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U.S. Circuit Court holds that not being recommended for the Presidential Rank Award not an adverse employment action

U.S. Circuit Court holds that not being recommended for the Presidential Rank Award not an adverse employment action
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Douglas v. Preston, No. 07-5339, ___F.3d___(D.C. Cir. March 12, 2009), is an important Title VII case.

The plaintiff, a federal employee, was not awarded the President's Award that is literally awarded by the President for outstanding performance. However, the majority dismissed the Title VII case by concluding that this award was not an adverse job action. The court majority reasoned:

?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 can be no direct tie between a nomination and an award. A departmental recommendation is but a single point in the assessment, one cog in a complex machine. As observed by the district court, ?of the thirty-two candidates nominated by their department heads in 1999?2004, only sixteen ultimately received an award.? In fact, Douglas himself was recommended but not selected in 2001.?

Because of the many moving parts involved in selecting a Presidential Rank Award winner?including multiple rounds of independent evaluation both inside and outside of HUD, with a final decision by the President?even if Weicher had recommended Douglas, it is quite uncertain whether the President ultimately would have selected Douglas to receive an Award, rendering any harm from the failure to recommend ?speculative? and ?difficult to remedy? [Russell, 257 F.3d at 818]. Because a recommendation for a Presidential Rank Award does not automatically or even consistently lead to receipt of one, neither Russell nor Weber aids Douglas.?

This holding generated a strong dissent:

?It is true that ??not everything that makes an employee unhappy?? is actionable under Title VII. Maj. Op. at 4 (quoting Russell v. Principi, 257 F.3d 815, 818 (D.C. Cir.2001)). Indeed, even given an openly discriminatory memo, Douglas would be unable to sustain a Title VII discrimination claim for a ?[p]urely subjective injur[y], such as dissatisfaction with a reassignment, or public humiliation or loss of reputation,? Forkkio v. Powell, 306 F.3d 1127, 1130?31 (D.C. Cir. 2002) (citation omitted), or for a negative performance evaluation unconnected to a financial or other benefit, Maj. Op. at 4. But Weicher?s rejection of Douglas as a contender for the Presidential Rank Award was far more tangible than any of these merely ego-bruising actions?it definitively closed Douglas?s only available door to an award equal to 35 percent of his salary. Thus when Douglas lost the opportunity to compete for this valuable employment-related award, heexperienced ?materially adverse consequences affecting the terms, conditions, or privileges of employment . . . such that a reasonable trier of fact could find objectively tangible harm,? [Forkkio, 306 F.3d at 1131].

I believe that the majority is wrong-very wrong. The opportunity to compete for an award which can lead to a significant increase in salary is similar to a decrease in health insurance benefits the employee may never need or use. It is the lost opportunity which should be actionable. After all, Title VII is about equal employment opportunity. This case would make an excellent law review comment.

Mitchell H. Rubinstein

The decision is posted on the Internet at: http://caselaw.lp.findlaw.com/data2/circs/dc/075339p.pdf

Full post as published by New York Public Personnel Law on April 17, 2009 (boomark / email).