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Iyoha v. Architect of Capitol

United States District Court, District of Columbia

October 25, 2017

SUNDAY IYOHA, Plaintiff,
v.
ARCHITECT OF THE CAPITOL, Defendant.

          MEMORANDUM OPINION

          REGGIE B. WALTON, United States District Judge

         The plaintiff, Sunday Iyoha, brings this civil action against the defendant, the Architect of the Capitol (the “Architect”), asserting claims of discrimination, retaliation, and hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2 to -7 (2012) (“Title VII”), as applied to Congressional agencies like the Architect through the Congressional Accountability Act, 2 U.S.C. § 1408 (2012). See Complaint (“Compl.”) ¶¶ 1, 52- 58. Specifically, the plaintiff alleges that the Architect unlawfully discriminated against him on the basis of his race and national origin and retaliated against him for engaging in prior protected activity by not selecting him for a supervisor position on two separate occasions. See id. ¶¶ 42- 50; see also Supplemental Complaint Pursuant to Rule 15(d) (“Suppl. Compl.”) ¶¶ 10-20. Currently before the Court are the Defendant's Motion for Summary Judgment (“Def.'s Mot.”) and the Plaintiff's Motion for Oral Argument on Defendant's Motion for Summary Judgment or for Leave to File a Sur[-]reply (“Pl.'s Mot.”). Upon careful consideration of the parties' submissions, [1] the Court concludes for the reasons set forth below that it must deny the plaintiff's motion for oral argument and grant the defendant's motion for summary judgment.

         I. BACKGROUND

         The plaintiff, who “is black and of Nigerian descent, ” Compl. at 1, is a current employee of the Architect in the Project Management Branch of the Information Technology Department (the “Department”), see id. ¶¶ 4, 8, 22, which, during the relevant time frame, “was led by Chief Information Officer Jay Wiegmann, ” Def.'s Mem. at 2, and Angela Clark, the Deputy Chief Information Officer, see id. Between 2008 and October 4, 2012, the plaintiff worked as an Information Technology Help Desk Manager, see Compl. ¶ 8; see also Pl.'s Facts ¶ 1, and on October 5, 2012, Wiegmann and Clark reassigned the plaintiff “to a Project Management [p]osition under the Project Management Branch, ” Pl.'s Facts ¶¶ 12, 14, as part of a “reorganiz[ation of] the Help Desk and other IT support functions, ” Compl. ¶ 19. As a result of this reassignment, and because of various discriminatory remarks purportedly made by Wiegmann and Clark, see Pl.'s Facts ¶¶ 12-18, 25-48 (discussing negative remarks about individuals who speak with accents such as the plaintiff), the plaintiff, in February 2013, filed a complaint with the Office of Compliance, primarily challenging his reassignment, see Compl. ¶ 27; see also Pl.'s Facts ¶ 15.

         On June 7, 2013, a hearing officer “conclude[d] that [the] plaintiff [was] entitled to judgment on [his] claim of discrimination based on national origin resulting” from the Help Desk Manager position. Pl.'s Opp'n, Exhibit (“Ex.”) 8 (Office of Compliance Final Order (“OOC Final Order”)) at 2. Specifically, the hearing officer concluded that the record indicated that the reorganization “was [not] an established plan at all, other than to move those with foreign accents to less customer-facing positions.” Id., Ex. 8 (OOC Final Order) at 30 (footnote omitted); see also id., Ex. 8 (OOC Final Order) at 26 (noting that several witnesses “testified that they heard Wiegmann repeatedly make disparaging comments aloud in meetings criticizing employees with foreign accents”). Based on this finding, the hearing officer awarded the plaintiff $30, 000 in compensatory damages. See id., Ex. 8 (OOC Final Order) at 37. On July 30, 2014, upon the Architect's petition for a review of the hearing officer's decision, the Board of Directors of the Office of Compliance “affirm[ed] the [h]earing [o]fficer's finding of national origin discrimination.” Id., Ex. 21 (Office of Compliance Decision of the Board of Directors (“BOD Decision”)) at 1.

