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,
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.
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."
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.
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.
Once the classwide board has completed its review, any employee who did not receive a promotion is reconsidered by the conal board.
In addition to making promotion recommendations, the selection boards also determine whether employees should be "low-ranked."
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.
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."
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.
Historically, the Department has faced criticisms regarding a lack of racial diversity in the Foreign Service ranks. See, e.g., Shea,
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.
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.
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."
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 effect on minorities (known as 'disparate impact')." Ricci v. DeStefano,
To make out a case for disparate treatment-that is, intentional discrimination-on the basis of race, a plaintiff bears the initial burden of showing that she suffered an adverse employment action because of her race. See, e.g., Brady v. Office of Sergeant at Arms,
Since this case is at summary judgment and the Department has argued that it had a legitimate, nondiscriminatory reason for its action, the Court does not look to whether a prima facie case has been made. See
In contrast, evidence of discriminatory intent or illicit motive is not required to make out a claim for disparate impact. Segar v. Smith,
III. Analysis
Figueroa has raised two claims related to his non-promotion, one for disparate
A. Disparate Treatment
Figueroa first raises a disparate treatment claim: he was not promoted in 2008 because he is Hispanic. See Compl. ¶ 1. The Department responds that it had a legitimate, nondiscriminatory reason for its decision not to promote Figueroa. Def.'s MSJ at 9. The Court thus faces two questions: (1) has the Department proffered a legitimate, nondiscriminatory reason for its actions and, if so, (2) has Figueroa set forth sufficient evidence on which a jury could conclude the Department's proffered reason is pretext for racial discrimination?
1. The Department's legitimate, nondiscriminatory reason
The Department argues that it has provided a legitimate, nondiscriminatory reason for Figueroa's non-selection: it applied the standard criteria in the precepts pursuant to the process detailed there and Figueroa was not ranked highly enough by the selection boards to receive one of the limited promotion slots (and, by inference, was not as qualified as those who were promoted). Def.'s MSJ at 9-10. This reason-the decision to choose a more qualified individual over the plaintiff-has been recognized by the D.C. Circuit as a legitimate, nondiscriminatory reason. See, e.g., Adeyemi v. District of Columbia,
Figueroa nonetheless challenges the sufficiency and legitimacy of this reason. He first contends that the Department has failed to produce sufficient evidence for its proffered reason. But the Department has. It has provided affidavits from members of the 2008 selection boards stating that they reviewed each employee's personnel file in accordance with the criteria set forth in the precepts. See Report of Investigation, at 89-90 (Declaration of selection board member Susan Alexander);
Figueroa urges the Court to ignore the affidavits from the selection board members because they do not recall his application specifically and because the affidavits are "self-serving." This argument misses the mark. For one, the fact that the reviewers do not remember Figueroa's application is not enough to discredit their sworn testimony that they reviewed each of the applications under the precepts; failing to remember a particular application is
The allegedly "self-serving" nature of the affidavits also does not require the Court to discredit them. "[E]vidence a party proffers in support of its cause will usually, in some sense, be 'self-serving.' " Johnson v. Perez,
Figueroa next argues that the Department's rationale is inadequate because it has provided "shifting" reasoning for his non-promotion. But the Department's rationale has been consistent throughout this litigation: it did not promote Figueroa because he was not ranked highly enough by the selection boards following the criteria and process laid out in the precepts. According to the Final Agency Decision, the Department's proffered reason was that it "applied the same criteria to consideration of [Figueroa's] promotion candidacy that it applied to all others." Def.'s Reply Ex. 1, at 14. Similarly, the decision by the EEOC states that the Department "articulated legitimate, nondiscriminatory reasons for its actions," namely that "it applied the same criteria to consideration of [Figueroa's] promotion candidacy that it applied to all others" and Figueroa was not recommended for promotion. Compl. Ex. 2, at 2. And before this Court, the Department maintains this explanation for why Figueroa was not promoted. Def.'s MSJ at 9. Thus, the Department's story has been consistent throughout.
