Susan Morris v. Gina McCarthy

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 16, 2015 Decided June 14, 2016
No. 14-5074
SUSAN M. MORRIS,
APPELLANT
v.
GINA MCCARTHY, ADMINISTRATOR, U.S. ENVIRONMENTAL
PROTECTION AGENCY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:11-cv-00701)
Ellen K. Renaud argued the cause for appellant. With her
on the briefs were David H. Shapiro and Richard L. Swick.
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
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GRIFFITH.
2
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.
3
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.
4
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.
5
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
6
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
7
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 right to seek relief before the
MSPB would not be prejudiced by the dismissal, which was
entered, not as a determination of the merits of her appeal, but
simply because the OSC investigation might provide the relief
Morris sought. Morris v. EPA, No. DC-0752-10-0865-I-1, at
3 (M.S.P.B. Oct. 20, 2010). Pursuant to the administrative
judge’s order, Morris’s MSPB appeal was automatically
refiled on January 24, 2011, after Morris’s reinstatement at
EPA expired. But in April 2011, three days before her
scheduled MSPB hearing, Morris withdrew her MSPB appeal
and filed suit in district court.
The district court dismissed Morris’s claim that her
termination violated Title VII, holding that she failed to
exhaust her administrative remedies because she did not allow
the MSPB sufficient time to adjudicate her appeal. And
although Morris’s claims regarding her suspension survived
dismissal, the district court ultimately disposed of them at
8
summary judgment. According to the district court, no
reasonable jury could find that Morris’s suspension was
motivated by discrimination because she had not shown that
EPA’s proffered explanation for suspending her was mere
pretext for racial animus. The court also rejected Morris’s
claim that her suspension was retaliatory, reasoning that she
had not shown that Spears, the final decisionmaker, knew she
had engaged in any activity protected by Title VII.
Morris appeals both the dismissal of her termination-
based claims and the grant of summary judgment on her
suspension-based claims. We have jurisdiction under 28
U.S.C. § 1291.
II
Morris first argues that the district court erred in
dismissing her termination-based claims. We review de novo
a dismissal for failure to state a claim under Federal Rule of
Civil Procedure 12(b)(6). Schlottman v. Perez, 739 F.3d 21,
25 (D.C. Cir. 2014). Like the district court, we hold that
Morris failed to exhaust her administrative remedies.
Morris filed suit in district court on April 8, 2011—74
days after her appeal was automatically refiled with the
MSPB on January 24, 2011. The district court reasoned that
Morris failed to exhaust her administrative remedies because
she did not give the MSPB 120 days from the January refiling
date to adjudicate her claims, as required by statute. See 5
U.S.C. § 7702(e)(1)(B). Before us, Morris contends that she
allowed the agency sufficient time because she first filed her
appeal with the MSPB in September 2010. The MSPB’s
October 2010 dismissal without prejudice was not, she argues,
a “judicially reviewable action.” She urges that because the
MSPB took no judicially reviewable action within 120 days
9
of her September 2010 filing date, she was entitled to sue in
district court under section 7702(e)(1)(B). EPA responds that
the MSPB took a judicially reviewable action when the
administrative judge dismissed Morris’s appeal without
prejudice in October 2010. If Morris wanted to challenge this
dismissal, the agency contends, she should have done so
within 30 days of the date the MSPB decision became final—
by December 24, 2010.
Regardless of whether the October 2010 dismissal was
judicially reviewable, we conclude that Morris has failed to
exhaust her administrative remedies. Morris invited the
MSPB to delay the processing of her appeal when she asked
the administrative judge to suspend the proceedings. Having
requested this postponement, Morris cannot now argue that
the agency failed to promptly adjudicate her claim. Cf. Bhd. of
R.R. Trainmen v. Chicago, Milwaukee, St. Paul & Pac. R.R.
Co., 380 F.2d 605, 609 (D.C. Cir. 1967) (“A party may not
allege on appeal as error an action which he had induced [an
administrative] tribunal to take[.]”). Indeed, finding the
exhaustion requirement of section 7702(e)(1)(B) satisfied here
would create a problematic loophole. Future litigants wishing
to avoid agency adjudication could request a delay before the
MSPB, wait 120 days, and then file in district court without
ever advancing their claims in the administrative forum. See
Vinieratos v. U.S. Dep’t of Air Force, 939 F.2d 762, 774 n.11
(9th Cir. 1991) (explaining that the 120-day rule “is not an
escape valve” allowing a claimant to postpone his MSPB
appeal to pursue remedies in another administrative forum
and “nonetheless obtain a hearing in federal court”).
