Richard Figueroa v. Michael Pompeo ( 2019 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 14, 2019 Decided May 10, 2019
No. 18-5064
RICHARD A. FIGUEROA,
APPELLANT
v.
MICHAEL R. POMPEO, SECRETARY, U.S. DEPARTMENT OF
STATE,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:16-cv-00649)
Amelia Frenkel, appointed by the Court, argued the cause
as amicus curiae in support of Appellant. With her on the briefs
was James Rosenthal.
Richard A. Figueroa, Pro se, filed the briefs for Appellant.
Daniel P. Schaefer, Assistant U.S. Attorney, argued the
cause for Appellee. With him on the brief were Jessie K. Liu,
U.S. Attorney, and R. Craig Lawrence, Assistant U.S.
Attorney.
Before: HENDERSON and WILKINS, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
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Opinion for the Court filed by Circuit Judge WILKINS.
WILKINS, Circuit Judge: A worker challenging
employment discrimination often must demonstrate her
employer’s illegal intent. That is not easy. Employers
ordinarily are not so daft as to create or keep direct evidence of
discriminatory purpose.
Decades ago, the Supreme Court devised a three-step
process to help the employee make her case through
circumstantial evidence. See McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-05 (1973). Over the years, we have
filled hundreds of pages in the Federal Reporter explaining the
first and third prongs of the McDonnell Douglas framework.
This case compels us to bring into focus an issue on which we
rarely pause: what we require at the second step.
Until 2009, Richard Figueroa worked as a foreign service
officer in the United States Department of State (Department).
He presses two claims in his pro se lawsuit against the
Secretary of State (Secretary). First, he contends that one
aspect of the Department’s promotion process has had a
disparate impact on Hispanic and Latino candidates who
applied for the position he sought. Second, he alleges that the
Secretary in 2008 denied him a promotion because of his
Hispanic ethnicity. After discovery, both sides filed motions
for summary judgment. The District Court sided with the
Secretary, and Figueroa seeks our review.
We now affirm the judgment in part because the disparate
impact claim lacks merit. But as to the second claim, the
District Court misapplied the second step of the McDonnell
Douglas framework. We reverse the grant of the Secretary’s
3
motion in part, vacate the denial of Figueroa’s cross-motion in
part, and remand for further proceedings.
I.
A.
Title VII of the Civil Rights Act of 1964, Pub. L. No. 88-
352, 78 Stat. 241, 253-66 (codified as amended in 42 U.S.C.
§§ 2000e to 2000e-17), reflects the American promise of equal
opportunity in the workforce and shields employees from
certain pernicious forms of discrimination. The statute’s
substantive protections “apply with equal force in both private
and federal-sector cases.” Ponce v. Billington, 679 F.3d 840,
844 (D.C. Cir. 2012).
Relevant here, federal employees may invoke two theories
to prove Title VII liability. First, under the disparate impact
theory, employees may challenge the government’s use of a
“particular employment practice that causes a disparate impact
on the basis of race, color, religion, sex, or national origin.”
See 42 U.S.C. § 2000e-2(k)(1)(A)(i). Second, under the
disparate treatment theory, they may challenge any “personnel
actions affecting employees” and involving “any
discrimination based on race, color, religion, sex, or national
origin.” Id. § 2000e-16(a). Such actions include hiring, firing,
and the provision of “compensation, terms, conditions, or
privileges of employment.” See id. § 2000e-2(a)(1).
Figueroa is a Hispanic male born in Puerto Rico. Under
established law, Title VII covers discrimination based on
Hispanic or Latino ethnicity, a distinction “as ‘odious’ and
‘suspect’ as those predicated” on race, color, and national
origin. United States v. Doe, 903 F.2d 16, 21-22 (D.C. Cir.
1990) (footnotes omitted); see also Burlington N. & Santa Fe
4
Ry. Co. v. White, 548 U.S. 53, 63 (2006) (noting that Title VII
protects against “ethnic” discrimination). We interpret the
three Title VII categories as working together to prevent such
discrimination. Employees are free to invoke one or more of
the three categories as they see relevant and analogous to their
circumstances. See, e.g., Ricci v. DeStefano, 557 U.S. 557,
562-63 (2009) (race); Ortiz-Diaz v. U.S. Dep’t of Hous. &
Urban Dev. Office of Inspector Gen., 867 F.3d 70, 71 (D.C.
Cir. 2017) (race and national origin); Ben-Kotel v. Howard
Univ., 319 F.3d 532, 533 (D.C. Cir. 2003) (national origin).
We expect that few, if any, cases by Hispanic and Latino
employees will implicate none of those prongs.
B.
Here, Figueroa reasonably invokes national-origin
discrimination. (We also see no issue with the District Court’s
sua sponte invocation of race discrimination. See Figueroa v.
Tillerson, 289 F. Supp. 3d 212, 219-20 (D.D.C. 2018).)
Figueroa joined the Department’s Foreign Service in 1986.
The Foreign Service employs officers 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) (quoting Taylor v.
Rice, 451 F.3d 898, 900 (D.C. Cir. 2006)). Figueroa started at
a mid-level pay grade – FS-05 – and served in the political
division of the Foreign Service, also known as the political
“cone.” The highest FS pay grade is FS-01, and the Secretary
promoted him up the ranks to the FS-02 level in 1997.
Officers become eligible for promotion after they work a
minimum number of years at their current FS pay grade. Every
year, an office in the Department determines the number of
promotion slots. The Secretary divvies them up between two
six-member selection boards. The boards select candidates in
5
turn. The first board reviews all employees across a salary
level – all FS-02 officers, for instance. The second board then
reviews the candidates whom the Secretary did not promote
from the first board’s recommendations. The second board
considers employees in a particular cone – all political-cone
officers, as an example.
