United States v. David Roach

108 F.3d 1477, 323 U.S. App. D.C. 448, 1997 WL 143896
CourtCourt of Appeals for the D.C. Circuit
DecidedJuly 23, 1997
Docket96-3119, 96-3120
StatusPublished
Cited by21 cases

This text of 108 F.3d 1477 (United States v. David Roach) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. David Roach, 108 F.3d 1477, 323 U.S. App. D.C. 448, 1997 WL 143896 (D.C. Cir. 1997).

Opinion

Opinion of the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge:

Two senior officials of the District of Columbia Department of Corrections appeal their criminal contempt convictions for violating a district court order prohibiting retaliation against Department employees who complain of sexual harassment. Finding sufficient evidence that appellant David Roach violated the court order by firing Officer Dorothy Smith after she complained of harassment, and neither procedural nor constitutional error, we affirm his conviction. However, because the district judge sentenced Roach to 180 days in prison — the maximum permissible term — without adequately considering relevant sentencing factors, we remand for resentencing. We reverse appellant Bernard Braxton s conviction because the record does not support the district judge’s finding that Braxton’s recommendation of disciplinary proceedings against Smith was retaliatory.

I

After a jury in Neal v. Director, District of Columbia Dep’t of Corrections, Civ. A. No. 93-2420, 1995 WL 517244 (D.D.C. Aug.9, 1995), found that the Department of Corrections had engaged in widespread sexual harassment and retaliation against female corrections officers in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1994), the district court permanently enjoined Department employees from committing further acts of harassment or retaliation. Copies of the court’s order were distributed in August 1995 to Department officials, including Roach, then Warden of the Department’s Maximum Security Facility, and Braxton, then Deputy Director for Institutions. Roach and Braxton each signed acknowledgments that they had received and read the order.

In April 1995, while the Neal litigation was pending, Dorothy Smith, a corrections officer at the Maximum Securiiy Facility, lodged a sexual harassment complaint against fellow officer Mark Nutter. Smith claimed that Nutter, with whom she had had a personal relationship, was making unsolicited sexual advances and had, on one occasion, followed her into a bathroom. A fact-finding committee of three Department employees specially trained to investigate claims of sexual harassment found insufficient evidence to support Smith’s allegations, but recommended that both Smith and Nutter receive counseling.

A month later, Smith again complained about Nutter. Recalling an earlier incident, Smith claimed that Nutter, summoning her to the prison showers, pulled her in front of a nude inmate, Maurice Murray, and made a rude comment about Murray’s appearance. Reporting the incident to her supervisor, Smith wrote that “Nutter’s action was both humiliating and disrespectful to inmate Murray and myself.” Braxton’s assistant, Patricia Johnson, selected a two-member committee to investigate the claim, which Braxton *1480 approved. Believing that Smith alleged that Nutter had engaged in sexual misconduct against an inmate — not that he had sexually harassed Smith — Johnson chose not to select the committee members from the roster of officials trained to handle eases involving sexual harassment of employees.

Having initially confirmed Smith’s account of the shower incident to her supervisor, inmate Murray recanted before the committee, claiming that the confrontation with Nutter never happened. After hearing from Smith, Nutter, and Murray, the fact-finding committee found insufficient evidence to support Smith’s complaint. Concluding that Smith’s allegation “stem[med] from [her] failure to make a valid case of sexual harassment against Officer Nutter,” the committee recommended that Smith be disciplined because she had now “forwarded two unsupported and unfounded sexual harassment complaints.”

Braxton sent the committee’s report to Roach, directing him to initiate disciplinary action against Smith. Pursuant to Department regulations requiring that a separate “proposing official” determine what discipline — ranging from temporary suspension to removal — Smith should receive, Harold Nelson, an acting Deputy Warden, signed a memorandum recommending that Smith be fired for her “blatant efforts to malign the character [and] creditability [sic] of Officer Mark Nutter.”

Facing discharge and exercising her rights under Department regulations, Smith requested the appointment of a “disinterested designee” to investigate the Department’s charge that she had fabricated her claims against Nutter. After reviewing the reports of the two fact-finding committees and affidavits from corrections officers and inmates supplied by Smith’s lawyer, the disinterested designee reported to Roach that she “was unable to draw the same firm conclusion as did the [second committee] that Officer Smith’s allegation of sexual misconduct was lodged against Officer Nutter in retaliation” for the failure of her earlier complaint, and that Smith should accordingly not be terminated.

Roach rejected the designee’s report, instead adopting the recommendation, purportedly written by Nelson, that Smith be fired. On September 12, 1995, two weeks after acknowledging that he had received and read a copy of the court order in Neal, Roach discharged Smith for “inexcusable neglect of duty.” In a memorandum to the personnel office, Roach wrote that “Officer Smith’s actions clearly demonstrate that her filing of a second sexual harassment charge against her former personal companion was retaliatory in nature and designed to injure Officer Nutter’s creditability [sic] and character within the ... Department.”

Smith appealed her termination to Brax-ton. After reviewing the affidavits supplied by Smith’s lawyer and the disinterested des-ignee’s recommendation, Braxton reversed Roach’s decision, ordering Smith reinstated with back pay on October 11,1995.

While her disciplinary case was pending before Roach, Smith reported to her supervisor that another officer, Michael Konyn, had told two inmates that she would be “fired in thirty days” and that all she did on the job was “walk the tiers, cut down strings, and shake her big butt.” Interpreting Smith’s complaint as one of sexual harassment, her supervisor forwarded a report to Braxton, who in turn requested that a third fact-finding committee investigate. The committee interviewed Officer Konyn, who denied having made any statements about Smith, and the two inmates, each of whom testified that Konyn had said Smith would be fired. The committee never asked the inmates whether Konyn had made the “big butt” comment. Finding “no probable cause to sustain the complainant’s allegation of Sexual Harassment,” the committee’s report recommended that Smith “receive corrective and or/adverse [sic] actions for providing misleading and inacurate [sic] information,” and that Konyn “receive counseling relative to Inmate/Staff relationships.” Concurring with the committee’s recommendations, Braxton directed Roach on October 16, 1995, to initiate disciplinary proceedings against Smith once again.

In November 1995, plaintiffs in Neal moved the district court to order Roach and *1481 Braxton to show cause why they should not be held in criminal contempt for taking disciplinary action against Smith.

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Cite This Page — Counsel Stack

Bluebook (online)
108 F.3d 1477, 323 U.S. App. D.C. 448, 1997 WL 143896, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-david-roach-cadc-1997.