Borgo, Susan M. v. Goldin, Daniel S.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 13, 1999 Decided March 3, 2000

No. 98-5503

Susan M. Borgo,
Appellee

v.

Daniel S. Goldin, Administrator,
National Aeronautics and Space Administration,
Appellant

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.

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 sum-
mary 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. Be-
cause 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.

I

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 Secre-
tary of NMBRAC because of tension between her and
NMBRAC's chairman. Tension also developed between Bor-
go 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

__________
1 Although plaintiff disputed those criticisms, for purposes of her
motion for judgment as a matter of law she "accept[ed] as true

 On April 29, 1993, Thomas sent Borgo a memorandum
complaining that she had involved his office in a government-
wide 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 government-
wide 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 profes-
sional 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 inter-
view" 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 your
manager, and I did not include you, an African-American
male, as a full member of the team, and treat you as a
competent professional, that, by now, I would have been
severely reprimanded or fired by senior management.

Id. at 32.

On May 25, 1993, Thomas sent Borgo a termination letter,
stating that she was being discharged as a result of "unaccep-

__________
every pre-May 3rd criticism made by Mr. Thomas." 2/3/98 Trial
Tr. at 46 (J.A. at 312).

table 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 effec-
tively interact and work with the Chairman" of NMBRAC,
her "inability to conform to established deadlines on work
assignments," and her "general negative behavior and atti-
tude 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 unex-
plained 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 authoriza-
tion 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 con-
ference, 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

__________
2 The MSPB adjudicates charges brought under 5 U.S.C. s 2302
alleging, inter alia, that a federal agency has taken a personnel
action against an employee for disclosing a violation of law. The
substance of Borgo's charge was that NASA fired her because she
reported acts of misconduct relating to the Federal Advisory Com-
mittee Act, 5 U.S.C. app. II, ss 1 et seq.

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 whole
tenure, 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 mak-
ing 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, insubordinate.

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

s 2000e-2(m), the district court granted Borgo's motion. Re-
lying 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 appropri-
ate 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.
s 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).

II

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) (judg-
ment as a matter of law). Summary judgment may be
granted only if "there is no genuine issue as to any material
fact [and] the moving party is entitled to judgment as a
matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247 (1986) (quoting Rule 56). A dispute about a material
fact "is 'genuine' ... if the evidence is such that a reason-
able jury could return a verdict for the nonmoving party."

__________
3 The trial was limited to plaintiff's cause of action for retaliation.
Prior to trial, Borgo abandoned her underlying claims of race and
sex discrimination. See Joint Pretrial Statement at 1 n.1 (Jan. 8,
1998).

Id. at 248. As the Supreme Court noted in Anderson, "this
standard mirrors the standard for a directed verdict under
Federal Rule of Civil Procedure 50(a), which is that .... [i]f
reasonable minds could differ as to the import of the evidence
... a verdict should not be directed." Id. at 250-51 (cita-
tions omitted). The "primary difference between the two
motions is procedural," the Court explained; "summary judg-
ment motions are usually made before trial and decided on
documentary evidence, while directed verdict motions are
made at trial and decided on the evidence that has been
admitted." Id. at 251 (citation omitted). In both situations,
the court must view the evidence in the light most favorable
to the nonmoving party and must not assess witness credibili-
ty. See Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1288,
1298 (D.C. Cir. 1998) (summary judgment); Mackey v. Unit-
ed States, 8 F.3d 826, 829 (D.C. Cir. 1993) (judgment as a
matter of law).

Title VII states that "[i]t shall be an unlawful employment
practice for an employer to discriminate against any of [its]
employees ... because he has opposed any practice made an
unlawful employment practice by this subchapter." 42 U.S.C.
s 2000e-3(a).4 The amendments to Title VII contained in the
Civil Rights Act of 1991 address the proper disposition of
cases in which there may be a mixture of legitimate and
illegitimate motives for an employer's actions. See Civil
Rights Act of 1991, Pub. L. No. 102-166, s 107, 105 Stat.
1071, 1075 (codified at 42 U.S.C. ss 2000e-2(m), 2000e-5(g)).
As codified at 42 U.S.C s 2000e-2(m), the statute provides
that liability for "an unlawful employment practice is estab-
lished when the complaining party demonstrates that race,
color, religion, sex or national origin was a motivating factor

