By Marjorie Johnson, J.D.
The District of Columbia Circuit revived the Title VII claim of a Caucasian manager in the EPA’s civil rights office, in which she asserted that her African-American director made racially derogatory comments—including that "the little white woman better stand in line"—and was the "cat’s paw" that influenced the chief’s decision to approve her seven-day unpaid suspension. However, her bias and retaliation claims as to her subsequent termination were properly tossed since she failed to exhaust her administrative remedies. Accordingly, the appeals court affirmed in part and reversed in part the dismissal of her claims on summary judgment (Morris v. McCarthy
, June 14, 2016, Griffith, T.).
The plaintiff served as the assistant director for affirmative employment in the EPA’s Office of Civil Rights (OCR) and was supervised by the black director, who reported to the black deputy chief of staff. In 2007, she disagreed with a coworker over the naming of an advisory group that was examining concerns of gay and lesbian employees. After a conference call in August, the coworker sent a memo to her supervisor and other officials complaining that the plaintiff had behaved unprofessionally.
On September 21, the coworker’s supervisor forwarded this memo to the director, the chief, and other officials, along with her own memo objecting to the plaintiff’s conduct. The director told the plaintiff not to respond and that she would do so. However, after she failed to take any action by February 2008, the plaintiff emailed an "issue sheet" to the director, the deputy chief, and the agency’s HR council, in which she complained about non-OCR employees’ handling of EEO policies and that her reputation had been attacked.
The director admonished her action as violating her order not to respond to the coworker’s memo and a month later proposed that she receive a seven-day unpaid suspension. The deputy chief approved the suspension on April 28, 2008. Two years later, in March 2010, the director proposed terminating her for insubordination and misuse of supervisory authority.
A day after learning of the termination proposal, the plaintiff filed a whistleblower complaint with the Office of Special Counsel (OSC) alleging that the EPA proposed terminating her because she had exposed wrongdoing within the agency. At the OSC’s request, the EPA agreed to delay firing her pending its investigation. In August 2010, it declined to delay further and fired her.
She appealed her termination to the Merit Systems Protection Board (MSPB) on September 8, 2010. About a month later, the MSPB dismissed her claim without prejudice pending the OSC investigation, but ordered that her case be automatically refiled upon the expiration of her temporary reinstatement, which occurred on January 24, 2011. That April, three days before her scheduled MSPB hearing, she withdrew her MSPB appeal and filed the instant action.
The D.C. Circuit affirmed the district court’s determination that the plaintiff properly exhausted her administrative remedies as to her suspension but not her termination. Given that her appeal to the MSPB was dismissed without prejudice while OSC was investigating her whistleblower complaint, and not refiled until her expiration of temporary reinstatement, she did not allow the requisite 120 days for the MSPB to adjudicate her appeal. Even though she did not ask for the dismissal (but instead asked for an abeyance), she 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.
Reviving her race bias claim as to her suspension, the court found it possible that, under the "cat’s paw" theory, the director’s racial bias influenced the chief’s decision to suspend her. First, the director’s bias toward white employees could be inferred from her alleged comments, such as the "little white woman better stand in line" and that "we can whip her into shape." She also allegedly stated another black employee would not a get a promotion from "the white woman" and referred to a group of young EPA employees as "nasty little white boys."
Comments not stray remarks.
Rejecting the district court’s characterization of these comments as stray remarks, the D.C. Circuit found that a reasonable juror could infer from them that the director harbored a discriminatory attitude toward white employees. The plaintiff also introduced enough evidence to show her suspension was motivated by that bias by arguing that because her "issue sheet" was not a "response" to the coworker’s memo, a jury could find that the director did not honestly believe she violated her order not to respond.
She also sufficiently refuted the EPA’s assertion that she was suspended for insubordination. A jury could find that the director knew she was wrongly accused of unprofessional conduct, forbidden from responding, and promised that a response would be made. After no action was taken, she submitted an HR complaint protesting her supervisor’s handling of the incident and broader office policies, taking care not to reply directly to the employees who made the accusations. She was then charged with insubordination for violating the order not to "respond."
Viewed from this perspective, and combined with evidence of the director’s disparaging comments about white employees, a reasonable jury could be "quite suspicious" of the sincerity of the director’s insubordination charge. Moreover, the chief’s independent investigation did not necessarily insulate his decision to suspend her from the director’s racial bias. The jury could determine that the director’s report colored the chief’s evaluation since it contained negative subjective observations and was repeatedly referenced by the chief’s assessment.
However, she failed to revive her claim that she was suspended in retaliation for her complaints of bias since there was no showing that the decisionmakers were aware of her protected activity. Her job-related policy discussions about EEO issues were not protected and she failed to show that the director or chief knew she had participated in the Title VII process by asking to meet with an EEO counselor.