                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


                                                 )
LILLIANN WILLIAMS,                               )
                                                 )
                Plaintiff,                       )
                                                 )
        v.                                       )       Misc. Action No. 07-505 (RMC)
                                                 )
DISTRICT OF COLUMBIA, et al.,                    )
                                                 )
                Defendants.                      )
                                                 )


                                    MEMORANDUM OPINION

                Sitting as a juror on a lengthy, difficult, capital case is one of the most challenging,

but absolutely critical, civic duties of all citizens. A life is literally in the jury’s hands if they find

the defendant guilty as charged. The resulting absence from work can aggravate employers and

fellow employees. But everyone knows that a juror’s job is protected during her absence, right?

                LilliAnn Williams-Jackson, Ph.D (“Dr. Jackson”) sues the District of Columbia

pursuant to the Jury Systems Improvement Act (“Juror Act”), 28 U.S.C. § 1875, alleging that she

lost her position as guidance counsel at J.O. Wilson public elementary school in the District of

Columbia because her principal was angry that Dr. Jackson served for over four months on a federal

jury in a capital case. After a two-day trial and post-trial briefs, the Court took the matter under

advisement. This is a close case of mixed motives leading to the decision to “excess” Dr. Jackson

from Wilson and one in which Dr. Jackson’s credibility is distinctly superior to her former principal.

Nonetheless, the Court concludes that Dr. Jackson has not carried her burden to prove that her jury

service “was the ‘but-for’ cause of the challenged adverse employment action.” Gross v. FBL Fin.
Servs., 129 S. Ct. 2343, 2352 (2009).

                                             I. FACTS

               Dr. Jackson worked at J.O. Wilson Elementary School for over twenty years, as a

teacher from 1987 to 1996 and as the guidance counsel from 1996 to June 2007. She holds a PhD

from Michigan State University. Tr. at. 13, June 24, 2008 a.m. (Jackson).1 Cheryl Warley was the

principal at J.O. Wilson after 2002. Id. at 15.

               A. Jury Duty

               Dr. Jackson received a summons for a jury trial in December 2006, immediately

reported it to Ms. Warley, and reported for jury selection in early January 2007 in United States v.

Gooch, Crim. Action No. 04-128 (RMC). Id. at 19. She completed a questionnaire, which

explained, inter alia, that the jury would be sitting on a capital case in which the defendant might

face the death penalty. Id. Thereafter, Dr. Jackson was recalled and seated on the jury. Trial began

on February 7, 2007. As soon as she got home on the evening of February 7, Dr. Jackson called the

school to tell Ms. Warley that she had been seated on the jury but Ms. Warley had already left for

the day. Id. at 20. Dr. Jackson called Ms. Warley at home and notified her that she had been

selected to serve on the jury. Id. Dr. Jackson advised Ms. Warley that the trial was “expected to last

anywhere between four and six months” and that Dr. Jackson “would serve on Monday through

Thursday” and “would be in the building on Fridays.” Id.

               Ms. Warley made it clear that she was unhappy with Dr. Jackson’s absence. Where

they once had had a cordial professional relationship, Ms. Worley essentially stopped speaking to

1
  This matter was tried to the Court on June 24 and 25, 2008. Because of different court reporters
transcribing the trial, the morning and afternoon transcripts from June 24 are not numbered
sequentially.

                                                  -2-
Dr. Jackson. Id. at 16 (“Ms. Warley stopped speaking to me. I would speak to her, she would not

speak to me. . . . She would look right at me and not acknowledge me.”). During a faculty meeting,

Ms. Warley announced that Dr. Jackson had volunteered to serve on the jury, suggesting she was not

dedicated to her job. Id. at 26. Ms. Warley also called this Court’s Jury Office to find out if Dr.

