UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


BORGO, SUSAN M.

v.

GOLDIN, DANIEL S.


98-5503a

D.C. Cir. 2000


*	*	*


Garland, Circuit Judge: Alleging violations of Title VII of  the Civil
Rights Act of 1964, Susan Borgo sued her former  employer, the
National Aeronautics and Space Administration  (NASA), for firing her
from her position at the agency. The  case was prosecuted on the
theory that NASA had mixed  motives for Borgo's termination.
Concluding that NASA was  at least partially motivated by a desire to
retaliate against  Borgo for protected activity, the district court
granted sum- mary judgment for plaintiff. Further concluding that
Borgo  would not have been fired in the absence of the retaliatory 
motive, the court granted her motion for judgment as a  matter of law
on her request for a damages remedy. Be- cause we conclude that NASA's
motivation is a disputed issue  of fact that a reasonable jury could
decide either of two ways,  we reverse and remand for a trial on the


I


On October 18, 1992, NASA hired Borgo as a probationary  employee to
work in its Office of Small and Disadvantaged  Business Utilization.
When hired, she was expected to serve  primarily as Executive
Secretary of the NASA Minority  Business Resources Advisory Committee
(NMBRAC). But  Borgo's relationships with her superiors soon
deteriorated.  On February 8, 1993, she was removed as Executive
Secre- tary of NMBRAC because of tension between her and  NMBRAC's
chairman. Tension also developed between Bor- go and her supervisor,
Ralph Thomas. Thomas criticized  plaintiff for shortcomings "that
included missed deadlines,  unexplained absences, and a generally
inappropriate attitude  in dealings with superiors." Borgo v. Goldin,
No. 95cv0155,  slip op. at 2 (D.D.C. Aug. 21, 1996).1




__________

n 1 Although plaintiff disputed those criticisms, for purposes of her 
motion for judgment as a matter of law she "accept[ed] as true 


On April 29, 1993, Thomas sent Borgo a memorandum  complaining that she
had involved his office in a government- wide conference without
informing him. Thomas wrote that  he was "very displeased that you did
not tell me about this  meeting until you had already sent out letters
announcing it."  "In the future," he instructed, "please inform me of
any and  all affairs like this" at their inception. "It would have
been  very embarrassing to me to have heard about a government- wide
meeting sanctioned by my office which I knew nothing  about." J.A. at


On the following Monday, May 3, 1993, Borgo sent Thomas  a response.
Her letter consisted of five paragraphs on two  pages. See J.A. at
31-32. The first paragraph characterized  Thomas' April 29 memorandum
as ordering that "all profes- sional actions on my part must be
cleared by you before I  may proceed." The second noted that she had
received her  prior employer's "highest award for performance," and
that  she had "made it perfectly clear in [her] employment inter-
view" with NASA that she "would not accept a job in a typical 
bureaucratic operation." She was unable, she said, "to be idle  and
waste taxpayers' dollars while wait[ing] for specific work 
assignments." The third paragraph complained that she had  "not been
assigned any action items" during the past two  weeks, "ha[d] not been
included as a participate [sic] in any  outreach efforts," and had
taken action on the conference  because she "had little else to do."
The letter's penultimate  paragraph, central to this litigation,


It is my opinion, that if I, a white female, was your  manager, and I
did not include you, an African-American  male, as a full member of
the team, and treat you as a  competent professional, that, by now, I
would have been  severely reprimanded or fired by senior management.


Id. at 32.


On May 25, 1993, Thomas sent Borgo a termination letter,  stating that
she was being discharged as a result of "unaccep-




__________

n every pre-May 3rd criticism made by Mr. Thomas." 2/3/98 Trial  Tr. at
46 (J.A. at 312).


table conduct and performance during your probationary  period." J.A.
at 128. He wrote that there were "serious  deficiencies in your
attitude, behavior and conduct which  adversely impact the performance
of your assigned duties and  responsibilities." Thomas noted Borgo's
"inability to effec- tively interact and work with the Chairman" of
NMBRAC,  her "inability to conform to established deadlines on work 
assignments," and her "general negative behavior and atti- tude in the
office." He listed specific examples of  "dates/deadlines which you
have missed that have adversely  impacted the office," as well as
multiple instances of unex- plained absences from work. He further
cited examples of  behavior "bordering on insubordination," including
continuing  to work on NMBRAC matters after having been expressly 
directed not to do so, as well as initiating without authoriza- tion
the government-wide conference discussed above. With  respect to the
latter, Thomas wrote: "Despite my counseling  to you on this matter,
your letter to me on May 3, 1993 still  did not indicate that you
understood the necessity that I be  kept fully informed and would
cooperate and give me notice  of any future meetings." Id. at


