United States District Court, District of Columbia
SUSAN M. MORRIS, Plaintiff,
SCOTT PRUITT, in his official capacity as Administrator, U.S. Environmental Protection Agency, Defendant.
E. BOASBERG UNITED STATES DISTRICT JUDGE.
this case has spanned nearly seven years, its genesis lasted
only seven days. That was the length of the insubordination
suspension that Plaintiff Susan Morris claimed was
discriminatorily imposed on her. Morris, who is white, worked
as a manager in the Environmental Protection Agency's
Office of Civil Rights for almost a decade. Her supervisor
was Director Karen Higginbotham, who in turn reported to Ray
Spears, the agency's Deputy Chief of Staff, both of whom
are black. While Morris received several awards for
leadership and service during her time at EPA, her career was
sidetracked in 2008, when Higginbotham proposed (and Spears
approved) her week-long suspension. Morris attributes that
discipline to her race.
Rosemary Collyer, to whom the case was previously assigned,
granted summary judgment in the Government's favor on
this question, but the Court of Appeals reversed, holding
that “a reasonable jury could find that Morris's
suspension was motivated by racial discrimination.”
Morris v. McCarthy, 825 F.3d 658, 663 (D.C. Cir.
2016). When the case finally went to trial, a jury did so
find and awarded Morris $25, 000 in damages. The Government
now seeks to upset that verdict, moving both for judgment as
a matter of law and a new trial. It does not succeed.
Court begins with the facts that emerged at trial, resolving,
as it must given the verdict, all reasonable inferences in
Plaintiff's favor. It then briefly recounts the
case's procedural history.
spent 32 years in government service and was a ten-year
veteran of the EPA. See Trial Tr. (10/30/17 AM) at
91:15-21. In 2004, she became a supervisory program manager
at the agency's Office of Civil Rights (OCR), where she
oversaw the Affirmative Employment and Diversity staff.
Id. at 96-101. During her tenure, she received
several leadership awards, including the prestigious
Distinguished Public Service Award from National Image, Inc.,
a nonprofit Hispanic organization. See Trial Tr.
(10/30/17 PM) at 44-45. Additionally, her staff nominated her
for the EPA Administrator's Manager-of-the Year award for
three consecutive cycles. Id. at 43:18-21. At trial,
her employees testified that she was a “very
fair” and “very supportive manager, ” Trial
Tr. (10/31/17 AM) at 97:21-22, with one going so far as to
deem her “the best supervisor [he] ever had within the
government for the last 40 years.” Id. at
upward trajectory was arrested, however, after a fateful
conference call with fellow EPA employee Nancy Tommelleo in
August 2007. See Trial Tr. (10/30/17 PM) at 52-54.
During that conversation, the two discussed the agency's
new advisory group for gay and lesbian employees, disagreeing
about the proper name for it. Id. at 61-62. Morris
thought the call had gone innocently enough, id. at
67, and Higginbotham, who was also on the line, similarly
found Morris “forceful” but not
“disrespectful” during the conversation.
See Trial Tr. (10/31/17 PM) at 96:14-17 (quoting
Higginbotham's deposition). Tommelleo, however,
immediately penned a memo to her supervisor, Mary J. Wilkes,
complaining that Morris had launched a “highly
inappropriate” “verbal assault” against
her. See Trial Tr. (10/30/2017 PM) at 78:1-2;
79:4-7. On September 21, 2007, Wilkes forwarded this memo to
Higginbotham, Spears, and other senior EPA officials, along
with her own memo objecting to Morris's conduct.
Id. at 74-75.
told Morris about the memo shortly after receiving it, and
Morris was understandably shaken by the allegations against
her. Despite Plaintiff's repeated requests, however,
Higginbotham refused to provide her with a copy until three
months later. Id. at 67-70. At that point, she
advised: “Do not respond to this memo. I will
prepare the response and you will be copied on my
reply.” Id. at 74:6-8 (emphasis in original).
But when Higginbotham had failed to respond by February 2008,
id. at 83:21-84:8, Morris took matters into her own
hands, emailing a document that she called an “Issue
Paper” to Higginbotham, Spears, and the members of the
agency's Human Resources Council. Id. at 86-89.
