MEMORANDUM OPINION
ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE.
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 ...