Why it matters

A Hispanic female plaintiff who characterized herself as having “a body size which may be perceived by some as being overweight” may pursue her discrimination claim based on a promotion that went to a slender Caucasian female, according to “a close call” by a Washington, D.C. federal court. Ana Lapera alleged that the senior vice president at Fannie Mae was biased against Hispanic and overweight employees and the reason behind her non-selection for a promotion—an emphasis on “executive presence”—was pretextual, with the supervisor using it as an excuse to target overweight and minority employees. Denying the employer’s motion for summary judgment, the court said a reasonable juror could view the evidence as Lapera depicted: that she was more qualified than the candidate selected, with more relevant education and more experience managing a large team. The plaintiff also presented evidence of bias in the form of comments from the supervisor that an overweight employee “waddled” and that a Hispanic worker “need[ed] to work on [her] accent.”

Detailed discussion

Born in Caracas, Venezuela, Ana Lapera began working for Fannie Mae in 1994. She holds a degree in systems engineering as well as a master’s degree in engineering administration and was promoted during her almost 20 years at Fannie Mae to management level positions. However, Lapera—who described herself as having “a body size which may be perceived by some as being overweight”—alleged that she was discriminated against in violation of the District of Columbia Human Rights Act (DCHRA) and Title VII based on race and personal appearance.

Lapera cited two problems: (1) a new salary grading system implemented in 2009 that assigned her an improperly low salary grade and (2) her non-selection for the position of vice president. A senior vice president (SVP) at Fannie Mae placed considerable emphasis on “executive presence,” which the plaintiff argued provided cover for criticism of and discrimination against overweight and minority employees.

The SVP allegedly commented about employees who did not “fit the team’s image,” criticized one overweight female who “waddled” in front of the directors, complained about another who exposed her midriff, and said one Hispanic worker “need[ed] to work on [her] accent because there is no way she’s going to progress with an accent like the one she has.” The same SVP selected a slender, Caucasian female for the vice president position despite Lapera’s more extensive experience and qualifications, Lapera told the court.

Pursuant to an employment agreement, Lapera pursued her claims in nonbinding arbitration. After a four-day hearing, the arbitrator ruled in favor of Fannie Mae. Lapera rejected the arbitral award and filed a complaint. The employer responded with a motion for summary judgment.

U.S. District Court Judge Beryl A. Howell issued a mixed decision, dismissing the salary claims but allowing Lapera to move forward on the allegations over her non-selection.

The employer proffered a legitimate, nondiscriminatory explanation as to why it assigned Lapera the salary grade it did and why her request for re-leveling was denied, the court said, noting that the system “did not consider in any way the characteristics or performance of the individual who occupied a given position,” instead relying on market wages for a given job description. Further, when a request for a salary increase was submitted on Lapera’s behalf by her supervisor, she was awarded an increase of $28,000 based on her performance and personal characteristics, the court pointed out.

Turning to the non-selection claims, Judge Howell noted the parties spilled “significant ink” arguing over the relative qualifications of Lapera and the selected candidate. After reviewing their resumes and supervisor comments about the two, the court deemed it “a close question” as to whether a reasonable jury could find that Lapera was significantly more qualified for the position. Given this calculus, the court looked to the rest of Lapera’s evidence.

A dispute existed as to whether Lapera had communication issues, requiring a credibility determination for the jury in light of the competing evidence, and the plaintiff’s evidence on irregularities in the hiring process (e.g., the selected candidate being permitted to apply after the deadline and her interview consisting of an hour-long lunch meeting instead of Lapera’s half-hour meeting in an office) was “murky,” the court said.

The plaintiff also emphasized bias on the part of the SVP towards Hispanic and overweight employees. The SVP congratulated Lapera after an overweight employee left Lapera’s team and repeatedly criticized employees who lacked an “executive presence,” which Lapera argued was pretext for discrimination. Evidence of bias against Hispanic employees was “less robust,” Judge Howell said, but the plaintiff proffered negative statements by the SVP about employees’ accents.

“If believed, however, this testimony permits the inference that [the SVP] held negative views of Hispanic and overweight employees, and a jury could infer that [the SVP] acted upon those views in declining to select Ms. Lapera for the Vice President of Planning and Alignment position,” the court said.

“Although a close call, reviewing the record as a whole, Ms. Lapera has produced sufficient evidence to create a genuine issue as to whether Fannie Mae’s rationale for selecting [the other candidate] for the [vice president position] was pretextual,” Judge Howell wrote, as the record supported two plausible interpretations of what happened. “One view is that [the SVP], who drove the hiring process, harbored biases toward Hispanic and overweight employees and selected [the other candidate] not because she was more qualified but because she fit the mold in terms of demographics and personal appearance that [the SVP] preferred. The other view is that, notwithstanding her subject matter expertise, Ms. Lapera simply lacked the requisite communication skills to be effective in the Vice President of Planning and Alignment role. Ultimately, a jury will get to choose between these ‘competing views.’”

To read the opinion in Lapera v. Federal National Mortgage Association, click here.