MORRIS v. JACKSON

Filing 12

MEMORANDUM AND OPINION. Signed by Judge Rosemary M. Collyer on 2/6/2012. (KD)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

SUSAN MORRIS,
Plaintiff,
v.
LISA P. JACKSON, Administrator,
Environmental Protection Agency,

Defendant.

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Civil Action No. 11-701 (RMC)

MEMORANDUM OPINION
Susan Morris is a former employee at the Environmental Protection Agency
(“EPA”). She complains of discrimination based on her sex (female) and race (Caucasian),
relating to a seven-day suspension and later removal from her job. She also claims that she was
subjected to a hostile work environment. Defendant moves (1) to dismiss the suspension and
removal claims for failure to exhaust administrative remedies and (2) for summary judgment on
the hostile work environment allegation for failure to state a claim. As explained below, the
motion will be granted with one exception — the suspension claim was, in fact, exhausted and
will not be dismissed.
I. FACTS
Ms. Morris is a career federal employee who spent the last ten years with EPA in
a GS-15 level position. She joined EPA’s Office of Civil Rights in 2001 as a Team Leader for
the agency’s Workforce Diversity and Employment Program. She then became an Assistant

Director with the title “Equal Employment Manager.” Ms. Morris alleges that she received
outstanding ratings from her supervisors as well as various awards, including a Bronze Medal in
2004 and an Award for Superior Accomplishment in 2006.
In 2005, a contractor produced Management Directive 715, which was critical of
EPA’s personnel policies, procedures and practices. Ms. Morris certified the report and
submitted it to EPA’s Director of Civil Rights at the time, Karen Higginbotham. Ms. Morris
alleges that “because this report raised issues that Ms. Higginbotham believed cast doubt on her
leadership of EPA’s Office of Civil Rights, and that of management as a whole . . . she began a
campaign to harass plaintiff and drive her from the agency and from federal employment.”
Compl. ¶ 9.
Ms. Morris further contends that Ms. Higginbotham and Ray Spears, Deputy
Chief of Staff at EPA, both of whom are African American, harassed her because she is White.
Id. ¶ 10. She claims that they created a hostile work environment as follows:
Beginning in 2005 and continuing into 2010, Ms. Higginbotham
. . . [and Mr. Spears] engaged in a concerted effort to harass and
discredit plaintiff by, among other things: (a) undercutting –
indeed, usurping — her authority with subordinates though (sic)
prevarication, deceit, threats, and racist remarks; (b) initiating
and/or hyping knowingly false and scurrilous allegations of
misconduct and ethics violations and substance abuse by plaintiff,
and subjecting her to a year-long Inspector General’s investigation
(2006-2007), in which she was ultimately exonerated; (c) inciting
employee groups to attack plaintiff on false claims of bias and
misconduct; (d) falsely charging plaintiff with insubordination
when she merely responded to false allegations made against her
and mistreatment she was made to endure as a result of Ms.
Higginbotham’s and Mr. Spears’s actions; (e) withholding acclaim,
visibility, and recognition from plaintiff; (f) denying her
opportunities to exercise authority to the same degree as her peers;
(g) unduly monitoring plaintiff’s time and attendance; and (h)
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refusing to submit MD-715 reports to EEOC [the Equal
Employment Opportunity Commission] which plaintiff has
prepared and certified after 2005.
Id.
On April 29, 2008, Ms. Morris was suspended without pay for seven days, from
May 5-11, 2008. She asserts that the suspension was due to a bogus charge that she engaged in
insubordination.
Ms. Morris filed formal complaints of discrimination with the Department of
Energy Office of Civil Rights, acting as EEO designee for EPA, on May 19, 2008 and January 8,
2009, and she amended them on April 21, 2009. Def.’s Mot. to Dismiss [Dkt. # 6], Ex. 1 (Notice
of Acceptance/Dismissal of Formal Complaint of Discrimination). On June 19, 2009, the
investigating agency issued a notice of acceptance for investigation of claims. The accepted
claims included, among other things, whether Ms. Morris was discriminated against due to her
gender and race based on (1) harassment and a hostile work environment from January 24, 2007
to May of 2008 and (2) a seven day suspension, from May 5-11, 2008. Id.
On March 23, 2010, Ms. Higginbotham issued a notice of proposed removal from
federal service to Ms. Morris, charging insubordination, wrongful disclosure of confidential
personal information of another employee, misuse of supervisory authority, and inappropriate
statements made in work product. Id., Ex. 6 (Notice of Proposed Removal). The next day, Ms.
Morris filed a whistleblower complaint with the Office of Special Counsel. Id., Ex. 7 (OSC
Complaint).

