                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



 KWAKU ATTAKORA,
   Plaintiff,
                                                          Civil Action No. 12-1413 (CKK)
            v.

 DISTRICT OF COLUMBIA,
   Defendant.



                          MEMORANDUM OPINION and ORDER
                                (November 20, 2015)

        On November 13, 2015, the Court held the first Pretrial Conference in this case and
issued oral rulings on the objections related to witnesses, exhibits, and deposition designations as
set forth in the parties’ [82] Joint Pretrial Statement and Plaintiff’s [83] Errata thereto. The
Court hereby INCORPORATES the oral rulings made on the record at the Pretrial Conference
on November 13, 2015, and now issues this Memorandum Opinion and Order memorializing
those rulings. 1
        The parties raise several objections to witnesses, exhibits, and deposition designations on
the basis that the evidence at issue is not relevant. The Federal Rules of Evidence generally
permit the admission of “relevant evidence”— i.e., evidence having “any tendency” to make the
existence of any fact of consequence more probable or less probable — provided it is not
otherwise excluded by the Rules, the Constitution, or an Act of Congress, and its probative value
is not “substantially outweighed” by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or the needless

        1
           While the Court bases its decision on the record as a whole, its consideration has
focused on the arguments made during the Pretrial Conference and on the following documents:
Jt. Pretrial Stmt., ECF No. [82]; Pl.’s Errata to Jt. Pretrial Stmt., ECF No. [83]; Def.’s Resp. to
Ct. Order, ECF No. [85]; Pl.’s Resp. in Compliance with Ct. Order Dated Oct. 26, 2015 (“Pl.’s
Resp. to Ct. Order Dated Oct. 26, 2015”), ECF No [86]; Pl.’s Errata to Pl.’s Resp. to Ct. Order
Dated Oct. 26, 2015, ECF No. [88]; Pl.’s Resp. in Compl. with Ct. Order Dated Nov. 9, 2015
(“Pl.’s Resp. to Ct. Order Dated Nov. 9, 2015”), ECF No. [91]; Pl.’s Errata to Pl.’s Resp. to Ct.
Order Dated Nov. 9, 2015, ECF No. [92].
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presentation of cumulative evidence. Fed. R. Evid. 401-403. In deference to their familiarity with
the details of the case and greater experience in evidentiary matters, district courts are afforded
broad discretion in rendering evidentiary rulings, a discretion which extends to assessing the
probative value of the proffered evidence and weighing any factors against admissibility.
Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008). With these principles in
mind, the Court turns to the specific objections raised by the parties in their Joint Pretrial
Statement and discussed on the record during the Pretrial Conference.


       WITNESSES
       Defendant raises certain objections to Plaintiff’s witnesses. The Court shall address each
objection in turn.
       Nancy Ware.      Plaintiff seeks to present testimony from Nancy Ware, who was the
Executive Director of the District of Columbia’s Criminal Justice Coordinating Committee
(“CJCC”) when Plaintiff was hired and evaluated Plaintiff while serving in that capacity.
Defendant objects to the presentation of testimony from this witness as not relevant. The Court
shall permit Plaintiff to present testimony from Ms. Ware focused on Ms. Ware’s impressions of
Plaintiff’s perceived shortcomings that Mannone Butler specified as the bases for Plaintiff’s
termination.
       Paul Quander. Plaintiff seeks to present testimony from Paul Quander, who was the
Executive Director of CJCC after Ms. Ware and was CJCC’s co-chair through Plaintiff’s
termination. Defendant objects to the presentation of testimony from this witness as not relevant.
The Court shall permit Plaintiff to present testimony from Mr. Quander focused on Mr.
Quander’s impressions of Plaintiff’s perceived shortcomings that Ms. Butler specified as the
bases for Plaintiff’s termination.
       Diana Calderon. The Court notes that Defendant originally objected to Plaintiff listing
Diana Calderon as a witness but has since withdrawn that objection. See Def.’s Resp. to Ct.
Order, ECF No. [85].




