Morris v. McCarthy

• Decision Date: 14 June 2016
• Docket Number: No. 14-5074,14-5074
• Citation: 825 F.3d 658
• Parties: Susan M. Morris, Appellant v. Gina McCarthy, Administrator, U.S. Environmental Protection Agency, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

825 F.3d 658

Susan M. Morris, Appellant

v.Gina McCarthy, Administrator, U.S. Environmental Protection Agency, Appellee.

No. 14-5074

United States Court of Appeals, District of Columbia Circuit.

Argued September 16, 2015

Decided June 14, 2016

Ellen K. Renaud argued the cause for appellant. With her on the briefs were David H. Shapiro and Richard L. Swick, Washington, DC.

Brian P. Hudak, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Ronald C. Machen, Jr., U.S. Attorney at the time the brief was filed, and R. Craig Lawrence, Assistant U.S. Attorney.

Before: Griffith and Millett, Circuit Judges, and William s, Senior Circuit Judge.

Griffith, Circuit Judge:

This case stems from two adverse employment actions taken against appellant Susan Morris while she worked for the Environmental Protection Agency (EPA): a seven-day suspension without pay in 2008 and a termination in 2010. Morris claims that both actions violated Title VII. The district court granted summary judgment against Morris's suspension claims and dismissed her termination claims. We reverse in part the grant of summary judgment, concluding that a reasonable jury could find that Morris's suspension was motivated by racial discrimination. We affirm the dismissal of her termination claims because she failed to exhaust her administrative remedies.

I

A

Morris, a white woman, worked as a manager in EPA's Office of Civil Rights (OCR) for ten years, most recently as Assistant Director for Affirmative Employment. Her supervisor was Director Karen Higginbotham, who in turn reported to Ray Spears, EPA's Deputy Chief of Staff. Both Higginbotham and Spears are African-American.

Morris received several awards for leadership and service during her time at EPA, but her career path at the agency hit a snag in 2007 when she disagreed with EPA employee Nancy Tommelleo over the naming of an agency advisory group that was asked to look into the concerns of gay and lesbian employees. Because we are, in part, reviewing a grant of summary judgment to EPA, we recount the facts of this conflict over the group's name in the light most favorable to Morris.

Tommelleo and Morris discussed the naming issue in a conference call with Higginbotham in August 2007. Afterward, Tommelleo sent a memo to her supervisor and other EPA officials complaining that Morris had behaved unprofessionally during the call. On September 21, 2007, Tommelleo's supervisor forwarded this memo to Higginbotham, Spears, and other officials, along with her own memo objecting to Morris's conduct.

Higginbotham was “surprised” to receive Tommelleo's memo, as she had found Morris “forceful” but not disrespectful during the call. Higginbotham Decl. ¶ 8. Higginbotham told Morris about the memo shortly after receiving it, but despite Morris's requests, did not provide her with a copy until December 21, 2007. Higginbotham told Morris, “Do not respond to this memo. I will prepare the response and you will be copied on my reply.” J.A. 358 (emphasis in original).

When Higginbotham had not responded to the memo by February 2008, Morris emailed a document that she called an “issue sheet” to Higginbotham, Spears, and the members of the agency's Human Resources Council. According to Morris, EPA encourages employees to submit issue sheets to air personnel grievances. Morris's issue sheet complained that EPA employees outside OCR were exercising undue sway over the agency's equal employment policies and that Morris's reputation had been attacked in a number of ways—including by Tommelleo's memo and the accompanying memo written by Tommelleo's supervisor, by Higginbotham's failure to respond as promised, and by Higginbotham's refusal to allow Morris to reply. The issue sheet also quoted passages from the memos penned by Tommelleo and her supervisor.

Higginbotham immediately emailed Morris to say that she believed the issue sheet directly violated her order not to respond to Tommelleo's memo, and that she would consider disciplinary action as a result. In reply, Morris defended herself by arguing that she had not responded to the memo and thus Higginbotham had no basis for disciplinary action. A month later, Higginbotham proposed to Spears that Morris be suspended without pay for seven days. Spears approved the suspension on April 28, 2008.

Morris's difficulties at the agency continued after the suspension. Two years later, in March 2010, Higginbotham proposed terminating Morris's employment for reasons including insubordination and misuse of supervisory authority. The day after Morris learned of the proposed termination, she filed a whistleblower complaint with the Office of Special Counsel (OSC)—an independent prosecutorial agency that investigates federal employees' claims of prohibited personnel practices—alleging that EPA proposed terminating her because she had exposed wrongdoing within the agency. The complaint's precise content is not pertinent here, but its impact on Morris's termination is: at the OSC's request, EPA agreed to delay firing Morris pending the investigation of her whistleblower complaint. But in August 2010, EPA declined to delay further and Spears terminated Morris's employment.