The boards employ a similar evaluative approach, with
differences not relevant to this appeal. The Department
instructs board members to base their decisions on the
candidate files they receive. The members of a board
independently will determine whether each candidate should
be placed on a list of finalists. A candidate generally needs one
member’s recommendation to become a finalist. Once they
have determined the list, the members individually review each
finalist’s file again, this time giving it an overall score of one
to ten. The scores are totaled and help the group decide how to
rank the finalists. The Secretary promotes the highest ranked
according to the number of open slots afforded to the board.
The candidates who fail to become finalists are classified
as low- or mid-ranked. The boards do not issue scores to those
candidates. The low-ranked are deemed to have performed the
worst in the applicant pool, and the ranking indicates that the
candidate is deficient in some relevant skill. The rest are mid-
ranked. Each year, the boards engage in a fresh look at each
candidate, regardless of her ranking in prior years.
The board members evaluate the files based on substantive
criteria called “core precepts.” They consist of six performance
areas: leadership skills, managerial skills, interpersonal skills,
communication and foreign language skills, intellectual skills,
and substantive knowledge.
6
The Department and labor union representing foreign
service officers like Figueroa created an eight-page chart
describing the precepts in place from 2005 to 2008. Some
precepts are purely subjective. According to the chart, an
evaluator assessing leadership skills must assess the officer’s
innovation, decisionmaking, teamwork, openness to dissent,
community service, and institution building. Others appear
more objective. As an example, the evaluator considering
substantive knowledge will observe the officer’s application of
job knowledge, institutional knowledge, technical skills,
professional expertise, and knowledge of foreign cultures. But
the chart reveals that even the more objective precepts involve
purely subjective determinations. For each precept, the chart
identifies skills that evaluators expect an officer to have at
certain stages in her tenure. Under substantive knowledge, the
evaluator expects a senior-level officer, among other things, to
create supportive work environments. In total, the evaluator
looks for 89 specific skills in a junior officer, 94 in a more
experienced officer, and 86 in a senior-level officer.
Figueroa first became eligible for promotion to the FS-01
pay grade in 2000, and he applied every year until his
retirement in 2009. The boards classified him as low-ranked in
2000 and 2001 and as mid-ranked in 2002 and 2003. 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.
On October 20, 2008, after the 2008 promotion cycle,
Figueroa sent an email to the Department’s Office of Civil
Rights, seeking an investigation into alleged discrimination
against him because of his Hispanic ethnicity. He filed a
formal complaint on November 26, 2008. After years of
investigation, the Department issued a Final Agency Decision
on August 15, 2013. The Department concluded that Figueroa
failed to make a prima facie case of disparate impact. As for
7
disparate treatment, the Department found that he made a
prima facie showing, but that he failed to prove that the
proffered nondiscriminatory reason for his denial of
promotion – application of the core precepts – was pretextual.
Figueroa appealed to the Equal Employment Opportunity
Commission (EEOC), which affirmed on March 1, 2016.
Within ninety days of receiving notice that the EEOC has
acted on an appeal, an “aggrieved” employee “may file a civil
action” in federal court. 42 U.S.C. § 2000e-16(c). On April 6,
2016, Figueroa filed his pro se action against the Secretary,
asserting disparate impact and disparate treatment. After
discovery had concluded, the parties filed motions for
summary judgment as to both claims. The District Court
granted the Secretary’s motion in full, denied Figueroa’s in
full, and entered judgment on January 31, 2018.
Figueroa now seeks our review. On September 11, 2018,
we denied the Secretary’s motion for summary affirmance and
appointed James Rosenthal as amicus curiae supporting
Figueroa. Amelia Frenkel, who appeared as Rosenthal’s co-
counsel, presented Figueroa’s case at oral argument. We thank
Rosenthal and Frenkel for ably discharging their duties.
II.
We review summary judgment decisions de novo,
considering the record evidence as a whole. Wheeler v.
Georgetown Univ. Hosp., 812 F.3d 1109, 1113 (D.C. Cir.
2016); Hairston v. Vance-Cooks, 773 F.3d 266, 271 (D.C. Cir.
2014). The District Court should grant summary judgment
only if “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 genuine issue of material fact exists ‘if the
evidence, viewed in a light most favorable to the nonmoving
8
party, could support a reasonable jury’s verdict for the non-
moving party.’” Hairston, 773 F.3d at 271 (quoting Hampton
v. Vilsack, 685 F.3d 1096, 1099 (D.C. Cir. 2012)).
III.
We first dispatch with the disparate impact claim. Under
the theory, an employee attacks “employment practices that are
facially neutral in their treatment of different groups but that in
fact fall more harshly on one group than another and cannot be
justified by business necessity.” Int’l Bhd. of Teamsters v.
United States, 431 U.S. 324, 335 n.15 (1977). She need not
demonstrate “illicit motive.” Segar v. Smith, 738 F.2d 1249,
1266 (D.C. Cir. 1984). Generally, the employee’s initial
burden is to identify the specific employment practice allegedly
causing a disparate effect, see 42 U.S.C. § 2000e-2(k)(B)(i),
and to make “a threshold showing of” a “significant statistical
disparity” caused by that practice, Ricci, 557 U.S. at 587(citation omitted). Once she has made the showing, the
defendant must prove “the business necessity of the practice”
or face liability under Title VII. Segar, 738 F.2d at 1267.
