Magloire Etoh v. Fannie Mae

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 25, 2012 Decided April 5, 2013

No. 11-7127

MAGLOIRE K. PLACIDE AYISSI-ETOH,

APPELLANT

v.

FANNIE MAE, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:10-cv-01259)

Magloire K. Ayissi-Etoh, pro se, argued the cause and

filed the briefs for appellant.

Damien G. Stewart argued the cause for appellees. With

him on the brief was Madonna A. McGwin.

Before: GARLAND, Chief Judge, and GRIFFITH and

KAVANAUGH, Circuit Judges.

Opinion for the Court filed PER CURIAM.

Concurring opinion filed by Circuit Judge KAVANAUGH.

2

PER CURIAM: Placide Ayissi-Etoh worked at Fannie

Mae. He is African-American. When Ayissi-Etoh was

promoted but denied a salary increase, he was allegedly told

by his Fannie Mae manager: “For a young black man smart

like you, we are happy to have your expertise; I think I’m

already paying you a lot of money.” On another occasion, a

Fannie Mae Vice President allegedly shouted at Ayissi-Etoh

to “get out of my office nigger.” After Ayissi-Etoh filed a

discrimination complaint with the Equal Employment

Opportunity Commission, his Fannie Mae supervisor

allegedly gave him a choice: drop the racial discrimination

claim or be fired. Shortly thereafter, Ayissi-Etoh was

terminated.

In the District Court, Ayissi-Etoh alleged that Fannie Mae

violated federal anti-discrimination laws by (i) denying him a

salary increase for discriminatory reasons, (ii) maintaining a

racially hostile work environment, and (iii) retaliating against

him for filing a discrimination complaint. He also filed a

D.C. law claim for defamation. The District Court granted

Fannie Mae summary judgment on each count.

At the summary judgment stage, we must view the

evidence in the light most favorable to Ayissi-Etoh, the

non-moving party. Analyzing the record in that light, we

conclude that a reasonable jury could find that Fannie Mae

unlawfully discriminated against, harassed, and retaliated

against Ayissi-Etoh. Ayissi-Etoh is thus entitled to a trial on

those claims. Therefore, we reverse the District Court’s grant

of summary judgment on all of Ayissi-Etoh’s federal

anti-discrimination claims.

3

I

In the spring of 2008, Fannie Mae hired Placide

Ayissi-Etoh – an African-American man – as a Senior

Financial Modeler in its Internal Audit Department.

Ayissi-Etoh analyzed the models that Fannie Mae used to

assess the value of its assets.

After working at Fannie Mae for about three months,

Ayissi-Etoh applied for and received a promotion to

“Modeling Team Lead,” a new leadership position created

when Fannie Mae restructured its Internal Audit Department.

There were a total of 12 new Team Lead positions established

within the Internal Audit Department. After the Team Leads

were selected, 11 of the 12 Leads were given significant salary

increases. Ayissi-Etoh was the lone Team Lead who did not

receive a raise. Karla Kucerkova – a white employee who

applied for Modeling Team Lead but lost out to Ayissi-Etoh –

received a salary increase even though she did not obtain one

of the Team Lead positions.

Soon after Ayissi-Etoh stepped into the role of Team

Lead, he and his manager, Sanda Pesut, began arguing on a

regular basis. Pesut criticized Ayissi-Etoh for several

“performance shortcomings,” and Ayissi-Etoh complained

that he was still being assigned staff-level work despite his

promotion. Ayissi-Etoh claims that Pesut treated him poorly

because he had obtained the Modeling Team Lead position

over Pesut’s choice for the promotion, Kucerkova.

In the fall of 2008, upon instruction from Human

Resources, Pesut began writing reports to document

Ayissi-Etoh’s perceived weaknesses. In one evaluation,

Pesut criticized what she saw as Ayissi-Etoh’s lack of

independent analysis. Pesut noted that, in Ayissi-Etoh’s

4

description of why certain audit procedures were utilized, the

“explanations used were exactly the same as” the explanations

submitted by Fannie Mae’s customer through email. For his

part, Ayissi-Etoh perceived the evaluation as an accusation of

plagiarism.

