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Mayorga v. Ayers

United States District Court, District of Columbia

December 7, 2017



          Beryl A. Howell, Chief Judge.

         The plaintiff, Javier A. Mayorga, a Hispanic man of Nicaraguan origin currently employed as an Electronic Industrial Controls Mechanic in the Office of the Architect of the Capitol (“AOC”), initiated this action against defendant Stephen T. Ayers, the Architect of the Capitol, in his official capacity, alleging “employment discrimination based on his race and national origin” in violation of Title IV of the Congressional Accountability Act of 1995 (“CAA”), 2 U.S.C. § 1311, 1317(a)(1), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Complaint, ECF No. 1 (“Compl.”) ¶ 1.[1] In the summer of 2014, the plaintiff applied for a promotion within AOC, but two Caucasian individuals were selected instead of him. The plaintiff claims that although he was the most qualified applicant for this position, he was not selected because of his race and national origin. Compl. ¶ 8. After the plaintiff's request for counseling with AOC's Office of Compliance and his subsequent request for mediation ended without resolution, he filed this lawsuit. Pending before the Court is the defendant's motion for summary judgment, contending that AOC had legitimate, nondiscriminatory reasons for selecting two individuals instead of the plaintiff and that the plaintiff cannot show that AOC's reasons for this selection were pretext for discrimination. For the reasons explained below, the defendant's motion is granted.

         I. BACKGROUND

         A. Factual Background

         The plaintiff moved to the United States from Nicaragua at age twenty-five to avoid political turmoil. Def.'s Mot. Summ. J. (“Def.'s Mot.”), Ex. 2, Deposition of Javier Mayorga (“Pl.'s Dep.”) at 7-8, ECF No. 16-3.[2] In Nicaragua, he completed high school and some university coursework in electrical engineering and also worked for a refrigeration company. Id. at 6-8. After coming to the United States, the plaintiff worked in heating and air conditioning services for nearly nine years at Permanent Solutions Industries before leaving his job to attend Stratford University, where he earned an associate's degree in “Network.” Pl.'s Dep. at 10-13, ECF No. 18-2; Def.'s Mot., Ex. 21, Resume of Javier A. Mayorga (“Pl.'s Resume”) at 4, ECF No. 16-23. While taking classes at Stratford, the plaintiff worked for the appliance company Maytag, first as a service technician and then as a store manager. Pl.'s Dep. at 13, ECF No. 18-2; Pl.'s Resume at 3. After finishing his degree in 2003, he worked as a service technician for TK Services, Inc., for five months, where he was responsible for installing and troubleshooting the heating, ventilation, and air conditioning (“HVAC”) equipment. Pl.'s Dep. at 17, ECF No. 18-2; Pl.'s Resume at 5. He then took a job at Advanced Power Control, where he worked for two and a half years as a service technician installing and troubleshooting HVAC equipment, communications equipment, transformers, and pressure sensors, among other responsibilities. Pl.'s Resume at 3.

         In late 2007 the plaintiff joined AOC, an independent agency within the legislative branch responsible for maintaining and operating government buildings and landmarks including the United States Capitol, the Capitol Visitor Center, the Supreme Court, and the United States Botanic Garden. Def.'s Mot., Ex. 2, Vacancy Announcement (“Vacancy Announcement”) at 2, ECF No. 16-4. The plaintiff was hired as an Electronic Industrial Controls Mechanic at the Wage Grade (“WG”) 12 level, earning approximately $32 per hour. Compl. ¶¶ 3, 6; Pl.'s Dep. at 26, ECF No. 18-2. In this position, the plaintiff primarily works at the Capitol Visitor Center and is responsible for working on and maintaining the building's network operations and building automation system (BAS), which includes HVAC, plumbing, lighting, elevators, electrical monitoring, generators, utility metering, carbon monoxide and nitrogen oxide monitoring, and water fountains. Pl.'s Dep. at 30-32, ECF No. 18-2; Def.'s Reply Supp. Mot. Summ. J. (“Def.'s Reply”), Ex. 26, Declaration of Scott Bieber (“Bieber Decl.”) ¶ 3, ECF No. 20-2. The plaintiff's supervisors rated his performance as “Outstanding” on his two prior performance reviews, and he has received numerous awards over the past several years. Compl. ¶ 6.

