Ayissi-Etoh v. Mae

712 F.3d 572

Magloire K. Placide AYISSI–ETOH, Appellant

v.FANNIE MAE, et al., Appellees.

No. 11–7127.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 25, 2012.

Decided April 5, 2013.

Appeal from the United States District Court for the District of Columbia (No. 1:10–cv–01259).

Magloire K. Ayissi–Etoh, pro se, argued the cause and filed the briefs for appellant.

Damien G. Stewart argued the cause for appellees. With him on the brief was Madonna A. McGwin.

Before: GARLAND, Chief Judge, and GRIFFITH and KAVANAUGH, Circuit Judges.

Opinion for the Court filed PER CURIAM.

Concurring opinion filed by Circuit Judge KAVANAUGH.

PER CURIAM:

Placide Ayissi–Etoh worked at Fannie Mae. He is African–American. When Ayissi–Etoh was promoted but denied a salary increase, he was allegedly told by his Fannie Mae manager: “For a young black man smart like you, we are happy to have your expertise; I think I'm already paying you a lot of money.” On another occasion, a Fannie Mae Vice President allegedly shouted at Ayissi–Etoh to “get out of my office nigger.” After Ayissi–Etoh filed a discrimination complaint with the Equal Employment Opportunity Commission, his Fannie Mae supervisor allegedly gave him a choice: drop the racial discrimination claim or be fired. Shortly thereafter, Ayissi–Etoh was terminated.

In the District Court, Ayissi–Etoh alleged that Fannie Mae violated federal anti-discrimination laws by (i) denying him a salary increase for discriminatory reasons, (ii) maintaining a racially hostile work environment, and (iii) retaliating against him for filing a discrimination complaint. He also filed a D.C. law claim for defamation. The District Court granted Fannie Mae summary judgment on each count.

At the summary judgment stage, we must view the evidence in the light most favorable to Ayissi–Etoh, the non-moving party. Analyzing the record in that light, we conclude that a reasonable jury could find that Fannie Mae unlawfully discriminated against, harassed, and retaliated against Ayissi–Etoh. Ayissi–Etoh is thus entitled to a trial on those claims. Therefore, we reverse the District Court's grant of summary judgment on all of Ayissi–Etoh's federal anti-discrimination claims.

I

In the spring of 2008, Fannie Mae hired Placide Ayissi–Etoh—an African–American man—as a Senior Financial Modeler in its Internal Audit Department. Ayissi–Etoh analyzed the models that Fannie Mae used to assess the value of its assets.

After working at Fannie Mae for about three months, Ayissi–Etoh applied for and received a promotion to “Modeling Team Lead,” a new leadership position created when Fannie Mae restructured its Internal Audit Department. There were a total of 12 new Team Lead positions established within the Internal Audit Department. After the Team Leads were selected, 11 of the 12 Leads were given significant salary increases. Ayissi–Etoh was the lone Team Lead who did not receive a raise. Karla Kucerkova—a white employee who applied for Modeling Team Lead but lost out to Ayissi–Etoh—received a salary increase even though she did not obtain one of the Team Lead positions.

Soon after Ayissi–Etoh stepped into the role of Team Lead, he and his manager, Sanda Pesut, began arguing on a regular basis. Pesut criticized Ayissi–Etoh for several “performance shortcomings,” and Ayissi–Etoh complained that he was still being assigned staff-level work despite his promotion. Ayissi–Etoh claims that Pesut treated him poorly because he had obtained the Modeling Team Lead position over Pesut's choice for the promotion, Kucerkova.

In the fall of 2008, upon instruction from Human Resources, Pesut began writing reports to document Ayissi–Etoh's perceived weaknesses. In one evaluation, Pesut criticized what she saw as Ayissi–Etoh's lack of independent analysis. Pesut noted that, in Ayissi–Etoh's description of why certain audit procedures were utilized, the “explanations used were exactly the same as” the explanations submitted by Fannie Mae's customer through email. For his part, Ayissi–Etoh perceived the evaluation as an accusation of plagiarism.

Concerned by both the negative reviews and his lack of a raise, Ayissi–Etoh met with Jacqueline Wagner, the Chief Audit Executive, several times during October 2008. According to Ayissi–Etoh, when he asked why he hadn't received a raise, Wagner—who is white—replied: “For a young black man smart like you, we are happy to have your expertise; I think I'm already paying you a lot of money.” Wagner denies making this comment.

In early 2009, Thomas Cooper—who is white—became Fannie Mae's Vice President of Internal Audit. He thus presided over the Modeling Team at the time that the tensions between Pesut and Ayissi–Etoh escalated.