Plaintiff challenged her termination on two fronts. First,  before the
Merit Systems Protection Board (MSPB) she  charged that NASA had
retaliated against her for whistle- blowing.2 At the MSPB hearing on
those charges, Thomas  testified regarding his reaction to Borgo's May
3, 1993 letter  and his reasons for firing her. See J.A. at 119-20. He
 described the letter as a "purported answer" to his April 29 
memorandum. It was "[p]urported," he said, because "it  doesn't answer
it." Referring to the government-wide con- ference, he stated: "I told
her, first of all, this was a good  idea, but she should tell me about
things as important as this.  And she writes me back pretty much
telling me where to go."  Counsel then asked for clarification, and
Thomas explained  that he interpreted the letter as a declaration that




__________

n 2 The MSPB adjudicates charges brought under 5 U.S.C. s 2302 
alleging, inter alia, that a federal agency has taken a personnel 
action against an employee for disclosing a violation of law. The 
substance of Borgo's charge was that NASA fired her because she 
reported acts of misconduct relating to the Federal Advisory Com-
mittee Act, 5 U.S.C. app. II, ss 1 et seq.


was going to do as she pleased. It was, he said, "full of  things that
were inaccurate and were not addressing my  memo at all." Id.


In an exchange that would later prove pivotal in the Title  VII
litigation, counsel read the penultimate paragraph of the  May 3
letter aloud and then asked:


Q: Did you form any opinion about that statement?


THOMAS: Well, yes. In this whole--during her whole  tenure, I had never
mentioned her race at all, and, if  anything it was the other way
around. This letter, and  the reason I think you saw a lot of emotion
coming out-- and I apologize to you Mr. Gorman--but that was how I 
felt while reading the letter. It was the straw that broke  the
camel's back. I mean, after all of this, after all-- after not
producing any substantive thing in the office  and just giving
everyone an overall hard time and mak- ing excuses for everything she
did that she was supposed  to do, but didn't do, just the whole--and
then this, you  know, and all I did was tell her--let me know about 
activities as important as this, she writes me a letter like  this.
That--in my mind, that was it.


Q: When you say that was it, how did you regard this  language? Did you
regard it as misconduct in any way?


THOMAS: Yes, misconduct, insubordinate.


J.A. at 122-23 (emphasis added). The MSPB did not decide  Borgo's case
until February 3, 1998. On that date it rejected  her allegations,
ruling that NASA had not retaliated against  her for whistleblowing,
but rather had discharged her for the  reasons stated in Thomas' May
25, 1993 termination letter.


In the meantime, Borgo had filed suit in United States  District Court.
There, she alleged that NASA had discrimi- nated against her because
of her race and sex, and then had  retaliated for her complaint of
discrimination by discharging  her, all in violation of Title VII of
the Civil Rights Act of 1964,  as amended, 42 U.S.C. ss 2000e-5,
2000e-16. Plaintiff  moved for partial summary judgment on the
retaliation claim.  Applying Title VII's framework for analyzing
allegations of  mixed motives on the part of an employer, see 42


s 2000e-2(m), the district court granted Borgo's motion. Re- lying on
Thomas' MSPB testimony, the court held that no  reasonable juror could
conclude other than that "retaliation  was at least part of the
defendant's motivation for firing her."  Borgo, slip op. at 13.


Thereafter, the case proceeded to trial on the question of  remedy,
applying Title VII's rules for determining appropri- ate remedies in
mixed-motive cases.3 NASA contended that  even if retaliation had been
one motive for terminating Borgo,  under Title VII the court could not
"award damages or issue  an order requiring ... reinstatement" because
the agency  "would have taken the same action in the absence of 
[that] impermissible motivating factor." 42 U.S.C.  s
2000e-5(g)(2)(B). At the end of the testimony of Ralph  Thomas, NASA's
first witness, the district court took the case  from the jury and
entered judgment for plaintiff as a matter  of law. "No reasonable
juror could conclude," it held, "that  NASA would have decided to fire
[plaintiff], even absent  retaliation." 2/3/98 Trial Tr. at 47 (J.A.


