as Division Director substantiates the government’s defense “that Tillery and the other members

of the interview panel honestly and reasonably believed that the answers that Dr. Greene provided

during the interview” about his new vision for such a process “warranted his selection.” See Def.’s

Opp’n at 3. Conversely, as the government puts it, if the National Institute of Justice (“NIJ”) (of

which OST is a part, see Stoe,

) had not changed its standards process

following Greene’s 2014 selection, “the jury might find Tillery’s explanation” that he selected

Greene based on Greene’s vision to redesign that process “less credible.” See Def.’s Opp’n at 3–

4. This type of support for a fact of consequence is sufficient to meet the “low threshold” for

relevance under Rule 401. See Slatten,

.

Hence, on this theory of relevance, the government may present limited testimony

establishing only that: (1) Greene did, in fact, implement the “vision that [he] initially outlined

during his interview,” see Def.’s Opp’n at 2; and (2) Greene’s follow-through on this vision was

of interest or importance to Tillery. Testimony describing how Greene implemented his vision,

the scope or success of the new system he created, or how impressive Greene’s efforts were is

irrelevant and thus barred by Rule 401.

As this discussion suggests, however, the government’s theory of relevance requires a

particular foundation to be laid. Specifically, the post-2014 evidence at issue is only relevant if

the government first presents testimony that (1) Greene articulated a new vision for standards

development and conformity assessment in his interview; and (2) the interview panel members

were impressed by that vision and rested their selection decision in any part on it. Without this

6 foundation, the post-2014 evidence serves no corroborating purpose. Thus, the Court considers

whether the government can offer sufficient foundation for the post-2014 evidence.

The government’s opposition brief solely discusses Tillery’s deposition testimony and

expected trial testimony about Greene’s vision. In fact, the Court has no evidence before it that

the other two interview panelists recall Greene discussing a new vision at his interview or factored

that vision into their interview evaluation. Cf. Pl.’s Reply in Supp. of Pl.’s Mot. [ECF No. 45] at

6 n.4 (stating no such evidence exists). For the time being, then, the Court will only evaluate

whether a proper foundation could be provided based on Tillery’s testimony.

At his deposition, Tillery testified that “[t]he thing that struck [him] the most” about

Greene’s interview “was a nuanced appreciation of conformity assessment.” Tillery Dep. Tr. at

103:16–21. Tillery “d[id] not recollect the specifics.”

at 105:1–7. Tillery discussed the new

conformity assessment system that Greene had implemented post-2014 and stated that “what I

want to say I took away from” Greene’s interview was an “inkling of the fact” that there might be

a new way to do a conformity assessment.

at 105:1–22; 106:1–7. When questioned further,

Tillery clarified that “it’s not that [Greene] was proposing a new process” at the interview itself,

but that Tillery recalls from the interview that Greene “had an understanding that. . . provided that

door that [NIJ] might be able to go in a different direction.”

at 107:1–9; 108:3–6.

Notwithstanding the government’s position, this testimony does not establish that Greene

articulated a new vision for the future of standards development and conformity assessment at his

interview. See Def.’s Opp’n at 1, 2. At best, it demonstrates that Greene exhibited a “nuanced”

“understanding” and “appreciation” of conformity assessment that led Tillery to believe that

Greene had the potential to articulate a new vision. But without a more specific link between what

Greene actually said during his interview and what he then did as Division Director, any evidence

7 of the latter has substantially less corroborative value and instead may confuse the jury about what

to make of this evidence, leaving the jury instead to focus on how good a Director Greene

ultimately was. Under these circumstances, such evidence would likely be inadmissible under

Rule 403.

That would be the end of the Court’s analysis if the government did not anticipate that

Tillery will speak somewhat differently about this subject at trial. According to the government,

Tillery plans to testify at trial that:

At his interview, Dr. Greene described a collaborative process for standards development and conformity assessment in which outside groups would be responsible for developing standards within a general framework that [NIJ] established and with [NIJ’s] input. [NIJ] would still ultimately be responsible for approving and certifying the standard.

Def.’s Opp’n at 2. If Tillery does testify to this effect, then the Court agrees that evidence that

Greene did, in fact, implement “the vision that [he] initially outlined during his interview” and that

this was of importance to Tillery is relevant on the theory described above. See

In such

instance, plaintiff would have ample opportunity to cross-examine Tillery about the

inconsistencies with his deposition testimony. And while the Court recognizes that there is some

risk that the jury could construe the post-2014 implementation evidence as proof of how well

Greene performed in the Division Director role, this risk is sufficiently mitigated by the very

narrow scope of the testimony that may be offered. Under those circumstances, the Court does

not expect that the probative value of such limited testimony would be substantially outweighed

by a danger of unfair prejudice to plaintiff and thus barred by Rule 403.

