By Patricia H Kushlis
A little-noticed decision by the U.S. Federal Court of Appeals for the District of Columbia Circuit, handed down May 10, 2019, has implications for Foreign Service Selection Boards’ record keeping practices, going into the 2019 promotion cycle. The decision in Figueroa v. Pompeo, case no. 18-5064 (D.C. Cir. May 10, 2019), will require future promotion boards to document on an individual basis the reason(s) why a candidate has been denied promotion.
The DC Circuit’s decision will bring more transparency to a process that the Department has deliberately kept hidden from public view, notwithstanding yearly “lessons learned” messages that are not specific enough to help understand what factors are key to promotions in any given year. In fact, until 2016, the Department did not even comply with EEOC regulations requiring that any written notes or work product by the boards be kept for one year, so that a candidate who was not promoted would have an opportunity to review the notes in deciding whether to file a grievance or an EEO complaint.
The Appeals Court in Figueroa found that the plaintiff, a Hispanic FSO who was denied promotion in 2008 despite seven consecutive annual evaluations recommending his immediate promotion, had established a presumption of discrimination by the State Department, and that the Department had failed to offer a legitimate, nondiscriminatory reason to rebut that presumption. The court reviewed the fact that between 2006 and 2008, of the 134 promotions available in plaintiff’s cone, no Hispanic FSOs had been promoted. Although plaintiff had been recommended but not reached for promotion in 2004 and 2005, and was the recipient of Superior Honor Awards in 2006 and 2008, the only reason the Department provided in response to his complaint in 2008 was that he was not as “highly-ranked” as those who were promoted.
The Court found the Department’s reason deficient, stating “[The State Department’s] articulation of a purported legitimate, nondiscriminatory reason ‘conceals the target’ at which Figueroa must aim [his] arguments.”
Referring to the Core Precepts which the Department claimed had been equitably applied by the 2008 promotion boards, the Court said, “[W]ith subjective standards, we also perceive an intolerable risk that a nefarious employer will use them as cover for discrimination. Plaintiffs lack the resources (and the clairvoyance) to guess at how their respective decision makers 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.”
The decision highlights several longstanding HR deficiencies at State which account for the relatively high attrition rate among Hispanic FSOs, and why Hispanics have been underrepresented for decades at the State Department. Neither the Office of Civil Rights (S/OCR) nor the office overseeing the promotion process (HR/PE) conduct barrier analysis to identify possible barriers to minority promotion and retention in the Foreign Service.
For example, in the three year period that no Hispanic FSOs in plaintiff’s cone were promoted, no one at State analyzed the promotion statistics to determine whether the Department was in compliance with EEOC Employee Selection Guidelines. Nor has the Department ever named a Hispanic Special Emphasis Manager, as mandated under federal regulations. Finally, the Office of the Legal Adviser has failed in advising the Department to fight rather than comply with record keeping regulations, and failed to steer HR into adopting best practice that make the promotion process more transparent and legally defensible.
Please Note: This post also appears in our left hand sidebar under The Troubled State of State: A System Run Amok.
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