         In 2014, the plaintiff responded to a vacancy announcement advertising multiple openings for an Electronics Technician in the Energy Management Control Systems (“EMCS”) Branch of the Planning and Project Management Office within AOC, listed at the GS-10 and GS-11 salary levels. Def.'s Mot., Ex. 1, Def.'s Statement of Material Facts (“Def.'s SMF”) ¶ 4 (undisputed); Vacancy Announcement at 2-3.[3] The EMCS Branch is a central office that performs maintenance and operations services for the various jurisdictions within the AOC's purview, including the House Superintendent's Office, the Senate Superintendent's Office, and the Capitol Superintendent's Office. Def.'s SMF ¶ 4 (undisputed). The people hired for the vacancies would be responsible for installing, maintaining, troubleshooting, diagnosing, programming, and operating the AOC's building automation system network (“BASnet”), direct digital control (“DDC”) systems, new networks in the buildings, Ethernet routers, network switches, and fiber-optic cabling in the buildings, among other responsibilities. Vacancy Announcement at 3.

         Between August 20, 2014, and September 10, 2014, candidates applied for the advertised positions by submitting their resumes and answering an online questionnaire about their knowledge, skills, and abilities. Def.'s SMF ¶¶ 5-6 (¶ 5 disputed as to other facts; ¶ 6 undisputed). A Human Resources Specialist in AOC's Employment and Classifications Branch reviewed the applications and compiled a list of thirty-five candidates, including the plaintiff, who had applied and were eligible for the GS-11 level position and another list of thirty-four candidates, not including the plaintiff, who had applied and were eligible for the GS-10 level position. Id. ¶ 6. The two lists had a substantial overlap of candidates. Def.'s Mot., Ex. 3, Certificates of Eligible Candidates (“Candidate List”) at 2-4, ECF No. 16-5. These lists were forwarded to the selecting official, Scott Bieber, a Caucasian man who is a Supervisory Electronics Technician overseeing the EMCS Branch of the AOC. Def.'s SMF ¶ 7 (undisputed); Def.'s Mot., Ex. 4, Deposition of Scott Lynn Bieber (“Bieber Dep.”) at 4, ECF No. 16-6. Bieber reviewed the candidates and selected six, including the plaintiff, to be interviewed by a three-member selection panel. Def.'s SMF ¶ 9 (disputed as to other facts). In reviewing the candidates' applications, Bieber created a spreadsheet in which he marked each candidate's experience, including whether the candidate was employed by AOC; whether the candidate had experience with BAS, automated logic controls, network, and HVAC; and whether the candidate had worked with contractors including Alerton and Reliable. Pl.'s Opp'n Def.'s Mot. Summ. J. (“Pl.'s Opp'n), Ex. 3, Bieber Preinterview Spreadsheet (“Bieber Spreadsheet”) at 1-2, ECF No. 18-3. Bieber testified that he looked only at the candidates' resumes to compile this spreadsheet. Bieber Dep. at 19, ECF No. 16-6.

         Bieber asked Clifford Wallace, a Caucasian man who is a GS-12 Electronic Equipment Controls Mechanic in the EMCS Branch, and Terry Watson, a Caucasian woman who is a GS-14 Energy Program Manager within the Planning and Project Management Division, to serve with him on the selection committee. Def.'s SMF ¶¶ 10-11 (undisputed); Pl.'s Opp'n, Ex. 5, Deposition of Clifford Martin Wallace (“Wallace Dep.”) at 4-5, ECF No. 18-5; Def.'s Mot., Ex. 6, Deposition of Terry Watson (“Watson Dep.”) at 5-7, ECF No. 16-8. The plaintiff claims that “[t]ypically, an impartial member from a department outside the vacancy is included on such a selection panel, but Bieber did not include such a person.” Pl.'s Opp'n, Ex. 10, Pl.'s Responses to Def.'s Statement of Material Facts (“Pl.'s SMF”) ¶ 9, ECF 18-10. Bieber compiled a list of interview questions and provided that list in advance to each of the interviewers. Wallace Dep. at 16-18, ECF No. 16-7. Some of the questions were general, asking the candidates to describe their “applicable education, training, and experience, ” their “areas/systems of expertise, ” and why they wanted to join EMCS, while other questions were more specific, asking about the candidates' knowledge of and experience with “DDC systems and equipment, ” “BACnet systems and equipment, ” “DDC networks and network equipment, ” and “Fiber Optic and Ethernet Cable/Networks.” Def.'s Mot., Ex. 7, Bieber Notes re: Mayorga Interview (“Bieber Notes”) at 2-3, ECF No. 16-9. Watson also asked Bieber to add a question about project management experience, which Bieber agreed to do. Watson Dep. at 34-35, ECF No. 16-8.

