Lapera v. Fannie Mae , 210 F. Supp. 3d 164 ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ANA LAPERA,
Plaintiff,
Civil Action No. 15-cv-00447 (BAH)
v.
Judge Beryl A. Howell
FEDERAL NATIONAL MORTGAGE
ASSOCIATION d/b/a FANNIE MAE,
Defendant.
MEMORANDUM OPINION
The plaintiff, Ana Lapera, brings this lawsuit against her former employer, the Federal
National Mortgage Association (“Fannie Mae”), alleging race discrimination in violation of the
Civil Rights Act, 42 U.S.C. § 1981, and age, race, and personal-appearance discrimination in
violation of the D.C. Human Rights Act (“DCHRA”), D.C. Code Ann. § 2-1401 et seq. Compl.
¶¶ 1, 4, ECF No. 1-1. These claims are predicated on Ms. Lapera’s allegations that Fannie Mae
improperly classified her position’s salary grade (and rejected Ms. Lapera’s subsequent requests
to relevel her salary grade), and declined to promote her on the basis of her race, age, and
physical appearance. Pending before the Court is Fannie Mae’s motion for summary judgment.
Def.’s Mot. Summ. J. (“Def.’s MSJ”), ECF No. 11. For the reasons set forth below, this motion
is granted in part and denied in part. Specifically, while Ms. Lapera has shown no genuine issue
of material fact as to whether Fannie Mae discriminated against her on the basis of her race or
personal appearance when it leveled her salary, she has adduced sufficient evidence to raise such
an issue with respect to whether Fannie Mae’s proffered reason for passing over Ms. Lapera for
the position of Vice President of Planning and Alignment was pretextual.
1
I. BACKGROUND
The pertinent factual and procedural history for consideration of the pending motion for
summary judgment is summarized below.
A. Facts
Ms. Lapera was born in Caracas, Venezuela, Plaintiff’s Arbitration Transcript (“Pl.’s
Arb. Tr.”) at 28, ECF No. 14-1, 1 and describes herself as having “a body size which may be
perceived by some as being overweight,” Compl. ¶ 6. She holds a degree in systems engineering
from a school in Venezuela as well as a master’s degree in engineering administration from
George Washington University. Pl.’s Arb. Tr. at 29. Ms. Lapera was employed by Fannie Mae,
“a private, shareholder-owned company chartered by Congress,” Def.’s Statement of Undisputed
Facts (“Def.’s SUF”) ¶ 1, ECF No. 11-1, in various positions for almost twenty years, from 1994
through 2013, Pl.’s Arb Tr. at 29. Her career path at Fannie Mae is generally described below.
1. Ms. Lapera’s Early Career at Fannie Mae
Fannie Mae hired Ms. Lapera in 1994 to work as a manager in the advanced technology
division of the IT department. Id. at 30. From there, Ms. Lapera transitioned to a development
manager position, and then to a position in which she helped coordinate a smooth technological
transition into the year 2000. Id. at 31. Thereafter, she was promoted to various Director-level
positions. Id. at 41. For example, in 2008, Fannie Mae’s President selected Ms. Lapera to head
1
Pursuant to Ms. Lapera’s employment contract, she initially brought the instant claims before an arbitrator
in November 2014. Def.’s SUF ¶ 98. As described in more detail, infra Part I.B., the arbitration hearing involved
the examination of witnesses by both sides and resulted in an arbitral award in favor of Fannie Mae. Under the
terms of the employment contract, the arbitral decision is in no way binding on this Court. See Fannie Mae Dispute
Resolution Policy (“DRP”) at ¶ 14, ECF No. 16-2 (“If the employee rejects the Award, it will not become binding
on the employee or the Company, and the employee may bring suit on the claim at his or her own expense.”). Both
parties have submitted portions of the transcript from the arbitration hearing as factual support for their arguments in
connection with the pending summary judgment motion.
2
the restructuring of operations and IT at Fannie Mae. Id. at 46. Then, in 2009, Ms. Lapera was
selected to direct the new Lean Six Sigma team. 2 Id. at 49–50.
2. Ms. Lapera’s New Salary Grade
In June 2009, Fannie Mae adopted a new salary scale for employees. Whereas salary
grades had previously been on a numerical scale, the new scale was alphabetical, with letters
later in the alphabet corresponding to a higher salary. As the Director of Lean Six Sigma, Ms.
Lapera’s salary grade shifted from a “6” to an “M.” Pl.’s Arb. Tr. at 524–25; Decl. of Ana
Lapera (“Lapera Decl.”) ¶ 7, ECF No. 14-2. At the same time, employees whom Ms. Lapera
perceived to be her professional peers received higher salary grades of “N,” Pl.’s Arb. Tr. at 85;
her direct reports received salary grades of “M” and “L,” id. at 92; and several individuals who
allegedly had less responsibility than Ms. Lapera received a salary grade of “N,” Decl. of Ana
Lapera ¶ 8. Moreover, Fannie Mae posted an available position that required less education and
experience than Ms. Lapera’s position and stated that the position would command an “N” grade
salary. Pl.’s Arb. Tr. at 93–97.
On July 18, 2009, Ms. Lapera emailed her manager, Claude Wade, to explain why she
believed that her position was assigned an improperly low salary grade and to request an “N”
grade salary. 3 Id. at 86. In response, Mr. Wade advised Ms. Lapera that he had inquired with
the human resources department and was informed that the “M” salary grade for her position
would stand. Id. at 87. Ms. Lapera requested a salary upgrade to level “N” again in April 2011,
2
As described by Ms. Lapera during arbitration, Lean Six Sigma is a “process improvement methodology.”
Pl.’s Arb. Tr. at 50. “Lean” refers to “reduc[ing] waste” and “looking at everything from the customer perspective.”
Id. “Six Sigma” refers to “us[ing] statistics to make sure that you always g[e]t the output that your customer wants.”
Id. “So when you combine the two methodologies, it can be very, very powerful to streamline a company, to
streamline operations, and to make sure that the output . . . is exactly [right].” Id.
3
Ms. Lapera surmises, based on her employee compensation statements, that the “M” salary range was
$112,000 to $194,000, and the “N” salary range was $129,000 to $222,000. Lapera Decl. ¶ 10; Pl.’s Mem. Opp’n
Def.’s Mot. Summ. J. (“Pl.’s Opp’n”), Ex. L at 2–3, ECF No. 14-12.
3
which request was also denied. Pl.’s Mem. Opp’n Def.’s Mot. Summ. J. (“Pl.’s Opp’n”), Ex. K,
ECF No. 14-11. In 2012, Fannie Mae increased Ms. Lapera’s salary by $28,000, however, as
part of the Promotion and Equity Process (“PEP”), which managers can use to that their
subordinates’ salaries be increased based on performance. Def.’s Arbitration Transcript (“Def.’s
Arb. Tr.”) at 571, ECF No. 11-3.
3. Fannie Mae’s Non-Selection of Ms. Lapera for Vice President
In September 2012, Anne Gehring, who at that time worked in the Financial Planning and
Analysis division, was selected to be Senior Vice President of the Enterprise Program
Management Office (“EPMO”). Pl.’s Arb. Tr. at 102–03. 4 As relevant in this case, Ms. Gehring
consistently emphasized that employees in her department should have “executive presence,” see
Pl.’s Arb. Tr. at 714, a term she did not explicitly define. The parties dispute the meaning of the
term: Fannie Mae contends that the term “executive presence” “is widely used in business
circles to describe the ability to project mature self-confidence, a sense that you can take control
of difficult, unpredictable situations; make tough decisions in a timely way and hold your own
with other talented and strong-willed members of the executive team.” Def.’s Mem. Supp. Mot.
Dismiss (“Def.’s Mem.”) at 22, ECF 11-2 (internal quotation marks omitted). Ms. Lapera, on
the other hand, contends that Ms. Gehring used the term “to criticize the appearance of
overweight, older, and minority Fannie Mae employees.” Pl.’s Opp’n at 2; id. at 12 (“[Ms.
Gehring] consistently characterized employees who were not Caucasian, young, and slender as
lacking ‘executive presence.’”). One Fannie Mae employee, Jim Tomasello, testified during
arbitration as follows:
So the term “executive presence” was a theme that [Ms. Gehring] beat the
drum on regularly and, really, from the beginning of the time that she was
4
The arbitrator opined that, “[b]y virtually all accounts, Ms. Gehring was a brash and unpopular executive.”
JAMS Arbitration Award (“Arbitration Award”) at 3, ECF No. 11-41.
4
over the EPMO. It was a bar that she never really explained but was
talked about, you know, being able to be put in front of executives and
basically evaluated people based off of that. We as a group were sent to
an image training session where a consultant was brought in to speak
specifically about what executive presence meant and what it would take
for individuals to, in addition to delivering results, would have to exude to
be able to be considered, you know, for promotion or a well-performing
employee.