When litigants bypass administrative resolution in this
manner, the substantial benefits of exhaustion are lost. As the
Supreme Court has explained, exhaustion serves two main
10
purposes: it “protects administrative agency authority” by
allowing the agency to correct its own mistakes and by
discouraging disregard of its procedures, and it “promotes
efficiency” by building a useful record for judicial review
and, in some cases, eliminating the need for judicial review
altogether. Woodford v. Ngo, 548 U.S. 81, 89 (2006) (internal
quotation marks omitted). We decline to read the 120-day
timer of section 7702(e)(1)(B) in a manner that would
undermine these goals.
Morris argues that she should be permitted to pursue her
claims in district court despite her request to postpone
adjudication before the MSPB. She contends that she did not
initiate the October 2010 dismissal; rather, the MSPB did
when it asked whether Morris’s appeal should be dismissed
without prejudice. See Oral Arg. at 9:30-9:55. Had Morris
preferred not to delay the MSPB proceedings, however, her
recourse was simple: she could have said so. Instead, she
requested that the MSPB postpone her appeal. She further
argues that because she requested a stay before the MSPB,
and not a dismissal, she did not “abandon” her MSPB appeal.
See Oral Arg. at 2:11-2:57. But our holding does not hinge on
the precise nature of Morris’s request. What matters is that
Morris received the outcome she invited: a lag of more than
four months between when she first filed and when her case
proceeded before the MSPB. She cannot argue that the agency
should have processed her appeal during this interval.
Morris therefore did not allow the agency the requisite
120 days to adjudicate her appeal. In reaching this conclusion,
we need not decide whether the statute’s 120-day timer began
ticking when Morris first filed her appeal or when her appeal
was automatically refiled. Counting from either date, her
appeal was not actively pending before the MSPB for 120
11
days. 1 As a result, the district court properly dismissed her
termination claims for failure to exhaust her administrative
remedies.
III
Morris next challenges the district court’s grant of
summary judgment on her claims that her suspension was
discriminatory and retaliatory in violation of Title VII. We
review that decision de novo, Hairston v. Vance-Cooks, 773
F.3d 266, 271 (D.C. Cir. 2014), viewing the evidence in the
light most favorable to Morris, drawing all reasonable
inferences in her favor, and avoiding weighing the evidence
or making credibility determinations, Hamilton v. Geithner,
666 F.3d 1344, 1351 (D.C. Cir. 2012). We may affirm the
district court’s judgment only if no reasonable jury could
reach a verdict in Morris’s favor. Id.Under Title VII, the federal government may not
discriminate against employees on the basis of race, 42 U.S.C.
§ 2000e–16(a), or retaliate against them because they
complain of discrimination, id. § 2000e–3(a). See Barnes v.
Costle, 561 F.2d 983, 988 (D.C. Cir. 1977). Morris claims
that EPA did both to her.
We analyze Morris’s claims using the familiar framework
set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792(1973). Under this formula, an employee must first make out
1
From Morris’s initial September 8, 2010, filing date, 42 days
elapsed until the MSPB dismissed her appeal on October 20, 2010.
Another 74 days passed between January 24, 2011, when the appeal
was refiled, to April 8, 2011, when Morris filed in district court.
Morris’s appeal was actively pending before the MSPB, then, for
no more than 116 days.
12
a prima facie case of retaliation or discrimination. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000).
The employer must then come forward with a legitimate, non-
discriminatory or non-retaliatory reason for the challenged
action. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 254-55 (1981). If the employer meets this burden, the
McDonnell Douglas framework falls away and the factfinder
must decide the ultimate question: whether the employee has
proven intentional discrimination or retaliation. St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 510-12 (1993). The
employee can survive summary judgment by providing
enough evidence for a reasonable jury to find that the
employer’s proffered explanation was a pretext for retaliation
or discrimination. Hamilton, 666 F.3d at 1351; see also Brady
v. Office of the Sergeant at Arms, 520 F.3d 490, 494 (D.C.
