                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

                                              )
CHRISTINE MADISON                             )
                                              )
               Plaintiff,                     )
                                              )
       v.                                     )       Misc. Action No. 07-289 (RMC)
                                              )
DISTRICT OF COLUMBIA,                         )
                                              )
               Defendant.                     )
                                              )

                                  MEMORANDUM OPINION

               Christine Madison served as a juror on a capital case in federal district court in

Washington, D.C. from February 7 through June 6, 2007. When she returned to her job at the

District of Columbia State Education Office, she was informed that her 13-month employment

contract would not be extended or renewed. Despite the shifting defenses put forth by D.C., the facts

show that Ms. Madison was separated from employment because she served as a federal juror, in

apparent violation of the Jury System Improvements Act, 28 U.S.C. § 1875 (the “Juror Act”).

Notwithstanding this factual conclusion, a legal question remains as to whether, under these

particular circumstances, Ms. Madison qualified as a “permanent” employee and thus enjoyed the

protections of the Juror Act. The Court holds that she did so qualify.

                                            I. FACTS

               Ms. Madison was employed full-time as a Staff Assistant in the Operations

Department of the District of Columbia State Education Office (“SEO”)1 from May 15, 2006 through

       1
          This Office became the District of Columbia Office of State Superintendent of
Education (“OSSE”), as of October 1, 2007. See Tr. I, 10:8-18. It is organizationally part of the
Executive Office of the Mayor. The Court uses the title and initials in effect at the time of the
relevant events.
June 14, 2007. Tr. I, 12:11-12; 15:11-12; 18:16-20; 43:13-15; Pl.’s Exs. 8, 10 & 11.2 She had

previously served for approximately seventeen (17) years as an employee of the District at D.C.

General Hospital. Tr. I, 10:23 - 11:7; Pl.’s Ex. 10. At the time of separation from SEO, she was

approximately 60 years old. See Tr. I, 66:16-17.

                 Dr. JoAnn Smoak, then-Director of Operations at SEO, hired Ms. Madison at a Grade

9 salary level, pursuant to a 13-month term appointment. Tr. I, 14:17 - 15:12; 88:1-2; Pl.’s Ex. 10.3

Former Mayor Anthony Williams instituted these “NTE”4 appointments for employees in the

Executive Office of the Mayor (“EOM”) in order to create “at will” status for EOM employees

without civil service protections. See Tr. I, 198:9-24. At Ms. Madison’s job interview, Dr. Smoak

explained to Ms. Madison that most SEO employees held term appointments and that it was very

rare for an employee not to have their term extended, although there was no guarantee. Tr. I, 14:17 -

15:2; 71:11-13; 95:6-23. Ms. Madison was hired to replace Staff Assistant Marsha Proctor, who had

transferred in April 2006 to Support Services for the EOM. Stip. ¶ 8.c. Like Ms. Madison, Ms.

Proctor had been working at SEO at Grade 9 under a 13-month term appointment. Tr. I, 94:7-10;

Tr. II, 5:16-17, 24-25; 6:1-13; Stip. ¶ 8.b.

                 During Ms. Madison’s employment with SEO, five other employees (aside from Dr.

Smoak) worked in SEO Operations. Tr. I, 19:18 - 21:9; Stip. ¶¶ 3-7. Four of the five were hired

generally around the same time as Ms. Madison and pursuant to 13-month term appointments. Stip.


       2
          Trial was conducted on July 15 and 16, 2008. References are to Tr. I and Tr. II for each
day’s trial proceedings, followed by a page number and line number(s).
        3
        As of the trial, Dr. Smoak had become the Chief Operating Officer of the D.C.
Department of Health.
        4
            NTE stands for “Not-to-Exceed.”

                                                 -2-
¶¶ 3.a., 4.a., 6.a., 7.a. The fifth person was hired in 2003 pursuant to a four-year term appointment.

Tr. I, 97:1-11; Pl.’s Ex. 14A.5 Specifically:

       •       Bachir Kabbara was a Database Manager who had been appointed to a four-year term
               appointment, effective May 18, 2003, with an NTE date of May 13, 2007. Tr. I,
               97:1-11; Pl.’s Ex. 14A.

       •       Diane Scroggins was a Program Analyst who had been hired into SEO Operations
               by Dr. Smoak with a 13-month appointment, effective February 18, 2006 and an NTE
               date of March 18, 2007. Tr. I, 97:12-19; Stip. ¶ 4.a.; Pl.’s Ex. 13A.

       •       Anthonisha Felton was a Staff Assistant, hired by Dr. Smoak sometime around May
               2006 pursuant to a 13-month term. Tr. I, 97:23-25; 98:1-7; 99:13-19; 101:8-24; Stip.
               ¶ 6a; Pl.’s Ex. 15A.

       •       Mutinda Parris was hired by Dr. Smoak into the position of Management Analyst,
               effective June 12, 2006, with an NTE date of July 11, 2007. Stip. ¶ 3.a.; Pl.’s Ex.
               12A.

       •       Ronald Pitts was hired by Dr. Smoak as an Information Technology Specialist/Data
               Management, effective October 2, 2006, with an NTE date of November 1, 2007. Tr.
               I, 103:15-18; Stip. ¶ 7.a.; Pl.’s Ex. 16A.

