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  • Writer's picturePavan Khoobchandani

Don't Be Daft Or Nefarious: Be Specific About The Reasons For An Employment Action



Out of the United States Court of Appeals for the District of Columbia Circuit earlier this month came a beautifully-written opinion in the case of Figueroa v. Pompeo. At issue in the case was the denial of a promotion to Richard Figueroa, a United States Department of State foreign service officer who was of Hispanic ethnicity. Mr. Figueroa alleged that he was denied the promotion because of his ethnicity.


The court began the opinion summing up employment litigation pretty well:

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.

The opinion discusses in detail the McDonnell Douglas framework, which is the standard that federal courts look to when deciding employment cases without direct evidence of discrimination (which, of course, employers are generally "not so daft" to maintain in their files). Under the McDonnell Douglas framework, when evaluating a claim of discrimination, a court will look at

  1. whether the complaining employee can make a prima facia case of discrimination;

  2. if such a case can be made, whether the employer can articulate a legitimate, nondiscriminatory reason for its action; and

  3. if the employer articulates such a reason, whether the employee can show that the reason was pretextual, meaning that the employee was the victim of intentional discrimination.

Specifically, the opinion focuses on the second prong of the framework, noting that employers often succeed at the second step and are able to articulate a nondiscriminatory reason for their actions.


HOWEVER, the court felt that there often is a rush to the third step without properly evaluating what the employer offered up at the second step. They didn't like that, noting:

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...

What was the problem?


The problem, according to the court, was the lack of detail given for the reason Mr. Figueroa didn't get the promotion. The employer said that the "legitimate, nondiscriminatory" reason that Mr. Figueroa didn't get the promotion was that the candidates who were promoted were better qualified than Mr. Figueroa. To support this reason, the employer pointed to an eight-page chart outlining their core precepts and said that the decision-makers followed these precepts in evaluating whether Mr. Figueroa should get a promotion.


The court wasn't buying it. It acknowledged the the precepts were facially nondiscriminatory, and that applying such precepts – no matter how subjective the criteria – may constitute a legitimate reason for non-promotion. But (and this is one of the places the opinion gets really good) the court said that "[s]till, with subjective standards, we also perceive an intolerable risk that a nefarious employer will use them as cover for discrimination."

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.

What's the takeaway?


The takeaway is this, according to the court: employers cannot satisfy the second prong of the McDonnell Douglas framework with vague statements, because they don't allow the employee to rebut the reasons at the third step. Instead, employers must be specific about how the employee at issue was evaluated. The court gave some great examples:

  • 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.

  • Stewart v. Ashcroft, 352 F.3d 422 (D.C. Cir. 2003) - The plaintiff was passed over for a director position, and the employer said its nondiscriminatory reason was that the other candidate was more qualified. The employer 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. Meanwhile, the other candidate prepared a twenty-one-page application detailing his managerial vision. The employer's evidence fairly put the plaintiff on notice of what reasoning he must challenge: the other candidate’s “more keen interest in management.”

  • 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.” By articulating those specific grounds, the employer gave the plaintiff targets at which to aim.

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.

What should employers do?


Employers should do what HR has always told them to do: Document, Document, Document. The more specific an employer can be about the reasons that it is terminating or not promoting an employee, the more likely it will be able to successfully defend its decision-making in the event that employee sues for discrimination.


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