United States District Court, District of Columbia
SUSAN M. MORRIS, Plaintiff,
ANDREW WHEELER, in his official capacity as Acting Administrator, U.S. Environmental Protection Agency, Defendant.
E. BOASBERG UNITED STATES DISTRICT JUDGE.
2011, Plaintiff Susan Morris filed this lawsuit against her
former employer, the Environmental Protection Agency,
principally alleging that she was fired because of her race.
Seven years later, the case went to trial on a much narrower
issue: whether a seven-day suspension Morris suffered several
years before her termination was discriminatory. A jury
decided that it was and awarded her $25, 000 in damages. All
that is left now is Plaintiff's Motion for Equitable
Relief. Here, she asks the Court to order alterations to her
personnel file, require backpay and reinstatement, and award
her nearly $500, 000 in attorney fees and costs. Concluding
that Morris is entitled to some - but not all - of the relief
she seeks, the Court grants in part and denies in part the
relevant facts and history of this litigation are known to
any reader of the past Opinions in this case. See,
e.g., Morris v. McCarthy, 825 F.3d 658 (D.C.
Cir. 2016); Morris v. Pruitt, 308 F.Supp.3d 153
(D.D.C. 2018). The Court nevertheless returns to the field of
battle to provide necessary context for the parties'
dispute over equitable relief. The facts underlying this suit
- as elicited at trial - are recounted first before the
procedural history is described in some detail.
Morris is a white woman who used to work as a supervisory
program manager at E PA 's Office of Civil Rights.
See Trial Tr. (10/30/17 AM) at 98:6-98:24,
104:10-104:17. Things seemed to be going well for her in that
role until a conference call in August 2007. See
Trial Tr. (10/30/17 PM) at 52:9-25. The subject of the
fateful call was a new advisory group Morris was involved in
organizing for E PA 's gay and lesbian employees.
Id. at 54:11-19.
the dreary conference calls common in the professional world,
this one was heated. Id. at 66:1-8. The source of
the clash was Plaintiff's disagreement with EPA employee
Nancy Tommelleo about what the group should be named. While
the call lasted only thirty minutes, its fallout would be
felt for months. Tommelleo, upset with how she felt Morris
had treated her, sent her supervisor a memorandum criticizing
her behavior during the call. Id. at 76:6-77:17. The
supervisor then drafted her own memorandum summarizing the
concerns about Morris and sent it along with Tommelleo's
to Morris's supervisor, Karen Higginbotham. Id.
at 79:23-82:9. Higginbotham, a black woman who was then the
Director of EPA's Office of Civil Rights, did not
immediately give Morris copies of the memos. Id. at
67:21-70:12. When she sent her the memos several months
later, Higginbotham directed Morris not to respond to them;
rather, she would address the matter herself. Id. at
months later, after Higginbotham had still not acted, Morris
sent an issue paper to EP A 's Human Resources Council,
an advisory group tasked with counseling t h e E P A
administrator on various HR matters. Id. at
86:5-91:24. The paper mentioned, among other subjects, the
memos written by Tommelleo and her supervisor. Id.
at 94:2-96:22; Trial Tr. (10/31/17 AM) at 21:21-23:18.
Higginbotham testified that she interpreted the paper as a
response to those memos and, accordingly, that she felt
Morris had been insubordinate. See Trial Tr.
(10/31/17 PM) at 15:5-19:2. She recommended that Morris
receive a seven-day suspension without pay, which EPA Deputy
Chief of Staff Ray Spears approved. Id. at 18:2-22;
Trial Tr. (11/1/17) at 22:22-24:6. Several years after the
suspension, Plaintiff was terminated from her position at
EPA, allegedly for multiple instances of misconduct.
See ECF No. 95 (Mot.), Exh. 3 (Removal Letter) at 1.
time at EPA was marked by more than disputes over
insubordination, according to testimony from her and her
co-workers. During the decade or so she worked there,
Plaintiff and other employees witnessed Higginbotham make
derogatory remarks about white employees. One employee
testified that Higginbotham said of Morris, “That
little white woman better stand in line.” Trial Tr.
