Mayorga v. Merdon

928 F.3d 84

Javier A. MAYORGA, Appellant

v.Christine A. MERDON, Acting Architect of the Capitol, Appellee

No. 18-5045

United States Court of Appeals, District of Columbia Circuit.

Argued February 11, 2019

Decided June 28, 2019

Ellen K. Renaud, Washington, DC, argued the cause and filed the briefs for appellant.

Johnny H. Walker, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Jessie K. Liu, U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Before: Srinivasan and Wilkins, Circuit Judges, and Ginsburg, Senior Circuit Judge.

Ginsburg, Senior Circuit Judge:

Javier Mayorga, an employee of the Architect of the Capitol (AOC), brought an action against the Acting Architect of the Capitol, Christine A. Merdon, in her official capacity. Mayorga alleges the selecting officials at the AOC denied him a promotion on the basis of his race and national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq . The district court granted summary judgment to the AOC and Mayorga now appeals.

For the reasons below, we vacate the judgment of the district court and remand the case for trial, at which Mayorga will bear the typical burden in this single-motive case to establish that he would have been selected for the promotion but for the alleged improper motive.

I. Background

Because we are asked to determine whether Mayorga has put forth enough evidence at the summary judgment stage to proceed to trial on his Title VII claim, we set forth the facts in some detail.

A. Mayorga's Qualifications

Mayorga emigrated to the United States from Nicaragua in 1990 and, after almost ten years working in electronics, earned a degree in Network Management from Stratford University. Upon graduating in 2003, Mayorga worked part-time as a heating, ventilation, and air conditioning (HVAC) Service Technician at TK Service before he was hired as a full-time Control Service Technician at Advanced Power Control, where Mayorga was to troubleshoot network and electronic problems for over two years.

Since 2007 Mayorga has been employed at the AOC, a federal agency that operates and maintains certain buildings and historic monuments in the District of Columbia, such as the Capitol, the Capitol Visitor Center, and the Supreme Court. At all relevant times during his employment at the AOC, Mayorga worked primarily on the Capitol and on the Visitor Center as an Electronic Industrial Controls Mechanic in the Capitol Superintendent's Office. In this role, he is responsible for maintaining the building automation system (BAS), which comprises multiple systems, including HVAC, lighting, elevators, electrical monitoring, generators, and utility metering.

Mayorga has received numerous awards at the AOC and his work was rated "Outstanding" in his previous two evaluations. He mentors other employees on building automation activities and a coworker, Clinton Johnson, has submitted a sworn declaration that Mayorga is "the most knowledgeable person in [electronic] Controls and on the BAS network" that Johnson had met in his ten years working for the AOC. Johnson also describes Mayorga as the " ‘go to guy’ for almost everyone" and says Mayorga is "regarded as the person who can figure out a problem" when others cannot, including problems related to "fiber and switches."

In 2014 Mayorga responded to an announcement advertising two openings in different wage grades for Electronics Technicians in the Energy Management Control Systems (EMCS) Branch, a central office within the Planning and Project Management Division that performs maintenance and operation services for all buildings within the jurisdiction of the AOC. Either job would be a promotion for Mayorga. Of relevance here, the job descriptions for the two openings require the selectees to service both (1) the BAS and (2) the "AOC Building Automation System Network (BASnet)." The selectees also would be responsible for "installing new network(s) in the buildings" and for installing, terminating, and testing fiber-optic cabling and for "operating and troubleshooting BASnet equipment, including but not limited to" certain ethernet routers and network switches.

A human resources specialist in the AOC compiled a list of approximately 35 candidates who were considered minimally qualified for each of the positions and presented the lists to the selecting official, Scott Bieber, a white male Supervisory Electronics Technician who oversees the EMCS branch and who would be the selectees' direct supervisor. Bieber subsequently chose two colleagues, Cliff Wallace and Terry Watson, to participate with him on the selection panel. Wallace, a white male, is Bieber's deputy in the EMCS Branch and refers to himself as the "BAS Net Manager" because he "manages the BAS for all buildings maintained by" the AOC; Watson, a white female, manages a separate group within the Planning and Project Management Division.

