Morris v. Jackson

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________
)
SUSAN MORRIS, )
)
Plaintiff, )
)
v. ) Civil Action No. 11-701 (RMC)
)
LISA P. JACKSON, Administrator, )
Environmental Protection Agency, )
)
Defendant. )
_________________________________ )

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.

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 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,

1
Ms. Morris filed Exhibits 1 through 19 at Docket 36-1 through 36-19.

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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, Wilkes

2
Ms. Higginbotham recalls that Ms. Morris also expressed her view that bisexuality was a
lifestyle and not a sexual orientation and that Ms. Tommelleo opposed this view. Higginbotham
Decl. ¶ 6.
3
EPA filed Exhibits 1 through 12 at Docket 32-1 and Exhibits 13 through 20 at Docket 40-2.

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Memorandum. 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.

4
The Tommelleo Memorandum was copied to three Region IV officials: Acting Deputy
Administrator Russell Wright; Manager Bill Anderson; and EEO Officer Randy Dominy. See
Def. Ex. 4, Tommelleo Memorandum.

4
 ...

[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;

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 (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,

5
Ms. Higginbotham’s brother is an astronaut with the National Aeronautics and Space
Administration (NASA), who returned on August 21, 2007, from a mission on the Space Shuttle
Endeavour. He became ill while re-acclimating to Earth’s gravity.

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2008, Ms. Morris sent an email with an attached “Issue Sheet” to (1) Ms. Higginbotham; (2)

Stephen Johnson, EPA Administrator; (3) Ray Spears, Deputy Chief of Staff; (4) Laura Yoshii,

Deputy Regional Administrator for Region IX; and (5) all members of the Human Resources

Council (HRC), including its co-chair, Russell Wright, Acting Deputy Regional Administrator

for Region IV. 6 Def. Ex. 7, Email from Morris 2/12/08. She attached the critical Memoranda

from Mses. Wilkes and Tommelleo, and noted that “[t]o date . . . no response has been received

and Ms. Morris has not been allowed to reply to either memo.” Def. Ex. 8, Issue Sheet at 2; see

also id., Issue Sheet, Attachments. Ms. Morris expressed her view that sexual “behavior” should

not be part of an affirmative action program, see Issue Sheet at 4, and also identified the

following “issues”: that Mses. Wilkes and Tommelleo, via the critical Memoranda, attempted

(1) to “[u]se[ ] HRC and senior officials to foster personal and/or hidden agendas on EEO policy

and programs” and (2) to “[h]arm[] or . . . destroy the reputation, authority, and official standing”

of Ms. Morris. Issue Sheet at 1. The Issue Sheet aired Ms. Morris’s grievances regarding the

critical Memoranda from Mses. Wilkes and Tommelleo. She quoted the critical Memoranda, see

id. at 1-2, and complained:

The above memos were sent to various senior level officials in an
effort to impact [ ] decisions made by [Ms. Morris] regarding
controversial EEO matters under her authority and responsibility.
The individuals involved were neither in her Chain of Command
nor with authority or responsibility for interfering in the work of
her office. The memos also included false allegations with the
intent of harming or attempting to destroy her credibility, authority
and official standing within the agency. Copies of the memos were
withheld from her for one month in one case and three months in
another in order to prevent her from answering the allegations and
so that decisions she made could be circumvented or overturned.
In addition, punitive action was recommended against her by
senior employees, some of whom she had never met. Decisions
she had made based on her expertise . . . were overturned, her
6
Messrs. Spears and Wright and Ms. Yoshii had all been copied on the Wilkes Memorandum.

7
 authority was usurped, and her professional standing and treatment
as an exceptional senior female Federal employee since 1975 has
been negatively affected.

Id. at 7. Ms. Morris did not obtain approval from anyone in her chain of command before

sending out the Issue Sheet. Def. Ex. 2, Morris Dep. at 175.

Upon receiving the Issue Sheet, Ms. Higginbotham emailed Ms. Morris,

indicating that she would consider disciplinary action:

Susan: I specifically told you not to respond to the memo(s) from
Region 4 7 . . . referenced in your 2/12/08 e-mail to the HRD. I am
currently reviewing your actions in this matter and will decide
shortly what disciplinary or corrective action I will take . . . .

Def. Ex. 9, Email from Higginbotham 2/14/08. Ms. Morris answered that she “did not respond

to the memos from Region 4 . . . therefore, you have no cause of action, in spite of the fact that

you removed my right to defend myself.” Id. Ms. Morris contends that she was not

insubordinate because she did not send the Issue Sheet to Mses. Wilkes or Tommelleo. See

Opp’n [Dkt. 36] at 2; see also Def. Ex. 2, Morris Dep. at 160.

