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Figueroa v. Tillerson

United States District Court, District of Columbia

January 31, 2018

REX TILLERSON, Secretary, U.S. Department of State, [1] Defendant.



         Plaintiff Richard Figueroa climbed the ranks of the Foreign Service for 23 years. But in 2009, after he did not receive one of a limited number of competitively-awarded promotions to the next level, Figueroa was forced into mandatory retirement and filed suit, alleging that the State Department denied him the promotion because he is Hispanic. Proceeding pro se, he advances claims under Title VII of the Civil Rights Act for both disparate treatment and disparate impact. For supporting evidence, Figueroa does not point to any intentional discrimination against him personally. He relies instead on the historical lack of diversity among Foreign Service Officers and the purported unconscious bias of the State Department promotion board that judged him less qualified than other candidates.

         With discovery complete, both parties have moved for summary judgment. Finding that Figueroa has presented insufficient evidence to rebut the Department's legitimate, nondiscriminatory reason for denying him the promotion-that Figueroa was not ranked highly enough in the Department's competitive selection process-and that the statistics Figueroa offers on Hispanic promotion rates do not establish a prima facie case of disparate impact, the Court will grant the Department's motion and deny Figueroa's.

         I. Background

         A. Promotions within the Foreign Service

         The Department of State includes members of the Foreign Service, 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) (citation omitted). Members of the Foreign Service are appointed by the President or the Secretary of State. 22 U.S.C. §§ 3942-43. Upon appointment, a member of the Foreign Service is initially assigned to an appropriate salary class. Id. § 3964. These classes are denominated FS-06 to FS-01, in ascending order of seniority. See Def.'s Mem. Supp. Mot. Summ. J. (“Def.'s MSJ”) Ex. A (“Report of Investigation”), at 132. Above the FS-01 level is the “Senior Foreign Service” level. See id. at 145-46.

         Promotion into the more senior ranks of the Foreign Service, such as level FS-01, occurs through a competitive promotion process. Each year, the Department's Regional Management Analysis office determines how many promotions are available based on how many people are retiring, resigning, or being promoted to a higher level. Def.'s MSJ Ex. D (“Pierangelo Dep.”), at 99:22-101:1. The number of open promotions thus varies from year to year depending on the specific personnel movements in any particular year. Id. at 101:6-12.

         The competitive process that determines which of the eligible employees should receive one of the limited promotion slots is laid out in what the Department refers to as the “precepts.” Id. at 76:19-20. The precepts consist of two main documents that detail this competitive process. Id. The first document explains the procedures for evaluating eligible employees and making promotion decisions and is the product of collective bargaining negotiations between the Department and the American Foreign Services Association, the labor union that represents Foreign Service officers. Id. at 77:8-17. The procedures detail how the selection boards that evaluate eligible employees are organized, what the boards should consider when evaluating employees, and how the boards will proceed towards their decision. Id. The second document sets out the “core precepts, ” which are six areas of competence that the selection boards use to guide their evaluation of the eligible employees for promotion. Id. at 76:20-77:7.

         Based on the record, the promotion evaluation process works as follows. After determining which employees are eligible for promotion-usually based on a requirement for a minimum number of years at the current level-two selection boards review each employee. Id. at 79:4-5. One of these boards is a “classwide” selection board that reviews all of the employees at a particular level (e.g., all FS-02 employees). Id. at 79:11-18. The classwide board has two reviewing groups, a preliminary board and a secondary board. Id. at 79:4-18; Report of Investigation at 153 (precepts documents). In addition to the classwide board, every employee is also reviewed by a second “conal” board that solely considers the employees at a particular rank that are assigned to a specific functional division (or “cone”) of the Foreign Service. Pierangelo Dep. at 79:4-10; Report of Investigation at 154.

         Employees are first reviewed by the preliminary classwide board. Pierangelo Dep. at 95:10-19. The preliminary classwide board selects 35-50% of the employees to advance to the secondary classwide board. Id. at 95:19; Report of Investigation at 153 (precepts documents). The secondary classwide board then reviews each employee and each board member individually determines whether that employee should be recommended for promotion. Pierangelo Dep. at 95:20-96:4; Report of Investigation at 153-54, 190-91 (precepts documents). For all employees who receive a certain minimum number of recommendations, the secondary classwide board ranks the employees in the order it believes they should be promoted. Pierangelo Dep. at 96:2-3. Based on that ranking, employees are promoted according to the number of open spots available for the classwide review process: for instance, if there are fifteen open spots for classwide review, then only the first fifteen ranked employees receive promotions. Id. at 98:19-99:2.

