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Case number 14-5074, Susan M. Morris, Appellate versus Gina McCarthy, Administrator, U.S.

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Environmental Protection Agency.

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Ms.

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Bernard for the appellate, Mr. Hudak for the appellate.

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The morning again.

[00:01:11] Speaker 01:
Good morning.

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You drew the short straw and hit me twice in a short period of time.

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My pleasure.

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May it please the court, Ellen Rayno for the plaintiff appellant, Susan Morris.

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The district court's decision on both claims need to be reversed.

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The termination claim, the decision to dismiss that claim was an error because if you look at the statutory language

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Ms.

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Morris satisfied the requirement.

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She filed her appeal with the MSPB in September.

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She did not file this civil action until April.

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And that was well, April of 2011.

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And that was well more than the 120 days that she is required to give them to reach a decision.

[00:02:01] Speaker 07:
But she requested the delay here, right?

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That's what's different.

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She requested that the MSPB hold things up, right?

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She requested a stay.

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The agency wanted the dismissal without prejudice.

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So by requesting a stay, if the MSP, if the board had simply stayed the case, her claim would have been right to go forward to court, because it would have been asked to.

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So you say the stay doesn't affect the 120-day period?

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I'm sorry?

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The stay doesn't toll the clock there?

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No, no.

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If she asked for the stay?

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They gave her the stay, and then she walked away.

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You would say she could still go file suit within 120 days?

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Yes.

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Yes.

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You wouldn't be abandoning the very process she asked to put on hold?

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I don't think that would be abandoning, no.

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No.

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Asking for a stay.

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I mean, the idea here is she's supposed to be pursuing her claim before the administrative agency, right?

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And when she asks for a stay, she's saying, I'm not pursuing that claim right now, right?

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She didn't initiate the request for the stay.

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It was the Office of Special Counsel.

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For the MSPB decision maker, she had reservations, which she expressed, but none of those reservations went to the question of the effect of this on the 20-day rule.

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She wanted to be sure that her claim would be revived.

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Actually, what she said was that she wanted to make sure none of her rights were prejudiced, and the administrative judge assured her that this stay, I'm sorry, it wasn't a stay, what they did, dismissal without prejudice and an automatic refiling would not affect her rights.

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Now, the appellee is arguing that that initial dismissal without prejudice was a decision that she could have gone to court on, and we know that's not true.

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a final decision.

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She could not have come to the district court based on a dismissal without prejudice.

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She needed to wait longer, and she did do that.

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That's almost a metaphysical issue to me.

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There's something more basic here, and that is

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The principle of exhaustion here is that she's supposed to bring this claim before the board, right?

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Before she can bring it to district court.

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And she brought the claim and then agreed to stop, to hold off.

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To hold off, but that's not abandonment, Your Honor.

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If you look at the cases on abandonment, it's much more serious than that.

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It's completely abandoning.

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No, no.

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The abandonment is when she later filed a district court, right?

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She didn't abandon.

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She asked that they just hold up while the OSC decides.

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She did not say, you know, I'm taking this case away, and you can't have it anymore.

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This is she agreed to dismissal.

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She agreed reluctantly.

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She said that if she preferred to stay because she was worried about her rights being affected, and she agreed if the administrative judge would provide assurance that her rights would not be effective.

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It wasn't any rights.

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It was the right.

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to seek relief in the event the matter is not resolved at the conclusion of OSC's investigation, which hadn't happened yet by the time she filed suit.

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I'm not understanding your interpretation of that.

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She's asking, so she doesn't say, I don't want to dismissal without prejudice.

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If you're going to dismissal without prejudice, say it's not without, it has to not impact my ability to go to court when I think it's time to go to court.

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Instead she said, the only thing she was concerned about was not waiving her right to seek relief.

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I'm quoting

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the ALJ quoting your brief that says she's not waiving any right to seek relief in the event that the matter is not resolved at the conclusion of OSC's investigation.

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So what exactly was she wanting to have preserved there?

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There's another part of her attorney's response that says that she wants to ensure that her appeal remains timely under the applicable statute of limitations.

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These procedures are designed for the late person.

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But that was talking about her appeal to the MSPB.

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right?

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Yes, yes.

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And so they dealt with that with their automatic refiling.

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These procedures were designed for the layperson to be able to navigate.

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Here she had experienced counsel.

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It was not our firm, but it was another experienced litigation firm.

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And the

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MSPB then made it completely arbitrary to dismiss without prejudice rather than just staying the appeal, which is what she requested.

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They say they don't have any authority to stay cases because Congress has said 120 days.

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So in effect, what the judge was doing was trying to stay the case by dismissing it without prejudice and then having an automatic refiling of that same appeal.

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The bottom line is, if you just look at the statute,

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She filed her case, and more than 120 days passed.

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But we know just like the statute, there's these other doctrines about abandonment and equitable estoppel.

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Why would that apply?

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The case is on abandonment.

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You have to... Why is she not equitably estopped?

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Since the quote is that she agreed to dismissal without prejudice, why does that not equitably stop her then from walking away from the administrative process?

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I don't think she agreed.

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She says, Ms.

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Morris requests that this board stay the proceedings rather than dismiss the case without prejudice to refiling.

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And then she says, if the board is going to dismiss, if the board decides that's the best course, then I want assurances.

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And they gave her assurances.

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Assurances of what?

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That she could come back to the board.

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But does she have to think of every contingency when she's asking for assurances?

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I mean, she's saying, I don't want this to prejudice my rights.

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You stress very strongly in your brief, understandably.

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It is a concern.

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The risk that the MSPB will drag its feet.

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But that isn't, we don't have any sign at all of that here.

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We have the MSPB

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holding operations on her claim for a good reason, which she shares.

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And then there's an automatic refiling and it picks it up again and there's no indication of its dragging its feet in that period.

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In any event, the 120-day rule would protect her.

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So I guess I'm at a loss to see what interest of hers is sacrificed here.

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Well, she didn't initiate the request.

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chart her the brief, the brief that was submitted, the motion to stay proceedings is a response to the judge's request for a response, proposing that the MSP be dismissed without prejudice.

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So it's not.