Concerned by both the negative reviews and his lack of a

raise, Ayissi-Etoh met with Jacqueline Wagner, the Chief

Audit Executive, several times during October 2008.

According to Ayissi-Etoh, when he asked why he hadn’t

received a raise, Wagner – who is white – replied: “For a

young black man smart like you, we are happy to have your

expertise; I think I’m already paying you a lot of money.”

Wagner denies making this comment.

In early 2009, Thomas Cooper – who is white – became

Fannie Mae’s Vice President of Internal Audit. He thus

presided over the Modeling Team at the time that the tensions

between Pesut and Ayissi-Etoh escalated.

On March 19, 2009, Ayissi-Etoh met with Cooper to

discuss the fact that he was still performing staff-level work

despite being a Team Lead. The meeting quickly became

heated. At the end of the meeting, Ayissi-Etoh claims that

Cooper yelled, “Get out of my office nigger.” Cooper denies

making this remark.

After leaving Cooper’s office, Ayissi-Etoh apparently

became ill. He emailed Pesut that he was “not feeling well

right now” and asked to go home. Later that day,

Ayissi-Etoh saw a doctor. The doctor diagnosed Ayissi-Etoh

with anxiety disorder and prescribed medication.

The next day, Ayissi-Etoh emailed Fannie Mae’s CEO

about the incident. He also filed a discrimination complaint

5

against Cooper with the company’s Compliance and Ethics

Department. Ayissi-Etoh’s complaint against Cooper was

consolidated with his previously filed complaints against

Wagner and Pesut.

Fannie Mae hired an external firm to handle the

investigation. The investigation lasted about three months.

During that time, Ayissi-Etoh was required to continue

working under Cooper.

Fannie Mae’s outside investigators found it “highly

likely” that Cooper had in fact uttered a “highly offensive

racial slur” when confronting Ayissi-Etoh. As a result of that

finding, Fannie Mae immediately terminated Cooper.

In the summer of 2009, Ayissi-Etoh filed discrimination

claims with the Equal Employment Opportunity Commission.

He alleged race discrimination in his pay and racial

harassment.

On September 22, 2009, Ayissi-Etoh claims that Pesut

gave him a choice between dropping his claims with the

EEOC and being fired. Pesut denies this. Three weeks later,

Fannie Mae fired Ayissi-Etoh. Ayissi-Etoh then added a

retaliation claim to his EEOC complaint.

Ayissi-Etoh subsequently filed this suit in the District

Court. As relevant here, Ayissi-Etoh advanced four claims.

He alleged (i) that Fannie Mae and Wagner denied him a

salary increase because of his race; (ii) that Fannie Mae

subjected him to a racially hostile work environment; (iii) that

Fannie Mae fired him in retaliation for his filing

discrimination claims with the EEOC; and (iv) that Pesut

defamed Ayissi-Etoh when she accused him of plagiarism.

The District Court granted Fannie Mae’s motion for summary

6

judgment. See Etoh v. Fannie Mae, 883 F. Supp. 2d 17

(D.D.C. 2011). Ayissi-Etoh contends that the District Court

erred in granting summary judgment against him.

II

We review motions for summary judgment de novo and

consider the evidence in the light most favorable to the

non-moving party – here, Ayissi-Etoh. See United States v.

Diebold, Inc., 369 U.S. 654, 655 (1962); Stewart v. St.

Elizabeths Hospital, 589 F.3d 1305, 1307 (D.C. Cir. 2010).

A

Ayissi-Etoh claims that he was denied a raise because of

his race, in violation of 42 U.S.C. § 1981.

Section 1981 prohibits private employers from

intentionally discriminating on the basis of race with respect

to the “benefits, privileges, terms, and conditions” of

employment. 42 U.S.C. § 1981; see Runyon v. McCrary, 427

U.S. 160, 170 (1976). In Section 1981 and Title VII cases,

courts use the same framework for determining whether

unlawful discrimination occurred. See generally ROTHSTEIN

ET AL., EMPLOYMENT LAW § 2.40 (4th ed. 2009); see also U.S.