II


We review de novo both the district court's decision to  grant summary
judgment pursuant to Federal Rule of Civil  Procedure 56, and its
decision to grant judgment as a matter  of law pursuant to Rule 50(a).
See Hall v. Giant Food, Inc.,  175 F.3d 1074, 1076 (D.C. Cir. 1999)
(summary judgment);  Holbrook v. Reno, 196 F.3d 255, 259 (D.C. Cir.
1999) (judg- ment as a matter of law). Summary judgment may be 
granted only if "there is no genuine issue as to any material  fact
[and] the moving party is entitled to judgment as a  matter of law."
Anderson v. Liberty Lobby, Inc., 477 U.S.  242, 247 (1986) (quoting
Rule 56). A dispute about a material  fact "is 'genuine' ... if the
evidence is such that a reason- able jury could return a verdict for
the nonmoving party." 




__________

n 3 The trial was limited to plaintiff's cause of action for
retaliation.  Prior to trial, Borgo abandoned her underlying claims of
race and  sex discrimination. See Joint Pretrial Statement at 1 n.1
(Jan. 8,  1998).


Id. at 248. As the Supreme Court noted in Anderson, "this  standard
mirrors the standard for a directed verdict under  Federal Rule of
Civil Procedure 50(a), which is that .... [i]f  reasonable minds could
differ as to the import of the evidence  ... a verdict should not be
directed." Id. at 250-51 (cita- tions omitted). The "primary
difference between the two  motions is procedural," the Court
explained; "summary judg- ment motions are usually made before trial
and decided on  documentary evidence, while directed verdict motions
are  made at trial and decided on the evidence that has been 
admitted." Id. at 251 (citation omitted). In both situations,  the
court must view the evidence in the light most favorable  to the
nonmoving party and must not assess witness credibili- ty. See Aka v.
Washington Hosp. Ctr., 156 F.3d 1284, 1288,  1298 (D.C. Cir. 1998)
(summary judgment); Mackey v. Unit- ed States, 8 F.3d 826, 829 (D.C.


Title VII states that "[i]t shall be an unlawful employment  practice
for an employer to discriminate against any of [its]  employees ...
because he has opposed any practice made an  unlawful employment
practice by this subchapter." 42 U.S.C.  s 2000e-3(a).4 The amendments
to Title VII contained in the  Civil Rights Act of 1991 address the
proper disposition of  cases in which there may be a mixture of
legitimate and  illegitimate motives for an employer's actions. See
Civil  Rights Act of 1991, Pub. L. No. 102-166, s 107, 105 Stat. 
1071, 1075 (codified at 42 U.S.C. ss 2000e-2(m), 2000e-5(g)).  As
codified at 42 U.S.C s 2000e-2(m), the statute provides  that
liability for "an unlawful employment practice is estab- lished when
the complaining party demonstrates that race,  color, religion, sex or
national origin was a motivating factor 




__________

n 4 The same section makes it unlawful to discriminate against an 
employee because the employee "participated" in any proceeding  under
the subchapter. See 42 U.S.C. s 2000e-3(a). As the district  court
held, it is the "opposition" rather than the "participation"  clause
that applies to this case. Plaintiff complained of retaliation  "not
against her official EEO complaints, but against [the May 3] 
memorandum she wrote to her supervisor opposing discrimination  she
perceived from him." Borgo, slip op. at 5.


for any employment practice, even though other factors also  motivated
the practice." Section 2000e-5(g)(2)(B) then ad- dresses the question
of remedy, providing that when the  plaintiff proves that an
impermissible consideration was a  motivating factor, but the
defendant demonstrates that it  "would have taken the same action in
the absence of" that  factor, a court may not award certain kinds of
relief including  damages and reinstatement (but may grant other
specified  relief, including costs and attorney's fees).5 The parties
and  the district court assumed that the 1991 Act's mixed-motives 
framework applies both where the allegedly impermissible  motivation
is retaliation, as it is here, and where it is race,  color, religion,
sex or national origin, as expressly set forth in  the statute.
Accordingly, we make the same assumption for  purposes of this


In the following sections, we examine two questions. First,  we
consider whether the district court properly granted 