Pl.’s Arb. Tr. at 714.
As for Ms. Gehring’s treatment of employees, Ms. Lapera’s describes a disconcerting
pattern of comments and behavior. See, e.g., Compl. ¶ 14 (“Ms. Gehring began to regularly use
[two co-workers] as examples of employees who did not ‘fit the team’s image’. . . and criticized
‘the way they conduct[ed] themselves’, ‘the way they s[a]t’, and the way ‘their tummies
sometimes show[ed].’”); Pl.’s Opp’n at 10, ECF No. 14. (“Ms. Gehring immediately began to
target employees who did not meet her standard of an ideal personal appearance, which was
Caucasian, young, and slender.”). Ms. Lapera testified during arbitration that, among other
things, Ms. Gehring (1) transferred a Hispanic female to a different group, Pl.’s Arb. Tr. at 105–
08; (2) frequently criticized the personal appearance of her subordinates, id. at 110–13
(explaining that Ms. Gehring chided one overweight employee for “waddling” in front of the
directors and commented that another overweight woman had her midriff exposed at work), id. at
137–39; (3) pressured staff to attend a class put on by an image consultant, id. at 118–29;
(4) regularly commented that she ate only a yogurt and banana for breakfast to keep her weight
down and that other employees should do the same, id. at 139; and (5) in conducting employee
reviews, took an employee’s appearances and another employee’s accent into account, id. at
133–35.
Less than one year after Ms. Gehring became Senior Vice President, one of her
subordinates, Kathy Keller, who was Vice President of EPMO Planning and Alignment and Ms.
5
Lapera’s direct supervisor, left her position after Ms. Gehring “communicated to Kathy that it
wasn’t working out and instructed her to look for opportunities elsewhere in Fannie Mae.” Id. at
142–43; id. at 606. 5 On June 3, 2013, Fannie Mae solicited applications to fill Ms. Keller’s
position. Pl.’s Opp’n, Ex. M, ECF No. 14-13. Ms. Lapera applied. Id., Ex. O, ECF No. 14-15.
Before the job was posted, Ms. Gehring noted that Joe Hallet, a Caucasian male already
employed at Fannie Mae, might be a good candidate to fill the open position, and he applied for
the position. Id., Ex. N, ECF No. 14-14. 6 A third candidate, Nicola Fraser, did not initially
apply, Pl.’s Arb. Tr. at 426–27, but after the formal deadline to apply had expired, Ms. Fraser,
who was then a Vice President on maternity leave, Def.’s Arb. Tr. at 238, had dinner with Ms.
Gehring and discussed the opening. Id. at 332; Def.’s MSJ, Ex. 28, ECF No. 11-28. Ms. Fraser
then submitted her résumé to the Human Resources Department. Def.’s Arb. Tr. at 431; Def.’s
MSJ, Ex. 30, ECF No. 11-30.
All three candidates were interviewed by Shandell Harris from the Human Resources
Department, Mike Choi, a Vice President in EPMO, and Ms. Gehring. Def.’s MSJ, Ex. 34, ECF
No. 11-34. Ms. Fraser was ultimately selected to fill the Vice President of EPMO Planning and
Alignment position. Lapera Decl. ¶ 24; Pl.’s Arb. Tr. at 152. Ms. Gehring relayed Fannie Mae’s
hiring decision to Ms. Lapera in a face-to-face meeting. Pl.’s Arb. Tr. at 152. Several months
later, Ms. Lapera left Fannie Mae and became a consultant. Def.’s SUF ¶ 96.
5
A human resources employee testified that Ms. Keller was not asked to resign from her position. See Pl.’s
Arb. Tr. at 467 (“Q. Was Ms. Keller asked to resign from her position? A. No. Q. And how do you know Ms.
Keller was not asked to resign from her position? A. Because Ms. Keller came to me and asked me for a package.”).
6
Ms. Gehring flatly denied having pre-selected Mr. Hallet for the position during her arbitration testimony.
See Pl.’s Arb. Tr. at 606-07 (“Q. [D]id you communicate to individuals in human resources that you wanted to place
Joe Hallet in the position and you wanted to find out what was needed to get him through the process . . . ? A.
No.”).
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B. Procedural History
Ms. Lapera pursued her claims in nonbinding arbitration as required by her employment
agreement. See generally Def.’s MSJ, Ex. 40 (“Demand for Arbitration”), ECF No. 11-40.
Following an opportunity for discovery, the parties participated in a four-day hearing before the
arbitrator, during which the parties presented witness testimony subject to cross-examination,
submitted documentary evidence, and filed post-hearing briefs. See JAMS Arbitration Award
(“Arbitration Award”) at 2, ECF No. 11-41. The arbitrator ruled in favor of Fannie Mae. Id. at
6. As to Ms. Lapera’s racial discrimination claims, the arbitrator found that “no evidence [] of
race discrimination was adduced during the four days of trial.” Id. at 2. As for Ms. Lapera’s
claim that Fannie Mae discriminated against her on account of her personal appearance in
refusing to relevel her salary grade, the arbitrator concluded that “the . . . record demonstrates an
orderly and regular, if slow, process that ultimately resulted in a significant salary increase for
Ms. Lapera,” and that “[n]o evidence or even hint of discrimination appears [in the] record.” Id.
at 3. Finally, the arbitrator rejected Ms. Lapera’s non-promotion claim, finding that Ms. Lapera
had not proven that Fannie Mae’s proffered non-discriminatory reason for selecting Ms. Fraser
was pretextual. Id. at 6 (“All of Ms[.] Lapera’s testimony about Ms[.] Gehring’s treatment of
other employees was anecdotal, and most of it was either uncorroborated or disputed. Most
importantly, however: except for Ms[.] Lapera’s testimony about her own belief and her own
self-image, there was no evidence in the record that anyone said, thought, or acted upon a
perception that Ms[.] Lapera herself was overweight, or improperly dressed, or possessed of an
unattractive body shape.”).
As allowed under Fannie Mae’s Dispute Resolution Policy, Ms. Lapera rejected the
arbitral award and filed a complaint in D.C. Superior Court on January 27, 2015. See Fannie
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Mae Dispute Resolution Policy (“DRP”) at ¶ 14, ECF No. 16-2 (“The employee may, within 30
calendar days of the date of issuance of the Award, reject it, in its entirety, by sending a
completed ‘Rejection of Arbitration Award’ form to JAMS and [Fannie Mae’s Compliance and
Ethics Department].”); see also generally Compl. Fannie Mae removed the action to this Court
on March 27, 2015. See generally Notice of Removal, ECF No. 1.
Ms. Lapera’s complaint asserts two claims against Fannie Mae under the DCHRA and
§ 1981. In Count I, Ms. Lapera contends that Fannie Mae violated the DCHRA by “knowingly
and intentionally engag[ing] in unlawful discrimination against [Ms. Lapera] based on her race,
age and personal appearance” by, inter alia, assigning Ms. Lapera’s position of Director of Lean
Six Sigma a salary grade of “M” and denying Ms. Lapera a promotion to the position of Vice
President of EPMO Planning and Alignment. Compl. ¶ 30. Similarly, in Count II, Ms. Lapera
contends that Fannie Mae violated § 1981 by “knowingly and intentionally subject[ing] [Ms.
Lapera] to discrimination based on her race, Hispanic American, when [Fannie Mae] failed to
reclassify her position properly form [sic] 2009 through 2012 . . . ; discriminated against her in
the evaluation of her performance . . . ; and denied Ms. Lapera a promotion to the position of
Vice President of Planning and Alignment . . . .” Id. ¶ 35. As relief, Ms. Lapera seeks a
declaration that Fannie Mae violated the DCHRA and § 1981; a permanent injunction
prohibiting Fannie Mae from engaging in any discriminatory employment practices; back pay
and front pay in an amount to be determined at trial; an order prohibiting Fannie Mae from
retaliating against Ms. Lapera or any other person for participating in this case; compensatory
and punitive damages in amounts to be determined by an arbitrator; reasonable attorneys’ fees,
expert fees, and costs; and pre-judgment and post-judgment interest. Id. at 11.
Fannie Mae’s motion for summary judgment is now ripe for consideration.
