Javier Mayorga v. Christine A. Merdon

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 11, 2019 Decided June 28, 2019

No. 18-5045

JAVIER A. MAYORGA,

APPELLANT

v.

CHRISTINE A. MERDON, ACTING ARCHITECT OF THE CAPITOL,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:15-cv-01604)

Ellen K. Renaud 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: SRINIVASAN and WILKINS, Circuit Judges, and

GINSBURG, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

GINSBURG.

2

GINSBURG, Senior Circuit Judge: Javier Mayorga, an

employee of the Architect of the Capitol (AOC), brought an

action against the Acting Architect of the Capitol, Christine A.

Merdon, in her official capacity. Mayorga alleges the selecting

officials at the AOC denied him a promotion on the basis of his

race and national origin in violation of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e, et seq. The district

court granted summary judgment to the AOC and Mayorga

now appeals.

For the reasons below, we vacate the judgment of the

district court and remand the case for trial, at which Mayorga

will bear the typical burden in this single-motive case to

establish that he would have been selected for the promotion

but for the alleged improper motive.

I. Background

Because we are asked to determine whether Mayorga has

put forth enough evidence at the summary judgment stage to

proceed to trial on his Title VII claim, we set forth the facts in

some detail.

A. Mayorga’s Qualifications

Mayorga emigrated to the United States from Nicaragua in

1990 and, after almost ten years working in electronics, earned

a degree in Network Management from Stratford University.

Upon graduating in 2003, Mayorga worked part-time as a

heating, ventilation, and air conditioning (HVAC) Service

Technician at TK Service before he was hired as a full-time

Control Service Technician at Advanced Power Control, where

Mayorga was to troubleshoot network and electronic problems

for over two years.

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Since 2007 Mayorga has been employed at the AOC, a

federal agency that operates and maintains certain buildings

and historic monuments in the District of Columbia, such as the

Capitol, the Capitol Visitor Center, and the Supreme Court. At

all relevant times during his employment at the AOC, Mayorga

worked primarily on the Capitol and on the Visitor Center as

an Electronic Industrial Controls Mechanic in the Capitol

Superintendent’s Office. In this role, he is responsible for

maintaining the building automation system (BAS), which

comprises multiple systems, including HVAC, lighting,

elevators, electrical monitoring, generators, and utility

metering.

Mayorga has received numerous awards at the AOC and

his work was rated “Outstanding” in his previous two

evaluations. He mentors other employees on building

automation activities and a coworker, Clinton Johnson, has

submitted a sworn declaration that Mayorga is “the most

knowledgeable person in [electronic] Controls and on the BAS

network” that Johnson had met in his ten years working for the

AOC. Johnson also describes Mayorga as the “‘go to guy’ for

almost everyone” and says Mayorga is “regarded as the person

who can figure out a problem” when others cannot, including

problems related to “fiber and switches.”

In 2014 Mayorga responded to an announcement

advertising two openings in different wage grades for

Electronics Technicians in the Energy Management Control

Systems (EMCS) Branch, a central office within the Planning

and Project Management Division that performs maintenance

and operation services for all buildings within the jurisdiction

of the AOC. Either job would be a promotion for Mayorga. Of

relevance here, the job descriptions for the two openings

require the selectees to service both (1) the BAS and (2) the

“AOC Building Automation System Network (BASnet).” The

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selectees also would be responsible for “installing new

network(s) in the buildings” and for installing, terminating, and

testing fiber-optic cabling and for “operating and

troubleshooting BASnet equipment, including but not limited

to” certain ethernet routers and network switches.

A human resources specialist in the AOC compiled a list

of approximately 35 candidates who were considered

minimally qualified for each of the positions and presented the

lists to the selecting official, Scott Bieber, a white male

Supervisory Electronics Technician who oversees the EMCS

branch and who would be the selectees’ direct supervisor.

Bieber subsequently chose two colleagues, Cliff Wallace and

Terry Watson, to participate with him on the selection panel.

Wallace, a white male, is Bieber’s deputy in the EMCS Branch

and refers to himself as the “BAS Net Manager” because he

“manages the BAS for all buildings maintained by” the AOC;

Watson, a white female, manages a separate group within the

Planning and Project Management Division.