         Bieber took the lead in questioning the candidates and read the same questions, verbatim, to each candidate. Bieber Dep. at 37-38, ECF No. 16-6; Wallace Dep. at 16-21, ECF No. 16-7; Watson Dep. at 17, ECF No. 16-8. Watson then asked her question about project management. Watson Dep. at 34-35, ECF No. 16-8. The panelists would occasionally ask follow-up questions to clarify a candidate's answer, although the plaintiff avers that none of the interviewers asked him any follow-up questions. Id. at 17; Pl.'s SMF at ¶ 13. According to the plaintiff, Wallace did not ask him any questions during his interview. Pl.'s Dep. at 82-83, ECF No. 18-2. When the plaintiff asked Wallace why he had not asked any questions, Wallace told the plaintiff that he was “really doing a good job.” Id. The plaintiff also alleges that during his interview, the interviewers “did not look at him when he spoke and were instead ruffling their papers, ” although he acknowledges that they were taking notes during the interview. Pl.'s SMF ¶ 13; Pl.'s Dep. at 83-84, ECF No. 18-2.

         After completing the interviews, the panel convened, reviewed their notes from the interviews, and discussed the strengths and weaknesses of each candidate. Bieber Dep. at 21, ECF No. 16-6. Bieber testified that in filling the positions, he was looking for “two different skill sets” since he had two positions to fill: he was hoping for one position to be “network related” and for the other to be focused on “graphics and program running jobs, coordinat[ing] with contractors.” Id. at 19. He communicated this desire to the other two members of the selection committee. See Id. at 21; Wallace Dep. at 8, ECF No. 16-7; Watson Dep. at 12-13, ECF No. 18-6. In response to the plaintiff's question about whether the panel was looking for project management skills, Wallace stated that they were “[n]ot really” looking for that skill but “it would help” with the position. Wallace Dep. at 8, ECF No. 16-7. Similarly, Watson testified that, regarding network experience, it would be “a bonus if someone has that particular skill set.” Watson Dep. at 13, ECF No. 18-6. After reviewing their notes and the candidates' materials, the committee decided, by consensus, that Ed Williams, John Coulter, and Alan Gantt would go on to second-round interviews. Bieber Dep. at 21, ECF No. 16-6; Wallace Dep. at 32-33, ECF No. 16-7; Watson Dep. at 11, ECF No. 16-8. The members of the panel each testified that Williams and Coulter, both Caucasian men, occupied the top two positions, while the plaintiff fell toward the bottom of the list of interviewed candidates. Bieber Dep. at 21-23, ECF No. 16-6; Wallace Dep. at 32-33, ECF No. 16-7; Watson Dep. at 11-12, ECF No. 16-8.

         Bieber and his supervisor, Doug Helmann, then conducted second-round interviews with Williams, Coulter, and Gantt. Def.'s SMF ¶ 15 (disputed as to other facts). Helmann's supervisor, Anna Franz, had asked him to meet with the candidates to ensure that he was comfortable with the panel's recommendation. Id.; Def.'s Mot., Ex. 10, Deposition of Doug Helmann (“Helmann Dep.”) at 13-15, 20-21, ECF No. 16-12. After Helmann gave his approval for the selection of Williams and Coulter, the Employment and Classifications Branch electronically transmitted Bieber's decision to Franz for her concurrence, and those two men were hired. Def.'s SMF ¶ 16 (undisputed); Helmann Dep. at 20-21, ECF No. 16-12; Def.'s Mot., Ex. 12, Deposition of Anna Franz (“Franz Dep.”) at 12-13, 29-32, ECF No. 16-14. According to Bieber, who supervises Williams and Coulter, Williams occupies the position focused on graphics and programming while Coulter occupies the network-oriented position. Bieber Dep. at 20, ECF No. 16-6.

         On November 28, 2014, the plaintiff learned that he had not been selected for the available positions. Def.'s SMF ¶ 24 (undisputed); Compl. ¶ 8. The plaintiff subsequently sought counseling with the AOC's Office of Compliance Certification, which ended without resolution on April 21, 2015. Def.'s SMF ¶ 24 (undisputed); Def.'s Mot., Ex. 24, Office of Compliance Certification (“Compliance Certification”) at 2, ECF No. 16-26. The plaintiff then sought mediation on May 5, 2015, which ended without resolution on July 6, 2015. Def.'s SMF ¶ 24 (undisputed).

