Magloire Etoh v. Fannie Mae , 712 F.3d 572 ( 2013 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 25, 2012 Decided April 5, 2013
No. 11-7127
MAGLOIRE K. PLACIDE AYISSI-ETOH,
APPELLANT
v.
FANNIE MAE, ET AL.,
APPELLEES
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.
2
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.
3
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
4
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
5
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
6
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 (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 (1976). In Section 1981 and Title VII cases,
courts use the same framework for determining whether
unlawful discrimination occurred. See generally ROTHSTEIN
ET AL., EMPLOYMENT LAW § 2.40 (4th ed. 2009); see also U.S.
Postal Service Board of Governors v. Aikens, 460 U.S. 711(1983); McDonnell Douglas Corp. v. Green, 411 U.S. 792(1973). 1
1
Title VII and Section 1981 differ in certain respects. See
generally ROTHSTEIN ET AL., EMPLOYMENT LAW § 2.40 (4th ed.
2009); Danielle Tarantolo, From Employment to Contract: Section
1981 and Antidiscrimination Law for the Independent Contractor
Workforce, 116 YALE L.J. 170, 193-95 (2006). For example,
Section 1981 covers discrimination on the basis of race, whereas
7
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.;
Title VII covers discrimination on the basis of race, gender,
pregnancy, national origin, and religion. Compare 42 U.S.C.
§ 1981, with 42 U.S.C. §§ 2000e, 2000e-2(a)-(b). And Section
1981 covers only intentional disparate-treatment discrimination,
whereas Title VII allows plaintiffs to bring disparate-impact suits
when a facially neutral policy has a disproportionate impact on a
protected class. See General Building Contractors Assn., Inc. v.
Pennsylvania, 458 U.S. 375, 387-88 (1982).
8
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (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 maintained a
racially hostile work environment in violation of 42 U.S.C.
§ 1981. To support this claim, Ayissi-Etoh cites, among
other things, Cooper’s use of an offensive racial epithet while
yelling at Ayissi-Etoh; Fannie Mae’s delay in subsequently
separating Ayissi-Etoh and Cooper from having to work
together; and Wagner’s racially explicit statements to
Ayissi-Etoh about the salary, which we described above.
To prevail on a hostile work environment claim, a
plaintiff must first show that he or she was subjected to
“discriminatory intimidation, ridicule, and insult” that is
“sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working
environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17,
21 (1993) (quoting Meritor Savings Bank, FSB v. Vinson, 477
U.S. 57, 65, 67 (1986)).
In evaluating a hostile work environment claim, the court
“looks to the totality of the circumstances, including the
frequency of the discriminatory conduct, its severity, its
offensiveness, and whether it interferes with an employee’s
work performance.” Baloch v. Kempthorne, 550 F.3d 1191,
1201 (D.C. Cir. 2008) (citing Faragher v. City of Boca Raton,
524 U.S. 775, 787-88 (1998)).
9
We conclude that a reasonable jury could find Cooper
and Wagner’s behavior sufficiently severe or pervasive as to
create a hostile work environment. To begin with, Cooper
(allegedly) used a deeply offensive racial epithet when yelling
at Ayissi-Etoh to get out of the office. As other courts have
observed, “perhaps no single act can more quickly alter the
conditions of employment” than “the use of an
unambiguously racial epithet such as ‘nigger’ by a
supervisor.” Rodgers v. Western-Southern Life Insurance
Co., 12 F.3d 668, 675 (7th Cir. 1993) (internal quotations
omitted). This single incident might well have been
sufficient to establish a hostile work environment. But there
was still more here. The incident was preceded by Wagner’s
“young black man” statement that, as we have already held,
was sufficient to support Ayissi-Etoh’s claim that Fannie Mae
intentionally denied him a raise on the basis of race.
Moreover, this incident was followed by Ayissi-Etoh
allegedly having to continue working with Cooper for nearly
three months, until Cooper was ultimately fired. Medical
records allegedly demonstrate that forcing Ayissi-Etoh to
continue working with Cooper made Ayissi-Etoh ill and
caused him to miss work on at least one occasion.
To establish a hostile work environment claim, a plaintiff
must pass one additional hurdle: To establish liability when
a plaintiff is harassed by his or her co-workers, the plaintiff
must prove that the employer was at least negligent in not
preventing or correcting the harassment. See Faragher, 524
U.S. at 789. When, as here, the plaintiff is harassed by
supervisors with “immediate (or successively higher)
authority,” the supervisors are treated as the employer’s
proxy. Id. at 807. In that circumstance, the employer is
vicariously liable for a supervisor’s actions, except when no
tangible adverse employment action has been taken and the
10
employer proves an affirmative defense: (i) that it exercised
reasonable care to prevent and promptly correct the hostile
behavior, and (ii) that the employee unreasonably failed to
take advantage of the employer’s preventive or corrective
opportunities. See id.; Burlington Industries, Inc. v. Ellerth,
524 U.S. 742, 765 (1998). 2
Here, there is no dispute that Cooper and Wagner were
Ayissi-Etoh’s supervisors. Therefore, Fannie Mae would be
vicariously liable based on their alleged comments, save for
any affirmative defense. Fannie Mae suggests that it may be
entitled to the affirmative defense because it promptly
corrected Cooper’s behavior by firing him three months after
the incident. But a reasonable jury could find that
three-month delay was not “prompt.” Moreover, Fannie Mae
makes no attempt to argue that Ayissi-Etoh unreasonably
failed to take advantage of its complaint system – which is an
additional necessary component of the affirmative defense.