Mayorga alleges he has crossed paths with both Bieber and

Wallace throughout their time working together at the AOC –

but it appears these encounters were not wholly collegial:

Mayorga claims that Bieber and Wallace made fun of his

Hispanic first name, regularly calling him “Caviar” instead of

Javier, and that Bieber mocks Mayorga’s accent and interrupts

him in meetings. Bieber and Wallace dispute this account of

their behavior; Bieber denies ever having worked with

Mayorga.

From the list of candidates he received from the human

resources specialist, Bieber selected six, including Mayorga,

for first-round interviews. In advance of the interviews, Bieber

used an Excel spreadsheet to note each candidate’s experience

in seven areas, based upon his or her resume (e.g., “BAS,”

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“NETWORK,” or “HVAC”). Although Mayorga’s resume

showed he had worked as an HVAC service technician for

eight years and that he had a degree in Network Management,

Bieber failed to credit Mayorga in either area. According to

Mayorga, the panelists took notes during his interview but did

not seem “interest[ed] to ask [him] questions” and did not

“make eye contact” with him, instead shuffling their papers.

B. The AOC’s Decision

Of the six candidates interviewed, the panelists chose three

for a second (and final) round of interviews. Mayorga was not

among this group; instead, the panelists ranked Mayorga last of

the six, in part they said because he failed during the interview

to give detailed answers about his experience or skills. Bieber

also claimed Mayorga seemed confused during the interview

about what job he had applied for. Furthermore, Bieber

asserted Mayorga did not have experience with the BASnet

because “[i]t wasn’t stated on his resume or it never came out

in the interview”; he also said Mayorga had “very little”

experience with ethernet and fiber-optic cables, and no

experience with Cisco equipment. We refer to these latter

skills collectively as ethernet/fiber/Cisco.

The AOC ultimately chose Ed Williams and John Coulter,

two white males it claimed were most qualified, to fill the two

positions. Williams would specialize in graphics and

programming, Coulter in the network. 1 Williams was already

working in EMCS as an Electronic Industrial Controls

1

Bieber testified he wanted one candidate to focus upon networking

and another upon graphics and programming, but Mayorga disputes

this. The vacancy announcement indicates the AOC sought two

candidates for similar roles, and Watson later testified networking is

only “an add on, a bonus if someone has [it].”

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Mechanic performing the same duties required of the selectee;

hence the AOC explained he had experience well-suited for his

new role. Coulter was employed in another AOC shop as an

Electronics Mechanic prior to his selection and Bieber

explained Coulter was a top choice because Coulter had

worked in his previous role to “maintain the BASnet network

infrastructure, to do all the fiber work, and to help configure

Cisco switches.” Bieber Deposition at 8 (cleaned up).

C. Procedural History

After exhausting his administrative remedies, Mayorga

sued the Acting Architect of the Capitol in her official capacity,

alleging the AOC violated Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e-2, when it did not select Mayorga for

promotion. See Title IV of the Congressional Accountability

Act of 1995, 2 U.S.C. §§ 1311, 1317(a)(2) (extending the

protections of Title VII to the legislative branch of the federal

government). The district court granted the AOC’s motion for

summary judgment, Mayorga v. Ayers, 281 F. Supp. 3d 182

(2017), holding Mayorga failed to provide sufficient evidence

from which a jury could reasonably find the AOC’s

justifications for not hiring Mayorga were pretextual. Id. at

203. The court subsequently denied Mayorga’s motion to

reconsider its order and Mayorga filed a timely notice of

appeal.

II. Analysis

We review a grant of summary judgment de novo.

Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). In

order to succeed on a motion for summary judgment, the

moving party must show there is “no genuine issue of material

fact.” Id. “A fact is ‘material’ if a dispute over it might affect

the outcome of a suit under governing law; factual disputes that

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are ‘irrelevant or unnecessary’ do not affect the summary

judgment determination.” Id. (citation omitted). “An issue is

‘genuine’ if ‘the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.’” Id. (citation

omitted).