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At what point did she ask for the board to stay its proceedings?

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Was it before the agency asked for this dismissal without prejudice?

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Or did the board do it on its own?

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I'm trying to find that the courts, because the courts, the MSPB says in its order, it's a request.

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I'm sorry, I'm not finding the October 14.

[00:10:29] Speaker 02:
So what I have is OSCE asked for a 45-day stay of the removal action.

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I thought that was just the agency not removing her.

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And then the ALJ on its own says, I want to hear from the parties.

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Tell me if I'm wrong.

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This is why I got it.

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Whether we should go forward with this hearing or not.

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And both parties have responded.

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I assume was that simultaneously?

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Well, but what was the MSPB's initiation of the discussion?

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Right.

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So they say, look, we've got this OSC thing going on.

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Let me ask both parties, what do you want to do with this hearing that we're supposed to have?

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And the agency came back and said, dismiss that prejudice.

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And your client came back and said, I'd like a stay, which simply isn't something that they have.

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to offer procedurally unless it's for settlement.

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So they just couldn't do a stay.

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But she did not want to go forward with the scheduled hearing because the OSC could have resolved everything.

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But she didn't initiate that request.

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And that's my point.

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It was the MSPB who... Why does initiation matter if an adjudicator says, if we say to you, look, we hear there's an agency proceeding going on.

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Is there any sense in going forward with oral argument?

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Parties, please let us know whether you think we should go forward with oral argument.

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And one side comes in and says, no, you shouldn't go forward with oral argument.

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And then your client comes in and says, no, you shouldn't go forward with oral argument.

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Why does it matter that we ask the question first?

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Did the adjudicator ask the question first?

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Because when you're looking at abandonment, you have to look at the complainant's actions and her intent.

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And her intent was not to abandon her MSPB claim.

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Her intent was to go forward with it, waiting until the OSC completed their investigation.

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But she didn't do that.

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She went before OSCE was done and she went to court.

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Well, and that's part of the problem.

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Everything was taking so long, and that is what... MSPB wasn't taking so long.

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It did exactly what she said.

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Don't go forward with, I think it was at an October hearing, don't go forward with it.

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She wanted it to be labeled a stay.

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They wanted it to be called a dismissal without prejudice.

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The ALJ came up with this combination thing, dismissal of prejudice with automatically filing.

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But she didn't want that October hearing.

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That's really not what she says in that response to the MSPB.

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She wanted to stay.

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But she's saying she prefers a stay to a dismissal without prejudice.

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She's not initiating an action where she's requesting that they delay the proceeding.

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The MSPB was already inclined to delay.

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They say, should we go forward with this hearing?

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Then her answer should have been, yes, let's go forward with this hearing.

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She could have said, yes, let's go forward with this hearing.

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But my point is that she's just agreeing with what the MSPB is proposing.

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She's not saying I'm abandoning.

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She's not doing anything overt to abandon her.

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MSPB didn't propose anything.

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It said, just tell us what you guys want to do about this hearing.

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One answer of which could have been, let's go forward.

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I'm in a hurry.

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This is my job.

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But I don't think not saying I'm in a hurry and not saying let's go forward is the equivalent of abandonment.

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And I think the case law... No one's saying that.

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What we're saying is when she came back and said, I don't want that hearing, let's put things on hold, and that's what the agency does.

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So what doctrine does that come under that obviates the need for the 120-day rule?

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I mean, what... There's... The statute says you have to file

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This is a time period subject to equitable estoppel.

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Why wouldn't equitable estoppel apply here?

[00:14:27] Speaker 04:
I don't believe it applies in this case.

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The doctrines in the case law are just the abandonment, and she did not abandon her case.

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She merely agreed to let it stay on hold.

[00:14:38] Speaker 07:
Why didn't she abandon her case when she filed in the district court before the 120-day period?

[00:14:43] Speaker 04:
It was after the 120-day period when she filed in court.

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It was April.

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It was from September to April.

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That's seven months.

[00:14:53] Speaker 07:
There's a period of time when the clock wasn't running, I'm assuming, at her agreement.

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At her agreement, but not at her request.

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And I believe... Well, it's certainly consistent with her desire.

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But anyway, we made that point.

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Okay, moving on to the suspension claim.

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If you'll just give me a few moments to talk about that.

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The district court summary judgment needs to be reversed because there are issues of fact from which a reasonable jury could find that the real reason... How is the issue sheet not a response?

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Because it's not addressed to the employee.

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Does a response have, response means that?

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Response means it has to be.

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That's one reason, yes.

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Where do we get that from?

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Is that a dictionary understanding?

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When you talk to me and.

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That's a response.

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And I respond back, it's a response.

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That's one form of response.

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But if I talk to someone over here.

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Does that exhaust the word of responses?

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If I talk to somebody over here, it's not a response to you.

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So that's your answer.

[00:15:58] Speaker 07:
It's not a response because it wasn't directed to... That's one reason.

[00:16:02] Speaker 04:
A second reason is that it doesn't respond to the specific accusations that were in that memo.

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The reason she ordered her not to respond was because she didn't want her to engage any further with that employee.

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She didn't engage any further with that employee.

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She didn't address what was said in that memo.

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Her issue sheet has to do with a fundamental problem at the EPA that non-civil rights professionals, environmental lawyers, were trying to dictate policy in civil rights areas, including asking for affirmative action for gays and lesbians when that is

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clearly not allowed under the law when there's been no showing.

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I understand your client's view that this did not violate the directive not to respond.

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She has a different view of what she was doing.

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Do you factually dispute that Higginbotham thought it was a response?

[00:16:55] Speaker 02:
Yes, we do.

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What evidence did you come forward with that would have allowed a jury to conclude that she didn't even think it was a response?

[00:17:05] Speaker 02:
Because she is all over the place.

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She has said... Where is she all over the place on, I didn't think this was a response.

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Not on why I hadn't done my own response earlier.

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That's got nothing to do with this.

[00:17:16] Speaker 02:
Well, that has something to do with it.

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That's material.

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Why is she all over the map just on?

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I didn't think this was a response.

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Where did she ever say, I didn't actually think this was a response?