On March 19, 2009, Ayissi–Etoh met with Cooper to discuss the fact that he was still performing staff-level work despite being a Team Lead. The meeting quickly became heated. At the end of the meeting, Ayissi–Etoh claims that Cooper yelled, “Get out of my office nigger.” Cooper denies making this remark.

After leaving Cooper's office, Ayissi–Etoh apparently became ill. He emailed Pesut that he was “not feeling well right now” and asked to go home. Later that day, Ayissi–Etoh saw a doctor. The doctor diagnosed Ayissi–Etoh with anxiety disorder and prescribed medication.

The next day, Ayissi–Etoh emailed Fannie Mae's CEO about the incident. He also filed a discrimination complaint against Cooper with the company's Compliance and Ethics Department. Ayissi–Etoh's complaint against Cooper was consolidated with his previously filed complaints against Wagner and Pesut.

Fannie Mae hired an external firm to handle the investigation. The investigation lasted about three months. During that time, Ayissi–Etoh was required to continue working under Cooper.

Fannie Mae's outside investigators found it “highly likely” that Cooper had in fact uttered a “highly offensive racial slur” when confronting Ayissi–Etoh. As a result of that finding, Fannie Mae immediately terminated Cooper.

In the summer of 2009, Ayissi–Etoh filed discrimination claims with the Equal Employment Opportunity Commission. He alleged race discrimination in his pay and racial harassment.

On September 22, 2009, Ayissi–Etoh claims that Pesut gave him a choice between dropping his claims with the EEOC and being fired. Pesut denies this. Three weeks later, Fannie Mae fired Ayissi–Etoh. Ayissi–Etoh then added a retaliation claim to his EEOC complaint.

Ayissi–Etoh subsequently filed this suit in the District Court. As relevant here, Ayissi–Etoh advanced four claims. He alleged (i) that Fannie Mae and Wagner denied him a salary increase because of his race; (ii) that Fannie Mae subjected him to a racially hostile work environment; (iii) that Fannie Mae fired him in retaliation for his filing discrimination claims with the EEOC; and (iv) that Pesut defamed Ayissi–Etoh when she accused him of plagiarism. The District Court granted Fannie Mae's motion for summary judgment. See Etoh v. Fannie Mae, 883 F.Supp.2d 17 (D.D.C.2011). Ayissi–Etoh contends that the District Court erred in granting summary judgment against him.

II

We review motions for summary judgment de novo and consider the evidence in the light most favorable to the non-moving party—here, Ayissi–Etoh. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Stewart v. St. Elizabeths Hospital, 589 F.3d 1305, 1307 (D.C.Cir.2010).

A

Ayissi–Etoh claims that he was denied a raise because of his race, in violation of 42 U.S.C. § 1981.

Section 1981 prohibits private employers from intentionally discriminating on the basis of race with respect to the “benefits, privileges, terms, and conditions” of employment. 42 U.S.C. § 1981; see Runyon v. McCrary, 427 U.S. 160, 170, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976). In Section 1981 and Title VII cases, courts use the same framework for determining whether unlawful discrimination occurred. See generallyRothstein et al., Employment Law § 2.40 (4th ed.2009); see also U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).¹

For purposes of summary judgment, the operative question under Section 1981—as under the Title VII anti-discrimination framework—is whether “the employee produced sufficient evidence for a reasonable jury to find that ... the employer intentionally discriminated against the employee on the basis of race.” Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 494 (D.C.Cir.2008). In some employment discrimination cases, there is no direct evidence of discriminatory intent—that is, no “statement that itself shows racial or gender bias in the [employment] decision.” Vatel v. Alliance of Auto. Manufacturers, 627 F.3d 1245, 1247 (D.C.Cir.2011). Those cases sometimes can be resolved on summary judgment. But when the plaintiff offers direct evidence of discriminatory intent, that evidence will “generally entitle a plaintiff to a jury trial.” Id.

Here, Ayissi–Etoh claims that Wagner explicitly denied him a raise because of his race. According to Ayissi–Etoh, Wagner said: “For a young black man smart like you, we are happy to have your expertise; I think I'm already paying you a lot of money.” To be sure, Wagner denies making this statement. But when the issue comes down to a credibility contest of this kind, we cannot resolve the dispute at the summary judgment stage against the non-moving party. And the “young black man” statement alone is direct evidence that in this case entitles Ayissi–Etoh to a jury trial. See id.;Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (plaintiff may prevail at trial when he “is able to produce direct evidence of discrimination”).

We therefore reverse the grant of summary judgment on the Section 1981 race discrimination claim.

B

Ayissi–Etoh next contends that Fannie Mae...