The principal question before us is whether, based upon

Mayorga’s proffered evidence, a jury reasonably could find the

panelists did not select Mayorga for promotion because of his

race or national origin.

A. The Title VII Framework

Title VII permits a plaintiff to establish liability in either

of two ways. Ponce v. Billington, 679 F.3d 840, 844 (D.C. Cir.

2012). He may bring a case pursuant to 42 U.S.C. § 2000e-

2(a)(1) on what we have called a “single-motive” or “pretext”

theory of discrimination, which requires him to prove the

employer’s improper consideration of a protected

characteristic was a but-for cause of an adverse employment

decision. § 2000e-2(a)(1) (prohibiting discrimination in

employment “because of [an] individual’s race, color, religion,

sex, or national origin”); Ponce, 679 F.3d at 844.

Alternatively, a plaintiff may advance a “mixed-motive” theory

of liability pursuant to 42 U.S.C. § 2000e-2(m), which allows

a plaintiff unable to establish but-for causation to prevail as

long as he can show that unlawful discrimination was “a

motivating factor” for the decision. See § 2000e-2(m) (“an

unlawful employment practice is established when ... race,

color, religion, sex, or national origin was a motivating

factor”). Under the latter approach, the plaintiff’s recovery is

limited to declaratory relief, certain fees and costs, and an

injunction not including “admission, reinstatement, hiring, [or]

promotion.” § 2000e-5(g)(2)(B). “Even though we have

described but-for and mixed-motive cases as ‘alternative ways

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of establishing liability,’ a plaintiff may proceed under both

theories simultaneously.” Ponce, 679 F.3d at 845. Mayorga’s

counsel clarified at oral argument that Mayorga brings only a

single-motive claim and hence recognizes he must ultimately

show that, but for the panelists’ consideration of an improper

factor, he would have been promoted.

Under either theory, if the record does not contain direct

evidence that the adverse employment action “was caused by

prohibited discrimination,” then we turn to the burden-shifting

framework of McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802-05 (1973), which requires the plaintiff first to

establish a prima facie case of discrimination; then, the

employer can show its decision was taken for a “legitimate,

nondiscriminatory reason.” Holcomb, 433 F.3d at 895; see also

Ponce, 679 F.3d at 845. Because the AOC does not dispute

that Mayorga has established a prima facie case, and because it

has offered a nondiscriminatory explanation for its decision to

hire the other candidates (i.e., that Mayorga lacked certain

skills in comparison to them), the court’s focus shifts to

resolving the “central question” whether the “employer’s

asserted non-discriminatory reason was not the actual reason.”

Brady v. Office of Sgt. at Arms, U.S. House of Reps., 520 F.3d

490, 494 (D.C. Cir. 2008). Put another way, when an employer

provides a legitimate reason for its decision:

The McDonnell Douglas framework ... disappears, and

the sole remaining issue is discrimination vel non. At

this point, to survive summary judgment the plaintiff

must show that a reasonable jury could conclude from

all of the evidence that the adverse employment

decision was made for a discriminatory reason. By “all

of the evidence,” we mean any combination of

(1) evidence establishing the plaintiff’s prima facie

case; (2) evidence the plaintiff presents to attack the

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employer’s proffered explanation for its actions; and

(3) any further evidence of discrimination that may be

available to the plaintiff, such as independent evidence

of discriminatory statements or attitudes on the part of

the employer.

Holcomb, 433 F.3d at 896-97 (cleaned up). Mayorga relies

upon the latter two kinds of evidence to argue the AOC’s

proffered explanation is pretextual: He (1) challenges its claims

that he lacks BASnet experience and that he was confused

about what role he had applied for and (2) puts forth examples

of discriminatory statements made by two of the panelists prior

to the promotion decision.

B. Qualifications-Related Challenges

Although Mayorga may attack the AOC’s decision not to

hire him by showing he is “significantly better qualified” than

one of the chosen candidates, a plaintiff in a Title VII case is

“expressly not limited to comparing his qualifications against

those of the successful applicant; he may seek to expose other

flaws in the employer’s explanation, including, inter alia,

showing the employer has misstated his qualifications.”