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Or what evidence... Well, you never have that in a discrimination case.

[00:17:30] Speaker 02:
Okay, so what evidence do you have as to her thinking that this was not a response?

[00:17:34] Speaker 04:
We have her racially biased statements that show that she has a...

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personal hostility towards Ms.

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Morris.

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And one of the standards on pretext is if a reasonable jury could believe that a discriminatory reason more likely motivated the employer.

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So the pretext evidence, the evidence that it's just not plausible that this is a response, has to be weighed

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and weighed by a jury along with the evidence of racial discrimination and also her dishonesty about its material that she did for five months.

[00:18:10] Speaker 04:
She didn't respond to this memo that she agreed was not accurate towards her employee that was widely distributed.

[00:18:17] Speaker 04:
She didn't respond.

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Five months went by and she didn't try to do anything to clear Ms.

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Morris's name.

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so it's always worse didn't respond for it no she didn't respond what she does is she takes them missing about him to task for saying she would respond and then not responding and that is not a response to what is said in

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the memo from his family those are the two things you rely on aren't the comments the racial comments and her delay in responding herself there's many more things okay and there's the fact that she's dishonest about the delay she makes up some of the things that delay and comments but if she's dishonest about material facts that affected miss morris from that a jury just ask you the other other things

[00:19:06] Speaker 04:
Well, you said just the delay, but it's not just the delay.

[00:19:09] Speaker 02:
It's that she lied about the delay.

[00:19:11] Speaker 04:
The delay in the racial comments.

[00:19:12] Speaker 04:
The delay in the racial comments, yes.

[00:19:15] Speaker 04:
Also the fact that she treated her horribly.

[00:19:17] Speaker 04:
She didn't

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give her the respect that she gave her African-American directors.

[00:19:24] Speaker 04:
The supervisor, Spears, had actually said to her at one point when she hired a white person, why are you hiring so many white people in the Office of Civil Rights?

[00:19:35] Speaker 04:
Aren't people going to think that's odd?

[00:19:36] Speaker 04:
What year was that?

[00:19:38] Speaker 04:
And that was the year before the suspension.

[00:19:42] Speaker 06:
How do we know that?

[00:19:43] Speaker 06:
We know that it was the time of the hiring of Hague.

[00:19:46] Speaker 06:
That was the only event that I could see that, at least if you knew when Hague started.

[00:19:53] Speaker 04:
I don't know.

[00:19:53] Speaker 04:
How many years does it take for racists to change their views?

[00:19:59] Speaker 06:
That's an interesting question.

[00:20:00] Speaker 04:
I think it was in the time frame.

[00:20:03] Speaker 04:
It was, it was not, you know, 10 years earlier or anything like that, because it was at the time of Administrator Johnson.

[00:20:11] Speaker 04:
That was another comment she made.

[00:20:13] Speaker 06:
She called... Administrator Johnson goes back to early 25.

[00:20:18] Speaker 06:
So that's substantial period back.

[00:20:22] Speaker 03:
Okay.

[00:20:23] Speaker 03:
Well,

[00:20:25] Speaker 03:
Yes, I'll give you that.

[00:20:26] Speaker 06:
So all I'm saying is that you'd be much more probative, I think, if it were a month before the Spears decision than if it is three and a quarter years before the Spears decision.

[00:20:45] Speaker 06:
I don't concede that.

[00:20:49] Speaker 04:
I don't concede that somebody who calls white people who are working nasty little white boys.

[00:20:58] Speaker 04:
I don't think that a person who speaks like that changes their views in four years, regardless

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unless something else intervened and it would be their burden to show that their views on race have changed.

[00:21:13] Speaker 02:
So in that period between that statement and then this whole response thing arose, what did she do that suggested she was racially discriminated against Morris?

[00:21:25] Speaker 02:
I'm trying to get the window between your nasty

[00:21:30] Speaker 02:
I think it was Nasty Whiteboy's comment, and the start of this whole, when your client sent the issue sheet.

[00:21:39] Speaker 02:
Or even when you want to say, when this whole thing, this whole dispute arose and the delay started.

[00:21:43] Speaker 02:
What happened in between there?

[00:21:48] Speaker 02:
Got like a year period, right?

[00:21:49] Speaker 04:
Well, the only thing she knows for sure is that it was Administrator Johnson who the white men were working outside of Administrator Johnson's office.

[00:22:00] Speaker 04:
And she didn't recall exactly when that was.

[00:22:02] Speaker 04:
We could look up at some point when Administrator Johnson had renovations done.

[00:22:07] Speaker 04:
But that had to be at least February, January, February 2005, but it's unlikely that it was that early.

[00:22:15] Speaker 02:
I'm just asking you what happened between the time period when that statement occurred and when this dispute with, I don't know if I'm saying the name right, Tomellio, Tomellio arose and that there's a time period there that

[00:22:32] Speaker 02:
I'm interested in knowing how Higginbotham displayed discrimination against your client.

[00:22:39] Speaker 02:
Are there any actions that you point to?

[00:22:42] Speaker 02:
I think that's one of the reasons time matters.

[00:22:45] Speaker 02:
I'm not prepared to answer that right now.

[00:22:46] Speaker 02:
That's why I think time matters, is there's a lot of intervening activity.

[00:22:50] Speaker 04:
I believe there are parts of at least one of her declarations where she talks about ongoing strife

[00:23:00] Speaker 04:
between her and Miss Higginbotham, and there was constant disfavorment.

[00:23:06] Speaker 04:
She regularly favored her African-American employees.

[00:23:10] Speaker 04:
She went to lunch only with her African-American assistant directors.

[00:23:14] Speaker 04:
She basically treated Ms.

[00:23:18] Speaker 04:
Morris as an outcast from the beginning.

[00:23:20] Speaker 04:
And it was to Elise Wright.

[00:23:22] Speaker 02:
Was Ms.

[00:23:23] Speaker 02:
Morris the only white woman in the office?

[00:23:25] Speaker 02:
Yes.

[00:23:25] Speaker 04:
Yes everyone is black except at this time Ms.

[00:23:29] Speaker 04:
Morris and Bill Hague who when he was hired it was said why you're hiring so many white people.

