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Abdul-Baaqiy v. Federal National Mortgage Association

United States District Court, District of Columbia

September 27, 2018




         Saddiq Abdul-Baaqiy brought this case against the Federal National Mortgage Association (Fannie Mae) for race discrimination under the Civil Rights Act of 1866, 42 U.S.C. § 1981, and the District of Columbia Human Rights Act (DCHRA), D.C. Code Ann. § 2-1401 et seq. After a very lengthy and contentious discovery period, Fannie Mae moved for summary judgment on all claims. Despite the extended discovery, the Court finds that Mr. Abdul-Baaqiy has failed to locate and put forth sufficient facts and statistical evidence to survive the motion.

         I. BACKGROUND

         A. Undisputed Material Facts

         At summary judgment, the Court may only consider undisputed material facts. As they did during discovery, the parties have thoroughly litigated the question of undisputed facts.[1] Having reviewed the proposed undisputed facts submitted by Fannie Mae and Mr. Abdul- Baaqiy's objections, the Court finds that the following facts are undisputed and relevant to the underlying claims:[2]

1. Mr. Abdul-Baaqiy is an African-American male. Am. Compl. [Dkt. 13] ¶ 3.
2. Mr. Abdul-Baaqiy worked for Fannie Mae for approximately ten years from 2001 until his termination in April 2011. See Fannie Mae SOF ¶ 1; Abdul-Baaqiy SOF ¶ 1.
3. Mr. Abdul-Baaqiy received his last performance appraisal in February 2011, which covered his employment for year-end 2010. See Fannie Mae SOF ¶ 3; Abdul-Baaqiy SOF ¶ 3; see also Ex. 8, Decl. of Cheryl Sember in Supp. of Def. Fannie Mae's Mot. for Summ. J. (Sember Decl.) [Dkt. 54-16], Abdul-Baaqiy 2010 Year-End Eval. [Dkt. 54-24].
4. In December 2008, Fannie Mae announced changes to its performance management process, which included a mandatory rating curve requiring that managers evaluate employees not just against their individual goals, but also against the performance of their peers. Ex. 1, Sember Decl., Herb's Friday message Dec. 12 2008 [Dkt. 54-17]; see also Ex. D, Decl. of Wendy Lazerson in Supp. of Def. Fannie Mae's Mot. for Summ. J. (Lazerson Decl.) [Dkt. 54-2], Jan. 2014 Abdul-Baaqiy Dep. (Abdul-Baaqiy Dep.) [Dkt. 54-6] at 31-36. The new policy went into effect for the 2008 year-end evaluations. See Herb's Friday message; Abdul-Baaqiy Dep. at 36. In addition, the policy required managers to rate at least 20% of peer employees within each division as “Fully Meets Minus”-the lowest overall performance rating. See Herb's Friday message; Sember Decl. ¶ 4.
5. The updated policy with the mandatory 20% requirement was in effect for the 2008 year-end and 2009 mid-year evaluations. Sember Decl. ¶ 6.
6. In September 2009, the policy was revised again, this time to direct that 5-10% of employees should fall in the “4 - Do Not Meet Expectations” category-the lowest tier. See Ex. 2, Sember Decl., Mike Williams Message to Employees [Dkt. 54-18]; Abdul-Baaqiy Dep. at 54-55. This 2009 policy for distribution of employee ratings among evaluation tiers was a “guidance, not a mandate.” Mike Williams Message to Employees at FMAB000196.
7. Mr. Abdul-Baaqiy received a “Fully Meets” (FM) rating in his 2008 year-end evaluation. Ex. 5, Sember Decl., Abdul-Baaqiy 2008 Year-End Eval. [Dkt. 54-21] at FMAB000484.
8. However, he was rated “Off-Track” in his 2009 mid-year evaluation. Ex. 6, Sember Decl., Abdul-Baaqiy 2009 Mid-Year Eval. [Dkt. 54-22] at FMAB000498.
9. Mr. Steven Gonsalves conducted Mr. Abdul-Baaqiy's 2009 mid-year review. Ex. L, Pl.'s Mem. of P. & A. in Opp'n to Def. Fannie Mae's Mot. for Summ. J. (Opp'n) [Dkt. 55], Dep. of Steven Gonsalves (Gonsalves Dep.) [Dkt. 55-12] at 14. Mr. Gonsalves testified that he rated Mr. Abdul-Baaqiy “Off Track” because Mr. Abdul-Baaqiy “alienated the rest of the team, ” “over sold himself, saying he could handle an assignment, ” and “did not utilize the contractors and his results were not usable.” Id. at 14-15.
10. For 2009 mid-year evaluations, Mr. Gonsalves had been instructed to rate the lowest six performers on his team as “Off Track” to comply with the 20% policy, but not all those six individuals received such low ratings “because of their performance against goals.” Id. at Ex. 1 (FM000561-62). Mr. Abdul-Baaqiy was on the list of the lowest six performers. See id.
11. In his year-end evaluations for both 2009 and 2010, Mr. Abdul-Baaqiy received the same rating of “4 - Do Not Meet Expectations.” Ex. 7, Sember Decl., Abdul-Baaqiy 2009 Year-End Eval. [Dkt. 54-23] at FMAB000504; Ex. 8, Sember Decl., Abdul-Baaqiy 2010 Year-End Eval. [Dkt. 54-24] at FMAB000789.
12. Mr. Gonsalves also issued Mr. Abdul-Baaqiy's 2009 year-end review and testified that Mr. Abdul-Baaqiy received the lowest rating because he was “the poorest performer on [Mr. Gonsalves'] team.” Ex. A, Lazerson Decl., Hearing Tr. [Dkt. 54-3] at 27.
13. Ms. Sarbari Roy completed Mr. Abdul-Baaqiy's 2010 year-end evaluation and testified that Mr. Abdul-Baaqiy received the lowest rating from her because he “was not performing as per expectations on several of his goals and there was [sic] gaps in his performance.” Hearing Tr. at 108; see also Id. at 109-10 (“There was deficiency in the way he performed his duties as in he took more time than necessary to come up to speed and there was [sic] gaps in his understanding of the system and the design and implementation of it.”).
14. Mr. Abdul-Baaqiy also received feedback on his performance in 2009 and 2010 from his managers and peers, which included both positive and negative comments. See Ex. 10, Sember Decl., 2009 Accountability Survey for Saddiq Abdul-Baaqiy [Dkt. 54-26] at FMAB000490-91; Ex. 11, Sember Decl., 2010 Gathering Feedback for Associates for Saddiq Abdul-Baaqiy [Dkt. 54-27]. In Mr. Abdul-Baaqiy's 2009 Accountability Survey he received an overall ranking of 4.39, see Accountability Survey for Saddiq Abdul-Baaqiy at FMAB000486, which put Mr. Abdul-Baaqiy in the bottom 25% of individuals rated by the Accountability Survey. See Ex. 12, Sember Decl., HR Communications Email [Dkt. 54-28] (noting that a score of 4.57 would put an employee that is a “Level 1-5 Individual Contributor[]” in the 25th percentile).
15. In April 2011, Malcolm Blundell, then Director of the Making Home Affordable program, terminated Mr. Abdul-Baaqiy's employment. See Am. Compl. ¶ 20; Answer [Dkt. 14] ¶ 20; see also Ex. C, Opp'n, Dep. of Malcolm J. Blundell (Blundell Dep.) [Dkt. 55-3] at 73. Mr. Blundell testified that he terminated Mr. Abdul-Baaqiy because he had received a poor year-end review for two years (2009 and 2010) and had failed to improve. Blundell Dep. at 72-73, 78-79.