(10/31/17 AM) at 60:1-4. Morris testified that her supervisor
had also referred to several interns at EPA as “little
nasty white boys.” Trial Tr. (10/30/17 PM) at 25:18-25.
(Higginbotham denied making such remarks. See Trial
Tr. (10/31/17 PM) at 25:20-26:25.) In light of these and
other statements, Morris believed that the adverse employment
actions she suffered - viz., her suspension and
subsequent termination - were racially motivated.
by her treatment at EPA, Morris sought relief in different
fora. She went the administrative route first, pursuing her
suspension through an Equal Employment Opportunity Counselor
and her termination through the Merit Systems Protection
Board. See ECF No. 9 (Opp. to MTD), Exh. 1 (EEO
Report); ECF 6 (MTD), Exh. 9 (MSPB Decision). When she had no
luck there, she brought this suit in district court on April
8, 2011. See ECF No. 1 (Compl.). The initial
Complaint, which Morris filed pro se, sought relief
on four counts - retaliation in violation of Title VII,
termination on the basis of gender in violation of Title VII,
termination on the basis of race in violation of Title VII,
and termination on the basis of age in violation of the Age
Discrimination in Employment Act. See Compl.,
¶¶ 61-97. About a month later, attorney David H.
Shapiro entered an appearance on Morris's behalf.
See ECF No. 3. With new counsel, Plaintiff
subsequently filed an Amended Complaint alleging, in addition
to the previous claims and several other new ones, that she
had received the seven-day suspension in 2008 because of her
age, sex, and gender. See ECF No. 4 (Amended
Complaint), ¶¶ 11, 19-20.
Government moved for dismissal and summary judgment on
various grounds. See ECF No. 6 (MTD, MSJ). Agreeing
in part, Judge Rosemary M. Collyer, to whom the case was
initially assigned, dismissed or granted summary judgment to
EPA on everything except Morris's suspension claims.
See Morris v. Jackson, 842 F.Supp.2d 171 (D.D.C.
2012). The case then proceeded to discovery, after which the
Government filed a motion for summary judgment. See
ECF No. 31 (MSJ). Siding with EPA, Judge Collyer granted that
motion, thus terminating the case, and Plaintiff appealed.
See Morris v. Jackson, 15 F.Supp.3d 94 (D.D.C.
2014); ECF No. 44 (Notice of Appeal). The Court of Appeals
affirmed most of the district court's decisions, but it
reversed the grant of summary judgment and remanded for trial
one claim: that Morris's suspension was racially
discriminatory. See Morris, 825 F.3d at 663. Before
trial, the case was reassigned to this Court. See
ECF No. 59.
the parties filed pretrial statements and the Court ruled on
pretrial motions, the matter proceeded to trial. See
ECF No. 60 (Pretrial Statement); Minute Order of 10/18/2017.
The jury issued a verdict in favor of Plaintiff and awarded
her $25, 000 in damages. See ECF No. 73 (Clerk's
Judgment). Defendant then filed a motion for judgment as a
matter of law, which the Court denied. See ECF No.
79 (Renewed Motion for JMOL); Morris, 308 F.Supp.3d
153. Now, after seven years of motions, only Plaintiff's
Motion for Equitable Relief remains. See ECF No. 95.
VII entitles individuals to be “[made] whole for
injuries suffered on account of unlawful employment
discrimination.” Albemarle Paper Co. v. Moody,
422 U.S. 405, 418 (1975). To effectuate this purpose,
“Congress took care to arm the courts with full
equitable powers” so that the injured party may be
“placed, as near as may be, in the situation he [or
she] would have occupied if the wrong had not been
committed.” Id. at 418-19 (citation and
internal quotation marks omitted); see Lander v.
Lujan, 888 F.2d 153, 156 (D.C. Cir. 1989). The district
court has “considerable discretion” in choosing
the method or methods of redress, Lander, 888 F.2d
at 156, although this discretion must be exercised “in
light of the large objectives of [Title VII].”