[00:23:37] Speaker 06:
What's the total number of people in the office?

[00:23:44] Speaker 04:
I am not sure.

[00:23:45] Speaker 04:
There are

[00:23:51] Speaker 04:
Four assistant directors, and then under them, Ms.

[00:23:55] Speaker 04:
Morris herself had about five people working for her.

[00:23:59] Speaker 06:
Well, but I'm thinking of people at or above her level.

[00:24:06] Speaker 06:
Maybe there's no one above her except for Higginbotham herself, but in other words, I'm trying to picture the pyramid we're dealing with.

[00:24:15] Speaker 01:
Oh, I wonder if I have a...

[00:24:20] Speaker 01:
There's a workforce analysis in here.

[00:24:29] Speaker 04:
Oh, that doesn't help.

[00:24:31] Speaker 04:
Sorry.

[00:24:31] Speaker 04:
Statistics of the whole EPA.

[00:24:34] Speaker 04:
But it's not just the assistant directors that are all African-American.

[00:24:38] Speaker 04:
The people under them are all African-American as well.

[00:24:42] Speaker 04:
So the people that are being hired in the Office of Civil Rights are not white.

[00:24:49] Speaker 01:
Remind me what year Mr. Haig was hired?

[00:24:52] Speaker 01:
I'm sorry?

[00:24:53] Speaker 01:
What year was Mr. Haig hired?

[00:24:54] Speaker 01:
Just remind me.

[00:24:56] Speaker 01:
I don't know.

[00:25:03] Speaker 04:
I can get all these dates for you, if you would like.

[00:25:06] Speaker 02:
We can find them.

[00:25:07] Speaker 02:
I just didn't know if you knew at the top of your head.

[00:25:09] Speaker 04:
I'm not sure it's in here.

[00:25:11] Speaker 06:
I could find the date of the page.

[00:25:17] Speaker 04:
I'm sorry?

[00:25:18] Speaker 06:
I could not find the date of the page.

[00:25:19] Speaker 04:
You couldn't find it?

[00:25:20] Speaker 04:
Yeah, but I could ask Ms.

[00:25:22] Speaker 04:
Morris, and she would know.

[00:25:25] Speaker 04:
Or at least she would know a general time frame.

[00:25:28] Speaker 04:
But it was definitely before the suspension in 2007.

[00:25:32] Speaker 04:
Um.

[00:25:35] Speaker 04:
I think in closing, the issue is when you take all the evidence together, whether there's enough evidence for a reasonable person to think that it was discriminatory.

[00:25:45] Speaker 04:
And given the very racial things that Ms.

[00:25:49] Speaker 04:
Higginbotham has said, I don't think that those kind of motives dissipate over time, especially when she's the entire time antagonizing Ms.

[00:25:57] Speaker 04:
Morris.

[00:25:58] Speaker 07:
And if you look at her... We have your argument.

[00:26:00] Speaker 07:
We'll give you a couple minutes back.

[00:26:02] Speaker 04:
Okay.

[00:26:02] Speaker 07:
Thank you.

[00:26:17] Speaker 05:
Your honors, may it please the Court.

[00:26:19] Speaker 05:
Brian Hudak from the U.S.

[00:26:21] Speaker 05:
Attorney's Office on behalf of the EPA.

[00:26:23] Speaker 05:
The EPA asks this Court to affirm the District Court's decisions to dismiss Ms.

[00:26:27] Speaker 05:
Morris's termination claim and grant its summary judgment on Ms.

[00:26:31] Speaker 05:
Morris's suspension claim.

[00:26:33] Speaker 05:
First, that's the determination claim.

[00:26:35] Speaker 05:
As the panel has noted in an appellant's argument, there's an overarching obligation to actively participate in the administrative process.

[00:26:43] Speaker 05:
This is because the whole concept of administrative exhaustion is there to encourage the parties to resolve their disputes without resorting to litigation.

[00:26:52] Speaker 02:
The PLJ was wrong to say that she agreed to dismissal of that prejudice, right?

[00:26:57] Speaker 02:
I disagree with that.

[00:26:58] Speaker 02:
Where does her filing say she agreed to dismissal of that prejudice?

[00:27:00] Speaker 02:
I didn't see that anywhere.

[00:27:02] Speaker 02:
I thought you said, look, I want to stay.

[00:27:04] Speaker 02:
I don't want this missile.

[00:27:06] Speaker 02:
I want to stay.

[00:27:10] Speaker 02:
If you decide that's what you're going to do, protect me.

[00:27:12] Speaker 02:
But I see nowhere where she agrees to it.

[00:27:15] Speaker 05:
I don't believe she was the word agree.

[00:27:16] Speaker 05:
But the last paragraph of her response to AJ's order is, however, if this board believes that the best course is to dismiss the matter without prejudice.

[00:27:26] Speaker 02:
Yeah, that's just saying, look, I mean, lawyers do this all the time.

[00:27:29] Speaker 02:
Boy, I don't think you should do that.

[00:27:30] Speaker 02:
But if you're going to rule against me, let's mitigate the harm.

[00:27:33] Speaker 02:
I don't see her agreement anywhere to dismissal without prejudice.

[00:27:36] Speaker 02:
And if she didn't agree, isn't that pretty important?

[00:27:39] Speaker 05:
Your honor, I think there is a fair reading of this that the AJ understood her argument.

[00:27:44] Speaker 02:
Well, this is summary judgment, so we're going to take it in the light most favorable to her.

[00:27:48] Speaker 02:
It's your burden to show that.

[00:27:50] Speaker 02:
And you have to show abandonment, right?

[00:27:53] Speaker 02:
The burden's on you to show failure to exhaust.

[00:27:55] Speaker 02:
And so if it's unclear whether she agreed, and I don't think it's unclear, actually.

[00:28:00] Speaker 05:
Whether she agreed or not, it was dismissed without prejudice.

[00:28:04] Speaker 05:
She wanted to delay the process to allow the OSC investigation to continue for a very important reason.

[00:28:12] Speaker 05:
The OSC had asked the MSPB to stay the effectiveness of her removal.