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II. LEGAL STANDARD
Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate “if the
movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is properly granted
against a party who, “after adequate time for discovery and upon motion, . . . fails to make a
showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). The moving party bears the burden to demonstrate the “absence of a genuine issue
of material fact” in dispute, id. at 323, while the nonmoving party must present specific facts
supported by materials in the record that would be admissible at trial and that could enable a
reasonable jury to find in its favor, see Anderson v. Liberty Lobby, Inc. (“Liberty Lobby”), 477
U.S. 242, 248 (1986); Allen v. Johnson, 795 F.3d 34, 38 (D.C. Cir. 2015) (noting that, on
summary judgment, the appropriate inquiry is “whether, on the evidence so viewed, a reasonable
jury could return a verdict for the nonmoving party”) (citation and internal quotation marks
omitted)); see also Fed. R. Civ. P. 56(c) and (e)(2)–(3).
“Evaluating whether evidence offered at summary judgment is sufficient to send a case to
the jury is as much art as science.” Estate of Parsons v. Palestinian Auth., 651 F.3d 118, 123
(D.C. Cir. 2011). This evaluation is guided by the related principles that “courts may not resolve
genuine disputes of fact in favor of the party seeking summary judgment,” Tolan v. Cotton, 134
S. Ct. 1861, 1866 (2014), and “[t]he evidence of the nonmovant is to be believed, and all
justifiable inferences are to be drawn in his favor,” id. at 1863 (quoting Liberty Lobby, 477 U.S.
at 255). Courts must avoid making “credibility determinations or weigh[ing] the evidence,”
since “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate
9
inferences from the facts are jury functions, not those of a judge.” Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000); see also Burley v. AMTRAK, 801 F.3d 290,
296 (D.C. Cir. 2015). In addition, for a factual dispute to be “genuine,” the nonmoving party
must establish more than “[t]he mere existence of a scintilla of evidence in support of [its]
position,” Liberty Lobby, 477 U.S. at 252, and cannot rely on “mere allegations” or conclusory
statements, see Equal Rights Ctr. v. Post Props., 633 F.3d 1136, 1141 n.3 (D.C. Cir.
2011); Veitch v. England, 471 F.3d 124, 134 (D.C. Cir. 2006); Greene v. Dalton, 164 F.3d 671,
675 (D.C. Cir. 1999); Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993); accord Fed. R. Civ. P.
56(e). If “‘opposing parties tell two different stories, one of which is blatantly contradicted by
the record, so that no reasonable jury could believe it, a court should not adopt that version of the
facts for purposes of ruling on a motion for summary judgment.’” Lash v. Lemke, 786 F.3d 1, 6
(D.C. Cir. 2015) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)). The Court is required to
consider only the materials explicitly cited by the parties, but may on its own accord consider
“other materials in the record.” Fed. R. Civ. P. 56(c)(3).
III. DISCUSSION
Ms. Lapera asserts that Fannie Mae discriminated against her on the basis of her age,
race, and personal appearance by leveling her salary at the “M” level and by selecting a different
candidate for the Vice President of Planning and Alignment position. These claims are
addressed seriatim below after first explaining the applicable legal framework.
A. Statutory Overview
1. Section 1981
Section 1981 guarantees the rights of all persons, regardless of their race, to “make and
enforce contracts.” 42 U.S.C. § 1981(a). The statute defines the phrase “make and enforce
10
contracts” as “including the making, performance, modification, and termination of contracts,
and the enjoyment of all benefits, privileges, terms, and conditions of the contractual
relationship.” Id. § 1981(b). A plaintiff asserting an employment discrimination claim under
§ 1981 “must demonstrate by a preponderance of the evidence that the actions taken by the
employer were ‘more likely than not based on the consideration of . . . race.’” Pollard v. Quest
Diagnostics, 610 F. Supp. 2d 1, 18 (D.D.C. 2009) (quoting Texas Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 254 (1981)). “[T]he plaintiff may either prove his claim with direct
evidence of discrimination or he may indirectly prove discrimination under the familiar burden-
shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).” Olatunji v.
Dist. of Columbia, 958 F. Supp. 2d 27, 31 (D.D.C. 2013); accord Walker v. McCarthy, No. 14-
266, 2016 WL 1118252, at *5 (D.D.C. Mar. 22, 2016).
Under McDonnell Douglas, discrimination claims are analyzed according to a three-step
framework:
First, the plaintiff has the burden of proving by the preponderance of the
evidence a prima facie case of discrimination. Second, if the plaintiff
succeeds in proving the prima facie case, the burden shifts to the
defendant “to articulate some legitimate, nondiscriminatory reason for the
[action in question].” Third, should the defendant carry this burden, the
plaintiff must then have an opportunity to prove by a preponderance of the
evidence that the legitimate reasons offered by the defendant were not its
true reasons, but were a pretext for discrimination.
Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252–53 (1981) (quoting McDonnell
Douglas, 411 U.S. at 802).
“While this framework generally requires the plaintiff to bear the initial burden of
making out a prima facie case of discrimination, the D.C. Circuit has clarified that courts ‘need
not—and should not—decide whether the plaintiff actually made out a prima facie case under
McDonnell Douglas,’ where (1) ‘an employee has suffered an adverse employment action’ and
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(2) ‘an employer has asserted a legitimate, non-discriminatory reason for the decision.’” Walker,
2016 WL 1118252, at *6 (quoting Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C.
Cir. 2008) (emphasis in original)). In such cases, Brady instructs the Court to bypass McDonnell
Douglas and instead consider “one central question: Has the employee produced sufficient
evidence for a reasonable jury to find that the employer’s asserted non-discriminatory reason was
not the actual reason and that the employer intentionally discriminated against the employee on
the basis of race . . . ?” Brady, 520 F.3d at 494. To answer this question, the Court will consider
“all the evidence, including ‘(1) the plaintiff’s prima facie case; (2) any evidence the plaintiff
presents to attack the employer’s proffered explanation for its action; and (3) any further
evidence of discrimination that may be available to the plaintiff (such as independent evidence of
discriminatory statements or attitudes on the part of the employer).’” Carter v. George Wash.
Univ., 387 F.3d 872, 878 (D.C. Cir. 2004) (quoting Waterhouse v. Dist. of Columbia, 298 F.3d
989, 992–93 (D.C. Cir. 2002)).
2. DCHRA
The DCHRA prohibits discrimination on the basis of, among other things, “race, . . . age,
[and] personal appearance.” D.C. Code § 2-1401.01. As relevant here, the DCHRA expressly
provides that an employer may not “fail or refuse to hire, or to discharge, any individual; or
otherwise to discriminate against any individual, with respect to his compensation, terms,
conditions, or privileges of employment, including promotion; or to limit, segregate, or classify
his employees in any way which would deprive or tend to deprive any individual of employment
opportunities, or otherwise adversely affect his status as an employee.” D.C. Code § 2-1402.11.
DCHRA claims are evaluated under the same framework as § 1981 claims. See Pitts v. Howard
Univ., 111 F. Supp. 3d 9, 24 (D.D.C. 2015) (citing Ayissi–Etoh v. Fannie Mae, 712 F.3d 572,
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576 (D.C. Cir. 2013)). That is, in the absence of direct evidence of discrimination, the Court
employs McDonnell Douglas to decide whether a plaintiff has marshaled enough evidence to
take her claims to a jury. Olatunji, 958 F. Supp. 2d at 31.
B. Ms. Lapera’s Age Discrimination Claims
Ms. Lapera’s complaint asserts that Fannie Mae discriminated against her on the basis of
her age in violation of the DCHRA by (1) classifying her position at the “M” salary grade and
denying her subsequent requests to relevel her salary grade, and (2) failing to promote her to the
position of Vice President of EPMO Planning and Alignment. Compl. ¶¶ 11–12, 23. Fannie
Mae contends that it is “entitled to judgment as a matter of law on [Ms. Lapera’s] age
discrimination claims brought under the DCHRA because they were not first arbitrated as
required by Fannie Mae’s Dispute Resolution Policy (the ‘DRP’).” Def.’s Mem. at 4. Fannie
Mae is correct.
The arbitration policy governing Ms. Lapera’s employment relationship with Fannie Mae
unambiguously provides that an employee “must arbitrate” “all claims . . . against Fannie Mae
. . . involving a legally-protected right, that directly or indirectly relate to . . . employment”
“before bringing suit . . . in court.” DRP ¶¶ 1–2. Among the claims that an employee must
arbitrate before proceeding to court are “claims involving rights protected by . . . federal[] [and]
state . . . law.” Id. ¶ 2. Consequently, if, as Fannie Mae asserts, Ms. Lapera did not first arbitrate
her age-discrimination claims, then this Court is not empowered to adjudicate such claims. See
Nat’l R.R. Passenger Corp. v. Boston & Maine Corp., 850 F.2d 756, 759 (D.C. Cir. 1988) (“It is
a necessary corollary of the principle that ‘arbitration is a matter of contract’ that when the
parties have provided that a particular type of dispute should be settled in arbitration, rather than
13
in litigation, a court may not override that agreement by itself deciding such a dispute.”
