Mayorga v. Merdon, No. 18-5045 (D.C. Cir. June 28, 2019) and Iyoha v. Architect of the Capitol, No. 17-5252 (D.C. Cir. July 2, 2019)

| Jul 3, 2019 | Daily Developments in EEO Law |

AOC in employment-law news: the Architect of the Capitol loses two Title VII appeals in the past week, both cases involving claims of denial of promotions due to national origin. Both shared the detail that supervisors allegedly mocked the plaintiffs because of their accents.

Mayorga v. Merdon, No. 18-5045 (D.C. Cir. June 28, 2019): Mr. Mayorga, a Nicaraguan HVAC engineer, was one of 6 candidates listed for a promotion to Electronics Technician. The selecting official, Bieber, and another participant in the process, Wallace, both allegedly insulted the plaintiff in the past because of his ethnicity. “Mayorga claims that Bieber and Wallace made fun of his Hispanic first name, regularly calling him ‘Caviar’ instead of Javier, and that Bieber mocks Mayorga’s accent and interrupts him in meetings.”

A spreadsheet created by Bieber and used in the promotion process failed to reflect Mayorga’s experience as an HVAC service technician for eight years and that he had a degree in Network Management. He was ranked last of the six candidates and eliminated from the process. Supposedly during the interview, Mayorga also failed to give detailed answers about his experience or skills and “seemed confused during the interview about what job he had applied for. Two white men got the promotions instead.

After exhausting procedures under Title IV of the Congressional Accountability Act of 1995 (CAA), Mayorga filed suit alleging denial of promotion because of national origin. The district court held that there was no evidence “from which a jury could reasonably find the AOC’s justifications for not hiring Mayorga were pretextual.”

The D.C. Circuit reverses. Because AOC submitted a legitimate non-discriminatory reason for its decision not to allow plaintiff to advance in the process, i.e., his qualifications and his interview, the panel focuses on whether there was sufficient basis in the record to challenge that explanation.

The panel finds several points of contention. First, AOC claimed that Mayorga lacked a background with the Building Automation System Network (BASnet). Yet there was evidence not only that Mayorga specified that experience in his resume, but that both Bieber and Wallace had personal exposure to Mayorga’s work troubleshooting in this area. This was bolstered by evidence that even though Mayorga was not part of the EMCS Branch that administered that system, other employees outside of that office were also credited with BASnet experience.

Second, there was a dispute about whether Mayorga admitted in the interview that he applied for the wrong position; the witnesses’ testimony was in direct contradiction on this point.

Third, there was a dispute about whether Mayorga had experience with “Cisco network equipment” and “Ethernet and fiber-optic cables,” where Mayorga presented both his application and witness testimony showing that he had a background with such equipment.

Finally, there was the evidence of Bieber and Wallace allegedly demeaning Mayorga in the past. “[T]he question whether Bieber called Mayorga ‘Caviar’ and mocked his accent hinges upon Mayorga’s and Bieber’s credibility, ‘an issue that is quintessentially one for the finder of fact.'” Moreover, “Mayorga clearly testified that Wallace has previously called him “Caviar” – a particularly significant accusation because Wallace was on the selection panel.” While not determinative, the panel found these incidents were at least probative of discrimination.

Iyoha v. Architect of the Capitol, No. 17-5252 (D.C. Cir. July 2, 2019): Iyoha in 2012 filed a complaint against AOC for an allegedly discriminatory reassignment, citing in part evidence that his supervisor named Wiegmann “stopped taking in-person briefings from Iyoha, and allegedly told his staff at a meeting that he was glad that Iyoha had decided to communicate with him using email because he could not understand Iyoha’s foreign accent when he spoke.” The complaint was resolved administratively in Iyola’s favor, with back-pay relief.

Iyola later participated in promotion processes in 2014 and 2015, but was passed over both times. He contended that the denials of promotion were motivated both by national origin discrimination and retaliation. Iyola exhausted his remedies under the CAA, then filed suit. The district court granted summary judgment on all of his claims.