[00:28:16] Speaker 05:
She was continuing to be an employee and being paid by EPA during this period.

[00:28:20] Speaker 02:
Yeah, exactly.

[00:28:21] Speaker 02:
And then in January, she was fired for good.

[00:28:24] Speaker 02:
That stay ran out.

[00:28:26] Speaker 02:
And meanwhile, everyone wanted to restart the clock again.

[00:28:29] Speaker 02:
Well, once that stay runs out, she really wants to push this thing forward.

[00:28:34] Speaker 02:
And maybe that's why she didn't agree to this, Mrs. White-President.

[00:28:37] Speaker 02:
She wanted more control through a stay.

[00:28:40] Speaker 05:
Well, Your Honor, that's not true.

[00:28:41] Speaker 02:
And an automatic refiling where she doesn't pick the date.

[00:28:43] Speaker 05:
Well, Your Honor, that's contrary to her actions in the second MSPB appeal.

[00:28:47] Speaker 05:
If the court were to consult Appellee's addendum at page 28, we have a motion to stay by Ms.

[00:28:54] Speaker 05:
Morris in the second appeal or in the alternative to hold it in abeyance pending outcome in the investigation by OSC.

[00:29:02] Speaker 05:
Even in the second appeal, she was wanting to

[00:29:05] Speaker 05:
delay for MSPB appeal until OSC can finish its review.

[00:29:10] Speaker 02:
I'm sorry, which page are you on?

[00:29:13] Speaker 05:
I'm sorry.

[00:29:14] Speaker 05:
Page 28 of the Addendum to Appellees brief.

[00:29:21] Speaker 02:
Which page?

[00:29:21] Speaker 02:
I'm sorry, can I make it?

[00:29:23] Speaker 05:
I've been referring to it as AD-AD 28 to AD 30.

[00:29:28] Speaker 05:
is a motion filed by Ms.

[00:29:31] Speaker 05:
Morris in the second MSPB appeal seeking a further stay of the MSPB proceedings for OSC to finish their investigation.

[00:29:40] Speaker 05:
At this point in time, she was terminated.

[00:29:42] Speaker 05:
The MSPB did not grant a further stay of the effectiveness of her removal.

[00:29:45] Speaker 05:
But she was still waiting, wanting, desiring for OSC to finish its investigation before she moved forward with her appeal.

[00:29:52] Speaker 05:
So the notion that she was eager in her second MSPB appeal

[00:29:56] Speaker 05:
to get it going and have it finished within 120 days is simply not there.

[00:30:01] Speaker 05:
When the MSPB denied her motion to stay in the second MSPB appeal, that's when she went to district court.

[00:30:08] Speaker 05:
Perhaps viewing the MSPB's reluctance to delay proceedings as an indication that it was an unfavorable forum for her

[00:30:17] Speaker 05:
the merits of her dispute.

[00:30:18] Speaker 05:
For whatever reason, it's not as if she was eager to pursue her MSPB remedies at that point in time.

[00:30:24] Speaker 05:
Indeed, the MSPB, despite a 30-day state for discussions of settlement, and despite Ms.

[00:30:29] Speaker 05:
Morris's motion, which was denied for further state, the MSPB was on track pursuant to its orders to conclude its consideration of the MSPB appeal within 120 days of the refile date.

[00:30:42] Speaker 05:
It was on pace to adhere to a statutory mandate.

[00:30:46] Speaker 05:
And it was only Ms.

[00:30:47] Speaker 05:
Morris who prevented that from occurring by filing her claim.

[00:30:50] Speaker 07:
Do you have authority that suggests the MSPE can in fact toll the clock this way?

[00:30:56] Speaker 05:
That a state can toll the clock?

[00:30:58] Speaker 07:
Your Honor, I think the statute speaks about 120 days or so.

[00:31:01] Speaker 07:
I don't see any exceptions for that.

[00:31:03] Speaker 05:
I think two responses.

[00:31:07] Speaker 05:
One, Your Honor, is the

[00:31:10] Speaker 05:
the night circuit in many heroes uh... i think you can draw some support from that case it applied equitable notions to the consideration of a hundred twenty day period saying if someone abandons the process of solace cases dismissed without prejudice they can simply clock it because of the weight of the laps of a hundred twenty days tonight services that's it that's all you've got you've got it's it's bad and also

[00:31:35] Speaker 05:
The government's position that the dismissal without prejudice was a final decision subject to judicial review under the statute, those are the two propositions that we would offer for the fact that this dismissal without prejudice rendered a nullity the time of the first MSPB appeal because the second MSPB bill was filed and was on process and the parties actively engaged in the administrative process during that period of time and it was aborted only because Ms.

[00:32:03] Speaker 05:
Morris chose to go to district court.

[00:32:07] Speaker 05:
As to the suspension claim, Your Honor, I do not believe that there is any reasonable juror that could find that Ms.

[00:32:15] Speaker 05:
Higginbotham did not reasonably and sincerely believe that the issue she was in subordination.

[00:32:21] Speaker 05:
She sent an email, which is located

[00:32:25] Speaker 05:
in joint appendix page 387 on February 14th, as soon as she received Ms.

[00:32:31] Speaker 05:
Morris's issue sheet, saying, I specifically told you not to respond.

[00:32:36] Speaker 05:
This is a response I'm going to have to consider what to do.

[00:32:39] Speaker 05:
And at that point in time, the steps in her proposed suspension, which ultimately led to her suspension, followed shortly thereafter.

[00:32:47] Speaker 05:
There is no reasonable inference from the record that Ms.

[00:32:50] Speaker 05:
Higginbotham's decision to propose

[00:32:53] Speaker 05:
Ms.

[00:32:53] Speaker 05:
Morris's suspension and Mr. Spears's decision to affect that suspension after hearing from Ms.

[00:32:59] Speaker 05:
Morris and her counsel was not motivated by this reason, but some other reason.

[00:33:04] Speaker 05:
And that is the threshold showing that Ms.

[00:33:06] Speaker 05:
Morris must change.

[00:33:06] Speaker 07:
Well, what do you make of your opponent's argument that this, in fact, was not a response because it wasn't directed to the memo's authors?