Figueroa challenges the fresh annual review given by the
selection boards, which ignore the candidate’s rankings in prior
years. The District Court rejected the claim by making two
alternative findings: (1) his evidence did not indicate a
substantial enough disparity between Hispanic and Latino
officers and others in the pool, and (2) the evidence does not
establish causation. We need not decide the propriety of the
first holding because we agree with the second.
Figueroa provides several pieces of evidence to bolster his
disparate impact claim. 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
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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%. “[S]mall numbers are not per se useless,” and the
“‘inexorable zero’ can raise an inference of discrimination even
if the subgroup analyzed is relatively small.” See Valentino v.
U.S. Postal Serv., 674 F.2d 56, 72-73 (D.C. Cir. 1982) (quoting
Teamsters, 431 U.S. at 342 n.23) (disparate treatment case).
Furthermore, statistics from even one year may support a prima
facie case. See Ricci, 557 U.S. at 586-87; see also Nash v.
Consol. City of Jacksonville, 905 F.2d 355, 358 (11th Cir.
1990).
Still, even if the record evidence indicates a substantial
disparity, the evidence does not demonstrate how the annual
refresh, as opposed to other aspects of the promotion process,
leads to the disparity. To make a prima facie case, the plaintiff
must produce sufficient evidence “demonstrating a causal
connection” between the policy and the disparate impact. Tex.
Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Proj., Inc.,
135 S. Ct. 2507, 2523 (2015); accord 42 U.S.C. § 2000e-
2(k)(1)(A)(i).
Here, Figueroa and amici do not make any persuasive
argument with respect to causation. 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. 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.
IV.
We now turn to the disparate treatment claim. Under the
theory, a worker “seeks to prove that an employer intentionally
10
‘treats some people less favorably than others because of their
race, color, religion, sex, or national origin.’” Segar, 738 F.2d
at 1265 (quoting Teamsters, 431 U.S. at 335 n.15). “Proof of
illicit motive is essential,” and the employee “at all times” has
the burden of proving “that the defendant intentionally
discriminated against” her. Id. at 1265, 1267 (quoting Texas
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
Employees often use the three-step McDonnell Douglas
method of proof when they have only circumstantial evidence
of improper intent. Wheeler, 812 F.3d at 1113; see also Trans
World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985)
(noting that the framework allows employees to have their “day
in court despite the unavailability of direct evidence” (quoting
Loeb v. Textron, Inc., 600 F.2d 1003, 1014 (1st Cir. 1979))).
The framework is “designed ‘progressively to sharpen the
inquiry into the elusive factual question of intentional
discrimination.’” Segar, 738 F.2d at 1297 (Edwards, J.,
concurring) (quoting Burdine, 450 U.S. at 255 n.8). At the first
stage, the employee must establish a prima facie case.
Wheeler, 812 F.3d at 1113-14. If she does, “the burden then
shifts to the employer to articulate a legitimate,
nondiscriminatory reason for its action.” Id. at 1114. If the
employer meets its burden of production, the “burden then
shifts back” to the employee, who must prove that, despite the
proffered reason, she has been the victim of intentional
discrimination. Id.
We have criticized the McDonnell Douglas framework as
creating “largely unnecessary sideshow[s]” about what
constitutes a prima facie case, providing little practical benefit
to parties in the ordinary case, and failing to simplify judicial
proceedings. Brady v. Office of Sergeant at Arms, 520 F.3d
490, 494 (D.C. Cir. 2008). We intimated our general
expectation that, at the summary judgment stage, the District
11
Court will focus on the third prong: whether the employer
intentionally discriminated. Id. We noted that, if the employer
clearly presents a nondiscriminatory reason, the District
Court’s analysis of the prima facie factors at summary
judgment becomes gratuitous, even confusing. Id. We further
observed that employers ordinarily attempt to satisfy the
second prong, and that they often succeed. See id. at 493; cf. 1
BARBARA T. LINDEMANN & PAUL GROSSMAN, EMPLOYMENT
DISCRIMINATION LAW ch. 2.II.B (C. Geoffrey Weirich ed., 5th
ed. 2012) (“The plaintiff’s prima facie case rarely stands
unrebutted.”).
Given the doctrine’s flexibility, we offered a shortcut for
the District Court to tackle the “critical question of
discrimination.” U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 715 (1983) (quoting Furnco Constr. Corp. v.
Waters, 438 U.S. 567, 577 (1978)). When the employer
properly presents a legitimate, nondiscriminatory reason, the
District Court “need not – and should not – decide whether the
plaintiff actually made out a prima facie case” because it better
spends its limited resources on assessing the third prong.
Brady, 520 F.3d at 494.
But the Brady shortcut applies only if the parties properly
move past the second step. See id. at 494 n.2. Brady’s
suggested preference for merits resolution on the third prong is
just that – a suggestion, which the District Court should follow
only when feasible. Brady does not pretermit serious
deliberation at the second prong. Nor does it imply that the
District Court may relieve the employer of its burden, at the
second prong, “to articulate a legitimate, nondiscriminatory
reason for its action.” Wheeler, 812 F.3d at 1114. Failing to
articulate such a reason properly “is the legal equivalent
of . . . having produced no reason at all.” Patrick v. Ridge, 394
F.3d 311, 320 (5th Cir. 2004). A rush to the third prong may
12
deprive the employee of McDonnell Douglas’s unrebutted
presumption of discrimination created by the prima facie case.
See, e.g., Loyd v. Phillips Bros., Inc., 25 F.3d 518, 524 (7th Cir.
1994); Hill v. Seaboard Coast Line R.R. Co., 767 F.2d 771,
774-75 (11th Cir. 1985).