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On September 8, 2010, Ms. Morris filed with the Merit Service Protection Board
(“MSPB”) a “mixed case” appeal of the decision to remove her from federal service.1 MSPB
stayed the removal to allow the Office of Special Counsel to complete its investigation of the
whistleblower complaint. See id., Ex. 9 (MSPB Decision) at 1. Finding that the Office of
Special Counsel might resolve the issue between the parties, MSPB dismissed the appeal without
prejudice, but indicated that the appeal would be automatically refiled after the stay was lifted.
Id. at 3.
Ms. Morris returned to her job while the stay was in place. When the stay
expired, EPA again removed Ms. Morris from her position, effective January 22, 2011. On
January 24, 2011, the mixed case appeal was refiled with MSPB and a hearing was scheduled.
On April 8, 2011, Ms. Morris filed this lawsuit and withdrew her appeal before the MSPB. Id.,
Ex. 13 (Notice of Withdraw of Appeal). As a result, MSPB dismissed the appeal with prejudice.
Id., Ex. 14 (MSPB Apr. 21, 2011 Decision). On May 9, 2011, the EEOC also dismissed Ms.
Morris’ administrative complaint because this suit had been filed and it advances the same
claims. Id., Ex. 15 (EEOC Order of Dismissal).
The Complaint alleges that EPA subjected Ms. Morris to a seven-day suspension,
a hostile work environment, and removal from her job based on gender and race discrimination

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Covered federal employees who are removed from service may appeal their removal to
the MSPB under the Civil Service Reform Act of 1978 (“CSRA”), Pub. L. 95-454, 92 Stat. 1111
(codified as amended in scattered sections of 5 U.S.C.). A “mixed case” appeal is an appeal to
the MSPB alleging that the removal was due both to a prohibited personnel action under the
CSRA and discrimination prohibited by Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e. See 5 U.S.C. § 7702(a)(1)(B); 5 C.F.R. § 1201.151(a)(2); 29 C.F.R. §
1614.302(a)(2).
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in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e.2 EPA
moves to dismiss the claims relating to the seven-day suspension and termination due to failure
to exhaust administrative remedies and moves for summary judgment with regard to the hostile
environment claim.
II. LEGAL STANDARD
A. Motion to Dismiss
Motions for failure to exhaust administrative remedies are properly analyzed
under Federal Rule of Civil Procedure 12(b)(6). Hairston v. Tapella, 664 F. Supp. 2d 106, 110
(D.D.C. 2009). Because failure to exhaust is an affirmative defense, the defendant bears the
burden of proof on the issue. Id. Once a defendant has met its burden, the burden shifts to the
plaintiff to make the case that dismissal is not warranted. Bowden v. U.S. 106 F.3d 433, 437
(D.C. Cir. 1997).
A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(6) challenges the adequacy of a complaint on its face. Fed. R. Civ. P. 12(b)(6).
A complaint must be sufficient “to give a defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal

