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Lapera v. Federal National Mortgage Association

United States District Court, District of Columbia

September 28, 2016

ANA LAPERA, Plaintiff,


          BERYL A. HOWELL Chief Judge.

         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.

         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 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, 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 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. 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.

         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 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.


         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 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).


         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 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 ...

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