Jackson were really on jury duty and, if so, why was it taking so long. Id. at 27-28. This conduct

sank to a very petty level when Ms. Warley told Dr. Jackson that she could no longer store her purse

in the school office, which, without a locked cabinet in her office, Dr. Jackson had been doing for

twelve or thirteen years. Id. at 28-30.2

               The Gooch trial ended in June of 2007 and Dr. Jackson returned to J.O. Wilson full-

time. To her surprise, upon her return, she was handed a performance appraisal, which was

premature. “Based on the Washington Teachers Union guidelines if you receive an[] exceed[s]

expectation[s] rating, you are only required to be evaluated every three years,” and Dr. Jackson had

been rated “exceeds expectations” in an evaluation for the school year 2005-2006. Id. at 17-18.

After her jury service, however, she unexpectedly received a performance evaluation with a lower

rating. Id. at 31. She asked to speak with Ms. Warley and was ignored for a few days until “Ms.

Warley just burst in [to Dr. Jackson’s office] and said you weren’t here and I’m not going to do your

work.” Id. at 32. Ms. Warley then complained “that there w[ere] some SSTs3 that had not been


2
  Ms. Warley contends that none of the facts recited in this paragraph are true, except for her call
to the Jury Office. That is, she admits to a cordial relationship with Dr. Jackson before the Gooch
jury was seated but denies that her behavior changed in any way, denies that she told the other
teachers that Dr. Jackson had “volunteered” to serve on such a long jury, and denies that she
instructed Dr. Jackson to keep her purse in her office. For reasons explained later in this decision,
the Court does not credit Ms. Warley’s denials.
3
  An “SST” is a Student Support Team comprised of parents, teachers, and Dr. Jackson to address
academic, behavioral, or other problems a student may be having at school.

                                                -3-
processed properly and that Dr. Harlan who is the school psychologist on the multi disciplinary team

had called downtown and said that there was a problem and the whole team had come from the

special education department to J.O. Wilson to fix this problem.” Id. Ms. Warley refused to retract

or change the evaluation. Id. at 33.

                  However, when Dr. Jackson re-checked the students’ folders that had supposedly

been changed, she could find no changes. Id. at 34 (“I didn’t see any new information, any of my

information that had been revised or anything.”). Upon Dr. Jackson’s complaint, a Union

representative contacted Ms. Warley who then changed the performance evaluation and gave a copy

to Dr. Jackson.

          [T]he next thing I know Ms. Warley called me on the telephone. She was
          in the main office. I was in my office. And she said do you want me to
          shred this evaluation or do you want it? And I said I’ll come up to the main
          office. I want it.

          And when I got up there, it wasn’t the original evaluation that Mrs. Johnson
          had presented to me . . . . That one was a three page carbonless one, but the
          one Ms. Warley was presenting to me was like a computer generated one.
          Just one single sheet. And where it had meets expectation[s], she scratched
          that, then she put an X over by exceeds expectation[s].

          So I asked Ms. Warley, where is the evaluation that was presented at first?
          This is not the one. And she said this is the one. I said this is not the one.
          And she said it is.

          And I said you have marked two places here, how would anyone know
          which one is the correct evaluation? There was a check marked between in
          front of [sic] exceeds expectation[s] and a check mark in front of meets
          expectation[s]. So then she just very hurriedly wrote void on it and dated
          it and signed her name.

          And I was given that.

Id. at 34-35; see Pl.’s Ex. 5 (Voided Evaluation of LilliAnn Williams). In discovery, Defendants



                                                 -4-
said that the way Dr. Jackson had prepared the SSTs had been a problem. Dr. Jackson “still

do[esn’t] see what the problem is. . . . I’ve always done the SSTs the same. I did the 30 SSTs at the

new school the same way. I’ve not gotten any returns or any discussion about anything not done

correctly on them.” Tr. at 39, June 24, 2008 a.m.

