On May 10, 2019, the D.C. Circuit issued its opinion in Figueroa v. Pompeo, 923 F.3d 1078 (D.C. Cir. 2019), raising the bar for employers to articulate legitimate non-discriminatory business reasons for taking alleged unlawful actions against plaintiffs. As we explained in a prior post, under the McDonnell Douglas burden shifting framework, after the plaintiff makes his/her prima facie case of discrimination, the employer has an opportunity to rebut plaintiff’s prima facie case by articulating legitimate non-discriminatory business reasons for taking the alleged discriminatory action. And, if the employer is able to do that, the burden shifts back to the plaintiff to show that the employer’s stated reasons are a pretext for discrimination. Figueroa now makes it more difficult for employers to successfully argue that the actions they took were for legitimate non-discriminatory business reasons. So, what happened in the case, and what should employers do going forward?
The facts of the case are straightforward. Figueroa, a Puerto Rican employee, alleged that his employer, the State Department, discriminatorily passed him over for promotions. At the trial court level, the State Department moved for summary judgment, claiming that it did not discriminate against Figueroa, but rather decided not to promote him because other candidates were better qualified. The State Department explained that candidates for promotion are ranked based on substantive criteria called “core precepts.” These precepts consist of six performance areas: (1) leadership skills; (2) managerial skills; (3) interpersonal skills; (4) communication and foreign language skills; (5) intellectual skills; and (6) substantive knowledge. The State Department explained that, although Figueroa
made it to the lower end of ranked finalists for a couple of promotion rounds, his rankings did not even qualify him as a finalist for other rounds. Essentially, the argument was that Figueroa was subjected to the same process as every other candidate for promotion, but did not qualify, and in no way was he subjected to discrimination. The District Court sided with the State Department, but the D.C. Circuit reversed.
In its decision, the D.C. Circuit clarified what employers must do to adequately articulate a legitimate non-discriminatory business reason for taking the alleged discriminatory actions that it did under the McDonnell Douglas burden shifting framework. It stated that numerous factors come into play, and enumerated at least four that are expected to be paramount in the analysis for most cases. The D.C. Circuit said that:
- The employer must produce evidence that a factfinder may consider at trial (or a summary judgement proceeding);
- The factfinder, if it believed the evidence, must reasonably be able to find that the employer’s action was motivated by a nondiscriminatory reason;
- The nondiscriminatory explanation must be legitimate; and
- The evidence must present a clear and reasonably specific explanation.
In Figueroa, the D.C. Circuit found that the State Department failed to meet the fourth factor. It emphasized that a central purpose of allowing the employer to articulate a legitimate non-discriminatory business reason is to provide the plaintiff with a full and fair opportunity to attack the reason as pretextual. The D.C. Circuit explained, “A plaintiff cannot be expected to disprove a[n] [employer’s] reasons unless they have been articulated with some specificity,” and that “no reasonable jury [is expected to] accept a vague and slippery explanation.” Adopting a set of Eleventh Circuit legal principles (also followed by the Fifth, Sixth, and Seventh Circuits), the D.C. Circuit took issue with the State Department’s proffered legitimate, non-discriminatory business reason, explaining that employers cannot “merely state that the employment decision was based on the hiring of the ‘best qualified’ applicant” because such vague statements leave no opportunity for the plaintiff to rebut the reason as pretextual. Instead, the D.C. Circuit said that the employer must articulate specific reasons for the 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. Finding that the State Department had not presented evidence of how the core precepts were applied to Figueroa, the D.C. Circuit ruled that the District Court erred in accepting the State Department’s legitimate non-discriminatory business reason because it was vague.
Undeniably, Figueroa raises the bar for employers in defending charges of discrimination filed against them. Now, employers cannot simply rest on the argument that they took the actions that they did because, for example, other employees were better qualified. Rather, employers must be specific in their arguments, and describe exactly how they made their decisions with respect to the plaintiff. As such, employers are advised to explain with sufficient specificity their legitimate non-discriminatory business reasons in order to meet their burden of production under the McDonnell Douglas burden-shifting framework. This does not mean employers are completely out of the woods with respect to the claim – the plaintiff may still be able to demonstrate that such reasons are a pretext for discrimination – but providing more specifics in describing how they made their decisions will at least allow employers to stay in the game.