Dr. Smoak directly supervised this group. Tr. I, 22:1-4; 86:3-4.

               Ms. Madison’s salary at hire with SEO was at a Grade 9/Step 1 level, or $34,832/year.

Tr. I, 19:14-15; Pl.’s Ex. 10. She thereafter received one step increase and one parity-pay increase.

Tr. I, 63:25 - 65:4. When separated from employment by Dr. Smoak, her annual salary was $41,901.

Tr. I, 65:13-14; Pl.’s Ex. 11. While employed, she received full employment benefits, including life

insurance, annual and sick leave, and credit towards D.C. retirement benefits to add to her previous



       5
         In court filings in this case, Dr. Smoak initially stated that all of these five employees
“had been there at least one year” prior to Ms. Madison’s hire in May 2006, “i.e., there were no
other employees hired at or about the same time as Ms. Madison.” See Def.’s Opp’n to Pl.’s
Mot. for Order to Show Cause at 2, Smoak Decl. ¶ 6 [Dkt. # 6]; see also Answer ¶ 7 [Dkt. # 8].
As stipulated later by Defendant District of Columbia, and established at trial, these statements
were completely wrong, as were other alleged facts declared by Dr. Smoak.

                                                 -3-
17 years of D.C. service. Tr. I, 65:15 - 66:23; Pl.’s Exs. 10 & 11.

               Ms. Madison’s job responsibilities covered general administrative duties, such as

ordering supplies, distributing mail, filing, facilities management, petty cash, coordinating approval

and payment of employee cell phone bills, and payroll.           Tr. I, 15:13 - 18:2. Her payroll

responsibilities, characterized by Dr. Smoak as her “biggest” and “most critical” responsibility, Tr.

I, 142:10-14, included collecting time and attendance records and related information for all SEO

employees and processing them so that employees could be timely paid. Tr. I, 17:19 - 18:4.

               Dr. Smoak informally evaluated Ms. Madison’s performance in late 2006. Tr. I, 23:7-

13. During their discussion, Dr. Smoak noted strengths and areas for improvement. Tr. I, 25:16-17;

26:2-3, 7-10. Ms. Madison recalled that Dr. Smoak told her that she was doing very well with her

time and attendance responsibilities; that she was getting along well with co-workers; that her

handling of the mail was efficient and timely; and that she did well in taking care of filing. Tr. I,

25:20-24. Dr. Smoak testified that Ms. Madison was “really pretty efficient” with her payroll

responsibilities. Tr. I, 194:5; see also Tr. I, 108:17-24. During the evaluation, Dr. Smoak told Ms.

Madison that she needed to become more prompt in processing cell phone bills and she suggested

that Ms. Madison take some in-service employee training courses offered through the D.C. Center

for Workforce Development. Tr. I, 25:25 - 26:10; 74:14-15. Ms. Madison took one course

recommended by Dr. Smoak — Managing Multiple Projects, Objectives, and Deadlines — before

she was summoned for jury duty. Tr. I, 32:3-11; Pl.’s Ex. 4.6

               During her jury service, Ms. Madison sometimes worked late or came in on a


       6
          Ms. Madison had previously taken other courses at the Center for Workforce
Development, both at Dr. Smoak’s suggestion and on her own initiative. Tr. I, 27:22 - 29:18;
Pl.’s Ex. 5.

                                                 -4-
Saturday to work. Tr. I, 153:12-19; 154:15-16. Dr. Smoak characterized her willingness to do so,

without extra pay, as “above and beyond” and something that Dr. Smoak “really appreciated.” Tr.

I, 153:17-18.

                Nonetheless, Dr. Smoak testified at trial that Ms. Madison’s “overall performance

other than in the area of time and attendance was not generally good,” Tr. I, 110:11-12, and that she

would not characterize Ms. Madison as a satisfactory employee. Tr. I, 119:14-16. Dr. Smoak

testified that there were “intermittent problems” with Ms. Madison’s work performance, Tr. I, 110:8,

and that she had difficulty “keeping up with things and getting things in on time,” Tr. I, 118:1-2; she

asserted that Ms. Madison exhibited a lack of team work, Tr. I, 191:19 - 192:2; and that she had once

erred by ordering the wrong kind of paper for SEO. Tr. I, 194:14 - 195:10. Finally, Dr. Smoak noted

that the Chief Financial Officer had discovered a positive credit in the petty cash account that might

have been attributed to Ms. Madison when she was handling petty cash. Tr. I, 192:23 - 193:9.7

There are no written records of the informal evaluation or any other contemporaneous records

concerning Ms. Madison’s performance.

                During the time of Ms. Madison’s jury service, the SEO was preparing for a huge

transition in education oversight in the District of Columbia. The new Mayor, Adrian Fenty, was


       7
        When queried by counsel for D.C., Dr. Smoak remembered other flaws with Ms.
Madision’s performance:

           [S]he was not responsive. My biggest problem with Christine was that I
           couldn’t get anything out of her, and if I did it was always late. Not just
           a little bit late. Not incidentally late, but good and late. . . .

           I got that report [on employee cell phone usage] one time in six months,
           and that was symptomatic of just I couldn’t get things out of her.