Ms. Higginbotham disagreed and formally proposed that Ms. Morris be

suspended. Higginbotham Decl. ¶ 14. She believed that Ms. Morris had refused to take

responsibility for her actions and that she had been disingenuous in denying her insubordination.

Id. Ms. Higginbotham further explained:

Ms. Morris had expressly referenced [the critical Memoranda] and
my instruction in her response [i.e., the Issue Sheet]. Also, she
was or should have been aware that in sending her response to the
entire HRC, including Messrs. Spears and Wright and Ms. Yoshii,
it would make its way to Ms. Wilkes and Ms. Tommelleo.
Additionally, I felt that by this action, Ms. Morris was challenging
my judgment on how best to handle the issues raised by Ms.
Wilkes and Ms. Tommelleo.

7
Mses. Wilkes and Tommelleo worked in Region IV. That is, by referring to the memos from
Region IV, Ms. Higginbotham refers to the critical Memoranda.

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Id. At the time she proposed the suspension, Ms. Higginbotham was not aware of any EEO

activity at EPA by Ms. Morris. Id. ¶ 16.

Ms. Morris and her attorney met with Mr. Spears to respond to the proposed

suspension. After considering the issue, Deputy Chief of Staff Spears approved a seven-day

suspension without pay: “I therefore find that you intentionally and wilfully disobeyed Ms.

Higginbotham’s December 21, 2007 directive to you, by your widespread dissemination of your

Issue Paper, significant parts of which constituted a response to the Region 4 memorandum.”

Def. Ex. 11, Memo from Spears 4/28/08 at 3. Mr. Spears was “troubled” by Ms. Morris’s failure

to accept responsibility and by her attempt “to rationalize it by stating that it had not been a

‘response’ to the memoranda but instead a ‘separate and distinct’ action . . . .” Def. Ex. 1, Spears

Decl. ¶ 5. 8 EPA’s disciplinary policy provides that the penalty for a first offense of

insubordination ranges from a written reprimand to a fourteen-day suspension. Def. Ex. 10, EPA

Guidance on Corrective Discipline at 5. The suspension was effective from May 5 to May 11,

2008.

Ms. Morris contends that the seven-day suspension was not due to

insubordination, but instead was based on gender and race discrimination and retaliation. By

proposing and implementing the seven-day suspension, Ms. Higginbotham and Mr. Spears (both

African American), allegedly discriminated and retaliated against Ms. Morris because she is a

White woman. 9

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Mr. Spears also noted that Ms. Morris’s oral statements to him reinforced his conclusion that
she had intentionally disregarded Ms. Higginbotham’s directive. “It is apparent to me by the
tone of your remarks that you do not believe that you should have to abide by Ms.
Higginbotham’s decisions and directives.” Def. Ex. 11, Memo from Spears 4/28/08 at 3 n.5.
9
Additional claims in the Amended Complaint have been dismissed. See Op. [Dkt. 12] at 14
(“(1) the claim regarding termination of employment is dismissed without prejudice due to
failure to exhaust administrative remedies; (2) the claims regarding reassignment of duties, age
9
 EPA moves for summary judgment. See Mot. for Summ. J. [Dkt. 31]; Reply

[Dkt. 40]. Ms. Morris opposes. See Opp’n [Dkt. 36].

II. LEGAL STANDARD

A. Jurisdiction and Venue

The Court has federal question jurisdiction here because the Title VII claims arise

under federal law. See 28 U.S.C. § 1331. Venue is proper in this Court pursuant to Title VII’s

venue provision. See 42 U.S.C. § 2000e–5(f)(3) (stating that venue is proper “in any judicial

district in the State in which the unlawful employment practice is alleged to have been

committed . . .”).

B. Federal Rule of Civil Procedure 56

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall

be granted “if the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); accord Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). On summary judgment, the burden on a moving

party who does not bear the ultimate burden of proof in the case may be satisfied by making an

initial showing that there is an absence of evidence to support the nonmoving party’s case.

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). This burden “may be discharged by

‘showing’––that is, pointing out to the district court––that there is an absence of evidence to

support the nonmoving party’s case.” Id.

The burden then shifts to the nonmovant to demonstrate the existence of a

genuine issue of material fact. The nonmovant may not rest on mere allegations or denials, but

discrimination, and retaliation are dismissed; (3) summary judgment is granted in favor of
Defendant on the hostile work environment claim; and (4) the claim regarding the seven-day
suspension remains.”).

