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Figueroa v. Pompeo

United States District Court, District of Columbia

January 8, 2020

RICHARD A. FIGUEROA, Plaintiff,
v.
MICHAEL R. POMPEO, Secretary, U.S. Department of State, [1] Defendant.

          MEMORANDUM OPINION

          CHRISTOPHER R. COOPER, UNITED STATES DISTRICT JUDGE

         Plaintiff 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.

         The 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.

         I. Background

         In its 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.

         Figueroa, 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.

         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. 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.

         In 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.

         Figueroa 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.

         The 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.

         With 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.

         The 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.

         While 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.[2]

         II. ...


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