B

Morris filed suit in district court on April 8, 2011, alleging that both her suspension and termination violated Title VII. As relevant here, she claimed that the agency took these actions against her because of her race and because she complained of discrimination. See 42 U.S.C. § 2000e et seq.

Title VII plaintiffs must exhaust their administrative remedies before bringing their claims to court. Payne v. Salazar , 619 F.3d 56, 65 (D.C. Cir. 2010). But the actions a federal employee must take to satisfy the exhaustion requirement differ based on a number of factors, including the severity of the adverse employment action at issue. See Barbara Lindemann & Paul Grossman, Employment Discrimination Law 32-35 (5th ed. 2012). For a suspension of fourteen days or fewer, like Morris's, a federal employee must first consult an equal employment opportunity (EEO) counselor at her agency to “try to informally resolve the matter.” 29 C.F.R. § 1614.105(a). After informal counseling, an employee whose concerns are not resolved may file a formal complaint with her agency's EEO office. 29 C.F.R. § 1614.106(a), (b). Finally, if that office finds against her, she may appeal further to the Equal Employment Opportunity Commission (EEOC) or file suit in district court. 42 U.S.C. § 2000e-16(c) ; see Howard v. Pritzker , 775 F.3d 430, 438–39 (D.C. Cir. 2015).

This process varied slightly for Morris. Because her complaint implicated personnel in her agency's civil rights office, agency procedures enabled her to consult an independent EEO counselor from the Department of Energy and to file a formal complaint with that agency. The district court found that Morris timely took these steps. It held that she exhausted her administrative remedies with respect to her claim that her suspension violated Title VII.

Morris's claim that her termination violated Title VII involved a more serious personnel action and therefore triggered different options for exhausting her administrative remedies. See Hamilton v. Geithner , 666 F.3d 1344, 1349-50 (D.C. Cir. 2012). One option for an employee who alleges that she was fired because of discrimination or retaliation is to pursue a complaint with her agency's EEO office. See id. ; 5 C.F.R. § 1201.154(a) ; 29 C.F.R. § 1614.302(b). If she does not prevail there, she may either file a discrimination suit in federal district court or appeal to the Merit Systems Protection Board (MSPB), an agency that adjudicates federal employment disputes. See 5 C.F.R. § 1201.154(b) ; 29 C.F.R. §§ 1614.302(d)(1)(i), 1614.310(a). Another option is to sidestep the agency's EEO office entirely and file an appeal directly with the MSPB. See 5 C.F.R. § 1201.154(a) ; 29 C.F.R. § 1614.302(b). Morris chose the latter route: she appealed her termination to the MSPB on September 8, 2010.

At the MSPB, an administrative judge takes evidence and issues a decision. That decision becomes final after 35 days if the parties do not seek review by the full Board. See 5 C.F.R. § 1201.113. The employee may then challenge the agency's decision by filing suit in district court within 30 days of receiving notice of the MSPB's “judicially reviewable action.” 5 U.S.C. § 7703(b)(2). She may also bring suit in district court if the MSPB takes no “judicially reviewable action” within 120 days of the date she files her appeal. Id. § 7702(e)(1)(B).

Morris's course before the MSPB took a number of twists. First, at the OSC's request, the MSPB ordered that Morris be reinstated at EPA while the OSC investigated her whistleblower complaint, until January 21, 2011. Then, in October 2010, the MSPB administrative judge asked the parties to weigh in on whether, in the interest of judicial economy, Morris's MSPB appeal should be dismissed without prejudice while the OSC investigation proceeded. EPA favored dismissal. Morris requested that the administrative judge hold the MSPB proceedings in abeyance until the completion of the OSC investigation. Should the judge dismiss the case, however, Morris asked her to provide “assurances” that Morris had not “waiv[ed] any right to seek relief in the event that the matter [was] not resolved at the conclusion of OSC's investigation.” Mot. to Stay Proceedings Pending Outcome of Investigation by the Office of Special Counsel at 2-3, Morris v. EPA , No. DC-0752-10-0865-I-1 (M.S.P.B. Oct. 18, 2010).

The administrative judge dismissed Morris's MSPB appeal without prejudice on October 20, 2010, explaining that regulations permit the MSPB to hold cases in abeyance only to facilitate settlement or discovery. However, the judge ordered that Morris's appeal be automatically refiled upon the expiration of her temporary reinstatement at EPA. This automatic refiling was intended to provide the “assur[ance]” Morris requested: that her...