[00:33:15] Speaker 05:
Well, as an objective basis, I would say- It's a human resources complaint, right?

[00:33:21] Speaker 05:
Well, no, Your Honor.

[00:33:23] Speaker 05:
A human resources complaint by OCR employee does not need to be sent to 27 senior EPA management officials, including recipients of the critical memoranda that are referenced in her issue sheet.

[00:33:40] Speaker 05:
I mean, her issue sheet references, calls out, points out these memoranda.

[00:33:43] Speaker 07:
But is it unreasonable to think that this

[00:33:47] Speaker 07:
wasn't a response.

[00:33:49] Speaker 07:
Perhaps it was a response to Ms.

[00:33:50] Speaker 07:
Higginbotham, but not a response to the memos.

[00:33:53] Speaker 05:
Well, Your Honor, it's not whether it's reasonable to view this objectively as a response or not.

[00:33:59] Speaker 05:
The question is, under Brady, whether there is a reason in the record to question Ms.

[00:34:07] Speaker 05:
Higginbotham's belief

[00:34:08] Speaker 05:
That it is.

[00:34:09] Speaker 05:
Don't we have that with the racist comments and the hostile behavior?

[00:34:13] Speaker 05:
No, Your Honor.

[00:34:14] Speaker 05:
Again, the stray comments many years before were unconnected to me.

[00:34:17] Speaker 02:
They weren't out many years before.

[00:34:19] Speaker 02:
Wasn't the nasty white boys right around the same time?

[00:34:23] Speaker 06:
At least it could be as little as two years, two and a fifth years before.

[00:34:31] Speaker 06:
It's pretty, it's nine years late now, this comment.

[00:34:34] Speaker 06:
I was wondering if you have any straight comments that are at that level of venom that are treated as not creating an issue.

[00:34:44] Speaker 05:
Your Honor, I would point the court to Easel against Wolf Block Shore and Solace Cohen from the Third Circuit in 1992, which seems to be the case the first discussed straight comments unconnected from an employment process, whether or not they can be sufficient to you.

[00:35:00] Speaker 05:
What were the comments there?

[00:35:02] Speaker 05:
The comments there,

[00:35:04] Speaker 05:
Your honor, there were a series of four comments that the employee complained about.

[00:35:16] Speaker 05:
And this was a gender discrimination case.

[00:35:18] Speaker 05:
One of the comments was that Ms.

[00:35:20] Speaker 05:
Izzo was being evaluated negatively for too much involvement in women's issues.

[00:35:25] Speaker 05:
including the women's issue of part-time employment.

[00:35:28] Speaker 05:
The second instance was the fact that a male associate's sexual harassment of female employees at the firm was seen as insignificant, and Ms.

[00:35:35] Speaker 05:
Yuzo complained about that.

[00:35:37] Speaker 05:
The third incident was that Easel was evaluated negatively for being very demanding, in quotes, while several male associates who were made partners were evaluated negatively for blackness.

[00:35:47] Speaker 07:
I don't know if there's actually a measure for bigotry, but none of those comments seem as venomous as this.

[00:35:55] Speaker 07:
This is a particularly heinous phrase, and if it was used, directed at other bases, we'd be similarly outraged, wouldn't we?

[00:36:03] Speaker 05:
You're all right.

[00:36:03] Speaker 05:
I think that is correct.

[00:36:04] Speaker 05:
And if it was indeed said, it is a venomous conduct.

[00:36:07] Speaker 05:
But unless it's connected with the employment process.

[00:36:10] Speaker 02:
Well, why doesn't time, I mean, what's, correct my, if I'm wrong on the facts, but I thought this was, was it late 2008, like December 2008, and then January is when everything starts up with them.

[00:36:22] Speaker 02:
Am I wrong?

[00:36:22] Speaker 02:
But this was close in time.

[00:36:25] Speaker 02:
This is not a 2005-2006 comment.

[00:36:28] Speaker 05:
I believe it was, Your Honor.

[00:36:29] Speaker 05:
I mean, the exact date is not in the record.

[00:36:31] Speaker 05:
It was in the Johnson administration, which began in March of 2005.

[00:36:36] Speaker 05:
He was acting administrator for a period of time before that, I think January of 2005.

[00:36:42] Speaker 05:
But there's no support in the record that this was made in connection with the process.

[00:36:47] Speaker 02:
Moreover, Your Honor, I would posit that even if you have a... The why she hiring so many white people happened in 2008.

[00:36:54] Speaker 02:
That is a comment from Mr... And JA17 says nasty white boys was January 2008.

[00:37:02] Speaker 02:
So we got those two in 2008.

[00:37:05] Speaker 05:
Your Honor, I don't know where Your Honor is reading

[00:37:08] Speaker 02:
So I've got JA17 on January 7, 2008, Higginbotham said

[00:37:31] Speaker 02:
referred to Administrator's aides as nasty little white boys and the 2008 Mr. Spears asking about them why she was hiring Caucasian.

[00:37:40] Speaker 02:
So those are both 2008.

[00:37:41] Speaker 02:
At least there's there's evidence.

[00:37:44] Speaker 05:
Your Honor, I would look.

[00:37:46] Speaker 05:
So J 17 is Miss Miss Higginbotham's or Miss Morris's complaint.

[00:37:52] Speaker 05:
Um,

[00:37:53] Speaker 05:
And if you read the allegation, she has a specific allegation that on January 7, 2008, Ms.

[00:37:59] Speaker 05:
Higabotham laughingly said in a staff meeting, those white boys thought they could get away with it, referring to a case in which discrimination was found.

[00:38:06] Speaker 05:
And then there's a tag-along sentence which is unrelated to this meeting.

[00:38:11] Speaker 05:
She also referred to the Administrator's A's as little nasty white boys.

[00:38:14] Speaker 05:
And in her deposition, the government asked specifically when that comment was made, and she could not pinpoint it other than to say it was in the Johnson administration.

[00:38:22] Speaker 05:
That January 2008 date in her complaint is not, it's not attributable to the nasty little white boy's comment from a fair reading of the complaint.