Mayorga alleges he has crossed paths with both Bieber and Wallace throughout their time working together at the AOC – but it appears these encounters were not wholly collegial: Mayorga claims that Bieber and Wallace made fun of his Hispanic first name, regularly calling him "Caviar" instead of Javier, and that Bieber mocks Mayorga's accent and interrupts him in meetings. Bieber and Wallace dispute this account of their behavior; Bieber denies ever having worked with Mayorga.

From the list of candidates he received from the human resources specialist, Bieber selected six, including Mayorga, for first-round interviews. In advance of the interviews, Bieber used an Excel spreadsheet to note each candidate's experience in seven areas, based upon his or her resume (e.g. , "BAS," "NETWORK," or "HVAC"). Although Mayorga's resume showed he had worked as an HVAC service technician for eight years and that he had a degree in Network Management, Bieber failed to credit Mayorga in either area. According to Mayorga, the panelists took notes during his interview but did not seem "interest[ed] to ask [him] questions" and did not "make eye contact" with him, instead shuffling their papers.

B. The AOC's Decision

Of the six candidates interviewed, the panelists chose three for a second (and final) round of interviews. Mayorga was not among this group; instead, the panelists ranked Mayorga last of the six, in part they said because he failed during the interview to give detailed answers about his experience or skills. Bieber also claimed Mayorga seemed confused during the interview about what job he had applied for. Furthermore, Bieber asserted Mayorga did not have experience with the BASnet because "[i]t wasn't stated on his resume or it never came out in the interview"; he also said Mayorga had "very little" experience with ethernet and fiber-optic cables, and no experience with Cisco equipment. We refer to these latter skills collectively as ethernet/fiber/Cisco.

The AOC ultimately chose Ed Williams and John Coulter, two white males it claimed were most qualified, to fill the two positions. Williams would specialize in graphics and programming, Coulter in the network.¹ Williams was already working in EMCS as an Electronic Industrial Controls Mechanic performing the same duties required of the selectee; hence the AOC explained he had experience well-suited for his new role. Coulter was employed in another AOC shop as an Electronics Mechanic prior to his selection and Bieber explained Coulter was a top choice because Coulter had worked in his previous role to "maintain the BASnet network infrastructure, to do all the fiber work, and to help configure Cisco switches." Bieber Deposition at 8 (cleaned up).

C. Procedural History

After exhausting his administrative remedies, Mayorga sued the Acting Architect of the Capitol in her official capacity, alleging the AOC violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, when it did not select Mayorga for promotion. See Title IV of the Congressional Accountability Act of 1995, 2 U.S.C. §§ 1311, 1317(a)(2) (extending the protections of Title VII to the legislative branch of the federal government). The district court granted the AOC's motion for summary judgment, Mayorga v. Ayers, 281 F. Supp. 3d 182 (D.C.Cir.2017), holding Mayorga failed to provide sufficient evidence from which a jury could reasonably find the AOC's justifications for not hiring Mayorga were pretextual. Id. at 203. The court subsequently denied Mayorga's motion to reconsider its order and Mayorga filed a timely notice of appeal.

II. Analysis

We review a grant of summary judgment de novo. Holcomb v. Powell , 433 F.3d 889, 895 (D.C. Cir. 2006). In order to succeed on a motion for summary judgment, the moving party must show there is "no genuine issue of material fact." Id. "A fact is ‘material’ if a dispute over it might affect the outcome of a suit under governing law; factual disputes that are ‘irrelevant or unnecessary’ do not affect the summary judgment determination." Id. (citation omitted). "An issue is ‘genuine’ if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ " Id. (citation omitted).

The principal question before us is whether, based upon Mayorga's proffered evidence, a jury reasonably could find the panelists did not select Mayorga for promotion because of his race or national origin.

A. The Title VII Framework

Title VII permits a plaintiff to establish liability in either of two ways. Ponce v. Billington , 679 F.3d 840, 844 (D.C. Cir. 2012). He may bring a case pursuant to 42 U.S.C. § 2000e-2(a)(1) on what we have called a "single-motive" or "pretext" theory of discrimination, which requires him to prove the employer's improper consideration of a protected characteristic was a but-for cause of an adverse employment decision. § 2000e-2(a)(1) (prohibiting discrimination in employment "because of [an] individual's race, color, religion, sex, or national origin"); Ponce , 679 F.3d at 844. Alternatively, a...