         Once the classwide board has completed its review, any employee who did not receive a promotion is reconsidered by the conal board. Id. at 97:13-98:1, 99:2-8. The conal board reviews each employee afresh, and does not receive any ranking that the classwide board previously assigned to the employee. Id. at 99:4-8. As with the secondary classwide board, each conal board member individually determines which employees should be recommended for promotion and then the board as a group rank-orders the employees who receive the required minimum number of recommendations. Id. at 98:3-7. At the end of the process, employees are promoted based on their ranking and the number of open spots for promotion from the conal board review.

         In addition to making promotion recommendations, the selection boards also determine whether employees should be “low-ranked.” Id. at 22:15-21; Report of Investigation at 137-38 (precepts document). A low ranking is an indication that the employee is deficient in some needed skill or performance area. Pierangelo Dep. at 22:15-21; Report of Investigation at 137- 38. For each low-ranked employee, the selection board that made that ranking prepares a statement explaining the basis for its decision. Report of Investigation at 138-39. Any employee that is neither low-ranked nor numerically-ranked for promotion-which encompasses the majority of the eligible employees every year-is considered “mid-ranked.” Pierangelo Dep. at 23:6-11. Every year, the selection boards undertake a fresh review of the eligible employees without being bound by the rankings-low, mid, or numerical-of the prior year's boards. Id. at 25:15-16.

         To evaluate the eligible employees, the review boards are given the employee's performance file, which contains the evaluations, training forms, awards, and commendation letters that the employee has received in her career. Id. at 104:14-19; Report of Investigation at 142 (precepts document). The boards also receive an abbreviated employee profile, which contains the employee's name, current grade, assignment history, language proficiencies, and promotion history. Pierangelo Dep. at 104:20-105:7; Report of Investigation at 142 (precepts document). The selection boards do not receive any information on an employee's race or ethnicity, except to the extent it can be gleaned from the employee's name. Pierangelo Dep. at 105:8-12. Selection board members are instructed to base their decision solely on the information contained in the employee file. Report of Investigation at 142 (precepts document). In addition, they receive equal employment opportunity training prior to conducting their review. Report of Investigation at 89 (Declaration of selection board member Susan Alexander); id. at 98 (Declaration of selection board member Marian Williams); id. at 108 (Declaration of selection board member David Donahue); id. at 113 (Declaration of selection board member Geeta Pasi).

         In evaluating the eligible employees, the selection boards focus on the six core precepts: (1) leadership skills, (2) managerial skills, (3) interpersonal skills, (4) communication and foreign language skills, (5) intellectual skills, and (6) substantive knowledge. Report of Investigation at 118-26 (precepts decision criteria). A chart created by the Department and the labor union provides detailed descriptions of each of these precepts by listing specific skills within each one-for instance, “innovation” and “teamwork” are skills within the precept “leadership skills” and “job information” and “technical skills” are skills within the precept “substantive knowledge.” Id. at 119, 125. The chart further defines what a low-, mid-, or senior-level employee's mastery of each skill should entail. Id. at 118-26. For instance, the chart describes a senior-level employee in the skill “operational effectiveness” under the precept “managerial skills” as one who “[e]stablishes effective management procedures and controls; encourages and rewards efforts of staff to enhance their effectiveness . . . [and] foresees challenges to, and opportunities for, the organization and takes steps in advance to deal with them.” Id. at 120. Similarly, a senior-level employee in the skill “oral communication” for the precept “communication and foreign language skills” is one who “[e]ffectively argues complex policy issues [and] deals comfortably with the most senior levels of government and society.” Id. at 123.

         The six core precepts that the selection boards use to evaluate employees for promotion are the same skills used to evaluate employees in their annual evaluations. Id. at 205 (Figueroa's 2008 evaluation); id. at 210 (Figueroa's 2007 evaluation); id. at 216 (Figueroa's 2006 evaluation). In these annual evaluations, the reviewers are instructed to address the employee's performance and potential for advancement in each of the six core precepts, using specific examples. Id. at 205, 210, 216. The reviewer is explicitly directed to the core precepts-the same chart that the selection boards have-for the definitions of each competency. Id. at 205, 210, 216. When the selection boards evaluate employees, they receive copies of each of these performance reviews as part of the employee's performance file. Id. at 142 (precepts document); see also Pierangelo Dep. at 104:14-19. Essentially, then, the competitive-promotion process is designed to dovetail with the Department's annual performance-evaluation process.

         Historically, the Department has faced criticisms regarding a lack of racial diversity in the Foreign Service ranks. See, e.g., Shea, 796 F.3d at 47. In 1985, Congress enacted legislation directing the Department to create “a plan designed to increase significantly the number of members of minority groups” in the Foreign Service. Id. (citation omitted). Two years later, Congress again admonished the Department to increase its efforts to ensure diversity in the Foreign Service. Id. The Department subsequently adopted an affirmative action plan, which the D.C. Circuit upheld against a challenge of reverse discrimination. See id. at 65. Still, concerns over the lack of minority representation in the highest levels of the Foreign Service persist to this day. See, e.g., Pl.'s Mot. Summ. J. (“Pl.'s MSJ”) Ex. RAF-21 (letters from members of Congress dated March 2016).