__________

n 5 The three provisions of Title VII cited above apply only to 
private employers, see id. s 2000e(b); a separate provision provides 
that "[a]ll personnel actions affecting employees ... in executive 
agencies ... shall be made free from any discrimination based on 
race, color, religion, sex, or national origin," id. s 2000e-16(a). 
"Despite the differences in language ... we have held that Title  VII
places the same restrictions on federal and District of Columbia 
agencies as it does on private employers, and so we may construe  the
latter provision in terms of the former." Bundy v. Jackson, 641  F.2d
934, 942 (D.C. Cir. 1981). We have specifically applied that 
principle in the context of retaliation claims. See Brown v. Brody, 
199 F.3d 446, 452-53 (D.C. Cir. 1999).


6 In Price Waterhouse v. Hopkins, the Supreme Court held that  once a
plaintiff proves that an impermissible motive was a substan- tial or
motivating factor in an adverse employment decision, the  burden
shifts to the employer to demonstrate it would have made  the same
decision in the absence of the unlawful motive. See 490  U.S. 228,
249-58 (1989) (Brennan, J.) (plurality opinion); id. at 259  (White,
J., concurring). It further held that if the employer satis- fies that
burden, it may avoid a finding of liability altogether. See  id. at
258 (Brennan, J.) (plurality opinion); id. at 260 (White, J.);  id. at
261 (O'Connor, J., concurring). In Thomas v. National  Football League
Players Ass'n, 131 F.3d 198, 202-04 (D.C. Cir. 


summary judgment on plaintiff's claim that NASA violated  Title VII
because retaliation was a motivating factor in her  termination.
Second, we consider whether the court properly  granted judgment as a
matter of law against NASA's conten- tion that the scope of the remedy
should be limited because  the agency would have fired Borgo even in
the absence of a  retaliatory motive.


A


In seeking summary judgment on her retaliation claim,  Borgo construed
Thomas' MSPB testimony as stating that  the penultimate paragraph of
her May 3 letter, which argu- ably charged him with "reverse"
discrimination, was "the  straw that broke the camel's back." Pl.'s
Mem. in Supp. of  Partial Summ. J. at 8-9 (J.A. at 19-20). NASA




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n 1997), this court applied Price Waterhouse to pre-1991 claims of 
retaliation under Title VII.


In 1991, Congress overturned Price Waterhouse in part, amend- ing Title
VII to provide that once a plaintiff proves discrimination to  have
been a motivating factor, liability is established. See Civil  Rights
Act of 1991, s 107 (codified at 42 U.S.C. s 2000e-2(m)); see  also
H.R. Rep. No. 102-40, pt. 1, at 45-49 (1991). Although an  employer
cannot thereafter avoid liability, it can avoid a damages or 
reinstatement remedy by demonstrating that it would have taken  the
same action in the absence of that factor. See 42 U.S.C.  s
2000e-5(g)(2)(B). As noted in the text above, while discrimina- tion
claims based on protected status, such as race or sex, were  covered
by the 1991 Act, Congress did not expressly include retalia- tion
claims in the provision that modified Price Waterhouse. Some  circuits
have held that retaliation claims are not covered by the  Civil Rights
Act of 1991 and are still governed by Price Water- house. See, e.g.,
McNutt v. Board of Trustees, 141 F.3d 706, 709  (7th Cir. 1998);
Woodson v. Scott Paper Co., 109 F.3d 913, 932-36  (3d Cir. 1997). This
circuit has not addressed that question.  Because both parties agreed
below that the Civil Rights Act of 1991  provided the appropriate
framework for decision, see Joint Pretrial  Statement at 4, and
neither asks us to address the issue here, we  have no need to resolve
the question to decide this case. See also  Borgo Br. at 13 n.3
(stating that resolution of the issue is not  required).


arguing that Thomas' testimony was that it was Borgo's  "entire"
letter--not the controverted paragraph--"that was  the final straw."
Def.'s Opp. to Partial Summ. J. at 11 (J.A.  at 48) (emphasis in
original).7 Accepting Borgo's argument,  and relying solely on Thomas'
MSPB testimony, the district  court granted plaintiff's motion for
summary judgment. We  cannot sustain that decision because, viewed in
the light most  favorable to NASA, Thomas' MSPB testimony on this
ques- tion was at best ambiguous. A genuine issue regarding  Thomas'
motivation therefore remained for determination at  trial.


