Borgo v. Goldin, No. 98-5503

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtGarland
Citation204 F.3d 251
Parties(D.C. Cir. 2000) Susan M. Borgo, Appellee v. Daniel S. Goldin, Administrator, National Aeronautics and Space Administration, Appellant
Decision Date03 March 2000
Docket NumberNo. 98-5503

Page 251

204 F.3d 251 (D.C. Cir. 2000)
Susan M. Borgo, Appellee
Daniel S. Goldin, Administrator, National Aeronautics and Space Administration, Appellant
No. 98-5503
Argued September 13, 1999
Decided March 3, 2000

Appeal from the United States District Court for the District of Columbia(No. 95cv00155)

Wyneva Johnson, Assistant U.S. Attorney, argued the cause for appellant. With her on the briefs were Wilma A. Lewis, U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Douglas B. Huron argued the cause for appellee. With him on the brief was Richard A. Salzman.

Before: Edwards, Chief Judge, Williams, and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland.

Page 252

Garland, Circuit Judge:

Alleging violations of Title VII of the Civil Rights Act of 1964, Susan Borgo sued her former employer, the National Aeronautics and Space Administration (NASA), for firing her from her position at the agency. The case was prosecuted on the theory that NASA had mixed motives for Borgo's termination. Concluding that NASA was at least partially motivated by a desire to retaliate against Borgo for protected activity, the district court granted summary judgment for plaintiff. Further concluding that Borgo would not have been fired in the absence of the retaliatory motive, the court granted her motion for judgment as a matter of law on her request for a damages remedy. Because we conclude that NASA's motivation is a disputed issue of fact that a reasonable jury could decide either of two ways, we reverse and remand for a trial on the merits.


On October 18, 1992, NASA hired Borgo as a probationary employee to work in its Office of Small and Disadvantaged Business Utilization. When hired, she was expected to serve primarily as Executive Secretary of the NASA Minority Business Resources Advisory Committee (NMBRAC). But Borgo's relationships with her superiors soon deteriorated.On February 8, 1993, she was removed as Executive Secretary of NMBRAC because of tension between her and NMBRAC's chairman. Tension also developed between Borgo and her supervisor, Ralph Thomas. Thomas criticized plaintiff for shortcomings "that included missed deadlines, unexplained absences, and a generally inappropriate attitude in dealings with superiors." Borgo v. Goldin, No. 95cv0155, slip op. at 2 (D.D.C. Aug. 21, 1996).1

On April 29, 1993, Thomas sent Borgo a memorandum complaining that she had involved his office in a governmentwide conference without informing him. Thomas wrote that he was "very displeased that you did not tell me about this meeting until you had already sent out letters announcing it.""In the future," he instructed, "please inform me of any and all affairs like this" at their inception. "It would have been very embarrassing to me to have heard about a governmentwide meeting sanctioned by my office which I knew nothing about." J.A. at 127.

On the following Monday, May 3, 1993, Borgo sent Thomas a response. Her letter consisted of five paragraphs on two pages. See J.A. at 31-32. The first paragraph characterized Thomas' April 29 memorandum as ordering that "all professional actions on my part must be cleared by you before I may proceed." The second noted that she had received her prior employer's "highest award for performance," and that she had "made it perfectly clear in [her] employment interview" with NASA that she "would not accept a job in a typical bureaucratic operation." She was unable, she said, "to be idle and waste taxpayers' dollars while wait[ing] for specific work assignments." The third paragraph complained that she had "not been assigned any action items" during the past two weeks, "ha[d] not been included as a participate [sic] in any outreach efforts," and had taken action on the conference because she "had little else to do." The letter's penultimate paragraph, central to this litigation, stated in relevant part as follows:

It is my opinion, that if I, a white female, was yourmanager, and I did not include you, an African-Americanmale, as a full member of the team, and treat you as acompetent professional, that, by now, I would have beenseverely reprimanded or fired by senior management.

Id. at 32.