Attempting to abide by Brady, the District Court labored
over the second-prong analysis but ultimately determined that
prior precedent required it to accept the Secretary’s proffered
reason: that the candidates who were promoted were better
qualified than Figueroa. See Figueroa, 289 F. Supp. 3d at 221-
24. The District Court then concluded that he failed to raise a
genuine issue of material fact as to pretext. See id. at 224-28.
We find that the District Court’s conclusion at the second
prong was mistaken. An employer cannot satisfy its burden of
production with insufficiently substantiated assertions. We
now clarify the requirements for an “adequate” evidentiary
proffer by the employer, see Shea, 796 F.3d at 60, and explain
why the Secretary’s was flawed.
Numerous factors may come into play at the second prong.
We list four here, expecting them to be paramount in the
analysis for most cases. First, the employer must produce
evidence that a factfinder may consider at trial (or a summary
judgment proceeding). See Segar, 738 F.2d at 1268 (noting
that evidence must be “admissible”). Second, the factfinder, if
it “believed” the evidence, must reasonably be able to find that
“the employer’s action was motivated by” a nondiscriminatory
reason. Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139,
1151 (D.C. Cir. 2004); see also Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 142 (2000) (noting that the District
Court may not engage in “credibility assessment” of witnesses
who present evidence (quoting St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502, 509 (1993))). That is, the employer must “raise
13
a genuine issue of fact as to whether the employer intentionally
discriminated against the” employee. 1 MERRICK T. ROSSEIN,
EMPLOYMENT DISCRIMINATION LAW AND LITIGATION § 2:8
(2018); accord Reeves, 530 U.S. at 142; St. Mary’s Honor Ctr.,
509 U.S. 502, 509 (1993); Burdine, 450 U.S. at 254. Third, the
nondiscriminatory explanation must be legitimate. In other
words, the reason must be facially “credible” in light of the
proffered evidence. Bishopp v. District of Columbia, 788 F.2d
781, 788-89 (D.C. Cir. 1986).
A central purpose of the second prong is to “focus the
issues” and provide the worker “with ‘a full and fair
opportunity’ to attack the” explanation as pretextual. Lanphear
v. Prokop, 703 F.2d 1311, 1316 (D.C. Cir. 1983) (quoting
Burdine, 450 U.S. at 256). Thus, as the fourth factor, the
evidence must present a “clear and reasonably specific
explanation.” Segar, 738 F.2d at 1269 n.13; accord Burdine,
450 U.S. at 258; Royall v. Nat’l Ass’n of Letter Carriers, AFL-
CIO, 548 F.3d 137, 144 (D.C. Cir. 2008). A “plaintiff cannot
be expected to disprove a defendant’s reasons unless they have
been articulated with some specificity.” Loeb, 600 F.2d at1011 n.5, cited in Burdine, 450 U.S. at 258.
Here, we think that the Secretary fails to meet the fourth
factor (and therefore his burden of production) because his
articulation of a purported legitimate, nondiscriminatory
reason “conceal[s] the target” at which Figueroa must aim
pretext arguments. Lanphear, 703 F.2d at 1316. The Secretary
has produced an eight-page chart outlining the Department’s
core precepts, and Figueroa does not dispute its admissibility.
The Secretary also has provided declarations from board
members stating that they followed the precepts in considering
Figueroa’s file. The Secretary also proffers Figueroa’s
ultimate evaluation in 2008: mid-ranked. The Secretary
contends that the evidence suffices to raise a triable issue of
14
fact regarding intentional discrimination. We disagree as a
matter of law.
We acknowledge that the precepts are facially
nondiscriminatory, and that applying such precepts – no matter
how subjective the criteria – may constitute a legitimate reason
for non-promotion. See, e.g., Browning v. Dep’t of the Army,
436 F.3d 692, 697 (6th Cir. 2006) (“[E]mployers may use
matrices that reward applicants who meet subjective criteria.”).
Indeed, many evaluations require an intuitive, often
idiosyncratic balancing of interests, and we do not second-
guess legitimate business judgments. See 45C AM. JUR. 2D Job
Discrimination § 2450 (2018) (deeming legitimate the
promotion of “someone better qualified”).
Still, with subjective standards, we also perceive an
intolerable risk that a nefarious employer will use them as
cover for discrimination. See Lanphear, 703 F.2d at 1316.
McDonnell Douglas allows for employees to pierce the opacity
and for factfinders to distinguish between good and bad actors.
In our view, we frustrate the Supreme Court’s design if we
allow employers to satisfy their burden of production without
a “clear and reasonably specific” explanation as to how the
employers applied their standards to the employee’s particular
circumstances. Segar, 738 F.2d at 1269 n.13. Plaintiffs lack
the resources (and the clairvoyance) to guess at how their
respective decisionmakers interpreted the criteria and to
explain away each standard at trial. We also expect that no
reasonable jury would accept a vague and slippery explanation.
Homing in on the dangers of imprecise, subjective
reasoning, the Eleventh Circuit has articulated a set of legal
principles that we adopt today. The employer “may not merely
state that the employment decision was based on the hiring of
the ‘best qualified’ applicant.” Steger v. Gen. Elec. Co., 318
15
F.3d 1066, 1076 (11th Cir. 2003); see also Chapman v. AI
Transport, 229 F.3d 1012, 1034 (11th Cir. 2000) (en banc)
(“[I]t might not be sufficient for a defendant employer to say it
did not hire the plaintiff applicant simply because ‘I did not like
his appearance’ with no further explanation.”). As the
Eleventh Circuit persuasively argues, such a vague statement
“leaves no opportunity for the employee to rebut the given
reason as a pretext.” Increase Minority Participation by
Affirmative Change Today of Nw. Fla., Inc. (IMPACT) v.