Holcomb, 433 F.3d at 897 (cleaned up). Mayorga may,

therefore, rebut the AOC’s claim that Williams and Coulter

were more qualified by proffering evidence that the selecting

officials knowingly understated Mayorga’s qualifications,

making their decision pretextual.

In order to “survive summary judgment based solely on

evidence of pretext,” the evidence must be “such that a

reasonable jury not only could disbelieve the employer’s

reasons, but also could conclude that the employer acted, at

least in part, for a prohibited reason.” Walker v. Johnson, 798

F.3d 1085, 1096 (D.C. Cir. 2015). For example, as we said in

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Aka v. Washington Hospital Center, 156 F.3d 1284, 1295 (D.C.

Cir. 1998),

if the employer says that it did not hire the plaintiff

because he did not speak Portuguese, the plaintiff can

show that he did speak Portuguese, and that the

employer knew it. Adequate evidence of this type may

suffice to permit a jury to infer that the employer’s

explanation is incorrect or fabricated, and thus to infer

discrimination.

On appeal Mayorga emphasizes two alleged

misstatements by Bieber that would permit a jury to infer his

explanation is pretextual – that is, that the misstatements were

“too obvious to be unintentional,” Fischbach v. D.C. Dep’t of

Corrections, 86 F.3d 1180, 1183 (D.C. Cir. 1996): (1) Bieber

incorrectly said Mayorga had no experience with the BASnet;

and (2) Bieber said that during the interview Mayorga allowed

as how he was unaware of what position he had applied for.

The AOC denies these allegations and counters that, even if

Mayorga were to succeed in them, he still cannot show the

outcome would be different because he does not have sufficient

experience in ethernet/fiber/Cisco.

(1) BASnet experience

Mayorga first alleges Bieber misstated Mayorga’s

experience with the BASnet when he testified that Mayorga

“does not have experience with that. That’s only limited to my

[Bieber’s] shop.” Mayorga points out that his resume showed

he had experience with the BASnet, performing tasks such as

“[t]roubleshoot[ing] the network communication” and

“[t]roubleshoot[ing] the entire BAS for properly [sic]

operation”; most important, he also alleges Bieber was aware

of his experience:

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Mr. Bieber knows [I have experience with the BASnet]

because I have worked with his team on the BASnet.

When the BASnet went down, I had to work with his

subordinates to solve the problem. In my job, which is

the same job that I held when I applied for the

promotion, I work on the BASnet to control the

technology in the Capitol building and the Capitol

Visitor Center (CVC), which are the most complex and

important buildings in the AOC.

Mayorga Declaration at ¶ 1. In response, the AOC stresses

the distinction between a building-level BAS and the BASnet.

It explains that each building within the jurisdiction of the AOC

runs several systems (e.g., HVAC, elevators) that comprise an

internal BAS. Each internal BAS is then connected via fiber-

optic cable to a network access switch which is, in turn,

connected to a systemwide set of routers to the larger BASnet

infrastructure. Hence, although “individual jurisdictions, such

as the Capitol, House, and Senate jurisdictions, are responsible

for other aspects of the BAS,” these internal building-level

systems “are not, themselves, the ‘BASnet.’” According to the

AOC, when Bieber talks about the “BASnet,” he is referring to

the “data-communications infrastructure interconnecting the

Architect’s thirty-one buildings and five off-site facilities”; in

contrast, Mayorga’s resume and declaration “plainly refer[]

only to the building-specific BAS components.”

Because Mayorga has proffered evidence undermining

Bieber’s explanation of what is considered BASnet experience,

whether Mayorga has experience with the BASnet is a

“genuine issue of material fact” to be resolved by a jury. Bieber

claims only his “shop” (presumably the EMCS Branch) works

on the “actual BAS net network” – yet Bieber said he hired

Coulter for his network qualifications and Coulter, like

12

Mayorga, did not work in Bieber’s shop. Indeed, both Coulter

and Bieber testified that Coulter had experience with the

“network side of [the building automation]” in his prior

position and Coulter’s resume said that in his previous job he

was responsible for servicing and operating “highly complex,

new or prototype systems including ... BASnet.” Together, this

evidence draws into question Bieber’s claim that only

employees in the EMCS shop have experience working with

the BASnet.