In the end, because the Court cannot predict how Tillery will testify at trial, the Court will

defer ruling on plaintiff’s motion in limine for now. If the government believes it has established

the proper foundation to admit limited evidence of Greene’s post-2014 conduct—either through

8 Tillery’s trial testimony or the testimony of the other interview panelists (or even of Greene)—it

may move to admit that evidence at that time, and the Court will issue a final ruling on the issue

then.

II. The Government’s Motion in Limine

A. “Me too” Testimony

Next the Court considers the government’s request to exclude testimony by plaintiff’s

coworker Christine Crossland regarding “Tillery’s differential treatment of Crossland and other

women at DOJ.” See Joint Pretrial Statement at 4. Based on her sworn declaration, Crossland’s

testimony is expected as follows: Crossland worked with plaintiff for nearly two decades, although

the two women worked primarily in different offices at the NIJ. See Decl. of Christine Crossland

(“Crossland Decl.”) [ECF No. 44-1] ¶¶ 2, 4. Crossland also worked with Tillery “for many years,”

and he ultimately became her supervisor in 2017. Id. ¶ 5. At “multiple NIJ staff meetings over

the years,” Crossland “observe[d] the difference in the ways [Tillery] interacts with female

colleagues versus male colleagues,” and in her view, he exhibited bias towards her, plaintiff, and

other women at DOJ. Id. As Crossland’s supervisor, Tillery “tends to ignore [Crossland’s]

viewpoints, even those regarding [her] area of expertise, which is Indian tribal engagement on

criminal justice policy matters.” Id. ¶ 10.

Crossland recounts one specific incident from 2017 where Tillery “told OST staff who

were working on managing a project with a tribe to ignore [her] guidance to follow the protocols

regarding interactions with the tribe.” Id. ¶ 11. Crossland brought the issue “to the attention of

NIJ leadership,” at which point Tillery complained to Crossland’s first-line male supervisor “that

he was exasperated with [Crossland] because of [her] interference.” Id. Crossland states that,

“[i]n the end, [she] was proven correct when that project was shut down,” but the interaction was,

9 in her view, “typical of the lack of respect that [Tillery] frequently shows toward his female

colleagues.” Id.

The government initially moved to exclude all of Crossland’s testimony “regarding

Tillery’s alleged differential treatment of other women besides Plaintiff,” including of Crossland

herself. See Def.’s Mot. in Limine (“Def.’s Mot.”) [ECF No. 39] at 4.2 In reply, the government

scaled back its objection, stating that it does not seek to exclude Crossland’s testimony to the extent

she “can provide a firsthand account of Tillery’s interactions . . . [that] occurred close in time to

Plaintiff’s 2014 non-selection.” Def.’s Reply in Supp. of Def.’s Mot. (“Def.’s Reply”) [ECF No.

46] at 6. Such testimony, the government concedes, is relevant. See id. Instead, the government

asks to prohibit only Crossland’s testimony “about any events that occurred after [Tillery] became

Crossland’s supervisor in 2017.” See id. at 5. The government rests its objection on Rules 401,

403, and 404(b).

As the government does not deny, “[e]vidence of an employer’s past discriminatory . . .

behavior toward other employees—so-called ‘me too’ testimony—may, depending on the

circumstances, be relevant to whether [the] employer discriminated . . . against [] plaintiff.”

Nuskey v. Hochberg,

(D.D.C. 2010) (citing Sprint v. Mendelsohn,

, 385–88 (2008)); see Def.’s Reply at 5. “Such testimony is neither per se admissible nor

per se inadmissible.” Nuskey,

. “Instead, as with any other piece of

evidence, the admissibility of ‘me too’ evidence turns on its relevance and unfair prejudice.”

Holmes-Martin v. Sibelius, Civ. A. No. 07-2128,

, at *3 (D.D.C. Mar. 3, 2011)

(citing Nuskey,

). “This inquiry is ‘fact-based and depends on many factors,

2 The government also originally moved to exclude similar testimony by another coworker named Angela Parmley-Moore. See Def.’s Mot. at 4. Because plaintiff “no longer intends to call Angela Parmley-Moore as a witness at trial,” see Pl.’s Opp’n to Def.’s Mot. (“Pl.’s Opp’n”) [ECF No. 44] at 2 n.1, the Court will not address Parmley- Moore’s expected testimony.

10 including how closely related the evidence is to the plaintiff’s circumstances and theory of the

case.’”

(quoting Sprint,

). When considering the admissibility of “me too”

evidence, courts in this District frequently assess: (1) “whether the same decisionmakers were

involved”; (2) “whether the witness and the plaintiff were treated in a similar manner”; (3)

“whether the witness and the plaintiff were otherwise similarly situated”; and (4) “whether such

past discriminatory behavior by the employer is close in time to the events at issue in the case.”