Tr. I, 189:1-15, 21-22.

                                                 -5-
readying to assume responsibility for all public schools on October 1, 2007, with his authority

delegated to the SEO and Schools Chancellor Michelle Rhee. Tr. I, 34:23 - 35:6; 79:16 - 84:5; Tr.

II, 43:2 - 44:7.

                   Ms. Madison received this Court’s summons in December 2006 or January 2007,

advising that the trial might last as long as six months. She promptly provided a copy to Dr. Smoak.

Tr. I, 33:14-18; 123:9-13. While both women agree that they had various conversations about Ms.

Madison’s jury service, Tr. I, 33:17-19; 35:20 - 36:4; 124:6-9, they remember those conversations

differently. Ms. Madison testified that when she first handed the summons to Dr. Smoak, Dr. Smoak

mentioned the pending transition and said, “Four to six months? Well, Deborah [Gist, State

Superintendent of Education] won’t be able to use you.” Tr. I, 33:18-19. Ms. Madison testified that

she responded by stating that she did not have any control over whether she would be selected. Tr.

I, 35:16-19. Although Dr. Smoak remembers that Ms. Madison promptly showed her the jury

summons, “nothing sticks out in [her] mind” about their first conversation concerning it. Tr. I,

121:10-18; 123:9-17.

                   However, Dr. Smoak does remember that at some point she told Ms. Madison how

much Dr. Smoak had enjoyed a period serving on a grand jury. Tr. I, 127:5-10. Dr. Smoak

“absolutely” does not recall any conversation with Ms. Madison about Ms. Madison’s selection as

a trial juror. Tr. I, 132:15-16; Tr. I, 23-25. Admitting that losing one of her five staff members at

a busy transition time “wouldn’t be good news,” Tr. I, 125:25, Dr. Smoak testified nonetheless that

she had had “no reaction to the fact that [Ms. Madison] was selected” for jury duty. Tr. I, 131:25 -

132:1.

                   Ms. Madison testified that in subsequent conversations Dr. Smoak gave her advice


                                                  -6-
on how to avoid jury service. Tr. I, 36:20-23. She recounted how Dr. Smoak told her to tell the

court that Ms. Madison believed the defendant was guilty because he would not be on trial if he were

innocent. Tr. I, 36:24 - 37:3. Ms. Madison testified that she responded that being on trial does not

mean a person is guilty and that, from her past experiences, it is not easy to be excused from jury

service. Tr. I, 37:5 - 38:2.

                Despite “absolutely” not recalling any conversation or anything particular about

discussions of Ms. Madison’s jury service, Dr. Smoak testified that she is “absolutely” certain she

did not counsel Ms. Madison on how to avoid jury service. Tr. I, 126:8-10; 128:6-19. Dr. Smoak

acknowledged that she had heard of someone successfully telling a court that the person going to

trial was guilty in order to avoid jury duty. Tr. I, 128:20-25.

                Ms. Madison was selected for the jury after four weeks of jury selection (though Ms.

Madison attended only two of those days). Trial began on February 7, 2007. During the trial phase,

jurors were required to report for trial four days a week, Mondays through Thursdays. Tr. I, 41:4-9;

Pl.’s Exs. 6 & 7. Once the death-penalty and deliberation phases began in May 2007, jurors were

required to report for duty five days a week, Mondays through Fridays. Tr. I, 41:10-15; Pl.’s Exs.

6 & 7. With a few exceptions for annual or sick leave, Ms. Madison reported to work at SEO on all

of the days that she did not have jury duty. Tr. I, 41:18-25; Pl.’s Ex. 6.

                In theory, Dr. Smoak divided Ms. Madison’s workload among her co-workers, but

during the first weeks of trial when Ms. Madison returned to work on Fridays, she discovered that

they had not completely done her work. Tr. I, 44:12-18. For example, Ms. Felton was holding all

of the petty-cash requests until Fridays when Ms. Madison returned to the office. Tr. I, 44:19 - 45:2.

When Ms. Madison asked Mr. Pitts why he was not handling cell phone bills, he responded via


                                                 -7-
email, asking “Please tell me when you think I was assigned this task and by whom?” Tr. I, 45:21-

24; Pl.’s Ex. 31. The bulk of time and attendance work was often left for Ms. Madison, although

Mr. Parris had been assigned to take over those tasks. Tr. I, 45:3-9. These gaps caused Ms. Madison

to work through her lunch break, past 5:00 p.m., and occasionally on Saturday in an effort to catch

up. Tr. I, 47:15 - 48:22.

               Ms. Madison’s testimony in this regard was corroborated by other employees. Ms.

Proctor, who held Ms. Madison’s position before and after Ms. Madison’s SEO employment,

testified that she took over payroll from Mr. Parris when she was detailed back to SEO in May 2007,

because “he had so much on his hands, he couldn’t really keep up with it.” Tr. II, 9:17-21. Ms.

