Anigbogu v. Mayorkas

Background

Michael C. Anigbogu worked as an Asylum Officer in the San Francisco Asylum Office beginning in 2002. In late 2016, he applied for a GS-13 Senior Asylum Officer position. Twenty-two other people applied. Director Emilia Bardini selected eight people to interview and three people for the positions; Anigbogu was not selected to interview or hired. Seven of the eight interviewees and all three selected candidates were white. Anigbogu later contacted an equal-employment-opportunity counselor and filed a formal complaint concerning his non-selection.

Anigbogu also received an FY2017 performance rating of “Achieved Expectations,” after receiving “Exceeded Expectations” ratings in the two prior years. He later contacted an equal-employment-opportunity counselor concerning that rating. His amended complaint asserted Title VII claims for discrimination based on national origin, race, and color, as well as retaliation.

Evidentiary Rulings

At the summary-judgment stage, the court considered whether evidence could be presented in an admissible form at trial rather than focusing only on the form in which the evidence was submitted. The court overruled Anigbogu’s objections to most of Defendant’s challenged exhibits, but sustained his objection to Exhibit 35 because Defendant had not shown that the document could be authenticated for use at trial. The court also rejected Defendant’s hearsay objection to evidence about alleged discrimination against other employees, finding that the substance of that evidence could be presented through testimony from those employees.

Discrimination Claims

Summary judgment is appropriate only when there is no genuine dispute about a fact that could affect the outcome and the moving party is entitled to judgment under the law. Applying the three-step burden-shifting framework used for employment-discrimination claims, the court found that Anigbogu met the initial, minimal burden of showing a possible discriminatory failure to promote. He was a member of protected racial and national-origin groups, applied for the position, presented evidence that he met the minimum qualifications, and was passed over for white candidates of American or European national origin.

Defendant offered nondiscriminatory reasons for the decision, including Anigbogu’s alleged backlog, problems with case assessments, and a lack of confidence among supervisors and Fraud Detection and National Security Directorate officers. The court found those reasons sufficient to meet Defendant’s burden of production. But the court also found evidence from which a jury could conclude that some explanations were not credible. In particular, the court identified disputes about whether the selected candidates actually had more relevant immigration experience, whether Anigbogu had less private-practice experience, and whether Fraud Detection and National Security Directorate officers lacked confidence in him. Evidence that Bardini allegedly discriminated against other employees based on race and national origin also supported a possible finding of pretext, meaning that the stated reasons were a cover for unlawful discrimination.

The court declined to apply a strong “same-actor” inference based on Bardini’s having hired Anigbogu in 2002 and later participating in the promotion decision. The 14-year gap was too long for the court to apply that inference, and the evidence did not establish that Bardini selected Anigbogu for a favorable refugee detail. The court therefore denied summary judgment on the race, color, and national-origin discrimination claims. It did not treat the FY2017 performance review as a discrimination claim because the amended complaint did not allege that theory.

Retaliation Claim

For retaliation, Anigbogu had to show that he engaged in protected activity opposing unlawful discrimination, experienced an adverse employment action, and had a causal connection between the two. The court found that the “Achieved Expectations” rating could qualify as an adverse employment action, even though it was not the lowest possible rating, because a rating can be adverse if it is clearly undeserved or a significant departure from earlier reviews.

Bardini knew of Anigbogu’s equal-employment-opportunity complaint by March 31, 2017, and the performance review was dated October 31, 2017. The court found that the seven-month gap, together with evidence that Anigbogu was required to work with a training officer after the complaint, was enough to create a possible causal connection. Defendant offered a nonretaliatory explanation: officials had discussed extending the rating period, placing Anigbogu on a performance-improvement plan, or rating him “Achieved Expectations” based on concerns about his performance. But because the court found factual disputes about Bardini’s reasons for not promoting Anigbogu, it also found a triable dispute about whether the reasons for the performance rating were pretextual. The court denied summary judgment on the retaliation claim.

Disposition

Judge Hixson denied Defendant’s Motion for Summary Judgment in its entirety. The ruling left Anigbogu’s Title VII discrimination and retaliation claims unresolved; the court did not make a final finding that discrimination or retaliation occurred.