Coclough v. Akal Sec.

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JANICE G. COCLOUGH, Plaintiff, v. AKAL SECURITY, INC., et al., Defendants.

Civil Action No. 16-2376 (BAH)

United States District Court, District of Columbia

March 13, 2022

MEMORANDUM OPINION

BERYL A. HOWELL Chief Judge

Plaintiff Janice Coclough brings this action under Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), see 42 U.S.C. § 2000e et seq., and the District of Columbia Human Rights Act (“DCHRA”), see D.C. Code § 2-1401 et seq., against her former employer, Akal Security Inc. (“Akal”) and former supervisors Lois Epps (“Epps”) and Josiah Eaves (“Eaves”). See generally Second Amended Complaint (“2^nd Am. Compl.”), ECF No. 24. She alleges discrimination on the bases of her sex and sexual orientation (Counts IV and V), retaliation for having engaged in protected activity (Counts II and VII), and sexual harassment (Count VI). Id.^[1]

Pending before the Court are defendants' motion for summary judgment on all counts and plaintiff's motion to seal certain exhibits submitted in opposition to defendants' motion. For the reasons discussed below, both motions are granted.

I. FACTUAL BACKGROUND

The factual background to this lawsuit has been summarized in prior decisions in this and a related case. See Coclough v. AKAL Sec. Inc., No. 16-2376, 2017 U.S. Dist. LEXIS 234283, at *1-2 (D.D.C. May 15, 2017); Coclough v. Akal Sec., Inc., 303 F.Supp.3d 123, 126-30 (D.D.C. 2018) (granting defendants' motion to dismiss Title VII gender discrimination and sexual harassment claims (Counts I andIII) for, inter alia, failure to exhaust administrative remedies, and denying dismissal of Title VII retaliation claim (Count II), DCHRA claims (Counts IV, V, VI and VII) and Whistleblower Act claim (Count VIII)); Coclough v. District of Columbia, No. 19-2317, 2020 U.S. Dist. LEXIS 169920, at *1-2 (D.D.C. Sep. 16, 2020). Set out below is a description of the facts, based on the record developed over three years of discovery.^[2]

From this record, defendants have collated 133 facts, supported by citations to the record, in Defendants' Statement of Undisputed Material Facts in Support of Motion for Summary Judgment (“Defs.' SMF”), ECF No. 55-1. Plaintiff has done the same, see Plaintiff's Response to Defendants' Statement of Undisputed Material Facts (“Pl.'s Resp. SMF”), ECF No. 60-1 at 1-18, relying on over 900 pages of undifferentiated exhibits in a single docket entry containing deposition testimony of plaintiff and other witnesses, see Plaintiff's Memorandum of Points and Authorities in Opposition to Defendants' Motion for Summary Judgment (“Pl.'s Opp'n”), ECF No. 60, Pl.'s Exs. B-I, ECF No. 60-1, and nearly 700 pages of documents filed on CM/ECF in wholly redacted form-meaning that they are literally blank, see id., Pl.'s Exs. J-U, X-Z, AA-GG, II-MM, ECF No. 60-1.

A. Record Relied Upon In Resolving Pending Summary Judgment Motion

As a threshold matter, the record on summary judgment is subject to special procedural rules to facilitate identification and assessment of genuine issues of material fact requiring trial. See, e.g., Fed.R.Civ.P. 56(e)(2) (“If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion[.]”); D.D.C. LCvR 7(h)(1) (“In determining a motion for summary judgment, the Court may assume that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion.”); Standing Order at ¶ 5(f), ECF No. 36 (stating “[t]his Court strictly enforces Local Civil Rule 7(h) when resolving motions for summary judgment and will ‘assume that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion.'”).

Further, to ensure transparency as to the bases for parties' arguments and judicial decisions, documents may only be submitted under seal with court approval, including any documents considered by a party as confidential or subject to a protective order. See, e.g., D.D.C. LCvR 5.1 (h)(1) (“Absent statutory authority, no case or document may be sealed without an order from the Court.”); Standing Order at ¶ 5(g) (requiring along with motion to seal any document, submission of “a redacted version, suitable for filing on the public docket”); Stipulated Protective Order at 6-7, ECF No. 40 (outlining procedure for filing Confidential Information and requiring “a simultaneous motion and accompanying order pursuant to LCvR 5.1(h)”). As noted, plaintiff's response to defendants' proffered facts and arguments rely, in part, on evidence not accessible to the public or defendants on CM/ECF because only blank pages were filed, and thus defendants urge these improperly “sealed” through complete redaction pages be disregarded and the corresponding facts deemed admitted. See Defendants' Reply in Support of Motion for Summary Judgment (“Defs.' Reply”) at 2-4, ECF No. 61.

