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Figueroa v. Pompeo

United States Court of Appeals, District of Columbia Circuit

May 10, 2019

Richard A. Figueroa, Appellant
Michael R. Pompeo, Secretary, U.S. Department of State, Appellee

          Appeal from the United States District Court for the District of Columbia (No. 1:16-cv-00649)

          Amelia Frenkel, appointed by the Court, argued the cause as amicus curiae in support of Appellant. With her on the briefs was James Rosenthal.

          Richard A. Figueroa, Pro se, filed the briefs for Appellant.

          Daniel P. Schaefer, 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: Henderson and Wilkins, Circuit Judges, and Edwards, Senior Circuit Judge.



         A worker challenging employment discrimination often must demonstrate her employer's illegal intent. That is not easy. Employers ordinarily are not so daft as to create or keep direct evidence of discriminatory purpose.

         Decades ago, the Supreme Court devised a three-step process to help the employee make her case through circumstantial evidence. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). Over the years, we have filled hundreds of pages in the Federal Reporter explaining the first and third prongs of the McDonnell Douglas framework. This case compels us to bring into focus an issue on which we rarely pause: what we require at the second step.

         Until 2009, Richard Figueroa worked as a foreign service officer in the United States Department of State (Department). He presses two claims in his pro se lawsuit against the Secretary of State (Secretary). First, he contends that one aspect of the Department's promotion process has had a disparate impact on Hispanic and Latino candidates who applied for the position he sought. Second, he alleges that the Secretary in 2008 denied him a promotion because of his Hispanic ethnicity. After discovery, both sides filed motions for summary judgment. The District Court sided with the Secretary, and Figueroa seeks our review.

         We now affirm the judgment in part because the disparate impact claim lacks merit. But as to the second claim, the District Court misapplied the second step of the McDonnell Douglas framework. We reverse the grant of the Secretary's motion in part, vacate the denial of Figueroa's cross-motion in part, and remand for further proceedings.



         Title VII of the Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241, 253-66 (codified as amended in 42 U.S.C. §§ 2000e to 2000e-17), reflects the American promise of equal opportunity in the workforce and shields employees from certain pernicious forms of discrimination. The statute's substantive protections "apply with equal force in both private and federal-sector cases." Ponce v. Billington, 679 F.3d 840, 844 (D.C. Cir. 2012).

         Relevant here, federal employees may invoke two theories to prove Title VII liability. First, under the disparate impact theory, employees may challenge the government's use of a "particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin." See 42 U.S.C. § 2000e-2(k)(1)(A)(i). Second, under the disparate treatment theory, they may challenge any "personnel actions affecting employees" and involving "any discrimination based on race, color, religion, sex, or national origin." Id. § 2000e-16(a). Such actions include hiring, firing, and the provision of "compensation, terms, conditions, or privileges of employment." See id. § 2000e-2(a)(1).

         Figueroa is a Hispanic male born in Puerto Rico. Under established law, Title VII covers discrimination based on Hispanic or Latino ethnicity, a distinction "as 'odious' and 'suspect' as those predicated" on race, color, and national origin. United States v. Doe, 903 F.2d 16, 21-22 (D.C. Cir. 1990) (footnotes omitted); see also Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 63 (2006) (noting that Title VII protects against "ethnic" discrimination). We interpret the three Title VII categories as working together to prevent such discrimination. Employees are free to invoke one or more of the three categories as they see relevant and analogous to their circumstances. See, e.g., Ricci v. DeStefano, 557 U.S. 557, 562-63 (2009) (race); Ortiz-Diaz v. U.S. Dep't of Hous. & Urban Dev. Office of Inspector Gen., 867 F.3d 70, 71 (D.C. Cir. 2017) (race and national origin); Ben-Kotel v. Howard Univ., 319 F.3d 532, 533 (D.C. Cir. 2003) (national origin). We expect that few, if any, cases by Hispanic and Latino employees will implicate none of those prongs.