__________
4 The same section makes it unlawful to discriminate against an
employee because the employee "participated" in any proceeding
under the subchapter. See 42 U.S.C. s 2000e-3(a). As the district
court held, it is the "opposition" rather than the "participation"
clause that applies to this case. Plaintiff complained of retaliation
"not against her official EEO complaints, but against [the May 3]
memorandum she wrote to her supervisor opposing discrimination
she perceived from him." Borgo, slip op. at 5.

for any employment practice, even though other factors also
motivated the practice." Section 2000e-5(g)(2)(B) then ad-
dresses the question of remedy, providing that when the
plaintiff proves that an impermissible consideration was a
motivating factor, but the defendant demonstrates that it
"would have taken the same action in the absence of" that
factor, a court may not award certain kinds of relief including
damages and reinstatement (but may grant other specified
relief, including costs and attorney's fees).5 The parties and
the district court assumed that the 1991 Act's mixed-motives
framework applies both where the allegedly impermissible
motivation is retaliation, as it is here, and where it is race,
color, religion, sex or national origin, as expressly set forth in
the statute. Accordingly, we make the same assumption for
purposes of this appeal.6

In the following sections, we examine two questions. First,
we consider whether the district court properly granted

__________
5 The three provisions of Title VII cited above apply only to
private employers, see id. s 2000e(b); a separate provision provides
that "[a]ll personnel actions affecting employees ... in executive
agencies ... shall be made free from any discrimination based on
race, color, religion, sex, or national origin," id. s 2000e-16(a).
"Despite the differences in language ... we have held that Title
VII places the same restrictions on federal and District of Columbia
agencies as it does on private employers, and so we may construe
the latter provision in terms of the former." Bundy v. Jackson, 641
F.2d 934, 942 (D.C. Cir. 1981). We have specifically applied that
principle in the context of retaliation claims. See Brown v. Brody,
199 F.3d 446, 452-53 (D.C. Cir. 1999).

6 In Price Waterhouse v. Hopkins, the Supreme Court held that
once a plaintiff proves that an impermissible motive was a substan-
tial or motivating factor in an adverse employment decision, the
burden shifts to the employer to demonstrate it would have made
the same decision in the absence of the unlawful motive. See 490
U.S. 228, 249-58 (1989) (Brennan, J.) (plurality opinion); id. at 259
(White, J., concurring). It further held that if the employer satis-
fies that burden, it may avoid a finding of liability altogether. See
id. at 258 (Brennan, J.) (plurality opinion); id. at 260 (White, J.);
id. at 261 (O'Connor, J., concurring). In Thomas v. National
Football League Players Ass'n, 131 F.3d 198, 202-04 (D.C. Cir.

summary judgment on plaintiff's claim that NASA violated
Title VII because retaliation was a motivating factor in her
termination. Second, we consider whether the court properly
granted judgment as a matter of law against NASA's conten-
tion that the scope of the remedy should be limited because
the agency would have fired Borgo even in the absence of a
retaliatory motive.

A

In seeking summary judgment on her retaliation claim,
Borgo construed Thomas' MSPB testimony as stating that
the penultimate paragraph of her May 3 letter, which argu-
ably charged him with "reverse" discrimination, was "the
straw that broke the camel's back." Pl.'s Mem. in Supp. of
Partial Summ. J. at 8-9 (J.A. at 19-20). NASA defended by

__________
1997), this court applied Price Waterhouse to pre-1991 claims of
retaliation under Title VII.

In 1991, Congress overturned Price Waterhouse in part, amend-
ing Title VII to provide that once a plaintiff proves discrimination to
have been a motivating factor, liability is established. See Civil
Rights Act of 1991, s 107 (codified at 42 U.S.C. s 2000e-2(m)); see
also H.R. Rep. No. 102-40, pt. 1, at 45-49 (1991). Although an
employer cannot thereafter avoid liability, it can avoid a damages or
reinstatement remedy by demonstrating that it would have taken
the same action in the absence of that factor. See 42 U.S.C.
s 2000e-5(g)(2)(B). As noted in the text above, while discrimina-
tion claims based on protected status, such as race or sex, were
covered by the 1991 Act, Congress did not expressly include retalia-
tion claims in the provision that modified Price Waterhouse. Some
circuits have held that retaliation claims are not covered by the
Civil Rights Act of 1991 and are still governed by Price Water-
house. See, e.g., McNutt v. Board of Trustees, 141 F.3d 706, 709
(7th Cir. 1998); Woodson v. Scott Paper Co., 109 F.3d 913, 932-36
(3d Cir. 1997). This circuit has not addressed that question.
Because both parties agreed below that the Civil Rights Act of 1991
provided the appropriate framework for decision, see Joint Pretrial
Statement at 4, and neither asks us to address the issue here, we
have no need to resolve the question to decide this case. See also
Borgo Br. at 13 n.3 (stating that resolution of the issue is not
required).

