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Morse v. Mattis

United States District Court, District of Columbia

May 16, 2019

JAMES N. MATTIS, Defendant.


          Royce C. Lamberth United States District Judge

         Cernata Morse, a former Equal Employment Specialist at the Defense Intelligence Agency, sues the government under Title VII of the 1964 Civil Rights Act claiming her supervisors treated her differently because she was a fair-skinned African American woman. She also sues under the Rehabilitation Act claiming the Agency fired her because her disability necessitated time-off under the Family and Medical Leave Act. But she fails to disprove the government's asserted nondiscriminatory reason for firing her. So the Court will grant summary judgment for the government.


         The Defense Department tasks the Defense Intelligence Agency with producing, analyzing, and disseminating military intelligence information. To accomplish this mission, the Agency employs roughly 16, 500 employees divided among several different sections, including one-the Equal Opportunity Office-devoted to federal civil rights law compliance and' education. In October 2007, Morse joined that office as a program manager responsible for planning and coordinating activities and celebrations commemorating significant civil rights occasions. Gov't's Ex. 1 at 5:6-19; Gov't's Ex. 2 at 15:15-16:19; Gov't's Ex. 3 at 404. The Agency hired Morse through an excepted service appointment: she would serve on a probationary basis for two years before the Agency decided whether to permanently hire her. Pl.'s Ex. 16 at 75:5-7; Gov't's Ex. 3 at 1015. When those two years began, Morse reported directly to her division chief, Noemi Pizarro Hyman, in addition to the office's deputy chief, Constance Morrow, and its chief, Nancy Scott. Pl.'s Ex. 2 at 5:20-6:4; Gov't's Ex. 2 at 329:4-10; 378:2-11. Morse suffered from degenerative arthritis in her hip throughout her term at the Agency, giving her a noticeable limp and requiring her to use a special chair and handicapped parking. Pl.'s Ex. 2 at 7:11-8:17, 13:13-14:3; Pl.'s Ex. 16 at 74:7-76:4.

         A month later, the Office also hired Monshi Ramdass as a program manager under Pizzaro Hyman. Gov't's Ex. 2 at 224:16-225:9. And two months after that, the Agency reassigned Pizarro Hyman outside the Equal Opportunity Office. Gov't's Ex. 1 at 542:7-17. She intended to prepare final performance ratings for her employees before she left, but problems with the human resources software prevented her from evaluating Morse and Ramdass. Pl.'s Ex. 2 at 16:18-17:20; Pl.'s Ex. 3 at 334:14-336:17; Gov't's Ex. 2 at 360:2-361:10. Morse contends Morrow and Scott, both Caucasian women, intentionally caused these software issues to prevent Pizarro Hyman, a biracial woman, from evaluating Morse, an African American woman, and Ramdass, a South American man. Pl.'s Ex. 2 at 17:9-12; Pl.'s Ex. 3 at 351:11-18; Gov't's Ex. 1 at 329:14-22; Gov't's Ex. 2 at 223:20-224:3, 379:3-8.

         After Pizarro Hyman left, Morrow temporarily assumed the division chief responsibilities. Gov't's Ex. 1 at 542:7-17. So Morrow conducted Morse and Ramdass's performance evaluations. Pl.'s Ex. 3 at 336:18-337:1. Out of thirty possible points, she gave Morse seventeen and Ramdass twenty-three, both within the review form's "Meets Expectations" range. See Pl.'s Ex. 5. (In a deposition, Pizarro Hyman guessed she would have given Morse eighteen or nineteen points. Pl.'s Ex. 3 at 342:2-13; Pl.'s Ex. 5.) Morse "complained" to Morrow about this rating, see Pl.'s Statement Material Facts ¶ 16, ECF No. 34-2, even though Morrow described it as "really a good rating" Morse--"who had just started out in the Agency"-"should feel good about." Pl.'s Ex. 2 at 29:12-21.

         A few weeks later, Morse caught wind of plans to reassign her as an assistant to Mika Cross, a Caucasian woman thirteen years her junior, even though Morse and Cross currently operated at the same level-Morse planned special events, and Cross marketed them. Pl.'s Ex. 2 at 49:13-52:20; Gov't's Ex. 2 at 30:5-31:14. Scott admits she considered reassigning Morse, but claims it was only to better leverage Morse's prior marketing experience and insists there would not have been a supervisory relationship between Morse and Cross. Gov't's Ex. 1 at 295:19-297:8, 584:15-587:17; Gov't's Ex. 2 at 392:2-9. In any event, Scott squelched those plans after meeting with Morse, who also met with the Agency's general counsel. Pl.'s Ex. 2 at 49:13-52:20; Gov't's Ex. 2 at 31:11-17; 34:2-12, 132:10-133:2.

         Around the same time, the Agency began reviewing candidates to replace Pizzaro Hyman. Pl.'s Ex. 2 at 42:17-43:5; Gov't's Ex. 2 at 229-30. Ramdass applied but did not get an interview, even though Morse alleges Morrow shared confidential information about the hiring process with him to improve his chances. Pl.'s Ex. 2 at 43:14-22, 46:16-17:7, 48:4-7; Gov't's Ex. 2 at 229:11-230:9; Gov't's Ex. 3 at 16. The Agency ultimately hired Scott Lanum, an African American male a few years younger than Morse. Pl.'s Ex. 2 at 442.