               B. “Excessing” Decision

               Under the Washington Teachers Union collective bargaining agreement, there is a

procedure to “excess” a teacher, that is, “an involuntary transfer of an employee from one site to

another site.” Id. at 40.   Each public school in the District of Columbia has a Local School

Restructuring Team (“LSRT”). Due to budget limitations, the LSRT at J.O. Wilson recommended

that the guidance counselor position at the school be excessed in March 2007, while Dr. Jackson was

on jury duty, and the D.C. Public School System (“DCPS”) adopted that recommendation. Id. at 52-

53. Under the collective bargaining agreement, a teacher can request a waiver if she presents “a

defensible explanation why excessing him or her would result in a detriment or hardship to the

mission of the school and a school improvement plan.” Id. at 54-55 (Defs.’ Att’y (Saindon), quoting

Pl.’s Ex. 15 (Excess Teacher Memorandum) at 15, Article IV, § C, ¶ 5). Dr. Jackson never requested

a waiver. Tr. at 55, June 24, 2008 a.m (Jackson). However, if Ms. Warley had successfully lowered

Dr. Jackson’s performance rating, Dr. Jackson would not have been eligible even to request a waiver.

Id. at 59.

               The function of an LSRT is “to work together, collaborate to make decisions for the

school.” Id. at 80 (Weatherby). Under DCPS policy, the representatives on an LSRT are to be the

“principal or school administrative leader, the building rep, four teachers, four parents, one support

staff, one community representative and one student at the high school level optional.” Id. at 83


                                                 -5-
(Weathersby, quoting Pl.’s Ex. 6 (LSRT Planning Process Slides)). During the 2006-2007 school

year, Regina Coates Weathersby, a classroom teacher, was the chair of the LSRT at J.O. Wilson.

Tr. at 83, June 24, 2008 a.m. Ms. Weathersby considers Principal Warley a mentor. Id. at 79

(Weathersby). Ms. Weathersby testified that “99 percent of the time whatever we say as a team or

vote on, that’s what goes.” Id. at 82; but see Pl.’s Ex. 6 (LSRT Planning Process Slides) at 83 (“The

LSRT shall serve in an advisory capacity to the principal for the purpose of improving student

outcomes.”).

               Tammy Holder, whose granddaughter attended the school, Tr. at 60, June 24, 2008

a.m. (Holder), was asked by Ms. Warley to serve as the parent member of the LSRT, but Ms. Holder

was never invited to attend committee meetings, never received an agenda for any meeting, never

received any minutes from meetings, and never received any materials concerning the LSRT during

the 2006-2007 school year. Id. at 62-63. She was listed in the document that contained the formal

Local School Restructuring Team S[chool]Y[ear] 2006-2007 as the parent member and appeared to

have signed that document. Id. at 63. Her signature was, however, forged, which was clear because

the forger spelled her name “Tamie” instead of “Tammy,” which is Ms. Holder’s first name. Id. at

64; see Pl.’s Ex. 23 (Roster of LSRT Members for SY 2006-2007).

               A quorum of the LSRT required the principal or designee, the building rep or

designee, at least one parent and a majority of the members. Tr. at 85, June 24, 2008 a.m.

(Weathersby). Although chair of the LSRT, Ms. Weathersby was unaware of the necessity of a

quorum and never ensured that the requirement was met. Id. She was also unaware of her specific

responsibility to notify all members, including those not in the school, of meetings. Id. at 86 (“The

chairperson has the responsibility to set a meeting agenda and provide notice of meetings to all


                                                -6-
members.”). Instead, a meeting was set when she “got notice either through a memo or by word of

mouth going someone calls you to the office and getting it.” Id. Not surprisingly, Ms. Weathersby

was able to identify only the in-school members of the 2006-2007 LRST at J.O. Wilson. Id. at 83-

84.

