Figueroa v. Pompeo

923 F.3d 1078 (2019) United States Court of Appeals for the District of Columbia Circuit 2019-05-10

civil; Title VII national-origin non-promotion (disparate treatment) and disparate impact; summary judgment for the Secretary of State affirmed on disparate impact, reversed on disparate treatment; denial of plaintiff's cross-motion vacated in part and remanded (CADC) (result: mixed)

Facts

  1. 1 Covered entity: employer, employment agency, or labor organization satisfied conceded
    Until 2009, Richard Figueroa worked as a foreign service officer in the United States Department of State (Department).
  2. 2 Protected trait: race, color, religion, sex (including pregnancy/abortion), or national origin satisfied conceded
    Figueroa is a Hispanic male born in Puerto Rico.
  3. 2 Protected trait: race, color, religion, sex (including pregnancy/abortion), or national origin satisfied conceded
    Under established law, Title VII covers discrimination based on Hispanic or Latino ethnicity
  4. 2 Protected trait: race, color, religion, sex (including pregnancy/abortion), or national origin satisfied conceded
    Here, Figueroa reasonably invokes national-origin discrimination.
  5. 4 Adverse employment action affecting compensation, terms, conditions, privileges, or status satisfied conceded
    Figueroa first became eligible for promotion to the FS-01 pay grade in 2000, and he applied every year until his retirement in 2009.
  6. 4 Adverse employment action affecting compensation, terms, conditions, privileges, or status satisfied conceded
    He made it to the lower end of the ranked finalist lists in 2004 and 2005, but he again was deemed mid-ranked from 2006 to 2009.
  7. 4 Adverse employment action affecting compensation, terms, conditions, privileges, or status satisfied conceded
    Indeed, the government conceded the prima facie case for the purpose of the motion.
  8. 6 Employer's legitimate, nondiscriminatory reason (McDonnell Douglas step 2) not law
    The Secretary has produced an eight-page chart outlining the Department's core precepts, and Figueroa does not dispute its admissibility.
  9. 6 Employer's legitimate, nondiscriminatory reason (McDonnell Douglas step 2) not law
    The Secretary also has provided declarations from board members stating that they followed the precepts in considering Figueroa's file.
  10. 6 Employer's legitimate, nondiscriminatory reason (McDonnell Douglas step 2) not law
    Accordingly, we hold that an employer at the second prong must proffer admissible evidence showing a legitimate, nondiscriminatory, clear, and reasonably specific explanation for its actions.
  11. 6 Employer's legitimate, nondiscriminatory reason (McDonnell Douglas step 2) not law
    All we know is that the board determined Figueroa to be mid-ranked-which at most says he was not deficient in any relevant skill.
  12. 6 Employer's legitimate, nondiscriminatory reason (McDonnell Douglas step 2) not law
    But none of the declarants explained what differentiated the best candidates from the rest, nor did they recall anything about why Figueroa's application was middling under the criteria.
  13. 6 Employer's legitimate, nondiscriminatory reason (McDonnell Douglas step 2) not law
    Because the Secretary has failed to meet his burden of production under the McDonnell Douglas framework, we revive the disparate treatment claim.
  14. 10 Particular employment practice causing a disparate impact on a protected group not no-evidence
    Among them are statistics from 2006 to 2008 showing that no Hispanic or Latino candidate was promoted to the FS-01 pay grade, even though, during those years, Hispanic and Latino candidates made up 4.0% to 5.8% of the applicant pool and the overall promotion rate was 14.1% to 17.6%.
  15. 10 Particular employment practice causing a disparate impact on a protected group not no-evidence
    To make a prima facie case, the plaintiff must produce sufficient evidence "demonstrating a causal connection" between the policy and the disparate impact.
  16. 10 Particular employment practice causing a disparate impact on a protected group not no-evidence
    Both point to non-statistical evidence, but none of the cited materials even refers to-let alone establishes a connection with-the challenged refresh policy.
  17. 10 Particular employment practice causing a disparate impact on a protected group not no-evidence
    Because no genuine issue of material fact exists and Figueroa fails to establish causation as a matter of law, the Secretary is entitled to summary judgment on the disparate impact claim.