That Issue Paper principally complained about broader office
policies and dynamics. Id. at 91:10-19, 93:18-20. It
also cited various personal attacks on Morris's own
reputation - including Tommelleo's memo, Wilkes's
accompanying memo, and Higginbotham's failure to respond
as promised, as well as her refusal to allow Morris to reply.
Id. at 94-96. In her “Background”
section, Morris also directly quoted passages from the
Tommelleo and Wilkes memos. Id.
immediately emailed Morris to say that she believed the Issue
Paper directly violated her order not to respond to
Tommelleo's memo, and that she would consider
disciplinary action as a result. See Trial Tr.
(10/31/PM) at 54:7-23. In reply, Morris maintained that she
had not, in fact, responded, and Higginbotham thus had no
basis for discipline. Id. at 54:24-25, 55:1-4. A
month later, Higginbotham proposed to Spears that Morris be
suspended without pay for seven days. Id. at
86:23-25, 87:1. Spears approved the suspension in April 2008.
See Trial Tr. (11/1/17 AM) at 22:19-21.
brought suit in district court on April 8, 2011, alleging
principally that both this 2008 suspension - as well as her
subsequent 2010 termination (which was not at issue at trial)
- violated Title VII of the Civil Rights Act of 1964. Judge
Collyer, who originally presided over the case until it was
transferred to this Court on September 27, 2017, see
ECF No. 59, dismissed the termination claim for failure to
exhaust. See Morris v. Jackson, 842 F.Supp.2d 171,
178 (D.D.C. 2012), aff'd, 825 F.3d at 667. The
suspension claim has taken a more circuitous route. While
Judge Collyer initially granted summary judgment on it,
see ECF No. 42, the D.C. Circuit reversed, holding
that a reasonable jury could find that Morris's
suspension was motivated by racial discrimination. See
Morris, 825 F.3d at 669.
this Court inherited the case, it shortly thereafter
proceeded to trial. Four days of testimony later, the jury
returned a verdict in favor of Plaintiff, awarding her $25,
000 in damages for both lost pay and non-economic damages.
See ECF No. 73. Unhappy with this result, the
Government now moves for judgment as a matter of law or,
alternatively, for a new trial.
Government first moves under Federal Rule of Civil Procedure
50(a), which provides that “[i]f a party has been fully
heard on an issue during a jury trial and the court finds
that a reasonable jury would not have a legally sufficient
evidentiary basis to find for the party on that issue,
” the trial court may enter judgment as a matter of law
on that issue. In evaluating such a motion, the court cannot
“lightly disturb a jury verdict. Judgment as a matter
of law is appropriate only if the evidence and all reasonable
inferences that can be drawn therefrom are so one-sided that
reasonable men and women could not have reached a verdict in
plaintiff's favor.” Muldrow v. Re-Direct,
Inc., 493 F.3d 160, 165 (D.C. Cir. 2007) (internal
quotation marks and citation omitted). This Court
“cannot substitute its view for that of the jury, and
can assess neither the credibility nor weight of the
evidence.” Scott v. District of Columbia, 101
F.3d 748, 753 (D.C. Cir. 1996).
Rule of Civil Procedure 59(a)(1)(A), meanwhile, states that
after a jury trial, “[t]he court may, on motion, grant
a new trial on all or some of the issues . . . . for any
reason for which a new trial has heretofore been granted in
an action at law in federal court.” Although this
articulation may be less than helpful, courts outside our
Circuit have expanded on its meaning. See, e.g.,
EEOC v. New Breed Logistics, 783 F.3d 1057, 1066
(6th Cir. 2015) (“The language of Rule 59(a) has been
interpreted to mean that a new trial is warranted when a jury
has reached a seriously erroneous result as evidenced by . .