Finally, Figueroa contends that the Department's explanation is not sufficiently "clear and reasonably specific" to constitute a legitimate, nondiscriminatory reason, as required by the Supreme Court's ruling in Texas Department of Community Affairs v. Burdine,
The rationale that the Department has presented here meets this specificity requirement. While Figueroa contends that the reason is just a vague "not qualified enough" excuse, that is not an accurate characterization of the Department's position. The Department explains that the reviewing boards followed the process outlined in the precepts and did not rank Figueroa's application highly enough. The process followed by the selection boards is outlined in detail in the precepts. See Report of Investigation at 117-97 (precepts documents). This level of detail extends to the criteria used by the selection boards in evaluating employees eligible for promotion: the precepts list six core criteria, with specific skills detailed for each criteria along with descriptions of what the mastery of those skills at the low-, mid-, and senior-level looks like. See id. at 118-26. And these same six core precepts are used in the annual employee reviews that the selection board received and used to evaluate employees for promotion. See id. at 205, 210, 216 (Figueroa's evaluations). Thus, the Department's proffered reason is fairly characterized as saying that Figueroa was not ranked highly enough compared to other eligible employees based on an evaluation under the six precepts (including the specific descriptions for each precept).
The Department's reason here is thus specific enough because a plaintiff-and the Court-can clearly see what type of evidence would be needed to demonstrate that the reason is pretext. Namely, a plaintiff could bring forth evidence that, given the articulation of the six precepts the Department has laid out, she clearly meets those requirements based on her prior experience. And the plaintiff can compare her prior experience and achievements to those employees who were eventually promoted using the Department's precepts and their fleshed out descriptions as a guide. Since the same six precepts are used to evaluate employees annually, the employee can easily find a discussion of how she meets-or how those selected do not meet-these six criteria in her annual evaluations and can use these reviews as a basis for a comparison. Indeed, this is precisely what Figueroa contends-he argues in his opposition that his annual reviews and achievements show he is well qualified under the precepts' criteria. Pl.'s MSJ at 19-20.
The cases that Figueroa cites in support of his argument demonstrate why the Department's reason is sufficiently concrete here. For instance, in Patrick, the employer asserted that the plaintiff "was not 'sufficiently suited' " for the position, but "gave no explanation of what this means."
In each of these cases, the employer asserted that the plaintiff was not the "most qualified" without providing any indication of what qualifications it was looking for. In other words, the employer never provided any guidance as to what a "most qualified" or "most suited" candidate would look like. Without a sense of the particular criteria that the plaintiff failed to meet, a plaintiff cannot attempt to show pretext by demonstrating how she does, in fact, measure up to or even exceed the employee selected over her. Moreover, without an articulation of what qualifications matter, a Court cannot be certain whether the plaintiff was deemed less qualified because she failed to meet some specific criteria or because of her gender or race. See Alvarado,
2. Figueroa's evidence of pretext
Since the Department has proffered a legitimate, nondiscriminatory reason for his non-promotion, the burden shifts to Figueroa to provide sufficient evidence by which a reasonable jury could find the Department's stated reason was pretext for racial discrimination. None of the arguments he makes suffices to carry that burden.
First , Figueroa contends that a heightened burden applies because the Department "has been found to be a 'discriminator.' " Pl.'s MSJ at 22. Citing the D.C. Circuit's decision in Bundy v. Jackson,
But Bundy and similar cases are inapposite here. The D.C. Circuit concluded that
The key in both Bundy and Day was that the plaintiff had already proven himself or herself to be the victim of discrimination by that employer on an independent claim other than failure to promote. See Bundy,
Second , Figueroa attempts to demonstrate pretext by arguing that he was clearly qualified for the position. He insists that "no other FS-02 Political Officer candidate promoted by the 2008 Boards could match Plaintiff's leadership and readiness for higher responsibilities" given his "combination of accomplishments." Pl.'s MSJ at 19. While the Court has no reason to doubt Figueroa's experience or accomplishments, "it is the perception of the decision maker which is relevant, not the self-assessment of the plaintiff." Hairston,
But Figueroa presents no evidence that he was significantly better qualified than those selected-or, indeed, any evidence concerning the relative qualifications of those who were promoted over him. Nor does the fact that Figueroa was ranked for promotion in 2004 and 2005 indicate he was significantly better than those promoted in 2008. Given that the candidates are re-evaluated on an annual basis, it is entirely plausible that Figueroa was ranked more highly against the talent pool in 2004 and 2005 than he was against a completely different pool in 2008. There is no evidence in the record to indicate that the quality of applicants in 2004 and 2005 was equal to or greater than in 2008, a necessary first step to raise an inference that Figueroa was better qualified than those selected for promotion in 2008. Thus, Figueroa's contention that he was qualified for the job is insufficient by itself to carry his burden to show pretext.
