Morris v. McCarthy, No. 14-5074 (D.C. Cir. June 14, 2016)

| Jun 15, 2016 | Daily Developments in EEO Law |

The D.C. Circuit, in a Title VII race-discrimination case, hands down a mixed decision for an Environmental Protection Agency (EPA) employee. It reverses summary judgment on her challenge of a suspension, holding that she was entitled to a trial where There was evidence that the lower-level decision maker who prompted the action made racially-biased remarks, especially one directed at the plaintiff. Yet it affirms dismissal of her termination claim, concluding that the plaintiff failed to exhaust the exacting administrative requirements that apply to federal-sector workers.

Morris v. McCarthy, No. 14-5074 (D.C. Cir. June 14, 2016): The claim commenced with a dispute that Morris had with her supervisor named Tommelleo that began in 2007. The supervisor, in a memo, criticized what she perceived as Morris’s unnecessarily aggressive behavior during a phone conference.

While Morris’s next-level supervisor Higginbotham promised to resolve that matter, Higginbotham also directed Morris not to respond to the memo. After waiting two months without further action, Morris filed an “issue sheet,” which agency employees “submit … to air personnel grievances.” Higginbotham, perceiving the issue sheet as an insubordinate act, recommended that Morris be suspended for seven days. This decision was ordered by an other supervisor, Spears.

Two years later, Higginbotham proposed terminating Morris for further alleged insubordination. This action was delayed six months until August 2010 while the Office of Special Counsel (OSC) investigated Morris’s claim that she was fired for whistleblowing activities.

On appeal, the D.C. Circuit holds that There were genuine issues of material dispute about the suspension. According to the panel, a jury could find that Higginbotham, while not the final decision maker, used Spears as a “cat’s paw” to carry out a racially-motivated, adverse action, and also that the reason proffered for the suspension was not worthy of belief.

Holds the Court, “[w]e base this conclusion on evidence that Higginbotham harbored bias toward white employees, as well as on the weaknesses Morris identifies in EPA’s explanation for the suspension.”

Higginbotham, identified as African-American, reportedly made a practice of referring to other employees in the agency disparagingly as “white women” and “white boys.” Most notably, a witness testified that recalled that “around 2005 or 2006, Higginbotham said of Morris, ‘[T]he little white woman better stand in line . . . . [T]his EPA[;] we can whip her into shape.'”

The D.C. Circuit holds that such slurs could not be swept aside as stale or stray remarks.

“Even if such a statement carries less weight than one made at the time of the suspension, it is nonetheless probative evidence of a supervisor’s discriminatory attitude, at least when it is targeted directly at the plaintiff or is one of a pattern of similar remarks.”

The panel notes that it is aware of no D.C. Circuit case where a trial was denied where the record included allegedly “racially charged statements of the number and tenor of those here.”

Additionally, Morris was able to present factual disputes about the reasons for her suspension.

“Morris, forbidden from responding to the allegations herself and finding her supervisor unwilling to step in, ultimately submitted a human resources complaint protesting her supervisor’s handling of the incident and broader office policies, taking care not to reply directly to the employees who had made the accusations. She was then charged with insubordination for violating the order not to ‘respond.’ Viewed from this perspective, a reasonable jury could be ‘quite suspicious’ of the sincerity of Higginbotham’s insubordination charge.”

Finally, Morris presented facts that Higginbotham’s recommendation caused the suspension, despite that the upper-level supervisor supposedly investigated the matter independently:

“A reasonable juror could determine that Higginbotham’s report colored Spears’s evaluation of the incident at hand. That report contained subjective observations that Morris had ‘difficulty getting along with others,’ was not ‘appropriately diplomatic,’ and had ‘acrimon[ious]’ interactions with colleagues. J.A. 360-61. Spears’s suspension decision repeatedly referenced Higginbotham’s report, and in fact expressly agreed with a portion of her assessment that considered subjective factors.”

So Morris will get to try her Title VII, race-discrimination suspension claim. [The panel affirms summary judgment on an other theory – that the plaintiff was suspended in retaliation for Title VII protected activity – holding, briefly, that There was insufficient evidence that the decision maker was aware that Morris sought EEO counselling.]

But the D.C. Circuit affirms dismissal of the termination claim, though. Federal-sector employees, in contrast to nearly all other employees covered by Title VII, must go through all the administrative steps available to resolve and adjudicate the claim before they may file a claim. (This in part explains why a suit about events that occurred over eight years ago is only now being decided on appeal.)

Here, the plaintiff got dinged on her termination claim because she did not wait a full 120 days after refiling her matter before the Merit Systems Protection Board (MSPB), an agency that adjudicates federal employment disputes.

Morris tried arguing that more than 120 days had passed since she originally filed her claim There with no “judicially reviewable action,” 5 U.S.C. § 7702(e)(1)(B), thus permitting her to file in federal court. But the Court holds that much of that time did not count because Morris had, in the interim, submitted to a dismissal without prejudice while the OSC investigation of her whistleblowing complaint continued.

The Court notes that “Morris invited the MSPB to delay the processing of her appeal when she asked the administrative judge to suspend the proceedings. Having requested this postponement, Morris cannot now argue that the agency failed to promptly adjudicate her claim.”

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