                               UNITED STATES DISTRICT COURT
                               FOR THE DISTRICT OF COLUMBIA

 RICHARD A. FIGUEROA,

                          Plaintiff,

                          v.                         Case No. 16-cv-649 (CRC)

 MICHAEL R. POMPEO, Secretary, U.S.
 Department of State, 1

                          Defendant.

                                       MEMORANDUM OPINION

       Plaintiff Richard Figueroa believes that, but for his Hispanic heritage, he would have

been promoted by the State Department rather than forced into mandatory retirement. He filed

suit in 2016 against the Department, advancing claims under Title VII of the Civil Rights Act of

1964 for both disparate treatment and disparate impact. After the parties conducted discovery

regarding those claims, both moved for summary judgment in 2017. In a January 2018 decision,

this Court sided with the State Department. That decision concluded, with respect to the

disparate treatment claim, that Figueroa had not produced evidence to rebut the Department’s

proffered legitimate, nondiscriminatory reason for denying his promotion. Figueroa v. Tillerson,

289 F. Supp. 3d 212, 224-28 (D.D.C. 2018). It further held that Figeuroa had failed to establish

a prima facie case of disparate impact. Id. at 228-30.

       The D.C. Circuit, in May 2019, affirmed in part, reversed in part, and vacated in part.

Figueroa v. Pompeo, 923 F.3d 1078 (D.C. Cir. 2019). Although it agreed that Figueroa’s

disparate impact claim lacked merit, id. at 1086, it determined that the Department’s claimed



       1
            Secretary Pompeo has been automatically substituted as a party pursuant to Fed. R. Civ.
P. 25(d).
nondiscriminatory reason for denying Figueroa a promotion was so vague that it denied him the

opportunity to meaningfully rebut it, id. at 1094–95. Accordingly, the Circuit reversed the

portion of this Court’s order granting summary judgment to the Department on Figueroa’s

disparate treatment claim and revived Figueroa’s cross-motion for summary judgment with

respect to that claim for fresh consideration. Because the Court now concludes that Figueroa has

established a prima facie case of disparate treatment, and because the Circuit has determined that

the Department failed to rebut that case by providing a legitimate, nondiscriminatory reason for

denying his promotion, the Court will enter summary judgment on that claim in Figueroa’s favor.

 I.    Background

       In its first ruling on the parties’ motions for summary judgment, the Court described in

detail the State Department’s promotion process. Figueroa, 289 F. Supp. 3d at 215-18. Because

the intricacies of that process are no longer at issue—and the focus is now exclusively on

whether Figueroa has established a prima facie case of disparate treatment—the Court elides that

description here. Readers interested in a more comprehensive background may refer to the

Court’s prior opinion.

       Figueroa, a Hispanic man born in Puerto Rico, began working at the Department of State

in March 1986 in the political cone. Def. Mot. Summ. J., 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 up to the FS-02 level by 1997. 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. Def. Mot. Summ. J., Ex. D (“Pierangelo Dep.”), at


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128:20-129:2, 130:11-13. In 2004, Figueroa was recommended for promotion and ranked 79th

out of 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. Mot. Summ.

J., Ex. F, at DOS001043. Similarly, Figueroa was recommended for promotion in 2005, this

time ranked 118th out of 141 eligible employees. Pierangelo Dep. at 131:22-132:3. Again,

though, Figueroa did not receive a promotion because only 39 promotions were awarded that

year. See Def.’s MSJ, Ex. F, at DOS001043. In 2006 through 2009, Figueroa was again mid-

ranked and not ultimately promoted each year. Pierangelo Dep. at 132:5-133:8. Figueroa retired

from the Foreign Service in 2009 at the FS-02 level pursuant to Department regulations that

mandate retirement for employees who do not receive a promotion within a certain number of

years. Figueroa Dep. at 82:13.

       In October 2008, following the annual promotion process where he was ultimately mid-

ranked, Figueroa met with an Equal Employment Opportunity Counselor at the Department.

