[00:00:03] Speaker 01:
Mr. Richard A. Figueroa, of course, versus Michael R. Figueroa.

[00:00:07] Speaker 01:
I'm going to declare it, the U.S.

[00:00:09] Speaker 01:
Department of State.

[00:00:10] Speaker 01:
Mr. Franklin Figueroa, would you please raise your right hand?

[00:00:35] Speaker ?:
Thank you.

[00:01:02] Speaker 02:
May I please the court?

[00:01:17] Speaker 01:
Amelia Frankel on behalf of Richard Figueroa.

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I've asked to reserve two minutes for rebuttal.

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The question of first impression before the court today is whether an employment discrimination litigation

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an employer may displace a presumption of discrimination simply by pointing to a list of employment criteria, or whether the employer must, in fact, enumerate the reasons for an adverse employment action.

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In this case, rather than doing so, the department pointed Mr. Figueroa and this court to eight pages of employment criteria, which do not frame the factual issue such that Mr. Figueroa would have a full and fair opportunity to demonstrate pretext.

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In like circumstances, both the Seventh and Eleventh Circuits have recently held that summary judgment for an employer is inappropriate.

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First, in Target versus EEOC, the Seventh Circuit found that the employer who used set criteria and graded candidates using sort of a set rubric, over set questions, could not survive summary judgment by simply explaining that an employer

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a candidate was not best qualified based on their interview.

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The reason they said that was because there was no way to gauge whether those criteria were applied to the candidate.

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There was no explanation given by the employer on which criteria he was found lacking, and none of the notes, as in this case, were produced.

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Likewise, the 11th Circuit in Vudi said that

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It was insufficient for an employer to provide a list of criteria where it was not set out which of those criteria were decisive or how they were applied.

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Again, the issue is that the employee is at an information deficiency.

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Without that information, they cannot elaborate on where the pretext came in, whether those criteria were applied, or whether there was in fact discrimination in the hiring process.

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And that's the issue here.

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Because the department did not set forth that legitimate nondiscriminatory reason with sufficient clarity, Mr. Figueroa does not have that opportunity.

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Another way to look at this is that the explanation that Mr. Figueroa was not ranked.

[00:03:35] Speaker 02:
He did have the opportunity, didn't he, to, when he was told you were not as well qualified as the ones we did promote, to seek discovery on those that were promoted.

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to show, in order to show in rebutting pretext, that he was significantly more qualified than those who were promoted.

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And he didn't take advantage of that, did he?

[00:04:03] Speaker 01:
Well, it's correct, Your Honor, that Mr. Figueroa did have an opportunity to seek discovery.

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And like many pro se litigants, was that a disadvantage in that discovery process versus the department?

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But the real issue is, even if Mr. Figueroa had asked all of the right questions, and even if the department had actually responded to those questions with sufficient discovery, he would have no way of demonstrating pretext, because there is no way to show he is significantly more qualified on every single one of those 30 criteria.

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What is needed for Mr. Figueroa is for the department to elaborate where he fell short.

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And another way to look at that is the cases in this circuit, which set forth that a subjective reason is required to be supported by objective bases.

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So in this case, it's very possible to look at the explanation that Mr. Figueroa was not ranked highly enough as a subjective criteria.

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You have testimony from one of the board members saying that, you know, that was just understood as whether he was suitable for the position or not, which really can't get more subjective than that.

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And so in order to support that with objective reasons, what we needed was, you know, where in these eight pages of criteria did Mr. Figueroa fall short, such that he can go back to his evaluations and look at the evaluations of the other candidates and say no.

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You know, on the leadership criteria, I receive excellent observations from my employers or whatnot, whatever it may be.

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But because he doesn't have that, there's no way for him to make that comparison.

[00:05:37] Speaker 03:
What about the Carter case that's from our court cited by your friends on the other side?

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That was a case where the

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The reason that was given was that the plaintiff interviewed poorly before the recommending committee and that was held to be a sufficient non-discriminatory reason.

[00:06:03] Speaker 01:
Your Honor, as I recall, none of the cases cited by the State Department had as an issue the question whether a legitimate non-discriminatory reason had been raised.

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That was not something that was actually decided in any of those cases.

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I would need to go back and look at Carter specifically, but as a general matter,

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That's not something that was decided, which is why this is an issue of first impression in this circuit.

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Moving on, if this court were to decide that the reason given by the government was sufficient, there is evidence of pretext, again, sufficient for Mr. Figueroa to survive summary judgment.

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The first of that would be the destruction of the notes.

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And this is something that was sort of not even passed upon by the district court, and I think it's a significant oversight, because the destruction of the notes, when coupled with sort of all of the evidence that the criteria were not in fact applied, and because that's the government's explanation, the fact that they were not applied should be significant evidence of pretext.

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That coupled with the notes shows that he really did face an issue here.

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And it's something that he should be able to take to a jury.

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In addition and on top of... Did he ask for any sort of spoliation remedy or inference?

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He did before the district court, correct.

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And the district court just didn't rule on it at all?

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Did not pass upon it, no.

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There was some question whether the notes themselves contained hearsay.

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Simply in light of that question, it seems like the district court just did not resolve the issue or it fell by the wayside.

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This was a long and complicated case before the district court, and I think they did sort of a good job of trying to parse the issues, but this is one that just simply fell through the cracks.

[00:08:06] Speaker 04:
Didn't he have access to his evaluation forms that the boards looked at?

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There's two types of evaluations for him.

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So the first evaluation forms are the evaluations of his supervisors.

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Right.

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Yes, he did have access to those.

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What he lacked and what is critical is the notes and evaluations of the board members themselves.

[00:08:25] Speaker 04:
I understand.

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I'm trying to take it a piece at a time.

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Yeah.

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He knew what his evaluations were.

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Yes, correct.

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Those are in the record.

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Are you saying it's not correct to say that he was unaware of any alleged deficiencies in his work?

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Because he had that.

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That's what the boards were looking at.

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Well, and what is surprising about that is all of his supervisors for the previous six years had recommended that he be promoted immediately, and he was not.

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So there's nothing in his evaluations that would tell him where he fell short.