(quoting Elion v. Jackson,

(D.D.C. 2008)); accord Parker v. Nat’l R.R.

Passenger Corp.,

(D.D.C. 2016); Barnett v. PA Consulting Grp., Inc.,

(D.D.C. 2014); Hayes v. Sebelius,

, 144–45 (D.D.C. 2011).

Weighing these factors, the Court finds that Crossland’s anticipated testimony about

Tillery’s discriminatory conduct after he became her supervisor in 2017 is probative of Tillery’s

motive in denying plaintiff the 2014 Director role and not unduly prejudicial under Rule 403.

Crossland and Stoe are both women, and they both allege similar types of gender discrimination

by Tillery while he was acting as their supervisor—namely, that he treated them with a lack of

respect and dismissed or belittled their opinions. Compare Crossland Decl. ¶¶ 10–11, with Decl.

of Debra Stoe (Dec. 11, 2017) (“Stoe Decl.”) [ECF No. 44-2] ¶ 16. To be sure, Crossland has not

alleged that Tillery denied her a promotion. But “the exact conduct allegedly endured need not be

identical” for such “me too” evidence to be admissible. Herbert v. Architect of the Capitol, Civ.

A. No. 09-1719 (CKK),

, at *2 (D.D.C. July 23, 2013). And Crossland’s

proposed testimony would not only offer independent evidence of Tillery’s discriminatory intent,

but it would also serve, as the D.C. Circuit noted, to “corroborate[]” plaintiff’s testimony regarding

“Tillery’s sexist treatment against women.” See Stoe,

.

11 The government, for its part, concedes most of this analysis, stating that “any female

subordinate employee who alleges that Tillery treated her differently during staff meetings or

presentations (e.g., by speaking to her in a patronizing manner) than Tillery treated his male

subordinate employees” should be permitted to testify to this differential treatment, provided it

“occurred close in time to the events at issue in this lawsuit.” See Def.’s Reply at 8.3

The more difficult (and contested) question then is whether Crossland’s testimony about

Tillery’s conduct is “close” enough “in time to the events at issue in the case” to be probative of

his intent in 2014 and not unfairly prejudicial to an extent barred by Rule 403. See Nuskey,

. As far as the Court can tell, Crossland is expected to testify to events that

occurred in 2017 and perhaps 2018. Cf. Pl.’s Opp’n to Def.’s Mot. at 11 (anticipating that

Crossland will testify to Tillery’s behavior that “occurred a couple years after Stoe’s non-

selection” in 2014).

“There is . . . no bright line rule for determining when evidence is too remote to be

relevant.” Ansell v. Green Acres Contracting Co.,

(3d Cir. 2003). And given

the substantial similarities between Tillery’s alleged treatment of Crossland and plaintiff, the Court

finds that Crossland’s testimony about events that occurred about three years after plaintiff’s 2014

non-selection is sufficiently close in time to still be quite probative of Tillery’s intent. This is

particularly true because Crossland is expected to testify not simply to an isolated incident of

discrimination in 2017 or 2018, but to a consistent pattern of discrimination by Tillery toward

women at DOJ over a period of years that both predates and postdates plaintiff’s 2014 non-

3 The Court rejects the government’s proposition that Crossland’s testimony should be limited to differential treatment “during staff meetings or presentations.” See Def.’s Reply at 8. While plaintiff’s sworn declaration states that Tillery exhibited discriminatory bias against her “especially at meetings and presentations,” see Stoe Decl. ¶ 16 (emphasis added), it does not suggest that these spaces were the only places at work where she endured differential treatment by Tillery. Furthermore, because “the exact conduct allegedly endured need not be identical” for such “me too” evidence to be admissible, Herbert,

, at *2, the Court will not cabin Crossland’s testimony to these two specific office settings.

12 selection. See Pl.’s Opp’n at 11; Crossland Decl. ¶¶ 5–10; cf. United States v. Watson,

(D.C. Cir. 1990) (“[L]ater acts are most likely to show the accused’s intent when ‘they

are fairly recent and in some significant way connected with prior material events.’” (quoting

United States v. Childs,

(D.C. Cir. 1979)).

Furthermore, although similar discriminatory acts by Tillery that occurred in 2017 or 2018

may be less probative of his intent than acts that took place in 2014, the gap in time is not so great

that the probative value of the 2017 and 2018 testimony is substantially outweighed by any risk of

unfair prejudice to the government. Cf. Ansell, 347 F.3d at 524–25 (holding district court did not

abuse its discretion in admitting “me too” evidence that regarded an incident twenty months after

the firing at issue); Nuskey,

(excluding “me too” testimony regarding

discrimination by a different decisionmaker that “occurred approximately ten years before the

events at issue in the instant case”); Tennison v. Circus Circus Enters., Inc.,

(9th Cir. 2001) (excluding “me too” evidence that occurred five and six years before the events in

question where substantially more recent “me too” evidence was available). In fact, the

government has not identified any unfair prejudice that might result from this testimony.