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Ms. Morris also alleged (1) reassignment of duties based on gender and race
discrimination; (2) age discrimination; and (3) retaliation. Defendant has moved to dismiss these
claims, or for summary judgment, and Ms. Morris has failed to respond. Her argument is
confined to her claims regarding removal, suspension, and hostile work environment. “It is well
understood in this Circuit that when a plaintiff files an opposition to a motion to dismiss
addressing only certain arguments raised by the defendant, a court may treat those arguments that
the plaintiff failed to address as conceded.” Hopkins v. Women's Div., Bd. of Global Ministries,
238 F. Supp. 2d 174, 178 (D.D.C. 2002); see also Jones v. Air Line Pilots Ass’n, 713 F. Supp. 2d
29, 38-39 (D.D.C. 2010) (citing Hopkins). Since Ms. Morris abandoned and waived the claims
regarding reassignment of duties, age discrimination, and retaliation, they will be dismissed.
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citations omitted). Although a complaint does not need detailed factual allegations, a plaintiff’s
obligation to provide the grounds of his entitlement to relief “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. To
survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true,
to state a claim for relief that is “plausible on its face.” Twombly, 550 U.S. at 570.
A court must treat the complaint’s factual allegations as true, “even if doubtful in
fact.” Twombly, 550 U.S. at 555. But a court need not accept as true legal conclusions set forth
in a complaint. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). In deciding a motion under
Rule 12(b)(6), a court may consider the facts alleged in the complaint, documents attached to the
complaint as exhibits or incorporated by reference, and matters about which the court may take
judicial notice. Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007).
B. Summary Judgment
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall
be granted “if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgement as a matter of law.” Fed. R. Civ. P. 56(a); accord Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Moreover, summary judgment is properly granted
against a party who “after adequate time for discovery and upon motion . . . fails to make a
showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986).
In ruling on a motion for summary judgment, the court must draw all justifiable
inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true.
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Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than “the mere
existence of a scintilla of evidence” in support of its position. Id. at 252. In addition, the
nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton,
164 F.3d 671, 675 (D.C. Cir. 1999). Rather, the nonmoving party must present specific facts that
would enable a reasonable jury to find in its favor. Id. at 675. If the evidence “is merely
colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477
U.S. at 249-50 (citations omitted).
III. ANALYSIS
A. Exhaustion of Claim Regarding Removal
Title VII complainants must exhaust administrative remedies before filing suit in
federal court. Payne v. Salazar, 619 F.3d 56, 65 (D.C. Cir. 2010); Sisay v. Greyhound Lines,
Inc., 34 F. Supp. 2d 59, 64 (D.D.C. 1998) (citing Love v. Pullman Co., 404 U.S. 522, 523
(1972)). Similarly, exhaustion of administrative remedies is a prerequisite under the Civil
Service Reform Act. Weaver v. U.S. Info. Agency, 87 F.3d 1429, 1433 (D.C. Cir. 1996). When a
claim presents a “mixed case,” involving charges of discrimination under Title VII and
prohibited personnel practices under the Civil Service Reform Act, a federal employee can
exhaust administrative remedies by presenting her claim either to the agency’s EEO office or to
the MSPB. Hamilton v. Geithner, No. 10-5419, slip op. at *7 (D.C. Cir. Jan. 17, 2012). Once a
federal employee chooses a particular administrative route, she must exhaust the remedies in that
forum. Economou v. Caldera, 286 F.3d 144, 149 (2d Cir. 2002). The MSPB has 120 days to
render a decision. 5 U.S.C. § 7702(e)(1); 29 C.F.R. § 1614.302(d)(1)(i). “A plaintiff may not
cut short the administrative process prior to its final disposition, for upon abandonment a
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claimant fails to exhaust administrative remedies and may not thereafter seek redress from the
courts.” Greenlaw v. Garrett, 59 F.3d 994, 997 (9th Cir. 1995).
A voluntary dismissal cannot be used to circumvent the requirement of
exhaustion. See, e.g., Noisette v. Geithner, 693 F. Supp. 2d 60, 67-68 (D.D.C. 2010) (plaintiff
failed to exhaust discrimination claim under Title VII when he withdrew his claim from the
EEOC before the EEOC decision deadline had elapsed); Moore v. Jewel Food Stores, 1998 WL
102639, *4 (N.D. Ill. Mar. 3, 1998) (plaintiff failed to exhaust state-law discrimination claim
when she voluntarily dismissed his case before the state human rights commission). The
purposes of exhaustion are to give the charged party notice of the claim, to narrow the issues for
