Gilliard v. McWilliams
| Decision Date | 23 July 2019 |
| Docket Number | Civil Action No.: 16-2007 (RC) |
| Parties | STEPHANIE A. GILLIARD, Plaintiff, v. JELENA MCWILLIAMS, Chairman, Federal Deposit Insurance Corporation, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Stephanie Gilliard filed this lawsuit against the Chairman of the Federal Deposit Insurance Corporation ("FDIC") and other FDIC employees, alleging racial discrimination, a hostile work environment, retaliation, and other claims. Ms. Gilliard and the FDIC eventually agreed on a settlement, and the case was dismissed with prejudice. Now, Ms. Gilliard claims that the public availability of the case has impeded her employment opportunities, so she has asked the Court to seal the entire action. As the Court will explain below, however, there is no legal basis for sealing a case under these circumstances. Ms. Gilliard's motion to seal is therefore denied.
The Court presumes familiarity with its prior opinions in this matter. See Gilliard v. Gruenberg (Gilliard I), 302 F. Supp. 3d 257 (D.D.C. 2018); Gilliard v. McWilliams (Gilliard II), 315 F. Supp. 3d 402 (D.D.C. 2018). This opinion therefore provides only the facts and allegations that are relevant to the pending motion.
Ms. Gilliard worked at the FDIC as a Senior Administrative Specialist ("SAS") in the Administrative Management Section ("AMS"), Strategic Planning, Budget and Reporting Branch ("SPBR") of the Division of Risk Management Supervision ("RMS"). Am. Compl. ¶ 4, ECF No. 15; Gilliard Aff. at 1, Defs.' Mot. to Dismiss, Ex. A, ECF No. 18-1. In this lawsuit, Ms. Gilliard asserted that her time at the FDIC was marked by consistent "harassment, discrimination, infliction of severe emotional distress, threats, disparate treatment and more from her supervisors." Pl.'s Mot. for Protective Order at 3, ECF No. 46. She alleged that she was denied several promotions, lost employment responsibilities, received unfavorable performance reviews, and was exposed to a generally hostile work environment, both because of her race and out of retaliation for submitting claims to the Equal Employment Office ("EEO"). See generally Am. Compl.
In an attempt to gather evidence in support of her EEO claims, Ms. Gilliard began to surreptitiously record conversations with two of her former supervisors, Janice Butler and Phillip Mento. 2d Am. Compl., ECF No. 53. Ms. Butler and Mr. Mento eventually learned of the recordings, though, and they ordered Ms. Gilliard to stop—going as far to threaten disciplinary action if she continued. See id. ¶¶ 45, 67-68. Ms. Gilliard believed that this order was given as further retaliation for engaging in protected EEO activity and constituted additional evidence of a hostile work environment. See id. ¶ 69. She therefore filed suit in this Court, alleging claims of racial discrimination, a hostile work environment, retaliation and reprisal for protected EEO activity, prohibited personnel practices, and intentional infliction of extreme emotional and physical distress. See id. ¶¶ 10-98.
After filing suit, Ms. Gilliard was instructed by Benjamin Vaughan, her then-supervisor at the FDIC, to attend an investigatory interview about her allegations. See Order to Participatein Investigatory Interview, Defs.' Opp'n to Pl.'s Mot. for Protective Order, Ex. U, ECF No. 52-21. During that interview she was ordered to provide copies or transcripts of all audio recordings that she made of FDIC employees without their permission. See Administrative Inquiry at 1-4, Defs.' Opp'n to Pl.'s Mot. for Protective Order, Ex. V, ECF No. 52-22; see also Order to Provide Audio Files, Defs.' Opp'n to Pl.'s Mot. for Protective Order, Ex. W, ECF No. 52-23. The FDIC provided three reasons for this demand for the recordings: (1) to perform a complete investigation of Ms. Gilliard's allegations against Mr. Mento and Ms. Butler, (2) because the FDIC suspected that Ms. Gilliard had continued to make recordings in defiance of her superiors' prior order, and (3) because the recordings might contain confidential information about FDIC employees. See Gilliard II, 315 F. Supp. 3d at 408; see also Second Order to Produce Recordings at 2, Defs.' Opp'n to Pl.'s Mot. for Protective Order, Ex. X, ECF No. 52-24. Ms. Gilliard refused to hand over the recordings, arguing that she had a right to make the tapes, that the FDIC was not entitled to them outside of the normal course of discovery, that the FDIC had provided her with a timetable that was "ridiculous" and "oppressive," and that the FDIC had requested the tapes only to harass her and retaliate against her for bringing her EEO claims. Pl.'s Mot for Protective Order at 1-12.