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must instead by affidavit or otherwise, present specific facts showing that there is a genuine issue

for trial. See Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324; see also Greene v. Dalton, 164 F.3d

671, 675 (D.C. Cir. 1999) (nonmovant must present specific facts that would enable a reasonable

jury to find in its favor).

In ruling on a motion for summary judgment, the court must draw all justifiable

inferences in the nonmoving party’s favor. Anderson, 477 U.S. at 255. A nonmoving party,

however, must establish more than “the mere existence of a scintilla of evidence” in support of

its position. Id. at 252. In addition, if the evidence “is merely colorable, or is not significantly

probative, summary judgment may be granted.” Id. at 249-50 (citations omitted). Summary

judgment is properly granted against a party who “after adequate time for discovery and upon

motion . . . fails to make a showing sufficient to establish the existence of an element essential to

that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477

U.S. at 322.

C. Title VII of the Civil Rights Act of 1964

Title VII prohibits employment discrimination on the basis of race, color, religion,

sex, or national origin. 42 U.S.C. §§ 2000e et seq. Title VII also prohibits retaliation against an

employee for engaging in protected EEO activity. 10 42 U.S.C. § 2000e–3(a).

In the absence of direct evidence of discrimination, courts generally apply the

burden-shifting scheme set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05

(1973). Under that framework, a plaintiff must first establish a prima facie case of

10
Title VII speaks of retaliation as a form of discrimination. 42 U.S.C. § 2000e–3(a). The Court
refers to “discrimination” as the “anti-discrimination provision [of Title VII],” (i.e.,
discrimination based on race, color, religion, sex, or national origin), Burlington N. & Santa Fe
Ry. Co. v. White, 548 U.S. 53, 62 (2006), and “retaliation” as discrimination based upon an
employee engaging in protected activity, 42 U.S.C. § 2000e–3(a).

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discrimination by a preponderance of the evidence. Id. at 802. If the plaintiff is successful, the

burden of production shifts to the employer to articulate a legitimate, non-discriminatory reason

for its conduct. Id. at 802–03. “If the employer meets this burden, the presumption of

intentional discrimination disappears, but the plaintiff can still prove disparate treatment by, for

instance, offering evidence demonstrating that the employer’s explanation is pretextual.”

Raytheon Co. v. Hernandez, 540 U.S. 44, 49 n.3 (2003); see also St. Mary’s Honor Ctr. v. Hicks,

509 U.S. 502, 507–08 (1993).

Once an employer articulates a legitimate, non-discriminatory reason, the prima

facie case usually becomes “irrelevant.” Adeyemi v. District of Columbia, 525 F.3d 1222, 1226

(D.C. Cir. 2008); see also Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 495 (D.C. Cir.

2008). At that point, “the district court must conduct one central inquiry in considering an

employer’s motion for summary judgment . . . [i.e.,] whether the plaintiff produced sufficient

evidence for a reasonable jury to find that the employer’s asserted non-discriminatory reason was

not the actual reason and that the employer intentionally discriminated against the plaintiff on a

prohibited basis.” Adeyemi, 525 F.3d at 1226. To survive summary judgment, a “plaintiff must

show that a reasonable jury could conclude from all of the evidence that the adverse employment

decision was made for a discriminatory reason.” Czekalski v. Peters, 475 F.3d 360, 363 (D.C.

Cir. 2007). “[B]are allegations of discrimination are insufficient to defeat a properly supported

motion for summary judgment.” Burke v. Gould, 286 F.3d 513, 520 (D.C. Cir. 2002).

The ultimate burden of persuasion rests at all times on the plaintiff. Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). “Liability depends on whether the

protected trait actually motivated the employer’s decision.” Id. at 141 (quoting Hazen Paper Co.

v. Biggins, 507 U.S. 604, 610 (1993)).

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 III. ANALYSIS

A. Gender Discrimination

EPA moves for summary judgment on Ms. Morris’s gender discrimination claim.

When a plaintiff files an opposition addressing only certain arguments raised by the defendant,

“a court may treat those arguments that the plaintiff failed to address as conceded.” Hopkins v.

Women’s Div., Bd. of Global Ministries, 238 F. Supp. 2d 174, 178 (D.D.C. 2002); see also Jones

v. Air Line Pilots Ass’n, 713 F. Supp. 2d 29, 38-39 (D.D.C. 2010) (citing Hopkins). Ms. Morris

did not respond in her opposing brief and, thus, she has conceded the claim. Since Ms. Morris

conceded her allegation of gender discrimination, summary judgment shall be entered in favor of

EPA on that claim.

