United States District Court, District of Columbia
RICHARD A. FIGUEROA, Plaintiff,
REX TILLERSON, Secretary, U.S. Department of State,  Defendant.
CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE.
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.
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.
Promotions within the Foreign Service
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.
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
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.
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
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.
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
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.
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).
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.
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
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).
Factual and Procedural History
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.
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.
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.
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 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.
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
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)
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