Proctor was clear that payroll took three days to process. Tr. II, 20:14-16. She also testified that

SEO employees were paid every two weeks and, on the weeks in which employees did not receive

paychecks, time and attendance, i.e. payroll, processing had to be completed by Friday. Tr. II, 21:11

- 22:1. Likewise, Mr. Parris testified that payroll had to be completed by close-of-business on

Fridays. Tr. II, 48:12-19. He further testified that, while he helped Ms. Madison with her duties

during her jury service, whatever was “left over on Fridays,” he left for her to do “because she was

there and that was her responsibility.” Tr. II, 34:2-25.8 Contrary to this testimony, Dr. Smoak

testified that she “couldn’t see how” there was any neglect of Ms. Madison’s time and attendance

duties while she was on jury duty primarily because payroll had to be completed by close-of-business

on Thursdays. Tr. I, 188:12-20.

               Ms. Madison reported that her co-workers appeared to resent her absence during the



       8
        This testimony belies Dr. Smoak’s insistence that Ms. Madison was not a “team player”
because Ms. Madison distinguished between her assigned work and that of her co-workers.

                                                 -8-
trial because of their increased work loads. Tr. I, 54:25 - 55:2. Before the trial, she had had a

friendly relationship with all of them. Tr. I, 54:17-20. She attributed her sense that they resented

her to the fact that they were not doing her work during her absence, but saving it for her on the one

day she could work. Tr. I, 55:3-6. They also constantly asked her when she would be returning to

work and if the trial were over yet. Tr. I, 55:6-8.

               On one Friday when Ms. Madison was at work, Mr. Parris and Mses. Scroggins and

Felton were around her desk engaged in conversation. They were discussing how they had been told

by Dr. Smoak that their positions were going to be advertised and they would need to re-apply for

their jobs. Tr. I, 55:16-19. Dr. Smoak never gave any such instruction to Ms. Madison. Tr. I, 55:20-

22.

               During Ms. Madison’s jury service in April 2007, Dr. Smoak arranged to have Ms.

Proctor detailed from Support Services back to SEO Operations to resume performing the job she

had held before Ms. Madison was hired. Tr. I, 137:10-20, 148:19-23; Tr. II, 14:14-19. On Tuesday,

May 1, 2007, Dr. Smoak announced to the staff that Ms. Proctor would be returning to Operations

on the following Monday, May 7, 2007. Tr. I, 141:4-10; Pl.’s Ex. 29. No notice was provided to

Ms. Madison. Then, on Friday, May 4, 2007, after Ms. Proctor had returned on detail to SEO, Dr.

Smoak informed Mr. Parris and others at SEO that she did not intend to renew Ms. Madison’s term

appointment. See Pl.’s Ex. 19. Again, Ms. Madison was not informed. Tr. I, 56:6-19.

               Meanwhile, Ms. Proctor was assigned to work at Ms. Madison’s desk and to take over

Ms. Madison’s duties. Tr. I, 51:2-6; Tr. II, 16:2-7; 17:12-14. Ms. Madison learned of this

development when she came to work on Friday and discovered Ms. Proctor working at her desk.

Tr. I, 50:11-20. Dr. Smoak provided no guidance to Ms. Madison as to how to divvy up the work


                                                 -9-
between her and Ms. Proctor so Ms. Madison could only volunteer to help with various tasks during

the time she was at work. Tr. I, 50:21-23; 51:5-24.

               On Friday, May 25, 2007, Dr. Smoak called Ms. Madison into her office, handed her

a letter of separation, Pl.’s Ex. 8, and informed her that her employment would not be extended

beyond her NTE date of June 14, 2007. Tr. I, 56:17-19. According to Ms. Madison’s testimony, Dr.

Smoak told her that the merger of SEO with the D.C. Public Schools made things hectic at SEO and

that Ms. Madison would not be able to keep up with her co-workers or contribute at that time. Tr.

I, 57:8-14. Ms. Madison told Dr. Smoak that the jury was in deliberations and would be finished

fairly soon so that she would soon return to work full-time. Tr. I, 57:22 - 58:6. Dr. Smoak denies

telling Ms. Madison that it was a hectic time at SEO or that she was concerned that Ms. Madison

could not keep pace, Tr. I, 165:8-11, and further denies that Ms. Madison’s jury service was

discussed at all during the May 25, 2007, meeting. Tr. I, 167:9-18. Both parties agree, however, that

at the end of the conversation, Dr. Smoak agreed to re-think her decision over the weekend and to

consider extending Ms. Madison’s appointment for three months to allow Ms. Madison to qualify

for retirement benefits. Tr. I, 57:7-17, 91:23 - 92:7; 168:3-9. Dr. Smoak also agrees with Ms.

Madison that she assured Ms. Madison that she would provide a positive recommendation. Tr. I,

166:23-25.