Postal Service Board of Governors v. Aikens, 460 U.S. 711

(1983); McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). 1

1

Title VII and Section 1981 differ in certain respects. See

generally ROTHSTEIN ET AL., EMPLOYMENT LAW § 2.40 (4th ed.

2009); Danielle Tarantolo, From Employment to Contract: Section

1981 and Antidiscrimination Law for the Independent Contractor

Workforce, 116 YALE L.J. 170, 193-95 (2006). For example,

Section 1981 covers discrimination on the basis of race, whereas

7

For purposes of summary judgment, the operative

question under Section 1981 – as under the Title VII

anti-discrimination framework – is whether “the employee

produced sufficient evidence for a reasonable jury to find that

. . . the employer intentionally discriminated against the

employee on the basis of race.” Brady v. Office of the

Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). In

some employment discrimination cases, there is no direct

evidence of discriminatory intent – that is, no “statement that

itself shows racial or gender bias in the [employment]

decision.” Vatel v. Alliance of Auto. Manufacturers, 627

F.3d 1245, 1247 (D.C. Cir. 2011). Those cases sometimes

can be resolved on summary judgment. But when the

plaintiff offers direct evidence of discriminatory intent, that

evidence will “generally entitle a plaintiff to a jury trial.” Id.

Here, Ayissi-Etoh claims that Wagner explicitly denied

him a raise because of his race. According to Ayissi-Etoh,

Wagner said: “For a young black man smart like you, we are

happy to have your expertise; I think I’m already paying you a

lot of money.” To be sure, Wagner denies making this

statement. But when the issue comes down to a credibility

contest of this kind, we cannot resolve the dispute at the

summary judgment stage against the non-moving party. And

the “young black man” statement alone is direct evidence that

in this case entitles Ayissi-Etoh to a jury trial. See id.;

Title VII covers discrimination on the basis of race, gender,

pregnancy, national origin, and religion. Compare 42 U.S.C.

§ 1981, with 42 U.S.C. §§ 2000e, 2000e-2(a)-(b). And Section

1981 covers only intentional disparate-treatment discrimination,

whereas Title VII allows plaintiffs to bring disparate-impact suits

when a facially neutral policy has a disproportionate impact on a

protected class. See General Building Contractors Assn., Inc. v.

Pennsylvania, 458 U.S. 375, 387-88 (1982).

8

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002)

(plaintiff may prevail at trial when he “is able to produce

direct evidence of discrimination”).

We therefore reverse the grant of summary judgment on

the Section 1981 race discrimination claim.

B

Ayissi-Etoh next contends that Fannie Mae maintained a

racially hostile work environment in violation of 42 U.S.C.

§ 1981. To support this claim, Ayissi-Etoh cites, among

other things, Cooper’s use of an offensive racial epithet while

yelling at Ayissi-Etoh; Fannie Mae’s delay in subsequently

separating Ayissi-Etoh and Cooper from having to work

together; and Wagner’s racially explicit statements to

Ayissi-Etoh about the salary, which we described above.

To prevail on a hostile work environment claim, a

plaintiff must first show that he or she was subjected to

“discriminatory intimidation, ridicule, and insult” that is

“sufficiently severe or pervasive to alter the conditions of the

victim’s employment and create an abusive working

environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17,

21 (1993) (quoting Meritor Savings Bank, FSB v. Vinson, 477

U.S. 57, 65, 67 (1986)).