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       EXHIBITS
       Each party raises objections to the opposing party’s exhibits. The Court shall first address
Defendant’s objections to Plaintiff’s exhibits and then shall address Plaintiff’s objections to
Defendant’s exhibits.
       Plaintiff’s Proposed Exhibits.
           •   Plaintiff’s Exhibits 1, 2. Defendant objects to the introduction of Plaintiff’s
               Exhibits 1 and 2 (two CJCC staff pictures) as not relevant. Based on the
               discussion on the record, the Court finds the exhibits are relevant based on the
               Plaintiff’s cited reason for introducing the exhibits, namely demonstrating that
               CJCC was not a diverse workplace with respect to national origin. Moreover,
               Defendant indicated on the record that the admission of these exhibits would not
               be prejudicial to Defendant.
           •   Plaintiff’s Exhibits 3, 4, 6-12. Defendant objects to the introduction of Plaintiff’s
               Exhibit 3 (E-mails dated Jun. 3, 2011 between Plaintiff and Ms. Butler), 4 (Ms.
               Butler’s letter dated Jan. 17, 2012, to Carol Allen of the Equal Employment
               Opportunity Commission), 6 (Ms. Ware’s May 2009 evaluation of Plaintiff), 7
               (May, 2010 Performance Plan), 8 (E-mails regarding Plaintiff’s work
               performance), 9 (E-mails dated Apr. 5, 2010 between Plaintiff and Ms. Butler), 10
               (Memorandum dated Apr. 14, 2011 re: written warning), 11 (E-mail dated Feb. 3,
               2010 re: writing sample of Mr. Ndapu), and 12 (E-mails related to continuing
               professional education/conferences for Plaintiff) on the basis that the exhibits
               contain hearsay. The Court finds that Plaintiff may introduce the exhibits at issue
               if he lays the proper foundation for their admission under the business records
               exception pursuant to Federal Rule of Evidence 803(6) or under some other
               exception to the hearsay rule. The Court notes that some of the exhibits (3, 8, 9,
               11, 12) include e-mail correspondence and, as such, a foundation for an exception
               to hearsay must be set forth for each e-mail contained within the chain of e-mails.
               Moreover, the Court notes that the parties should pay particular attention to the
               requirements for admitting an e-mail into evidence under the business records
               exception to the hearsay rule.

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   •   Plaintiff’s Exhibit 11. Defendant also objects to the introduction of Exhibit 11 (E-
       mail dated Feb. 3, 2010 re: writing sample of Mr. Ndapu) on the basis that it is not
       relevant. The exhibit at issue is an e-mail forwarding the writing sample of a job
       candidate from Plaintiff to Ms. Butler. The Court shall reserve its ruling on this
       exhibit until after it determines whether Mr. Butler gives any conflicting
       testimony at trial as to whether she received the e-mail at issue. To the extent that
       there is no dispute regarding Ms. Butler’s receipt of the e-mail, the Court finds
       that the e-mail itself, which does not include a copy of the attached writing
       sample, is not relevant.
   •   Plaintiff’s Exhibit 14. Defendant objects to introduction of Plaintiff’s Exhibit 14
       (MedStar Washington Hospital Center records dated Aug. 7, 2012) as not
       relevant. The Court shall permit Plaintiff to submit a further explanation as to
       how the medical records filed under seal as Exhibit 14 pertain to the issue of
       damages. The parties are directed to adhere to the following briefing schedule.
       Plaintiff shall file his explanation as to the relevancy of this exhibit, if any, by no
       later than December 1, 2015; Defendant shall file its response, if any, by no later
       than December 8, 2015; and Plaintiff shall file his reply, if any, by no later than
       December 15, 2015.
Defendant’s Proposed Exhibits.
   •   Defendant’s Exhibit 1. Plaintiff objects to Defendant’s Exhibit 1 (E-mail dated
       Apr. 5, 2010 between Plaintiff and Ms. Butler) as not relevant. Plaintiff through
       his own exhibit (Plaintiff’s Exhibit 9) seeks to introduce an e-mail from Plaintiff
       to Ms. Butler requesting leave to travel to Africa for his uncle’s funeral. Here,
       Defendant seeks to introduce Ms. Butler’s response to that e-mail. The Court
       finds that both Plaintiff’s e-mail and Ms. Butler’s e-mail response are relevant
       because they are related to one of the incidents that Plaintiff asserts demonstrates
       Ms. Butler’s discriminatory animus.
   •   Defendant’s Exhibit 5. Plaintiff objects to Defendant’s Exhibit 5 (Application
       package for Sean Goliday for statistician position) as not relevant. At the pretrial
       conference, the parties agreed that at this time, neither party seeks to admit

