In Figueroa v. Pompeo, No. 18-5064 (D.C. Cir. 5/10/2019), the United States Court of Appeals for the District of Columbia held that an employer cannot meet its burden to articulate a legitimate, nondiscriminatory reason for its action with vague assertions about the reasons for an adverse employment action.
Richard Figueroa was employed by the U.S. Department of State (the “Department”) as a foreign service officer. He applied for promotion every year between 2000 and 2008, but he was passed over in favor of other candidates each time. After the 2008 promotion cycle, Figueroa filed a complaint with the Department’s Office of Civil Rights alleging that he was being discriminated against because he is Hispanic. The Department concluded that while Figueroa made a prima facie showing of discrimination, he failed to show that the reason he was denied promotion – that there were better qualified candidates – was pretextual.
The EEOC and later the federal district court also accepted the Department’s explanation that more qualified candidates were selected. The Department explained that candidates for promotion are ranked 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. Much of the ratings are based on the evaluators’ subjective determinations. Figueroa made it to the lower end of ranked finalists in 2004 and 2005, but then his ratings declined.
Employees bringing discrimination claims often use the three-step McDonnell Douglas method of proof when there is no direct evidence of discriminatory intent. Under this method, the employee must establish a prima facie case of discrimination. The elements of the prima facie case will vary slightly depending on the type of employment action involved (e.g., hiring, discipline, discharge, etc.). If a prima facie case is established, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its action. If the employer does so, the burden shifts back to the employee, who must prove that, despite the proffered reason, he has been the victim of intentional discrimination.
The second step in the McDonnell Douglas method of proof is often taken for granted. It is a relatively low burden to “articulate” a legitimate nondiscriminatory reason for an employment action. But this is where the Court thought the Department’s case broke down. The Court wrote, “an employer cannot satisfy its burden of production with insufficiently substantiated assertions.”
The Court dug deep into what an employer must do to establish the second McDonnell Douglas factor. First, the employer must produce admissible evidence. Second, the factfinder must be able to reasonably conclude from the evidence that the employer was motivated by a nondiscriminatory reason. Third, the nondiscriminatory explanation must be legitimate, meaning it is facially credible given the proffered evidence. Fourth, and this is what the Court determined the Department’s evidence did not do, the evidence must present a clear and reasonably specific explanation.
The Court reasoned that providing a clear and reasonably specific explanation focuses the issues and provides the employee with a full and fair opportunity to attack the employer’s explanation as pretextual. In Figueroa’s case, the Department produced its largely subjective selection criteria and its rankings, but it was not able to produce evidence explaining why other candidates were rated higher than Figueroa. The Court found that without some evidence explaining how Figueroa compared to the top-ranked finalists, he is deprived of a full and fair opportunity to make his case.
In addition to producing the criteria and rankings themselves, the Department presented affidavits from seven of the twelve individuals who ranked applications. But none of the evaluators explained what differentiated the best candidates from the rest, and none recalled why Figueroa’s application was ranked as it was. In fact, notes regarding evaluations had been destroyed per Department policy. In these circumstances, the Court found the Department had not met its burden of production.
Joining several other circuits, the Court wrote:
[W]e 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.
An employer cannot meet its burden to articulate a legitimate, nondiscriminatory reason for its action with vague assertions such as, there were better qualified candidates, that a candidate interviewed poorly, that the employee was discharged as part of a general reduction in force, or that the employee was laid off for economic reasons, Employers must be prepared with evidence to show why other candidates were better qualified, why the interview went poorly, and why a particular employee was laid off.