(emphasis omitted)).
Ms. Lapera’s Demand for Arbitration failed to reference age discrimination in its
introductory section and alleged only that “Fannie Mae engaged in discrimination against Ms.
Lapera on the basis of race and personal appearance in compensation, evaluation of
performance, and promotions.” Demand for Arbitration at 6. Indeed, all three counts asserted in
her Demand for Arbitration “sounded in race or personal appearance discrimination.” Def.’s
Reply Supp. Mot. Dismiss (“Def.’s Reply”) at 4, ECF 16-1; see Demand for Arbitration at 13
(alleging that Fannie Mae “engaged in unlawful discrimination against [Ms. Lapera] [in violation
of the DCHRA] based on her race and personal appearance”); id. at 14 (alleging that Fannie Mae
“engaged in unlawful discrimination against Ms. Lapera [in violation of Title VII] based on her
race”); id. at 15 (alleging that Fannie Mae “subjected [Ms. Lapera] to discrimination based on
her race, Hispanic American”).
Ms. Lapera advances two arguments to overcome her apparent failure to raise any claim
of age discrimination in arbitration. See Pl.’s Opp’n at 38–41. First, she contends that she
adequately alleged age discrimination because her Demand for Arbitration referenced her age as
well as the age of the selectee, Ms. Fraser. Id. at 38–39. Mere reference to age does not,
however, amount to an actual assertion of a cause of action for age discrimination for purposes
of exhaustion. Cf. Coleman v. Johnson, 19 F. Supp. 3d 126, 139 (D.D.C. 2014) (dismissing the
plaintiff’s race and age discrimination claims notwithstanding the complaint’s
“fleeting reference to his allegedly ‘being subject to harassment because of age and race’”); Allen
v. Henifin, No. 80-1418, 1980 WL 281, *3 (D.D.C. Dec. 10, 1980) (unpublished) (dismissing age
discrimination claim for failure to administratively exhaust when plaintiff’s references to
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instituting litigation “never referred to an age discrimination claim” and therefore “can in no way
be construed to allege age discrimination or to constitute notice of intent to file such a suit”).
Second, Ms. Lapera argues that Fannie Mae’s Dispute Resolution Policy, which requires
employees to arbitrate their claims against Fannie Mae before proceeding to court, is
“unconscionable and unfairly lopsided.” Pl.’s Opp’n at 39. In support of this argument, Ms.
Lapera supplies an unadorned citation to a nonbinding, non-federal, out-of-circuit unpublished
decision by a California Court of Appeal, Cecelia Carter v. Fannie Mae, Cal. Super. Ct. No. 30-
2013-00647896 (Cal. Sup. Ct. Aug. 26, 2014). Rather than follow a California State Court
decision, this Court instead adheres to the decisions by other Judges from this Court that enforce
the DPR’s arbitration requirement. See, e.g., Skrynnikov v. Fed. Nat’l Mortg. Ass’n, 943 F.
Supp. 2d 172, 177–78 (D.D.C. 2013) (holding that the DPR’s “broad and inclusive language”
does not render the agreement unenforceable). Accordingly, Ms. Lapera’s conceded failure to
pursue any age-discrimination claims in arbitration forecloses her attempt to do so here. 7
C. Ms. Lapera’s Race and Personal-Appearance Discrimination Claims
As for her remaining discrimination claims, which are properly before this Court, Ms.
Lapera contends that Fannie Mae discriminated against her on the basis of her race and personal
appearance by (1) classifying her position at the “M” salary grade, and (2) failing to promote her
to the position of Vice President of EPMO Planning and Alignment. 8 Before turning to Ms.
Lapera’s claims arising out of each incident, the parties’ arguments as to whether Ms. Lapera’s
Hispanic identity qualifies as race within the meaning of § 1981 are addressed first.
7
Thus Fannie Mae’s alternative argument that Ms. Lapera’s age-discrimination claims are barred by the
DCHRA’s statute of limitations, see Def.’s Mem. at 10; Def.’s Reply at 7–8, need not be addressed.
8
Ms. Lapera’s DCHRA and § 1981 racial discrimination claims are addressed together since, as noted, supra
Part III.A., the same standard applies.
15
1. Hispanic Ethnicity is a Race for Purposes of § 1981
Section 1981 “forbid[s] all ‘racial’ discrimination in the making of private as well as
public contracts.” Saint Francis College v. Al-Khazraji, 481 U.S. 604, 609 (1987); accord
CBOCS W., Inc. v. Humphries, 553 U.S. 442, 459 n.1 (2008). Fannie Mae argues that § 1981
“does not provide a cause of action for [Ms. Lapera’s] theories of discrimination based on her
. . . alleged Hispanic national origin.” Def.’s Mem. at 6 (emphasis added). Ms. Lapera responds
that “District of Columbia courts have overwhelmingly recognized claims of race, ethnic and
national origin discrimination under Section 1981 based on a plaintiff’s Hispanic identity.” Pl.’s
Opp’n at 35 (collecting cases). While not entirely clear whether Fannie Mae’s position is that
Hispanic ethnicity is not a race for purposes of § 1981 or that Ms. Lapera’s racial discrimination
claims rely on her country of origin rather than her race, either way, Fannie Mae’s argument
fails.
After the parties submitted their briefing in this case, the Second Circuit addressed the
issue whether Hispanic is a race under § 1981. See Village of Freeport v. Barrella, 814 F.3d
594, 600–10 (2d Cir. 2016). In Village of Freeport, the defendant–employer defended against
the plaintiff–employee’s § 1981 and Title VII claims on the ground that Hispanic is not a distinct
race from Caucasian and, accordingly, the Hispanic plaintiff and his Caucasian coworker “are
both white in the estimation of federal antidiscrimination statutes, and [the government
official’s] decision to promote one white candidate rather than another could not have constituted
racial discrimination.” 9 Id. at 601. The Second Circuit roundly rejected that argument, finding
that “it has been clear since the Reagan Administration that § 1981 bars employers from
9
Village of Freeport had a slightly different posture than this case, as the plaintiff there was an Italian-
American (i.e., Caucasian) and argued that the defendant had hired a less qualified Hispanic for the position of
police chief. Id. at 598. Nevertheless, the Second Circuit plainly held that “discrimination based on Hispanic
ancestry or lack thereof constitutes racial discrimination under that statute.” Id.
16
discriminating based on Hispanic ethnicity or lack thereof.” Id. at 609; see also id. at 598 (“[W]e
reiterate that ‘race’ includes ethnicity for purposes of § 1981, so that discrimination based on
Hispanic ancestry or lack thereof constitutes racial discrimination under that statute.”); Pavon v.
Swift Transp. Co., Inc.,192 F.3d 902, 908 (9th Cir. 1999) (rejecting the argument that
discrimination on the basis of being Hispanic is not actionable under § 1981 and upholding the
district court’s ruling in favor of the Hispanic plaintiff).
The Second Circuit’s decision is persuasive and has unequivocal support in the Supreme
Court’s decision in Saint Francis College, 481 U.S. at 613. There, the Supreme Court addressed
the question “whether a person of Arabian ancestry was protected from racial discrimination
under § 1981.” Id. at 607. In so doing, the Court considered the common understanding of race
at the time that § 1981 was enacted (as found in dictionaries and encyclopedias) as well as the
legislative history of § 1981, “which . . . had its source in the Civil Rights Act of 1866 [and] the
Voting Rights Act of 1870.” Id. at 610–13. The Court found that “dictionaries commonly
referred to race as a ‘continued series of descendants from a parent who is called the stock,” id. at
610 (quoting N. Webster, An American Dictionary of the English Language 666 (New York
1860) (emphasis in original)), and that “[e]ncyclopedias of the 19th century also described race
in terms of ethnic groups,” id. at 611 (providing as examples “Finns,” “gypsies,” “Basques,”
“Hebrews,” and many others). The legislative history “reflect[ed] this [] understanding” of race.
Id. at 612. “Based on the history of § 1981,” the Court had “little trouble in concluding that
Congress intended to protect from discrimination identifiable classes of persons who are
subjected to intentional discrimination solely because of their ancestry or ethnic characteristics.”
Id. (emphasis added). Accordingly, no legitimate dispute remains that Hispanic ethnicity is a
race for purposes of § 1981.
17
Likewise, any argument by Fannie Mae that Ms. Lapera has alleged discrimination on the
basis of her country of origin, rather than her Hispanic race, fails. No reasonable reading of Ms.
Lapera’s complaint or papers suggests that she believes she was discriminated against on account
of her Venezuelan national origin. Ms. Lapera has consistently stated that she was discriminated
against based on her Hispanic ethnicity. Thus, because Hispanic is a race for purposes of § 1981
and because Ms. Lapera’s complaint alleges that she was discriminated against based upon her
Hispanic ethnicity, her racial discrimination claims are legally cognizable.