In an attempt to prevent the FDIC from obtaining the recordings or retaliating against her for failing to release them, Ms. Gilliard asked the Court for a protective order, temporary restraining order, and preliminary injunction. See Pl.'s Mot. for Protective Order; Pl.'s Mot. for TRO and Prelim. Inj., ECF No. 47. The Court denied those motions, however. See Gilliard II, 315 F. Supp. 3d. at 419. The Court concluded that Ms. Gilliard had failed to show the good cause necessary for a protective order. Id. at 412. And with respect to the motion for temporary restraining order and preliminary injunction, the Court held that she had not established that shewas likely to suffer irreparable harm, or that the "balancing of the equities and public interest considerations tip[ped] in her favor." Id.
Following the Court's decisions, the parties entered into a settlement agreement, voluntarily dismissing Ms. Gilliard's complaint with prejudice. But months later, Ms. Gilliard filed the present motion to seal the entire docket in the case and "the decision regarding the tape recordings." Pl.'s Mot. to Seal, ECF No. 69. In that motion, she argues that her attempts to become a federal employee have been hindered and that offers of employment have been rescinded after Google searches of her name revealed the events of this case, namely her surreptitious recordings of her co-workers. Id.
Any decision about a party's motion to seal must first begin by "recognizing this country's common law tradition of public access to records of a judicial proceeding." United States v. Hubbard, 650 F.2d 293, 314 (D.C. Cir. 1980). "Access to records serves the important functions of ensuring the integrity of judicial proceedings in particular and of the law enforcement process more generally." Id. However, this tradition of access to judicial records is not without its exceptions. "Every court has supervisory power over its own records and files" and access to those documents may be denied where they might become "a vehicle for improper purposes." Nixon v. Warner Commc'ns, 435 U.S. 589, 598 (1978).
Thus, a "district court has wide discretion" in determining whether to seal a record in its entirety or in part. EEOC v. Nat'l Children's Ctr., 98 F.3d 1406, 1410 (D.C. Cir. 1996). When making such a determination, the "starting point" is "a 'strong presumption in favor of public access.'" Id. at 1409 (quoting Johnson v. Greater Southeast Cmty. Hosp. Corp., 951 F.2d 1268, 1277 (D.C. Cir. 1991). The D.C. Circuit has then identified "six factors that might act toovercome this presumption: (1) the need for public access to the documents at issue; (2) the extent of previous public access to the documents; (3) the fact that someone has objected to disclosure, and the identity of that person; (4) the strength of any property and privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced during the judicial proceedings." Id. at 1409.
Here, Ms. Gilliard does not invoke any of these six factors expressly, but she claims that there is "good cause" for sealing the case, which the Court takes as an implied assertion that the six factors weigh in her favor. Pl.'s Mot. to Seal at 1. The FDIC opposes Ms. Gilliard's motion, arguing that of the six factors, only the third—the fact that someone has objected to disclosure—helps her. See Defs.' Opp'n to Pl.'s Mot. to Seal at 10, ECF No. 70. As explained below, the Court agrees with the FDIC.
The first factor is a product of the presumption just mentioned—the idea that "the public should have access to court proceedings to 'ensur[e] the integrity of judicial proceedings in particular and of the law enforcement process more generally.'" United States ex rel. Durham v. Prospect Waterproofing, Inc., 818 F. Supp. 2d 64, 67 (D.D.C. 2011) (quoting Hubbard, 650 F.2d at 315). That presumption "is strongest when 'the documents at issue [are] . . . specifically referred to in a trial judge's public decision.'" Zapp v. Zhenli Ye Gon, 746 F. Supp. 2d 145, 148 (D.D.C. 2010) (alteration in original) (quoting Nat'l Children's Ctr., 98 F.3d at 1409). That said, "documents filed with the court or introduced into evidence . . . often have a private character, diluting their role as public business." Id. (omission in original) (quoting Nat'l Children's Ctr., 98 F.3d at 1409). Indeed, public access may be denied "to protect trade secrets, or the privacy and reputation of victims of crimes, as well as to guard against risks to national security interests,and to minimize the danger of an unfair trial by adverse publicity." Hubbard, 650 F.2d at 315-16 (internal citations omitted); see also Durham, 818 F. Supp. 2d at 67; Hamiduva v. Obama, No. 08-1221, 2015 WL 5176085, at *4-5 (D.D.C. Sept. 3, 2015).
Ms. Gilliard seems to argue that this first factor weighs in her favor here because "[d]iscovery, whether civil or criminal, is essentially a private process [between] the litigants[,] and the courts assume that the sole purpose of discovery is to assist trial preparation." Pl.'s Mot. to Seal at 1 (quoting United States v. Anders...
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