Finally , Figueroa argues that he is entitled to a negative spoliation inference because the reviewing boards destroyed their notes following the 2008 selection process, consistent with Department procedure at the time. When a party destroys relevant evidence that it has an obligation to maintain, the opposing party may be entitled to a negative inference. See, e.g., Grosdidier v. Broad. Bd. of Governors,
As an initial matter, Figueroa points to no evidence that any notes to be destroyed ever existed in the first place. None of the declarations filed by the selection board members discuss keeping or making notes. See Report of Investigation at 88-116. The simple fact that the Department's policy was for selection board members to discard their notes says nothing about whether such notes were kept to begin with.
And what evidence there is in the record tends to suggest that notes may never have existed in the first place. One of the board members in fact stated that "[t]he Board members did not keep any records" and "were told we may not do so." Id. at 114 (Declaration of selection board member Geeta Pasi). Similarly, Claire Pierangelo-a Department of State employee who served on selection boards in other years-testified that when she served on selection boards, she did not take notes on applications that were mid-ranked, but rather "only took notes on those that [she] moved either to the low ranking or to the promotable piles." Def.'s Reply Ex. 2, at 115:10-22. She further testified that "in general what most board members do is they make a marking that consists of a P for promote, L for low rank, or M for mid rank. So the extent of any ... notes from most board members would be a simple indication of which pile they think [an employee] should belong in." Id. at 51:7-12. Pierangelo's testimony further suggests that there would be few, if any, notes to be found. Thus, Figueroa fails to provide sufficient evidence for the Court to conclude that there even were any substantive notes to begin with. Without that, it is hard for the Court to conclude that the Department in fact destroyed the relevant notes.
As an initial matter, the Department was not involved in litigation with Figueroa or reasonably on notice of prospective litigation at the time any notes were destroyed. The reviewing boards concluded their review and transmitted the results by July 8, 2008. See Def.'s Reply Ex. C, at DOS000696 (cable transmitting the results of the boards' review). Figueroa filed his complaint with the Department's Civil Rights Office-which would have placed the Department on notice of possible litigation-in October 2008, several months later. Thus, the ordinary obligation to retain potentially relevant evidence during the pendency or in reasonable anticipation of litigation was absent in July 2008 when the notes, if they existed, might have been destroyed.
Figueroa contends that the destruction of the notes nonetheless violated an obligation to retain them, pointing first to a regulation by the Office of Personnel Management,
Figueroa also contends that the destruction would have violated an EEOC regulation,
Neither the D.C. Circuit nor any other court in this District appears to have squarely addressed this latter argument. The Court need not resolve it either. Even if the Court agreed that (1) there were notes that were destroyed and (2) that destruction was contrary to an obligation to retain the records, any negative inference to be drawn from the destroyed notes is still insufficient for Figueroa to meet his burden. After all, "even if a factfinder could reasonably infer that the destroyed notes contained information that might be favorable to [Figueroa], favorable evidence
3. Conclusion
Ultimately, the Department has presented a legitimate, nondiscriminatory reason for Figueroa's non-promotion: he was not ranked highly enough by the selection board to be promoted. The question is then whether Figueroa has presented sufficient evidence by which a jury could find that this reason is pretext. Because Figueroa has failed to do so, for the reasons explained above, he cannot carry his burden. The Department is therefore entitled to summary judgment on Figueroa's disparate treatment claim.
B. Disparate Impact
Moving to Figueroa's disparate treatment claim: In order to meet his initial burden, Figueroa "must offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group." Watson v. Fort Worth Bank & Trust,
Figueroa's argument primarily rests on statistics showing the results of the FS-02 to FS-01 promotions during the five-year period from 2004 through 2008. See Def.'s MSJ Ex. F, at DOS001043. Yet Figueroa provides no analysis of these statistics, instead relying on the bare promotion figures without any indication of the statistical significance of any demonstrated discrepancies reflected in them. This approach differs from most cases, where the plaintiff presents expert testimony or other evidence explaining the statistical significance of the numerical data provided, see, e.g., Anderson,
Figueroa's statistics certainly show that fewer Hispanic employees were promoted-indeed, none in 2006, 2007, and 2008-than white applicants or, at times, other minority applicants. But it is settled that "statistics that 'indicate nothing more than an under-representation [of a protected class]' cannot alone create a triable issue of fact." Bolden,
Figueroa's statistics, on their face, do not present such a striking and consistent discrepancy between white and Hispanic employees to give rise to a fair inference that the promotion selection process has a disproportionate impact on Hispanic employees. For one, the rates of promotion for Hispanic employees fluctuated during the five-year period from 2004 through 2008.