               Later in the day on May 25, Dr. Smoak sent an email to Patricia McCreary at SEO

Human Resources, asking, “Would it be possible for me to extend Christine for another 3 months,

rather than terminate her outright?” Tr. I, 87:11-15; Pl.’s Exs. 21 & 22. Following the Memorial

Day weekend, Ms. McCreary responded on May 29, 2007, stating, “yes. [W]ould you like to do

that?” Tr. I, 170:14-23; Pl.’s Exs. 21 & 22. On May 30, 2007, Zelalem Hill from Ms. McCreary’s


                                                -10-
office emailed Dr. Smoak and advised her that Ms. Madison’s term appointment had been extended

through September 15, 2007. Tr. I, 170:21-23; Pl.’s Exs. 21 & 22. While Dr. Smoak does not have

“any recollection of it, . . . in all honesty, that doesn’t mean I didn’t say okay, I am going to do this

because I did vacillate back and forth about it. . . .” Tr. I, 171:23-25. However, on Thursday, May

31, 2007, Dr. Smoak sent an email to Ms. Hill, Mr. Parris and Ms. McCreary stating that “I just want

to be absolutely clear that it has been communicated that I WILL NOT extend Christine.” Tr. I,

173:19-21; Pl.’s Ex. 22. Despite recognizing from the email traffic that Dr. Smoak had met with Ms.

Madison on Wednesday, May 30, 2007, Dr. Smoak had no recollection of such a meeting or what

was said. Tr. I, 174:24 - 175:4.

                Dr. Smoak personally decided to terminate Ms. Madison’s employment. There was

no question of a reduction in staffing levels or the loss of a position. Tr. I, 175:8 - 176:24. Dr.

Smoak testified that she is “not really totally sure why” she made the termination decision. Tr. I,

196:24. Without going into “psychoanalysis,” Tr. I, 196:25, Dr. Smoak “determined over that

weekend that it wasn’t about her not being there [because of the trial]. It was attitudinal, it was

cultural,” because Ms. Madison would “still [be] compromising the morale of my team, and . . . still

[be] talking about this is my piece and that’s your piece . . . [a]nd she still would not be able to use

basic electronic tools. . . .” Tr. I, 197:17-23.

                On Ms. Madison’s last day of employment, she hand-delivered a letter to Director

Gist, Dr. Smoak and Ms. McCreary describing in detail her various meetings with Dr. Smoak and

asserting that she was not treated properly because she was fired because of her jury duty. See Ex.

9. Dr. Smoak recalls seeing the letter but she only gave it to the SEO general counsel and neither

she, nor anyone else, ever responded. Tr. I, 175:13; 176:12 - 178:3.


                                                   -11-
                Ms. Madison was the only person on Dr. Smoak’s staff who was on jury duty and is

the only one of the six whose employment was not continued. Tr. I, 178:4 - 180:1.

                Ms. Proctor returned to SEO on a detail but in July 2007 was hired as a permanent

employee into the position previously held by Ms. Madison. Tr. I, 181:25 - 182:21; 207:1-3; Stip.

¶ 8.f.; Pl.’s Ex. 17G. Her appointment was effective July 16, 2007. Tr. I, 182:6-10. As admitted

by Dr. Smoak:

                Q. So is it not accurate to say that Ms. Proctor came in while Ms.
                Madison was on her jury duty and came in and took up Ms.
                Madison’s job duties and then stayed on the job after Ms. Madison
                was separated and basically replaced Ms. Madison in the position?

                A. That would not be inaccurate.

Tr. I, 182:22 - 183:2. This contrasts sharply with Dr. Smoak’s earlier declaration, executed on

November 13, 2007, in which she stated that when Ms. Madison’s contract expired, SEO did not hire

anyone to replace her and the work she performed was divided among current employees. Pl.’s Ex.

26, ¶ 8; Tr. I, 206:21 - 207:3. Dr. Smoak tried, unsuccessfully, to weave and dance in her testimony

to avoid this disparity, among others. See Tr. I, 207:1 - 209:13. For example, Dr. Smoak testified

that her prior declaration — that she requested Ms. Proctor to be brought into SEO and made

arrangements for her to be detailed to cover Ms. Madison’s work — was “not an accurate statement”

because there were many variables that led to Ms. Proctor being detailed. Tr. I, 207:19 - 208:12.

However, Ms. Proctor’s testimony corroborated Dr. Smoak’s initial statement, not her dancing and

weaving. See Tr. II, 17:10-14 (“Q. But [Ms. Madison] wound up taking over your position? A.

[Proctor]. My position, correct. Q. Then when she was on jury duty you came back and were filling

in for her? A. Correct.”).



                                               -12-
               When Dr. Smoak left OSSE in July 2008, she took Ms. Proctor with her to the D.C.

Department of Health. Tr. II, 14:20-22.

                                         II. JUROR ACT

               Jury service is both a duty and a right of citizens of the United States. It is an

essential component of our system of justice, and is integral to the protection and preservation of our

constitutional freedoms. “It is true that at times such service is highly inconvenient to employees

and employers,” In re Grand Juror Ronnie Webb, 586 F. Supp. 1480, 1483 (N.D. Ohio 1984), and

employers may find it in their commercial interests to convince employees to try to evade jury

service or to punish those employees who are summoned to serve. But the independence of the

federal judiciary depends on the participation of jurors, and that independence can be preserved only

if the rights of those who are called to serve as jurors are protected. To that end, Congress passed

the Jury System Improvements Act as a means to protect the employment of those summoned to

serve on juries in the federal court system. The legislative history of the Juror Act evinces

Congress’s purpose:

               This bill would also accord statutory protection to the employment
               status of federal jurors during the period of jury service. At the
               present time, an employer who is hostile to the idea of jury duty, or
               who believes that the interests of his business outweigh the obligation
               for jury service imposed by law, may threaten or harass his employees
               to encourage their avoidance of such service or may even dismiss
               them from employment if they are required to assume leave status for
               this purpose. It is now difficult for the courts to respond effectively
               to such employer tactics, since instances of coercion or threatened
               dismissal are frequently not brought to the attention of the Court or
               are posed in such a manner as to evade effective response by the
               judge. . . .

