Figueroa v. Tillerson

• Decision Date: 31 January 2018
• Docket Number: Case No. 16–cv–649 (CRC)
• Citation: 289 F.Supp.3d 212
• Parties: Richard A. FIGUEROA, Plaintiff, v. Rex TILLERSON, Secretary, U.S. Department of State, Defendant.
• Court: U.S. District Court — District of Columbia

289 F.Supp.3d 212

Richard A. FIGUEROA, Plaintiff,

v.Rex TILLERSON, Secretary, U.S. Department of State,¹ Defendant.

Case No. 16–cv–649 (CRC)

United States District Court, District of Columbia.

Signed January 31, 2018

Richard A. Figueroa, Washington, DC, pro se.

Daniel Patrick Schaefer, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

CHRISTOPHER R. COOPER, United States District Judge

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, 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. at 145–46.

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. Id. at 101:6–12.

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." 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.

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. 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 at 154.

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. 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.

Once 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 review.

In 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.

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. 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).

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." 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...