United States District Court, D. Columbia.
Saddiq Abdul-Baaqiy, Plaintiff: David A. Branch, LEAD
ATTORNEY, LAW OFFICE OF DAVID BRANCH & ASSOCIATES, PLLC,
Washington, DC USA.
Federal National Mortgage Association (Fannie Mae),
Defendant: Frank R. Volpe, LEAD ATTORNEY, SIDLEY AUSTIN LLP,
Washington, DC USA; Wendy M Lazerson, LEAD ATTORNEY, PRO HAC
VICE, Palo Alto, CA USA; Y. Angela Lam, LEAD ATTORNEY, PRO
HAC VICE, SIDLEY AUSTIN LLP, Chicago, IL USA; Damien G.
Stewart, FANNIE MAE, Washington, DC USA.
M. COLLYER, United States District Judge.
Plaintiff Saddiq Abdul-Baaqiy filed this class action lawsuit
against Federal National
Mortgage Association alleging that (1) he was subjected to a
pattern and practice of race discrimination through disparate
treatment and (2) he is representative of a class that was
subjected to personnel policies and practices that have a
disparate impact on African Americans. He asserts race
discrimination claims under 42 U.S.C. § 1981 and the
D.C. Human Rights Act, D.C. Code § § 2-1401 et
seq. Federal National Mortgage Association moves (1) to
dismiss the D.C. Code claim for lack of subject matter
jurisdiction because the alleged discrimination occurred in
Virginia and not in the District of Columbia; (2) for summary
judgment on all claims based on the practice of " forced
ranking" ; and (3) to strike the class action
allegations. As explained below, the motion will be granted
in part and denied in part.
Federal National Mortgage Association (Fannie Mae) is a
Government Sponsored Enterprise headquartered in Washington,
D.C. Fannie Mae employed Plaintiff Saddiq Abdul-Baaqiy, an
African American, from 1996 through 1999 and from 2001
through 2011. Mr. Abdul-Baaqiy worked in Fannie Mae's
D.C. office in 1996 through 1999 and again when he resumed
employment in 2001. Fannie Mae transferred him to its office
in Virginia in September 2004. Opp'n [Dkt. 24], Ex. P
(Pl. Decl.) ¶ 2. In this latter position, Mr.
Abdul-Baaqiy was a software developer with the title "
Application Developer Analyst II."
December 2008, Fannie Mae implemented a new performance
review policy that imposed a quota for the number of high
performance reviews that managers could award in each
department, allegedly resulting in poor reviews for employees
who actually met performance objectives. Am. Compl. [Dkt. 13]
¶ ¶ 2, 6. This " forced ranking" policy
required that managers evaluate employees " relative to
their peers," so that only 5% percent of employees would
receive a " Significantly Exceeds Expectations"
rating, 25% percent would receive a " Fully Meets
Plus" rating, 50% would receive a " Fully
Meets" rating, and 20% would receive an unsatisfactory
rating of " Fully Meets Minus/Significant Issues"
or lower. Mot. to Dismiss and for Partial Summ. J. [Dkt. 20]
(MTD/Partial MSJ), Ex. 3 (2008 Ratings Distribution) & Ex. 4
(FAQs on 2008 Ratings Distribution).
September 10, 2009, Fannie Mae CEO Mike Williams sent a
message to employees announcing a different performance
evaluation policy. Id., Ex. 5 (Williams Letter). Mr.
Williams noted that " a number of employees and managers
have raised important concerns about the performance review
process, especially the guidance that 20 percent of employees
should fall into the bottom two rating categories."
Id. The modified 2009 policy changed the percentages
of employees for each performance level, directing that 5-10%
receive a " Significantly Exceeds Expectations"
rating, 15-25% percent receive an " Exceeds
Expectations" rating, 55-75% receive a " Meets
Expectations" rating, and 5-10% receive ratings of
" Does Not Meet Expectations." Id.
the 2009 policy, managers were required to evaluate employees
by using a four step process consisting of divisional
planning, pre-calibration preparation, calibration, and
post-calibration. Opp'n [Dkt. 24], Ex. C (Calibration
Overview). Calibration sessions are management fora led by
Fannie Mae leaders (or the most senior level manager) for the
purpose of assisting managers in evaluating the relative
performance of employees before finalizing a rating.
Id. Prior to a calibration session, managers were
instructed to prepare draft assessments and initial ratings.
Id., Ex. D
(Session Leaders Preparation Guide). Managers were instructed
to articulate how each employee was performing as compared to
their peers, even when the employee had met or was on course
to meet all goals. Id., Ex. I (Year-End Process:
Abdul-Baaqiy received satisfactory performance reviews
throughout 2008. He contends that he was affected by the
" forced ranking" policy when he received poor
evaluations starting in mid-2009 until he was terminated for
supposed performance deficiencies in April 2011.
Specifically, Steven Gonsalves, a Caucasian man, began
supervising Mr. Abdul-Baaqiy in April 2009. After three
months, Mr. Gonsalves gave Mr. Abdul-Baaqiy an " off
track" mid-year performance rating, but did not provide
any comments to support or justify the " off track"
rating. Id., Ex. A (2009 Mid-Year Review). An email
chain indicates that Plaintiff may have been rated as "
off track" due to the division manager's need to
meet distribution targets. See id., Ex. L (June/July
2009 Email Chain). A Fannie Mae employee by the name of Les
Zimmerman sent an email to Plaintiff's
second line supervisor, Malcom Blundell, on June 29, 2009
with the subject line " IR2 Mid-Year Performance
Rankings__20% Off Track." Mr. Gonsalves, among others,
was copied on the email. Mr. Zimmerman stated:
As you would expect, not everyone on this list [of 6
employees] is [identified] because of their performance
against goals. Several made this list as a result of the
requirement to have 20%. So, they ended up ranking below
their IR2 [project] peers. . . . We discussed that the IR2
staff is among the best in Fannie Mae, working on a critical
and extremely challenging project with the highest
next day, Mr. Blundell responded, " Ron directed me
to rank you as a group and pick a bottom 20%. This I will do.
