United States District Court, District of Columbia
RICHARD A. FIGUEROA, Plaintiff,
MICHAEL R. POMPEO, Secretary, U.S. Department of State,  Defendant.
CHRISTOPHER R. COOPER, UNITED STATES DISTRICT JUDGE
Richard Figueroa believes that, but for his Hispanic
heritage, he would have been promoted by the State Department
rather than forced into mandatory retirement. He filed suit
in 2016 against the Department, advancing claims under Title
VII of the Civil Rights Act of 1964 for both disparate
treatment and disparate impact. After the parties conducted
discovery regarding those claims, both moved for summary
judgment in 2017. In a January 2018 decision, this Court
sided with the State Department. That decision concluded,
with respect to the disparate treatment claim, that Figueroa
had not produced evidence to rebut the Department's
proffered legitimate, nondiscriminatory reason for denying
his promotion. Figueroa v. Tillerson, 289 F.Supp.3d
212, 224-28 (D.D.C. 2018). It further held that Figeuroa had
failed to establish a prima facie case of disparate
impact. Id. at 228-30.
D.C. Circuit, in May 2019, affirmed in part, reversed in
part, and vacated in part. Figueroa v. Pompeo, 923
F.3d 1078 (D.C. Cir. 2019). Although it agreed that
Figueroa's disparate impact claim lacked merit,
id. at 1086, it determined that the Department's
claimed nondiscriminatory reason for denying Figueroa a
promotion was so vague that it denied him the opportunity to
meaningfully rebut it, id. at 1094-95. Accordingly,
the Circuit reversed the portion of this Court's order
granting summary judgment to the Department on Figueroa's
disparate treatment claim and revived Figueroa's
cross-motion for summary judgment with respect to that claim
for fresh consideration. Because the Court now concludes that
Figueroa has established a prima facie case of
disparate treatment, and because the Circuit has determined
that the Department failed to rebut that case by providing a
legitimate, nondiscriminatory reason for denying his
promotion, the Court will enter summary judgment on that
claim in Figueroa's favor.
first ruling on the parties' motions for summary
judgment, the Court described in detail the State
Department's promotion process. Figueroa, 289
F.Supp.3d at 215-18. Because the intricacies of that process
are no longer at issue-and the focus is now exclusively on
whether Figueroa has established a prima facie case
of disparate treatment-the Court elides that description
here. Readers interested in a more comprehensive background
may refer to the Court's prior opinion.
a Hispanic man born in Puerto Rico, began working at the
Department of State in March 1986 in the political cone. Def.
Mot. Summ. J., 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 up to the FS-02 level by
1997. Id. at 6:16-25.
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. Def. Mot. Summ. J., Ex.
D (“Pierangelo Dep.”), at 128:20-129:2,
130:11-13. In 2004, Figueroa was recommended for promotion
and ranked 79th out of 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. Mot. Summ. J., Ex. F, at
DOS001043. Similarly, Figueroa was recommended for promotion
in 2005, this time ranked 118th out of 141 eligible
employees. 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 through 2009, Figueroa was
again mid-ranked and not ultimately promoted each year.
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 mandate retirement for employees
who do not receive a promotion within a certain number of
years. Figueroa Dep. at 82:13.
October 2008, following the annual promotion process where he
was ultimately mid-ranked, Figueroa met with an Equal
Employment Opportunity Counselor at the Department. Def. Mot.
Summ. J., Ex. A, at 18. At this meeting, Figueroa alleged
that the Department had discriminated against him because of
his Hispanic ethnicity 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.
then filed a formal complaint of discrimination with the
Department's Office of Civil Rights on November 26, 2008.
Id. at 14. After an investigation, the Office issued
a Final Agency Decision on August 15, 2013, which concluded
that Figueroa had not prevailed on his claim of
discrimination on the basis of national origin. Def. 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
Office found that the Department had put 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 sufficient evidence of pretext,
the Office ultimately rejected his claim of disparate
treatment. Id. at 14-15. Figueroa appealed this
decision to the EEOC, which affirmed the Final Agency
Decision on March 1, 2016. Compl., Ex. 2, at 6-7.
following month, Figueroa filed suit in this Court against
the Secretary of State. His complaint contends that the
Department violated Title VII by discriminating on the basis
of national origin in denying 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 government filed an answer, the parties conducted
discovery, and dueling motions for summary judgment followed.
respect to Figueroa's disparate treatment claim, this
Court, relying on the shortcut that the D.C. Circuit set
forth in Brady v. Office of Sergeant at Arms, 520
F.3d 490, 494 (D.C. Cir. 2008), “d[id] not look to
whether a prima facie case has been made.”
Figueroa, 289 F.Supp.3d at 220. The Court concluded
that the Department had offered a legitimate,
nondiscriminatory reason for not promoting
Figueroa-essentially that Figueroa, though minimally
qualified, was less qualified than other candidates
who were promoted based on criteria that were uniformly
applied by the selection boards-and that Figueroa had failed
to show that the Department's proffered reason was
pretext. The Court also rejected Figueroa's disparate
impact claim. Accordingly, the Court granted the
Department's motion for summary judgment and denied
Figueroa's. Id. at 230-31.
D.C. Circuit reversed the Court's ruling on
Figueroa's disparate treatment claim. See
Figueroa, 923 F.3d at 1093-95. The Circuit concluded
that the Department had proffered a “vague
reason” for Figueroa's non-promotion that did
“not explain why the [selection] boards deemed
[Figueroa] less qualified than the highest-ranked
candidates.” Id. at 1093. Without “some
evidence explaining how Figueroa compared to the top-ranked
finalists, Figueroa [wa]s deprived of a full and fair
opportunity” to show that the Department's claimed
reason was pretext. Id.
the Circuit's holding precluded summary judgment in the
Department's favor, it did not-by itself-compel summary
judgment for Figueroa. That was because this Court never
decided, in the first instance, whether Figueroa had
established a prima facie case of discrimination. On
remand, then, the Circuit instructed the Court to decide
whether “every reasonable juror would find that the
prima facie case ‘is supported'
by the summary judgment record.” Id. at 1095
(quoting St. Mary's Honor Ctr. v. Hicks, 509
U.S. 502, 510 n.3 (1993)). If so, the Court
“‘must find the existence of the
presumed fact of unlawful discrimination and must,
therefore,' issue summary judgment in Figueroa's
favor.” Id. (quoting St. Mary's Honor
Ctr., 509 U.S. at 510 n.3). To that task, then, the
Court now turns.