Cir. 2008).
Evaluating whether an employee may proceed to trial, we
ask whether a reasonable jury could infer discrimination or
retaliation from “all the evidence, which includes not only the
prima facie case but also the evidence the plaintiff offers to
attack the employer’s proffered explanation for its action and
[any] other evidence.” Gaujacq v. EDF, Inc., 601 F.3d 565,
577 (D.C. Cir. 2010) (quoting Jones v. Bernanke, 557 F.3d
670, 677 (D.C. Cir. 2009)). A jury may infer discrimination
from, among other things, “evidence of discriminatory
statements or attitudes on the part of the employer.” Aka v.
Wash. Hosp. Ctr., 156 F.3d 1284, 1289 (D.C. Cir. 1998) (en
banc). To avoid summary judgment, employees need not
necessarily provide evidence beyond that rebutting the
employer’s stated explanation. See Reeves, 530 U.S. at 147-
48.
13
A
We start with Morris’s claim that her suspension was
motivated by racial discrimination. She argues that
Higginbotham’s alleged racial bias influenced Spears’s
decision to suspend her. In other words, Morris asserts that
Spears was the conduit of Higginbotham’s discriminatory
motives—her “cat’s [] paw.” Walker v. Johnson, 798 F.3d
1085, 1095 (D.C. Cir. 2015). Under a cat’s-paw theory of
discrimination, an employer may be held liable for
discriminatory acts by a direct supervisor—even where that
supervisor is not the final decisionmaker—if “[1] [the]
supervisor performs an act motivated by [discriminatory]
animus [2] that is intended by the supervisor to cause an
adverse employment action, and . . . [3] that act is a proximate
cause of the ultimate employment action.” Staub v. Proctor
Hosp., 562 U.S. 411, 422 (2011); see Burley v. Nat’l
Passenger Rail Corp., 801 F.3d 290, 297 & n.1 (D.C. Cir.
2015) (applying Staub in the Title VII context). Here, Staub’s
second prong is easily met: Higginbotham’s recommendation
that Morris be suspended for insubordination was clearly
intended to cause such a suspension. The first and third
prongs of Staub warrant discussion, but we ultimately
conclude that Morris has introduced sufficient evidence for a
reasonable trier of fact to find in her favor.
i
Under the first prong, a reasonable jury could find that
the insubordination charge was pretextual and that
Higginbotham was motivated by discriminatory animus when
she recommended suspending Morris. We base this
conclusion on evidence that Higginbotham harbored bias
14
toward white employees, as well as on the weaknesses Morris
identifies in EPA’s explanation for the suspension.
Morris’s strongest evidence of Higginbotham’s
discriminatory attitude consists of race-based remarks she
allegedly made. An EPA employee supervised by Morris,
Alease Wright, recalled that around 2005 or 2006,
Higginbotham said of Morris, “[T]he little white woman
better stand in line . . . . [T]his is EPA[;] we can whip her into
shape.” Wright Decl. ¶ 7. Wright also testified that
“Higginbotham told me that John Newton, an African-
American, could not get a promotion from a white woman, so
she told Ray Spears to send him down to [Higginbotham’s]
office and she would give him a [promotion to pay-scale
level] GS-15.” Id. ¶ 6. Similarly, Morris attested that
Higginbotham once said, “[I]f the white woman up there
won’t promote [Newton], I will.” Morris Decl. ¶ 13. Morris
further testified that on one occasion Higginbotham referred
to a group of young men working at EPA as “nasty little white
boys.” Id. ¶ 21; see also Morris Dep. at 82. Another time, at a
staff meeting discussing an unrelated incident in which EPA
was found to have discriminated against an employee,
Higginbotham told the staff that “those white boys . . . will
learn a lesson now.” Morris Dep. at 86.
In granting summary judgment to EPA, the district court
discounted these statements one by one: the comment that
Morris “better stand in line” was made too long before
Morris’s suspension to be probative; Wright’s statement about
Newton was belied by the record; and the remaining
comments were “stray remarks” unrelated to Morris’s
suspension.
