Morris v. Jackson

• Decision Date: 12 February 2014
• Docket Number: Civil Action No. 11-701 (RMC)
• Parties: SUSAN MORRIS, Plaintiff, v. LISA P. JACKSON, Administrator, Environmental Protection Agency, Defendant.
• Court: U.S. District Court — District of Columbia

SUSAN MORRIS, Plaintiff, v. LISA P. JACKSON, Administrator,Environmental Protection Agency, Defendant.

Civil Action No. 11-701 (RMC)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Date: February 12, 2014

OPINION

Susan Morris, a White woman, is a former employee of the Environmental Protection Agency (EPA). She complains of retaliation and discrimination based on race and gender relating to a seven-day suspension. The suspension was recommended by Ms. Morris's immediate supervisor, Karen Higginbotham, Director, Office of Civil Rights, and approved by Deputy Chief of Staff Ray Spears. EPA moves for summary judgment. Because Ms. Morris barely presents a prima facie case and ultimately fails to prove that EPA's legitimate non-discriminatory reason for her suspension was a pretext for discrimination, summary judgment will be entered for EPA.

I. FACTS

Ms. Morris was employed by the federal government for over thirty years. She spent the last ten years of her career with EPA in a GS-15 level position. She joined EPA's Office of Civil Rights in 2001 as a Team Leader for the agency's Workforce Diversity and Employment Program. Her position was later reestablished as Assistant Director for Affirmative Employment and Diversity.

During her time at EPA, Ms. Morris received outstanding ratings from her supervisors as well as various awards. She was given a Bronze Award for Commendable Service in 2001 and, in 2004, 2005, and 2006, she was nominated by her staff for the award as Manager of the Year.

As the Assistant Director for Affirmative Employment and Diversity, Ms. Morris was responsible for administering an evaluation program to monitor EPA's compliance with civil rights laws, policies, and procedures. Her immediate supervisor was Karen Higginbotham, Director of the Office of Civil Rights.

On April 29, 2008, Ms. Morris was suspended without pay for seven days. She alleges that the suspension was due to a bogus charge that she engaged in insubordination and that the real reason for her suspension was race and gender discrimination and retaliation for prior protected conduct in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq.

The charge of insubordination arose from Ms. Morris's management of a diversity program for gay and lesbian employees at EPA. Discrimination based on sexual orientation or parental status is prohibited by Executive Order 11478 and by an EPA Policy Statement that implemented the Executive Order in the agency. See Pl. Ex. 10 [Dkt. 36-10], Executive Order; Pl. Ex. 12 [Dkt. 36-12], 2009 EEO Policy Statement.¹ In support of the Executive Order and the EPA Policy Statement, Ms. Morris established a Diversity Program for the specific purpose of addressing gay and lesbian diversity concerns. Ms. Morris hired Jerome King to serve as Diversity Program Manager. EPA field offices founded a Gay and Lesbian Advisory Council to advise Mr. King. Nancy Tommelleo served as the national chair of the Council. At that time,Ms. Tommelleo was Acting Chief, Office of Air, Toxics and General Law in EPA Region IV, headquartered in Georgia.

Ms. Tommelleo wanted EPA to implement a recruitment plan for gay, lesbian, bisexual, and transgender employees. See Pl. Ex. 1 [Dkt. 36-1], Morris Decl. ¶ 39. In addition, she and other members of the Council proposed that the Council change its name to "Gay, Lesbian, Bisexual, and Transgender Advisory Council." Ms. Morris disagreed. In her view (1) Title VII did not include sexual orientation; (2) Executive Order 11478 and related EPA policy did not require affirmative action; and (3), therefore, the name of the Council should not be changed. Pl. Ex. 13 [Dkt. 36-13], Morris Dep. at 133-42.

Unable to resolve their difference of opinion, Ms. Tommelleo asked to be fully heard on the issue of renaming the Council. A telephone conference was held on August 29, 2007, and Ms. Tommelleo, Mr. King, Ms. Morris, and Ms. Higginbotham participated. During the teleconference, Ms. Morris repeated that she did not believe that "bisexual" should be included in the title of the advisory council, and Ms. Tommelleo disagreed.² Ms. Higginbotham decided that the name of the Council would be changed to "Gay and Lesbian and Other Sexual Orientation Advisory Council." Def. Ex. 1,³ Higginbotham Decl. ¶ 6; accord Def. Ex. 8, Issue Sheet, Attachments 5 & 6, Email from Tommelleo 10/12/07.