arguing that Thomas' testimony was that it was Borgo's
"entire" letter--not the controverted paragraph--"that was
the final straw." Def.'s Opp. to Partial Summ. J. at 11 (J.A.
at 48) (emphasis in original).7 Accepting Borgo's argument,
and relying solely on Thomas' MSPB testimony, the district
court granted plaintiff's motion for summary judgment. We
cannot sustain that decision because, viewed in the light most
favorable to NASA, Thomas' MSPB testimony on this ques-
tion was at best ambiguous. A genuine issue regarding
Thomas' motivation therefore remained for determination at
trial.

At the MSPB hearing, Thomas testified at length about
what he regarded as the unresponsiveness of Borgo's letter.
Rather than acknowledging her failure to advise him of the
government-wide conference, or promising to do better in the
future, she had sent him a letter declaring that she was
"unable to be idle and waste the taxpayers' money." J.A. at
120. In essence, he said, "she writes back pretty much telling
me where to go.... She is going to do what she wants to
do." Id.

Then came the fateful question and answer. It is true that
counsel read the penultimate paragraph of the May 3 letter
and then asked: "Did you form any opinion about that
statement?" Id. at 122. It is also true that counsel asked
Thomas how he regarded "this language." Id. at 123. But it
is not at all clear that those were the questions Thomas
answered. Instead, he said:

This letter, and the reason I think you saw a lot of
emotion coming out--and I apologize to you Mr. Gor-
man--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 then this, you know, and all I did was

__________
7 NASA also defended on the ground that the controverted
paragraph did not constitute protected opposition to an unlawful
employment practice under 42 U.S.C. s 2000e-3(a). In light of our
reversal of summary judgment, we do not reach that question.

 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.

Id. at 122-23 (emphasis added).

Thomas' testimony does make clear that Borgo's letter was
the final straw. But he did not state that the paragraph
complaining of reverse discrimination was that straw. Nor
was the letter a single, unitary complaint of discrimination.
Only one paragraph of the letter can be characterized as such
a complaint. The balance, although phrased as a response to
Thomas' original memorandum, communicates a message of
continuing resistance to Thomas' right to supervise her.
From Thomas' testimony, a jury could infer that he was
retaliating for the paragraph alleging discrimination. But it
could also reasonably infer that he was responding to the
letter's overall nonresponsiveness and message of nonacquies-
cence. That was precisely the point Thomas made in the
testimony leading up to his reference to the proverbial straw.8
Accordingly, even focusing solely on Thomas' MSPB testimo-
ny as the district court did, we cannot agree that any reason-
able jury would have to find him motivated at least in part by

__________
8 Referring to Borgo's May 3, 1993 letter, Thomas testified:

This is her purported answer to my April 29th memo....
[Purported] [b]ecause it doesn't answer it. You know, I told
her ... she should tell me about things as important as this.
And she writes back pretty much telling me where to go....
She is going to do what she wants to do.... [R]ather than
addressing what I've said, ... she goes over why she was hired
at NASA, you know, which is irrelevant.... And she talks
about ... what she did in her last job and how qualified she
was. And then she says very curious things like she is unable
to be idle and waste the taxpayers' money while she waits for
specific work assignments while at the same time she was late
with most of the work assignments. She talks about ... how
she was not included to participate in outreach efforts and that
was totally untrue.... So the memo was full of things that
were inaccurate and were not addressing my memo at all.

J.A. at 119-21.

a desire to retaliate against plaintiff for including the offend-
ing paragraph.

Moreover, Thomas' MSPB testimony was not the only
evidence before the court. NASA's filings included an affida-
vit from Thomas asserting that he fired Borgo for "the
reasons specified in my termination letter to her." Thomas
Aff. p 63 (J.A. at 72). That May 25, 1993 letter listed the
grounds for termination as including missed deadlines, unex-
plained absences, inability to work with others, behavior
"bordering on insubordination," and, with specific reference
to Borgo's May 3 letter, the failure to indicate that she would
cooperate with Thomas in the future. J.A. at 128-29. It did
not, however, mention Borgo's suggestion that he was guilty
of reverse discrimination. A jury considering this list of
reasons could conclude that retaliation was simply not in the
mix. Of course, a jury could also conclude that Thomas was
not being forthright in omitting the discrimination complaint
from that list. For purposes of summary judgment, however,
the statement in Thomas' affidavit--that he fired Borgo for
the reasons set out in the termination letter--must be accept-
ed as true. See Hall v. Giant Food, Inc., 175 F.3d 1074, 1078
(D.C. Cir. 1999); Greene v. Dalton, 164 F.3d 671, 674 (D.C.
Cir. 1999).