15
We disagree with the district court’s treatment of these
remarks. For starters, the determination that the record did not
support Wright’s statement about Newton improperly credits
EPA’s evidence over Morris’s. The district court found that
Newton was not promoted into his position at OCR and that
his prior supervisor was not a white woman but an African-
American man. As such, the district court discredited
Wright’s testimony. But this evidence merely creates a
question of fact as to whether Higginbotham actually made
the statement Wright attributed to her: that Newton “could not
get a promotion from a white woman” and that Higginbotham
would therefore promote him. It is the jury’s role—not the
court’s—to determine the weight to give Wright’s
recollection in light of evidence casting doubt on its accuracy.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986) (“[A]t the summary judgment stage the judge’s
function is not himself to weigh the evidence and determine
the truth of the matter but to determine whether there is a
genuine issue for trial.”).
Moreover, in dismissing Higginbotham’s comments
about “nasty little white boys” and “white boys . . . learn[ing]
a lesson” as immaterial “stray remarks”—that is, statements
unrelated to Morris’s suspension—the district court failed to
view the record in the light most favorable to Morris.
Although we have found that an isolated race-based remark
unrelated to the relevant employment decision could not,
without more, permit a jury to infer discrimination, see, e.g.,
Waterhouse v. District of Columbia, 298 F.3d 989, 996-97
(D.C. Cir. 2002), we have not categorically labeled such
comments immaterial. To the contrary, we have found these
types of statements to support a verdict for a Title VII
plaintiff. See, e.g., Evans v. Sebelius, 716 F.3d 617, 622-23
(D.C. Cir. 2013); Talavera v. Shah, 638 F.3d 303, 312-13
16
(D.C. Cir. 2011); Anderson v. Grp. Hospitalization, Inc., 820
F.2d 465, 472 (D.C. Cir. 1987); see also Reeves, 530 U.S. at
152-53 (cautioning lower courts against discounting
discriminatory statements “not made in the direct context” of
the challenged employment action). The same is true of
remarks made significantly before the relevant employment
action, such as Higginbotham’s statement that “the little white
woman better stand in line.” Even if such a statement carries
less weight than one made at the time of the suspension, it is
nonetheless probative evidence of a supervisor’s
discriminatory attitude, at least when it is targeted directly at
the plaintiff or is one of a pattern of similar remarks. Instead
of reviewing each racially charged remark individually and
finding it insufficient, we consider it alongside any additional
statements—and all other evidence—to determine whether a
plaintiff has met her burden. See Aka, 156 F.3d at 1290(explaining that at summary judgment, “the court must
consider all the evidence in its full context”).
Here, Morris introduced evidence that Higginbotham
made multiple racially biased statements about white
employees—including one about Morris. EPA points to no
case in which we have affirmed a grant of summary judgment
to an employer despite racially charged statements of the
number and tenor of those here, and we have found none. 2
These remarks are readily distinguishable—whether because
of their pervasiveness, severity, or the role of the speaker in
the adverse action—from those this court has said would not
2
When asked at oral argument to identify such a case, counsel
for EPA pointed to Ezold v. Wolf, Block, Schorr & Solis-Cohen,
983 F.2d 509 (3d Cir. 1992). See Oral Arg. at 34:45-35:49. But the
remarks in Ezold were attributed to a company executive who took
no part in the ultimate employment decision at issue. See 983 F.2d
at 543-47.
17
permit a jury to infer discrimination. See, e.g., Hampton v.
Vilsack, 685 F.3d 1096, 1101 (D.C. Cir. 2012) (single
statement by individual uninvolved in the challenged
employment decision); Morgan v. Fed. Home Loan Mortg.
Corp., 328 F.3d 647, 654-55 (D.C. Cir. 2003) (single email
sent by individual uninvolved in the challenged employment
decision); Waterhouse, 298 F.3d at 996-97 (general statement
regarding diversity efforts made by supervisor years after the
challenged employment action; statement that the office had
“too many white managers” made by supervisor in the same
year he hired plaintiff, a white manager); Hall v. Giant Food,
Inc., 175 F.3d 1074, 1079-80 (D.C. Cir. 1999) (single
statement made after the challenged employment decision by
individual uninvolved in that decision). Considered together,
Higginbotham’s statements could lead a reasonable juror to
find that she harbored a discriminatory attitude toward white
employees.
