Iyoha v. Architect of Capitol

          Argued September 20, 2018

          Appeal from the United States District Court for the District of Columbia (No. 1:15-cv-00324)

          Leslie D. Alderman III argued the cause and filed the briefs for appellant.

          Johnny H. Walker, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Jessie K. Liu, U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

          Before: Garland, Chief Judge, and Rogers and Griffith, Circuit Judges.

          OPINION

          Griffith, Circuit Judge.

         In 2012, the Congressional Office of Compliance determined that the Architect of the Capitol unlawfully transferred appellant Sunday Iyoha because of his national origin. Iyoha now claims that the same unlawful discrimination was at play when he was denied promotions in 2014 and 2015. The district court granted summary judgment for the Architect, but we reverse in part because a reasonable jury could agree with Iyoha on his discrimination claims. We affirm the grant of summary judgment against his retaliation claims.

         I

         Sunday Iyoha was born in Lagos, Nigeria. He grew up speaking Eshan, his parents' native language, but learned English in primary school and moved to the United States at age 29, in 1995. He has worked in the Architect's Information Technology Division (ITD) since 2008.

         In 2011, Jay Wiegmann was hired as the Architect's Chief Information Officer (CIO). Shortly after taking over, Wiegmann stopped taking in-person briefings from Iyoha, and allegedly told his staff at a meeting that he was glad that Iyoha had decided to communicate with him using email because he could not understand Iyoha's foreign accent when he spoke. An employee testified that Wiegmann commented multiple times about communication problems purportedly caused by employees who "don't speak English as their first language," asking "what can you expect?" J.A. 344-45. When someone raised a concern about these comments, he replied "So sue me. We can't have people like that as our first-line communicators." Id. Wiegmann denies making these and other comments about people with foreign accents. Because this appeal arises from a grant of summary judgment for the Architect, however, we ask only whether "viewing the evidence in the light most favorable to [Iyoha] and drawing all reasonable inferences accordingly," "no reasonable jury could find in [Iyoha's] favor." Steele v. Mattis, 899 F.3d 943, 947 (D.C. Cir. 2018). We therefore resolve "he said, she said" evidentiary disputes in favor of the non-movant, and assume for the purposes of this appeal "that [the employer] made those statements." Id. at 950.

         In October 2012, Iyoha was reassigned out of a position in the Production Management Branch of the ITD to a position with the same pay and at the same level in a different branch. The move was part of a larger realignment in the division, and several other Architect employees and contract workers who spoke with foreign accents were removed from positions that involved dealing with customers.

         Relying largely on Wiegmann's comments, Iyoha filed a complaint with the Office of Compliance alleging that he was reassigned because of bias against people with foreign accents. A hearing officer ruled in Iyoha's favor, finding that the reorganization "was [not] an established plan at all, other than to move those with foreign accents to less customer-facing positions," and concluded "that the circumstances of [Iyoha's] reassignment create an inference of discrimination." J.A. 315, 311. The hearing officer ordered the Architect to pay Iyoha $30, 000 in damages. Wiegmann was not disciplined or reprimanded for his role in the discriminatory reassignment, and his comments about Iyoha's accent continued. In 2014, Wiegmann called Iyoha into his office to test his phone's voice recognition software and exclaimed, "Oh it understands [Iyoha's] accent," and later mentioned at a meeting with other staff that the software "even recognizes [Iyoha's] accent." J.A. 1099.

         In April 2014, the Architect invited applications for the position of Branch Chief of the Production Management Branch, which had been vacant since the 2012 realignment, when an employee with a foreign accent was removed from the position. Iyoha and seventy-five other candidates applied. Angela Clark, the Deputy CIO, reviewed their resumes and selected ten, including Iyoha, for in-person interviews. Clark told Wiegmann at the time that she would not have selected Iyoha for an interview based on his resume, but did so because of an agency hiring policy that required her to interview all internal candidates when fewer than five apply, as was the case here.

         Each interview was conducted by a panel of four people selected by Clark: herself, Wiegmann, and two members of other divisions that interacted regularly with the ITD, Peggy Hernandez and Luis Rosario. Each candidate was asked the same set of questions, and the panelists scored their responses. After some of the interviews, Hernandez and Rosario, who were not technical experts, asked Wiegmann and Clark whether a particular answer requiring technical knowledge was "strong" or not. J.A. 2137. Out of the ten candidates, Iyoha was scored ninth by Clark, seventh by Wiegmann, and fifth by Rosario and Hernandez. The highest scoring candidate was Teddy Tseng, who is from Taiwan and speaks English with an accent. Clark made the decision to offer Tseng the Branch Chief position in August, and he began work in October. Iyoha filed complaints with the Office of Compliance and later in the district court alleging he was not selected because of his national origin and as retaliation for his previous, substantiated, complaint of discrimination.

         Meanwhile, Clark and others began having concerns about Tseng's management abilities, and after only ten months in the job Tseng opted to resign rather than be removed. The Architect advertised for the Branch Chief position once more, and Iyoha applied again. This time, the interviews were conducted by a five-member panel that did not include Wiegmann. Two panelists scored the candidate ultimately selected for the job, Eugene Block, the highest, and the other three ranked candidate D.G. highest. Candidate A.M., who speaks with a foreign accent, was either the second or third choice of all five panelists.

         Block, D.G., and A.M. were invited to a second interview, this time by a panel made up of Clark, Wiegmann, and Wiegmann's immediate supervisor, Doug Ferguson. D.G. was offered the position but declined. Block was then offered the position, and he accepted.

         Iyoha's lawsuit concerning the Architect's 2014 decision not to promote Iyoha was then pending in district court, and in 2016 Iyoha filed a supplemental complaint alleging that the 2015 decision was also a result of discrimination and retaliation. After discovery, the district court granted the Architect's motion for summary judgment against all ...