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What he sees in those evaluations is every reason for him not to be promoted, which again, I'm sorry, for him to be promoted, which again raises the question why he was not.

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And that's what's lacking from the record and what could have been in those notes and we think was in those notes and there should be a negative inference that they were destroyed.

[00:09:12] Speaker 04:
The problem is you can have evaluations of good.

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It's like a law school grade and you run a curve.

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It's not just you alone.

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Everybody's not going to get promoted.

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The State Department is notorious for that.

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This is nothing new.

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I'm not saying it's lawful, but it's certainly nothing new.

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So the question is, where are you on that curve?

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So your supervisors may say, good.

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But there are other evaluations that look even better.

[00:09:39] Speaker 01:
That's correct, Your Honor.

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And if I may, it's also nothing new that the State Department has been charged with discrimination.

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That is something that they have a very long history with.

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And again, it goes back to sort of the need for this legitimate nondiscriminatory explanation so that Mr. Figueroa can show, you know,

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why it is that he did not fall short, so that he has that opportunity to demonstrate that he was significantly more qualified on whatever particular criteria the State Department asserts he fell short on.

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And that's simply lacking here.

[00:10:12] Speaker 04:
He simply cannot do that.

[00:10:14] Speaker 04:
Well, the criteria are not really in dispute, as I understand it.

[00:10:17] Speaker 04:
Your contention is how the board members weighted

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I mean, the precepts are pretty clear as to what they're looking for.

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And you have individuals like grading.

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You have individuals who understand what they ought to be grading people on, and they make assessments one against the other.

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And so if you had the notes, Lord, I mean, heaven knows what they would look like.

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If you had the notes, is he entitled to then fight over what the notes mean and whether

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A board member's assessment was accurate, board members say, you know, not so bad in leadership language, pretty good.

[00:11:01] Speaker 04:
So, are we going to have a battle over that?

[00:11:04] Speaker 01:
Well, that would be evidence that he could use to support his case or that the department could use to support its case.

[00:11:10] Speaker 01:
And again, to go back to sort of the lack of the legitimate non-discriminatory reason, the Seventh Circuit in Target, one of the ways that they said the employer could have met its burden of asserting that reason was to produce the notes.

[00:11:20] Speaker 01:
If the note said something like, he is deficient in leadership, then we would have a focus for the question of pre-tax.

[00:11:26] Speaker 01:
Right now with this case is lacking, what's necessary for pre-tax?

[00:11:29] Speaker 04:
No, the notes might say he's good in leadership, but the notes for the other 12 people might say they're really good in leadership.

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That's essentially what's happening on the curve.

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I mean, they're not going to promote every person who wants to be promoted or who's been recommended to be promoted.

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And I don't know the law requires them to.

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They don't have to promote everyone.

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who is within the pool, at least I'm not aware that the law requires that, who's within, if there's no pretext or an unlawful motive, they don't have to promote every single person who is arguably qualified to be promoted.

[00:12:03] Speaker 04:
So it's kind of a curved system, right?

[00:12:05] Speaker 01:
That's absolutely correct.

[00:12:07] Speaker 01:
And if the notes were what you say, then they would have been helpful to the department.

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So that raises the question, why were the notes destroyed?

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And again, that's pretty good.

[00:12:15] Speaker 04:
Then you would want notes for everybody else.

[00:12:18] Speaker 04:
You think you can get notes for all other candidates.

[00:12:20] Speaker 01:
Well, in fact, the department now has changed its policy and retains notes for all candidates so that you don't have this issue in future litigation.

[00:12:28] Speaker 04:
So an individual challenging failed promotion can get not only her notes, but everybody else's notes?

[00:12:34] Speaker 01:
Well, the department retained them, whether or not the department would produce them, again, particularly with the pro se... I'm just trying to figure out where you're going with this argument, because I can see...

[00:12:44] Speaker 04:
I can see some interesting issues that result, if what you're saying is correct, because if it's on a curved system, then you've got to know what else the person is looking at.

[00:12:53] Speaker 04:
It's not an absolute promotion system, and you're not claiming it should be.

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So if it's not an absolute system, that means you have to have the most, not only of the individual, which tell you a little bit, but hardly enough on a curved system,

[00:13:08] Speaker 04:
You have to have everyone's notes, and you have to assume that you can look at everyone's notes and assume he shouldn't have fallen on the curve here as opposed to here.

[00:13:18] Speaker 01:
Well, that's absolutely correct, Your Honor.

[00:13:19] Speaker 01:
And in this circuit where someone has to show that they are significantly more qualified in order to succeed on a qualifications-based defense, that would be very difficult, I think, to prove in many cases, unless there is in the notes clear evidence of pretext.

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And again, we don't know what was in those notes here.

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That's why the negative inference is important.

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But I think another thing to note is that the rule that we are asking for, that a department or an employer must set forth its reasons for the employment decision, is that that would actually focus the review of the relevant records.

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Now, if you were to, under this policy, if Mr. Figaro's notes and all the notes of everyone else existed, if this were a case arising today, you would have to parse those for

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30 plus criteria and try and make a view as to whether on all of those criteria how he fit in.

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There simply would never be a way for an employee to do that.

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So what it would incentivize is for employers like the State Department is to promulgate really sort of lengthy or vague guidelines that would make it impossible for any employee ever to demonstrate pretext.

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Whereas the rule would say, would force the department to focus in and look at his thing

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and say, you know, here are the notes and, you know, it says he's okay on leadership, but he's not great on these other things.

[00:14:37] Speaker 04:
Simply producing the notes would be a way for the... You're talking as if it's an absolute grading system and it's not.

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He can be okay on leadership, but he's not as good as the 20 other people who are going to move forward.

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But what I'm saying, Judge, is that... He may never be as good.

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He may always be at the grade below because he can't get past where he is on the curve.

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That would be a question.

[00:15:03] Speaker 04:
I'm not talking about this individual.

[00:15:04] Speaker 04:
I'm talking about a hypothetical.

[00:15:05] Speaker 01:
I understand.

[00:15:06] Speaker 01:
And so that would be a question on review of the record in light of the particular rule.