More important, Wallace, “the BAS Net Manager” of the

EMCS, has represented that Mayorga is “an operator” on “the

BAS Net system,” casting further doubt upon Bieber’s

statement that Mayorga lacks BASnet experience:

Q: What is your working relationship with Javier

Mayorga? Do you ever have an opportunity to

work with him?

A: I met him around 2008 when I started working in

the EMCS shop, and he’s an operator on the

system. I mean, if he had questions he would call

me. If he had –

Q: Operator on what system?

A: On the BAS Net system.

Although the district court addressed Wallace’s testimony

by distinguishing between “operating” on the BASnet system

and “networking” on it, 2 on appeal the AOC does not assert this

distinction, instead claiming Mayorga lacks BASnet

2

281 F. Supp. 3d at 192 (“Although Wallace testified that the

plaintiff was an ‘operator’ on the ‘BAS Net system,’ he also testified

that he thought the plaintiff did not have ‘networking’ experience on

the BAS”).

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experience but failing entirely to address Wallace’s testimony.

A jury could therefore reasonably find that Mayorga – whose

resume displayed his degree in Network Management and his

experience in “[t]roubleshoot[ing] the [BAS] network

communication” – had the BASnet experience sought by the

panel.

Of course, if the jury were to conclude that Mayorga had

experience in the BASnet, then Mayorga would still have to put

forth sufficient evidence to enable the jury to find Bieber’s

misstatement was more than an honest mistake – i.e., evidence

showing Bieber did not “honestly believe[]” Mayorga lacked

BASnet experience. Fischbach, 86 F.3d at 1183. Although

Mayorga did not provide much detail about how he helped the

EMCS team troubleshoot problems arising from the BASnet,

we think a jury could nonetheless credit Mayorga’s testimony

that he worked with Bieber’s team and infer Bieber knew

Mayorga had the requisite BASnet experience. Combined with

the evidence above suggesting that employees outside of the

EMCS Branch also work on the BASnet, Mayorga has done

more than “merely state a disagreement with, or disbelief of”

Bieber’s explanation, Mayorga, 281 F. Supp. 3d at 194, 197-

98; from his proffered evidence, a jury may well determine

Bieber’s assertion that Mayorga had no BASnet experience

was “not only a mistaken one in terms of the facts, but a lie.”

Aka, 156 F.3d at 1293.

(2) Knowledge of the job position

The second “misstatement” Mayorga calls to our attention

is Bieber’s claim that during the interview Mayorga was

confused about what job he was applying for. According to

Bieber, Mayorga said he “didn’t realize [the interview] was for

[the EMCS] shop.” Wallace likewise testified that when

Mayorga walked into the interview, Mayorga said, “I thought

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this was a job in engineering,” and, “I didn’t mean to apply for

this, so.”

These accounts are in some tension with Mayorga’s

resume, which states his objective was to “achieve meaningful

employment with the Office of Planning and Project

Management as an Electronic[s] Technician,” the job title

listed in the vacancy announcement. Mayorga also objected

vehemently to Bieber’s and Wallace’s statements in his sworn

declaration: “That is a lie. I never said that or anything like

it.... It was very clear on the vacancy announcement what the

job was and I filled out the form knowing what the job was.”

The only response the AOC makes on appeal is to belittle

this dispute as one about a “tangential issue.” We are not so

quick to discount it, however; Mayorga’s evidence must be

viewed at this stage in the light most favorable to him, which

is to say, tending to demonstrate that Bieber and Wallace

manufactured reasons after the fact for not having hired him.

See Tolan v. Cotton, 572 U.S. 650, 651 (“[T]he evidence of the

nonmovant is to be believed, and all justifiable inferences are

to be drawn in his favor”). A jury may reasonably find that

Bieber and Wallace fabricated Mayorga’s alleged statements in

order to bolster their pretextual explanation that Mayorga was

not as qualified as the other applicants. See DeJesus v. WP Co.