At the MSPB hearing, Thomas testified at length about  what he regarded
as the unresponsiveness of Borgo's letter.  Rather than acknowledging
her failure to advise him of the  government-wide conference, or
promising to do better in the  future, she had sent him a letter
declaring that she was  "unable to be idle and waste the taxpayers'
money." J.A. at  120. In essence, he said, "she writes back pretty
much telling  me where to go.... She is going to do what she wants to 


Then came the fateful question and answer. It is true that  counsel
read the penultimate paragraph of the May 3 letter  and then asked:
"Did you form any opinion about that  statement?" Id. at 122. It is
also true that counsel asked  Thomas how he regarded "this language."
Id. at 123. But it  is not at all clear that those were the questions
Thomas  answered. Instead, he said:


This letter, and the reason I think you saw a lot of  emotion coming
out--and I apologize to you Mr. Gor- man--but that was how I felt
while reading the letter. It  was the straw that broke the camel's
back. I mean, after  all of this, after all--after not producing any
substantive  thing in the office and just giving everyone an overall 
hard time ... and then this, you know, and all I did was 




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n 7 NASA also defended on the ground that the controverted  paragraph
did not constitute protected opposition to an unlawful  employment
practice under 42 U.S.C. s 2000e-3(a). In light of our  reversal of
summary judgment, we do not reach that question.


tell her--let me know about activities as important as  this, she
writes me a letter like this. That--in my mind,  that was it.


Id. at 122-23 (emphasis added).


Thomas' testimony does make clear that Borgo's letter was  the final
straw. But he did not state that the paragraph  complaining of reverse
discrimination was that straw. Nor  was the letter a single, unitary
complaint of discrimination.  Only one paragraph of the letter can be
characterized as such  a complaint. The balance, although phrased as a
response to  Thomas' original memorandum, communicates a message of 
continuing resistance to Thomas' right to supervise her.  From Thomas'
testimony, a jury could infer that he was  retaliating for the
paragraph alleging discrimination. But it  could also reasonably infer
that he was responding to the  letter's overall nonresponsiveness and
message of nonacquies- cence. That was precisely the point Thomas made
in the  testimony leading up to his reference to the proverbial
straw.8  Accordingly, even focusing solely on Thomas' MSPB testimo- ny
as the district court did, we cannot agree that any reason- able jury
would have to find him motivated at least in part by 




__________

n 8 Referring to Borgo's May 3, 1993 letter, Thomas testified:


This is her purported answer to my April 29th memo....  [Purported]
[b]ecause it doesn't answer it. You know, I told  her ... she should
tell me about things as important as this.  And she writes back pretty
much telling me where to go....  She is going to do what she wants to
do.... [R]ather than  addressing what I've said, ... she goes over why
she was hired  at NASA, you know, which is irrelevant.... And she
talks  about ... what she did in her last job and how qualified she 
was. And then she says very curious things like she is unable  to be
idle and waste the taxpayers' money while she waits for  specific work
assignments while at the same time she was late  with most of the work
assignments. She talks about ... how  she was not included to
participate in outreach efforts and that  was totally untrue.... So
the memo was full of things that  were inaccurate and were not
addressing my memo at all.


J.A. at 119-21.


a desire to retaliate against plaintiff for including the offend- ing
paragraph.


Moreover, Thomas' MSPB testimony was not the only  evidence before the
court. NASA's filings included an affida- vit from Thomas asserting
that he fired Borgo for "the  reasons specified in my termination
letter to her." Thomas  Aff. p 63 (J.A. at 72). That May 25, 1993
letter listed the  grounds for termination as including missed
deadlines, unex- plained absences, inability to work with others,
behavior  "bordering on insubordination," and, with specific reference
 to Borgo's May 3 letter, the failure to indicate that she would 
cooperate with Thomas in the future. J.A. at 128-29. It did  not,
however, mention Borgo's suggestion that he was guilty  of reverse
discrimination. A jury considering this list of  reasons could
conclude that retaliation was simply not in the  mix. Of course, a
jury could also conclude that Thomas was  not being forthright in
omitting the discrimination complaint  from that list. For purposes of
summary judgment, however,  the statement in Thomas' affidavit--that
he fired Borgo for  the reasons set out in the termination
letter--must be accept- ed as true. See Hall v. Giant Food, Inc., 175
F.3d 1074, 1078  (D.C. Cir. 1999); Greene v. Dalton, 164 F.3d 671, 674


In sum, we cannot reach a conclusion that Thomas had a  retaliatory
motive without both construing ambiguity against  NASA and discounting
Thomas' credibility. We may not do  either, however, at the summary
judgment stage. Because  there remains a genuine issue of material
fact, and because a  reasonable jury could find that NASA did not
have, even in  part, a retaliatory motive, we reverse the grant of
summary  judgment.