[00:15:10] Speaker 01:
Again, if the notes had been produced, that would be one way for the department to show what the actual reasons were for the decision, right?

[00:15:19] Speaker 01:
So the department could either say, it's a lack of leadership, or the department could say, here's the notes.

[00:15:24] Speaker 01:
Look at them.

[00:15:24] Speaker 01:
These are the reasons.

[00:15:25] Speaker 01:
This is what the board members thought.

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We don't have either of those things.

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And the rule should require at least one of them.

[00:15:32] Speaker 04:
And here's what you're essentially saying.

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It's not enough for them to have very clear precepts, very clear criteria that the board follows.

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We got to know how each one was used by each board member.

[00:15:45] Speaker 01:
Well, no.

[00:15:46] Speaker 01:
It is not enough to have criteria.

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And the reason is, Judge, to take an extreme example, the State Department could have all of these criteria, and they could be on the books.

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And the board members could have sat down and looked at Mr. Figueroa's thing and said, well,

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He's Hispanic, so I don't think he's suitable.

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And that's it.

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What these criteria don't tell you is what the board members did.

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And what the board members did, what is alleged that they did, is discriminate against Mr. Figueroa.

[00:16:12] Speaker 01:
And we need a way to know whether that happened.

[00:16:15] Speaker 04:
You really think you're going to find that in the notes?

[00:16:18] Speaker 04:
He's Hispanic.

[00:16:19] Speaker 04:
I mean, the State Department has been accused of many things, but they're not that stupid.

[00:16:24] Speaker 02:
Isn't there something in the record though from a declaration or about his, he was either operating out of his cone or the recommendations came from out of his cone?

[00:16:43] Speaker 02:
Yes.

[00:16:43] Speaker 01:
That's at least a specific reason.

[00:16:48] Speaker 01:
So the problem with that reason, Your Honor, is that is a post hoc reason that was essentially invented by

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the HR department.

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And what the case law says is an employer cannot come up with an after-the-fact reason.

[00:17:00] Speaker 01:
You need the reasons that were applied by the decision makers.

[00:17:03] Speaker 02:
So if... Well, how do we know it's post hoc if we don't have any notes or, I mean... Because it didn't come from the board members.

[00:17:11] Speaker 01:
It came from a disconnected HR representative.

[00:17:13] Speaker 01:
Oh, okay.

[00:17:15] Speaker 03:
Okay.

[00:17:15] Speaker 03:
Yes.

[00:17:15] Speaker 03:
And aren't they running away from that reason now because it's an invalid reason?

[00:17:19] Speaker 01:
That's correct as well, Your Honor.

[00:17:20] Speaker 02:
Yes.

[00:17:22] Speaker 02:
All right.

[00:17:25] Speaker 02:
Mr. Schaeffer.

[00:17:34] Speaker 05:
May it please the court?

[00:17:35] Speaker 05:
I'm Assistant U.S.

[00:17:35] Speaker 05:
Attorney Dan Schaeffer for the State Department.

[00:17:39] Speaker 05:
Your Honors, in this case, State's explanation was sufficiently detailed to – and reasonably specific to frame the dispute and point Mr. Figaro to exactly

[00:17:50] Speaker 05:
the type of evidence he needed to prove pretext in his individual case, and he simply failed to do that.

[00:17:58] Speaker 05:
These precepts that are issued in this case are not something that State has just come up with voluntarily.

[00:18:04] Speaker 05:
These precepts are promulgated by the Secretary pursuant to a statutory mandate that's in the Foreign Service Act of 1980 that says that each year

[00:18:13] Speaker 05:
The State Department is required to assemble these selection boards to review and rank the individual officers for promotion in a given year.

[00:18:22] Speaker 05:
And it is, as Judge Edwards pointed out, it's a relative qualifications.

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It's not absolute.

[00:18:28] Speaker 05:
And so the standard that amicus is asking the court to adopt here, which would be an entirely new standard for this court that has never been

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never been applied in a previous case in this circuit, or any other circuit for that matter.

[00:18:44] Speaker 05:
The standard that Mr. Figaro and Amicus are asking the court to apply in this case would be impossible for state to satisfy in this case.

[00:18:52] Speaker 05:
It would have been impossible for state to satisfy in this case, and it would be impossible for state to satisfy in any future case.

[00:18:58] Speaker 05:
in which an individual service member in the Foreign Service challenges the decision.

[00:19:02] Speaker 05:
And the reason for that is that there are hundreds and hundreds of candidates under review in a given salary class, like Mr. Figaro's.

[00:19:12] Speaker 05:
For example, there are more than 400

[00:19:14] Speaker 05:
eligible candidates that were eligible for promotion in that year, in 2008.

[00:19:18] Speaker 05:
So the idea that months or even years later, the State Department could identify a specific deficiency that every, each and every one of those individual officers had in that year, I mean, that's impossible for me.

[00:19:33] Speaker 03:
But they're not asking, I mean, a ruling in appellant's favor wouldn't require you to have to figure it out post-hoc.

[00:19:42] Speaker 03:
it would require you, when you make the decision, to document why you made the decision.

[00:19:47] Speaker 05:
Well, we think that the evidence in the record in this case shows that that's not how the board operated.

[00:19:55] Speaker 05:
That level of specificity, particularly in these earlier rounds of the selection board's review where they're going through a great many number of applicants in a very short amount of time, that level of detail in the note-taking simply isn't

[00:20:09] Speaker 05:
isn't feasible.

[00:20:10] Speaker 05:
It's undisputed.

[00:20:12] Speaker 03:
Well, it would be nice if we could just see the notes, right?

[00:20:15] Speaker 03:
I mean, isn't that all the more reason why the notes are important here?

[00:20:20] Speaker 05:
Well, under the board's document retention policy at that time, the notes were destroyed at the time of the board's dismissal.

[00:20:28] Speaker 03:
And the only record... Well, we don't care about what your policy was.

[00:20:34] Speaker 03:
I mean, if you're on notice,

[00:20:36] Speaker 03:
that there's litigation pending and the notes still existed, you don't get to come in and say, well, our policy said we destroyed the notes.