On May 25, 1993, Thomas sent Borgo a termination letter, stating that she was

Page 253

being discharged as a result of "unacceptable conduct and performance during your probationary period." J.A. at 128. He wrote that there were "serious deficiencies in your attitude, behavior and conduct which adversely impact the performance of your assigned duties and responsibilities." Thomas noted Borgo's "inability to effectively interact and work with the Chairman" of NMBRAC, her "inability to conform to established deadlines on work assignments," and her "general negative behavior and attitude in the office." He listed specific examples of "dates/deadlines which you have missed that have adversely impacted the office," as well as multiple instances of unexplained absences from work. He further cited examples of behavior "bordering on insubordination," including continuing to work on NMBRAC matters after having been expressly directed not to do so, as well as initiating without authorization the government-wide conference discussed above. With respect to the latter, Thomas wrote: "Despite my counseling to you on this matter, your letter to me on May 3, 1993 still did not indicate that you understood the necessity that I be kept fully informed and would cooperate and give me notice of any future meetings." Id. at 128-29.

Plaintiff challenged her termination on two fronts. First, before the Merit Systems Protection Board (MSPB) she charged that NASA had retaliated against her for whistle blowing.2 At the MSPB hearing on those charges, Thomas testified regarding his reaction to Borgo's May 3, 1993 letter and his reasons for firing her. See J.A. at 119-20. He described the letter as a "purported answer" to his April 29 memorandum. It was "[p]urported," he said, because "it doesn't answer it." Referring to the government-wide conference, he stated: "I told her, first of all, this was a good idea, but she should tell me about things as important as this. And she writes me back pretty much telling me where to go."Counsel then asked for clarification, and Thomas explained that he interpreted the letter as a declaration that plaintiff was going to do as she pleased. It was, he said, "full of things that were inaccurate and were not addressing my memo at all." Id.

In an exchange that would later prove pivotal in the Title VII litigation, counsel read the penultimate paragraph of the May 3 letter aloud and then asked:

Q: Did you form any opinion about that statement? THOMAS: Well, yes. In this whole--during her wholetenure, I had never mentioned her race at all, and, if anything it was the other way around. This letter, and the reason I think you saw a lot of emotion coming out--and I apologize to you Mr. Gorman--but that was how I felt while reading the letter. It was the straw that broke the camel's back. I mean, after all of this, after all--after not producing any substantive thing in the office and just giving everyone an overall hard time and making excuses for everything she did that she was supposed to do, but didn't do, just the whole--and then this, you know, and all I did was tell her--let me know about activities as important as this, she writes me a letter like this. That--in my mind, that was it.

Q: When you say that was it, how did you regard this language? Did you regard it as misconduct in any way?

THOMAS: Yes, misconduct, in subordinate .

J.A. at 122-23 (emphasis added). The MSPB did not decide Borgo's case until February 3, 1998. On that date it rejected

Page 254

her allegations, ruling that NASA had not retaliated against her for whistleblowing, but rather had discharged her for the reasons stated in Thomas' May 25, 1993 termination letter.

In the meantime, Borgo had filed suit in United States District Court. There, she alleged that NASA had discriminated against her because of her race and sex, and then had retaliated for her complaint of discrimination by discharging her, all in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e-5, 2000e-16. Plaintiff moved for partial summary judgment on the retaliation claim. Applying Title VII's framework for analyzing allegations of mixed motives on the part of an employer, see 42 U.S.C. 2000e-2(m), the district court granted Borgo's motion. Relying on Thomas' MSPB testimony, the court held that no reasonable juror could conclude other than that "retaliation was at least part of the defendant's motivation for firing her."Borgo, slip op. at 13.

Thereafter, the case proceeded to trial on the question of remedy, applying Title VII's rules for determining appropriate remedies in mixed-motive cases.3 NASA contended that even if retaliation had been one motive for terminating Borgo, under Title VII the court could not "award damages or issue an order requiring ... reinstatement" because the agency "would have taken the same action in the absence of [that] impermissible motivating factor." 42 U.S.C. 2000e-5(g)(2)(B). At the end of the testimony of Ralph Thomas, NASA's first witness, the district court took the case from the jury and entered judgment for plaintiff as a matter of law. "No reasonable juror could conclude," it held, "that NASA would have decided to fire [plaintiff], even absent retaliation." 2/3/98 Trial Tr. at 47 (J.A. at 313).


We review de novo both the district court's decision to grant summary judgment pursuant to Federal Rule of Civil Procedure 56, and its decision to grant judgment as a matter of law pursuant to Rule 50(a). See Hall v. Giant Food, Inc., 175 F.3d 1074, 1076 (D.C. Cir. 1999) (summary judgment);Holbrook v. Reno, 196 F.3d 255, 259 (D.C. Cir. 1999) (judgment as a matter of...

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