B


In addition to granting Borgo's motion for summary judg- ment on the
issue of liability, the district court also granted  Borgo's motion
for judgment as a matter of law on the  question of remedy, finding
that NASA would not have fired  Borgo in the absence of a retaliatory
motive. Our reversal of 


the grant of summary judgment necessarily requires reversal  of the
grant of judgment as a matter of law. The latter,  which goes only to
the question of an appropriate remedy,  cannot be considered until a
jury first finds for Borgo on the  issue of liability. Moreover, if a
reasonable jury could con- clude that NASA did not have, even in part,
a retaliatory  motive, it necessarily could conclude that NASA would
have  fired Borgo in the absence of such a motive. This logic aside,
at trial there was more than sufficient  evidence from which a
reasonable jury could conclude that  NASA would have fired Borgo in
the absence of retaliation.  At the trial stage, NASA was not limited
to Thomas' MSPB  transcript, affidavit, and termination letter.
Testifying in  person, Thomas conceded that he could not say he would
have  fired plaintiff absent the May 3 letter. The letter, he said, 
was "the final thing that swung me." J.A. at 278. But he  steadfastly
resisted the suggestion that his true motivation  was the letter's
penultimate paragraph. To the contrary, he  repeatedly insisted that
Borgo was fired because of the  letter's overall refusal to
acknowledge his supervisory author- ity, not because of the statement
suggesting he was guilty of  reverse discrimination:


Q: And it was this statement here that you considered  to be
misconduct?


THOMAS: No, I've never said that. I never referred to  that sentence.


Q: You did consider this statement to be misconduct?


THOMAS: No. I've always referred to the letter. I've  always referred
to the letter, and I've always said that  it's because the letter did
not say she would do what I  said to do.


Id. at 271.9


Moreover, when specifically confronted with his MSPB  testimony, Thomas
insisted that, although he had been asked  


__________

n 9 See also id. at 254 ("There is no sentence or paragraph in that 
letter where she says that she was going to do what I said."); id. at 
261 ("[I]t was clear to me that she had indicated that she was not 
going to be supervised by me."); id. at 265 (stating that the 


about the statement in the controverted paragraph, his an- swer about
the last straw was directed to the letter as a  whole:


THOMAS: Every time I said "letter," didn't I? When  did I say this
paragraph?


Q: You were asked specifically about this statement in  the letter, and
that was your response.


THOMAS: But what was my answer? My answer was  "letter." My letter
[sic] was never this paragraph.


....


It was the letter. The letter. Once again she was  saying she wasn't
going to do what I said to do. How  can you supervise someone after
that?


....


Q: Mr. Thomas, when you were asked in the prior  proceeding about this
particular language, you said that  it was the straw that broke the
camel's back, didn't you?


THOMAS: I did not say this language. I said the letter,  and that's
what I've always said.  Id. at 274-75.


Thomas' admission that the May 3 letter was "the final  thing that
swung me" is not the equivalent of an admission  that it was the
letter's disputed paragraph that did the  swinging--not unless unless
one disbelieves Thomas' re- peated protestations to the contrary. The
latter, however, is  a question of credibility for the jury, not a
question of law for  the court. See Hayman v. National Academy of
Sciences, 23  F.3d 535, 537 (D.C. Cir. 1994). Because a reasonable
jury  could find that NASA would have terminated Borgo in the  absence
of a retaliatory motive, we reverse the grant of  judgment as a matter


__________

n termination letter's description of Borgo's conduct as "defiant and 
border[ing] on insubordination" referred to Borgo's suggestion in  the
May 3 letter that "to answer my memo is a waste of her time, is  a
waste of taxpayers' money").


III


What was the straw that broke the camel's back? The  answer, we
conclude, is for the jury to decide. We therefore  reverse the orders
granting plaintiff summary judgment and  judgment as a matter of law,
and remand the case for a trial  on the merits.