[00:20:46] Speaker 05:
Well, there's no, as we would say, admissible evidence in this case that the State Department was on notice of

[00:20:56] Speaker 05:
but a reasonable notice of litigation at the time the notes were destroyed.

[00:20:59] Speaker 05:
So the notes were destroyed at the time of the board's dismissal, which was prior to.

[00:21:05] Speaker 03:
Well, when were the notes destroyed?

[00:21:07] Speaker 05:
That's in the record.

[00:21:08] Speaker 05:
They were destroyed at the time of the board's dismissal.

[00:21:12] Speaker 05:
I don't have the specific date, but it's in our brief where we point to the fact that the boards were dismissed or I think the word is basically dismissed, disbanded.

[00:21:25] Speaker 05:
on a given day.

[00:21:26] Speaker 05:
That's when the board's, the selection board's recommendations and rankings went up to the director general and the board convened with the director general.

[00:21:35] Speaker 05:
The director general accepted the

[00:21:38] Speaker 05:
board's findings and recommendations, and in the director general's memo it says, I hereby dismiss the boards and accept their wreckings and recommendations.

[00:21:46] Speaker 05:
And at that point in time is when the board's notes were destroyed.

[00:21:49] Speaker 05:
Nothing was kept from the board's deliberations except that final list of recommendations and rankings.

[00:21:54] Speaker 05:
And then it was, I think, 30 to 60 days later, somewhere in that time frame, that Mr. Figaro initiated the EEO process.

[00:22:04] Speaker 04:
I'm sorry, how do you get to rankings from the board's consideration of whatever they're looking at?

[00:22:10] Speaker 05:
Well, the board's, the selection board's rankings, the formal member that went to the director general has a, for each of the various categories under consideration, has a numerical list of the candidates.

[00:22:25] Speaker 05:
And so you can see, beginning at number one, down through however many were recommended in a given year, in a given salary class, how they were ranked.

[00:22:33] Speaker 04:
So how do they get to that ranking?

[00:22:35] Speaker 04:
They, it's a- I'm looking at ten people and I have the criteria and am I putting a number with respect to each criterion for each person and totaling that number?

[00:22:49] Speaker 04:
What?

[00:22:50] Speaker 05:
It's a two-step process, so I'm going to have to give a little bit more of an involved answer here.

[00:22:56] Speaker 05:
But in the first, there are two separate boards.

[00:22:59] Speaker 05:
There's a class-wide board that looks at all the candidates across the entire generalist class.

[00:23:04] Speaker 04:
I understand that.

[00:23:04] Speaker 04:
I'm trying to understand how they rank it.

[00:23:06] Speaker 04:
How do I, as a board member, what do I do to participate in what is going to end up a ranking?

[00:23:12] Speaker 05:
Yes, so the voting procedures are part of the precepts and they lay this out.

[00:23:16] Speaker 05:
And in general, what they do is all of the boards, there are multiple individual board members who are looking at the same group of candidates.

[00:23:23] Speaker 05:
They all come up with their own ranking system, their own individual rankings.

[00:23:26] Speaker 05:
And then I think what they did in this year is they convened a phone call, a telephonic meeting where they read out their rankings and then the chairperson of the board.

[00:23:37] Speaker 04:
Is there a number associated with a ranking?

[00:23:39] Speaker 04:
Or it's just you're ranked one and I'm ranked two, but I'm not going to tell you what the difference between one and two is?

[00:23:45] Speaker 04:
How do you do this?

[00:23:47] Speaker 05:
I'll have to go back and look at it myself.

[00:23:49] Speaker 05:
But I think what they did was they said, we think this candidate should be recommended for promotion, so that's promoted.

[00:23:56] Speaker 05:
or mid-ranked or low-ranked.

[00:23:59] Speaker 05:
And I think there was a numerical score that was given for a particular candidate.

[00:24:04] Speaker 05:
And then the chairperson averaged out those scores.

[00:24:08] Speaker 05:
And then you come up with a cumulative number that the class-wide board settled upon.

[00:24:16] Speaker 05:
And so it is in the voting procedures that are attached to the precepts.

[00:24:20] Speaker 05:
And so it is set out there.

[00:24:25] Speaker 05:
a great amount of more detail, and I'll be able to provide your honor here this morning, but.

[00:24:28] Speaker 04:
Yeah, it seems to me, I mean, if that's what you're talking about, it seems to me you would, State Department would easily have information that could be furnished to those who challenge.

[00:24:36] Speaker 04:
That is, where was I on the ranking, and in what, with respect to which criterion am I falling short?

[00:24:43] Speaker 04:
Whether you disagree with it or not is a different matter, but, so where did I fall short?

[00:24:49] Speaker 04:
How could they not have that to make a decision as to who's gonna move forward?

[00:24:54] Speaker 05:
Well, the director of the Office of Performance Evaluation, Claire Perangelo, testified.

[00:25:00] Speaker 05:
And she was the one witness that the State Department offered that really gave some in-depth testimony on how the precepts worked and how the decision criteria were applied.

[00:25:07] Speaker 05:
And what she testified is that since the board members were going through so many applications on that initial stage, what she did and what she thought was standard practice is that the board member would just write a P for promote, an M for mid-rank, and an L for low-rank.

[00:25:21] Speaker 05:
And so in that initial review stage, there wasn't enough time to be taking detailed notes and for the board members to be having really thorough deliberations about individual candidates.

[00:25:31] Speaker 05:
Now when they got to that step of the review process where they discussed their scores and came up with a number, if there were really wide discrepancies between the scores, they had a discussion about that.

[00:25:42] Speaker 04:
But when you say scores, does that mean a number was

[00:25:46] Speaker 04:
associated with each precept?

[00:25:48] Speaker 05:
My recollection is that there was a number that set out in the voting procedures that is then attached to a candidate that comes up with that ranking.

[00:25:57] Speaker 05:
Yes.

[00:25:58] Speaker 05:
And I don't remember exactly how the number was calculated.

[00:26:00] Speaker 04:
That is thrown away too?

[00:26:01] Speaker 04:
I'm sorry?

[00:26:01] Speaker 04:
That is thrown away too?