LLC, 841 F.3d 527, 535 (D.C. Cir. 2016) (explaining a jury

may find pretext in part because an employer’s action may

“suggest[] an overall lack of forthrightness”).

(3) Ethernet/fiber/Cisco skills

Finally, the AOC urges us to find, as the district court did,

that even if Mayorga did have BASnet experience, “it would

not have altered the outcome of the selection” because

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Mayorga lacked experience with ethernet/fiber/Cisco.

Appellee’s Br. at 20; 281 F. Supp. 3d at 198.

The AOC’s brief and the record, however, indicate that the

BASnet includes fiber-optic cables and Cisco switches – so if

Mayorga indeed had experience with the BASnet, then we

think a jury may reasonably find he had experience with its

integral components. See Appellee’s Br. 12-13 (describing

“Cisco network equipment” and “Ethernet and fiber-optic

cables” as “two key components of the network that EMCS was

responsible for maintaining”). In fact, Bieber’s own

description of the BASnet references each of the relevant

technologies: “The BASnet is connected to each building-level

BAS system via a fiber-optic cable to a building-level

switch. The building-level switch is then connected to several

access switches within that building, again using fiber-optic

cables. An Ethernet cable then connects those access switches

to the routers.” Bieber Deposition at 8 (emphasis added). In

addition, Mayorga has a degree in Network Management and,

as described above, Mayorga’s coworker submitted a

declaration that Mayorga troubleshoots problems related to

“fiber and switches.” 3 This evidence is sufficient to raise a

genuine question of material fact regarding whether Mayorga

has the requisite skills in ethernet/fiber/Cisco.

3

Mayorga also asks us to consider that his application for the

position indicates he had experience “implementing or

troubleshooting” “Cisco switch hardware,” “fiber infrastructure,”

and “Ethernet cable infrastructure.” Mayorga has forfeited this

evidentiary argument, however, because he failed to raise it in the

district court. See Vickers v. Powell, 493 F.3d 186, 196 (D.C. Cir.

2007) (declining to consider record evidence with respect to a

nonmovant’s claim of pretext because she had “never argued that the

various discriminatory acts alleged in her hostile work environment

claim ... were further evidence of pretext”).

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C. Other Instances of Discrimination

We come now to consider Mayorga’s other evidence of

discrimination. As we said in Holcomb, a plaintiff in a Title

VII case is “not limited to challenging the employer’s

explanation; [h]e can also avoid summary judgment by

presenting other evidence ... that permits an inference of

discrimination,” such as “discriminatory statements by the

employer, or other attitudes suggesting the decision maker

harbors discriminatory animus.” 433 F.3d at 899.

Mayorga contends that Bieber’s name-calling (“Caviar”

instead of Javier) and his mockery of Mayorga’s accent could

lead a reasonable jury to conclude the panel denied Mayorga a

promotion for improper reasons. The AOC raises three

objections. First, it claims Mayorga cites only his own “self-

serving” testimony as evidence of Bieber’s discriminatory

attitude. Second, the AOC contends Mayorga’s testimony does

not show that Bieber himself, rather than other employees,

mocked Mayorga’s accent and called him “Caviar.” Finally,

even if Mayorga were to show that Bieber made discriminatory

remarks, the AOC says Mayorga’s accusations are “legally

deficient” because the remarks bear no nexus to the promotion

decision.

We are unconvinced by the AOC’s responses. Its first

argument is a mere makeweight:

[T]here is no rule of law that the testimony of a

discrimination plaintiff, standing alone, can never make

out a case of discrimination that could withstand a

summary judgment motion. After all, evidence a party

proffers in support of its cause will usually, in some

sense, be “self-serving.” It is nonetheless beyond

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question as a general proposition that parties, like other

fact witnesses, are legally competent to give material

testimony. Indeed, in many kinds of cases, parties are

the key, or even sole, witnesses. To the extent the

testimony of a witness who is also a party may be

impaired by party self-interest, it is ordinarily the role

of the jury – not the court on summary judgment – to

discount it accordingly.