[00:38:37] Speaker 05:
Moreover, in some of your judgments, she can't rely on mere allegations.

[00:38:40] Speaker 02:
What about the next one?

[00:38:40] Speaker 02:
In 2008, I get that Spears asking him about them, so maybe that's the other Spears is saying, why are you hiring so many white people?

[00:38:47] Speaker 05:
Your Honor, and

[00:38:49] Speaker 05:
Yeah, for talking about Mr Spears now, whether or not he and his prejudices of any acting on a proposed suspension of insubordination when the when the it had been proposed from Miss Higginbotham, I would I would just note that I don't know if that comment was.

[00:39:08] Speaker 05:
The government doesn't believe that comment was made, but the government would refer to page three of its brief as well, which details the employees that were hired by Ms.

[00:39:17] Speaker 05:
Higginbotham.

[00:39:19] Speaker 05:
Ms.

[00:39:22] Speaker 05:
Morris tries to make much weight out of both sides of this argument.

[00:39:27] Speaker 05:
She wants to argue that she was the only white person in the department, thus use some sort of cherry pick statistical argument that she was being singled out as a white person.

[00:39:36] Speaker 05:
Separately, she wants to argue that, well, there are a lot of Caucasian hirings by Ms.

[00:39:43] Speaker 05:
Higginbotham, and that was questioned by Mr. Spears.

[00:39:45] Speaker 05:
Factually, those seem to be mutually exclusive.

[00:39:48] Speaker 05:
But the hirings by Ms.

[00:39:50] Speaker 05:
Higginbotham that are in the record, and again, these are the cherry-picked examples, I think, that Ms.

[00:39:55] Speaker 05:
Morris interjected into the record.

[00:39:56] Speaker 05:
There's no robust statistical analysis for this court to rely on statistics to show some sort of pattern of discrimination.

[00:40:03] Speaker 05:
But Ronald Ballard was Caucasian.

[00:40:07] Speaker 05:
He was elected to serve as assistant director at the same level as Ms.

[00:40:10] Speaker 05:
Morris.

[00:40:11] Speaker 05:
Mr. Haig was Caucasian and elected to serve as regional accommodations coordinator.

[00:40:16] Speaker 05:
Ms.

[00:40:16] Speaker 05:
McCain, an African American, was selected to work on the Title 17.

[00:40:22] Speaker 05:
Jonathan Newton, an African American, was to serve as minority academic coordinator.

[00:40:26] Speaker 05:
Gordon Sissler Caucasian to serve on as the deputy director for OCR and Natalie twyman as african-american served in the district in the department as well.

[00:40:36] Speaker 05:
I would say factually it's

[00:40:39] Speaker 05:
You know, these comments are connected to the employment decision.

[00:40:42] Speaker 05:
She has to show a reason to question that this situation was taken.

[00:40:48] Speaker 02:
What about her other reason, and that's that Ms.

[00:40:51] Speaker 02:
Higginbotham kept making up more and more stories about why she wasn't doing the response that she had promised to make?

[00:40:59] Speaker 05:
Well, I think in our brief we lay out that those stories, that those, the version of the events, it did, it was an evolving reason why she wasn't responding to it.

[00:41:07] Speaker 02:
At first, her... Well, you say involving, a jury could say...

[00:41:12] Speaker 02:
accurate or false.

[00:41:13] Speaker 05:
But it's not material.

[00:41:14] Speaker 02:
It was evolving because you kept doing one and then that didn't work and then you came up with another one and that one didn't work.

[00:41:19] Speaker 05:
How is it material?

[00:41:20] Speaker 05:
It's not material because the direction was to miss more is not to respond.

[00:41:25] Speaker 05:
Whether a manager decides to put off an employee to try to cool things down when there's an interpersonal disagreement between two employees and even if those reasons are changing over time and even if they're false

[00:41:36] Speaker 05:
And we think that they were just evolving based upon the price of misdemeanors demands.

[00:41:41] Speaker 05:
But even if they're false, made up, white lies to say, don't worry, I'll get to it.

[00:41:46] Speaker 05:
That doesn't change the directive to the employee not to respond.

[00:41:50] Speaker 02:
And in fact, it may be good management skills to- They would probably take off your white adjective on the lies and they would say, look, she's been out to get Ms.

[00:41:59] Speaker 02:
Morris all along.

[00:42:02] Speaker 02:
I guess it would say because she's white.

[00:42:04] Speaker 02:
And look what happens.

[00:42:05] Speaker 02:
Something terrible happens like this.

[00:42:07] Speaker 02:
And she keeps saying, I'll respond.

[00:42:08] Speaker 02:
But she doesn't respond.

[00:42:10] Speaker 02:
And then when you say, why do you respond?

[00:42:11] Speaker 02:
She makes up ridiculous reasons no one could believe.

[00:42:14] Speaker 02:
They're not credible reasons.

[00:42:15] Speaker 02:
And she does it.

[00:42:15] Speaker 02:
She lies again and again and again.

[00:42:17] Speaker 02:
And again, so why should you trust her on this?

[00:42:21] Speaker 02:
That's their story.

[00:42:22] Speaker 02:
I'm just laying it out for you.

[00:42:23] Speaker 02:
I'm not subscribing one way or the other.

[00:42:24] Speaker 02:
Why isn't that something a jury could conclude?

[00:42:27] Speaker 02:
And therefore, why should I trust her?

[00:42:29] Speaker 02:
She's looking for a reason, and then she got a reason.

[00:42:32] Speaker 02:
She knew this wasn't a response.

[00:42:33] Speaker 02:
It was a different type of filing altogether.

[00:42:35] Speaker 02:
The vast majority of the content is about different issues.

[00:42:41] Speaker 05:
it simply is not a reasonable read that it's a material issue as to why she didn't respond.

[00:42:46] Speaker 05:
And simply because someone told a white lie once, or a lie once, an outright, blatant, significant lie, unconnected with these facts, the material facts of this decision.

[00:42:55] Speaker 02:
She's going to go ahead and tell me there were multiple ones here.

[00:42:58] Speaker 02:
It wasn't one.