B. Race Discrimination

EPA asserts a non-discriminatory reason for the imposition of the challenged

seven-day suspension––that Ms. Morris was insubordinate when she wrote and distributed the

Issue Sheet contrary to Ms. Higginbotham’s instruction. As noted above, ordinarily the

articulation of a legitimate, non-discriminatory reason for the adverse employment decision

makes the prima facie case “irrelevant” and courts conduct one central inquiry into whether the

plaintiff produced sufficient evidence for a reasonable jury to find that the employer intentionally

discriminated against the plaintiff on a prohibited basis. See Adeyemi, 525 F.3d at 1226; Brady,

520 F.3d at 495. This case is atypical, however, because EPA argues that Ms. Morris has not

alleged a prima facie case, i.e., she has not shown that EPA is the unusual employer that

discriminates against Whites.

To establish a prima facie case of discrimination, a plaintiff must show that:

(1) she is a member of a protected class; (2) she suffered an adverse personnel action; and (3) the

13
unfavorable action gives rise to an inference of discrimination. Royall v. Nat’l Ass’n of Letter

Carriers, AFL-CIO, 548 F.3d 137, 144 (D.C. Cir. 2008). When a race discrimination claim is

made by a White person, not a member of a traditionally disadvantaged group, some adjustment

to the “basic allocation of burdens and order of presentation of proof” is needed. Lanphear v.

Prokop, 703 F.2d 1311, 1314-15 (D.C. Cir. 1983). A White plaintiff must “show additional

‘background circumstances [that] support the suspicion that the defendant is that unusual

employer who discriminates against the majority.’” Harding, 9 F.3d 150, 153 (D.C. Cir. 1993)

(quoting Parker v. Baltimore & Ohio R.R., 652 F.2d 1012, 1017 (D.C. Cir. 1981)). A

satisfactory showing could include evidence that the “particular employer at issue has some

reason or inclination to discriminate invidiously against whites . . . or evidence indicating that

there is something ‘fishy’ about the facts of the case at hand that raises an inference of

discrimination.” Id. at 153.

1. Prima Facie Case

The question of whether Ms. Morris has presented a prima facie case of race

discrimination is a close one. EPA argues that Ms. Morris has not demonstrated that EPA had

“some reason or inclination to discriminate invidiously against whites” or that there was

something “fishy” about her case. See Harding, 9 F.3d at 153. Ms. Morris’s suspension was

handled in accordance with standard procedures. She was notified of the proposed suspension,

see Def. Ex. 1, Higginbotham Decl. ¶ 15, and she exercised her right to oppose the suspension by

responding in writing and orally, with the assistance of counsel, see Def. Ex. 1, Spears Decl.

¶¶ 3-4. In addition, the EPA Office of the Administrator, which includes the Office of Civil

Rights, was over fifty-eight percent White in 2009. See Def. Ex. 12, EPA Workforce Analysis.

14
 Ms. Morris’s supporting evidence is weak: she claims that Deputy Chief of Staff

Spears asked Ms. Higginbotham why she was hiring “so many white people” when Ms.

Higginbotham hired William Haig, a White man, thereby implying that Whites were not wanted.

Pl. Ex. 1 [Dkt. 36-1], Morris Decl. ¶ 8. In addition, both Ms. Higginbotham, who recommended

the suspension, and Mr. Spears, who approved it, are African American and Ms. Morris is White.

A mere difference in race between supervisors and an employee, without more,

cannot support an inference of intentional discrimination. However, Ms. Morris nudges her

claim beyond that lonely circumstance with her allegation of intentional race-based preferences

in hiring. Because the Court must draw all justifiable inferences in favor of the non-moving

party, see Anderson, 477 U.S. at 255, the Court will assume that Ms. Morris has presented a

prima facie case.

2. Pretext

In response to Ms. Morris’s allegations, EPA has presented a legitimate non-

discriminatory reason for her suspension, i.e., insubordination. “Insubordination is firmly

established as a legitimate, non-discriminatory reason that satisfies an employer’s burden of

production under the McDonnell Douglas framework.” Edwards v. EPA, 456 F. Supp. 2d 72, 94

(D.D.C. 2006) (citing cases). In order to overcome EPA’s articulated non-discriminatory reason

for discipline, Ms. Morris must present evidence that EPA’s reason was a mere pretext for

intentional discrimination. Pretext can be demonstrated by evidence that suggests, inter alia, that

the employer lied, failed to follow established procedure, or treated similarly situated employees

of another race more leniently. Gurara v. District of Columbia, 881 F. Supp. 2d 143, 147

(D.D.C. 2012).

