Douglas v. Donovan

• Decision Date: 17 March 2009
• Docket Number: No. 07-5339.,07-5339.
• Citation: 559 F.3d 549
• Parties: Frederick C. DOUGLAS, Jr., Appellant v. Shaun DONOVAN, Secretary of Housing and Urban Development, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

559 F.3d 549

Frederick C. DOUGLAS, Jr., Appellant v. Shaun DONOVAN, Secretary of Housing and Urban Development, Appellee.

No. 07-5339.

United States Court of Appeals, District of Columbia Circuit.

Argued October 16, 2008.

Decided March 17, 2009.

Appeal from the United States District Court for the District of Columbia (No. 04cv00847).

Robert C. Seldon argued the cause for appellant. With him on the briefs was Molly E. Buie.

Jane M. Lyons, Assistant U.S. Attorney, argued the cause for appellee. On the brief were Jeffrey A. Taylor, U.S. Attorney and R. Craig Lawrence and Charlotte A. Abel, Assistant U.S. Attorneys.

Before: GINSBURG, TATEL and BROWN, Circuit Judges.

Opinion for the court filed by Circuit Judge BROWN.

Dissenting opinion filed by Circuit Judge TATEL.

BROWN, Circuit Judge:

Frederick Douglas, an employee of the Department of Housing and Urban Development (HUD), argues he was discriminated against when his department head failed to recommend him for a highly coveted award. Because this is not an adverse employment action, we AFFIRM summary judgment in favor of HUD.

I.

A Presidential Rank Award, as measured by purse and prestige, is the highest recognition given to federal "senior executives"—high-level career employees. See 5 U.S.C. § 4507; 5 C.F.R. § 451.301. There are two types of Presidential Rank Awards: "(1) Meritorious Executive, for sustained accomplishment, or (2) Distinguished Executive, for sustained extraordinary accomplishment." 5 U.S.C. § 4507(c). The number of awards given annually is tightly restricted,¹ and the financial benefits are substantial.²

The Presidential Rank Award process is labyrinthine, with numerous ways to fail, but only one to succeed. An eligible executive must be recommended by his agency; within HUD, department heads recommend employees to HUD's Performance Review Board ("PRB"), which evaluates the candidates and then forwards a slate of prospective nominations to HUD's Deputy Secretary and Secretary, who—at least formally—decide which candidates will be recommended to the Office of Personnel Management ("OPM"). OPM "review[s] such recommendations and provide[s] to the President recommendations as to which of the agency recommended appointees should receive such rank." Id. § 4507(b). The President of the United States makes the final call.

In 1999, Douglas, a black male, became HUD's Deputy Assistant Secretary for Single Family Housing, a "senior executive" position. In November 2002, Assistant Secretary for Housing John Weicher, Douglas's department head, transferred him to a different department. In December 2002, Douglas learned that Weicher had not recommended him for a Presidential Rank Award. Instead, Weicher recommended Margaret Young, a white female, who received an award.

After HUD denied relief, Douglas sued under Title VII, alleging he was discriminated against on the basis of race when Weicher failed to recommend him for a Presidential Rank Award. The district court granted summary judgment to HUD, ruling that Douglas did not suffer an adverse employment action. Douglas appeals; our review is de novo, "applying the same standards as the district court." Tao v. Freeh, 27 F.3d 635, 638 (D.C.Cir.1994).

II.

In order to present a viable claim of employment discrimination under Title VII, a plaintiff must show he suffered an adverse employment action. See, e.g., Ginger v. Dist. of Columbia, 527 F.3d 1340, 1343 (D.C.Cir.2008). An "adverse employment action" is "`a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits.'" Taylor v. Small, 350 F.3d 1286, 1293 (D.C.Cir.2003) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)). An employee must "experience[] materially adverse consequences affecting the terms, conditions, or privileges of employment or future employment opportunities such that a reasonable trier of fact could find objectively tangible harm." Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C.Cir.2002); see also Holcomb v. Powell, 433 F.3d 889, 902 (D.C.Cir.2006) (distinguishing between "purely subjective injuries" which are not actionable, and "objectively tangible harm," which is). Further, "[a] tangible employment action in most cases inflicts direct economic harm." Burlington Indus., Inc., 524 U.S. at 762, 118 S.Ct. 2257 (emphasis added). Thus, "not everything that makes an employee unhappy is an actionable adverse action." Russell v. Principi, 257 F.3d 815, 818 (D.C.Cir.2001).