[00:42:59] Speaker 02:
And I guess I'm asking you, I'm just trying to figure out that line for, it's a pretty deferential standard, what a reasonable jury could credit, and why you're over that hurdle.

[00:43:10] Speaker 05:
Well, but it's only a differential standard to the material facts.

[00:43:14] Speaker 05:
And if it's not material, it's not material why Ms.

[00:43:18] Speaker 05:
Higginbotham didn't respond.

[00:43:20] Speaker 05:
But the material question is, did Ms.

[00:43:22] Speaker 05:
Higginbotham consider Ms.

[00:43:24] Speaker 05:
Morris's issue sheet a response?

[00:43:28] Speaker 05:
Which Mr. Spears agreed with.

[00:43:30] Speaker 05:
An impartial arbiter, after hearing from Ms.

[00:43:32] Speaker 05:
Morris and her counsel, agreed with.

[00:43:35] Speaker 05:
I don't think that there's any reasonable inference from the facts in the record that Ms.

[00:43:40] Speaker 05:
Heigenbaum's belief wasn't sincerely held.

[00:43:45] Speaker 05:
If there are no other questions, EPA asks this panel to respond.

[00:43:48] Speaker 05:
Thank you very much.

[00:43:55] Speaker 04:
The charge of insubordination requires not only that Ms.

[00:44:00] Speaker 04:
Higginbotham believe that the memo was a response, but she also has to believe that Ms.

[00:44:08] Speaker 04:
Morris understood her order to preclude what she was doing.

[00:44:13] Speaker 04:
In other words, you can't accuse your subordinate of disobeying an order if your subordinate is telling you, well, I didn't think that's what you meant.

[00:44:21] Speaker 06:
I don't think that... Are you sure you're overstating that?

[00:44:26] Speaker 04:
Okay, so then what we have to look at is whether a jury looking at the response that Ms.

[00:44:39] Speaker 04:
Morris gave could think it's really true that

[00:44:44] Speaker 04:
Ms.

[00:44:45] Speaker 04:
Higginbotham, who has made these racial statements and who has been dishonest about other material facts, really thought that Ms.

[00:44:54] Speaker 04:
Morris was being dishonest when she said, I didn't respond.

[00:44:59] Speaker 04:
I don't consider this a response.

[00:45:01] Speaker 04:
I don't see how I violated your direct order.

[00:45:04] Speaker 02:
Now, am I right that the Johnson administration, hey, call it the Johnson administration, the term went into 2009?

[00:45:14] Speaker 04:
Yes, but it was before the suspension that those comments were made.

[00:45:20] Speaker 02:
No, I understand.

[00:45:21] Speaker 02:
But it started in 2005.

[00:45:21] Speaker 02:
We all think Johnson, that must be very old, but in fact it's fully consistent with these being 2008 comments.

[00:45:27] Speaker 02:
Right, because the facts are so old.

[00:45:29] Speaker 04:
The suspension is in 2007-2008 time period.

[00:45:37] Speaker 04:
And the other thing I wanted to say about the termination claim, when a judge tells you, look, I'm inclined to put off the hearing, I want to dismiss with prejudice, and then you respond, well, we would... Where did the judge say that?

[00:45:53] Speaker 04:
Where did the judge say, I'm inclined?

[00:45:55] Speaker 04:
I thought that that was part of what you requested in the evidence.

[00:46:01] Speaker 04:
I couldn't put my finger on it.

[00:46:03] Speaker 04:
Before the responses, there's a proposal to dismiss without prejudice.

[00:46:09] Speaker 04:
So the MSPB judge is proposing, she's the one proposing to put things off.

[00:46:15] Speaker 02:
Now, in his... Okay, sorry.

[00:46:18] Speaker 04:
Do you have that?

[00:46:19] Speaker 04:
I don't know if we have that.

[00:46:21] Speaker 02:
What I have is in the order, they say, by order dated October 14, 2010, I requested responses from the parties on the question of whether to proceed with the scheduled hearing.

[00:46:31] Speaker 02:
right and maybe dismiss the appeal without prejudice to refiling so that's not doesn't sound to me like I'm inclined but there but we need the October 14 okay so do you have you have that in your record on appeal I do not I don't think so

[00:46:55] Speaker 04:
I mean, the order, the October 14th order was an order, and this is coming from the response by Ms.

[00:47:01] Speaker 04:
Morris, was an order proposing dismissal without prejudice.

[00:47:07] Speaker 04:
So I think that indicated to Ms.

[00:47:10] Speaker 04:
Morris that that's what the MSPB judge was inclined to do.

[00:47:14] Speaker 04:
If you've got a judge indicating that they want to delay and you

[00:47:19] Speaker 04:
And maybe agree is not the right word, but she kind of submits, okay, if that's what you want to do, go ahead and do it.

[00:47:27] Speaker 02:
She's represented by a lawyer at this point, so I think it's a bit much to say.

[00:47:32] Speaker 04:
I will tell you, if I had a judge who wanted to put off a hearing, I would agree to put it off generally because the judge is not going to rule for you if

[00:47:42] Speaker 04:
they're wanting to put it off and then you're like, no, I don't want you to put it off because they think it should be put off.

[00:47:51] Speaker 04:
So why would you go against the judge who's going to be the fact finder?

[00:47:55] Speaker 04:
It's not like a district court case where the jury's going to decide the issue.

[00:48:00] Speaker 04:
So I think that may have been a strategic decision to just not agree, but just acquiesce almost.

[00:48:08] Speaker 04:
Can you provide us with a copy of that order?

[00:48:10] Speaker 04:
I can find that, yes.

[00:48:13] Speaker 04:
The MSPVE file system is very difficult, but I'll find it.

[00:48:20] Speaker 04:
I think when you consider the issue of Ms.

[00:48:24] Speaker 04:
Higginbotham's statements, her dishonesty about facts, whether they're material, they're not the actual reason, but they are related to important facts about how she treated Ms.

[00:48:36] Speaker 04:
Morris, and her explanations are just, I mean, you know.

[00:48:41] Speaker 04:
I think we get to your argument.

[00:48:42] Speaker 04:
Okay.

[00:48:43] Speaker 04:
Thank you.