[00:26:03] Speaker 05:
The only document that survived the Board's liberation is that final recommendation.

[00:26:10] Speaker 05:
Remembering that went to the Director General.

[00:26:11] Speaker 05:
That's correct.

[00:26:16] Speaker 05:
And if I may.

[00:26:17] Speaker 04:
I mean, I don't know why you started all this by saying it would be chaos.

[00:26:21] Speaker 04:
I don't know what would be chaotic about showing here's what our ranking was.

[00:26:26] Speaker 04:
Here's what the person's score was with respect to each criterion.

[00:26:32] Speaker 04:
And as against other candidates, that person did.

[00:26:34] Speaker 04:
I mean, I'm thinking about law school grading.

[00:26:36] Speaker 04:
That can certainly be done.

[00:26:37] Speaker 04:
I have to justify.

[00:26:38] Speaker 04:
I choose to justify my own law school grading.

[00:26:41] Speaker 04:
And students may or may not agree with how

[00:26:44] Speaker 04:
I assess their work, but if you look at your evaluation as compared to someone else's evaluation, you would see the deficiency.

[00:26:50] Speaker 04:
You might be angry with it, but nevertheless, there it is.

[00:26:53] Speaker 04:
What's the big deal?

[00:26:57] Speaker 05:
The big deal is that

[00:27:00] Speaker 05:
We think in this case that the level of specificity that the board members, that state proffered relating to the board members' deliberations and the specific decision criteria that was applied on the facts of this case, given the unique nature of the competitive promotion process that the State Department used in the Foreign Service, the high volume of candidates,

[00:27:22] Speaker 04:
that were under consideration, other factors that... Well, high volume doesn't get you anywhere because you're saying, you precede that by saying we evaluate each one.

[00:27:31] Speaker 04:
The fact that you do it quickly is so what?

[00:27:34] Speaker 04:
You're evaluating each one.

[00:27:35] Speaker 04:
So the question is why shouldn't someone know how did I fare in the evaluation?

[00:27:40] Speaker 04:
It's on a curve system.

[00:27:41] Speaker 04:
Where did I land?

[00:27:43] Speaker 04:
And again, your problem with me is I'm thinking about law school grading.

[00:27:46] Speaker 04:
I can be made to do that.

[00:27:48] Speaker 04:
It's an awful process.

[00:27:50] Speaker 04:
All these grading systems on a curve are awful.

[00:27:53] Speaker 04:
but they can be explained to the extent, because you've got to come up with a grade.

[00:27:58] Speaker 04:
And so the question in this case, it may only be a question of a system that is really not satisfying as opposed to discriminatory.

[00:28:09] Speaker 04:
I understand that's a different question as to whether it's discriminatory, but it certainly can be explained.

[00:28:15] Speaker 04:
So it's not, you're not giving me any interesting

[00:28:18] Speaker 04:
when you say, oh, but there's so many people, so what?

[00:28:21] Speaker 04:
You're grading them.

[00:28:22] Speaker 04:
You're saying we, everyone is required to follow certain precepts, grade, move it to the next step, grade, and then indeed at the last step there are numbers, and you can see where you fell in the numbers, and on the curve you didn't make it.

[00:28:36] Speaker 04:
Why isn't that available?

[00:28:39] Speaker 04:
Other than the State Department has this weird history.

[00:28:43] Speaker 05:
Well, it's not just that the State Department has a weird history, but what I'm saying is that the Secretary has come up with these precepts, and they've been presumably developed over a very long period of time, many years.

[00:28:53] Speaker 04:
That isn't the question.

[00:28:54] Speaker 04:
The question is how they're applied.

[00:28:56] Speaker 04:
It's not that the precepts are bad.

[00:28:58] Speaker 04:
I don't see anything facially wrong with the precepts.

[00:29:00] Speaker 04:
They look perfectly fine.

[00:29:02] Speaker 04:
The question is, how did I fare?

[00:29:05] Speaker 04:
Right.

[00:29:06] Speaker 04:
If I say to a student, your citations stink.

[00:29:10] Speaker 04:
and I'm giving you a really low on that part of my assessment, you don't know how to cite cases, or you cited the wrong cases.

[00:29:19] Speaker 04:
There it is.

[00:29:21] Speaker 04:
It's a good precept, and I'm saying I applied it.

[00:29:25] Speaker 05:
Because I think in that situation, if I'm the law school and I tell your honor the law students, here is the specific criteria that you were judged upon.

[00:29:36] Speaker 05:
You know, in this class, this is what your answers on the final exam needed to say, this is the level of detail we were looking for, you know, those types of things.

[00:29:45] Speaker 05:
And if we laid all that out for you and said, here's the criteria we were looking for, here's, you, Your Honor, you received an A minus.

[00:29:53] Speaker 05:
And here are the lists.

[00:29:55] Speaker 05:
Here's where you've wound up at the end of the process relative to everybody else.

[00:29:59] Speaker 05:
We think that that's sufficient to satisfy a burden of production in a case.

[00:30:04] Speaker 04:
No, but typically a law professor will have a sample of here's a good exam and here's your exam.

[00:30:09] Speaker 04:
You want to come in and talk about it, I'll tell you.

[00:30:11] Speaker 04:
You're not doing that.

[00:30:12] Speaker 05:
Well, yes, but then that's getting into, I think, shifting into step three of the birding-shifting framework, which is then to come upon the plaintiff to come back and say, yes, but... When the plaintiff come back, the plaintiff doesn't know where the plaintiff fell short.

[00:30:27] Speaker 05:
Well, the plaintiff can make an argument of, I am significantly better than this person, because here's my answer.

[00:30:33] Speaker 04:
You're not telling the plaintiff where they fell short.

[00:30:36] Speaker 04:
So how can they come back and argue?

[00:30:38] Speaker 04:
At least the law student can say, well, I hear what you're saying, but that's not correct, and you're going to have a discussion.

[00:30:43] Speaker 04:
You're not saying that.

[00:30:44] Speaker 04:
You're just saying you fell short.

[00:30:46] Speaker 05:
Yeah, to me, it's not a question of the employer's burden of production at this point.

[00:30:49] Speaker 05:
I think we've satisfied it.