Def. Mot. Summ. J., Ex. A, at 18. At this meeting, Figueroa alleged that the Department had

discriminated against him because of his Hispanic ethnicity 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. After an investigation, the Office issued a Final

Agency Decision on August 15, 2013, which concluded that Figueroa had not prevailed on his

claim of discrimination on the basis of national origin. Def. Reply, Ex. 1 (“Final Agency


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Decision”), at 15. The Final Agency Decision concluded that Figueroa had made out a prima

facie case of disparate treatment, though not of disparate impact. Id. at 13-14. However, the

Office found that the Department had put forth a legitimate, nondiscriminatory reason for

Figueroa’s non-promotion, namely that “it applied the same criteria to consideration of

[Figueroa’s] promotion candidacy that it applied to all others.” Id. at 14. Since Figueroa failed

to present sufficient evidence of pretext, the Office ultimately rejected his claim of disparate

treatment. Id. at 14-15. Figueroa appealed this decision to the EEOC, which affirmed the Final

Agency Decision on March 1, 2016. Compl., Ex. 2, at 6-7.

       The following month, Figueroa filed suit in this Court against the Secretary of State. His

complaint contends that the Department violated Title VII by discriminating on the basis of

national origin in denying 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 government filed an

answer, the parties conducted discovery, and dueling motions for summary judgment followed.

       With respect to Figueroa’s disparate treatment claim, this Court, relying on the shortcut

that the D.C. Circuit set forth in Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C.

Cir. 2008), “d[id] not look to whether a prima facie case has been made.” Figueroa, 289 F.

Supp. 3d at 220. The Court concluded that the Department had offered a legitimate,

nondiscriminatory reason for not promoting Figueroa—essentially that Figueroa, though

minimally qualified, was less qualified than other candidates who were promoted based on

criteria that were uniformly applied by the selection boards—and that Figueroa had failed to

show that the Department’s proffered reason was pretext. The Court also rejected Figueroa’s

disparate impact claim. Accordingly, the Court granted the Department’s motion for summary

judgment and denied Figueroa’s. Id. at 230-31.


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       The D.C. Circuit reversed the Court’s ruling on Figueroa’s disparate treatment claim.

See Figueroa, 923 F.3d at 1093-95. The Circuit concluded that the Department had proffered a

“vague reason” for Figueroa’s non-promotion that did “not explain why the [selection] boards

deemed [Figueroa] less qualified than the highest-ranked candidates.” Id. at 1093. Without

“some evidence explaining how Figueroa compared to the top-ranked finalists, Figueroa [wa]s

deprived of a full and fair opportunity” to show that the Department’s claimed reason was

pretext. Id.

       While the Circuit’s holding precluded summary judgment in the Department’s favor, it

did not—by itself—compel summary judgment for Figueroa. That was because this Court never

decided, in the first instance, whether Figueroa had established a prima facie case of

discrimination. On remand, then, the Circuit instructed the Court to decide whether “every

reasonable juror would find that the prima facie case ‘is supported’ by the summary judgment

record.” Id. at 1095 (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510 n.3 (1993)). If

so, the Court “‘must find the existence of the presumed fact of unlawful discrimination and must,

therefore,’ issue summary judgment in Figueroa’s favor.” Id. (quoting St. Mary’s Honor Ctr.,

509 U.S. at 510 n.3). To that task, then, the Court now turns. 2

 II.   Legal Standards

       Summary judgment must be 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.




       2
        In light of the Circuit’s decision, the Court directed the government to show cause why
the Court should not grant Figueroa’s motion for summary judgment on his disparate treatment
claim. See Order to Show Cause, ECF No. 28 (Aug. 16, 2019). The government filed a
response on August 30, 2019, see ECF No. 33, and Figueroa filed a reply on September 3, 2019,
see ECF No. 35. The parties subsequently attempted mediation, which was unsuccessful.

                                                 5
R. Civ. P. 56(a). A factual dispute is “material” if its 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.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). In assessing cross-motions for summary judgment, “all ambiguities and . . . factual

inferences [are resolved] in favor of the nonmoving party.” Moore v. Hartman, 571 F.3d 62, 66

(D.C. Cir. 2009) (citing Anderson, 477 U.S. at 255).

       Title VII prohibits discrimination on the basis of national origin in federal employment

decisions. 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, 557 U.S. 557, 577 (2009).

       To make out a claim of disparate treatment, a plaintiff must show that he suffered an

adverse employment action because of his national origin. See Brady, 520 F.3d at 493. Where

there is no direct evidence of discrimination, the Court applies the McDonnell-Douglas burden-

shifting framework. See Hairston v. Vance-Cooks, 773 F.3d 266, 272 (D.C. Cir. 2014). Under

this framework, the plaintiff bears the initial burden of establishing a prima facie case of

discrimination. Id. If the plaintiff can make out a prima facie case, then the burden of

production shifts to the defendant to provide a legitimate, nondiscriminatory reason for the

adverse action. Id. If the employer fails to do so, and “[i]f 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 . . . issue

summary judgment in [the plaintiff’s] favor.” Figueroa, 923 F.3d at 1095 (internal quotation

marks and emphasis omitted).