         Subsequently, in 2014, the plaintiff applied and interviewed for the Branch Chief position in the Department's Production Management Branch. See Def.'s Facts ¶ 2; see also Pl.'s Resp. ¶ 2 (not disputing this fact). This Branch Chief was “responsible for [Architect]-wide support of server and network infrastructure as well as desktop and mobile endpoints, including evaluating and introducing new hardware, software, and technologies.” Pl.'s Opp'n, Ex. 46 (Vacancy Announcement) at 3 (listing primary duties). Clark was the selecting official for the position, and she designated herself, Wiegmann, Peggy Hernandez, and Luis Rosario as panelists who would participate in the interview process. See Pl.'s Facts ¶¶ 105-08. The plaintiff was not selected for this position, see Def.'s Facts ¶ 3; see also Pl.'s Resp. ¶ 3 (not disputing this fact); rather, Clark selected Teddy Tseng, who “is Taiwanese and speaks with an accent, ” Def.'s Facts ¶ 4; see also Pl.'s Resp. ¶ 4 (noting that Tseng “comes from [ ] Taiwan” and not disputing that he speaks with an accent). In 2015, the plaintiff applied and interviewed again for the same position. See Def.'s Facts ¶ 8; see also Pl.'s Resp. ¶ 8 (not disputing this fact). For this selection, Clark remained the selecting official, but she divided the interview process into two rounds. See Def.'s Facts ¶ 9; see also Pl.'s Resp. ¶ 9(h) (not disputing this fact). Clark designated herself, Hernandez, Billy Louis, Lynn Marino, and Gus Kotting as the panelists for the first round of interviews. See Def.'s Facts ¶ 9; Pl.'s Resp. ¶¶ 8-9 (not disputing these facts). The plaintiff was not selected to proceed to the second round of interviews because each of the panelists scored him lower than the top three candidates, one of whom spoke with an accent. See Def.'s Facts ¶¶ 9-10; see also Pl.'s Resp. ¶¶ 9-10 (not disputing these facts).

         On March 5, 2015, the plaintiff filed this civil action, asserting that the Architect denied him the Branch Chief position in 2014 “because of his race, national origin[, ] and/or prior protected activity, ” Compl. ¶ 53, and that Wiegmann's and Clark's alleged discriminatory conduct constituted a hostile work environment, id. ¶ 57. Thereafter, the plaintiff filed a Supplemental Complaint, alleging the same claims based on his second non-selection by the Architect in 2015. See generally Suppl. Compl. At a post-discovery status conference held on November 2, 2016, the plaintiff orally requested to voluntarily dismiss without prejudice his claims of discrimination on the basis of his race and hostile work environment as alleged in his Complaint, which the Court granted. See Min. Order (Nov. 3, 2016). The Architect then moved for summary judgment on the grounds that the plaintiff “does not have sufficient countervailing evidence of [national origin] discrimination or retaliation to require a trial, ” and therefore, “summary judgment in its favor” is warranted. Def.'s Mem. at 1. The plaintiff opposes the Architect's motion, and after briefing on the Architect's motion was complete, the plaintiff filed a Motion for Oral Argument on Defendant's Motion for Summary Judgment or for Leave to File a Sur[-]reply. See generally Pl.'s Mot. This opinion resolves these motions.

         II. STANDARDS OF REVIEW

         A. Motion for Oral Argument/Leave to File a Sur-reply

         It is within the “sole discretion of the [C]ourt” whether to allow an oral argument on a motion for summary judgment. Spark v. Catholic Univ. of Am., 510 F.2d 1277, 1280 (D.C. Cir. 1975); see LCvR7(f). Generally, a court will grant a motion for oral argument only if it requires further evidence or extrapolation to reach a decision on the issue before it. See Spark, 510 F.2d at 1280 (finding that granting the plaintiff's motion for oral argument would not have “produced any further evidence to enable the District Court to find federal jurisdiction”).

