United States Court of Appeals, District of Columbia Circuit
September 20, 2018
from the United States District Court for the District of
Columbia (No. 1:15-cv-00324)
D. Alderman III argued the cause and filed the briefs for
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,
Griffith, Circuit Judge.
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.
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.
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.
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.
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.
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
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
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
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.
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 ...