In evaluating a hostile work environment claim, the court

“looks to the totality of the circumstances, including the

frequency of the discriminatory conduct, its severity, its

offensiveness, and whether it interferes with an employee’s

work performance.” Baloch v. Kempthorne, 550 F.3d 1191,

1201 (D.C. Cir. 2008) (citing Faragher v. City of Boca Raton,

524 U.S. 775, 787-88 (1998)).

9

We conclude that a reasonable jury could find Cooper

and Wagner’s behavior sufficiently severe or pervasive as to

create a hostile work environment. To begin with, Cooper

(allegedly) used a deeply offensive racial epithet when yelling

at Ayissi-Etoh to get out of the office. As other courts have

observed, “perhaps no single act can more quickly alter the

conditions of employment” than “the use of an

unambiguously racial epithet such as ‘nigger’ by a

supervisor.” Rodgers v. Western-Southern Life Insurance

Co., 12 F.3d 668, 675 (7th Cir. 1993) (internal quotations

omitted). This single incident might well have been

sufficient to establish a hostile work environment. But there

was still more here. The incident was preceded by Wagner’s

“young black man” statement that, as we have already held,

was sufficient to support Ayissi-Etoh’s claim that Fannie Mae

intentionally denied him a raise on the basis of race.

Moreover, this incident was followed by Ayissi-Etoh

allegedly having to continue working with Cooper for nearly

three months, until Cooper was ultimately fired. Medical

records allegedly demonstrate that forcing Ayissi-Etoh to

continue working with Cooper made Ayissi-Etoh ill and

caused him to miss work on at least one occasion.

To establish a hostile work environment claim, a plaintiff

must pass one additional hurdle: To establish liability when

a plaintiff is harassed by his or her co-workers, the plaintiff

must prove that the employer was at least negligent in not

preventing or correcting the harassment. See Faragher, 524

U.S. at 789. When, as here, the plaintiff is harassed by

supervisors with “immediate (or successively higher)

authority,” the supervisors are treated as the employer’s

proxy. Id. at 807. In that circumstance, the employer is

vicariously liable for a supervisor’s actions, except when no

tangible adverse employment action has been taken and the

10

employer proves an affirmative defense: (i) that it exercised

reasonable care to prevent and promptly correct the hostile

behavior, and (ii) that the employee unreasonably failed to

take advantage of the employer’s preventive or corrective

opportunities. See id.; Burlington Industries, Inc. v. Ellerth,

524 U.S. 742, 765 (1998). 2

Here, there is no dispute that Cooper and Wagner were

Ayissi-Etoh’s supervisors. Therefore, Fannie Mae would be

vicariously liable based on their alleged comments, save for

any affirmative defense. Fannie Mae suggests that it may be

entitled to the affirmative defense because it promptly

corrected Cooper’s behavior by firing him three months after

the incident. But a reasonable jury could find that

three-month delay was not “prompt.” Moreover, Fannie Mae

makes no attempt to argue that Ayissi-Etoh unreasonably

failed to take advantage of its complaint system – which is an

additional necessary component of the affirmative defense.

Indeed, Ayissi-Etoh filed a complaint with Fannie Mae’s

Compliance and Ethics Department the day after the incident

in Cooper’s office. At the summary judgment stage,

Ayissi-Etoh has thus provided sufficient evidence for a

reasonable jury to find Fannie Mae liable.

We therefore reverse the grant of summary judgment on

the hostile work environment claim.

2

Some courts continue to cite the test articulated by the

Eleventh Circuit in Henson v. City of Dundee, 682 F.2d 897, 905

(11th Cir. 1982). That case required an employee in a case where

the employee was harassed by a supervisor to prove that the

employer “knew or should have known of the harassment in

question and failed to take prompt remedial action.” Id. That is no

longer the test after Faragher.

11

C

Ayissi-Etoh also alleges that Fannie Mae fired him in

retaliation for his filing of EEOC complaints. He brings the

retaliation claim under 42 U.S.C. § 1981.

To establish a retaliation claim under Section 1981, a

plaintiff must show that he engaged in protected activity –

such as filing an EEOC complaint – and that his employer

took an adverse employment action against him because of

that activity. See Holcomb v. Powell, 433 F.3d 889, 901-02

(D.C. Cir. 2006).