2. Salary Leveling Claims
Ms. Lapera asserts that Fannie Mae discriminated against her on the basis of her race and
personal appearance when the company releveled salaries and assigned her position, Director of
Lean Six Sigma, the salary grade of “M” rather than “N,” and then rejected her requests to
change her salary grade to an “N.” Fannie Mae contends that Ms. Lapera fails to make out a
prima facie case of discrimination with this claim but that even if she had, Fannie Mae had
“legitimate, non-discriminatory reasons” for declining to relevel Ms. Lapera’s position’s salary.
Def.’s Mem. at 10.
In opposing summary judgment on her salary leveling claim, Ms. Lapera focuses
exclusively on her prima facie case, arguing that several facts give rise to an inference of
discrimination. 10 See Pl.’s Opp’n at 32–34. Problematically for Ms. Lapera, however, Fannie
Mae has proffered a legitimate, nondiscriminatory explanation as to why it initially assigned her
position an “M” salary grade and why her subsequent requests for releveling were denied. See
10
Ms. Lapera points to the fact that “Fannie Mae employees with similar qualifications and duties outside her
protected classes were classified at level ‘N’” and that her peers with “significantly less responsibility . . . were also
classified under an ‘N’ salary grade.” Pl.’s Opp’n at 33. Furthermore, one of Ms. Lapera’s direct reports received
her same salary grade of “M.” Id. at 34. Finally, postings for positions with “fewer responsibilities and
qualification requirements than Ms. Lapera’s position were also posted at higher levels than her position.” Id.
18
Adeyemi v. Dist. of Columbia, 525 F.3d 1222, 1226 (D.C. Cir. 2008) (explaining that a plaintiff’s
prima facie case is an “‘unnecessary sideshow’” where the defendant proffers a legitimate
rationale for its decision and admonishing the parties for devoting much of their briefing to the
plaintiff’s prima facie case (quoting St. Mary’s Honor Ctr. V. Hicks, 509 U.S. 502, 510–11
(1993))). In particular, Fannie Mae has asserted that its Compensation Department assigned all
positions’ salary grades by looking at market wages for a given job description and then slotting
that position into the appropriate salary grade. 11 See Def.’s Arb. Tr. at 525 (“[T]he structure was
built based on available market data. There are companies that produce compensation surveys
and that’s how we get our market data. . . . We use market data for positions to determine the
grade level . . . .”). Critically, the Compensation Department did not consider in any way the
characteristics or performance of the individual who occupied a given position. Id. at 531
(explaining that the leveling “wasn’t related to performance in any way . . . [and it] didn’t
consider the individual”); id. at 558–59 (“[W]hen we’re levelling positions, we are not looking at
individuals. We are looking at the position itself.”); id. at 566 (“The position levelling work that
we do isn’t based on the individual person.”). 12
Fannie Mae likewise offered a nondiscriminatory explanation as to why Ms. Lapera’s
subsequent requests to relevel her position’s salary grade were denied. As for her first request in
April 2009, Ms. Lapera consulted her supervisor, Claude Wade, to ask whether her position was
eligible for a salary upgrade. Mr. Wade inquired with the Compensation Department, and the
Compensation Department determined that a change was not appropriate, apparently because the
11
It is true that Fannie Mae supervisors interfaced with the Compensation Department to help the individual
tasked with leveling a position understand the responsibilities and nature of that position, see Pl.’s Arb. Tr. at 532–
33, but Ms. Lapera does not assert that her job description was inaccurate.
12
Ms. Lapera summarily takes issue with these statements in her Statement of Disputed Material Facts, see
Pl.’s Statement of Disputed Material Facts (“SDMF”) at 4–5, ECF No. 14-21, but points to no evidence in the record
to refute the evidence showing that the salary grades were assigned based on objective markers and data.
19
salary grade had just been leveled and there was no obvious reason to change it. See Pl.’s Arb.
Tr. at 535–36. 13 As for the second request, Shandell Harris (“Ms. Harris”), a human resources
business partner, id. at 462, emailed the Director of Compensation, Nicole Harris Westwood
(“Ms. Westwood” 14), in the spring of 2011 asking Ms. Westwood to “look at [the Director of
Lean Six Sigma position] and level it.” Id. at 538. The request contained no additional context,
id., 15 and Ms. Westwood did not construe Ms. Harris’s inquiry as a challenge, id. at 539.
Apparently, Ms. Westwood thought that Ms. Harris was asking her to determine what the salary
grade would be for a position with the position description that mirrored the description for
Director of Lean Six Sigma. In considering Ms. Harris’s inquiry, Ms. Westwood discovered that
the job already existed and that the salary grade for the position was “M.” She relayed that
information to Ms. Harris, evidently ending the inquiry. Id. (“[The request] came to me as
[‘C]an you look at this and level it[?’] And so my translation was, oh, we have this job, and it’s
the job that Ms. Lapera is in and it’s an M.”).
Finally, in May or June of 2011, Ms. Harris submitted a request as part of the Promotion
and Equity Process (“PEP”). Under PEP, a manager can submit, on behalf of his or her
subordinates, a request for a salary increase. Unlike the leveling process, the PEP process
accounts for the employee’s performance and personal characteristics. Id. at 573. A member of
the Compensation Department, Sonia Matza, reviewed Ms. Lapera’s PEP request along with Ms.
13
Notably, the individual who responded to the reclassification request, Mauricio Aguilar, is a member of
Ms. Lapera’s racial class, Pl.’s Arb. Tr. at 566, which “further undermines any inference of discrimination.” Glass
v. Lahood, 786 F. Supp. 2d 189, 216 (D.D.C. 2011).
14
Ms. Harris Westwood stated during her testimony that she goes by “Ms. Harris,” Arb. Tr. at 523, but to
avoid confusion, she is referred to as “Ms. Westwood.”
15
Ms. Harris did attach a job description for the Director of Lean Six Sigma position to her email along with
a job description for a different position that had been assigned an “N” salary grade. Id. at 540-41. Ms. Westwood
testified that she did not recall seeing the second job description and that, in any event, she did not perceive Ms.
Harris to be challenging the salary grade for the Director of Lean Six Sigma position. Id.
20
Harris, id. at 548, and ultimately increased Ms. Lapera’s salary by $28,000 to create a 17%
differential between Ms. Lapera’s salary and her direct report’s salary, id. at 571.
In sum, then, Fannie Mae has amply proffered a legitimate, nondiscriminatory basis for
its salary leveling decisions at issue in this case. Thus, this Court need not analyze whether Ms.
Lapera has made out a prima facie case of discrimination on this ground. See Walker, 2016 WL
1118252, at *6. The only question is whether, based on all the evidence, a reasonable jury could
find that Fannie Mae’s stated reason is pretexual, and that the classification decision was
motivated by racial or personal-appearance animus. See Brady, 520 F.3d at 594; Primas v. Dist.
of Columbia, 719 F.3d 693, 697 (D.C. Cir. 2013) (“Without overt evidence of discriminatory
intent, [the plaintiff’s] case turns on her attempts to show ‘that the defendant’s explanation is
unworthy of credence’ and that a jury could ‘reasonably infer from the falsity of the explanation
that the employer is dissembling to cover up a discriminatory purpose.’” (quoting Reeves, 530
U.S. at 147)). As noted, in addressing her salary leveling claims, Ms. Lapera does not so much
as mention pretext, let alone point to evidence in the record that creates as a genuine issue of
material fact as to whether the Compensation Department acted with a discriminatory motive in
leveling Ms. Lapera’s salary or in later declining to adjust her salary grade. Accordingly, Fannie
Mae is entitled to summary judgment on Ms. Lapera’s salary leveling claims. 16
3. Non-Selection Claims
Ms. Lapera’s complaint asserts that Fannie Mae discriminated against her on the basis of
her race and personal appearance when Fannie Mae passed over Ms. Lapera for the position of
Vice President of Planning and Alignment and instead hired Ms. Fraser. Compl. ¶¶ 30, 35. In
16
Ms. Lapera’s salary leveling claims are obviously unmeritorious given her failure to address pretext.
Accordingly, this Court need not address Fannie Mae’s alternative argument that the statute of limitations ran on
Ms. Lapera’s claim arising out of her 2009 request for reclassification of her position’s salary grade. See Def.’s
Mem. at 10; Def.’s Reply at 12.