               The LSRT at J.O. Wilson met on February 27, 2007. The “parent representative”

present was Shawn Smith who is also a teacher at J.O. Wilson. One issue under discussion was the

budget for the 2007-2008 school year. Id. at 92. The LSRT had erred in its budgeting for 2006-

2007, so it was “held accountable and [the school] had to lose members because of the deficit.” Id.;

see also id. at 95 (“We had a deficit over a hundred thousand dollars I think it was that year. And

we were going to have to lose staff. There was no way to not . . . .”); id. at 121 (“The year prior we

had errors in which we lost, I know it was four, five people because there was an error. The business

manager made an error in the numbers and it went through but then they went back in August or

September to look at it, we were in the red by a lot and we had to fix it so we did not want that to

happen again.”). The LSRT met again on February 28, 2007, to discuss suggestions for staff

reductions. Id. at 95; Pl.’s Ex. 9 (2/28/07 LSRT Meeting Agenda).           Again, the only “parent

representative” was teacher Shawn Smith. Tr. at 96, June 24, 2008 a.m. (Weathersby). There were

no community representatives at either meeting. Id.

               Ms. Warley opened the meeting and told the LSRT members that the front office

could not afford to excess the school secretary, who alone remained in that office, or any custodians,

who had a different union contract. The committee discussed the computer lab coordinator and

decided the position needed to be retained because “at that time DCPS had a horrible IT team and

it would take weeks, months for someone to come out and he could troubleshoot on the spot.” Id.


                                                 -7-
at 98. No teachers’ aide would be cut because their salaries were so low that it would take a lot of

them, not just one or two, to make up the deficit. Id. at 99. It was also determined, for unspecified

reasons, that the special education coordinator and instructional facilitator positions could not be

excessed. Then “‘[t]he committee was given the task by [Ms.] Warley to discuss tasks of counselor

and who on staff could complete those tasks.’” Pl.’s Ex. 10 (2/28/07 LSRT Meeting Minutes). At

the end of the meeting, the LSRT voted to abolish Dr. Jackson’s position and move money from

other spots to make up the deficit. Tr. at 100, June 24, 2008 a.m. (Weathersby). “[W]e eliminated

the other ones through discussion. And but not [sic] necessarily a vote. But it was through

discussion and a consensus, agreed on the other positions.” Id.

               The LSRT met on March 6 and 7, 2007, sans parent/teacher Smith or a quorum, and

finalized the budget for the next school year. Id. at 103-106. A signature sheet that “indicate[d]

review of the final local school planning budget” was executed by each LSRT member at some

unspecified time(s). Id. p. 107; see Pl.’s Ex. 23. Amazingly, signatures were affixed from the parent

members of the LSRT and Ms. Holder, none of whom had participated in the meetings or budget

discussions. Tr. at 108, June 24, 2008 a.m. (Weathersby).

               The process of excessing teachers at J.O. Wilson was not new. In the years between

2005 and 2007, budget reductions caused the school to excess the counselor (Dr. Jackson), the math

resource teacher, two Special Education teachers, the business manager and the data entry clerk, if

not more. Id. at 116.

               A teacher who is being excessed is “suppose[d] to be notified on or before the close

of school.” Id. at 40 (Jackson). No one told Dr. Jackson that she had been excessed from J.O.

Wilson. Id. at 41. Instead, during summer vacation, she received a call and “the person said I’m


                                                -8-
calling to tell you to go to a job fair.” Id.

           I said I think you have the wrong number. She said is this LilliAnn
           Williams? I said yes. She said I’m telling you to go to a job fair on July the
           9th at Randall Highlands.

           I said why would I be going to a job fair? She said were you at school the
           last day? I said yeah, I was at school. She said well, you were excessed.
           And I said excessed? She said yes.

           I said well, when did this happen? She said they took this to the round table
           in March, beginning of March.

Id. Dr. Jackson was reassigned to Seaton Elementary School just before school began in September.

Id. at 43; see Pl.’s Ex. 16 (Reassignment Letter to LilliAnn Williams). She receives the same pay

and benefits and enjoys the same overall seniority, Tr. at 45, June 24, 2008 a.m. (Jackson), except

that she lost her 20-year building seniority at J.O. Wilson and, at the time of the hearing, had only

one year’s building seniority at Seaton. Id. at 58. As a result of being excessed, Dr. Jackson was

“embarrassed and humiliated;” her “blood pressure just shot up” and the doctor “just couldn’t get

that under control for about a month;” she felt “so much stress my hair started coming out.” Id. at

44.