               The proposed legislation would provide statutory employment
               protection to federal jurors by adding a new Section 1875 to Title 28


                                                 -13-
              and by giving the District Courts jurisdiction over legal actions by
              aggrieved employee-jurors to redress their rights. The enactment of
              this provision would be desirable in redressing the present disparity
              of bargaining position between a harassing employer and his
              employee who is summoned for jury duty in federal court. It would
              also place employers on notice as to their legal duty not to interfere
              with jury service by employees and would offer employees the
              assurance that their rights in this regard will be protected by law.

H.R. Rep. No. 95-1652, at 7 (1978), reprinted in 1978 U.S.C.C.A.N. 5477, 5480.

              The Juror Act provides, in relevant part, that:

              (a) No employer shall discharge, threaten to discharge, intimidate, or
              coerce any permanent employee by reason of such employee’s jury
              service, or the attendance or scheduled attendance in connection with
              such service, in any court of the United States.

              (b) Any employer who violates the provisions of this section –

                     (1) shall be liable for damages for any loss of wages or other
                     benefits suffered by an employee by reason of such violation;

                     (2) may be enjoined from further violations of this section and
                     ordered to provide other appropriate relief, including but not
                     limited to the reinstatement of any employee discharged by
                     reason of his jury service; and

                     (3) shall be subject to a civil penalty of not more than
                     $5,000 for each violation as to each employee. . . .

              (d)(1) An individual claiming that his employer has violated the
              provisions of [the Juror Act] may make application to the district
              court for the district in which such employer maintains a place of
              business and the court shall, upon finding probable merit in such
              claim, appoint counsel to represent such individual in any action in
              the district court necessary to the resolution of such claim. . . .

              (2) . . . [t]he court may award a prevailing employee who brings such
              action by retained counsel a reasonable attorney’s fee as part of the
              costs. The court may tax a defendant employer, as costs payable to
              the court, the attorneys fees and expenses incurred on behalf of a
              prevailing employee, where such costs were expended by the court


                                              -14-
               pursuant to paragraph (1) of this subsection. . . .

28 U.S.C. § 1875.

                                         III. ANALYSIS

               This case presents two questions, one factual and one legal: (1) did SEO fail and

refuse to extend continued employment to Ms. Madison because of her five-month jury service, and

(2) did Ms. Madison’s employment status render her ineligible for protection by the Juror Act?

               A. Ms. Madison’s Separation from Employment

               Ms. Madison was hired by Dr. Smoak in May 2006, provided a generally positive

informal review by Dr. Smoak in late 2006, called for jury duty in January 2007, put into jury service

from February 7, 2007 through June 6, 2007, and discharged on May 25, 2007, after someone else

was detailed into SEO to take over her job. The Court does not credit the shifting and exceptionally

vague testimony provided by Dr. Smoak for the reasons behind this sequence of events. Ms.

Madison’s contemporaneous recordation of events is much more credible and ties her loss of

employment directly to her lengthy jury service.

               Without doubt, during the time of Ms. Madison’s employment with SEO, the SEO

Operations Department was very busy and its employees frequently felt overwhelmed. Yet Dr.

Smoak would have the Court believe, and find, that she had no particular reaction to notice that Ms.

Madison was selected to serve on a jury that could last for six months. Such testimony is incredible.

Even those managers who understand the gravity of jury service and its critical place in our legal

system have a right to be annoyed at the loss of an employee for a lengthy period; they just do not

have the right to retaliate against the employee as a result. A cheerful conversation on the joys of

serving on a grand jury is much less likely than the one reported by Ms. Madison. The Court finds,


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based on the demeanor and credibility of the witnesses, Dr. Smoak’s convenient inability to

remember conversations, and the inherent probabilities of the situation, that Dr. Smoak urged Ms.

Madison to attempt to avoid jury service by telling the Court that she was convinced the defendant

must be guilty because he was charged. Ms. Madison’s civic duty was not welcomed by her boss.

               Dr. Smoak attempted to explain her termination decision by conjuring up a parade

of performance horribles attributable to Ms. Madison. The most questionable is Ms. Madison’s

alleged lack of team spirit because she allegedly failed to help other employees complete their job

duties. A demonstrable lack of “team spirit” was demonstrated by Ms. Madison’s co-workers when

they assisted the absent Ms. Madison as little as possible in getting her tasks completed during jury

service, yet not one complaint can be heard from Dr. Smoak, and Mr. Parris — who candidly

admitted dumping work back on Ms. Madison on Fridays “because she was there and that was her

responsibility,” Tr. II, 34:23-25 — was offered career employment and a promotion.9

               Equally implausible is Dr. Smoak’s testimony that a positive balance in the petty cash

account contributed to her decision to terminate Ms. Madison. Interestingly, the District of

Columbia failed to provide any evidence of the timing of this event and the circumstances strongly

suggest that the Inspector General’s audit was performed after Ms. Madison was fired. Without

specifics, the Court cannot rely on this alleged failure to underlie Dr. Smoak’s decision: Ms.