prompt adjudication, Laffey v. Northwest Airlines, Inc., 567 F.2d 429, 472 n.325 (D.C. Cir.
1976), to give the agency a chance to resolve the matter, and to avoid burdening the courts
unnecessarily. Wilson v. Pena, 79 F.3d 154, 165 (D.C. Cir. 1996).
Ms. Morris chose the MSPB as the administrative forum for her complaint
regarding removal from federal service. Because Ms. Morris’ appeal was refiled on January 24,
2011, MSPB had 120 days — until May 24, 2011 — to render its final decision. Ms. Morris did
not give it time to do so. Instead, on April 8, 2011 she filed suit in this Court and abandoned her
administrative case. By doing so, she failed to exhaust administrative remedies with regard to
her removal claim. The claim must be dismissed without prejudice.
B. Exhaustion of Claim Regarding Suspension
Defendant also contends that Ms. Morris failed to exhaust administrative remedies
relating to her suspension because she filed her formal complaint before the informal EEO
counseling process was completed. While Defendant correctly points out that Ms. Morris filed
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her complaint before finishing the counseling process, it does not meet its burden of showing a
failure to exhaust. Before filing a Title VII lawsuit, “[a]n aggrieved person must initiate contact
with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the
case of personnel action, within 45 days of the effective date of the action.” 29 C.F.R. §
1614.105(a)(1). The failure to do so constitutes failure to exhaust administrative remedies.
Drewrey v. Clinton, 763 F. Supp. 2d 54, 62 (D.D.C. 2011).3 The regulation does not require that
a plaintiff meet with a counselor within 45 days, just that she initiate contact within that time.
Boone v. Clinton, 675 F. Supp. 2d 137, 143 (D.D.C. 2009). The counselor is required to hold an
initial counseling session, to advise the complainant of certain rights, to conduct counseling
activities, and to hold a final interview. 29 C.F.R. § 1614.105(b)(1), (c), (d). If the matter has
not been resolved through counseling, the EEO Counselor informs the aggrieved person of the
right to file a formal complaint. Id. §§ 1614.105(d), 164.106(b). In order to exhaust
administrative remedies, a complainant must file a formal complaint; merely presenting a claim
in an EEO counseling session does not constitute exhaustion. See Hamilton, slip op. at *8 (a
plaintiff “cannot rely on an EEO counseling report to establish exhaustion of a claim that he
failed to include in his formal complaint”).
After filing a written complaint, the employee may file a civil action after the
agency issues an adverse final decision or 180 days elapse without a decision, whichever happens
first. 42 U.S.C. § 2000e-16(c). Title VII is remedial in nature; the time limits are imposed are
not mere technicalities, but instead are imposed to insure that employers receive notice of
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The equitable doctrines of waiver, estoppel, and tolling may apply in extraordinary
circumstances. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002); Williams v.
Munoz, 106 F. Supp. 2d 40, 43 (D.D.C. 2000).
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complaints and have the opportunity to resolve an issue before litigation. Hairston v. Tapella,
664 F. Supp. 2d 106, 111 (D.D.C. 2009).
Although Ms. Morris proceeded with her claim in a sequence that is different
from the sequence contemplated by the regulations spelled out above, she nonetheless exhausted
administrative remedies regarding the suspension claim. On April 10, 2008, the EEO counselor
interviewed Ms. Morris regarding her claim of harassment. Then, on April 29, 2008, Ms. Morris
was suspended. She filed a formal EEO complaint several days later — on May 19, 2008. The
formal complaint included both the harassment and the suspension claim, and constituted an
initiation of the counseling process well within the 45-day period that the regulation requires.
Thereafter, Ms. Morris asked that EEO counseling be held in abeyance while she grieved the
suspension through EPA’s Administrative Grievance process. Pl.’s Opp., Ex. 1 (EEO
Counselor’s Report) at 2 n.2. Later on, the EEO counselor resumed her counseling activities and
conducted a final interview on July 14, 2008. Def.’s Mot. to Dismiss, Ex. 1 (Notice of
Acceptance/Dismissal of Formal Complaint of Discrimination) at 2. The EEO counselor was
unable to resolve the issues and sent a notice of right to file an EEO complaint. Id. On June 19,
2009, the investigating agency accepted the harassment and suspension claims for investigation.
Id. at 3. The agency noted that after the EEO Counselor sent the notice of right to file, a claimant
ordinarily would have a 15-day period to file a formal complaint, but in this case the agency
deemed Ms. Morris to have already filed the formal complaint. The agency considered the May
19, 2008 complaint, though filed before the counseling process was concluded, to be a timely
filed complaint. Id. at 2. Because Ms. Morris initiated the EEO counseling process and timely