Of course, Morris must show more than a general bias
against white employees; she must also introduce enough
evidence for a reasonable jury to find that her suspension was
motivated by that bias. To make this showing, Morris relies
on weaknesses in EPA’s explanation. Specifically, she
contends that a reasonable jury could find that her issue sheet
was not a “response” to Tommelleo’s memo, and could
therefore infer that Higginbotham did not honestly believe
Morris had violated the instruction not to respond. For its part,
EPA argues that under Title VII, an employer need not be
correct in its nondiscriminatory reason for disciplining an
employee; it need only honestly believe the reason and
therefore lack a discriminatory motive. Morris’s subjective
opinion that her issue sheet did not “respond” to the critical
memo, EPA contends, is irrelevant.
18
EPA is correct that a Title VII plaintiff cannot survive
summary judgment merely by asserting that her employer
made a bad decision. Rather, she must raise a genuine dispute
over the employer’s honest belief in its proffered explanation.
See Fischbach v. D.C. Dep’t of Corr., 86 F.3d 1180, 1183
(D.C. Cir. 1996) (“Once the employer has articulated a non-
discriminatory explanation for its action . . . the issue is not
‘the correctness or desirability of [the] reasons offered . . .
[but] whether the employer honestly believes in the reasons it
offers.’” (quoting McCoy v. WGN Cont’l Broad. Co., 957
F.2d 368, 373 (7th Cir. 1992))). A plaintiff can meet this
burden by casting doubt on the objective validity of the
employer’s explanation. 3 See, e.g., Reeves, 530 U.S. at 143-
46.
Morris does precisely that. She challenges the objective
validity of EPA’s insubordination explanation in an effort to
call into question whether Higginbotham honestly believed
that justification. She argues that a reasonable jury could find
that she did not violate Higginbotham’s order, but rather
wrote a human resources complaint protesting (1) the
involvement of EPA staff outside of OCR in the agency’s
equal employment policies and (2) Higginbotham’s refusal to
respond to the allegations in the memo. She asserts that she
did not send the issue sheet to Tommelleo or Tommelleo’s
supervisor and did not answer their accusations at any length,
although she “recount[ed]” some of their charges against her.
Appellant’s Br. at 30. Further, she adds that Higginbotham’s
3
The cases EPA cites do not dispute this point. Rather, they
merely stand for the principle that a plaintiff cannot survive
summary judgment unless there is a genuine dispute as to the
employer’s sincerity—that is, a dispute that would allow a
reasonable jury to find for the plaintiff. See Hairston, 773 F.3d at
273; Brady, 520 F.3d at 496 & n.4.
19
reasons for failing to respond to the memo were feeble.
Higginbotham said that other work priorities overwhelmed
her during the fall of 2007 and that she was dealing with her
own medical issues and those of her ailing brother. But
Morris presents evidence that the medical issues were largely
resolved by mid-September 2007, and that the additional
work priorities wrapped up in November—before
Higginbotham ever told Morris in December 2007 that she
would reply to the memo.
Drawing all inferences in Morris’s favor, then, the
following sequence of events emerges: Higginbotham knew
that Morris, a senior manager in her group, had been wrongly
accused of unprofessional conduct. She forbade Morris from
responding to those accusations, promising that she would do
so herself. But she failed to reply for some two months after
sending Tommelleo’s memo to Morris (five months after
receiving it in the first place) and offered unpersuasive
explanations for that failure. Morris, forbidden from
responding to the allegations herself and finding her
supervisor unwilling to step in, ultimately submitted a human
resources complaint protesting her supervisor’s handling of
the incident and broader office policies, taking care not to
reply directly to the employees who had made the
accusations. She was then charged with insubordination for
violating the order not to “respond.” Viewed from this
perspective, a reasonable jury could be “quite suspicious” of
the sincerity of Higginbotham’s insubordination charge.
Evans, 716 F.3d at 622. And combined with evidence that
Higginbotham had made repeated, disparaging comments
about white employees, including one statement about Morris,
that jury could find that the insubordination charge was
pretext for racial discrimination. See id.
20
Considering the evidence in the light most favorable to
Morris, we cannot say as a matter of law that Higginbotham
honestly believed the nondiscriminatory reason she provided.
While a reasonable jury might infer from these facts that
Higginbotham’s justification was sincere, it might instead
infer that in charging Morris with insubordination,
Higginbotham was dissembling to cover up a discriminatory
motive. Resolving such conflicting inferences is precisely the
type of function we leave to the jury, not to a judge ruling on
a summary judgment motion. See Pardo-Kronemann v.