I must say that you are a high performing team, and all of
you are meeting my expectations at this point."
Id. A few days later, on July 6, 2009, Mr. Blundell
directed that the six employees on Mr. Zimmerman's list,
including Mr. Abdul-Baaqiy, " are to be rated off
track." Later that day, Mr. Gonsalves responded, "
2009 year-end evaluation, Mr. Gonsalves prepared a draft
performance review, indicating that Mr. Abdul-Baaqiy had
completed every goal and noting that he timely completed
assignments, was a " go-to" person for support, was
an " advocate if not a champion" of standards
compliance, and that he just needed to " soften"
his approach in advocating compliance. Id., Ex. M
(2009 Year End Review). Mr. Gonsalves also noted that in the
early part of 2009, Mr. Abdul-Baaqiy attempted to take on
responsibilities that exceeded his abilities, that after
mid-year coaching he took on assignments more in line with
his skills, although there were still some issues with
quality and communication. Id. After Mr. Gonsalves
met with Division Director Joe Jucha, he downgraded the
performance review, changing the evaluation of three goals
from " completed" to " off course."
Id., Ex. O (Gonsalves Dep.). In his final 2009
year-end performance review, Mr. Gonsalves rated Mr.
Abdul-Baaqiy as " Does
Not Meet Expectations." Id., Ex. N (2009 Year
End Review). In contrast with this rating, in a 2009
Accountability Survey Plaintiff's peers rated him at 4.28
and his managers rated him at 4.30 on a scale from a low of 1
to a high of 6. Id., Ex. V (2009 Accountability
2010, Sabari Roy, an Asian woman, was assigned to supervise
Mr. Abdul-Baaqiy. She issued Plaintiff an " off
track" mid-year review at the end of July 2010. See
id., Ex. S (Roy Dep.), Ex. 3 (2010 Mid-Year Review). At
the end of 2010, Ms. Roy gave Mr. Abdul-Baaqiy a " Does
Not Meet Expectations" rating. Roy Dep., Ex. 4 (2010
Year End Review). On January 25, 2011, Mr. Abdul-Baaqiy
received a memorandum of concern. Roy Dep., Ex. 5 (2011 Mem.
of Concern). Fannie Mae fired Mr. Abdul-Baaqiy in April 2011.
March 13, 2012, Mr. Abdul-Baaqiy filed a complaint alleging
discrimination in D.C. Superior Court. See Abdul-Baaqiy
v. Fed. Nat'l Mort. Ass'n, No. 2012 CA 002386
(D.C. S.Ct. 2012). The case was dismissed because he was
required by Fannie Mae's Dispute Resolution Policy to
arbitrate before proceeding to court. Under the Dispute
Resolution Policy, arbitration is binding on Fannie Mae but
not on the employee. MTD/Partial MSJ, Lam Decl. [Dkt. 20-14],
Ex. A (Dispute Resolution Policy). Mr. Abdul-Baaqiy proceeded
to arbitration, the parties conducted limited discovery, and
the arbitrator held an evidentiary hearing. Lam Decl., Ex. D
(Gonsalves Dep.), Ex. E (Hearing Transcript), Ex. F. (Roy
Dep.), Ex. K (Abdul-Baaqiy Dep.). The arbitrator determined
that the Dispute Resolution Policy was an enforceable
contract that required Mr. Abdul-Baaqiy to arbitrate, see
id., Ex. B (Order Compelling Arbitration) and he entered
an award in favor of Fannie Mae, see id., Ex. C.
(Award). Plaintiff rejected the Award. Id., Ex. G
(Notice of Rejection of Arbitration Award).
Subsequently, Mr. Abdul-Baaqiy filed this suit against Fannie
Count I__race discrimination in violation of the Civil Rights
Act of 1866, 42 U.S.C. § 1981; and
Count II__race discrimination in violation of the D.C. Human
Rights Act, D.C. Code § § 2-1401 et seq.
Am. Compl. [Dkt. 13]. Mr. Abdul-Baaqiy attempts to assert
these claims on behalf of himself and " all African
American employees, who were subject to Fannie Mae's
forced ranking policies and practices which resulted in
adverse personnel actions in lowered performance appraisals,
discipline, including memorandum of direction and performance
improvement plans, and termination from employment 2008
through 2011 based on their performance rating." Am.
Compl. ¶ 24. The Complaint alleges that the forced
ranking policy had a disparate impact on African Americans,
in violation of both § 1981 and DCHRA:
This policy and practice had a disparate impact on African
American employees because managers were forced to issue
lower performance appraisals to a certain number of employees
regardless of their performance. Fannie Mae's "
forced ranking" policy and practice since 2008 has led
to a disproportionate number of African American employees
receiving discriminatory performance appraisals which led to
loss of compensation and termination from employment under
false assertions of poor performance. In addition, since 2008
Fannie Mae has carried out several mass ...