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filed a formal complaint, she exhausted administrative remedies regarding her suspension and her
related Complaint allegations will not be dismissed.
C. Hostile Work Environment
Defendant moves for summary judgment with regard to Ms. Morris’ harassment
claim. The Supreme Court has determined that the language of Title VII is not limited to
economic or tangible discrimination. “The phrase ‘terms, conditions, or privileges of
employment’ evinces a congressional intent to strike at the entire spectrum of disparate treatment
of men and women in employment, which includes requiring people to work in a discriminatorily
hostile or abusive environment.” Harris v. Forklift Sys., 510 U.S. 17, 21 (1993) (quoting Meritor
Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986)) (internal quotation marks omitted).
However, “Title VII does not provide a cause of action for ‘ordinary tribulations in the
workplace.’” Faragher, 524 U.S. at 788. To prevail on a hostile work environment claim, a
plaintiff must show that her employer subjected her to “discriminatory intimidation, ridicule, and
insult” that is “sufficiently severe or pervasive to alter the conditions of the victim's employment
and create an abusive working environment.” Harris, 510 U.S. at 21 (quoting Meritor Sav. Bank,
477 U.S. at 65).
In determining whether a hostile work environment claim is substantiated, a court
looks at all the circumstances of a plaintiff’s employment, specifically focusing on such factors
as the frequency of the discriminatory conduct, its severity, whether it was threatening and
humiliating or was merely offensive, and whether it unreasonably interfered with the employee’s
work performance. Harris, 510 U.S. at 23. The conduct must be sufficiently extreme to
constitute an alteration in the conditions of employment, so that Title VII does not evolve into a
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“general civility code.” Faragher, 524 U.S. at 788. Consequently, “‘mere utterance of an . . .
epithet which engenders offensive feelings in an employee’ does not sufficiently affect the
conditions of employment to implicate Title VII.” Harris, 510 U.S. at 21 (quoting Meritor, 477
U.S. at 91). Further, “simple teasing, offhand comments, and isolated incidents (unless
extremely serious) will not amount to discriminatory changes in the terms and conditions of
employment.” Faragher, 524 U.S. at 778. A plaintiff must demonstrate that the alleged events
leading to the hostile work environment were connected, since “discrete acts constituting
discrimination or retaliation claims . . . are different in kind from a hostile work environment
claim that must be based on severe and pervasive discriminatory intimidation or insult.” Lester,
290 F. Supp. 2d at 33 (citing AMTRAK v. Morgan, 536 U.S. 101,115-16 (2002)). “Workplace
conduct is not measured in isolation.” Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 270
(2001). Further, the alleged harassment must be linked to the claimed ground for discrimination.
Holmes-Martin v. Sebelius, 693 F. Supp. 2d 141, 164 (D.D.C. 2010). A plaintiff must show that
the harassment occurred because of her protected status. Hussain v. Gutierrez, 593 F. Supp. 2d
1, 7 (D.D.C. 2008). To survive summary judgment, a plaintiff must offer evidence of pervasive
harassment that affected a term, condition, or privilege of her employment, “which a reasonable
jury could find causally connected to his [protected status].” Williams v. Chertoff, 495 F. Supp.
2d 17, 41 (D.D.C. 2007).
For example, in George v. Leavitt, 407 F.3d 405 (D.C. Cir. 2005), the D.C.
Circuit held that statements by three employees over a six-month period telling a plaintiff to “go
back where she came from,” separate acts of yelling and hostility, and allegations that the
plaintiff was not given the type of work she deserved, were isolated instances that did not rise to
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the level of severity necessary to find a hostile work environment. Id. at 416-17. Similarly, in
Singh v. United States House of Representatives, 300 F. Supp. 2d 48, 54-57 (D.D.C. 2004), this
Court found that a plaintiff’s allegations that her employer humiliated her at important meetings,
screamed at her in one instance, told her to “shut up and sit down” in one instance, and was
“constantly hostile and hypercritical” did not amount to a hostile work environment, even though
these actions may have been disrespectful and unfair.
Ms. Morris alleges that Ms. Higginbotham and Mr. Spears engaged in a concerted
effort to harass her because she certified Management Directive 715 that was critical of EPA’s
personnel policies, procedures, and practices. See Compl. ¶ 9. She claims that Ms.
Higginbotham and Mr. Spears harassed her by:
(a) undercutting her authority with subordinates though (sic)
prevarication, deceit, threats, and racist remarks;
(b) falsely accusing her of misconduct, ethics violations, and
substance abuse, and subjecting her to an Inspector General’s
investigation;
(c) inciting employees to attack plaintiff on false claims of bias and
misconduct;
(d) falsely charging plaintiff with insubordination;
(e) withholding recognition for successful job performance;
(f) denying her opportunities to exercise authority;
(g) unduly monitoring her time and attendance; and
(h) refusing to submit reports that plaintiff prepared and certified.
See Compl. ¶ 10. In response to Defendant’s motion, Ms. Morris supplemented these
allegations. For example, she also contends that she was denied the opportunity to be the Acting
Deputy Director; her supervisor attempted to move her to a dark and dingy office; she had to
report daily to an Acting Deputy, unlike other Assistant Directors; she was left out of meetings;
she was required to do work outside her area of responsibility; she had to give the bookcase she