         On October 1, 2015, the plaintiff filed the instant lawsuit, alleging that he was the victim of racial and national origin discrimination when he was passed over for this position. Compl. ¶ 11. The plaintiff claims that Bieber “has a long history of preferring employees who, like him, are white and speak without a foreign accent.” Pl.'s Opp'n at 2. According to the plaintiff, Bieber “has specifically displayed a distaste for Mr. Mayorga's hispanic origin, treating him with disdain and making fun of his hispanic-sounding name by regularly calling him ‘caviar, ' to his face.” Id. at 2-3. Bieber also allegedly “mocks and interrupts” the plaintiff when he tries to speak in meetings, “tells him to his face that he needs to speak better English, ” “laughs at him, ” and “has passed him over for promotion three times.” Id. at 3. The plaintiff testified that an HVAC technician at AOC told him that he “better watch your back with” Wallace and Bieber, because “they don't like you.” Pl.'s Dep. at 39-40, ECF No. 18-2. One of the plaintiff's coworkers, Hector Molina, claims that he heard Williams, Wallace, and AOC employee Mark Parker “disparage Mr. Mayorga because of his Hispanic origin” by “intentionally mispronounc[ing] his name and tell[ing] him he needs to better his English.” Pl.'s Opp'n, Ex. 8, Statement of Hector Molina (“Molina Statement”) at 1, ECF No. 18-8. In their depositions, Bieber, Coulter, Wallace, and Williams all said that they had never heard anyone refer to the plaintiff as “Caviar” and denied that they had made fun of his accent. Bieber Dep. at 13, ECF No. 18-1; Deposition of John Coulter (“Coulter Dep.”) at 9-10, ECF No. 16-11; Wallace Dep. at 15, ECF No. 16-7; Pl.'s Opp'n, Ex. 4, Deposition of Edward Williams Jr. (“Williams Dep.”) at 14-15, ECF No. 18-4.

         B. The Candidates' Qualifications for the Vacant Position

         In light of the plaintiff's claim that he “was the most qualified applicant for the position but was not selected because of his race and national origin, ” Compl. ¶ 8, Williams's and Coulter's qualifications are reviewed in some detail. At the time of his selection, Williams was already working for Bieber as an Electronic Industrial Controls Mechanic at the WG-12 level and had been in that position for four years. Def.'s Mot., Ex. 13, Resume of Edward L. Williams Jr. (“Williams Resume”) at 2, ECF No. 16-15; Bieber Dep. at 7, ECF No. 16-6. In that role, he designed and installed graphics and programs for the BASnet system, operated and troubleshooted the BASnet, tested and troubleshooted fiber-optic cables, operated and monitored LAN Gate routers and LAN Gate Ethernet routers, designed and installed new networks, installed Ethernet cabling, and installed new DDC systems, among many other tasks. Williams Resume at 2. Williams also had experience with the AOC's controls systems and equipment from his work at the Capitol and the Supreme Court. Williams Dep. at 6-7, ECF No. 16-10. Bieber's spreadsheet, in which he noted each candidate's experience, indicates that Williams had experience with BAS, automated logic controls, the contractors Alerton and Reliable, network, and HVAC. Bieber Spreadsheet at 2. Before becoming an Electronic Industrial Controls Mechanic, Williams worked for ten years as an HVAC Mechanic at the AOC. Williams Resume at 2-3. Williams is a certified fiber-optics installer and has taken numerous courses in automated logic operation and troubleshooting. Id. at 3. Williams does not have a college degree. Id.

         Bieber testified that Williams was his top choice because “he had been doing the job of the GS-11. He was running the jobs, writing the programs, creating the graphics. Of course, he ran the fiber already previously. He had fiber certifications. He's ran a lot of Ethernet cabling.” Bieber Dep. at 14, ECF No. 18-1. According to Bieber, Williams also had project management experience, and when asked if this was a “big reason” that Williams was selected, Bieber said it was. Id. at 20. Williams later testified that his project management experience was in flooring, rather than in the field in which he currently works. Williams Dep. at 6, ECF No. 18-4. Wallace testified that Williams “had everything that [they] were looking for. He was fiber certified. He had done multiple projects in building automation.” Wallace Dep. at 8-9, ECF No. 16-7. In Wallace's view, they “couldn't ask for more” and “there's no doubt after the interview that he stood out.” Id. at 34. Watson agreed, testifying that Williams “stood out because he had a fairly detailed resume, ” “had specific examples, ” “had good controls knowledge, ” and “also had HVAC experience.” Watson Dep. at 15-16, ECF No. 18-6.