Donovan, 601 F.3d 599, 605 (D.C. Cir. 2010). Morris
therefore survives summary judgment on the first Staub
prong.
ii
Staub’s third prong requires that the biased supervisor’s
act be a proximate cause of the ultimate employment action.
EPA argues, and the district court found, that Spears’s
independent investigation of the insubordination charge
insulated his decision to suspend Morris from
Higginbotham’s racial bias. In effect, EPA contends that any
animus on Higginbotham’s part was not a proximate cause of
Morris’s suspension because Spears’s investigation was an
intervening, superseding cause. We disagree.
Proximate cause requires only “some direct relation”
between the injury asserted and conduct alleged and excludes
only those “link[s] that are too remote, purely contingent, or
indirect.” Staub, 562 U.S. at 419 (quoting Hemi Group, LLC
v. City of New York, 559 U.S. 1, 9 (2010)). A jury could
reasonably find that Higginbotham’s proposal to suspend
Morris directly related to Spears’s ultimate decision to
suspend her. In his written decision, Spears explicitly noted
21
that he was approving the suspension “as proposed by Ms.
Higginbotham.” J.A. 395.
The closer question is whether Spears’s investigation was
a superseding cause—that is, a “cause of independent origin
that was not foreseeable,” Staub, 562 U.S. at 420. The “mere
conduct of an independent investigation” does not break the
causal chain between a supervisor’s bias and an adverse
employment action. Id. at 421. Rather, the supervisor’s biased
recommendation may still influence the ultimate decision if
the final decisionmaker “takes it into account without
determining that the adverse action was, apart from the
supervisor’s recommendation, entirely justified.” Id.A reasonable juror could determine that Higginbotham’s
report colored Spears’s evaluation of the incident at hand.
That report contained subjective observations that Morris had
“difficulty getting along with others,” was not “appropriately
diplomatic,” and had “acrimon[ious]” interactions with
colleagues. J.A. 360-61. Spears’s suspension decision
repeatedly referenced Higginbotham’s report, and in fact
expressly agreed with a portion of her assessment that
considered subjective factors. EPA does not argue that Spears
had personal knowledge of the facts underlying
Higginbotham’s subjective observations. The case upon
which the district court relied, Hampton v. Vilsack, is
distinguishable. See 685 F.3d 1096. There, the allegedly
biased supervisor played virtually no role in the decision to
terminate the plaintiff. See id. at 1101-02. Here, although
Spears considered some facts that were objectively
verifiable—for example, the statements Morris made in her
issue sheet—we cannot be confident that his decision was
insulated from Higginbotham’s subjective views. As a result,
22
we conclude that a reasonable jury could find that his decision
was swayed by Higginbotham’s subjective judgments.
In sum, Morris introduced enough evidence for a
reasonable jury to find that (1) Higginbotham was motivated
by racial animus when she recommended Morris’s
suspension, (2) the recommendation was intended to cause the
suspension, and (3) the recommendation was a proximate
cause of Spears’s ultimate decision. We therefore reverse the
district court’s grant of summary judgment on Morris’s claim
that her suspension was motivated by racial discrimination.
And because Morris’s cat’s-paw argument entitles her to
proceed to trial on this claim, we need not review the district
court’s rejection of her alternative theory that Spears was
independently motivated by racial bias. See Wilson v. Cox,
753 F.3d 244, 248-49 (D.C. Cir. 2014) (declining to consider
an alternative theory of liability after concluding that an
employment-discrimination plaintiff was entitled to a trial).
At trial, the parties will have a “fresh opportunity” to present
evidence about the motivation for Morris’s suspension, and
the “factfinder will assess and determine, in light of all of that
evidence, whether the decision stemmed from a
discriminatory motive.” Id.B
Finally, we address Morris’s claim that EPA suspended
her in retaliation for her complaints of employment
discrimination. Title VII bars retaliation against employees
who participate in a Title VII proceeding or oppose practices
made illegal by Title VII. See Parker v. Balt. & Ohio R.R.