Firestone, 893 F.2d 1189, 1194 (11th Cir. 1990). Instead, the
employer must “articulate specific reasons for that applicant’s
qualifications such as ‘seniority, length of service in the same
position, personal characteristics, general education, technical
training, experience in comparable work or any combination’
of such criteria.” Steger, 318 F.3d at 1076 (quoting IMPACT,
893 F.2d at 1194); see also Alexander v. Fulton Cty., 207 F.3d
1303, 1342-43 (11th Cir. 2000) (finding that an employer failed
to provide a sufficient reason for promoting two candidates
because the evidence “failed to identify any specific
qualifications of [the other candidates’] that explained his
appointment”), overruled in part on other grounds by Manders
v. Lee, 338 F.3d 1304 (11th Cir. 2003) (en banc).
Every sister circuit confronting the issue has agreed with
the Eleventh Circuit. The Fifth, Sixth, and Seventh Circuits
now demand proffers of evidence reasonably revealing how the
employer applied subjective standards to the worker’s
circumstances. See Alvarado v. Tex. Rangers, 492 F.3d 605,
616-18 (5th Cir. 2007) (noting that a “subjective reason for not
selecting a candidate” will satisfy the second prong “only if the
employer articulates a clear and reasonably specific basis for
[the] subjective assessment,” and finding insufficient the
employee’s lower interview scores because the employer
provided no “explanation” or “evidence” for why other
candidates were evaluated more favorably or of their “relative
16
qualifications”); EEOC v. Target Corp., 460 F.3d 946, 957 (7th
Cir. 2006) (rejecting the mere assertion that the employee “did
not meet the requirements” because the employer failed to
“give a clear statement as to which requirements [he] lacked”);
Patrick, 394 F.3d at 317 (holding that the employer must
articulate a relatively “specific” reason “in some detail,” and
finding insufficient the employer’s proffered reason because it
was “bald and amorphous”); Tye v. Bd. of Educ. of Polaris
Joint Vocational Sch. Dist., 811 F.2d 315, 319 (6th Cir. 1987)
(“[The decisionmaker]’s statement that he did what he thought
was best for [the employer] is a subjective reason which is
legally insufficient to rebut [the employee]’s prima facie
case.”), abrogated in part on other grounds by St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502 (1993); Rowe v. Cleveland
Pneumatic Co., Numerical Control, Inc., 690 F.2d 88, 96-
97 & n.17 (6th Cir. 1982) (rejecting reason that the
decisionmakers “did not want” the worker after completing a
“subjective evaluation procedure,” and finding that neither
“reference” to the employee’s “occasional admonishments” in
the past nor a “passing reference . . . to some deficiency in the
[employee]’s job rating” suffices (quoting Loeb, 600 F.2d at1011 n.5)).
Lyons v. England, 307 F.3d 1092 (9th Cir. 2002), is not to
the contrary. The Ninth Circuit turned to the third McDonnell
Douglas step even though the employer asserted as its reason,
“[w]ithout indicating specific weaknesses,” that the employees
at issue were “not the best qualified.” Id. at 1117. A review of
the briefing in Lyons shows that the employees failed to
challenge the reason’s sufficiency at the second prong. See
Appellants’ Reply Brief at 7-8, Lyons v. England, No. 00-
55343 (9th Cir. filed Aug. 17, 2000), 2000 WL 33989712;
Brief for Appellee Honorable Richard Danzig, Secretary of the
Navy at 36-38, Lyons v. England, No. 00-55343 (9th Cir. filed
Aug. 10, 2000), 2000 WL 33981184. Later cases in the Ninth
17
Circuit have clarified that the articulated reason must be
reasonably specific to the particular worker. See Diaz v. Eagle
Produce Ltd. P’ship, 521 F.3d 1201, 1211 (9th Cir. 2008)
(finding insufficient an employer’s explanation that the
employee “was discharged as part of a general reduction in
force” because such a general statement “does not explain why
[the particular employee] was chosen to be part of” the
discharged group); Davis v. Team Elec. Co., 520 F.3d 1080,
1094 (9th Cir. 2008) (rejecting “economic reasons” because it
did not explain why the employee “in particular was laid off”).
We also do not interpret the Eighth Circuit’s holdings to
conflict with the majority view. The Eighth Circuit in Hilde v.
City of Eveleth, 777 F.3d 998 (8th Cir. 2015), and Torgerson v.
City of Rochester, 643 F.3d 1031 (8th Cir. 2011) (en banc),
proceeded to the third prong while appearing to accept rather
vague statements by the employer. See Hilde, 777 F.3d at 1007
(“[The selected candidate] was simply ‘the most qualified
candidate for the position.’”); Torgerson, 643 F.3d at 1047(“‘[B]oth scored significantly lower than other
candidates. . . . [B]oth . . . were lacking in qualifications as
compared to the higher ranking candidates.’”). But the
employees in both cases failed to raise any argument with
respect to the second prong. See Appellant’s Reply Brief at 8-
15, Hilde v. City of Eveleth, No. 14-1016 (8th Cir. filed Apr.
29, 2014), 2014 WL 1879017; Plaintiffs-Appellants Brief at
35, Torgerson v. City of Rochester, No. 09-1131 (8th Cir. filed
Mar. 10, 2009) (en banc), ECF No. 3525991.
In Nelson v. USAble Mutual Insurance Co., 918 F.3d 990(8th Cir. 2019), the Eighth Circuit held that a black employee’s
lower score on an interview was a legitimate,
nondiscriminatory reason for her employer’s decision to
promote a white applicant instead of her, see id. at 993.