         B. Factual and Procedural History

         Richard Figueroa, a Hispanic man born in Puerto Rico, began working at the Department of State in March of 1986 in the political cone. Def.'s MSJ Ex. B (“Figueroa Dep.”), at 6:3-4. Figueroa was first appointed at the FS-05 level, serving overseas with an initial assignment in Madrid, Spain. Id. at 6:10-11. He was administratively promoted from FS-05 to FS-04 in 1988, and by 1997 had been promoted up to the FS-02 level. Id. at 6:16-25.

         Figueroa was first eligible to be promoted to the FS-01 level in 2000, but he was low-ranked by the selection boards in both 2000 and 2001. Id. at 25:20-26:2. He was then mid-ranked the next two years, in 2002 and 2003. Pierangelo Dep. at 128:20-129:2, 130:11-13. In 2004, Figueroa was recommended for promotion and ranked 79 out the 87 employees eligible that year. Id. at 130:20-131:2. But he ultimately did not receive a promotion because only 43 promotions were awarded in 2004. See Def.'s MSJ Ex. F, at DOS001043. Similarly, in 2005 Figueroa was recommended for promotion, this time ranked 118 out of 141. Pierangelo Dep. at 131:22-132:3. Again, though, Figueroa did not receive a promotion because only 39 promotions were awarded that year. See Def.'s MSJ Ex. F, at DOS001043. In 2006, 2007, 2008, and 2009, Figueroa was again mid-ranked. Pierangelo Dep. at 132:5-133:8. Figueroa retired from the Foreign Service in 2009 at the FS-02 level pursuant to Department regulations that require employees who do not receive a promotion within a certain number of years to retire from the Foreign Service. Figueroa Dep. at 82:13.

         On October 20, 2008, following the 2008 promotion process where he was ultimately mid-ranked, Figueroa met with an Equal Employment Opportunity Counselor at the Department. Report of Investigation at 18. At this meeting, Figueroa alleged that the Department had discriminated against him because of his Hispanic race when it failed to promote him to the FS-01 level. Id. at 19. He also alleged that the Department systemically discriminated against Hispanics in the promotion and retention of Foreign Service officers and sought a retroactive promotion to the FS-01 level as of 2003 as well as for the Department to “improve its system for promoting and retaining minorities especially Hispanics.” Id. at 19-20.

         Figueroa then filed a formal complaint of discrimination with the Department's Office of Civil Rights on November 26, 2008. Id. at 14.[2] After an investigation, the Department issued a Final Agency Decision on August 15, 2013, concluding that Figueroa had not prevailed on his claim of discrimination on the basis of race. Def.'s Reply Supp. Mot. Summ J. & Opp'n Pl.'s Cross-Mot. Summ. J. (“Def.'s Reply”) Ex. 1 (“Final Agency Decision”), at 15. The Final Agency Decision concluded that Figueroa had made out a prima facie case of disparate treatment, though not of disparate impact. Id. at 13-14. However, the Final Agency Decision found that the Department had brought forth a legitimate, nondiscriminatory reason for Figueroa's non-promotion, namely that “it applied the same criteria to consideration of [Figueroa's] promotion candidacy that it applied to all others.” Id. at 14. Since Figueroa failed to present evidence of pretext, the Final Agency Decision rejected his claim of discrimination. Id. at 14-15. Figueroa appealed this decision to the Equal Employment Opportunity Commission (“EEOC”), which affirmed on March 1, 2016. Compl. Ex. 2, at 6-7.

         The following month, Figueroa filed suit in this Court against the Department of State. His complaint contends that the Department violated Title VII of the Civil Rights Act of 1964 by discriminating on the basis of national origin in the denial of his promotion from FS-02 to FS-01 in 2008. Compl. ¶ 1. He requests reinstatement in the Foreign Service as well as back pay. Id. ¶ 16. The Department filed an answer, and the parties underwent discovery. Now that discovery has concluded, both parties have moved for summary judgment.

         II. Legal Standard

         Summary judgment is appropriately granted when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A factual dispute is “material” if the resolution “might affect the outcome of the suit under the governing law” and “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When deciding a motion for summary judgment, the Court must “‘examine the facts in the record and all reasonable inferences derived therefrom in a light most favorable to' the nonmoving party.” Robinson v. Pezzat, 818 F.3d 1, 8 (D.C. Cir. 2016) (citation omitted).

         Title VII of the Civil Rights Act requires that personnel decisions by the federal government be made free from discrimination on the basis of race. 42 U.S.C. § 2000e-16(a). This prohibition encompasses “both intentional discrimination (known as ‘disparate treatment') as well as, in some cases, practices that are not intended to discriminate but in fact have a disproportionately adverse ...

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