After being directed to show cause explaining why each of plaintiff's completely redacted exhibits should remain shielded from public view, see Min. Order (Jan. 21, 2022), plaintiff explained that 27 of her 39 exhibits bore defendants' “Confidential” designation-a designation plaintiff does not challenge-and for this reason she filed these exhibits in wholly redacted form, Pl.'s Mem. of P. & A. in Supp. of Pl.'s Combined Resp. to Show Cause and Opposed Mot. to Seal Exhibits Nunc Pro Tunc to Sept. 25, 2021 at 2, ECF No. 63. Belatedly, plaintiff's counsel moved to seal Exhibits J-U, X-Z, AA-GG, II-MM nunc pro tunc to September 25, 2021, see Pl.'s Combined Resp. to Show Cause and Opposed Mot to. Seal Exhs. Nunc Pro Tunc to Sept. 25, 2021, ECF No. 62, which motion remains pending.

In opposing plaintiff's motion to seal, defendants indicate that plaintiff did not provide unredacted copies of her blank exhibits upon request and that, if plaintiff's noncompliance with the local rules, the Standing Order and Stipulated Protective Order were to be excused, defendants would suffer significant prejudice, having been denied an opportunity to review plaintiff's exhibits and to determine the sufficiency of information contained therein as presented in support of plaintiff's claims. See Defs.' Opp'n to Pl.'s Combined Resp. to Show Cause and Opposed Mot. to Seal Exhs. Nunc Pro Tunc to Sept. 25, 2021 at 2-4, ECF No. 65. Further, if briefing were reopened at this late stage, defendants would face a substantial hardship, particularly given the time and expense already devoted to this case. See id. at 3-4.

The Court accepts the parties' representation that defendants designated Exhibits J-U, X-Z, AA-GG, II-MM “Confidential Information, ” and, thus, that plaintiff should have filed these exhibits under seal with a contemporaneous motion seeking permission to file the documents under seal, along with redacted versions available on the public docket. This did not occur and therefore plaintiff failed to comply with applicable procedural rules.^[3] Indeed, plaintiff has managed to defy this Court's Standing Order, Local Civil Rule 5.1(h)(1), and the parties' Stipulated Protective Order, leaving defendants at a disadvantage. Insofar as plaintiff supplied Bates-stamp numbers for her exhibits, defendants theoretically could have identified the exhibits to which plaintiff referred in her briefing and SMF, but this method of litigating has foisted upon defendants the task of ferreting out which exhibits, or portions of exhibits, plaintiff relies upon rather than highlighting the information she presents in support of her claims.

Plaintiff's flouting of the rules left the Court at a disadvantage, too. If the Court had not ordered the parties to submit courtesy copies of their filings, see Min. Order (July 8, 2021), only the exhibits on CM/ECF-containing hundreds of blank pages-would have been accessible to and reviewable by the Court. Unlike the parties, the Court does not have access to all the discovery materials and, therefore, could not have identified the actual text of plaintiff's exhibits using the Bates-stamp numbers applied by the parties.

Review of plaintiff's courtesy copy of her opposition, which included unredacted exhibits, reveals that many of plaintiff's exhibits contain sensitive information that should not be available on the public docket. Rather than parse which exhibits or portions of exhibits should be sealed, the plaintiff's motion to seal will be granted, with Exhibits K-U, X-Z, AA-GG, II-MM permitted to be placed under seal. Counsel's lapses are not excused, however. Other than the deposition testimony plaintiff has submitted, the Court will consider only those exhibits or portions of exhibits on which defendants also rely: (1) Collective Bargaining Agreement, see Defs.' Mem., Ex. A, Dep. of Janice Coclough (“Pl.'s Dep.”), Ex. 1, ECF No. 55-3 at 68-102; Pl.'s Opp'n, Ex. J; (2) July 1, 2016, Report of Investigation, see Defs.' Mem., Ex. C, Dep. of Richard Parris (“Parris Dep.”), Ex. 1, ECF No. 55-5 at 27-79; Pl.'s Opp'n, Ex. LL;^[4] (3) Plaintiff's June 24, 2016, letter of appeal, see Pl.'s Dep., Ex. 11, ECF No. 55-3 at 175-76; Pl.'s Opp'n, Ex. BB; (4) Plaintiff's June 23, 2016, EEOC charge of discrimination, see Pl.'s Dep., Ex. 14, ECF No. 55-3 at 184-85; Pl.'s Opp'n, Ex. CC; and (5) records pertaining to comparator CSO M.J., see Defs.' Mem., Ex. B, Decl. of Libby Henninger (“Henninger Decl.”), Ex. 12, ECF No. 55-4 at 96-104; Pl.'s Opp'n, Ex. P.

B. Akal's 12th Circuit Contract

Akal “provides security services through contracts with government...