21
particular, Ms. Lapera argues that Ms. Gehring declined to promote Ms. Lapera because she was
Hispanic and overweight and that Ms. Gehring chose Ms. Fraser for the position because she was
Caucasian and slender. 17 Pl.’s Opp’n at 24. “Where, as here, the employer claims a legitimate,
nondiscriminatory explanation for its decision to promote one employee over another, the ‘one
central inquiry’ on summary judgment is ‘whether the plaintiff produced sufficient evidence for
a reasonable jury to find that the employer’s asserted non-discriminatory reason was not the
actual reason and that the employer intentionally discriminated against the plaintiff on a
prohibited basis.’” Hamilton v. Geithner, 666 F.3d 1344, 1351 (D.C. Cir. 2012) (quoting
Adeyemi, 525 F.3d at 1226). In addressing this question, the Court considers “‘the total
circumstances of the case,’ asking ‘whether the jury could infer discrimination from the
combination of (1) the plaintiff’s prima facie case; (2) any evidence the plaintiff presents to
attack the employer’s proffered explanation for its actions; and (3) any further evidence of
discrimination that may be available to the plaintiff . . . or any contrary evidence that may be
available to the employer.” Hamilton, 666 F.3d at 1351 (quoting Aka v. Wash. Hosp. Ctr., 156
F.3d 1284, 1289 (D.C. Cir. 1998) (en banc)).
Ms. Lapera contends that (1) she was significantly more qualified for the position than
Ms. Fraser, Pl.’s Opp’n at 27–29; (2) no evidence suggests that she had any communication
17
Ms. Lapera contends that she has adduced direct evidence of discrimination as to her non-selection claims.
Pl.’s Opp’n at 24–25. In fact, however, the “direct evidence” that Ms. Lapera points to is indirect evidence of
discrimination rather than direct evidence. The evidence that Ms. Lapera relies on suggests more broadly that Ms.
Gehring exhibited discriminatory attitudes toward Hispanic employees and overweight employees. None of the
cited evidence, however, proves that Fannie Mae’s selection of Ms. Fraser over Ms. Lapera for the Vice President of
EPMO Planning position was the result of discrimination. See Ayissi-Etoh, 712 F.3d at 576 (explaining that direct
evidence of discrimination is, for example, a “‘statement that itself showed racial or gender bias in the [employment]
decision’” (emphasis added) (quoting Vatel v. All. of Auto. Mfrs., 627 F.3d 1245, 1247 (D.C. Cir. 2011))); Sims v.
Dist. of Columbia, 33 F. Supp. 3d 1, 9 (D.D.C. 2014) (“[D]irect evidence is ‘a smoking gun showing that the
decisionmaker relied upon a protected characteristic in taking an employment action.’” (emphasis in original)
(quoting PowerComm, LLC v. Holyoke Gas & Elec. Dep’t, 657 F.3d 31, 35 (1st Cir. 2011) (internal quotation marks
omitted))); Sykes v. Napolitano, 710 F. Supp. 2d 122, 148 (D.D.C. 2010) (“Mr. Sykes fails to demonstrate any nexus
between [an] email [containing a racially derogatory joke] and his own reassignment.”). Accordingly, Ms. Lapera’s
evidence of discrimination is properly analyzed as only indirect and circumstantial.
22
issues, which was the sole alleged basis for her non-selection, id. at 29; (3) the hiring process
suffered so many procedural irregularities as to suggest a discriminatory motive, id. at 29–31;
and (4) Ms. Gehring, who drove the selection decision, harbored significant biases against
Hispanic and overweight employees, id. at 10–15, 24–25. These contentions, and the evidence
underlying them, are reviewed below.
a. The Candidates’ Relative Qualifications
One way in which a plaintiff can establish pretext is by demonstrating that she was
significantly more qualified than the selected applicant. See Hamilton 666, F.3d at 1352;
Lathram v. Snow, 336 F.3d 1085, 1091 (D.C. Cir. 2003) (“There was in fact evidence from
which a reasonable juror could conclude that there was a wide and inexplicable gulf between the
qualifications of Boyd and Lathram, and in such circumstances the jury could infer
discrimination from the agency’s choice of Boyd over Lathram.”). Here, the parties spill
significant ink arguing over whether Ms. Lapera was significantly more qualified for the Vice
President of Planning and Alignment position. The position description informs the Court’s
analysis of the candidates’ relative qualifications.
The first section of the position description, labeled “Overview of Job,” states that the
Vice President of Planning and Alignment is responsible for “facilitat[ing] consensus around a
long term, integrated execution plan for the restructuring of Fannie Mae and the housing
industry.” Pl.’s Opp’n, Ex. R at 1, ECF No. 14-18. The job overview further states that “this
role demands intensive interaction with the company’s senior management team, initiative
leaders, [Federal Housing Finance Agency (“FHFA”)] and other key stakeholders throughout the
company.” Id. The next section of the position description, titled “Key Job Functions and
Duties,” sets out the responsibilities of the Vice President of Planning and Alignment, including:
23
(1) “acting as a trusted advisor” to the SVP of the EPMO and the CFO; (2) “[c]ommunicat[ing]
effectively” about the Multi-Year Investment Plan, in writing and verbally, to the CFO, the
Management Committee, regulators, and the Fannie Mae Board of Directors by “taking very
complex concepts and explaining them in a simple and concise manner;” (3) “manag[ing] the
EPMO’s relationship with key external stakeholders, including FHFA;” (4) “support[ing] the
goals and objectives of the [] EPMO” and “[b]uild[ing] very strong relationships with the leaders
of each pillar;” (5) “[p]rovid[ing] expert advice and interpretation of corporate governance
activities.” Id. at 1–2.
The third section of the job description details the requisite qualifications, including 10
years of experience (required); 5 years of managerial experience (preferred); expertise in
program/project management or related areas; a bachelor’s degree (required); a master’s degree
(preferred); the ability to communicate verbally and in writing with various levels of
management; demonstrated cross-function collaboration; an ability to anticipate and proactively
solve problems; an ability to influence people to get things done; an ability to apply techniques
for planning, monitoring, and control programs; and an ability to drive results in a swift and
constructive manner. Id. at 2. The final section of the job description sets out the broad
competencies that applicants should have, essentially repeating, in vaguer terms, the requisite
qualifications outlined in the previous section of the job description. Id.
Fannie Mae has effectively conceded that Ms. Lapera had “better knowledge and
experience than Ms. Fraser” as to the substantive areas within the position’s purview. Def.’s
Mem. at 21; see also Def.’s MSJ, Ex. 36 at 2, ECF No. 11-36 (interview notes of Mr. Choi,
stating that Ms. Lapera possessed a “working knowledge of the EPMO, specifically the
[Planning and Alignment] team; deep process expertise[;] [and] extensive Fannie Mae
24
experience and work”). Indeed, Ms. Lapera had long been a member of the EPMO team, Def.’s
MSJ, Ex. 31 at 1–2, whereas Ms. Fraser had most recently worked as Vice President for
Corporate Financial Planning and Analysis, Def.’s MSJ, Ex. 30 at 2, ECF No. 11-30. Ms.
Lapera reported to the Vice President for Planning and Alignment (Ms. Keller) before she
applied for that position, and at that time she was “performing the vast majority of the duties of
the VP position” and already managed 24 of the 30 employees on Ms. Keller’s team. Pl.’s
Statement of Disputed Material Facts (“SDMF”) at 10, ECF 14-21. Ms. Lapera also had directed
teams as large as 35 people, see Def.’s MSJ, Ex. 31 at 2, and had mentored and groomed other
employees, see id. In addition, Ms. Lapera had experience with “cross-function collaboration,”
see, e.g., id. at 1 (listing in her résumé that she had “[c]reat[ed] partnerships with business and
corporate support functions (Finance, HR, Business Architecture, and Risk) to deliver results”).
Finally, Ms. Lapera possessed the requisite and preferred educational credentials. Id. at 2.
Set against this background, Ms. Lapera contends that she was significantly more
qualified for the position of Vice President of Planning and Alignment than the selectee, Ms.
Fraser. As for Ms. Fraser’s qualifications, she was already serving as a vice president at Fannie
Mae when she was selected for the Vice President of Planning and Alignment position. Def.’s
MSJ, Ex. 31 at 2. Like Ms. Lapera, Ms. Fraser had experience with cross-function collaboration
and had groomed her team members for growth. Id. The undisputed evidence indicates that Ms.
Fraser had coordinated effectively and extensively with relevant stakeholders, including
regulators, the Board of Directors, and the CEO and CFO. See id.; Def.’s Arb. Tr. at 638–39
(noting Ms. Fraser’s strong relationships with the Fannie Mae CEO and CFO). The evidence
suggests that Ms. Fraser also possessed many of the “soft” skills listed in the position
description. In particular, Ms. Gehring testified that Ms. Fraser possessed strong communication
25
skills and had successfully presented to the regulators and Fannie Mae executives on numerous
occasions. See Def.’s Arb. Tr. at 638–39. Mr. Choi echoed that sentiment in his interview notes,
commenting that Ms. Fraser “has strong interpersonal and communication skills, which is
imperative.” Def.’s MSJ, Ex. 36 at 2.
