Etoh v. Fannie Mae
| Citation | 883 F.Supp.2d 17 |
| Decision Date | 23 September 2011 |
| Docket Number | Civil Action No. 10–1259 (ESH). |
| Parties | Magloire K. Placide Ayissi ETOH, Plaintiff, v. FANNIE MAE, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
OPINION TEXT STARTS HERE
Magloire K. Placide Ayissi Etoh, Gaithersburg, MD, pro se.
Damien G. Stewart, Fannie Mae, Washington, DC, for Defendants.
Plaintiff Magliore K. Placide Ayissi Etoh, an African–American male and former employee of the Federal National Mortgage Association (“Fannie Mae”), brings this pro se action against Fannie Mae, Michael J. Williams, Fannie Mae's President and Chief Executive Officer (“CEO”), and three current or former Fannie Mae employees: Jacqueline K. Wagner, the former Chief Audit Executive, Thomas Cooper, a former Vice–President in the Internal Audit division, and Sanda Pesut, a Manager in the Internal Audit division (collectively “defendants”). His complaint includes federal claims for racial discrimination, racial harassment, and retaliation, all in violation of 42 U.S.C. § 1981, and state law claims for defamation and intentional or negligent infliction of emotional distress. Before the Court is defendants' joint motion to dismiss or, in the alternative, for summary judgment. For the reasons set forth herein, defendants' motion for summary judgment will be granted.
Africa. (Compl. ¶ 7; Etoh Aff. ¶ 2.) In February 2008, Fannie Mae called plaintiff to ask him to interview for a position as a Senior Financial Modeler in the Internal Audit department. (Etoh Aff. ¶ 3.) On March 3, 2008, the Director of the Modeling Team, then Philip Schlemmer, interviewed plaintiff. (Etoh Aff. ¶ 4.) On March 12, 2008, plaintiff had a second interview with Schlemmer and also interviewed with Pesut, who was then a Senior Auditor who reported to Schlemmer, and two other members of the department. (Etoh Aff. ¶ 4; Pesut Aff. ¶¶ 2–3.) Pesut recommended that plaintiff be hired even though he “did not have an audit background ... because of his experience and familiarity with financial models used in banking and mortgage finance.” (Pesut Aff. ¶ 2). Plaintiff was offered the job at an annual salary of $98,600, and he started work on April 28, 2008. (Etoh Aff. ¶¶ 5, 7; Defs.' Ex. 3 1; Etoh Aff. ¶ 7.) Between the time plaintiff interviewed and started working at Fannie Mae, Wagner was hired as the Chief Audit Executive to manage the Internal Audit department and Pesut was promoted to a Manager position on the Internal Audit Modeling Team (still reporting to Schlemmer), making her plaintiff's direct supervisor. (Pesut Aff. ¶¶ 3, 4; Wagner Decl. ¶ 2; Etoh Aff. ¶ 16.)
From March 2008 to June 2008, plaintiff worked in the Modeling Review Unit as a Senior Financial Modeler and reported directly to Schlemmer. (Garza Aff. ¶ 3; Etoh Aff. ¶¶ 7–8.) Schlemmer assigned plaintiff to work for Anna Garza, the Director of Internal Audit of Single Family, on the Real Estate Owned Audit. (Garza Aff. ¶¶ 2, 4.) According to Garza, plaintiff “performed well in this engagement”; he “received praises from [the Director of the Model Developer Unit] for his model review, his insight and suggestions for improvement of the models”; he “worked well with my staff and project team members”; he “worked overtime to get the workpapers completed early at [Garza's] request”; and he “was a team player and was eager to help the team.” (Garza Aff. ¶¶ 5–8.) Schlemmer was pleased with plaintiff's work (Pl.'s Ex. B.1.8), and, at the end of the project, Garza submitted a reward request for plaintiff, which was approved by the Vice President of Internal Audit, Curtis Doss. (Garza Aff. ¶ 9; Etoh Aff. ¶¶ 9, 20; Pl.'s Exs. B.1.8, B.1.10.)
In July 2008, Wagner restructured the Internal Audit department. (Wagner Decl. ¶ 2; Pesut Aff. ¶ 4). She laid off most of the Internal Audit Management Team, including Garza. (Garza Aff. ¶ 11.) She brought in Cooper, then an Ernst and Young employee, on a contract basis to run the Capital Markets, Finance and Modeling practice groups. (Defs.' Ex. 15; Etoh ¶ 21.) In addition, fourteen new “Team Lead” positions were created, each to be assigned a particular part of the business within the department. (Wagner Decl. ¶ 5; Pesut Aff. ¶ 5; Etoh Aff. ¶ 19.) Each Team Lead was to be “responsible for ensuring that audits were completed accurately and on time through diligent planning on the scope of an audit, efficient execution of the audit work and managing the audit staff assigned to the project.” (Wagner Decl. ¶ 5.)