There are similar fluctuations in promotion rates for other minority applicant groups from 2004-2008: African American applicants were promoted from FS-02 to FS-01 at rates varying from 0% to 25% and Asian Americans ranging from 7.7% to 40%. Def.'s MSJ Ex. F, at DOS001043.
Finally, stepping back, during the entire 2004-2008 time period, 13.70% of eligible Hispanic employees were promoted from FS-02 to FS-01, a number not far from the overall promotion rate of 16.2%, the 15.92% promotion rate for white applicants, and the 16.67% promotion rate for African American applicants. See Def.'s MSJ Ex. F, at DOS001043.
Even if the statistics showed the sort of disproportionate impact required, Figueroa provides no evidence that such impact was caused by a particular practice-and it is his burden to do so, see Garcia v. Johanns,
Given this fact, plaintiffs in disparate impact cases typically provide some statistical analysis of their data to discount the likelihood that the disparities shown are the consequence of random variation rather than unlawful animus. See, e.g., Hill v. Ross,
IV. Conclusion
Nothing in this opinion is intended to minimize the importance of ensuring diversity in the ranks of the Foreign Service or to assess the State Department's efforts to rectify its past deficiencies in achieving it. Nor is this ruling intended to call into question Mr. Figueroa's notable accomplishments and qualifications. Rather, based on the evidence presented, the Court simply concludes that Figueroa has failed to meet his burden to survive summary judgment on either a disparate treatment
The Court will, accordingly, grant the Department's Motion for Summary Judgment and deny Figueroa's Cross-Motion for Summary Judgment. A separate Order will accompany this Memorandum Opinion.
Notes
Figueroa also filed a class complaint, which was dismissed by the Equal Employment Opportunity Commission. See Report of Investigation at 52. This claim is not at issue here because Figueroa has never sought to certify this case as a class action.
Relying on Alvarado, Figueroa also argues that the employer must provide specific reasons why he was less qualified in order to proffer a sufficiently clear and reasonably specific reason. See Pl.'s MSJ at 19 (citing Alvarado,
In contrast, in the cases that Figueroa cites, there was clear evidence that notes were taken and then destroyed. See Grosdidier,
Figueroa appears to challenge a number of purported personnel practices, including the "fresh look" the selection boards take each year and the Department's failure to give Hispanics leadership positions that would facilitate their promotion. The Department argues that Figueroa did not raise some of these challenged practices in his administrative complaint and thus cannot raise them here. The Court need not resolve this dispute, since it finds that Figueroa fails to meet his burden regardless of which practice is considered.
While Figueroa focuses on the results from 2006-2008, he provides no reason why the Court should ignore the results in 2004 and 2005 given that they are the result of the same process of reviewing and making promotion determinations as in the later years.
While the statistics show the promotion rates of Native American employees as well, only one or two such eligible employees are reported for every year. As such, it is hard to draw any real comparison between any fluctuations in the promotion rates of Native American employees and those of other employees.
Asian employees had a 23.73% promotion rate through that time period, and ultimately Native American employees had a 14.29% promotion rate (1 out of 7). See Def.'s MSJ Ex. F, at DOS001043.
As an added wrinkle, given the nature of the promotion process, it is likely the case that the total number of eligible employees reflected in these statistics (1333 over the five years) does not represent the total number of distinct employees considered for promotion during this time period. Employees, after all, could be reconsidered multiple years. Figueroa provides no statistics on the distinct number of Hispanic (or other) employees eligible over the five year period compared to the total number promoted, nor any analysis of how this dynamic might impact the significance of any numerical differences in annual promotion rates. The Court has calculated promotion rates using the total number of eligible employees listed in the statistics provided by the parties since that is all it has.