[00:30:51] Speaker 05:
I think the issue that Your Honor is now getting into is whether the plaintiff can ultimately satisfy

[00:30:57] Speaker 05:
his or her ultimate burden of persuasion that, yes, I can show pretext because, for one thing, I'm significantly better qualified than the folks that you selected instead of me.

[00:31:10] Speaker 04:
And so that's... How do they undo that if they don't have the information on the other evaluations?

[00:31:16] Speaker 05:
Well, you can serve discovery requests for information about the relevant qualifications of the other candidates.

[00:31:22] Speaker 05:
You can take the depositions of the board members and say... Are you saying the failure of discovery is the problem?

[00:31:29] Speaker 05:
Yes, absolutely.

[00:31:31] Speaker 05:
And that's really... That brings me to the next point that I want to make, which is that

[00:31:38] Speaker 05:
In this case, both in the complaint and throughout discovery and in summary judgment, the plaintiff's focus was really on, I perceived, and I litigated this case in this report, was trying to find a way around

[00:31:53] Speaker 05:
satisfying his evidentiary burden in this particular case to prove pretext of discrimination.

[00:31:59] Speaker 05:
What I mean by that is that the discovery requests and the allegations and the complaint, it's also reflected in the summary judgment papers, are largely focused on matters that were completely extraneous to this litigation.

[00:32:11] Speaker 05:
One of the things I would have expected a plaintiff to do in a case like this is to submit requests for

[00:32:17] Speaker 05:
discovery about the select these qualifications and Mr. Figueroa didn't do that.

[00:32:21] Speaker 05:
I would have expected him to take depositions of some of the members of the selection board and he didn't do that.

[00:32:27] Speaker 03:
You can you can pick apart you know the fact that you know he as an untrained person didn't do discovery correctly but ultimately the problem I have with your position I'm just going to be very direct with you is that

[00:32:44] Speaker 03:
If we accept your view of the law, then the State Department could have a meeting of this board where the board members say, you know, with respect to Figueroa, who cares about what the criteria are?

[00:33:05] Speaker 03:
Let's just, you know, rank him low and ding him and not apply the criteria.

[00:33:15] Speaker 03:
and move on.

[00:33:17] Speaker 03:
We don't like him.

[00:33:19] Speaker 03:
And that doesn't have to be documented.

[00:33:23] Speaker 03:
You don't get discovery of that.

[00:33:26] Speaker 03:
If it ever was documented, it could just have been destroyed.

[00:33:32] Speaker 03:
And he would be left with the only way that he could prevail as far as proving that the reason that was given, which was false, which was that we applied the criteria and he didn't meet up to the criteria, would be some sort of a disparate impact

[00:33:58] Speaker 03:
theory or showing that his qualifications were so much above everybody else's.

[00:34:06] Speaker 03:
Yes, those are ways that one can prevail as a plaintiff, but they aren't the only ways.

[00:34:15] Speaker 03:
And why shouldn't he have at least a fighting chance at proving just the straight up falsity

[00:34:28] Speaker 03:
of the reason that was given?

[00:34:31] Speaker 05:
Well, two things, Your Honor.

[00:34:32] Speaker 05:
I will say that in this case, we think that the plaintiff, notwithstanding that he was a pro se litigant, had, as you say, a fighting chance to make out a claim of disparate treatment and to make out a claim of disparate impact, and he failed to do that.

[00:34:49] Speaker 05:
But I would also add, Your Honor,

[00:34:52] Speaker 05:
When looking at the state's promotion process that's at issue here, there are a number of safeguards that are built in to the promotion process.

[00:35:05] Speaker 05:
A few of those up top of my head are that the candidates are all reviewed by two separate boards.

[00:35:11] Speaker 05:
There's the class board and then there's the coma board, so an individual candidate is receiving

[00:35:16] Speaker 05:
two independent reviews.

[00:35:19] Speaker 05:
The selection board members don't receive information about the candidates' races and national origin and other protected characters, that's not any information that's provided to them.

[00:35:31] Speaker 05:
The selection board members, and these are high-ranking folks in the State Department, these are ambassadors and directors of bureaus, very high-ranking

[00:35:43] Speaker 05:
diplomats, if you will.

[00:35:45] Speaker 05:
They receive training on the precepts and EEO training.

[00:35:49] Speaker 05:
And these folks, as I say, are having to look through a very high volume of applications in a short amount of time.

[00:35:58] Speaker 05:
And with the information that they're provided, the idea that they're going to be looking into drawing inferences from the fact that somebody speaks foreign language, for example, which presumably a lot of

[00:36:11] Speaker 05:
people in the Foreign Service can speak foreign languages who aren't native speakers, for example, or trying to draw an inference from somebody's name, that's just not plausible that in the limited amount of time that all these folks have to go through this huge body of applications to view and rank these folks, that they're going to be going through trying to find

[00:36:33] Speaker 05:
reasons to discriminate.

[00:36:36] Speaker 05:
On this record, there's no evidence of any kind to suggest that that's what the board members were trying to do or that they in fact did do.

[00:36:43] Speaker 04:
Your answer to Judge Wilkins then should have been, we don't like them, it's not prescribed discrimination.

[00:36:51] Speaker 04:
They may have dinged them because they didn't like them, but it's not prohibited by the law.

[00:36:56] Speaker 04:
Is that what you're saying?

[00:36:57] Speaker 05:
That's right.

[00:36:58] Speaker 05:
I think that we can all find aspects of this promotion process that we may individually disagree with and say that's not the perfect way to do it or there should have been more detail.

[00:37:07] Speaker 05:
But as I said, this is pursuant to a statutory mandate and these are precepts that are promulgated by the Secretary.

[00:37:12] Speaker 05:
They're applied by the boards every year.

[00:37:14] Speaker 05:
And we think that the explanation that was provided was sufficient.

[00:37:20] Speaker 05:
that Mr. Figaro had a full and fair opportunity in discovery to make out his claims and he failed to do that.

[00:37:27] Speaker 05:
And the district court's decision is well-reasoned and thorough and for all those reasons should be affirmed.