Co., 652 F.2d 1012, 1019 (D.C. Cir. 1981). To establish either
type of retaliation claim, an employee must have engaged in
protected participation or opposition activity about which the
23
employer knew. See Jones, 557 F.3d at 679 (explaining that
an employee’s supervisors “could not have retaliated against
him unless they had knowledge of his protected activity”).
Morris contends that a reasonable jury could infer that both
Spears and Higginbotham knew she had engaged in protected
activity. We disagree and therefore hold that the district court
properly granted summary judgment on Morris’s retaliation
claim.
According to Morris, Spears learned of her protected
activity by reading her issue sheet and her attorney’s written
response to the proposed suspension. Those documents assert
that Morris engaged in protected activity by articulating
positions on behalf of OCR and engaging in debates about
equal employment issues. But such job-related policy
discussions are not protected. They do not amount to
participation in a Title VII proceeding. Nor are they protected
opposition activity, because they do not oppose any discrete
practice that Morris reasonably could have believed
discriminated on the basis of race, color, religion, sex, or
national origin. See Curay-Cramer v. Ursuline Acad. of
Wilmington, Del., Inc., 450 F.3d 130, 134-35 (3d Cir. 2006)
(holding that “basic [] advocacy” on an issue does not
constitute opposition to an illegal employment practice).
Labeling generalized policy disagreements a form of
protected activity would risk insulating employees in civil
rights roles from adverse employment action, because such
debates are presumably part of their everyday duties. See
BARBARA LINDEMANN & PAUL GROSSMAN, EMPLOYMENT
DISCRIMINATION LAW 15-30 (5th ed. 2012) (explaining that
employees who are “simply doing the job for which they were
hired . . . may not have engaged in protected activity at all”).
Because Morris points to no legitimate protected activity of
24
which Spears might have known, she cannot survive summary
judgment on this basis.
Morris next argues that a reasonable jury could infer that
Higginbotham knew Morris had participated in the Title VII
process by asking to meet with an EEO counselor. In support,
Morris contends that she told Higginbotham in late 2007 she
would “not [] stand for any [] more discrimination or
retaliation.” Morris Decl. ¶ 35. Higginbotham also testified
that in early 2008 she was aware that an OCR employee had
asked to meet with an EEO counselor—a preliminary step in
filing a Title VII complaint. And finally, also in early 2008,
Morris told Higginbotham and other officials “multiple times”
that “the Agency was required to provide an EEO counselor
in a timely manner.” 4 Id. ¶ 37. Taken together, Morris
contends, her statements informed Higginbotham that Morris
was the employee requesting EEO counseling.
Morris’s argument is too speculative to defeat summary
judgment. And an employee cannot survive summary
judgment if a jury can do no more than “speculate” that her
employer knew of her protected activity. Talavera v. Shah,
638 F.3d 303, 313 (D.C. Cir. 2011). Morris never asserts that
she told Higginbotham the request was hers. Nor does Morris
contend that EPA in general was aware of her request, or that
Higginbotham as a result could have known about it. Contra
Hamilton, 666 F.3d at 1358. Instead, during this period, it was
the Department of Energy—not EPA—that handled EEO
counseling requests for employees in Morris’s office.
Moreover, Morris’s statements would not necessarily have put
Higginbotham on notice. To the contrary, Morris’s comment
4
Although Morris was entitled to meet with an independent
EEO counselor from the Department of Energy, EPA had to
provide funds for the counseling.
25
that OCR was “required to provide an EEO counselor in a
timely manner” was hardly extraordinary in an office devoted
to compliance with employment law. It thus reads as a senior
manager’s reminder to her superior of the office’s general
compliance obligations—not an admission that Morris wanted
to meet with a counselor or was assisting another employee in
obtaining such a meeting apart from her ordinary job duties.
No reasonable jury could find that Morris’s reminder notified
Higginbotham that Morris was personally involved in the
complaint process.
Because Morris has not introduced evidence sufficient for
a reasonable jury to infer that either Higginbotham or Spears
knew of any protected activity, the district court properly
granted summary judgment to EPA on Morris’s retaliation
claim.
IV
We affirm the district court’s orders dismissing Morris’s
termination claims and granting summary judgment on her
claim that her suspension was retaliatory. We reverse the
district court’s order granting summary judgment on Morris’s
claim that her suspension was motivated by racial
discrimination and remand for further proceedings consistent
with this opinion.