Although the Eighth Circuit makes no reference to the case law
18
established in the Eleventh Circuit, the evidence the employer
proffered would satisfy the standards we articulate today.
The employer implemented a specific scoring and
assessment system for its interviews, “ask[ing] each applicant
the same questions and scor[ing] their responses 1-5 in eleven
separate categories.” Id. at 992. The employer provided not
only evidence of the white applicant’s record but also the
employer’s completed scoresheets to the Eighth Circuit and the
plaintiff. The eleven criteria were clearly delineated and based
on the applicant’s skills, knowledge, education, and
experience. See Reply Brief of Appellant Corrie Nelson at 16,
Nelson v. USAble Mut. Ins. Co., No. 18-1439 (8th Cir. filed
June 13, 2018), 2018 WL 3089602. The scoresheets notified
the plaintiff that, although she had better scores in multitasking
than the white applicant, she had worse ones in five other
categories: oversight skills for daily operations, ability to work
independently, leadership skills, sales skills, and knowledge of
the customer-service process. Id. The pair were also deemed
evenly matched on the other five criteria: initiative, products
knowledge, highest degree and related experience, supervisory
experience, and system experience. Id.With the scoresheets and precise breakdown between the
two candidates, the plaintiff easily could determine which
factors she should challenge at the third prong of the
McDonnell Douglas framework. In her case, the plaintiff
attempted to show pretext by pointing out, among other things,
that she had a master’s degree while the white applicant had
only a high school diploma, and that there was no evidence in
the record that the white applicant had any management
experience. See id. at 18-19. Even though the Eighth Circuit
ultimately rejected her arguments, see Nelson, 918 F.3d at 993-
94, we cannot say the employer’s proffered evidence
19
“conceal[ed] the target” for those pretext challenges, see
Lanphear, 703 F.2d at 1316.
Moreover, the Eleventh Circuit’s rules are consistent with
what employers have done in various cases before us. In
Holcomb v. Powell, 433 F.3d 889 (D.C. Cir. 2006), not only
did the employer point to specific evaluation criteria and assert
that it had promoted the most qualified candidate for a
supervisor position related to Equal Employment Opportunity
(EEO) complaints, but also it provided significant evidence
bolstering the claim. The decisionmaker explained in an
affidavit that she thought the promoted candidate was more
qualified because the former’s “background as a paralegal and
EEO counselor gave her a broader understanding of the
administrative EEO complaint and district court process as well
as more [relevant] hands-on experience than” the plaintiff, and
because the plaintiff listed no “work experience” related to the
listed criteria. Id. at 896. Such evidence reasonably indicated
to the employee that her work experience was the issue.
In Stewart v. Ashcroft, 352 F.3d 422 (D.C. Cir. 2003), the
plaintiff was passed over for a director position, and the
government said its nondiscriminatory reason was that the
other candidate was more qualified. The government provided
evidence that the plaintiff “rarely” attended management
meetings, received complaints about not being involved in
management, and provided as his application a photocopy of
someone else’s memorandum describing the plaintiff’s
managerial skills. Id. at 428-29. Meanwhile, the other
candidate prepared a twenty-one-page application detailing his
managerial vision. Id. at 429. The government’s evidence
fairly put the plaintiff on notice of what reasoning he must
challenge: the other candidate’s “more keen interest in
management.” Id. at 428.
20
In Paquin v. Federal National Mortgage Association, 119
F.3d 23 (D.C. Cir. 1997), the employer produced three years of
annual evaluations, in which the fired plaintiff received notice
of “substandard performance” in three areas: the existence of
“‘repeated or blatant errors’ in . . . work,” the need for
“increased creativity,” and the need for “greater insight into
investor preferences and valuation processes,” id. at 27. By
articulating those specific grounds, the employer gave the
plaintiff targets at which to aim.
Furthermore, our understanding of the second prong does
not conflict with the holdings in Adeyemi v. District of
Columbia, 525 F.3d 1222 (D.C. Cir. 2008); Carter v. George
Washington University, 387 F.3d 872 (D.C. Cir. 2004);
Fischbach v. District of Columbia Department of Corrections,
86 F.3d 1180 (D.C. Cir. 1996); or Milton v. Weinberger, 696
F.2d 94 (D.C. Cir. 1982).
In Adeyemi, we stated that the employer “has asserted a
legitimate, non-discriminatory reason for not hiring [the
plaintiff] – namely, that it hired [two other applicants] because
they were better qualified.” 525 F.3d at 1227. And in
Fischbach, we said: “The Department says that it chose
between [the two candidates] based solely upon their answers
during the interview, as reflected in the score that the interview
panel assigned to each applicant.” 86 F.3d at 1182. We
accepted the reasons and proceeded to the third prong of the
McDonnell Douglas framework. But in both cases, the
plaintiffs conceded that the government had a
nondiscriminatory reason. See Final Brief of the District of
Columbia at 15, Adeyemi v. District of Columbia, No. 07-7077
(D.C. Cir. filed Feb. 26, 2008), 2008 WL 544496; Brief of
Appellee at 16, Fischbach v. D.C. Dep’t of Corr., Nos. 95-
7154, 95-7167 (D.C. Cir. filed Jan. 30, 1996), 1996 WL
33662349.