15
 Rather than showing pretext in these ways, Ms. Morris claims that the

insubordination charge was false because she did not disobey Ms. Higginbotham’s directive, that

is, she did not actually respond to Ms. Wilkes or to Ms. Tommelleo. Instead, Ms. Morris sent the

Issue Sheet to others with the purpose of expressing her views on whether the Gay and Lesbian

Advisory Council should have a broader focus and should include bisexual and transgender

employees. Her argument misses the mark as it is grounded on the claim that Ms. Higginbotham

and Mr. Spears were “wrong” to conclude that Ms. Morris had been insubordinate. To the

contrary, the law is clear that “[a]n employer may make an employment decision for a good

reason, a bad reason, or no reason at all so long as racial or other discriminatory distinctions do

not influence the decision.” Santa Cruz v. Snow, 402 F. Supp. 2d 113, 125 (D.D.C. 2005)

(citation and quotation marks omitted). In other words, an employer may be completely wrong

on the facts when it decides to discipline an employee, but “wrong” is not “discriminatory.” A

court may not “second-guess an employer’s personnel decision absent demonstrably

discriminatory motive.” Fischbach v. D.C. Dep’t of Corrections, 86 F.3d 1180, 1183 (D.C. Cir.

1996). Once an employer articulates a non-discriminatory reason for its action, the issue is not

whether it was factually correct but whether the employer “honestly believes in the reasons it

offers.” Id. (citation omitted); see also Jones v. GlaxoSmithKline, LLC, 755 F. Supp. 2d 138,

154 (D.D.C. 2010). It has long been recognized that an employee’s failure to obey a supervisor’s

straightforward direction constitutes a legitimate, non-discriminatory reason for discipline; if the

employee offers no evidence to show that the suspension was “anything but [a] direct response to

obvious insubordination,” summary judgment is granted to the employer. Edwards, 456 F. Supp.

2d at 94.

16
 Ms. Higginbotham and Mr. Spears believed that Ms. Morris was insubordinate

when she sent her Issue Sheet to the entire Human Resources Department and beyond, including

her “defense” to the critical Memoranda and veiled complaints about Ms. Higginbotham. There

is no question that Ms. Higginbotham had directed Ms. Morris in writing not to respond to the

critical Memoranda. While Ms. Morris did not direct her Issue Sheet specifically to Ms. Wilkes

or Ms. Tommelleo in Region IV, she disseminated it widely throughout the EPA, including the

EPA Administrator (Mr. Johnson) and the Acting Deputy Regional Administrator for Region IV

(Mr. Wright). Moreover, the Issue Sheet reveals Ms. Morris’s insubordination. While it

explicitly recognized Ms. Higginbotham’s directive to Ms. Morris, it quoted and discussed the

critical Memoranda and attached them. Ms. Higginbotham and Mr. Spears honestly believed

that Ms. Morris had responded to the critical Memoranda, contrary to her supervisor’s order,

when she wrote and emailed the Issue Sheet. 11

Ms. Morris attempts to show pretext by arguing that Ms. Higginbotham gave

preferential treatment to African American employees. She relies on a declaration from Mirza

Baig, an EPA employee in the Office of Civil Rights. Ms. Baig opined that “Ms. Higginbotham

displayed a strong preference for African[]American employees” and “gave preferential

treatment to black employees, [naming certain individuals] . . . .” See Pl. Ex. 19 [Dkt. 36-19],

Baig Decl. ¶ 4. Ms. Baig’s opinions are inadmissible and her statements of fact are vague and

conclusory, omitting what treatment was given to whom and when such allegedly disparate

treatment occurred. These types of vague and conclusory allegations are insufficient to raise a

11
Ms. Morris attempts to make something of Ms. Higginbotham’s failure to respond promptly to
the critical Memoranda from Mses. Wilkes and Tommelleo and her arguably inconsistent
explanations. This argument is a red herring because it does not bear on the critical issue––
whether Mr. Spears honestly believed that Ms. Morris had been insubordinate when he made the
final decision to suspend her.

17
genuine issue of material fact. See Celotex, 477 U.S. at 324 (in opposing summary judgment, a

plaintiff may not rest on mere allegations but must present specific facts showing that there is a

genuine issue for trial).