Indeed, Ayissi-Etoh filed a complaint with Fannie Mae’s
Compliance and Ethics Department the day after the incident
in Cooper’s office. At the summary judgment stage,
Ayissi-Etoh has thus provided sufficient evidence for a
reasonable jury to find Fannie Mae liable.
We therefore reverse the grant of summary judgment on
the hostile work environment claim.
2
Some courts continue to cite the test articulated by the
Eleventh Circuit in Henson v. City of Dundee, 682 F.2d 897, 905
(11th Cir. 1982). That case required an employee in a case where
the employee was harassed by a supervisor to prove that the
employer “knew or should have known of the harassment in
question and failed to take prompt remedial action.” Id. That is no
longer the test after Faragher.
11
C
Ayissi-Etoh also alleges that Fannie Mae fired him in
retaliation for his filing of EEOC complaints. He brings the
retaliation claim under 42 U.S.C. § 1981.
To establish a retaliation claim under Section 1981, a
plaintiff must show that he engaged in protected activity –
such as filing an EEOC complaint – and that his employer
took an adverse employment action against him because of
that activity. See Holcomb v. Powell, 433 F.3d 889, 901-02
(D.C. Cir. 2006).
In his affidavit, Ayissi-Etoh offers direct evidence of
retaliation: He claims that Pesut gave him a choice between
dropping his claims with the EEOC and being fired. Pesut
denies making that statement. On summary judgment,
however, we cannot resolve this credibility contest.
Because Ayissi-Etoh’s account could lead a reasonable
jury to return a verdict in his favor on the retaliation claim, we
reverse the District Court’s grant of summary judgment on
that claim.
D
Finally, Ayissi-Etoh claims that Fannie Mae is liable
under D.C. law for defamation because its employee Pesut
accused Ayissi-Etoh of plagiarism.
To meet the requirements for defamation under D.C. law,
a plaintiff must prove (i) that he was the subject of a false and
defamatory statement; (ii) that the statement was published to
a third party; (iii) that publishing the statement was at least
negligent; and (iv) that the plaintiff suffered either actual or
12
legal harm. See Crowley v. North American
Telecommunications Association, 691 A.2d 1169, 1173 n.2
(D.C. 1997).
Ayissi-Etoh’s defamation claim fails because Pesut’s
statements were not false. In both her evaluation and her
subsequent emails, Pesut noted that the explanations
Ayissi-Etoh used in his audit review were “exactly the same
as” the “customer’s response” to one of Ayissi-Etoh’s
questions. Ayissi-Etoh’s final audit review indisputably
contains language identical to the customer’s response.
Because Pesut simply stated the truth – that part of
Ayissi-Etoh’s audit review directly incorporated responses
from a customer’s email – the defamation claim fails.
We therefore affirm the District Court’s grant of
summary judgment on Ayissi-Etoh’s D.C. law defamation
claim.
***
We reverse the District Court’s grant of summary
judgment with respect to the race discrimination, hostile work
environment, and retaliation claims. We affirm the District
Court’s grant of summary judgment with respect to
Ayissi-Etoh’s D.C. law defamation claim.
So ordered.
KAVANAUGH, Circuit Judge, concurring: I join the
Court’s opinion and write separately to underscore an
important point about Ayissi-Etoh’s hostile work environment
claim.
The briefing and argument in this case focused on a
significant question: Can one isolated yet severe incident of
discriminatory conduct establish a hostile work environment
under federal anti-discrimination laws? Fannie Mae has
argued that a “singular comment” – even one as severe as the
Fannie Mae Vice President’s alleged statement to Ayissi-Etoh,
“Get out of my office nigger” – is “insufficient to establish an
actionable hostile work environment.” Fannie Mae Br. 47. In
my view, Fannie Mae is wrong on the law and wrong on the
application of the law to the alleged facts of this case. The
alleged statement by the Fannie Mae Vice President to Ayissi-
Etoh by itself would establish a hostile work environment for
purposes of federal anti-discrimination laws.