[00:37:33] Speaker 04:
If they have a legitimate argument on the negative saliation, what do you think the results should be from that?

[00:37:41] Speaker 05:
I'm glad you're on to raise that, and I just wanted to address one thing really quickly, that counsel for amicus indicated during argument that the judge never reached that issue, and that's not correct.

[00:37:52] Speaker 05:
There's several pages in the district court's opinion that discuss

[00:37:56] Speaker 05:
Mr. Figueroa's request for a negative spoliation inference.

[00:37:59] Speaker 05:
So the issue that the district court was deciding is whether there was a spoliation inference that could be drawn, whether that was sufficient to survive summary judgment.

[00:38:07] Speaker 05:
We weren't at the point in the case yet where Mr. Figueroa would have asked for a specific spoliation sanction or for a jury instruction, like you might see in some of these cases talking about spoliation.

[00:38:18] Speaker 05:
So in this case,

[00:38:19] Speaker 05:
The question was just simply whether any negative inference exfoliation was sufficient to survive summary judgment.

[00:38:25] Speaker 05:
And the district court found, number one, actually district court kind of found three things.

[00:38:30] Speaker 05:
Number one, that Mr. Figaro failed to show that

[00:38:35] Speaker 05:
Any information that would have existed in those documents would have been relevant to his individual claim, let alone helpful to it.

[00:38:44] Speaker 05:
And he pointed to the testimony from the State Department that discussed, as I mentioned earlier, that the board members were reviewing high volume of applications.

[00:38:54] Speaker 05:
Number two, the district court found that

[00:39:00] Speaker 05:
Mr. Figaro appointed some new evidence that he was entitled to a negative spoliation inference, and number three, that even if he was, that that evidence alone wouldn't have been sufficient to survive summary judgment.

[00:39:13] Speaker 05:
I'm paraphrasing a little bit there, but there were three separate findings in the district court's decision.

[00:39:17] Speaker 04:
What was the second one?

[00:39:17] Speaker 04:
The second one didn't make sense.

[00:39:18] Speaker 04:
You must have forgotten it.

[00:39:20] Speaker 04:
I didn't understand it.

[00:39:21] Speaker 05:
The second one was that he was not entitled to a negative spoliation inference in this case.

[00:39:28] Speaker 05:
Why?

[00:39:30] Speaker 05:
Because he basically found that, the court found that he didn't point to any evidence that he was entitled to a negative spoliation inference.

[00:39:40] Speaker 05:
You're saying you don't remember.

[00:39:41] Speaker 05:
I'll go back and look.

[00:39:43] Speaker 04:
No, that's what the... You can't just say, well, I don't think you're entitled to something until you lose.

[00:39:47] Speaker 04:
You explain why isn't he entitled.

[00:39:50] Speaker 04:
Yeah, so... I just don't remember, and obviously you don't either.

[00:40:00] Speaker 04:
Okay.

[00:40:02] Speaker 04:
It's in there.

[00:40:03] Speaker 05:
My point was that it is in there.

[00:40:05] Speaker 05:
It's part of the district court's decision.

[00:40:07] Speaker 05:
But we think that the district court's reasoning on this bulliation issue was sound and should be affirmed.

[00:40:16] Speaker 05:
There was some discussion during Amicus' argument about the

[00:40:21] Speaker 05:
the statement that the two HR individuals made.

[00:40:24] Speaker 05:
I'm happy to address that further, but I do know I'm well beyond my time.

[00:40:27] Speaker 02:
All right, I just have two questions.

[00:40:30] Speaker 02:
One, this forced retirement, is it tied to the age of the employee as well?

[00:40:36] Speaker 02:
I mean, I think he went 10 years without being promoted, but if he were a young person, is he still forced to retire?

[00:40:45] Speaker 05:
I mean, I don't know how old he is, but... That's... I'm not sure.

[00:40:48] Speaker 02:
Okay.

[00:40:49] Speaker 02:
Well, that leads me to my second question.

[00:40:52] Speaker 02:
And I will ask it like this.

[00:40:55] Speaker 02:
Does the U.S.

[00:40:55] Speaker 02:
Attorney's Office here in D.C.

[00:40:59] Speaker 02:
as a matter of course represent the State Department?

[00:41:03] Speaker 05:
In this case, you mean?

[00:41:05] Speaker 02:
Well, I know it's in this case.

[00:41:07] Speaker 02:
I'm just – I'm surprised by that, and I just wondered if that is a change.

[00:41:11] Speaker 05:
I mean, I have a number of cases, both employment discrimination and otherwise, where I represent the State Department.

[00:41:16] Speaker 05:
Okay.

[00:41:17] Speaker 05:
So that's – I think that's typical.

[00:41:19] Speaker 02:
Okay.

[00:41:19] Speaker 02:
Thank you.

[00:41:22] Speaker 05:
All right.

[00:41:22] Speaker 05:
Okay.

[00:41:23] Speaker 05:
Does that think further?

[00:41:23] Speaker 05:
We think the district court's decision be affirmed.

[00:41:25] Speaker 05:
Thank you.

[00:41:25] Speaker 02:
All right.

[00:41:27] Speaker 02:
Does Ms.

[00:41:28] Speaker 02:
Frankel have any time?

[00:41:30] Speaker ?:
Ms.

[00:41:30] Speaker 02:
Frankel, did that answer your question?

[00:41:31] Speaker 02:
All right.

[00:41:31] Speaker 02:
Why don't you take a couple minutes?

[00:41:37] Speaker 01:
Your Honor, just a couple of quick points of clarification for the assistance of the court.

[00:41:43] Speaker 01:
The class procedures are set forth on JA 165 and the conal procedures on 238, and those set forth sort of how the different boards ranked candidates or whatnot.

[00:41:56] Speaker 01:
One thing that I think is worth noting and is important to note is that procedures for both of the boards

[00:42:03] Speaker 01:
set out that members were to take good notes.

[00:42:06] Speaker 01:
They were intended to do that.

[00:42:07] Speaker 01:
That is what the procedures said.

[00:42:09] Speaker 01:
So if they followed the procedures, they would have done so.

[00:42:11] Speaker 01:
There's also testimony from the board members that notes were, in fact, taken.