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               evidence to the jury regarding Sean Goliday, the person whom Plaintiff contends
               was hired as his successor. Plaintiff agreed that he would not argue that there is
               an inference of discriminatory animus because Defendant did not hire another
               person of African national origin. As such, the Court concludes at this time that
               Defendant’s Exhibit 5 is not relevant.      However, the Court shall revisit this
               holding if testimony or other evidence relating to CJCC’s hiring of Mr. Goliday is
               presented at trial.
           •   Defendant’s Exhibits 4, 6-31. Plaintiff generally objects to a host of Defendant’s
               exhibits, alleging that Defendant’s legitimate, non-discriminatory reasons are
               subjective, false, manufactured, fact-free, inconsistent, shifting and post hoc
               rationale and are otherwise in of themselves discriminatory and/or pretext for
               discrimination. At the pretrial hearing, Plaintiff indicated that he raised this
               generalized objection to these exhibits on the basis that their admission into
               evidence would only be permissible if Defendant laid the proper foundation for
               same. As with Plaintiff’s Exhibits to which Defendant objected, Defendant must
               lay a proper foundation, including that related to any applicable exception to the
               hearsay rule, in order to admit these exhibits.


       DEPOSITION DESIGNATIONS
       Each party raises objections to the opposing party’s deposition designations. The Court
shall first address Defendant’s objections to Plaintiff’s deposition designations and then shall
address Plaintiff’s objections to Defendant’s deposition designations.
       Plaintiff’s Deposition Designations.
           •   Deposition of Mannone Butler. Plaintiff seeks to admit certain portions of the
               videotaped deposition of Ms. Butler pursuant to Federal Rule of Civil Procedure
               32(a)(3). As an initial matter, Plaintiff is instructed to isolate the portions of the
               video that he seeks to introduce and that the Court has not ruled inadmissible.
               The portions of the video should be edited to remove any objections made on the
               record during the deposition. Plaintiff shall provide a copy of the isolated, edited



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              portions of the deposition video that he seeks to introduce at trial to Defendant by
              no later than January 18, 2016.

              Turning to Defendant’s specific objections, the Court first notes that portions of
              Ms. Butler’s deposition sought to be admitted by Plaintiff are not hearsay because
              they constitute admissions of a party opponent pursuant to Federal Rule of
              Evidence 801(d)(2)(A).     However, as discussed at the hearing, much of the
              designated portions of Ms. Butler’s deposition testimony are likely to be
              duplicative of the witness’s live trial testimony. Indeed, both parties have listed
              Ms. Butler as a witness. Specifically, the Court finds these deposition
              designations cover testimony that is relevant to Plaintiff’s claim. However, the
              deposition designations also cover what is likely to be trial testimony. As such,
              the Court shall reserve its ruling on the admissibility of the designated portions of
              the testimony until it is known whether the deposition testimony conflicts with
              Ms. Butler’s trial testimony. To the extent that the deposition testimony and the
              trial testimony are consistent, the deposition testimony will likely be deemed
              duplicative. However, if there is a conflict between Ms. Butler’s testimony at trial
              and at the deposition, the deposition testimony is likely admissible both for
              impeachment purposes and for substantive purposes. Accordingly, to the extent
              that there is conflicting testimony presented at trial, the Court shall consider the
              admission of the following deposition designations: 2

                  o Tr. 140:10—141:6:        In this section, Plaintiff questioned Ms. Butler
                     regarding Plaintiff’s leave records related to Plaintiff’s request for time off
                     to travel to Ghana for his uncle’s funeral.
                  o Tr. 11:4—27:16:       This portion of the deposition covers Ms. Butler’s
                     educational background and her work history, including her time as the
                     interim director at the CJCC.