       9
         Mr. Parris was never a “permanent” employee. Rather, he has been granted one term
appointment after another. He was first hired on June 12, 2006 as a management analyst by Dr.
Smoak as a term employee. Tr. II, 30:5-12. That term appointment was extended by Dr. Smoak
on July 12, 2007. Tr. II, 38:5 - 41:14. While he also applied to be converted from term to career
status and was offered a career appointment, Tr. II, 40:13-14, he ultimately turned down that
opportunity and instead accepted another term appointment in the Office of Public Charter
School Financing and Support, also part of SEO, in July 2007. Tr. II, 39:2-4; 40:22 - 41:22. At
the time of trial in July 2008, Parris was serving on a term appointment. Tr. II, 30:13-14.


                                                -16-
Madison handled petty cash from May 2006 to January 2007 and someone else handled it for the

months of the trial thereafter, as well as before Ms. Madison’s hire in May 2006. There is no

evidence to attribute this alleged problem to Ms. Madison. Since any such evidence is peculiarly in

the control of D.C., the Court concludes that its absence from the trial record is attributable to the

District.10

               Dr. Smoak complained that Ms. Madison rarely produced timely reports on employee

cell phone usage. She also acknowledged, however, that technological and coordination problems

with other offices made this a very difficult task to accomplish and that Ms. Madison tried very hard

to get it done. Tr. I, 205:17-22 (“Q. Did she not discuss with you the problem she was having in

getting the cell phone bills electronically? A. She did. Q. Did she not go elsewhere and try to get

somebody to help her get these electronic cell phone bills? A. She did, she did try.”). Her

complaint that Ms. Madison failed to submit a so-called “front burner report” at each week’s staff

meeting, and thereby deserved to be discharged, is also inherently suspect. See Tr. I, 152:13-25.

First, Dr. Smoak’s recollection that Ms. Madison failed to produce these reports before her jury

service cannot be credited since Dr. Smoak remembers nothing specific about anything important.

Second, Dr. Smoak’s recollection that she expressed frustration with Ms. Madison about her front



        10
            Dr. Smoak testified that she sent emails to Ms. Madison detailing some of her
performance deficiencies. The emails were requested in discovery and not produced. The Court
found that they do not exist and here reiterates that conclusion, not just because they were not
produced but also because Dr. Smoak’s testimony is found to be not credible in this regard. See
Tr. I, 113:3-11 (Mr. Feldman: “Your Honor, I would like to request an opportunity to see those e-
mails because there has been a lot of back and forth. It’s all been very cordial and cooperative,
but I get the impression that Mr. Saindon [counsel for D.C.] has been providing us with
everything as he has been able to get it and we haven’t gotten that. The Court: Well, I will tell
you what. Since the e-mails aren’t here and they were asked for and not produced in discovery,
they don’t exist.”).

                                                -17-
burner reports before jury duty cannot be corroborated because there are no emails. Third, the one

time that Ms. Madison remembers Dr. Smoak commenting negatively on her front burner report was

during jury service when it was, perforce, without content because Ms. Madison was in jury service

four days a week. Tr. I, 52:23 - 53:25.

               Finally, Dr. Smoak admitted that Ms. Madison performed her time and attendance

duties very well, which were the most critical part of her job. Notably, time and attendance had to

be collected and recorded weekly for all SEO employees while payroll was issued on a bi-weekly

basis. Dr. Smoak’s efforts to reduce this work from three days/week, including Fridays, to shorter

periods was completely contradicted by employee testimony. In addition, Ms. Proctor’s ability to

perform this work after her detail back to Operations only followed training in PeopleSoft software,

a new software to track the details that Ms. Madison had mastered and with which Ms. Proctor was

unfamiliar. Thus, on the most critical set of tasks of the position, Ms. Proctor was unprepared.

               The District of Columbia first defended against this suit by submitting Dr. Smoak’s

declarations indicating that Ms. Madison’s term appointment was allowed to lapse and no one was

hired to replace her. D.C. also declared that no other Operations employees were hired or extended

at the time of consideration of Ms. Madison’s appointment. Those defenses very obviously fail to

match the facts and are rejected. They call Dr. Smoak’s memory and candor into question.

               Dr. Smoak testified that Ms. Madison was not a satisfactory employee but, when

asked exactly why she did not extend Ms. Madison’s appointment even for three months so that she

would qualify for a pension, Dr. Smoak could not say. Her testimony that Ms. Madison’s

performance was unsatisfactory was weak and internally contradictory. Dr. Smoak’s inability to

provide a legitimate reason for her failure to agree to extend Ms. Madison’s appointment is


                                               -18-
astonishing. What she did say was that, after thinking about terminating Ms. Madison all weekend,

she “determined . . . that it wasn’t about her not being there [because of the trial]. It was attitudinal,

it was cultural,” because Ms. Madison would “still [be] compromising the morale of my team, and

. . . still [be] talking about this is my piece and that’s your piece.” Tr. I, 197:17-22 (emphasis added).