In sum, we cannot reach a conclusion that Thomas had a
retaliatory motive without both construing ambiguity against
NASA and discounting Thomas' credibility. We may not do
either, however, at the summary judgment stage. Because
there remains a genuine issue of material fact, and because a
reasonable jury could find that NASA did not have, even in
part, a retaliatory motive, we reverse the grant of summary
judgment.

B

In addition to granting Borgo's motion for summary judg-
ment on the issue of liability, the district court also granted
Borgo's motion for judgment as a matter of law on the
question of remedy, finding that NASA would not have fired
Borgo in the absence of a retaliatory motive. Our reversal of

the grant of summary judgment necessarily requires reversal
of the grant of judgment as a matter of law. The latter,
which goes only to the question of an appropriate remedy,
cannot be considered until a jury first finds for Borgo on the
issue of liability. Moreover, if a reasonable jury could con-
clude that NASA did not have, even in part, a retaliatory
motive, it necessarily could conclude that NASA would have
fired Borgo in the absence of such a motive.
This logic aside, at trial there was more than sufficient
evidence from which a reasonable jury could conclude that
NASA would have fired Borgo in the absence of retaliation.
At the trial stage, NASA was not limited to Thomas' MSPB
transcript, affidavit, and termination letter. Testifying in
person, Thomas conceded that he could not say he would have
fired plaintiff absent the May 3 letter. The letter, he said,
was "the final thing that swung me." J.A. at 278. But he
steadfastly resisted the suggestion that his true motivation
was the letter's penultimate paragraph. To the contrary, he
repeatedly insisted that Borgo was fired because of the
letter's overall refusal to acknowledge his supervisory author-
ity, not because of the statement suggesting he was guilty of
reverse discrimination:

Q: And it was this statement here that you considered
to be misconduct?

THOMAS: No, I've never said that. I never referred to
that sentence.

Q: You did consider this statement to be misconduct?

THOMAS: No. I've always referred to the letter. I've
always referred to the letter, and I've always said that
it's because the letter did not say she would do what I
said to do.

Id. at 271.9

Moreover, when specifically confronted with his MSPB
testimony, Thomas insisted that, although he had been asked
__________
9 See also id. at 254 ("There is no sentence or paragraph in that
letter where she says that she was going to do what I said."); id. at
261 ("[I]t was clear to me that she had indicated that she was not
going to be supervised by me."); id. at 265 (stating that the

about the statement in the controverted paragraph, his an-
swer about the last straw was directed to the letter as a
whole:

THOMAS: Every time I said "letter," didn't I? When
did I say this paragraph?

Q: You were asked specifically about this statement in
the letter, and that was your response.

THOMAS: But what was my answer? My answer was
"letter." My letter [sic] was never this paragraph.

....

It was the letter. The letter. Once again she was
saying she wasn't going to do what I said to do. How
can you supervise someone after that?

....

Q: Mr. Thomas, when you were asked in the prior
proceeding about this particular language, you said that
it was the straw that broke the camel's back, didn't you?

THOMAS: I did not say this language. I said the letter,
and that's what I've always said.
Id. at 274-75.

Thomas' admission that the May 3 letter was "the final
thing that swung me" is not the equivalent of an admission
that it was the letter's disputed paragraph that did the
swinging--not unless unless one disbelieves Thomas' re-
peated protestations to the contrary. The latter, however, is
a question of credibility for the jury, not a question of law for
the court. See Hayman v. National Academy of Sciences, 23
F.3d 535, 537 (D.C. Cir. 1994). Because a reasonable jury
could find that NASA would have terminated Borgo in the
absence of a retaliatory motive, we reverse the grant of
judgment as a matter of law.
_________
termination letter's description of Borgo's conduct as "defiant and
border[ing] on insubordination" referred to Borgo's suggestion in
the May 3 letter that "to answer my memo is a waste of her time, is
a waste of taxpayers' money").

III

What was the straw that broke the camel's back? The
answer, we conclude, is for the jury to decide. We therefore
reverse the orders granting plaintiff summary judgment and
judgment as a matter of law, and remand the case for a trial
on the merits.