21
In Milton, we rejected a pre-Burdine Circuit precedent
placing an unduly stringent burden on the employer at the
second prong, and we said we had “little difficulty affirming
the District Court’s finding that [the employer] satisfactorily
articulated” the reason for not hiring one of the plaintiffs. 696
F.2d at 99. In our view, “[t]he record seem[ed] clear” that the
plaintiff would not have scored highly enough on the
employer’s evaluation to be selected for a position. Id.Although we omitted discussion on whether the employer
reasonably explained why her marks were lower than others,
the briefing in the case failed to present such an argument. See
Brief for Appellants at 9-12, Milton v. Weinberger, No. 81-
2200 (D.C. Cir. filed Feb. 18, 1982) (on file with the Circuit
Library of the United States Court of Appeals, District of
Columbia Circuit).
In Carter, we dealt with nondiscriminatory reasons for two
adverse actions. One of the actions was thoroughly explained.
The employer preferred one candidate over the plaintiff for a
fundraising director position. The proffered evidence showed
that the decisionmaker thought the plaintiff was worse because
she “had no pertinent experience working with potential major
donors” and “had never directed a fund-raising campaign of
any size.” Carter, 387 F.3d at 881.
The other action was not. Without further comment, we
accepted the employer’s reason that the plaintiff “interviewed
poorly” before the recommending committee. Id. at 879. In a
cursory statement in the middle of a paragraph, the plaintiff in
her briefing submitted that the employer failed to explain its
reason. Appellant’s Corrected Brief at 19 (“[T]he . . . affidavit
does not specify . . . what interviewing skills she . . . lacked.”),
Carter v. George Wash. Univ., No. 01-7203 (D.C. Cir. filed
Feb. 24, 2004), 2004 WL 5844233. But a fair reading of the
22
brief shows that the plaintiff was directing her arguments
toward the third McDonnell Douglas prong. Moreover, the
District Court explained below that the plaintiff in fact
conceded that she interviewed poorly. See Carter v. George
Wash. Univ., 180 F. Supp. 2d 97, 106 (D.D.C. 2001), aff’d, 387
F.3d 872 (D.C. Cir. 2004). Thus, she failed fairly to present
the argument Figueroa persuasively articulates today. We
would have asked for more had she raised the issue. See
Target, 460 F.3d at 957 (“[I]f the employer rejected an
applicant because he gave a ‘poor interview,’ the employer
must explain what specific characteristics it perceived as
‘poor,’ such as the applicant’s interview responses were
unclear and off point.”).
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. The evidence must suffice to raise a triable issue
of fact as to intentional discrimination and to provide the
employee with a full and fair opportunity for rebuttal. When
the reason involves subjective criteria, the evidence must
provide fair notice as to how the employer applied the
standards to the employee’s own circumstances. Failing to
provide such detail – that is, offering a vague reason – is the
equivalent of offering no reason at all.
V.
Reviewing de novo the legal analysis of the second prong,
see Pullman-Standard v. Swint, 456 U.S. 273, 287 & n.17
(1982), we find that the District Court erred in accepting the
Department’s vague reason. None of the presented evidence
sheds light on how the selection boards applied the core
precepts to Figueroa’s case. All we know is that the board
determined Figueroa to be mid-ranked – which at most says he
23
was not deficient in any relevant skill. But that fact does not
explain why the boards deemed him less qualified than the
highest-ranked candidates.
We see a close analogy between this case and a context
familiar to us and employment discrimination lawyers: grading
in a law school exam. The grading criteria are clear and
unsurprising: writing style, quality of the case citations, and
sophistication of the legal and factual analysis. But an eager
law student who receives a B under the rubric needs more to
understand, and perhaps challenge, her grade. Law students
ordinarily are evaluated on a curve. The professor may believe
a B student to be proficient, even excellent, on all three fronts
yet, for some reason, not to be among the top of the pack.
Perhaps the reason is benign; the curve was just too tight. But
perhaps the professor had indigestion while reading her exam
answers. The student is left only to speculate on whether her
subjectively determined grade was reasonable or unfair.
Unless provided with additional information (such as a model
answer) that shows what differentiates her from the best, the
student is unable to understand her professor’s reasoning and
muster a persuasive case for raising her mark.
Likewise here, unless the Secretary provides Figueroa
with some evidence explaining how Figueroa compared to the
top-ranked finalists, Figueroa is deprived of a full and fair
opportunity to make his case. The problem is worse for
Figueroa than for the law student in our analogy, because he
must address dozens of criteria.
The Secretary also proffered declarations made by seven
of the twelve board members during the EEOC proceedings.
Figueroa does not challenge their admissibility. Four stated
that they considered the core precepts. But none of the
declarants explained what differentiated the best candidates
24
from the rest, nor did they recall anything about why
Figueroa’s application was middling under the criteria.
Figueroa, unlike the plaintiff in Nelson, has largely no idea how
he did relative to the promoted applicants. Lacking sufficient
details, the declarations fail to provide a clear and reasonably
specific explanation under McDonnell Douglas.
And it is of no moment that Figueroa had access to records
in the candidate file reviewed by the selection boards. “The
introduction of ‘personnel records which may have indicated
that the employer based its decisions on one or more of the
possible valid grounds’ will not suffice to meet the” employer’s
burden of production, Steger, 318 F.3d at 1076 (quoting
IMPACT, 893 F.2d at 1194), because the evidence encourages
the employee and factfinder to guess at reasons – which
muddles, not sharpens, the issues and thus contravenes the
purpose of the McDonnell Douglas framework, see IMPACT,
893 F.2d at 1194. If the records had mentioned a clear
deficiency, then it would have been easy for the Secretary to
invoke the fault as a nondiscriminatory reason. See Paquin,
119 F.3d at 27. But the records here do not, and the Department
still must show how the board members in fact evaluated
Figueroa’s file.