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  III. Analysis

        On remand, the sole question confronting the Court is whether every reasonable juror, on

the extant summary judgment record, would conclude that Figueroa has established a prima facie

case of disparate treatment.

        As a threshold matter, the Department argues that the Court may not enter summary

judgment in Figueroa’s favor because the prima facie case was not briefed by either side in their

first round of briefing. See Def. Resp. Order to Show Cause at 2-3. Both parties simply

assumed that a prima facie case had been established and proceeded to step two of McDonnell-

Douglas. To be sure, “[u]nder the Federal Rules of Civil Procedure, a motion for summary

judgment cannot be ‘conceded’ for want of opposition,” Winston & Strawn, LLP v. McLean,

843 F.3d 503, 505 (D.C. Cir. 2016). But, the Circuit’s decision does not give the Department

license to take back its underlying factual admissions or evidence already in the summary

judgment record. See Fed. R. Civ. P. 56(e)(2) (“If a party . . . fails to properly address another

party’s assertion of fact . . . the court may . . . consider the fact undisputed for purposes of the

motion [for summary judgment].”); LCvR 7(h)(1) (permitting the Court to “assume that facts

identified by the moving party in its statement of material facts are admitted, unless such a fact is

controverted in the statement of genuine issues filed in opposition to the motion”); N.S. ex rel.

Stein v. D.C., 709 F. Supp. 2d 57, 68 n.3 (D.D.C. 2010) (“[B]ecause the Court strictly enforces

LCvR 7(h), the Court shall hold Defendants to the position they adopted in their response to

Plaintiffs’ Statement of Material Facts”); see generally New Hampshire v. Maine, 532 U.S. 742,

749 (2001) (noting that judicial estoppel “generally prevents a party from prevailing in one phase

of a case on an argument and then relying on a contradictory argument to prevail in another

phase” (internal quotation marks omitted)). Mindful that it “must always determine for itself


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whether the record and any undisputed material facts justify granting summary judgment,” the

Court concludes, based on the extant summary judgment record, that it must grant summary

judgment to Figueroa. Winston & Strawn, 843 F.3d at 505 (internal quotation marks omitted).

       The parties appear to dispute the appropriate standard to evaluate a prima facie case of

discriminatory non-promotion. The Department contends that “[t]o state a prima facie case of

discrimination, a plaintiff must provide evidence that ‘(1) she is a member of a protected class;

(2) she suffered an adverse employment action; and (3) the unfavorable action gives rise to an

inference of discrimination.’” Def. Resp. to Order to Show Cause at 4 (quoting Stella v. Mineta,

284 F.3d 135, 145 (D.C. Cir. 2002)). But, the D.C. Circuit has held that this “traditional

McDonnell-Douglas test,” which was “designed for a claim of discriminatory refusal to hire,”

“does not precisely apply to a claim . . . of discriminatory refusal to promote.” Cones v. Shalala,

199 F.3d 512, 517 (D.C. Cir. 2000) (internal quotation marks omitted). The D.C. Circuit has

therefore “adjust[ed] the McDonnell formula” to more precisely accommodate claims of

discrimination in “denials of pay or grade increases.” Id. (quoting Bundy v. Jackson, 641 F.2d

934, 951 (D.C. Cir. 1981)) (alterations in original).

       The test designed “expressly for denials of pay or grade increases” is known as the

“Bundy test.” Id. (quoting Bundy, 641 F.2d at 951). To establish a prima facie case of

discrimination based on his promotion denial, Figueroa must show that (1) he belongs to a

protected class; (2) that he sought and was qualified for promotion; (3) that he was not promoted;

and (4) that, contemporaneous with his rejection, employees of similar qualifications were

promoted. 3 See Bundy, 641 F.2d at 951; see also Cones, 199 F.3d at 517; Han Kim v.



       3
          Although Bundy might be read to suggest that those promoted must be outside of the
Plaintiff’s protected class, the D.C. Circuit has clarified that that is no longer the law. See Stella,

                                                   8
Democratic People’s Republic of Korea, 774 F.3d 1044, 1049 (D.C. Cir. 2014). The Court

examines each requirement in turn.

       First, membership in a protected class. Figueroa asserts in his statement of undisputed

material facts that he is Hispanic, Pl. SUMF ¶ 5, and that Hispanics constitute a protected class

under Title VII, see Figueroa, 923 F.3d at 1083. The Department disputes neither proposition.