In his affidavit, Ayissi-Etoh offers direct evidence of

retaliation: He claims that Pesut gave him a choice between

dropping his claims with the EEOC and being fired. Pesut

denies making that statement. On summary judgment,

however, we cannot resolve this credibility contest.

Because Ayissi-Etoh’s account could lead a reasonable

jury to return a verdict in his favor on the retaliation claim, we

reverse the District Court’s grant of summary judgment on

that claim.

D

Finally, Ayissi-Etoh claims that Fannie Mae is liable

under D.C. law for defamation because its employee Pesut

accused Ayissi-Etoh of plagiarism.

To meet the requirements for defamation under D.C. law,

a plaintiff must prove (i) that he was the subject of a false and

defamatory statement; (ii) that the statement was published to

a third party; (iii) that publishing the statement was at least

negligent; and (iv) that the plaintiff suffered either actual or

12

legal harm. See Crowley v. North American

Telecommunications Association, 691 A.2d 1169, 1173 n.2

(D.C. 1997).

Ayissi-Etoh’s defamation claim fails because Pesut’s

statements were not false. In both her evaluation and her

subsequent emails, Pesut noted that the explanations

Ayissi-Etoh used in his audit review were “exactly the same

as” the “customer’s response” to one of Ayissi-Etoh’s

questions. Ayissi-Etoh’s final audit review indisputably

contains language identical to the customer’s response.

Because Pesut simply stated the truth – that part of

Ayissi-Etoh’s audit review directly incorporated responses

from a customer’s email – the defamation claim fails.

We therefore affirm the District Court’s grant of

summary judgment on Ayissi-Etoh’s D.C. law defamation

claim.

***

We reverse the District Court’s grant of summary

judgment with respect to the race discrimination, hostile work

environment, and retaliation claims. We affirm the District

Court’s grant of summary judgment with respect to

Ayissi-Etoh’s D.C. law defamation claim.

So ordered.

KAVANAUGH, Circuit Judge, concurring: I join the

Court’s opinion and write separately to underscore an

important point about Ayissi-Etoh’s hostile work environment

claim.

The briefing and argument in this case focused on a

significant question: Can one isolated yet severe incident of

discriminatory conduct establish a hostile work environment

under federal anti-discrimination laws? Fannie Mae has

argued that a “singular comment” – even one as severe as the

Fannie Mae Vice President’s alleged statement to Ayissi-Etoh,

“Get out of my office nigger” – is “insufficient to establish an

actionable hostile work environment.” Fannie Mae Br. 47. In

my view, Fannie Mae is wrong on the law and wrong on the

application of the law to the alleged facts of this case. The

alleged statement by the Fannie Mae Vice President to Ayissi-

Etoh by itself would establish a hostile work environment for

purposes of federal anti-discrimination laws.

To be sure, as Fannie Mae notes, cases in which a single

incident can create a hostile work environment are rare. See,

e.g., Faragher v. City of Boca Raton, 524 U.S. 775, 788

(1998) (“isolated incidents (unless extremely serious) will not

amount to” a hostile work environment); Stewart v. Evans,

275 F.3d 1126, 1134 (D.C. Cir. 2002) (“Except in extreme

circumstances, courts have refused to hold that one incident is

so severe to constitute a hostile work environment. Even a

few isolated incidents of offensive conduct do not amount to

actionable harassment.”) (citation omitted); Freedman v. MCI

Telecommunications Corp., 255 F.3d 840, 848-49 (D.C. Cir.

2001) (single incident of “religious slander” does not create a

hostile work environment).

But saying that a single incident of workplace conduct

rarely can create a hostile work environment is different from

saying that a single incident never can create a hostile work

environment. The test set forth by the Supreme Court is

2

whether the alleged conduct is “sufficiently severe or

pervasive” – written in the disjunctive – not whether the

conduct is “sufficiently severe and pervasive.” A single,

sufficiently severe incident, then, may suffice to create a

hostile work environment. See EEOC COMPLIANCE MANUAL,

SECTION 15: RACE AND COLOR DISCRIMINATION 37 (2006) (“a

single, extremely serious incident of harassment may be

sufficient to constitute a Title VII violation”); see also id.