         Days after Lanum started, Morse asked to change her schedule to a flexible start time, a request usually granted as a matter of course. Pl.'s Ex. 2 at 57:15-61:21; Pl.'s Ex. 7 at 163:9-14; Pl.'s Ex. 8 at 268:2-8. But since Lanum was still acclimating to his new role and to his employees, he asked Morse for some time to consider the modification. Pl.'s Ex. 6 at 23:16-25:15. And almost immediately he noticed Morse "continuous[ly]" and "regular[ly]" arriving late to morning meetings and other obligations. Id. When he asked his deputy "what the heck [wa]s going on," she responded, "This is Cernata.... we know she comes to work late. We don't know why. She's never said." Id. When Lanum asked Morse directly, Morse apologized and admitted "[s]he doesn't know why she can't get to work on time," but shared she was having "some challenges at home." Id. Shortly thereafter, hoping to help accommodate those challenges, Lanum approved Morse's flexible start time. Pl.'s Ex. 2 at 60:19-61:17; Pl.'s Ex. 6 at 28:20-31:20.

         In addition to Morse's chronic tardiness, she faced escalating interpersonal difficulties with her colleagues and superiors. When Morse and Cross clashed over sharing information related to Morse's events, Lanum facilitated a mediation to develop a better information-sharing protocol. Pl.'s Ex. 2 at 71:8-75:18; Pl.'s Ex. 6 at 55:15-56:17; Gov't's Ex. 1 at 300:13-309:13, 472:10-473:17; Gov't's Ex. 2 at 46:12-14; Gov't's Ex. 3 at 419. Lanum also met with Morse and Ramdass after Morse failed to submit a weekly report she owed him. Ramdass first called Morse about it, but Morse hung-up on him, causing him to "lose his cool." Pl.'s Ex. 2 at 105:2-108:9; Gov't's Ex. 1 at 246:9-251:12, 482, 494:20-497:22; Gov't's Ex. 2 at 458:13-460:21; Gov't's Ex. 3 at 421. A month later, Morse again tangled with Ramdass, Scott, and Morrow when they characterized Morse's job as "just plan[ning] parties." Pl.'s Ex. 2 at 109:11-110:16; see also Pl.'s Ex. 15..

         Morse also combated mounting concerns over her job performance. In July 2009, Lanum gave Morse twenty-four hours to prepare a briefing document for an upcoming meeting with the Agency director. But Morse balked, claiming the project was "not her responsibility"- especially since the deadline coincided with her previously scheduled vacation time. Though Morse and the government disagree over whether another superior agreed to reassign the project or whether Morse just refused to complete it, the record reflects Lanum interpreted her inaction as insubordination and began imposing shorter and more frequent deadlines on her work. Pl.'s Ex. 2 at 86:8-90:11, 91:1-92:13; Pl.'s Ex. 6 at 20:20-21:3; Gov't's Ex. 2 at 57:6-60:22, 205:9-21, 209:2-22, 396:8-399:16; Gov't's Ex. 3 at 41, 51, 139-41. A few weeks later, continued conflict between Morse and Cross again required Lanum's intervention; Morse was not complying with the mediated information sharing protocol, blaming Cross's frequent unavailability. Pl.'s Ex. 2 at 115:20-119:14; Pl.'s Ex. 6 at 53:12-56:17; Pl.'sEx. 10 at 406:8-15; Gov't's Ex. 1 at 484:12-490:1; Gov't's Ex. 3 at 422.

         The very next day, Morse requested time-off under the Family and Medical Leave Act, 29 U.S.C. § 2601 (FMLA) from September 1, 2009 to October 5, 2009 to undergo hip replacement surgery. Pl.'s Ex. 2 at 120:9-121:1; Gov't's Ex. 2 at 440:1-10, 507:1-22; Gov't's Ex. 3 at 697-99; see also Pl.'s Ex. 17. At the same time, she was also nearing the end of her two-year probationary period, which expired October 1. Gov't's Ex. 3 at 786. And whenever employees reach the end of their probationary period, their supervisor must prepare a memo recommending either their permanent hire or their termination.

         Lanum promptly approved Morse's FMLA request. Pl.'s Ex. 2 at 120:17-121:1. But a week later, in the required end-of-probation memo, he recommended terminating Morse effective October 1. Pl.'s Ex. 18. He based his recommendation on Morse's failure to work collaboratively, Morse's failure to take direction from superiors, Morse's performance deficiencies, and Morse's failure to improve despite repeated attempts to help her. Id. Scott concurred with this judgment. Gov't's Ex. 3 at 1016b.

         So on Thursday, August 27, 2009-three business days before her FMLA leave began- Lanum and a human resources representative told Morse that she would be terminated the following Monday (August 31) and that her FMLA leave would be cancelled. Pl.'s Ex. 2 at 121:3-16; Gov't's Ex. 1 at 633:6-635:10; Gov't's Ex. 3 at 1015. This surprised and concerned Morse. It surprised her because she knew at least one male employee failed to complete an assignment and wasn't terminated. Pl.'s Ex. 19 at 9. And it concerned her because it meant her health insurance might lapse before her surgery. So she wrote to the Agency's director, his deputy, and his chief of staff. Gov't's Ex. 3 at 1016d. Later that day, the Agency changed course and put Morse on indefinite administrative leave to ensure her continued health insurance coverage. Pl.'s Ex. 20. During this period Lanum completed Morse's final performance evaluation. See Pl.'s ...

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