United States District Court, District of Columbia
A. HOWELL Chief Judge.
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.
pertinent factual and procedural history for consideration of
the pending motion for summary judgment is summarized below.
Lapera was born in Caracas, Venezuela, Plaintiff's
Arbitration Transcript (“Pl.'s Arb. Tr.”) at
28, ECF No. 14-1,  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
Ms. Lapera's Early Career at Fannie Mae
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 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. Id. at
Ms. Lapera's New Salary Grade
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.
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. 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, 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.
Mae's Non-Selection of Ms. Lapera for Vice
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. 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
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 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
Pl.'s Arb. Tr. at 714.
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.
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. 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
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. 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.
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.
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
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
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.
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.
Mae's motion for summary judgment is now ripe for
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
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
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).
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
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 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).
McDonnell Douglas, discrimination claims are