It is ultimately a close question whether a reasonable jury could find that Ms. Lapera was
significantly more qualified for the position than Ms. Fraser. Among other things, Ms. Lapera
appears to have had significantly more expertise in the relevant subject matter, more experience
managing a large team, and more relevant education than Ms. Fraser. See Hamilton, 666 F.3d at
1356 (“[D]rawing all reasonable inferences in [the plaintiff’s] favor, we believe that a reasonable
jury could find that, by comparison to [the selected applicant], [the plaintiff] had much greater
technical expertise, more [relevant] experience . . . , and far more formal training.”).
Accordingly, this Court proceeds to consider the other evidence that Ms. Lapera marshals to
demonstrate that Fannie Mae’s stated reason for selecting Ms. Fraser was pretextual. See id. at
1352 (explaining that it was a “close question” whether the jury would find that the plaintiff was
significantly or markedly more qualified than the selected applicant, and therefore proceeding to
“‘review the record taken as a whole’” (quoting Reeves, 530 U.S. at 150)).
b. Whether Ms. Lapera Had Communication Issues
Ms. Lapera contends that “the evidence in the record and the testimony elicited at
arbitration provided no basis upon which a reasonable factfinders could conclude that Ms.
Gehring honestly believed Ms. Lapera lacked executive presence” or had communication issues.
Pl.’s Opp’n at 29. Fannie Mae disagrees, noting that both Ms. Gehring and another interviewer,
Shandell Harris, testified that Ms. Lapera would not be effective in communicating to Fannie
Mae executives. During arbitration, when asked why Ms. Lapera was not selected for the
26
position, Ms. Gehring stated that Ms. Lapera “has difficulties communicating at an executive
level. Her written communications are inappropriate and her verbal communications are
somewhat crass and unpredictable.” Def.’s Arb. Tr. at 613. When pressed for more information,
Ms. Gehring explained that Ms. Lapera’s “written communications were somewhat juvenile and
cartoonish and her verbal communications were very unpredictable and she had a negative way
of talking about the organization and its objectives.” Id. at 614–15. Ms. Gehring provided
examples, noting that Ms. Lapera had second-guessed Fannie Mae’s President’s judgment in a
meeting with more junior staff and that she “interrupted every single staff meeting” with a
“negative comment.” Id. at 617. Ms. Gehring described Ms. Lapera’s written work product as
“somewhat preachy, juvenile and cartoonish.” Id. at 619 (explaining that Ms. Lapera used clip
art, “and that’s just not appropriate at the executive level”).
Ms. Harris expressed similar concerns with Ms. Lapera’s communication skills. In her
notes from Ms. Lapera’s interview, Ms. Harris reported that Ms. Lapera’s “real area of focus
would be her executive presence and communicating with the OC and MC. I think this area of
development . . . is critical given this role, so I would not see her as the best candidate.” Def.’s
MSJ, Ex. 37 at 1, ECF. No. 11-37. During arbitration, Ms. Harris stated that she told Ms. Lapera
that her only reservation in selecting Ms. Lapera was her executive presence. Def.’s Arb. Tr. at
478. When asked what she meant by that, Ms. Harris confirmed: “It was a communication style.
Sometimes I observed that [Ms. Lapera] could ramble, kind of not be on point. I think it’s
important in communicating with executives that you are crisp and to the point and provide
detail as requested.” Id. Ms. Harris stated that she developed concerns about Ms. Lapera’s
communication skills by observing her in staff meetings, where “she tended to be sometimes
emotional in the delivery of her message.” Id. at 479. In sum, then, evidence from two persons
27
involved in the selection process indicates that they did not view Ms. Lapera as an effective
communicator for senior executives at the company.
Ms. Lapera, however, disputes Fannie Mae’s evidence with evidence of her own,
contending that Fannie Mae’s stated rationale that Ms. Lapera had poor communication skills, is
false. See Lathram, 336 F.3d at 1089–90 (“In ‘appropriate circumstances, the trier of fact can
reasonably infer from the falsity of the explanation that the employer is dissembling to cover up
a discriminatory purpose.’” (quoting Reeves, 530 U.S. at 147)). First, Ms. Lapera cites her own
testimony that when she worked for the then-President of Fannie Mae, Mike Williams, around
2008, he “never expressed any concerns with [her] communications.” Pl.’s Arb. Tr. at 49. Such
self-serving testimony regarding her own assessment of her superior’s view of her
communication skills, standing alone, without corroboration, is not sufficient to raise a genuine
issue of material fact as to whether Fannie Mae decisionmakers actually believed that Ms.
Lapera had communication problems. See Burley, 801 F.3d at 298 (“[While] a plaintiff’s own
firsthand observations of relevant facts are probative evidence[] that [] must not [be] set [] aside
merely because they come from a party who necessarily has a stake in the outcome,” where
contrary evidence is present, “the plausibility of those differing observations and inferences is
not, without more,” sufficient “grounds on which a factfinder reasonably could conclude that”
the employer’s stated reason “was a pretext for racial discrimination.”); Steele v. Carter, ___ F.
Supp. 3d ___, 2016 WL 3620722, at *16 (D.D.C. June 29, 2016) (“Plaintiff’s own self-
perception of why he was hired—standing alone without corroboration—does not offer any
credible evidence of discriminatory intent.”); Lawrence v. Lew, 156 F. Supp. 3d 149, 169
(D.D.C. 2015) (“Plaintiff’s self-serving statement that she had the qualifications for GS-11 pay
. . . cannot alone support a genuine dispute as to that fact.”). There is more, however.
28
First, Ms. Lapera’s coworker, Mr. Tomasello, flatly contradicted Ms. Gehring’s
testimony that Ms. Lapera was disruptive during staff meetings. Mr. Tomasello testified during
arbitration that Ms. Lapera’s comments during meetings were “absolutely” appropriate for the
audience and responded “yes” when asked if Ms. Lapera’s comments were clear. Pl.’s Arb. Tr.
at 711–12. Next, Ms. Lapera notes that her 2012 year-end performance review says nothing
about communication difficulties. See generally Pl.’s Opp’n, Ex. T, ECF No. 11-20. Instead,
the general tenor of the review is high praise for Ms. Lapera’s work and leadership. See
generally id. Although Ms. Gehring testified that she typically does not read performance
reviews and does not recall reading Ms. Lapera’s 2012 review, Pl.’s Arb. Tr. at 614, the fact
remains that Ms. Lapera’s supervisor did not raise any issues with Ms. Lapera’s communication
skills. Cf. Hamilton, 666 F.3d at 1355 (noting that the absence of contemporaneous evidence in
support of the proffered explanation is potentially probative of pretext). In sum, then, it remains
an open question whether Fannie Mae decisionmakers genuinely believed that Ms. Lapera had
poor communication skills. The issue ultimately hinges on a credibility determination—whether
to believe Ms. Gehring and Ms. Harris in light of the competing evidence. This question is
squarely within the province of a jury.
c. Irregularities in the Hiring Process
Under certain circumstances, procedural irregularities can support a finding of pretext.
See Evans v. Sebelius, 716 F.3d 617, 620 (D.C. Cir. 2013) (“Employees may cast doubt on the
employer’s proffered reason by, among other things, pointing to . . . ‘the employer’s failure to
follow established procedures or criteria . . . .”); Lathram, 336 F.3d at 1093–94 (holding that the
employer’s decision to open the position to applicants outside the employer’s workforce when it
did not always do so was evidence of pretext). Here, Ms. Lapera notes that “Ms. Gehring
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permitted Ms. Fraser to apply for the vice president position one month after the posting closed,
scheduled her for an interview before she had applied for the position or sent in her resume, and
scheduled her for an hour long interview with Ms. Gehring over lunch, while the other
candidates were scheduled for half hour interviews in Ms. Gehring’s office.” Pl.’s Opp’n at 30–
31. The evidence on these points is murky.
Regarding Fannie Mae’s decision to accept Ms. Fraser’s application after the closing date
for the job posting, Ms. Westwood, the Director of Compensation, was asked during her
arbitration testimony whether her office “would typically investigate[] an interview for a vacant
position where you have a closing date and people are added after that closing date.” Pl.’s Arb.
Tr. at 692. Ms. Westwood answered, “No, absolutely not. That happens all the time.” Id.
Similarly, Ms. Werner, who headed the recruitment process for the position, testified that she
might accept a late application “for any number of reasons, somebody was on vacation, they
missed a deadline.” Id. at 436 (explaining that Fannie Mae’s practice is to accept applications
via an online portal but that the formal policy is not so stringent). Ms. Lapera did not introduce
any evidence to call this testimony into question. Thus, it appears that accepting a belated
application from Ms. Fraser was not actually irregular.