Hence, the Court concludes that Crossland’s anticipated testimony about Tillery’s

belittling and disrespectful treatment of her and other women at DOJ after he became Crossland’s

supervisor in 2017 is admissible under Rule 401 and not barred by Rule 403. While the

government also moves to exclude this testimony under Rule 404(b), that objection simply

rehashes that government’s Rule 403 argument, which the Court has now rejected. See Def.’s

Reply at 11 (conceding under Rule 404(b) that Crossland’s “me too” testimony is probative of

Tillery’s discriminatory motive or intent, but arguing that the testimony should nonetheless be

excluded under Rule 403); see also Nuskey,

& n.2 (explaining that “me

13 too” testimony “does not run afoul of Rule 404(b) . . . because that Rule explicitly contemplates

the admission of ‘other acts’ as evidence to show motive or intent”). The Court will therefore

deny the government’s motion in limine to exclude Crossland’s testimony regarding Tillery’s

differential treatment of her and other women in 2017 and 2018.

A. Lay Opinion Testimony

The government also moves to exclude under Rule 701 lay opinion testimony from plaintiff

and Crossland “about Tillery’s motives for denying Plaintiff the [2014 Division Director] position

or for his alleged differential treatment of Plaintiff or other women on other occasions.” Def.’s

Mot. at 19. Plaintiff “does not intend to solicit opinion testimony from Crossland as to whether

the 2014 non-selection was discriminatory.” See Pl.’s Opp’n at 12. Hence, the parties dispute

boils down to: (1) whether plaintiff may opine that Tillery’s motive for denying her the 2014

promotion was gender bias; and (2) whether plaintiff and Crossland may opine that “Tillery treats

women worse than men and/or discriminated against women on other occasions.” See id. at 12,

14. The Court will address these issues in reverse order.4

Courts have generally held lay opinion testimony admissible “in discrimination cases when

given by a person whose position with the defendant entity provides the opportunity to personally

observe and experience the defendant's policies and practices.” Gossett v. Okla. ex rel. Bd. of

Regents for Langston Univ.,

(10th Cir. 2001) (collecting cases). Conversely,

courts consistently exclude lay opinion testimony under Rule 701 “that amounts to a naked

speculation concerning the motivation for a defendant’s adverse employment decision.” Hester v.

BIC Corp.,

(2d Cir. 2000); see also Barnett, 35 F. Supp. 3d at 21–22.

4 The parties briefing on this issue only focuses on testimony in support of plaintiff’s gender discrimination claim. To the extent that Crossland or plaintiff seek to provide lay opinion testimony in support of plaintiff’s age discrimination claim, the Court cannot rule on the permissibility of such testimony until each witness supplies the bases for any such opinion at trial.

14 The government’s position is that, while plaintiff and Crossland are “‘free to testify fully

as to [their] own observations of [Tillery’s] interactions with the plaintiff or with other

employees,’”—meaning what he did and how he did it—“they should not be permitted to opine”

that Tillery’s differential treatment of women was motivated by gender bias, since that would be

pure speculation. See Def.’s Reply at 20–21 (quoting Barnett,

). The Court

disagrees. Plaintiff’s and Crossland’s opinions on this subject derive from personal observations

of Tillery over a substantial timeframe. For example, plaintiff plans to testify that “[o]ver the years

. . . Tillery has interrupted [her] while speaking, refused to let [her] finish speaking, challenged

[her] authority and belittled [her] in front of male colleagues, become angry when [she has]

corrected a mistake . . . he made, or . . . tak[en] credit for [her] ideas”—and, importantly, that

Tillery did “not treat [her] male colleagues in this manner.” See Stoe Decl. ¶ 16. Her opinion that

Tillery’s conduct in these instances was motivated by “bias against women” is not “naked

speculation,” but a view that derives from her first-hand experience with how Tillery repeatedly

interacted with male and female subordinates in the office.

The same is true of Crossland’s anticipated lay opinion testimony that Tillery has treated

her and plaintiff differently due to their gender. See Crossland Decl. ¶¶ 6, 9, 10. Crossland is

expected to testify that “[f]or many years” Tillery treated plaintiff “in a way that is different, and

markedly worse, than he treats his male subordinates.” See id. ¶ 7. To substantiate this opinion,

Crossland describes her personal “[f]requent[]” observations that Tillery has talked to plaintiff in

a “patronizing, condescending, [and] belittling” manner, including by “interrupt[ing],

undermin[ing], and insult[ing] [her] in meetings” in a way that Crossland has never seen him speak

to a male colleague. See id. ¶ 8. Crossland offers similar accounts to ground her opinion of how

Tillery has discriminated against her. See id. ¶¶ 10, 11.