       2
         The Court bases these rulings on the assumption that Ms. Butler appears and testifies
during the trial.
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   o Tr. 63:4-16: In this portion of the deposition, Plaintiff questions Ms.
       Butler regarding any attempts that she made to remedy her concerns about
       Plaintiff’s perceived shortcomings that Defendant asserts formed the basis
       for Plaintiff’s termination.
   o Tr. 64:14—108:14 (see below regarding Tr. 88:2—92:13): In this section,
       Plaintiff seeks for Ms. Butler to expound on some of her stated reasons for
       terminating Plaintiff.
              Tr. 64:14—68:18: In this portion of the deposition, Ms. Butler is
               asked     about    whether     she attempted         to   identify training
               opportunities for Plaintiff.
              Tr. 72:15—73:12: Here, Ms. Butler is asked about her knowledge
               of Ms. Ware’s assessment of Plaintiff’s job performance.
              Tr. 87:8—88:1: In this portion of the deposition, Ms. Butler is
               questioned       about   her   indication    that     “Plaintiff   did   not
               independently        provide      relevant          innovative     research
               recommendations to CJCC’s executive director.”
   o Tr. 159:1—182:14: This portion of the deposition covers Ms. Butler’s
       decision to terminate Plaintiff and conversations she had related to this
       decision.
              Tr. 166:12—182:14: Here, Ms. Butler’s testimony related to the
               general policy for employees bringing children to the office and a
               specific instance in which Plaintiff brought his children to the
               office.
   o Tr. 128:11—135:21: In this section, Ms. Butler is questioned about an
       exhibit concerning the diversity of the CJCC staff and specifically about a
       person who was a contract employee and also of Ethiopian national origin.


Defendant raises two additional objections to deposition designations which the
Court sustains as follows:



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          o Tr. 4:1—8:13: This portion of the deposition simply includes opening
              questions and instructions. The Court finds that this testimony is not
              relevant as it does not contain any substantive information related to any
              claim or defense.
          o Tr. 88:2—92:13: The testimony at issue in this portion of Ms. Butler’s
              deposition addresses Ms. Butler’s response to Plaintiff’s EEOC complaint.
              At the pretrial hearing, the parties agreed that this portion of Ms. Butler’s
              deposition should be excluded because the parties do not otherwise plan to
              present evidence related to the EEOC complaint, and because such
              evidence could lead to some confusion for the jury. As such, the Court
              finds that this portion of the deposition shall be excluded as not relevant.
              The Court shall revisit this ruling if there is testimony or other evidence
              related to Plaintiff’s EEOC complaint presented at trial.


   •   Deposition of Plaintiff. Plaintiff seeks to admit his entire deposition to which
       Defendant objects on the basis that the deposition is hearsay. The Court finds this
       portion of the deposition inadmissible as it is hearsay and Plaintiff has not
       advanced an exception to the general rule barring hearsay that would allow him to
       admit his own deposition testimony during his case-in-chief.

Defendant’s Deposition Designations.
   •   Deposition of Plaintiff. Defendant seeks to admit certain portions of Plaintiff’s
       deposition as an admission of a party opponent pursuant to Federal Rule of
       Evidence 801(d)(2)(A), to which Plaintiff objected. In sum, the Court deems
       these deposition designations admissible as admissions of a party opponent and
       otherwise relevant:
          o Tr. 22:6—23:19: In this portion of the deposition, Plaintiff discusses his
              job duties as Chief Statistician while employed at the CJCC.
          o Tr. 30:17—33:19: Here, Plaintiff describes certain comments that Ms.
              Butler made to him.


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                    o Tr. 42:13-18: During this exchange, Plaintiff discusses his interactions
                        with Ms. Butler after Mr. Quander became CJCC’s Director.
                    o Tr. 48:10-15: In this section, Plaintiff describes a conversation that he had
                        with Ms. Butler after he sought to unlock his cell phone during
                        international travel.


        PRETRIAL CONFERENCE AND TRIAL DATES
        This matter is set for a second Pretrial Conference on January 19, 2016, at 1:30 p.m. in
Courtroom 28A, to discuss voir dire, jury instructions, the verdict form, and any other pending
matters. This matter also is set for a Jury Trial from January 26, 2016, through February 1,
2016, commencing each day at 9:00 a.m. in Courtroom 28A.