Ms. Morris also references Ms. Baig’s statement that Ms. Higginbotham hired

Bassie McCain and Natalie Twyman, both African American, and quickly promoted them from

administrative assistant to EEO counselor. Pl. Ex. 19 [Dkt. 36-19], Baig Decl. ¶ 5. Uncontested

record facts undermine this argument. Ms. Higginbotham avers that she selected Mr. McCain

from a list of applicants without knowing his race. Def. Ex. 13, Higginbotham Supp. Decl. ¶ 4.

Further, she promoted Mr. McCain and Ms. Twyman only after they were recommended for

promotion by their supervisor, Ronald Ballard, who is White. Id. ¶¶ 4-5. In addition, Ms.

Higginbotham hired Ronald Ballard as an Assistant Director and William Haig as coordinator of

reasonable accommodations, and she approved the reassignment of Gordon Schisler to the

position of Deputy Director. Id. ¶ 6. Messrs. Ballard, Haig, and Schisler are all White.

Ms. Morris points to the allegation by former EPA employee, Alease Wright, that

“Ms. Higginbotham told me that Jonathon Newton, an African American, could not get a

promotion from a white woman, so she told Ray Spears to send him down to her office and she

would give him a GS-15” and that Ms. Higginbotham “did promote Mr. Newton to a GS-15.”

Pl. Ex. 18 [Dkt. 36-18], Wright Decl. ¶ 6; see also Pl. Ex. 18 [Dkt. 36-1], Morris Decl. ¶ 13

(alleging that Ms. Higginbotham stated publicly that “if the white woman up there won’t

promote [Mr. Newton], I will”). Again, this allegation is belied by the record. Mr. Newton was

already working at a grade GS-15 when he was laterally reassigned to the Office of Civil Rights.

Def. Ex. 14, Newton SF-50s (showing that Newton was promoted to GS-15 in December 2003

18
and reassigned in August 2004). In addition, Mr. Newton’s prior supervisor was not a White

woman but an African American man. Def. Ex. 13, Higginbotham Supp. Decl. ¶ 3.

Ms. Morris adds that Ms. Higginbotham’s bias against Whites was revealed by

her comments: Ms. Higginbotham allegedly referred to men working outside the EPA

Administrator’s Office as “little nasty white boys,” Pl. Ex. 13 [Dkt. 36-13], Morris Dep. at 82-

83; at a staff meeting discussing a finding of discrimination, Ms. Higginbotham allegedly said

that “those white boys . . . will learn a lesson now,” id. at 86; former EPA employee Alease

Wright said that Ms. Higginbotham referred to Ms. Morris in 2005 or 2006 with the comment

that “the little White woman better learn to stand in line” and “this is EPA we can whip her into

shape,” Pl. Ex. 18 [Dkt. 36-18], Wright Decl. ¶ 7; and, in 2006, EPA employee Chris Emmanuel

told Ms. Morris that Ms. Higginbotham was “going after” Ms. Morris, 12 Def. Ex. 2, Morris Dep.

at 93-96.

“‘Stray remarks,’ even those made by a supervisor, are insufficient to create a

triable issue of discrimination where . . . they are unrelated to an employment decision involving

the plaintiff.” Simms v. General Printing Office, 87 F. Supp. 2d 7, 9 (D.D.C. 2000). Similarly,

stray remarks that were not directed at a plaintiff and were not made by persons involved in the

contested adverse action are immaterial. See Goss v. George Washington Univ., 942 F. Supp.

659, 664-65 (D.D.C. 1996). Ms. Higginbotham’s alleged comments regarding “white boys”

were not related to the decision to suspend Ms. Morris, they were not directed at or about Ms.

Morris, and they were not made by the deciding official, Mr. Spears.

Further, the alleged remarks that Ms. Morris was a “little White woman” who

should be “whip[ped] into shape,” and that Ms. Higginbotham was “going after” her were made
12
Mr. Emmanuel’s alleged statement is hearsay, which “counts for nothing” on summary
judgment. Greer v. Paulson, 505 F.3d 1306, 1315 (D.C. Cir. 2007).

19
in 2005 or 2006, years before Ms. Higginbotham recommended, and Mr. Spears made, the

decision to suspend Ms. Morris in 2008. A comment made years before an adverse employment

decision, by a person who did not make the challenged decision, can only show pretext if there is

evidence that the comment influenced or infected the decision. For example, in Hampton v.

Vilsack, 685 F.3d 1096 (D.C. Cir. 2012), an employee claimed that he suffered from race

discrimination when he was terminated by his second-line supervisor. In support of his claim, he

pointed to his first-line supervisor’s use of a racial epithet years before his discharge. 685 F.3d

at 1097. The D.C. Circuit affirmed summary judgment in favor of the employer, finding that

there was no evidence that race was a motivating factor in the second-line supervisor’s

independent decision to terminate the employee for misconduct. 685 F.3d at 1101. The plaintiff

introduced no evidence that the direct supervisor’s animus, revealed by a racial epithet uttered in

2002, infected the second-line supervisor’s decision to terminate, made four or five years later.