15 Considering the bases for both women’s opinions, the Court does not find that opinion

testimony from plaintiff and Crossland that “Tillery treats women worse than men and/or

discriminated against women on other occasions” is barred by Rule 701; rather, such testimony is

“rationally based on [each woman’s] perception,” “helpful” to assessing Tillery’s motive for

denying plaintiff the 2014 promotion, and not based on any type of specialized expertise. See

Williams,

(quoting Fed. R. Evid. 701); see also Gossett, 245 F.3d at 1178–80

(admitting affidavit from teacher describing her impression of a pattern of discrimination at the

school directed at male students in general and plaintiff in particular, which was based on concrete

facts within her observations and experiences while teaching at the school); Shapiro v. City of

New York, No. 13cv8647 (DLC),

, at *9 (S.D.N.Y. 2015) (concluding that

employee’s lay opinion testimony that she had witnessed religiously discriminatory conduct at

work was admissible under Rule 701 because it was based on a “pattern of discrimination” toward

Jewish coworkers that she personally observed).

The remaining question is whether plaintiff may testify under Rule 701 that Tillery’s

decision to deny her the 2014 promotion was motivated by gender bias. In her opposition brief,

plaintiff did not explain why she should be allowed to present this testimony at trial. See Pl.’s

Opp’n at 12–15 (explaining only why Crossland’s anticipated testimony does not violate Rule

701). But that is likely because the government only mentioned this objection in passing in its

motion and directed its substantive arguments toward Crossland’s lay opinion testimony. See

Def.’s Mot. at 19. Given that plaintiff’s sworn declaration contains statements of her opinion

that Tillery’s refusal to promote her in 2014 was motivated by gender bias, see Stoe Decl. ¶¶ 15,

17, the Court will address whether such testimony is permissible at trial.

16 The government’s argument is that allowing plaintiff to opine on Tillery’s motive in

rejecting her for the 2014 promotion is not “helpful” within the meaning of Rule 701 because “the

jury will be in as good a position as [plaintiff] to draw the inference as to whether or not [Tillery]

was motivated by an impermissible animus.” See Def.’s Reply at 20 (quoting Barnett,

). When a “witness has not identified the objective bases for [her] opinion . . . the opinion

does not help the jury but only tells it in conclusory fashion what it should find.” United States v.

Hampton,

(D.C. Cir. 2013) (emphasis added) (quoting United States v. Rea,

(2d Cir. 1992)); see also Willco Kuwait (Trading) S.A.K. v. deSavary,

, 624 (1st Cir. 1988) (explaining that lay opinion testimony that does little more than tell

the jury what result to reach should not be admitted) (citation omitted). But to the extent that

plaintiff identifies the bases for her opinion about Tillery’s motive for denying her the 2014

promotion—based, for example, on her personal observations of how Tillery has treated her (and

other women at DOJ) previously and how Tillery conducted himself during the 2014 non-selection

process—the Court finds that opinion would be helpful to the jury because it offers the perspective

of someone with first-hand knowledge of Tillery’s behavior on a fact of consequence in the case.

See Gossett, 245 F.3d at 1179–80. How helpful it may be, of course, is a matter for the jury to

decide.

Moreover, it makes little sense to preclude a plaintiff who is suing because she believes

that she was discriminated against based on her gender from presenting any statement of that

opinion to the jury. Cf. White v. McHugh, Civ. A. 14-0484-WS-C,

, at *3 (S.D.

Ala. May 11, 2016) (rejecting the notion that Rule 701 prohibits “a plaintiff from making th[e]

basic statement” that she believes “she lost promotions due to race/sex/age discrimination”

(emphasis added)). After all, this “explains why [plaintiff] is bringing suit,”

and therefore may

17 be helpful to “clearly understanding” her testimony, see Fed. R. Evid. 701(b). Indeed, the

government has not cited any court decision that prohibited a plaintiff in an employment

discrimination case from presenting any opinion on her employer’s motive even though the

plaintiff had identified the bases for that opinion based on her first-hand observations.

Most of the government’s cases, for that matter, concern lay opinion testimony by third-

parties; and it is no surprise that such individuals usually lack sufficient knowledge of the

employment action at issue to offer a “helpful” opinion on an employer’s intent. See, e.g., Barnett,

(excluding co-worker’s “conclusory” testimony that he “remembers thinking,

my god, they just walked into a lawsuit” when he heard of plaintiff’s termination); Hester,

(precluding four co-workers from testifying about employer’s motive because they

were not involved in defendant’s decision-making process, had no personal knowledge of it, and

had no basis to know if plaintiff was performing adequately at work).