Subsequently, on September 21, 2007, Karen Higginbotham received via email a memorandum from Mary Wilkes, Regional Counsel, EPA Region IV. Def. Ex. 3, WilkesMemorandum. The Wilkes Memorandum complained that Ms. Morris had behaved unprofessionally during the telephone call:

I am writing to voice my deep concern and objection to the unacceptable behavior shown by your Assistant Director for Employment and Diversity, Susan Morris, toward Ms. Nancy Tommelleo, of my staff, during a conference call on August 29, 2007. . . . I am deeply troubled that a fellow agency senior manager treated an employee in the manner Ms. Tommelleo was treated, whereby Ms. Morris launched a personal attack upon her simply because Ms. Morris disagreed with positions that Ms. Tommelleo was advancing on behalf of the National Advisory Council.

Wilkes Memorandum at 1-2. Ms. Wilkes copied the following EPA officials on the email: Ray Spears, Deputy Chief of Staff; Russell Wright, Acting Deputy Regional Administrator for Region IV; and Laura Yoshii, Deputy Regional Administrator for Region IX; Catherine McCabe, an attorney in the Office of General Counsel; and J.I. Palmer, Jr., Regional Administrator for Region IV.

Attached to the Wilkes Memorandum was a September 10, 2007 memorandum from Ms. Tommelleo to Ms. Wilkes and Wanda Johnson, Acting Assistant Regional Administrator for Region IV. Def. Ex. 4, Tommelleo Memorandum (hereinafter, Wilkes Memorandum & Tommelleo Memorandum are collectively referred to as the "critical Memoranda").⁴ Ms. Tommelleo recounted the August 29 telephone call as she remembered it and complained that Ms. Morris had personally attacked her:

This verbal assault was so personally and professionally offensive that I was stunned and shocked and tried only in response to diffuse the situation. What made it even worse was that Karen Higginbotham did nothing to stop this highly inappropriate behavior and to date, no one has offered an apology to me.. . .

[Ms. Morris] accused me of "badgering her office" on [the issue of renaming the Gay and Lesbian Advisory Council] and other topics and of inappropriately going over her head (since she does not recognize any issue-elevation policy). She went on to pointedly tell me that I was only a "collateral duty" employee, while she was the Associate Director of her office and, further that I had "no business" arguing with her about her programs. Susan also stated that she was "not going to sit and fight with me" on any of these issues and she expressly threatened to do away with our Advisory Counsel [sic] and with the Diversity Program for Sexual Orientation (which she stated that she created). Susan's verbal assault was prolonged, aggressive and very angry and there was no attempt by Karen to interject or put an end to this inappropriate and unprofessional behavior.

Tommelleo Memorandum at 1-2.

Ms. Higginbotham was surprised by the critical Memoranda. She remembered that Ms. Morris had been "sharp" and "forceful" in expressing her views and that the conversation had been "tense," but she did not believe that Ms. Morris had acted disrespectfully. Def. Ex. 1, Higginbotham Decl. ¶¶ 6, 8. Ms. Higginbotham told Ms. Morris that she had received the critical Memoranda, and that she felt they should let some time pass before responding. Id. ¶ 9.

Ms. Morris requested a copy of the critical Memoranda, but Ms. Higginbotham answered that she would look for them later because she could not quickly locate them among her many emails or on her desk. Id. Over the next three months, Ms. Morris repeatedly asked to see the critical Memoranda. Ms. Higginbotham did not provide copies until December 21, 2007. Ms. Higginbotham attributes the long delay to a number of factors:

(1) She felt that a "suitable time" should pass before responding to the critical Memoranda;

(2) She had been out of work several weeks due to illness;(3) She travelled to Houston to assist her brother in recovering from illness;⁵

(4) She had a very heavy workload in October and November 2007 because, in addition to her regular duties, she was required to review performance appraisals for around 300 EPA employees.

Id.

When she sent copies of the critical Memoranda to Ms. Morris, Ms. Higginbotham specifically included an order to Ms. Morris:

As we have previously discussed and as you have requested, here is a copy of the memo from Region 4. Do not respond to this memo. I will prepare the response and you will be copied on my reply.

Def. Ex. 5, Email to Morris 12/21/07; see also Higginbotham Decl. ¶ 10. Ms. Higginbotham directed Ms. Morris not to respond for a number of reasons. First, the Wilkes Memorandum was directed to Ms. Higginbotham, not to Ms. Morris, and Ms. Higginbotham believed that she should be the one to respond. Def. Ex. 1, Higginbotham Decl. ¶ 11. Second, the sexual orientation advisory council had been a "hot button issue" and Ms. Higginbotham worried that Ms. Morris, "given the opinions that she had expressed on the subject and the sometimes less than diplomatic manner that she had exhibited with other EPA staff in the past, might escalate the situation further." Id. Third, Ms. Higginbotham thought that "a further passage of time would allow the parties to move beyond any hard feelings that remained from the teleconference." Id.

Ms. Higginbotham did not immediately respond to the critical Memoranda due to other work priorities and health issues. Id. ¶ 12. Before she could respond, on February 12,2008, Ms. Morris sent an email with an attached "Issue Sheet" to (1) Ms. Higginbotham; (2) Stephen...