To be sure, as Fannie Mae notes, cases in which a single
incident can create a hostile work environment are rare. See,
e.g., Faragher v. City of Boca Raton, 524 U.S. 775, 788
(1998) (“isolated incidents (unless extremely serious) will not
amount to” a hostile work environment); Stewart v. Evans,
275 F.3d 1126, 1134 (D.C. Cir. 2002) (“Except in extreme
circumstances, courts have refused to hold that one incident is
so severe to constitute a hostile work environment. Even a
few isolated incidents of offensive conduct do not amount to
actionable harassment.”) (citation omitted); Freedman v. MCI
Telecommunications Corp., 255 F.3d 840, 848-49 (D.C. Cir.
2001) (single incident of “religious slander” does not create a
hostile work environment).
But saying that a single incident of workplace conduct
rarely can create a hostile work environment is different from
saying that a single incident never can create a hostile work
environment. The test set forth by the Supreme Court is
2
whether the alleged conduct is “sufficiently severe or
pervasive” – written in the disjunctive – not whether the
conduct is “sufficiently severe and pervasive.” A single,
sufficiently severe incident, then, may suffice to create a
hostile work environment. See EEOC COMPLIANCE MANUAL,
SECTION 15: RACE AND COLOR DISCRIMINATION 37 (2006) (“a
single, extremely serious incident of harassment may be
sufficient to constitute a Title VII violation”); see also id.
(“The more severe the harassment, the less pervasive it needs
to be, and vice versa.”).
Courts and commentators alike agree that a single
physical act – such as a physical assault – can create a hostile
work environment. See, e.g., Turnbull v. Topeka State
Hospital, 255 F.3d 1238, 1243 (10th Cir. 2001) (case
concerning sexual assault where court stated: “Because
frequency is merely one factor in the analysis, an isolated
incident may suffice if the conduct is severe and
threatening.”); Smith v. Sheahan, 189 F.3d 529, 534 (7th Cir.
1999) (“ ‘extremely serious’ acts of harassment” like physical
assault may be severe and need not also be pervasive)
(quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788
(1998)); Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir.
1995) (“even a single incident of sexual assault sufficiently
alters the conditions of the victim’s employment and clearly
creates an abusive work environment for purposes of Title VII
liability”), abrogated on other grounds by Burlington
Industries, Inc. v. Ellerth, 524 U.S. 742 (1998); 3 LEX K.
LARSON, EMPLOYMENT DISCRIMINATION § 46.05[3][b] (2d ed.
2012) (“a single incident of physical assault against a co-
worker that is motivated by anti-female animus can qualify as
severe enough to constitute an alteration of the co-worker’s
conditions of employment”).
3
As several courts have recognized, moreover, a single
verbal (or visual) incident can likewise be sufficiently severe
to justify a finding of a hostile work environment. See, e.g.,
Reedy v. Quebecor Printing Eagle, Inc., 333 F.3d 906, 909
(8th Cir. 2003) (racially hostile graffiti that amounted to death
threat qualifies as “severe”); Richardson v. N.Y. State Dept. of
Correctional Service, 180 F.3d 426, 437 (2d Cir. 1999) (case
involving the use of several racial epithets and insults where
court stated: “even a single episode of harassment, if severe
enough, can establish a hostile work environment”),
abrogated on other grounds by Burlington N. & Santa Fe
Railway Co. v. White, 548 U.S. 53 (2006); cf. Jackson v.
Flint Ink North American Corp., 370 F.3d 791, 795 (8th Cir.
2004) (“Even a single instance of workplace graffiti”
involving a burning cross, “if sufficiently severe, can go a
long way toward making out a Title VII claim”), rev’d on
reh’g on other grounds, 382 F.3d 869 (8th Cir. 2004).
It may be difficult to fully catalogue the various verbal
insults and epithets that by themselves could create a hostile
work environment. And there may be close cases at the
margins. But, in my view, being called the n-word by a
supervisor – as Ayissi-Etoh alleges happened to him –
suffices by itself to establish a racially hostile work
environment. That epithet has been labeled, variously, a term
that “sums up . . . all the bitter years of insult and struggle in
America,” LANGSTON HUGHES, THE BIG SEA 269 (2d ed.
1993) (1940), “pure anathema to African-Americans,”
Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir.
2001), and “probably the most offensive word in English,”
RANDOM HOUSE WEBSTER’S COLLEGE DICTIONARY 894 (2d
rev. ed. 2000). See generally ALEX HALEY, ROOTS (1976);
HARPER LEE, TO KILL A MOCKINGBIRD (1960). Other courts
have explained that “perhaps no single act can more quickly
alter the conditions of employment and create an abusive
4
working environment than the use of . . . ‘nigger’ by a
supervisor in the presence of his subordinates.” Spriggs, 242
F.3d at 185. No other word in the English language so
powerfully or instantly calls to mind our country’s long and
brutal struggle to overcome racism and discrimination against
African-Americans.
In short, the case law demonstrates that a single,
sufficiently severe incident may create a hostile work
environment actionable under 42 U.S.C. § 1981 or Title VII.
Here, as I see it, the alleged statement by the Fannie Mae Vice
President to Ayissi-Etoh itself would establish a hostile work
environment. With that understanding, I join the Court’s
opinion.