                                      II. APPLICABLE LAW

                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;



                                                  -9-
                       (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
               pursuant to paragraph (1) of this subsection. . . .

28 U.S.C. § 1875.

                                         III. ANALYSIS

               As the finder of fact, the Court found Ms. Warley a very unconvincing witness. She

clearly dissembled on the stand, painted Dr. Jackson in a very harsh light entirely inconsistent with

her insistence that their cordial relationship had never changed, and simply denied that anything

testified to by Dr. Jackson was true. Yet, she could not recall important facts and her antagonism

was palpable, causing great skepticism as to the accuracy of her testimony. The episodes of the

voided performance appraisal and the failure to notify Dr. Jackson on a timely basis of her excessing

spoke volumes about Ms. Warley’s anger that Dr. Jackson had been away on jury duty.

               However, it is clear that Wilson needed to reduce its staff in the spring of 2007 and

that its options were few. The LSRT was improperly constituted and lacked a quorum at its March


                                                -10-
2007 meeting, but those flaws speak to the difficult scope of a principal’s job and lack any

evidentiary tie to Dr. Jackson’s jury service. Ms. Weathersby might view Ms. Warley as a “mentor,”

but her description of the difficult decisions on staffing levels, made each spring by the LSRT, tied

those decisions firmly to a reduced budget and not to Ms. Warley’s direction. Dr. Jackson seeks to

connect, by inference, Ms. Weathersby’s clear admiration of Ms. Warley, Ms. Warley’s clear anger

at Dr. Jackson, and the LSRT’s consensus decision to excess the guidance counselor position.

               This desired leap of logic is insufficient to prove the case. “Unlike Title VII, [the

Juror Act’s] text does not provide that a plaintiff may establish discrimination by showing that [jury

service] was simply a motivating factor.” Gross, 129 S. Ct. at 2349. In Gross, the Court looked to

the statutory text of the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621

et seq., and found that 29 U.S.C. § 623(a) prohibits an employer from discriminating against an

individual “because of such individual’s age.” Id. at 2350. The Court found that the “ordinary

meaning” of “because of” an individual’s age is that age was the “but-for” cause of the adverse

employment action. Id. The language of the Juror Act is very similar to that of the ADEA — it

prohibits an employer from taking adverse action against an employee “by reason of” that

employee’s federal jury service. 28 U.S.C. § 1875(a). Indeed, in defining “because of,” the Gross

Court included the phrases “by reason of” and “on account of” in its definition. 129 S. Ct. at 2350.

Thus, under Gross, Dr. Jackson must prove by a preponderance of the evidence that she was

“excessed” “by reason of” her jury service — that is, that jury service was the “but-for” cause of the

decision to excess her.

                The Court has no doubt that Dr. Jackson’s jury service was a motivating factor

behind Ms. Warley’s acceptance of the loss of a guidance counselor, who otherwise is of particular


                                                -11-
assistance to a principal in dealing with behavior and other student problems. What is lacking is any

evidence that her jury service was “the ‘but-for’ cause,” id., of the decision of the LSRT to excess

the position.

                                       IV. CONCLUSION

                The Court has wrestled with this case for much longer than it wished because of the

credibility differences between Dr. Jackson and Ms. Warley. The Supreme Court’s decision in Gross

v. FBL Financial Services clarifies Dr. Jackson’s burden of proof. In the end, it was the LSRT, not

Ms. Warley alone, that decided to excess the guidance counselor position because of clear budget

limitations. The inferences that Dr. Jackson wants the Court to draw are too attenuated on this

record to satisfy her burden to prove that her jury service was the “but-for” cause of the decision to

excess her position. Her petition [Dkt. # 3, Ex. 2] will be dismissed. A memorializing order

accompanies this Memorandum Opinion.




Date: August 21, 2009                                                 /s/
                                                       ROSEMARY M. COLLYER
                                                       United States District Judge




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