Id. Proper procedure was followed, the second-line supervisor conducted an independent review

of the alleged misconduct, and the second-line supervisor was the deciding official. The D.C.

Circuit noted that “[w]hen the causal relationship between a subordinate’s illicit motive and the

employer’s ultimate decision is broken, and the ultimate decision is clearly made on an

independent and a legally permissive basis, the bias of the subordinate is not relevant.” Id. at

1102 (quoting Willis v. Marion Cnty. Auditor’s Office, 118 F.3d 542, 547 (7th Cir. 1997)).

The analysis from Hampton v. Vilsack applies here. The Court finds that

allegations of biased comments by Ms. Higginbotham were too stale to support an inference of

discrimination in the 2008 decision to suspend Ms. Morris for seven days, which was made

independently by Mr. Spears. Even if Ms. Morris demonstrated that Ms. Higginbotham was

biased against Whites, Mr. Spears made the final decision to suspend Ms. Morris, not Ms.

20
Higginbotham. Mr. Spears conducted an independent review, without speaking to Ms.

Higginbotham about the proposed suspension or the conduct that led to it. See Def. Ex. 1, Spears

Decl. ¶¶ 3-5. Mr. Spears separately concluded that Ms. Morris had “intentionally and wilfully

disobeyed Ms. Higginbotham’s December 21, 2007 directive” via the “widespread dissemination

of [the] Issue Paper, significant parts of which constituted a response to the Region 4

memorand[a].” Def. Ex. 11, Memo from Spears 4/28/08 at 3. Ms. Morris presents no evidence

that Ms. Higginbotham’s alleged racial animus infected or influenced Mr. Spears’s disciplinary

decision. 13

C. Retaliation

To establish a prima facie case of retaliation, a plaintiff must show that: (1) she

engaged in protected activity; (2) she suffered from a materially adverse act; and (3) a causal

connection exists between the protected activity and the employer’s act. Forkkio v. Powell, 306

F.3d 1127, 1131 (D.C. Cir. 2002). A plaintiff must present sufficient evidence to support a

finding that retaliation was the true reason for the challenged action. McGrath v. Clinton, 666

F.3d 1377, 1383-84 (D.C. Cir. 2012). A materially adverse act is not necessarily confined to the

workplace, as long as “a reasonable employee would have found the challenged action materially

adverse.” Burlington, 548 U.S. at 68. To be materially adverse, an employer’s action must be

more than “those petty slights or minor annoyances that often take place at work and that all
13
While Ms. Morris has been proceeding on a single-motive claim, alleging that EPA
“discriminated against [Ms. Morris] on the basis of her race,” see Am. Compl. ¶ 19, in opposing
summary judgment she asserts a mixed-motive claim, alleging that “one of” the reasons for her
suspension was discrimination. See Opp’n at 28-29. Generally, a plaintiff cannot raise a claim
on summary judgment that she did not raise in the complaint. See Franks v. Salazar, 816 F.
Supp. 2d 49, 58 n.5 (D.D.C. 2011); but see Turner v. Shinseki, 824 F. Supp. 2d 99, 122 n.23
(D.D.C. 2011) (plaintiff constructively amended complaint via summary judgment briefing).
Even if Ms. Morris alleged a mixed-motive claim, it would fail because there is no evidence that
Mr. Spears had any discriminatory motive, i.e., that he suspended Ms. Morris, even in part,
because she is White.

21
employees experience,” id.; a materially adverse action is one that would “dissuade[] a

reasonable worker from making or supporting a charge of discrimination.” Id.; see also Baloch

v. Kempthorne, 550 F.3d 1191, 1198–99 (D.C. Cir. 2008).

The Amended Complaint asserts that EPA retaliated against Ms. Morris because:

(1) she had certified a Management Directive (MD) 715 report that was critical of Ms.

Higginbotham, Am. Compl. ¶ 9; (2) she had reported Ms. Higginbotham “for refusing to submit

MD-715 reports to the EEOC,” id. ¶ 15; and (3) she had taken “opposing civil rights views from

management,” id. ¶ 21. Protected activity under Title VII is limited to participating in EEO

activity or opposing unlawful employment practices as defined in 42 U.S.C. § 2000e-2 & e-3,

which deal exclusively with employment discrimination on the basis of race, color, religion, sex,

or national origin. King v. Jackson, 468 F. Supp. 2d 33, 37-38 (D.D.C. 2006). Ms. Morris’s

certification of an MD-715 report critical of Ms. Higginbotham, her complaint that Ms.