Therefore, the Court finds that every reasonable juror would conclude Figueroa has established

the first element of a prima facie non-promotion claim.

       Second, Figueroa’s application to and qualifications for an open position. “McDonnell

Douglas and its progeny call upon the Title VII plaintiff to show, in the first instance, only that

he was qualified for the position sought”—not that he was the most qualified for the position.

Mitchell v. Baldrige, 759 F.2d 80, 84 (D.C. Cir. 1985). Figueroa states that in 2008, he “was

eligible for promotion from FS-02 to FS-01,” Pl.’s SUMF ¶ 6, which the Department admits as

true, Def. Resp. Pl. SUMF ¶ 6. That satisfies Figueroa’s burden. To be sure, the summary

judgment record gives rise to a factual dispute about Figueroa’s relative qualifications for

promotion—where he ranked in relation to his peers. But the law is clear that a Title VII

plaintiff need not establish his relative superiority to make a prima facie case of discrimination.

See Mitchell, 759 F.2d at 88 (holding that plaintiff need not prove that “he was as qualified as or

more qualified than those selected” for purposes of meeting his prima facie burden). That

Figueroa could have been one of those selected for promotion means that he has fulfilled his

obligation as to the second element of the prima facie case. And, given the State Department’s




284 F.3d at 139 (“A plaintiff is not required to show that the person(s) hired in his/her stead
belong to a different gender or race.”). In any event, the undisputed record shows that the
promoted applicants were all outside of the Plaintiff’s protected class. See Def. Answer ¶ 7; Def.
Resp. to Pl. SUMF ¶ 8.

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admission that Figueroa was minimally qualified for the promotion, no reasonable juror could

find otherwise.

       Third, Figueroa’s non-selection. It is undisputed that Figueroa was not selected for

promotion from FS-02 to FS-01. See Pl.’s SUMF ¶ 7; Def. Resp. to Pl. SUMF ¶ 7. Nothing in

the record would permit a reasonable juror to conclude otherwise.

       Fourth, and finally, there remains the issue of how the employer proceeded after rejecting

Figueroa’s request for a promotion. The Department promoted 47 political officers from FS-02

to FS-01 in 2008, all of whom came from the same pool of eligible political officers (278 in

total) to which Figueroa belonged. Def. Answer ¶ 7; Def. Resp. to Pl. SUMF ¶ 7. On the basis

of that uncontested evidence, every reasonable juror would conclude that the State Department

promoted applicants with the same basic qualifications as Figueroa. 4 Bear in mind, as the Court

explained in assessing the second element of the prima facie case, that Figueroa’s perceived

shortcomings relative to those who were ultimately promoted does not make a difference for

purposes of the fourth element. See Mitchell, 759 F.2d at 88-89 (holding that it is defendant’s

burden to produce “evidence of selectees’ superior qualifications,” which plaintiff need not

anticipate and rebut in establishing his prima facie case). In sum, then, every reasonable juror

would conclude that Figueroa has proved by a preponderance of the evidence a prima facie case

of disparate treatment in his non-promotion.

       In the usual case, this conclusion would mean only that the Court would proceed to

asking whether the State Department has offered a legitimate, nondiscriminatory reason for




       4
        What is more, of those promoted, not one was a member of Figueroa’s protected
class—despite the fact that 16 Hispanic political officers were eligible for promotion. See Def.
Answer ¶ 7; Def. Resp. to Pl. SUMF ¶ 8.

                                                10
Figueroa’s non-selection. But the Department has already tried that tack, and the D.C. Circuit

has already ruled that its claimed reason was too vague to carry its burden of production at Step

Two of McDonnell-Douglas. Because no “reasonable minds could differ as to whether a

preponderance of the evidence establishes the facts of a prima facie case,” St. Mary’s Honor Ctr.,

509 U.S. at 509 (emphasis omitted), no question of fact remains, and Figueroa is entitled to

summary judgment on his disparate treatment claim.

 IV. Conclusion

       The Court will, accordingly, grant Figueroa’s Cross-Motion for Summary Judgment and

deny the Department’s Motion for Summary Judgment with respect to Figueroa’s disparate

treatment claim. The Court will hold further proceedings on the issue of damages. A separate

Order will accompany this Memorandum Opinion.




                                                            CHRISTOPHER R. COOPER
                                                            United States District Judge

Date: January 8, 2020




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