The Secretary contends that requiring additional evidence
imposes a “significant burden” on large employers like the
Department, which must review hundreds of candidates.
Appellee’s Br. 29. Although the District Court agreed, see
Figueroa, 289 F. Supp. 3d at 224 n.3, we are not persuaded for
three reasons.
First, the individuals assigned by the Department to
evaluate candidates for promotion must make judgments about
the relative talents of large numbers of employees. The
evaluators essentially are grading candidates on absolute terms
25
and against one another along a curve, and they therefore
should be able to explain why one candidate’s grade is lower
than others. Just as a law professor can give a student a model
answer and an annotated exam to differentiate the student’s
exam from the best, so too can the Secretary’s graders explain
to Figueroa how he fared against the highest-rated candidates.
After all, McDonnell Douglas focuses on what constitutes fair
notice to the employee and a “full and fair opportunity” to make
her case. Lanphear, 703 F.2d at 1316 (quoting Burdine, 450
U.S. at 256). Because the Secretary has elected to run a highly
individualized evaluation system, the employee and the
factfinder justifiably expect a somewhat particularized
explanation.
Second, the burden of production under McDonnell
Douglas does not depend on the employer’s size. See Target,
460 F.3d 949-50, 957-58 (finding inadequate explanation of
retailer running 1,100 stores). Third, we expect that large
employers will find ways to manage. For instance, the
Department in 2016 implemented a policy retaining the
evaluation notes of board members for one year.
As his final argument, the Secretary flags that Figueroa
“had a full and fair opportunity to seek discovery” and yet
failed to avail himself of it. Appellee’s Br. 33. After
attempting to seek the written notes of members (which,
according to the Secretary, had been destroyed pursuant to the
Department’s policy for selection board notes), Figueroa
neither performed any depositions of the decisionmakers nor
sought other “information or documents relating to the”
qualifications of promoted candidates. Id. at 34. We
acknowledge that Figueroa’s pro se discovery strategy is less
than ideal. Even so, we find the Secretary’s point
unpersuasive. Discovery blunders may prevent a plaintiff from
succeeding at the first or third prong. But we see little
26
connection between the second step and discovery. The prong
demands nothing of the employee, and the employer will
always have the relevant records in its possession. Moreover,
even if an employee executes the perfect discovery strategy, a
vague and slippery explanation may still confuse the issues and
prevent the employee from presenting a clean case at trial. See
EEOC v. Flasher Co., 986 F.2d 1312, 1318 (10th Cir. 1992)
(noting that when employers fail to give a proper explanation
“at the outset,” litigations become “needlessly confused and
delayed”). The rules we articulate today help to prevent such
mischief.
VI.
Because the Secretary has failed to meet his burden of
production under the McDonnell Douglas framework, we
revive the disparate treatment claim. The Secretary’s summary
judgment arguments below all relied on a successful showing
of a legitimate, nondiscriminatory reason. Indeed, the
government conceded the prima facie case for the purpose of
the motion. See Defendant’s Reply in Support of Motion for
Summary Judgment and Opposition to Plaintiff’s Cross-
Motion for Summary Judgment at 19 n.3, Figueroa v. Pompeo,
No. 1:16-cv-649 (CRC) (D.D.C. filed May 25, 2017), ECF No.
20. The Secretary having failed to meet his burden, the District
Court was required to deny the motion as to the disparate
treatment claim.
Accordingly, we reverse the judgment in part. We express
no opinion as to whether the District Court correctly analyzed
Figueroa’s claim at the third prong. We do not decide, among
other issues, whether the District Court properly weighed an
EEO report proffered as evidence supporting not only the
Secretary’s post hoc rationalization of the non-promotion but
27
also his spoliation of material records. To defeat the disparate
treatment claim, the Secretary must wait until trial.
But the District Court may not proceed immediately to voir
dire, because it must revisit Figueroa’s summary judgment
cross-motion. Under the McDonnell Douglas framework, an
employee who proves her prima facie case is entitled to a
presumption that the employer discriminatorily mistreated her.
The presumption dissipates only if the employer meets its
burden of production. Here, the District Court did not
determine whether Figueroa made a prima facie case.
Consequently, we vacate in part the District Court’s denial
of Figueroa’s cross-motion, and we remand for further
proceedings. The District Court should decide the merits of the
prima facie case in the first instance, considering the arguments
in Figueroa’s cross-motion and assessing the evidence in the
light most favorable to the Secretary. Although the
government failed to contest the first prong below, the “burden
is always on [Figueroa] to demonstrate why summary
judgment is warranted,” and the District Court “must always
determine for itself whether the record and any undisputed
material facts justify granting summary judgment.”
Winston & Strawn, LLP v. McLean, 843 F.3d 503, 505 (D.C.
Cir. 2016) (quoting Grimes v. District of Columbia, 794 F.3d
83, 97 (D.C. Cir. 2015) (Griffith, J., concurring)).
If every reasonable juror would find that the prima facie
case “is supported” by the summary judgment record, then the
District Court “must find the existence of the presumed fact of
unlawful discrimination and must, therefore,” issue summary
judgment in Figueroa’s favor. St. Mary’s Honor Ctr., 509 U.S.
at 510 n.3; accord O’Connor v. Consol. Coin Caterers Corp.,
517 U.S. 308, 311 (1996). But if the District Court finds a
genuine issue of material fact with respect to the prima facie
28
case, then the case may proceed to trial, where the Secretary
would not be estopped from producing evidence of a
legitimate, nondiscriminatory, clear, and reasonably specific
explanation.
* * *
In sum, we affirm in part, reverse in part, vacate in part,
and remand for further proceedings.
So ordered.