Susan Morris v. Gina McCarthy, 2016 U.S. App. LEXIS 10714

Background

Susan Morris, a white Assistant Director in EPA’s Office of Civil Rights (OCR), was suspended for seven days in 2008 for alleged insubordination and was terminated in 2010 after a proposed removal process. Her supervisors included Director Karen Higginbotham (African-American) and Deputy Chief of Staff Ray Spears (African-American).
The suspension arose after Morris sent an "issue sheet" complaining about outside influence on equal-employment policies and criticizing how Higginbotham had handled a coworker memo; Higginbotham had earlier ordered Morris not to respond to that memo and delayed responding herself.
Higginbotham recommended the suspension; Spears approved it. Morris appealed the 2010 termination to the MSPB while OSC investigated her whistleblower complaint; the MSPB dismissed the appeal without prejudice in Oct. 2010 but automatically refiled it in Jan. 2011 per the judge’s order. Morris withdrew the MSPB appeal in April 2011 and sued in district court on April 8, 2011.
The district court dismissed Morris’s termination-based Title VII claims for failure to exhaust administrative remedies and granted summary judgment to EPA on her suspension claims (no discriminatory or retaliatory motive shown). Morris appealed.
The D.C. Circuit affirmed dismissal of the termination claims for lack of exhaustion (Morris invited the MSPB delay and therefore cannot claim the agency failed to adjudicate within 120 days) but reversed summary judgment on the discrimination claim as to the suspension, finding sufficient evidence under a cat’s-paw theory to send the discrimination claim to trial; it affirmed summary judgment for EPA on Morris’s retaliation claim.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did Morris exhaust administrative remedies for termination claims before suing in district court?	Morris: MSPB took no "judicially reviewable action" on dismissal; timing from initial Sept. 2010 filing satisfied 120-day rule.	EPA: The MSPB dismissal was a judicially reviewable action and Morris effectively induced delay; she did not let agency adjudicate for 120 active days.	Held: Affirmed dismissal — Morris invited the MSPB delay and did not allow 120 active days, so failed to exhaust.
Whether summary judgment was proper on claim that suspension was racially discriminatory under Title VII (cat’s-paw theory).	Morris: Higginbotham harbored bias against white employees (multiple race-based remarks) and the insubordination charge was pretextual given Higginbotham’s delay and weak explanations.	EPA: Suspension was based on legitimate nondiscriminatory reason (insubordination); Spears independently investigated and made the decision.	Held: Reversed summary judgment — sufficient evidence for a reasonable jury to infer Higginbotham’s racial animus, that the insubordination reason was pretext, and that her recommendation proximately caused Spears’s decision.
Whether Spears’s independent investigation insulated EPA from liability for Higginbotham’s alleged bias (superseding cause).	Morris: Higginbotham’s subjective report influenced Spears; he expressly approved the suspension "as proposed by" Higginbotham.	EPA: Spears conducted an independent investigation, so any bias was superseded and not a proximate cause.	Held: Jury could find Spears was influenced by Higginbotham’s subjective report; independent investigation did not necessarily break causal chain.
Whether summary judgment was proper on claim that suspension was retaliatory under Title VII.	Morris: Her issue sheet and statements (and asking for EEO counseling) amounted to protected opposition/participation that supervisors knew about.	EPA: Her policy discussions were not protected activity; no evidence Spears or Higginbotham knew of protected activity by Morris.	Held: Affirmed summary judgment for EPA — no sufficient evidence that supervisors knew of protected activity; statements were too generic and within job duties.

Key Cases Cited

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (framework for burden shifting in discrimination claims)
Staub v. Proctor Hosp., 562 U.S. 411 (cat’s-paw liability; supervisor’s biased act must be proximate cause)
Reeves v. Sanderson Plumbing Prods., 530 U.S. 133 (plaintiff may survive summary judgment by showing employer’s explanation is pretext)
Woodford v. Ngo, 548 U.S. 81 (purposes of administrative exhaustion)
Hamilton v. Geithner, 666 F.3d 1344 (D.C. Cir.) (exhaustion options for serious personnel actions)
Evans v. Sebelius, 716 F.3d 617 (D.C. Cir.) (discriminatory statements can support inference of bias)
Aka v. Washington Hospital Center, 156 F.3d 1284 (D.C. Cir.) (court must consider all evidence in context at summary judgment)
Hairston v. Vance-Cooks, 773 F.3d 266 (D.C. Cir.) (summary judgment standard review in employment cases)