The Court will therefore deny the government’s blanket request to exclude all opinion

testimony by plaintiff that Tillery’s decision to deny her the 2014 promotion was motivated by

gender bias. Cf. Duran v. Cty. of Clinton, Civ. A. No. 4:14-CV-2047,

, at *4

(M.D. Pa. July 3, 2019) (denying defendant’s motion to preclude all opinion testimony by plaintiff

that his employer had “terminated him because of his disabilities” but reserving judgment on what

precise opinion could be offered until the Court heard plaintiff’s testimony at trial regarding the

bases for this opinion); Miller v. Alldata Corp.,

(6th Cir. 2001) (holding

district court did not abuse its discretion in allowing plaintiff to present opinion testimony that

defendant had “discriminated against her”); Barefield v. Bd. of Trustees of Cal. State Univ.,

Bakersfield,

, 1264 & n.11 (E.D. Cal. 2007) (ruling that plaintiff’s opinion

testimony that “she felt that she was discriminated against based upon race because there was no

18 other reason to explain why she was not interviewed for the position when she exceeded the

qualifications for the position” was not improper under Rule 701).

In sum, the Court will deny the government’s Rule 701 motion to prohibit all lay opinion

testimony by plaintiff and Crossland that Tillery’s treatment of women was motivated by gender

bias as well as all lay opinion testimony by plaintiff that Tillery denied her the 2014 promotion

based on gender bias. Any objections to the exact scope of opinion testimony that may be offered

and the precise content of it can be raised and resolved at trial.

Non-Selection

Finally, the government moves to prohibit plaintiff from presenting evidence that her non-

selection for the Division Director position in 2010 was discriminatory. See Def.’s Mot. at 12. In

2010, plaintiff also applied for and was denied a promotion by Tillery to serve as OST’s Division

Director. See Joint Pretrial Statement at 3–5. Davis Hart, whom the government plans to call as

a witness at trial, was chosen over plaintiff. See

at 8–9. The government does not seek to

exclude all evidence relating to the 2010 non-selection. Namely, the government agrees that

evidence of the 2010 non-selection is admissible to show “that the selection process that [DOJ]

used in 2010 was different than the one used in 2014” and “that the reasons Tillery provided for

not selecting her for the 2010 position (i.e., that she lacked supervisory experience) did not comport

with the 2014 decision to select another candidate.” See Def.’s Reply at 12–13. But the

government disputes that plaintiff should be permitted to “introduce[e] the 2010 non-selection as

a prior act of discrimination under Rule 404(b) for the purpose of showing Tillery’s discriminatory

5 For instance, the government specifically challenges Crossland’s statement that she was “dismayed to see” the program that plaintiff created “given to Mark Greene to run” on the grounds of relevance, undue prejudice, and improper lay opinion. See Def.’s Mot. at 9; Crossland Decl. ¶ 14. Plaintiff has not explained, and the Court does not see, how this statement is “helpful” under Rule 701 to determining any fact of consequence in the case or relevant under Rule 401.

19 motive or intent in 2014” because plaintiff “never made [this contention] previously” and such

evidence is otherwise inadmissible under Rules 401, 403, and 404(b). See Def.’s Reply at 13; see

also Def.’s Mot. at 14–16.

The Court starts with the government’s failure-to-disclose argument. See Def.’s Reply at

13–20. The government’s “interrogatories asked Plaintiff to ‘describe in detail each and every

fact’ that she contended supported” her 2014 discrimination claim,

at. 14, and she “made no

reference at all to her 2010 non-selection” in her response, Def.’s Mot. at 14. The government

emphasizes that plaintiff also never contended that her 2010 non-selection was discriminatory “in

her deposition testimony[,] [the] multiple affidavits Plaintiff submitted during this case, and the

previous administrative proceedings.”

Consequently, because the government allegedly

lacked “fair notice” of this contention and “was thus denied an opportunity to take discovery from

Plaintiff on this issue,” the government posits that it “would be unfairly prejudiced” if the Court

permitted plaintiff to present evidence that her 2010 non-selection was discriminatory at trial. See

Def.’s Reply at 16. For her part, plaintiff highlights that she requested all documents relating to

the 2010 non-selection in discovery, see Pl.’s Opp’n at 20, and that the 2010 non-selection has

repeatedly been at issue since the case was filed in 2017, see id. at 28.