(“The more severe the harassment, the less pervasive it needs

to be, and vice versa.”).

Courts and commentators alike agree that a single

physical act – such as a physical assault – can create a hostile

work environment. See, e.g., Turnbull v. Topeka State

Hospital, 255 F.3d 1238, 1243 (10th Cir. 2001) (case

concerning sexual assault where court stated: “Because

frequency is merely one factor in the analysis, an isolated

incident may suffice if the conduct is severe and

threatening.”); Smith v. Sheahan, 189 F.3d 529, 534 (7th Cir.

1999) (“ ‘extremely serious’ acts of harassment” like physical

assault may be severe and need not also be pervasive)

(quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788

(1998)); Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir.

1995) (“even a single incident of sexual assault sufficiently

alters the conditions of the victim’s employment and clearly

creates an abusive work environment for purposes of Title VII

liability”), abrogated on other grounds by Burlington

Industries, Inc. v. Ellerth, 524 U.S. 742 (1998); 3 LEX K.

LARSON, EMPLOYMENT DISCRIMINATION § 46.05[3][b] (2d ed.

2012) (“a single incident of physical assault against a co-

worker that is motivated by anti-female animus can qualify as

severe enough to constitute an alteration of the co-worker’s

conditions of employment”).

3

As several courts have recognized, moreover, a single

verbal (or visual) incident can likewise be sufficiently severe

to justify a finding of a hostile work environment. See, e.g.,

Reedy v. Quebecor Printing Eagle, Inc., 333 F.3d 906, 909

(8th Cir. 2003) (racially hostile graffiti that amounted to death

threat qualifies as “severe”); Richardson v. N.Y. State Dept. of

Correctional Service, 180 F.3d 426, 437 (2d Cir. 1999) (case

involving the use of several racial epithets and insults where

court stated: “even a single episode of harassment, if severe

enough, can establish a hostile work environment”),

abrogated on other grounds by Burlington N. & Santa Fe

Railway Co. v. White, 548 U.S. 53 (2006); cf. Jackson v.

Flint Ink North American Corp., 370 F.3d 791, 795 (8th Cir.

2004) (“Even a single instance of workplace graffiti”

involving a burning cross, “if sufficiently severe, can go a

long way toward making out a Title VII claim”), rev’d on

reh’g on other grounds, 382 F.3d 869 (8th Cir. 2004).

It may be difficult to fully catalogue the various verbal

insults and epithets that by themselves could create a hostile

work environment. And there may be close cases at the

margins. But, in my view, being called the n-word by a

supervisor – as Ayissi-Etoh alleges happened to him –

suffices by itself to establish a racially hostile work

environment. That epithet has been labeled, variously, a term

that “sums up . . . all the bitter years of insult and struggle in

America,” LANGSTON HUGHES, THE BIG SEA 269 (2d ed.

1993) (1940), “pure anathema to African-Americans,”

Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir.

2001), and “probably the most offensive word in English,”

RANDOM HOUSE WEBSTER’S COLLEGE DICTIONARY 894 (2d

rev. ed. 2000). See generally ALEX HALEY, ROOTS (1976);

HARPER LEE, TO KILL A MOCKINGBIRD (1960). Other courts

have explained that “perhaps no single act can more quickly

alter the conditions of employment and create an abusive

4

working environment than the use of . . . ‘nigger’ by a

supervisor in the presence of his subordinates.” Spriggs, 242

F.3d at 185. No other word in the English language so

powerfully or instantly calls to mind our country’s long and

brutal struggle to overcome racism and discrimination against

African-Americans.

In short, the case law demonstrates that a single,

sufficiently severe incident may create a hostile work

environment actionable under 42 U.S.C. § 1981 or Title VII.

Here, as I see it, the alleged statement by the Fannie Mae Vice

President to Ayissi-Etoh itself would establish a hostile work

environment. With that understanding, I join the Court’s

opinion.