         Furthermore, a court will grant a motion for leave to file a sur-reply if “the party making the motion would be unable to contest matters presented to the court for the first time in the opposing party's reply.” Lewis v. Rumsfeld, 154 F.Supp.2d 56, 61 (D.D.C. 2001); see also Ben-Kotel v. Howard Univ., 319 F.3d 532, 536 (D.C. Cir. 2003). In any event, although “sur[-]replies are generally disfavored, ” Kifafi v. Hilton Hotels Ret. Plan, 736 F.Supp.2d 64, 69 (D.D.C. 2010), aff'd, 701 F.3d 718 (D.C. Cir. 2012), “[t]he decision to grant or deny leave to file a sur-reply is committed to the sound discretion of the Court, ” Lu v. Lezell, 45 F.Supp.3d 86, 91 (D.D.C. 2014). If new arguments appear for the first time in a movant's reply, granting leave to file a sur-reply is appropriate. See Flynn v. Veazey Constr. Corp., 310 F.Supp.2d 186, 189 (D.D.C. 2004). But, such arguments “must be truly new.” United States ex rel. Pogue v. Diabetes Treatment Ctrs. of Am., Inc., 238 F.Supp.2d 270, 277 (D.D.C. 2002). “Simply put, a sur[-]reply is not a vehicle for rehashing arguments that have already been raised and briefed by the parties. Were that not true, briefing would become an endless pursuit.” Crummey v. Soc. Sec. Admin., 794 F.Supp.2d 46, 63 (D.D.C. 2011), aff'd, No. 11-5231, 2012 WL 556317 (D.C. Cir. Feb. 6, 2012).

         B. Motion for Summary Judgment

         Before granting a motion for summary judgment pursuant to Federal Rule of Civil Produce 56, a court must find 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). “A fact is material if it ‘might affect the outcome of the suit under the governing law, ' and a dispute about a material fact is genuine ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'” Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

         When ruling on a motion for summary judgment, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255 (citation omitted). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment . . . .” Id. The movant has the burden of demonstrating the absence of a genuine issue of material fact and that the non-moving party “fail[ed] 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).

         In responding to a summary judgment motion, the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Accordingly, the non-moving party must not rely on “mere allegations or denials[, ] . . . but . . . must set forth specific facts showing that there [are] genuine issue[s] for trial.” Anderson, 477 U.S. at 248 (second omission in original) (citation and internal quotation marks omitted). Moreover, “[t]he mere existence of a scintilla of evidence in support of the [non-moving party's] position [is] insufficient” to withstand a motion for summary judgment, but rather “there must be [some] evidence on which the jury could reasonably find for the [non-movant].” Id. at 252.

         III. ANALYSIS

         A. The Plaintiff's Request for Oral Argument or for Leave to File a Sur-reply

         The plaintiff “request[s] oral argument to assist the Court in identifying the numerous instances in which the Architect, ” in its reply in support of its motion, “has either prompted the Court to apply inferences in its own favor, mischaracterized the record, or failed to respond to the substance of [his] factual and legal arguments.” Pl.'s Reply at 1 (asserting that oral argument would promote judicial economy). However, the Court does not find that oral argument is warranted, as “[n]o showing has been made that an oral hearing would . . . produce[] any further evidence to enable the . . . Court to” resolve the Architect's motion for summary judgment. Spark, 510 F.2d at 1280. The plaintiff had ample opportunity, in the form of his opposition, to respond to the Architect's summary judgment motion and argue why the motion should not be granted. And, the Court is able to resolve the motion based solely on the submissions already submitted to it, which the plaintiff acknowledges. See Pl.'s Reply at 1 (“[The p]laintiff agrees that the Court is more than capable of identifying all of the deficiencies in the [Architect's] Reply Brief.”). Therefore, the Court denies this aspect of the plaintiff's motion for oral argument.

         Moreover, in terms of filing a sur-reply, the plaintiff has not identified any issues that were raised for the first time in the Architect's reply. See Robinson v. Detroit News, Inc., 211 F.Supp.2d 101, 113 (D.D.C. 2002) (denying a motion for sur-reply “because the proposed sur[-]reply merely reiterate[d] arguments already made and [did] not add anything new”). Rather, the plaintiff requests leave to file a sur-reply due to the Architect's failure to respond to his statement of material facts and the Architect's reliance on “inferences applied in its favor.” Pl.'s Mot. at 1. Additionally, the plaintiff “wishes to have the opportunity to address [the Architect's] misstatement of record evidence.” Id. at 2. But, none of these reasons serve as a basis for granting a motion for leave to file a sur-reply. See Nix El v. Williams, 174 F.Supp.3d 87, 92 (D.D.C. 2016) (“The purpose of a sur[-]reply is to enable the non-movant to contest matters presented for the first time in the opposing party's reply. A sur[-]reply may not be used simply to correct an ‘alleged mischaracterization, ' or to reiterate arguments already made.” (citations omitted)). Thus, because the plaintiff fails to identify new issues raised in the Architect's reply, the Court denies the plaintiff's request for leave to file a sur-reply.

