United States Court of Appeals, District of Columbia Circuit
Richard A. Figueroa, Appellant
Michael R. Pompeo, Secretary, U.S. Department of State, Appellee
from the United States District Court for the District of
Columbia (No. 1:16-cv-00649)
Frenkel, appointed by the Court, argued the cause as amicus
curiae in support of Appellant. With her on the briefs was
Richard A. Figueroa, Pro se, filed the briefs for Appellant.
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.
WILKINS, CIRCUIT JUDGE
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.
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.
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.
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
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.
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).
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.
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
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.
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.
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.
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.
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.
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.
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