         At the time of his selection, Coulter was an Electronics Mechanic with AOC and had worked in that position for approximately four years. Def.'s Mot., Ex. 17, Resume of John C. Coulter (“Coulter Resume”) at 2, ECF No. 16-19. In that job, he was responsible for installing, troubleshooting, maintaining, and operating systems including the BASnet, as well as configuring and maintaining Cisco LAN Gate Routers, switches, and hubs. Id. He was also responsible for installing, testing, and certifying fiber-optic cables and equipment. Id. Before joining AOC, he worked as a Cable Splicing Technician for Verizon Communications for five years. Id. He has certificates in Cisco networks, HVAC, electronics, low-voltage electrical work, and fiber-optic installation. Id. at 3. Bieber's spreadsheet indicates that Coulter had experience with BAS, network, and HVAC. Bieber Spreadsheet at 2. Coulter's resume indicates that he attended Anne Arundel Community College, where he studied “Business Management and Computer Networking.” Id. at 3.

         Bieber testified that Coulter was a top choice because he was, at the time, “maintaining [the] BAS net network infrastructure, so he was doing all the fiber work, help configuring switches, the Cisco switches, installing them, certifying all the fiber.” Bieber Dep. at 8, ECF No. 16-6. Thus, he fulfilled Bieber's goal of hiring someone with particular experience in networks. Id. at 19-20; Wallace Dep. at 33-34, ECF No. 16-7. In addition, Coulter “had Cisco certifications, courses. He had experience in programming switches and installing them. He worked for Verizon prior, so he was certified in fiber, and did all type of fiber work. He also have [sic] HVAC experience, and he's a low voltage electrician.” Bieber Dep. at 10, ECF No. 16-6. Wallace was “impressed with his network experience, his low voltage license[ ].” Wallace Dep. at 56, ECF No. 16-7. Watson agreed and noted that his “resume was detailed” and “listed specific skill sets, ” and that “during the interview he had specific examples” of his work. Watson Dep. at 18, ECF No. 16-8.

         The plaintiff avers that he was more qualified for this position than either Williams or Coulter. Compl. ¶ 8. In his resume, the plaintiff stated he has “extensive background in the design, Installation, commissioning, repair and general maintenance of the Building Automation Systems (BAS)” and that he is “[s]killed in troubleshooting of digital controls.” Pl.'s Resume at 2. In his then-current position as an Electronic Industrial Controls Mechanic with AOC, he was responsible for checking the BAS server and DDC operation, troubleshooting network communication, training the service department on the BAS, and troubleshooting the BAS. Id. at 2. His resume also describes his experience as an HVAC service technician with Advance Power Control and TK Services, his experience with Maytag, and his associate's degree in “Network, ” as well as his certificates in DDC programming, electric diagrams and schematics, heat pumps, air conditioning, and refrigeration, among others. Id. at 3-5. Notably, his resume does not mention fiber-optic cables, Ethernet, or BASnet. Bieber's spreadsheet indicates that the plaintiff's resume reflected experience with BAS and Alerton but does not check the boxes for HVAC and network, despite the fact that the plaintiff's resume states his experience with HVAC and his degree in network. Bieber Spreadsheet at 1; Pl.'s Resume at 3-5.

         Bieber later clarified that when he was looking for “network” experience, he meant experience with the BASnet. Bieber Dep. at 11, ECF No. 16-6. He testified that the plaintiff was a lower-ranked candidate in part because he did not have experience with BASnet and did not discuss any such experience on his resume or in his interview. Id. Bieber also noted that the plaintiff had said in his interview that he had “very little” experience with fiber work or Ethernet cabling and that he “did not have any Cisco experience.” Id. According to Bieber, the plaintiff “didn't give any details of any of his past experience” during the interview, and when the interviewers “kept asking him for specifics, he kept saying how he's been trained in that” but “wouldn't give [ ] any examples of his experience with systems or equipment.” Id. at 13, 28. When asked about the plaintiff's experience with automated logic controls, Bieber noted that the plaintiff did have that experience but that it was not listed on his resume. Id. at 19. As for the plaintiff's associate's degree in network, Bieber said that he “d[idn't] even think it came out in the interview.” Id. at 27.

         Wallace and Watson reacted similarly to the plaintiff's materials and interview. Wallace testified that the plaintiff “wouldn't give [them] anything to go on. He would just say I've done that in my past job. I've done that.” Wallace Dep. at 13, ECF No. 16-7. In Wallace's view, the plaintiff “didn't stand out” and “compared to the other interviewees he was far down the list.” Id. at 35. Compared to Williams and Coulter, the plaintiff “didn't have all the programming graphics, different things on the system that we do, the networking experience, the Cisco experience, ” and he did not have experience with fiber networks. Id. at 35-37. Watson agreed, noting that “[t]he answers to the resume was [sic] not very detailed” and that the panelists were “not very successful in getting detail for the questions that were ...

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