Albemarle Paper, 422 U.S. at 416. In determining
appropriate “make-whole relief, ” the court
“may make factual findings . . . as long as the
findings are consistent with the jury verdict.”
Porter v. Natsios, 414 F.3d 13, 21 (D.C. Cir. 2005)
(internal quotation marks and citation omitted). Among the
forms of equitable relief authorized by Title VII are
reinstatement, backpay, and attorney fees. See 42
U.S.C. § 2000e-5(g)(1), (k).
returns to the Court seeking several categories of such
relief. First, she asks for an order that E P A expunge from
her personnel file any record of her seven-day suspension and
award her backpay for that period. Second, Morris seeks an
order that EPA void her subsequent termination, restore her
to her previous position, and provide her backpay from the
time of her termination in 2011 to the present. Third, she
requests attorney fees and litigation costs. Addressing each
request in turn, the Court disagrees with Plaintiff's
first and second demands but grants her most of the fees and
first is the question of whether Morris is entitled to
expungement of the seven-day suspension from her record and
backpay for those days. Plaintiff says obviously yes: The
jury agreed with her that the suspension was discriminatory,
so she is entitled to have her personnel file altered and
backpay awarded. The Government says no: The jury did not
necessarily conclude that race was the but-for cause
of her suspension, so she is not entitled to such relief. The
dispute thus turns on Title VII's causation standard and
how it relates to the propriety of certain forms of equitable
relief. Applying that standard to the facts of this case, the
Court finds that Morris is not entitled to this relief.
can prevail in Title VII discrimination cases if they show
that a protected characteristic - e.g., race, sex,
or national origin - was “a motivating factor”
for an adverse employment action. See 42 U.S.C.
§ 2000e-2(m). In such cases, the plaintiffs need not
prove that discrimination was the but-for cause of the action
and instead can succeed merely on a showing that
“unlawful discrimination was ‘a factor
motivating the adverse action.'” Ponce v.
Billington, 679 F.3d 840, 844 (D.C. Cir. 2012) (quoting
Ginger v. District of Columbia, 527 F.3d 1340, 1345
(D.C. Cir. 2008)) (emphasis added). Although the Act allows
for a finding of liability and compensatory damages under
this lenient causation standard, it gives employers a limited
affirmative defense as to certain equitable remedies if the
more stringent but-for causation standard is not met. See
Porter, 414 F.3d at 18-19. To wit, if an employer
demonstrates that it “would have taken the same action
in the absence of the impermissible motivating factor,
” the court may not award the plaintiff backpay or
reinstatement on account of the employment action, even if it
was a violation of Title VII. See 42 U.S.C. §
2000e-5(g)(2)(B); see also Fogg v. Gonzales, 492
F.3d 447, 454 (D.C. Cir. 2007).
accord with these principles, the jury in this case was
instructed that it could find Defendant liable and award
damages if “race was a motivating factor” in its
decision to suspend Morris. See ECF No. 72 (Jury
Instructions) at 7. The jury found that it was and awarded
her $25, 000 in compensatory damages. See ECF No.
71. Now, Plaintiff asks for the equitable relief of
expungement of the suspension from her record and backpay.
The question for the Court is whether EPA has shown that it
would have suspended her regardless of her race, such that
the relief she seeks should not be awarded. This inquiry, it
seems prudent to acknowledge, is an unusual one for a
district court to undertake at this point. The jury has
already spoken as to Defendant's liability and
compensatory damages, but the Court is nevertheless left to
make further factual findings about its conduct in order to
determine the propriety of equitable relief. Yet that is the
inquiry that Congress directed and the D.C. Circuit has
affirmed in cases like this one. See 42 U.S.C.
§ 2000e-5(g)(2)(B); see also Fogg, 492 F.3d at
459 & n.6 (Henderson, J., concurring) (explaining that
D.C. Circuit affirmed the district court's ...