Another irregularity cited by Ms. Lapera was scheduling Ms. Fraser for an interview
before receiving her application, but evidence regarding whether this chronology was unusual is
minimal. See Pl.’s Arb. Tr. at 440 (discussing who decided to interview Ms. Fraser before she
submitted her application but not stating whether that was atypical). Fannie Mae posits that the
evidence is inconclusive as to whether it was inappropriate for Ms. Gehring to conduct Ms.
Fraser’s interview over lunch and for a longer period of time than the other interviews, which
were conducted in Ms. Gehring’s office. Def.’s Reply Mem. at 19. Ms. Werner initially testified
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that she was not sure whether an interviewer would typically take only one candidate to lunch
but thought that such activity might vary based on schedule and availability. Pl.’s Arb. Tr. at
444. Shortly thereafter though, Ms. Werner was asked, “Would [it] be improper for a lunch
interview for just one applicant and not the other applicants?” Id. at 445. Ms. Werner responded
“[y]es” and also stated that when she had conducted a lunch interview in the past, she did so for
all applicants. Id. She further stated that interviews should be the same length of time, while
also testifying that “there could be many factors that influence why interviews go long.” Id. at
445–46.
Consideration of all this evidence indicates that at least some of the cited “irregularities”
are, in fact, not uncommon at Fannie Mae and therefore not probative of pretext. Nevertheless, a
reasonable jury could conclude, based on Ms. Werner’s shifting responses to the questions about
lunch interviews and interview durations, that something was amiss, which adds at least
marginally to the evidence supporting a finding of pretext.
d. Ms. Gehring’s Biases
Finally, Ms. Lapera points to evidence suggesting that Ms. Gehring was biased against
Hispanic and overweight employees. Pl.’s Opp’n at 10–15, 24–25. Such evidence, if believed
by a jury, can be probative of pretext. Evans, 716 F.3d at 620 (explaining that pretext can be
shown by, among other things, “‘[an] employer’s general treatment of minority employees; or
discriminatory statements by the decisionmaker’” (quoting Brady, 520 F.3d at 495)).
According to Ms. Lapera’s testimony, Ms. Gehring targeted overweight employees and
Hispanic employees from the beginning of her tenure as Senior Vice President. In September of
2012, when Ms. Gehring first became Senior Vice President, she called a town hall meeting.
Pl.’s Arb. Tr. at 110–11. After the meeting, Ms. Gehring called Ms. Lapera and said that the
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business architecture team managed by Ms. Lapera is “going to have a long way to go to be able
to represent EPMO the way I want it represented.” Id. at 111. According to Ms. Lapera, Ms.
Gehring specifically mentioned Blythe Neumiller, Patricia Brumbaugh, and Dina Purcell, all
three of whom to varying degrees are overweight. Id. at 112–13. Ms. Neumiller was the largest
member of the team and was so overweight that she had trouble walking, id. at 112, and, during a
staff meeting, Ms. Gehring commented to a group of employees that Ms. Neumiller “waddles”
while she walks, id. When Ms. Neumiller later left the team, evidently due to concern about her
career prospects under Ms. Gehring’s leadership, Ms. Gehring allegedly “congratulated [Ms.
Lapera] on getting [Ms. Neumiller] to move voluntarily to the other team,” notwithstanding the
lack of issues with Ms. Neumiller’s performance. Id. at 115–16.
Also after the town hall meeting, Ms. Gehring allegedly told Ms. Lapera that she “could
see [Ms. Brumbaugh’s] tummy from where [she] was sitting” and then instructed Ms. Lapera
that her team needed to start “dressing up better.” Id. at 113. In December of 2012, Ms. Lapera
conducted her semi-annual performance ratings of her staff and recommended that Ms.
Brumbaugh receive a rating of a “2” 18 to reflect “the amazing deliverables that she produced that
particular year.” Id. at 132–33. Although Ms. Gehring agreed that Ms. Brumbaugh’s work was
strong, she stated that Ms. Brumbaugh lacked “executive presence” and did not have the “look”
that team members should have. Id. at 133–34. Accordingly, Ms. Gehring downgraded Ms.
Brumbaugh’s rating to a “3.” Id. 135.
Ms. Lapera also cites Ms. Gehring’s treatment of Ms. Keller. Ms. Lapera testified that, in
April 2013 at a staff meeting, Ms. Gehring told Ms. Keller that she too used to be overweight
and could help Ms. Keller achieve her weight loss goals. Id. at 138. Ms. Gehring then turned to
18
A rating of “2” equated to “exceeds expectations.” Id. at 132.
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Ms. Lapera and told Ms. Lapera that she “could look better too.” Id. Ms. Keller left her position
shortly after the April 2013 staff meeting. Id. at 140. Finally, Ms. Lapera points out that Ms.
Gehring arranged for an image consultant to come to Fannie Mae to speak with her subordinates
about image improvement. Pl.’s Arb. Tr. at 118–29. Ms. Lapera and Mr. Tomasello testified
that Ms. Gehring pressured the EPMO staff to attend the class, where the consultant told the
women that they should wear make-up and avoid wearing colors that clash with their skin and
color their gray hair. Id. at 122–24; id. at 714 (“Q. And what was the emphasis on at that image
consulting session? A. Aesthetics. Mostly, you know, not delivering results, but, you know,
wear a coat, wear a suit and tie if you’re a man, make sure you have well-pressed clothes, your
hair combed, wear the proper level of make-up.”).
Ms. Lapera’s evidence of Ms. Gehring’s bias against Hispanic employees is less robust,
but it is there. Ms. Lapera relies on her own testimony that Ms. Gehring commented that a
Hispanic employee, Shirley Cruz Rodriguez, would “need to work on [her] accent because there
is no way she’s going to progress with an accent like the one she has.” Id. at 137. Ms. Lapera
testified that Ms. Rodriguez’s accent did not affect her performance evaluation but that Ms.
Gehring made clear that “unless [Ms. Rodriguez’s] accent changed, she [would] not have any []
opportunities for promotion.” Id.
To be sure, the testimony about Ms. Gehring’s statements about Hispanic and overweight
employees is disputed. Ms. Gehring denies having made the comments, see Def.’s Reply Mem.
at 18 & n.3, and even if she did, some are susceptible of innocent interpretations, such as Ms.
Gehring’s offer to help Ms. Keller lose weight. If believed, however, this testimony permits the
inference that Ms. Gehring held negative views of Hispanic and overweight employees, and a
33
jury could infer that Ms. Gehring acted upon those views in declining to select Ms. Lapera for
the Vice President of Planning and Alignment position.
***
Although a close call, reviewing the record as a whole, Ms. Lapera has produced
sufficient evidence to create a genuine issue as to whether Fannie Mae’s rationale for selecting
Ms. Fraser for the Vice President of Planning and Alignment position was pretextual. “In the
end, the record supports two plausible interpretations of what happened.” Evans, 716 F.3d at
622. One view is that Ms. Gehring, who drove the hiring process, harbored biases toward
Hispanic and overweight employees and selected Ms. Fraser not because she was more qualified
but because she fit the mold in terms of demographics and personal appearance that Ms. Gerhing
preferred. The other view is that, notwithstanding her subject matter expertise, Ms. Lapera
simply lacked the requisite communication skills to be effective in the Vice President of
Planning and Alignment role. Ultimately, a jury will get to choose between these “competing
views.” Id.
IV. CONCLUSION
For the foregoing reasons, Fannie Mae’s motion for summary judgment is granted in part
and denied in part. Specifically, this motion is granted as to all of Ms. Lapera’s age
discrimination claims as well as her salary leveling claims. The motion is denied as to Ms.
Lapera’s non-selection claims alleging racial discrimination under 42 U.S.C. § 1981 and racial
and personal-appearance discrimination under the DCHRA. The parties are directed to jointly
submit, by October 19, 2016, three proposed dates for trial on the claims remaining in this
case. The parties may request referral to the United States District Mediation Program, see
34
LCvR 84, or, alternatively, referral to a randomly selected U.S. Magistrate Judge to facilitate
discussions of a disposition prior to trial.
An appropriate Order accompanies this Memorandum Opinion.
Digitally signed by Hon. Beryl A. Howell
Date: September 28, 2016 DN: cn=Hon. Beryl A. Howell, o,
ou=Chief Judge, U.S. District Court for
the District of Columbia,
email=Howell_Chambers@dcd.uscourt
s.gov, c=US
Date: 2016.09.28 11:50:04 -04'00'
__________________________
BERYL A. HOWELL
Chief Judge
35