Higginbotham was not submitting MD-715 reports as required, and her opposition to her

manager’s decision to expand beyond what EPA policy required are not protected activities

under Title VII.

Ms. Morris also alleges that EPA retaliated against her based on an EEO

complaint that she filed when she was employed by the Army. Def. Ex. 17, Morris Dep. at 196-

99. EPA employee Jessleyn Pendarvis allegedly informed Ms. Higginbotham about Ms.

Morris’s EEO complaint against the Army in 2005 or 2006. Id. at 197.

Even if Ms. Morris’s hearsay testimony concerning Ms. Pendarvis’s alleged

report to Ms. Higginbotham were admissible, Ms. Morris does not assert that Mr. Spears, the

deciding official, knew about her prior EEO complaint against the Army. Where “the officials

responsible for an allegedly adverse employment action are unaware of the employee’s prior

22
EEO activity, that employee cannot establish a prima facie case of retaliation.” Bolden v.

Clinton, 847 F. Supp. 2d 28, 39 (D.D.C. 2012) (citing cases); see also Taylor v. Mills, 892 F.

Supp. 2d 124, 146 (D.D.C. 2012) (finding no genuine issue of material fact concerning

supervisor’s alleged retaliatory motive where supervisor was not implicated in prior EEO

complaints). Further, even if Mr. Spears did know about Ms. Morris’s prior EEO activity at the

Army, Ms. Morris fails to establish any connection between her 2005-2006 EEO complaint and

Mr. Spears’s suspension decision in 2008, years later and at an entirely different workplace.

Protected activity that predates a challenged employment action by more than a year will rarely

support an inference of causation. Na’im v. Clinton, 626 F. Supp. 2d 63, 78 (D.D.C. 2009); see

also Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001) (“The cases that accept mere

temporal proximity between an employer’s knowledge of protected activity and an adverse

employment action as sufficient evidence of causality to establish a prima facie case uniformly

hold that the temporal proximity must be ‘very close.’”) (citing cases that found three and four

month time gaps to be insufficient to show a prima facie case of retaliation). In addition, the fact

that Ms. Morris’s prior EEO complaint was directed against Army decision-makers substantially

undermines her claim that EPA supervisors were motivated to retaliate. See Taylor, 892 F. Supp.

2d at 146.

Ms. Morris also ties her retaliation allegations to her “protected activity by

complaining to Ms. Higginbotham” in January and February 2008. See Opp’n at 23. Ms. Morris

references her February 14, 2008, response to Ms. Higginbotham’s statement that Ms.

Higginbotham was deciding what to do about Ms. Morris’s insubordinate conduct. 14 On that

occasion, Ms. Morris responded, “I have already taken actions to protect myself from you and
14
Ms. Morris had distributed the Issue Sheet two days earlier, on February 12, 2008. See Def.
Ex. 7, Email from Ms. Morris 2/12/08.

23
will take whatever other actions are necessary if you proceed.” Def. Ex. 9, Email from Morris

2/14/08. Ms. Higginbotham did not understand this statement to mean that Ms. Morris planned

to file an EEO complaint. Def. Ex. 1, Higginbotham Decl. ¶ 16. Regardless of Ms.

Higginbotham’s understanding, Ms. Morris does not present evidence (or even allege) that Mr.

Spears knew that Ms. Morris planned to file an EEO complaint when he issued the suspension

notice. Without evidence of Mr. Spears’s knowledge of prior protected EEO activity, Ms.

Morris cannot establish a prima facie case of retaliation. See Bolden, 847 F. Supp. 2d at 39.

Without regard to whether she established a prima facie case of retaliation, Ms.

Morris has not raised a genuine issue of material fact with regard to her claim of pretext. See

Opp’n at 25-27 (advancing identical arguments for pretext with respect to claims of intentional

discrimination and retaliation). The Court has analyzed and rejected these arguments above.

Accordingly, summary judgment will be granted in favor of EPA on Ms. Morris’s retaliation

claim.

IV. CONCLUSION

For the reasons set forth above, EPA’s motion for summary judgment [Dkt. 31]

will be granted, and judgment will be entered in favor of EPA. A memorializing Order

accompanies this Opinion.

Date: February 12, 2014
/s/
ROSEMARY M. COLLYER
United States District Judge

24