ISABEL COTTRELL, AN ASSOCIATE AT THE FEDERAL PRACTICE GROUP, AUTHORS A COLUMN FOR FEDSMITH ON LATEST HAPPENINGS AT ARCHITECT OF THE CAPITOL
Posted By fedpractice || 10-Jul-2019
July 10, 2019
It has been a rough past few weeks for the Architect of the Capitol, an agency in the legislative branch responsible for the maintenance of the Capitol and its grounds, as the U.S. Court of Appeals for the D.C. Circuit issued two decisions sending discrimination complaints back to the district court for trials, reversing the district court’s decisions granting summary judgment.
In Mayorga v. Architect of the Capitol, No. 18-5045 (D.C. Cir. June 28, 2019), the D.C. Circuit considered a non-selection case brought under Title VII, and held that a plaintiff in is not limited to comparing his qualifications against the successful applicant to show he was treated discriminatorily. Instead, he can proffer evidence that the selecting officials knowingly understated his qualifications, thereby tainting the process, to meet his burden. The case also included a dispute over evidence the D.C. Circuit found relevant, including whether the selecting official called the plaintiff offensive names (“Caviar” instead of Javier, for example) and mocked the plaintiff’s accent.
Iyoha v. Architect of the Capitol, No. 17-5252 (D.C. Cir. July 2, 2019) also involved a non-selection claim under Title VII. Here, the Chief Information Officer (CIO), who made negative comments about the plaintiff’s accent and had been a target of a prior EEO complaint filed by the plaintiff, was on the selection panel for plaintiff’s promotion. This CIO’s discriminatory statements included that he was “glad” the plaintiff communicated with him using email “because he could not understand [the plaintiff’s] foreign accent when he spoke;” and complained about communication problems caused by employees who “don’t speak English as their first language,” asking “what can you expect?” When someone complained about these comments, he replied “So sue me. We can’t have people like that as our first-line communicators.” The plaintiff had previously filed a discrimination complaint against this CIO over a reassignment, and the hearing officer found in favor of the plaintiff, stating that the realignment “was [not] an established plan at all, other than to move those with foreign accents to less customer-facing positions,” and “that the circumstances of [plaintiff’s] reassignment create an inference of discrimination” and ordered the Agency to pay damages. Despite this finding, the CIO continued to make discriminatory comments towards the plaintiff, for instance by calling the plaintiff into his office to test his phone’s voice recognition software and exclaiming, “Oh it understands [the plaintiff’s] accent,” and later mentioning at a meeting with other staff that the software “even recognizes [the plaintiff’s] accent.”
In its decision in Iyoha, the D.C. Circuit explained that the district court erred in finding that these comments “do not facially give rise to an inference of national origin discrimination,” but rather suggest only that “[the CIO] . . . sought to address concerns regarding effective communication within the [division].”
The D.C. Circuit held the district court was obligated to “view the record in the light most favorable to [the plaintiff],” and that a reasonable jury could find that these comments were evidence of bias. More, the D.C. Circuit held the district court improperly concluded there was no connection between the CIO’s 2012 statements and the challenged 2014 non-selection given the two-year gap in time, explaining that while a remark removed in time from the challenged employment action “carries less weight than one made at the time of the [employment action], it is nonetheless probative evidence of a supervisor’s discriminatory attitude, at least when it is targeted directly at the plaintiff or is one of a pattern of similar remarks.” Lastly, the D.C. Circuit concluded that the CIO’s presence on the interview panel is strong evidence that the selection process was not “fairly administered” and thus a jury could certainly conclude that the Architect failed to provide a “fairly administered selection process.”
Both cases should now proceed to trial, unless the parties are able to reach a settlement in light of this development.