         B. The Plaintiff's Title VII Claims

         1. Discrimination Based on National Origin

         Title VII protects federal employees from discrimination on the basis of national origin, in addition to other protected classes of federal employees. See 42 U.S.C. § 2000e-16(a) (2012). In the absence of direct evidence of discrimination, as is the situation here, claims of employment discrimination under Title VII are analyzed under the three-part framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Jackson v. Gonzales, 496 F.3d 703, 706 (D.C. Cir. 2007). Under this framework, the plaintiff bears the initial burden of establishing a prima facie case of discrimination by providing proof of “(1) membership in a protected group; (2) qualification for the job in question; (3) an adverse employment action; and (4) circumstances that support an inference of discrimination.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002) (citations omitted). If the plaintiff establishes a prima facie case, “[t]he burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the [adverse employment action].” McDonnell Douglas, 411 U.S. at 802. However, once the employer offers a legitimate, nondiscriminatory justification for its action, “the McDonnell Douglas framework-with its presumptions and burdens-disappears, and the sole remaining issue is discrimination vel non.” Jackson, 496 F.3d at 707 (citation and quotation marks omitted). Thus, after the employer makes such a showing, “the plaintiff must prove that a reasonable jury could infer that the employer's given explanation was pretextual and that this pretext shielded discriminatory motives.” Id. (citation omitted).

         Here, the Architect has asserted a legitimate, non-discriminatory reason for the plaintiff's two non-selections: that the applicants selected “were independently determined to be better qualified than [the plaintiff] by every panelist who interviewed them.” Def.'s Mem. at 1; see Id. at 13-14 (showing tabulations of score sheet results for the plaintiff versus other candidates for the 2014 non-selection); id. at 19-20 (showing a tabulation of score sheet results for the plaintiff versus other candidates for the 2015 non-selection); see also Def.'s Mot., Ex. 24 (Collection of Score Sheets for the selectee - Tseng (2014)); id., Ex. 25 (Collection of Score Sheets for the plaintiff (2014)); id., Ex. 33 (Collection of Score Sheets for the plaintiff (2015)); id., Ex. 34 (Collection of Score Sheets for the selectee - Block (2015)). Thus, because the defendant has asserted a legitimate, non-discriminatory reason for the plaintiff's non-selections, the Court must determine if “the [plaintiff] [has] produced sufficient evidence for a reasonable jury to find that the [defendant's] asserted non-discriminatory reason was not the actual reason and that the [defendant] intentionally discriminated against the [plaintiff] on the basis of . . . [his] national origin[.]” Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). To make this showing, the plaintiff may produce evidence in “any combination of (1) evidence establishing [his] prima facie case; (2) evidence [he] presents to attack the employer's proffered explanation for its actions; and (3) any further evidence of discrimination that may be available to [him], such as independent evidence of discriminatory statements or attitudes on the part of the employer.” Holcomb v. Powell, 433 F.3d 889, 897 (D.C. Cir. 2006).

         In this case, the plaintiff does not present evidence that he was more qualified than the candidates selected for the Branch Chief positions in either 2014 or 2015. See Pl.'s Opp'n at 21 n.5 (“The Architect argues that [the plaintiff] cannot show that he was substantially better qualified than the selected candidates, but [the plaintiff] is not attempting to prove his case under that route.”) Rather, the plaintiff primarily presents evidence of discriminatory animus through disparaging remarks purportedly made by officials involved in the non-selection decisions, see id. at 12-21, and “evidence that the selection process was manipulated to avoid hiring him, ” id. at 21 n.5 (asserting that both selection processes were “inherently unfair to him”); see also Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1295 (D.C. Cir. 1998) (“A plaintiff attacking a qualifications-based explanation is of course not limited to comparing his qualifications against those of the successful candidate[s]. The plaintiff can instead seek to expose other flaws in the employer's explanation.”). The plaintiff also alleges that the hiring of Tseng in 2014 and the advancement of one candidate who spoke with an accent in 2015 was a “ploy” to conceal discriminatory animus, see Pl.'s Opp'n at 41, and that there are adverse inferences that can be drawn against the Architect in his favor, see id. at 44. The Court will address in turn each of the plaintiff's proffers of evidence that, according to him, demonstrates that the Architect's qualifications-based explanation for his non-selections is pretext.