Because "significant" and "objectively tangible" harm is required, performance evaluations ordinarily are not actionable under Title VII; "[t]he result of an evaluation is often speculative, making it difficult to remedy. For example, a single poor evaluation may drastically limit an employee's chances for advancement, or it may be outweighed by later evaluations and be of no real consequence." Id. See also Taylor, 350 F.3d at 1293 ("[F]ormal criticism or poor performance evaluations are not necessarily adverse actions and they should not be considered such if they did not affect the employee's grade or salary."). On the other hand, "a bonus is a tangible, quantifiable award, more analogous to one's salary or to a benefit of one's employment than to a performance evaluation. It has a more direct, measurable, and immediate effect," meaning the denial of even a purely discretionary bonus can be actionable. Russell, 257 F.3d at 819. At the same time, however, if an employee is denied the opportunity to compete for a promotion, she has suffered an adverse employment action; we do not inquire whether she would have received the position but for the discrimination. See Cones v. Shalala, 199 F.3d 512 (D.C.Cir.2000). Thus, under our precedent, in some cases we consider whether any alleged harm is speculative, but we do not always do so.

The distinction between cases in which, to establish an adverse employment action, we consider the speculativeness of the harm and those in which we do not reflects the difference between a categorical presumption and a causation requirement. Although "we do not categorically reject a particular personnel action as nonadverse simply because it does not fall into a cognizable type," Holcomb, 433 F.3d at 902, we have described an adverse employment action as "`a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits.'" Taylor, 350 F.3d at 1293 (quoting Burlington Indus., Inc., 524 U.S. at 761, 118 S.Ct. 2257) (emphasis added). The first four examples—"hiring, firing, failing to promote, [and] reassignment with significantly different responsibilities"—all relate to one's work responsibilities and position, and are categorically phrased. Although there may be subjective elements to all of these decisions, it is obvious that each significantly changes an employee's status. Consequently, under our case-law employment decisions of this type are conclusively presumed to be adverse employment actions, even if any alleged harm is speculative. See, e.g., Cones, 199 F.3d at 521.

On the other hand, some actions do not obviously cause a significant change in employment status. The last example of an adverse employment action discussed in Taylor—"a decision causing significant change in benefits"—alone requires an employee to explain how the employer's action harmed his employment status. For employment actions that do not obviously result in a significant change in employment status—such as giving a poor performance evaluation, reassigning office space and equipment, or, for that matter, fielding a company softball team— an employee must go the further step of demonstrating how the decision nonetheless caused such an objectively tangible harm. As Russell indicates, this additional step (which, by the way, is not "newly minted," Dis. Op. at 557, as illustrated by Russell itself) requires us to consider whether the alleged harm is unduly speculative. Showing that harm is not speculative need not be a difficult task, and it often is not. For example, a benefit such as a bonus—or, by logical extension, a pay raise—is objectively tangible because it has a "direct, measurable, and immediate effect" upon the employee's compensation. Russell, 257 F.3d at 818-19. By parity of reasoning, the loss of a bonus or of a raise likewise has such an effect. Other changes in benefits, however, do not have such a straightforward effect upon employment status. For example, under Russell, the effect of a poor evaluation is ordinarily too speculative to be actionable. See id. at 818. If, however, that evaluation determines the bonus, as in Russell, id. at 818-19, and Weber v. Battista, 494 F.3d 179, 184-85 (D.C.Cir.2007), then the employee may show the evaluation caused an objectively tangible harm.

The Presidential Rank Award recognizes extraordinary performance. It is not earned in the ordinary course of employment for adequate or even superior work or for meeting or exceeding established goals. Instead, it is intended to reward outstanding leadership and innovation—indefinable star qualities that are by their very nature subjective. See 5 U.S.C. § 4507(c) (Meritorious Executive Award for "sustained accomplishment" and Distinguished Executive Award for "sustained extraordinary accomplishment"). Failure to make the cut for such an award cannot be deemed a significant change in responsibilities; nor would elimination from the competition affect employment opportunities in an objectively tangible way. Therefore, unlike failure to be promoted, failure to be recommended for a Presidential Rank Award is not categorically an adverse employment action.

Moreover, the inherent uncertainty in the Presidential Rank Award process means there...