Richard Figueroa v. Michael Pompeo

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

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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

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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

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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.

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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

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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

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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 at

1011 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

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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 at

1011 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 finds 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.