[00:42:17] Speaker 01:
Clarification regarding the district court opinion.

[00:42:19] Speaker 01:
There was discussion of the negative spoliation inference.

[00:42:22] Speaker 01:
But what was overlooked was, in particular, the observation of the EEO officers documented in its report that Mr. Taylor pulled

[00:42:31] Speaker 01:
the PAR for Mr. Figueroa and reviewed the board notes that were on that.

[00:42:37] Speaker 01:
And again, there's reason to believe that there were, in fact, board notes on that.

[00:42:41] Speaker 01:
The testimony from the board members is that notes were taken on the park cards.

[00:42:44] Speaker 01:
So if you were going to have notes, that is where you would expect them to be.

[00:42:47] Speaker 04:
The district court found there was a lack of notice of any reasonable likelihood of litigation.

[00:42:51] Speaker 04:
That was the second point the council couldn't remember.

[00:42:54] Speaker 01:
Well, correct.

[00:42:54] Speaker 01:
So the lack of notice of reasonable notice of litigation

[00:43:01] Speaker 01:
was at the point at which the boards concluded, and the notes were supposed to have been destroyed by policy.

[00:43:08] Speaker 01:
The evidence that the notes were not destroyed is, by that point in time... Well, that wasn't... That was contested.

[00:43:16] Speaker 01:
But not decided.

[00:43:17] Speaker 01:
It was overlooked by the district court.

[00:43:18] Speaker 04:
That's what was missing.

[00:43:19] Speaker 04:
Whether they were actually destroyed.

[00:43:20] Speaker 01:
Whether they were actually destroyed.

[00:43:21] Speaker 01:
Correct.

[00:43:22] Speaker 04:
The district court... That certainly was not a conceded point.

[00:43:24] Speaker 01:
No, but if you look at the district court's opinion at 21-22, it's not in there.

[00:43:29] Speaker 01:
It has just sort of that piece of evidence has fallen by the wayside.

[00:43:33] Speaker 03:
So you would say that's a disputed issue of fact?

[00:43:35] Speaker 01:
I would say that is a disputed issue of fact, yes.

[00:43:39] Speaker 01:
Just to go back to, I think, the overarching most important point that I want to make here today is the problem for Mr. Figueroa is that he cannot tell where he fell short.

[00:43:49] Speaker 01:
The entire point of the McDonald Douglas burden shifting is to acknowledge that there is an information asymmetry between an employer and an employee.

[00:43:57] Speaker 01:
In order to cure that asymmetry, they set out this burden for the employer.

[00:44:01] Speaker 01:
The employer has to set forth their legitimate non-discriminatory reasons for an employment decision.

[00:44:07] Speaker 01:
reasons, not criteria.

[00:44:09] Speaker 01:
Again, because we want to know how a decision was actually made in a particular case, not how it should have been made or is made in other cases or whatnot, but how it was made in a particular case.

[00:44:19] Speaker 01:
And it is absolutely false, as counsel for the department said, that no other circuit has held that that's required.

[00:44:24] Speaker 01:
In fact, every other circuit that has looked at the issue has said employment criteria are not sufficient.

[00:44:29] Speaker 01:
The Seventh Circuit in Target versus EEOC

[00:44:32] Speaker 01:
The 11th Circuit in Booty versus the Broward County Sheriff's Department, a very similar opinion, although not directly on point from the Fifth Circuit, Alvarado versus the Texas Rangers.

[00:44:44] Speaker 01:
All of these opinions are saying that you need reasons, not criteria.

[00:44:49] Speaker 01:
And so to hold the same, to impose the same rule in this circuit would be very much in keeping with what other circuits have done, and also in keeping with precedent from this court that says a subjective reason here, as one board member sort of summarized the criteria, whether a candidate is suitable, is not sufficient without further explanation.

[00:45:07] Speaker 01:
And the further explanation would be either on what criteria did he fall short or produce the board notes.

[00:45:12] Speaker 04:
Now on the notes, the district court found that you failed to provide sufficient evidence for the court to conclude that there were even any substantive notes to begin with.

[00:45:24] Speaker 04:
Without that, it's hard for the court to conclude, et cetera.

[00:45:27] Speaker 04:
And so in other words, the district court said the burden's on you.

[00:45:31] Speaker 04:
You didn't move.

[00:45:31] Speaker 01:
Well, again, in the record, there are a couple of things in the record that are important.

[00:45:36] Speaker 01:
One, the policies that notes were to be produced.

[00:45:38] Speaker 01:
And two, the statements of the board members that notes actually were, in fact, created, including- No, but they contested that.

[00:45:45] Speaker 04:
They said the notes were destroyed and that the statement to suggest otherwise was wrong.

[00:45:49] Speaker 04:
And then the district court found you didn't show that there were any notes even to begin with, meaning with respect to your claim that these notes may still have been around.

[00:46:01] Speaker 01:
Well, with due respect- Is it your burden?

[00:46:05] Speaker 01:
It is a preponderance of the evidence standard for this spoliation inference.

[00:46:10] Speaker 01:
And with due respect to the district court, the only evidence that there were not notes is this statement of Pierre Angelo, who was not a board member.

[00:46:20] Speaker 01:
And so her statement, in my view, is not even relevant.

[00:46:24] Speaker 01:
What is relevant is the statements of the board members that, yes, there were notes.

[00:46:27] Speaker 01:
They were created.

[00:46:28] Speaker 01:
They existed.

[00:46:29] Speaker 04:
No, that's not the question.

[00:46:30] Speaker 04:
The question is whether they were destroyed.

[00:46:32] Speaker 01:
Well, there's two questions.

[00:46:34] Speaker 01:
One, as you just said, the district court found there was no evidence that they were – they existed, and then two, were they destroyed.

[00:46:39] Speaker 01:
And I think that there is evidence for both questions for Mr. Figaro.

[00:46:43] Speaker 02:
Okay.

[00:46:45] Speaker 02:
All right.

[00:46:46] Speaker 02:
You were appointed by the court to act as amicus, and we thank you for your very able assistance.

[00:46:52] Speaker 02:
Thank you.