According to Wagner, her goal was to “promote qualified candidates who demonstrated ‘executive presence,’ i.e. an ability to communicate with business leaders effectively, demonstrate business knowledge and show an ability to identify emerging business risks, and to take ownership of projects.” (Wagner Decl. ¶ 8.) In addition, she sought only “domestic workers” to avoid the expense and uncertain success of H1–B sponsorship. (Wagner Decl. ¶ 9.) According to plaintiff, the term “executive presence” was “a code [Wagner] used to avoid saying white or talks like whites.” (Etoh Aff. ¶¶ 14, 23.)
Generally, Fannie Mae employees are not permitted to apply for other positions within the company until they have completed twelve months with the company, but for the newly created Team Lead positions that restriction was lifted. (Wagner Decl. ¶ 6; Defs.' Ex. 1 (Fannie Mae Internal Staffing Policy); Pesut Aff. ¶ 6.) Two employees applied for the position of —plaintiff and a white female, Karla Kucerkova, who was a Senior Auditor. (Wagner Decl. ¶ 6; Pesut Aff. ¶ 6.) Kucerkova had more auditing experience than plaintiff; plaintiff had a stronger educational background and more experience with financial models. (Wagner Decl. ¶ 7.) Pesut interviewed both candidates. (Pesut Aff. ¶ 7.) She “did not believe either candidate was well-suited for the job,” but she rated Kucerkova slightly higher than plaintiff because “she was more familiar with audit practices and procedures.” (Pesut Aff. ¶ 7.) A panel reviewing the applicants recommended plaintiff “primarily due to his educational background.” (Pesut Aff. ¶ 7; Wagner Decl. ¶ 7.) Pesut then supported the panel's decision and recommended plaintiff for the position. (Pesut Aff. ¶ 7.) Wagner accepted the panel's recommendation and, on July 30, 2008, offered plaintiff the position of “Auditor Team Lead” for the Modeling Team with a transfer date of August 17, 2008. (Wagner Decl. ¶ 7; Defs.' Ex. 2.) In all, twelve 2 individuals were promoted to Team Lead positions. (Wagner Decl. ¶ 8.) Of the twelve, six were African–American, three were Asian, two were White and one was Hispanic. (Defs.' Ex. 3.) Prior to promotion, ten had been “Senior Auditors”; one had been a Financial Analyst, Julie Kley; and one, plaintiff, had been a “Senior Financial Modeler.” (Defs.' Ex. 3.)
Of the twelve individuals promoted to Auditor Team Lead positions, only plaintiff was not given a salary increase. (Defs.' Exs. 2, 3.) According to the Director of Compensation, Nicole Harris Westbrook, who is African–American, Wagner “consulted with [her] department on recommendations for salary increases for these promotions.” (Westbrook Aff. ¶ 5.) Initially, Wagner proposed giving each new Team Lead a 2% increase in salary. (Wagner Decl. ¶ 10; Westbrook Aff. ¶ 5.) However, after reviewing Wagner's proposal, the Compensation department suggested alternatives (Westbrook Aff. ¶ 6) in order “to ensure a meaningful increase is given,” which was “defined as an increase of 5% or above.” (Defs.' Ex. 3, at 2 (4); see also Wagner Decl. ¶ 11 ().)
As to plaintiff, the Compensation department
recommended not to provide [him] with a salary increase because he had recently joined the Company and his salary was well within range of the other newly promoted Team Leads. Moreover, [his] then current salary was commensurate with the complexity of the position that he held and his experience as an auditor.
(Westbrook Aff. ¶ 6; see Wagner Decl. ¶ 11.) Wagner accepted the recommendation of the Compensation department and did not raise plaintiff's salary (Westbrook Aff. ¶ 7; Wagner Decl. ¶ 11), because “he had recently joined the Company,” “his salary was within range of the other newly promoted Team Leads,” and his “salary was commensurate with the complexity of the position he held and his minimum experience as an auditor.” (Wagner Decl. ¶ 11.)
The other Team Leads all received salary increases of varying percentages. (Defs.' Ex. 3; Westbrook Aff. ¶ 7.) 5 The largest increase went to Julie Kley, who was the only person besides plaintiff who had not previously been an auditor, although she had been employed by Fannie Mae since 2006; her salary was the lowest of the Team Leads, both before and after the increase. The highest paid Team Lead was Hispanic, and the second and third highest paid Team Leads were African American. (Defs.' Ex. 3; Westbrook Aff. ¶ 7.) Before the promotions and salary increases for the other Team Leads, plaintiff had the sixth highest salary; after the promotions, plaintiff had the second lowest salary, although it was very close (only $1,400 less) than the three Team Leads ahead of him in the salary rankings. (Defs.' Ex. 3.) Other than plaintiff, the relative rankings among Team Leads based on salary did not change. (Defs.' Ex. 3.) Naveen Fernandes was the only Team Lead who was, like plaintiff, new to Fannie Mae, but he had ten...
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