. the verdict being against the weight of the evidence . . .
or the trial being unfair to the moving party in some
fashion.”) (internal quotation marks and citation
omitted); Venson v. Altamirano, 749 F.3d 641, 656
(7th Cir. 2014) (“A new trial is appropriate if the
jury's verdict is against the manifest weight of the
evidence or if the trial was in some way unfair to the moving
demanding standard reflects the principle that “Rule 59
is not a vehicle for relitigating old issues, presenting the
case under new theories, [or] securing a rehearing on the
merits.” Sequa Corp. v. GBJ Corp., 156 F.3d
136, 144 (2d Cir. 1998). “Although parties may
certainly request a new trial or amended findings where clear
errors or manifest injustice threaten, in the absence of such
corruption of the judicial processes, where litigants have
once battled for the court's decision, they should
neither be required, nor without good reason permitted, to
battle for it again.” Int'l Ore. &
Fertilizer Corp. v. SGS Control Servs., Inc., 38 F.3d
1279, 1287 (2d Cir. 1994) (internal quotation marks and
four days of trial and two of deliberations, a jury
attributed Morris's suspension to racial discrimination.
The Government now wants another bite at the apple, asking
this Court to either reverse that verdict outright or at
least permit a replay. But in law, as in life, there are
rarely do-overs. Not prone to “lightly disturb a
jury's verdict, ” McGill v. Munoz, 203
F.3d 843, 845 (D.C. Cir. 2000), the Court will deny the
Motion in both respects after separately examining each
Judgment as Matter of Law
Government first seeks judgment as a matter of law, arguing
that “the evidence firmly established that Plaintiff
had been insubordinate and no reasonable jury could find
otherwise.” JMOL Mot. at 2. This stance, however, is
little more than déjà vu all over
again. Defendant adopted the same position at summary
judgment and indeed convinced the trial judge to concur. But
on appeal, the Court of Appeals held flatly: “[A]
reasonable jury could find that Morris's
suspension was motivated by racial discrimination, ”
rather than insubordination. See Morris,
825 F.3d at 663 (emphasis added). The Government thus faces
an uphill battle, needing to show that evidence at trial
deviated in some significant respect from that promised to
the D.C. Circuit.
refresh, Morris's essential claim was that her direct
supervisor, Karen Higginbotham, harbored racial animus
against her. Although it was Ray Spears who ultimately issued
the suspension, the Court of Appeals allowed the case to
proceed to trial “[u]nder a cat's paw theory of
discrimination, ” which allows liability for
“discriminatory acts by a direct supervisor - even
where that supervisor is not the final decisionmaker.”
Id. at 668. To prevail, a plaintiff must show that
“ [the] supervisor performs an act motivated by
[discriminatory] animus  that is intended by the
supervisor to cause an adverse employment action, and . . .
 that act is a proximate cause of the ultimate employment
action.” Id. (alterations in original)
(emphasis omitted) (quoting Staub v. Proctor Hosp.,
562 U.S. 411, 422 (2011)).
D.C. Circuit concluded that a reasonable jury could find all
three prongs satisfied. Specifically, it held that
“Staub's second prong is easily met:
Higginbotham's recommendation that Morris be suspended
for insubordination was clearly intended to cause such a
suspension.” Id. The first and third prongs,
by contrast, at least “warrant[ed] discussion” by
the panel. Id. Following its lead, the Court picks
Suspension Motivated by Racial Animus
the first prong, the Circuit held that “a reasonable
jury could find that the insubordination charge was
pretextual and that Higginbotham was motivated by
discriminatory animus when she recommended suspending
Morris.” Id. at 669. It based that conclusion
on two grounds: (a) “evidence that Higginbotham
harbored bias toward white employees, ” and (b)
“weaknesses Morris identifies in EPA's explanation
for the suspension.” Id. The evidence at trial
unfolded along those lines as well.
Evidence of racial bias
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). In that vein, the Court of Appeals deemed
Plaintiff's “strongest evidence” of racial
animus statements that Higginbotham had made in the
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
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.” Similarly,
Morris attested that Higginbotham once said, “[I]f the
white woman up there won't promote [Newton], I
will.” Morris further testified that on one occasion
Higginbotham referred to a group of young men working at EPA
as “nasty little white boys.” Another time, at a