         a. Evidence of Discriminatory Animus Through Disparaging Remarks

         Initially, to demonstrate that the Architect's qualifications-based explanations are not the true reasons for his non-selections in both 2014 and 2015, and that they were actually motivated by discriminatory animus based on his national origin, the plaintiff identifies a number of disparaging remarks allegedly made by various officials involved in the non-selection decisions. See Pl.'s Opp'n at 13-21. Specifically, the plaintiff relies on comments purportedly made by Wiegmann, Clark, and Peggy Hernandez in 2012 regarding people with accents in the Department, specifically, “the need for people in the [Department] to speak clearly in English[, ] and derogatory comments about people in the [Department] being from different countries.” Id. at 13; see also id. at 15 (claiming that “three out of the four panelists from the first selection had made direct statements indicating their discriminatory animus against people who spoke with strong foreign accents”); id. at 16 (contending that two individuals in each interview round for the 2015 selection “had made direct statements of animus about people with accents”). The plaintiff also asserts that, in 2011, Wiegmann requested that the plaintiff refrain from giving him “in-person briefings on the Help Desk performance . . . because ([Wiegmann] claimed) he could not understand [the plaintiff] when [the plaintiff] spoke, ” id. at 13, and that Clark “stat[ed] that she would not have interviewed [the plaintiff] for the position (during either of the two selections) but for the fact that she was required to do so by [the Architect's] personnel rule, ” id. at 14.[2]

         A plaintiff may “avoid summary judgment by presenting . . . evidence, direct or circumstantial, that permits an inference of discrimination. Examples of such evidence include discriminatory statements by the employer, or other attitudes suggesting the decision maker harbors discriminatory animus.” Holcomb, 433 F.3d at 899 (internal citations omitted). However, the alleged discriminatory statements cannot include mere “stray remarks” that have no bearing on the adverse action being challenged. Morris v. McCarthy, 825 F.3d 658, 669 (D.C. Cir. 2016) (“[I]solated [disparaging] remark[s] unrelated to the relevant employment decision [cannot], without more, permit a jury to infer discrimination.”); see also Simms v. U.S. Gov't Printing Office, 87 F.Supp.2d 7, 9 n.2 (D.D.C. 2000) (“‘[S]tray remarks, ' even those made by a supervisor, are insufficient to create a triable issue of discrimination where . . . they are unrelated to an employment decision involving the plaintiff.”). Therefore, “[i]n order for [a p]laintiff to establish discriminatory animus in an adverse employment decision . . . there must be a clear nexus between the ‘stray workplace remark[s]' and the adverse action[s].” Ajisefinni v. KPMG L.L.P., 17 F.Supp.3d 28, 44 (D.D.C. 2014) (quoting Kalekiristos v. CTF Hotel Mgmt. Corp., 958 F.Supp. 641, 666 (D.D.C. 1997)). This nexus can be demonstrated “if the remark[s] w[ere] made by an individual with the power to influence [the p]laintiff's [non-selections], and the remark[s] w[ere] temporally close in time to the [non-selections].” Id.

         For several reasons, the plaintiff's evidence of disparaging comments allegedly made by Wiegmann, Clark, and Hernandez in 2012, see Pl.'s Opp'n at 12-21, is not sufficient to show that the Architect's qualifications-based explanation is pretext or that the plaintiff's non-selections in 2014 and 2015 were actually motivated by discriminatory animus. Contrary to the plaintiff's position, see Pl.'s Opp'n at 15, these alleged disparaging comments, accepted as true as required at this stage of litigation, see Anderson, 477 U.S. at 255, do not facially give rise to an inference of national original discrimination. Rather, these comments suggest that Wiegmann and Clark sought to address concerns regarding effective communication within the Department, which, as the Architect correctly notes, is a legitimate concern by an employer assessing a skill reasonably related to an employee's job performance.[3]See Def.'s Reply at 6 (citing cases); see also Fragante v. City & Cty. of Honolulu, 888 F.2d 591, 596-97 (9th Cir. 1989) (“An adverse employment decision may be predicated upon an individual's accent when- but only when-it interferes materially with job performance. There is nothing ...


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