        Accordingly, it is this 20th day of November, 2015, hereby
        ORDERED that Plaintiff may present testimony from witnesses Nancy Ware and Paul
Quander focused on the witnesses’ individual impressions of Plaintiff’s perceived shortcomings
that Ms. Butler specified as the bases for Plaintiff’s termination; it is further
        ORDERED that with respect to Defendant’s objections to Plaintiff’s Exhibits:
            •   Plaintiff’s Exhibits 1 and 2 are relevant to Plaintiff’s claim;
            •   Plaintiff’s Exhibits 3, 4, 6-10, and 12 may be introduced as long as Plaintiff lays
                the proper foundation for their admission under the business records exception
                pursuant to Federal Rule of Evidence 803(6) or some other applicable exception
                to the hearsay rule;
            •   Plaintiff’s Exhibit 11 is inadmissible on the basis that it is not relevant;
            •   The Court shall permit Plaintiff to provide further explanation as to the relevancy
                of Plaintiff’s Exhibit 14. Plaintiff shall file his further explanation, if any, by no
                later than December 1, 2015; Defendant shall file its response, if any, by no later
                than December 8, 2015; and Plaintiff shall file his reply, if any, by no later than
                December 15, 2015; it is further
        ORDERED that with respect to Plaintiff’s objections to Defendant’s Exhibits:
            •   Defendant’s Exhibit 1 is relevant to Defendant’s defense;

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             •   Defendant’s Exhibit 5 is inadmissible on the basis that it is not relevant;
             •   Defendant’s Exhibits 4 and 6-31 may be introduced as long as Defendant lays the
                 proper foundation for their admission, including any foundation required to meet
                 an applicable exception to the hearsay rule; it is further
        ORDERED that Plaintiff shall provide a copy of the edited portions of Mannone Butler’s
deposition video, with all objections removed, that he seeks to introduce at trial to Defendant by
no later than January 18, 2016; it is further
        ORDERED that with respect to Defendant’s objections to Plaintiff’s designations of Ms.
Butler’s deposition:
             •   The Court shall consider the admission of following portions of Ms. Butler’s
                 deposition testimony if it conflicts with her testimony at trial:
                    o Tr. 140:10—141:6.
                    o Tr. 11:4—27:16.
                    o Tr. 63:4-16.
                    o Tr. 64:14—108:14.
                                Tr. 64:14—68:18.
                                Tr. 72:15—73:12.
                                Tr. 87:8—88:1.
                    o Tr. 159:1—182:14.
                                Tr. 166:12—182:14.
                    o Tr. 128:11—135:21.
             •   The Court shall exclude the following portions of Ms. Butler’s deposition as not
                 relevant:
                    o Tr. 4:1—8:13.
                    o Tr. 88:2—92:13.
        ORDERED that with respect to Defendant’s objections to Plaintiff’s designation of his
own deposition, that Plaintiff’s deposition as introduced by Plaintiff is inadmissible as hearsay; it
is further
        ORDERED that with respect to Plaintiff’s objections to Defendant’s designations of
Plaintiff’s deposition, the Court finds that the following deposition designations are admissible

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as admissions of a party opponent pursuant to Federal Rule of Evidence 801(d)(2)(A) and
otherwise relevant to Defendant’s defense:
           •   Tr. 22:6—23:19.
           •   Tr. 30:17—33:19.
           •   Tr. 42:13-18.
           •   Tr. 48:10-15.
       ORDERED that this matter is set for a second Pretrial Conference on January 19, 2016,
at 1:30 p.m. in Courtroom 28A, to discuss voir dire, jury instructions, the verdict form, and any
other pending matters; and it is further
       ORDERED that this matter is set for a Jury Trial from January 26, 2016, through
February 1, 2016, commencing each day at 9:00 a.m. in Courtroom 28A.
       IT IS SO ORDERED.


                                                                         /s/
                                                           COLLEEN KOLLAR-KOTELLY
                                                           United States District Judge




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