As described above, the alleged “compromising the morale” of the team was unsupported nonsense:

“this is my piece and that’s your piece” seems to have been a shared attitude. Rather, Dr. Smoak’s

slip of the tongue reveals what was at issue: it was about Ms. Madison “not being there.”

                The Court finds that Ms. Madison was discharged by SEO because she served as a

juror in the spring of 2007. That does not end the inquiry, however, because the legal question is

now ripe and must also be resolved.

                B. The “Permanence” of Ms. Madison’s SEO Employment

                The District of Columbia argues that Ms. Madison fails to make the necessary

threshold showing that she was a permanent employee of SEO and, therefore, her complaint must

be dismissed. D.C. relies on the specific terms of the Juror Act: “No employer shall discharge,

threaten to discharge, intimidate, or coerce any permanent employee by reason of such employee’s

jury service . . . in any court of the United States.” 28 U.S.C. § 1875(a). Because Ms. Madison was

hired on a 13-month term appointment, so the argument goes, she was not a “permanent” employee

and does not qualify for coverage or the protections of the statute.

                The force of the legal argument cannot be gainsaid except for the particular fact

pattern here. D.C. analogizes “permanent” employee with a “career service” employee, Def.’s Mem.

at 5, but that analogy does not work. Clearly, employees in “at will” employment who can be

terminated at any time and employees with similar non-permanent employment arrangements still


                                                  -19-
qualify for the protections of the Juror Act. See, e.g., Hill v. Winn-Dixie Stores, Inc., 934 F.2d 1518,

1519-20, 1526-27 (11th Cir. 1991) (Juror Act applied to produce manager of grocery store); Shaffer

v. ACS Gov’t Servs., 321 F. Supp. 2d 330, 334-38 (D. Md. 2006) (Juror Act applied to business

development director of a company who was an at-will employee); United States ex rel. Madonia

v. Coral Springs P’ship, Ltd., 731 F. Supp. 1054, 1055-57 (S.D. Fla. 1990) (Juror Act protected

employment of assistant manager at hair salon); Johnson v. Appliance & T.V. Ctr., Inc., No. C-86-

601-D, 1987 WL 16942, at *1 (MD.N.C. 1987) (Juror Act protected office clerk of appliance and

television retailer); Jones v. Marriot Corp., 609 F. Supp. 577, 578-79 (D.D.C. 1985) (cashier at hotel

dining facility was a permanent employee for purposes of protection under the Juror Act); In re

Grand Juror Ronnie Webb, 586 F. Supp. at 1481-85 (Juror Act protected truck driver of supply

company). Just as clearly, former Mayor Williams sought to use term appointments, frequently

extended, to avoid granting civil service status to persons hired into the Office of the Mayor. The

question is whether term appointments, as used by the Williams Administration, robbed such

employees of sufficient “permanence” to destroy their remedy for proven retaliation due to federal

jury service.

                On the record here, the Court concludes that Ms. Madison deserves the protection of

the statute. Although structured as “term” appointments, clearly SEO used these terms for long-

term, i.e., permanent employment, such as the four-year appointment for Bachir Kabbara. Only

during the term of Ms. Madison’s first appointment — when the Inspector General advised that

continuous use of term appointments for otherwise-permanent employees was inappropriate — did

SEO allow so-called “term” employees to apply for permanent positions rather than just having their

terms extended. Certainly at the time Ms. Madison was hired, Dr. Smoak anticipated that her


                                                 -20-
successful performance would result in an extension of Ms. Madison’s “term” appointment, not a

civil service “permanent” job. The happenstance that the Williams Administration hired employees

on so-called “term” appointments to avoid civil service regulations, fully intending to extend as

desired, or to award multi-year “term” appointments, cannot be used to destroy Ms. Madison’s

protections from retaliation for federal jury service when there is insufficient evidence to support

D.C.’s alternative theory that her performance was unsatisfactory. In other words, EOM was using

“term” appointments to give it flexibility to discharge and not in expectation that any appointment

would actually terminate on an NTE date. “Term” appointees were expected to be permanent in their

jobs (until the OIG advice) unless they failed to perform. The evidence of Ms. Madison’s alleged

“failure” to perform being discredited, the Court finds, on these facts, that she qualified as a

“permanent” employee under the Juror Act.

                                      IV. CONCLUSION

               The Court concludes that Ms. Madison was separated from her employment with the

SEO in violation of the Jury System Improvements Act. As a remedy for this violation, Ms.

Madison is entitled to: reinstatement to employment with the District of Columbia government in

the same or comparable position she would have held had she never been discharged; payment of

all wages she would have received had she never been terminated; retroactive restoration of all

employee benefits; and an order permanently enjoining the District of Columbia from committing

any further Juror Act violations against Ms. Madison. The Court will further order that the District

of Columbia reimburse the Court for the payment of the reasonable costs of this action, including




                                               -21-
reasonable attorney’s fees and costs for Ms. Madison’s Court-appointed counsel; and pay a statutory

penalty of $5,000. A memorializing Order accompanies this Memorandum Opinion.



Date: January 23, 2009                                               /s/
                                                      ROSEMARY M. COLLYER
                                                      United States District Judge




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