During discovery plaintiff could have more clearly presented her position that the 2010

non-selection was itself discriminatory. But given plaintiff’s other uses of the 2010 non-selection

evidence, and the fact that she did allege that “Tillery’s refusal to promote [her] over the years”

evidences his gender bias, see Stoe Decl. ¶ 17 (emphasis added), it is hardly a surprising line of

argument. Furthermore, the government’s pronouncement that plaintiff has never alleged that her

“2010 non-selection was also discriminatory,” see Def.’s Mot. at 12, is simply not true. Indeed,

the government made the same argument to the D.C. Circuit nearly two years ago after plaintiff

20 stated on appeal that her 2010 non-selection provided evidence of Tillery’s discriminatory motive

in 2014. See Ex. E to Pl.’s Opp’n, Appellee’s Br. [ECF No. 44-5], at 44 (“On appeal, Stoe now

argues, for the first time, that Tillery’s decision to select Hart over Stoe for the role in 2010 is

further suggestive of bias.” (internal quotation marks and citation omitted)). While the government

may take issue with how plaintiff raised this issue before the D.C. Circuit, see Def.’s Reply at 16,

it cannot deny that it was on notice of her position. The government could have requested leave

to seek additional discovery on this issue following remand, but it did not. Any argument of unfair

surprise, then, is hyperbolic.

The argument also has no legal support. The government offers no case or rule suggesting

that a plaintiff’s failure during discovery to state that a specific event supports her claim warrants

the extreme sanction of excluding the plaintiff from making that contention at trial—particularly

where the underlying subject was itself a topic of discovery.6 The cases cited by the government

involve instances where a party failed to produce a trial exhibit or to identify a witness during

discovery, which is not comparable to the situation here. See Def.’s Mot. at 13. Hence, the Court

will not preclude plaintiff’s testimony about the discriminatory nature of her 2010 non-selection

on the ground that plaintiff failed to disclose this theory previously. The government may, of

course, cross-examine plaintiff as to any perceived inconsistencies between plaintiff’s discovery

responses (or deposition testimony) and her testimony at trial. Cf. Herbert v. Architect of the

Capitol,

(D.D.C. 2013) (“Any inconsistencies that exist between Plaintiff's

deposition testimony and his testimony at trial . . . are fodder for cross-examination at trial and

6 The government originally sought relief for plaintiff’s failure to disclose under Federal Rule of Civil Procedure 37(c). See Def.’s Mot. at 13 & n.6. That Rule directs that “a party [that] fails to provide information or identify a witness by Rule 26(a) or (e),” is “not allowed to use that information or witness to supply evidence . . . at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). But, as plaintiff rightly points out—and the government does not contest in reply—“Rule 26 does not mandate disclosure of potential theories of liability or conclusions that a party can draw from the evidence.” See Pl.’s Opp’n at 25 n.6. The government’s Rule 37(c) argument is thus conceded and unpersuasive.

21 shall go to the weight that the jury attaches to Plaintiff’s claims about the investigation—not to

whether evidence about the investigation is admissible.”).

The government’s remaining arguments that evidence of the discriminatory nature of the

2010 non-selection is inadmissible are likewise unavailing. In reply, the government seems to

abandon its position that the 2010 non-selection is irrelevant to prove Tillery’s discriminatory

motive—and for good reason: this Court already recognized that “the facts of the 2010 promotion

decision can act ‘as background evidence’ regarding the 2014 promotion claim,” even though the

2010 non-selection does not provide an independent source of liability in this case. Stoe,

n.13 (quoting Nat’l R.R. Passenger Corp. v. Morgan,

(2002));

see also Pleasants v. Allbaugh,

(D.D.C. 2003) (“[C]ourts have allowed

parties to introduce—as background evidence—factual allegations that support time-barred claims

insofar as they bear upon timely claims.”).

In any event, the Court will more thoroughly analyze the relevance of the 2010 evidence

now. To be probative of Tillery’s motive in 2014, the 2010 non-selection “must meet a threshold

level of similarity” to the 2014 non-selection. See Bell v. Gonzales, No. Civ. A. 03-163 (JDB),

, at *2 (D.D.C. Dec. 23, 2005); see also Pintro v. Rosenworcel, Civ. A. No. 13-

231 (RBW),

, at *5 (D.D.C. Aug. 16, 2021) (“Only discrimination of the same

character and type as that is alleged is probative.”) (cleaned up) (citation omitted). The

government does state that the two non-selections are dissimilar in “character and type,” see Def.’s

Reply at 19–20, but it fails to offer any meaningful or fact-specific argument in this regard.