         Here, Figueroa reasonably invokes national-origin discrimination. (We also see no issue with the District Court's sua sponte invocation of race discrimination. See Figueroa v. Tillerson, 289 F.Supp.3d 212, 219-20 (D.D.C. 2018).) Figueroa joined the Department's Foreign Service in 1986. The Foreign Service employs officers who "advocate American foreign policy, protect American citizens, and promote American interests throughout the world." Shea v. Kerry, 796 F.3d 42, 46 (D.C. Cir. 2015) (quoting Taylor v. Rice, 451 F.3d 898, 900 (D.C. Cir. 2006)). Figueroa started at a mid-level pay grade - FS-05 - and served in the political division of the Foreign Service, also known as the political "cone." The highest FS pay grade is FS-01, and the Secretary promoted him up the ranks to the FS-02 level in 1997.

         Officers become eligible for promotion after they work a minimum number of years at their current FS pay grade. Every year, an office in the Department determines the number of promotion slots. The Secretary divvies them up between two six-member selection boards. The boards select candidates in turn. The first board reviews all employees across a salary level - all FS-02 officers, for instance. The second board then reviews the candidates whom the Secretary did not promote from the first board's recommendations. The second board considers employees in a particular cone - all political-cone officers, as an example.

         The boards employ a similar evaluative approach, with differences not relevant to this appeal. The Department instructs board members to base their decisions on the candidate files they receive. The members of a board independently will determine whether each candidate should be placed on a list of finalists. A candidate generally needs one member's recommendation to become a finalist. Once they have determined the list, the members individually review each finalist's file again, this time giving it an overall score of one to ten. The scores are totaled and help the group decide how to rank the finalists. The Secretary promotes the highest ranked according to the number of open slots afforded to the board.

         The candidates who fail to become finalists are classified as low- or mid-ranked. The boards do not issue scores to those candidates. The low-ranked are deemed to have performed the worst in the applicant pool, and the ranking indicates that the candidate is deficient in some relevant skill. The rest are mid-ranked. Each year, the boards engage in a fresh look at each candidate, regardless of her ranking in prior years.

         The board members evaluate the files based on substantive criteria called "core precepts." They consist of six performance areas: leadership skills, managerial skills, interpersonal skills, communication and foreign language skills, intellectual skills, and substantive knowledge.

         The Department and labor union representing foreign service officers like Figueroa created an eight-page chart describing the precepts in place from 2005 to 2008. Some precepts are purely subjective. According to the chart, an evaluator assessing leadership skills must assess the officer's innovation, decisionmaking, teamwork, openness to dissent, community service, and institution building. Others appear more objective. As an example, the evaluator considering substantive knowledge will observe the officer's application of job knowledge, institutional knowledge, technical skills, professional expertise, and knowledge of foreign cultures. But the chart reveals that even the more objective precepts involve purely subjective determinations. For each precept, the chart identifies skills that evaluators expect an officer to have at certain stages in her tenure. Under substantive knowledge, the evaluator expects a senior-level officer, among other things, to create supportive work environments. In total, the evaluator looks for 89 specific skills in a junior officer, 94 in a more experienced officer, and 86 in a senior-level officer.

         Figueroa first became eligible for promotion to the FS-01 pay grade in 2000, and he applied every year until his retirement in 2009. The boards classified him as low-ranked in 2000 and 2001 and as mid-ranked in 2002 and 2003. He made it to the lower end of the ranked finalist lists in 2004 and 2005, but he again was deemed mid-ranked from 2006 to 2009.

         On October 20, 2008, after the 2008 promotion cycle, Figueroa sent an email to the Department's Office of Civil Rights, seeking an investigation into alleged discrimination against him because of his Hispanic ethnicity. He filed a formal complaint on November 26, 2008. After years of investigation, the Department issued a Final Agency Decision on August 15, 2013. The Department concluded that Figueroa failed to make a prima facie case of disparate impact. As for disparate treatment, the Department found that he made a prima facie showing, but that he failed to prove that the proffered nondiscriminatory reason for his denial of ...

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