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Morris v. Wheeler

United States District Court, District of Columbia

December 3, 2018

SUSAN M. MORRIS, Plaintiff,
ANDREW WHEELER, in his official capacity as Acting Administrator, U.S. Environmental Protection Agency, Defendant.



         In 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 Motion.

         I. Background

         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.

         A. Factual Background

         Susan 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.

         Unlike 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 73:21-74:22.

         Some 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.

         Morris's 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.

         B. Procedural Background

         Aggrieved 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.

         The 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.

         After 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.

         II. Analysis

         Title 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).

         Plaintiff 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 costs.

         A. Suspension

         Up 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.

         Plaintiffs 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).

         In 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 ...

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