The nature of the two Division Director roles that plaintiff was denied appears nearly

identical, the non-selections took place only four years apart, Tillery was the selecting official in

both instances, and twice he chose a man who plaintiff says was “more junior and less

22 experienced” than her. See Ex. D to Pl.’s Opp’n, Appellant’s Br. [ECF No. 44-4] at 13–14, 39–

40; Pl.’s Opp’n at 26; see also Pintro,

, at *4 (concluding that plaintiff’s prior

non-selections within the preceding five years were sufficiently “similar” to the non-selection at

issue where “the nature of the other positions for which the plaintiff was not selected were similar,”

the “same decision-maker” failed to select plaintiff in all instances, and “for each of the non-

selections,” the enhanced job responsibilities were given to individuals of a different race).7

Hence, the Court finds that the allegedly discriminatory nature of plaintiff’s 2010 non-selection is

sufficiently similar to the nature of the 2014 non-selection to be probative of Tillery’s intent in

2014.

The government’s remaining Rule 403 and 404(b) objections, once again, fold into one.

Recall that “evidence of other acts of discrimination similar to the discrimination charged may be

admitted to show motive or intent” under Rule 404(b), provided that the probative value is not

substantially outweighed by the danger of unfair prejudice under Rule 403. See Williams v.

Johanns,

(D.D.C. 2007), aff’d,

(D.D.C. 2008). The

government’s primary argument regarding unfair prejudice is that, had it known plaintiff intended

to raise this argument at trial, it would have “liked to inquire during discovery what is the factual

basis for Plaintiff’s contention that the 2010 non-selection was the result of unlawful

discrimination, what were the circumstances in 2010 that suggested discrimination or pretext, and

what is the basis for her contention, if any, that she was better qualified than Hart in 2010.” See

Def.’s Reply at 17. But again the 2010 non-selection was not an unknown subject during

7 The government tries to distinguish Pintro on the ground that it involved “eight separate non-selections,” at least some of which “occurred close in time to the 2008 non-selection” at issue in the case. See Def.’s Reply at 19– 20. Yet, the 2010 non-selection in plaintiff’s case likewise fits into what she alleges to be a pattern of prior acts of discrimination by Tillery that both precede and postdate her 2014 non-selection. See generally Stoe Decl. Given the substantial similarities between the 2010 and 2014 non-selections, moreover, the Court does not find that a four-year gap in time provides a sufficient basis to exclude evidence of the former under either Rule 401 or 403.

23 discovery. The government already “has access to and control of all documents” related to the

2010 non-selection, as well as to Tillery and Hart, who are the only other individuals with first-

hand knowledge of that non-selection. See Pl.’s Opp’n at 24 n.5. And the government can

thoroughly cross-examine plaintiff about the 2010 non-selection at trial. See Def.’s Reply at 17.

Barring plaintiff under Rule 403 from presenting evidence that her 2010 non-selection was

discriminatory on the ground that the government would have liked to explore this topic further in

discovery is simply not warranted.

To the extent that the government posits that allowing plaintiff to present her 2010 non-

selection as a prior discriminatory act is impermissible because it will confuse the jury—a

contention the government again seems to have abandoned on reply—“any risk of prejudice . . .can

be sufficiently mitigated through ‘a limiting instruction so that the jury understands that evidence

of prior, time-barred acts is for background information only and is not evidence of separate,

actionable claims.’” Pintro,

, at *7 (quoting Pleasants,

).

The Court will determine the proper text of this instruction after it receives the parties’

submissions. In the meantime, because the Court finds that the probative value of the 2010 non-

selection is not substantially outweighed by the danger of unfair prejudice to the government, the

Court will deny the government’s motion to prohibit plaintiff from presenting any evidence that

her 2010 non-selection was discriminatory under Rules 401, 403, and 404(b).8

8 The D.C. Circuit has recognized that “past acts of [] discrimination [are] relevant to prove [the defendant's] motive in his actions towards [plaintiff],” notwithstanding “the risk of time-consuming collateral inquiries.” See Miller v. Poretsky,

(D.C. Cir. 1978). Accordingly, although the Court hopes the parties will be mindful about not transforming a substantial portion of this trial into a mini-trial on plaintiff’s 2010 non-selection, this type of time-related concern does not warrant “prohibit[ing] the plaintiff from presenting relevant evidence in support of her claim.” See Pintro,

, at *8.

24 Conclusion

For the foregoing reasons, the Court will defer ruling on plaintiff’s motion in limine to

exclude evidence that Greene implemented a new standards development and conformity

assessment process as Division Director until the Court can assess whether the government has

presented the requisite foundation for this evidence at trial. The Court will, however, deny the

government’s motion in limine seeking to preclude: (a) testimony by Crossland regarding Tillery’s

treatment of her and other women after Tillery became Crossland’s supervisor in 2017; (b) lay

opinion testimony by plaintiff and Crossland that Tillery’s differential treatment of female

subordinates was motivated by gender bias; and (c) evidence that Tillery denied plaintiff a

similar promotion in 2010 under circumstances suggesting discrimination. A separate Order will

issue on this date.

/s/ JOHN D. BATES United States District Judge Dated: September 14, 2021

25