         B. Other Relevant Facts

         Mr. Abdul-Baaqiy stated, for the first time in his August 1, 2017 amended responses to special interrogatory number 14, that in or around early 2010, Mr. Gonsalves referred to him as “boy.” Ex. M, Lazerson Decl., Pl.'s Am. Resps. to Special Interrog. No. 14 [Dkt. 54-15] at 5. Fannie Mae disputes this statement and provides a declaration from Mr. Gonsalves stating that he has no recollection of ever referring to Mr. Abdul-Baaqiy as “boy” and would not use that term to refer to an individual due to its derogatory meaning. Decl. of Steven Gonsalves in Supp. of Def. Fannie Mae's Mot. for Summ. J. [Dkt. 54-29] ¶ 4. However, Fannie Mae also argues in its motion for summary judgment that even accepting Mr. Abdul-Baaqiy's recollection as true, summary judgment is still appropriately granted in Fannie Mae's favor.

         The parties also dispute the extent to which Mr. Abdul-Baaqiy has provided statistical evidence necessary to demonstrate a discriminatory disparate impact due to his race. Mr. Abdul-Baaqiy submitted two exhibits with his opposition to Fannie Mae's motion for summary judgment, which he argues demonstrate disparate impact. See Ex. T, Opp'n, Abdul-Baaqiy Data [Dkt. 55-20]; Ex. U, Opp'n, Abdul-Baaqiy Statistical Analysis [Dkt. 55-21]. Fannie Mae accurately points out that Mr. Abdul-Baaqiy did not provide notice of the retention of an expert or serve any expert reports on Fannie Mae.

         C. Procedural History

         Plaintiff's Amended Complaint included both individual and potential class claims of race discrimination under § 1981 and the DCHRA. See Am. Compl. This Court previously granted summary judgment to Fannie Mae on Mr. Abdul-Baaqiy's claim of disparate treatment under the DCHRA, except as it might relate to his termination. All other allegedly discriminatory acts were outside the relevant DCHRA statute of limitations. See Abdul ...

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