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ordered to her supervisor; she was falsely accused of having a drinking problem; and she was
discredited, chastised, and mistreated in staff meetings. See Pl.’s Opp. at 9-13 & Ex. 3 (Morris
Decl.) at 3-4.
While Ms. Morris recites this litany of perceived slights, she presents no evidence
that the incidents are connected to one another or that they are connected to her gender or race.
In fact, she alleges that the harassment was related to her certification of a Management Directive
715 that had criticized EPA. See Compl. ¶ 9. Because the alleged incidents are not alleged to be
based on gender or race, they do not constitute discriminatory harassment in violation of Title
VII. Moreover, the alleged incidents are insufficiently severe or pervasive to alter the conditions
of employment. Accordingly, Defendant is entitled to summary judgment on the claim of a
hostile work environment.
IV. CONCLUSION
The Court grants in part and denies in part Defendant’s motion to dismiss or for
summary judgment [Dkt. #6] as follows: (1) the claim regarding termination of employment is
dismissed without prejudice due to failure to exhaust administrative remedies; (2) the claims
regarding reassignment of duties, age discrimination, and retaliation are dismissed; (3) summary
judgment is granted in favor of Defendant on the hostile work environment claim; and (4) the
claim regarding the seven-day suspension remains. A memorializing Order accompanies this
Memorandum Opinion.

Date: February 6, 2012

/s/
ROSEMARY M. COLLYER
United States District Judge
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