Johnson v. Perez, 823 F.3d 701, 710 (D.C. Cir. 2016) (cleaned

up). In this instance, the question whether Bieber called

Mayorga “Caviar” and mocked his accent hinges upon

Mayorga’s and Bieber’s credibility, “an issue that is

quintessentially one for the finder of fact.” Aka, 156 F.3d at

1299. Mayorga’s testimony is therefore precisely the kind of

evidence upon which, when combined with all the other

evidence, a jury may base a verdict in his favor. See, e.g.,

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-

51 (2000) (“Credibility determinations, the weighing of the

evidence, and the drawing of legitimate inferences from the

facts are jury functions, not those of a judge”).

As to the AOC’s view that Mayorga’s testimony cannot be

interpreted to show Bieber was involved in calling Mayorga

“Caviar” or in mocking Mayorga’s accent, we disagree. When

asked in his deposition whether he spoke to Bieber “about the

insults,” Mayorga answered no because “Bieber was one of the

person [sic] who was talking.” Moreover, when asked whether

he had “ever directly heard Mr. Bieber, Mr. Wallace, [or

another employee], as you say, ‘talk trash’ about [him],”

Mayorga answered that “they call me, straight out to my face,

‘Caviar.’” Furthermore, Mayorga clearly testified that Wallace

has previously called him “Caviar” – a particularly significant

accusation because Wallace was on the selection panel.

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Finally, we reject the AOC’s argument that mockery about

Mayorga’s name and accent does not permit a jury to infer

discrimination because Mayorga has not explained how the

remarks relate to the decision at issue. Although “an isolated

race-based remark unrelated to the relevant employment

decision could not, without more, permit a jury to infer

discrimination, we have not categorically labeled such

comments immaterial.” Morris v. McCarthy, 825 F.3d 658,

669-70 (D.C. Cir. 2016) (cleaned up). To be sure, Mayorga’s

argument would be stronger if he had drawn a direct connection

between the discriminatory name-calling and the selection

decision, but we have been clear that disparaging comments of

the sort Mayorga describes are “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.” Id. at 670. A jury may therefore consider

this evidence alongside the other evidence in this case to

determine whether Mayorga has met his burden.

In sum, drawing all inferences in Mayorga’s favor, a

compelling narrative emerges, cf. id. at 671: Bieber knew

Mayorga worked on the BASnet because Mayorga had at least

once worked with the EMCS team in order to troubleshoot the

system. Thereafter, Bieber listed two job openings for his shop

and worked with two other panelists to make the selection

decision; two of the panelists, including Bieber, had regularly

called Mayorga “Caviar” instead of Javier and mocked his

accent. Prior to the interviews, Bieber did not give Mayorga

credit for skills readily apparent on Mayorga’s resume. After

rejecting Mayorga for the position, Bieber justified his decision

in part by explaining Mayorga did not have BASnet

experience, which was limited to only his shop – yet the panel

recommended and the AOC hired a candidate for the

“network” role who also did not work in Bieber’s shop.

Bieber’s claim that Mayorga did not have the requisite BASnet

19

experience is further contradicted by that of Bieber’s deputy in

the EMCS Branch, who testified that Mayorga is an “operator”

on the BASnet. Bieber then falsely accused Mayorga of not

knowing what job he was applying for.

Viewed in this light, a reasonable jury could be “quite

suspicious” about the sincerity of the reasons given for

Mayorga’s not having been selected. Id. Of course, although

a jury might instead find the AOC’s justifications genuine,

“[r]esolving such conflicting inferences is precisely the type of

function we leave to the jury, not to a judge ruling on a

summary judgment motion.” Id. at 672.

III. Conclusion

We conclude Mayorga has proffered evidence from which

a jury could infer the AOC discriminated against him. Because

Mayorga argues his case as a single-motive claim and at oral

argument forfeited any potential mixed-motive claim he could

have made, he bears the burden of showing the alleged animus

was a but-for cause of the decision not to promote him. See

Ginger v. D.C., 527 F.3d 1340, 1345 (D.C. Cir. 2008).

The judgment of the district court is vacated and the case

remanded for trial.

So ordered.