The D.C. Circuit reverses on the discrimination claims. It notes that “[a]lthough the CAA and Title VII do not explicitly bar discrimination on the basis of foreign accent, a foreign accent and national origin are often intertwined, and courts can look to evidence of discrimination on the basis of one’s accent in support of a claim of national origin discrimination.” While the panel allows that an accent could present a legitimate employment issue if it interfered with the employee’s ability to communicate and do their job, AOC did not argue that “Iyoha’s foreign accent made him hard to understand or interfered with his ability to perform employment-related tasks.”

For the 2014 promotion, Iyoha pointed to a decisionmaker named Clark, whom he also previously named in his 2012 complaint. Clark allegedly said that she “would not have interviewed Iyoha if Architect policy did not require her to do so.” She also supposedly participated in a discussion about “communication problems” within the division, during which Wiegmann, made comments about the foreign origin of certain staff. Clark and Wiegmann had been found not credible by the 2012 hearing officer with respect to the reasons for Iyola’s reassignment.

Also in 2014, Wiegmann served as one of the interviewers and gave Iyola a poor score. The panel holds that the district court erred in drawing inferences in favor of AOC about Wiegmann’s prior comments about Iyola’s accent:

“Although a jury might conclude that some of Wiegmann’s comments were merely expressions of legitimate concern, that is not the only reasonable interpretation. For instance, it is difficult to see how Wiegmann’s joke that his phone’s voice recognition software ‘even recognizes [Iyoha’s] accent,’ J.A. 1099, is connected to legitimate concerns about effective communications.”

The district court also erred, holds that panel, in assuming that Wiegmann’s remarks were made too far in the past (a couple of years) to be probative:

“The most recent statement was made just a few months prior to the 2014 employment decision directly at issue here, when Wiegmann made comments regarding the ability of his phone’s voice recognition software to understand Iyoha’s accent. What’s more, Wiegmann had shown during the 2012 reorganization that he was willing to take action to exclude people with foreign accents from the Production Management Branch. A reasonable juror could conclude that Wiegmann’s comments and actions are evidence of a discriminatory attitude towards employees with foreign accents, and that a supervisor who was willing to remove Iyoha from the Branch in 2012 because of his accent would not want Iyoha leading that Branch in 2014 for the same forbidden reason.”

Wiegmann’s presence on the panel therefore potentially contaminated the whole process:

“Here, a jury could find that the senior member of the panel not only had a history of making jokes about Iyoha’s foreign accent but had actually discriminated against him in the past by removing him from the same Branch in which he was seeking a new position, and was in a position to potentially influence the scores given by the other members of the panel.”

Finally, although the person promoted (Tseng) himself had an accent, the panel notes that “there is no testimony comparing Iyoha and Tseng’s accents” and “Wiegmann’s comments concern[ing] accents … targeted Iyoha specifically.”

Regarding the 2015 process, the panel holds that while Wiegmann was absent from the interview panel, another person named Hernandez, who also “allegedly had a history of making comments about Iyoha’s accent” did sit on the panel. Additionally, Clark – again the decisionmaker – changed the process in 2015 to hold two rounds of interviews rather than one as in 2014.  “Iyoha argues, however, that Clark added the second interview midway through the process in order to ensure that a candidate [named A.M.] with a foreign accent was not selected.” There was a dispute in the witness testimony about when in the process the decision to add a second interview was made. A jury nevertheless “could determine that Clark was trying to conceal the timing of the decision to hold a second round of interviews-and consequently, was trying to conceal the reason behind the second round of interviews as well.”

A negative inference might also be drawn from AOC’s failure to produce a “justification memo” in discovery explaining its promotion decision internally, allegedly lost or destroyed during the course of the litigation. “Given a clear duty to preserve the 2015 justification memorandum and the Architect’s lack of explanation for its loss, a jury could draw an adverse inference on this basis.”

Finally, the panel affirms summary judgment with respect to the retaliation claims, finding that there was both a lack of temporal proximity between his 2012 complaints and the denials of promotions, and the absence of other evidence of retaliatory animus.

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