Douglas v. Donovan

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 16, 2008 Decided March 17, 2009

No. 07-5339

FREDERICK C. DOUGLAS, JR.,

APPELLANT

v.

SHAUN DONOVAN, SECRETARY OF HOUSING AND URBAN

DEVELOPMENT,

APPELLEE

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.

2

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

1

See 5 U.S.C. § 4507(d) (“During any fiscal year . . . the number of

career appointees awarded the rank of Meritorious Executive may

not exceed 5 percent of the Senior Executive Service,” and “the

number of career appointees awarded the rank of Distinguished

Executive may not exceed 1 percent.”).

2

See id. § 4507(e) (“Receipt . . . of the rank of Meritorious

Executive [includes] a lump-sum payment of an amount equal to 20

percent of annual basic pay,” and “[r]eceipt . . . of the rank of

Distinguished Executive [inlcudes] a lump-sum payment of . . . 35

percent of annual basic pay.”).

3

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

4

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 (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 (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

5

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) (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 caselaw, 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.

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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 3, 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

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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.

In an attempt to escape this reasoning, Douglas cites

Griffin v. Washington Convention Center, 142 F.3d 1308

(D.C. Cir. 1998). But the adverse employment action in

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Griffin was obvious: termination. The dispute on appeal was

what evidence was appropriate to establish an inference of

discrimination, id. at 1310–11 (discussing whether the bias of

a decision maker’s subordinate is admissible in a suit

challenging a decision to fire an employee), a wholly separate

question than the one at issue here, namely, whether Douglas

suffered an adverse employment action when Weicher did not

recommend him for a Presidential Rank Award. Douglas also

argues that whether Weicher’s failure to recommend him

resulted in Douglas’s not receiving an award should be

deemed a question of fact, not law (i.e., he contends the

refusal to recommend was an adverse employment action, and

a jury should decide if that action harmed Douglas).

However, under Douglas’s logic, a performance evaluation

alone could also be adverse employment action, with a jury

deciding whether the evaluation, in fact, harmed the

employee. We rejected that notion in Russell.

Douglas finally cites Cones. There we held an employer’s

refusal to allow an employee to compete for a job could be

actionable because the refusal to advertise the position

competitively was “tantamount to refusing to promote him,”

and failure to promote can be an adverse employment action.

Cones, 199 F.3d at 521. Douglas argues that Weicher’s non-

recommendation was tantamount to a denial of a bonus, and

thus was also an adverse employment action.

We disagree with this extension of Cones. Unlike being

considered for a promotion, the question at issue in that case,

being recommended for—much less receiving—the

extraordinary distinction of a Presidential Rank Award is not

an ordinary expectation of employment. Indeed, as explained

above, under our precedent failure to be promoted

categorically is an adverse employment action, meaning

unlike with other types of employer decisions (such as giving

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a negative performance evaluation), we do not consider

whether any alleged harm is unduly speculative. With this

distinction in mind, Cones should be understood as closing a

potential loophole in Title VII. It established that agencies

may not prevent minority employees from advancing to

higher positions simply by refusing to open positions to

competition and laterally transferring higher ranked non-

minorities. But that unobjectionable proposition cannot be

read to support Douglas’s much broader argument: that a Title

VII plaintiff has an actionable claim whenever he was not

selected to move to the next level of competition for any

award accompanied by a prize, even if entitlement is not

objectively ascertainable and the decisionmaking is

unavoidably subjective. See Holcomb, 433 F.3d at 902 & n.2

(explaining that although “employment actions need not fall

into cognizable categories to be considered adverse,” Cones

does not abrogate the requirement that a plaintiff must show

an action constituted objectively tangible harm). The mere

failure to be nominated for such a lofty and rare distinction is

insufficient to establish an adverse employment action under

Title VII.

In any event, Cones is inapposite because the decision

whether to promote an employee is made by an employer

subject—in the most part—to objective criteria, see Aka v.

Wash. Hosp. Ctr., 156 F.3d 1284, 1298 (D.C. Cir. 1998) (en

banc) (acknowledging limited role for an employer’s

“subjective considerations” but also noting “jury could

reasonably find that the plaintiff was otherwise significantly

better qualified than the successful applicant” notwithstanding

use of subjective criteria); it is therefore unremarkable that an

employer’s decision to foreclose competition for a promotion

may be actionable. Here, by contrast, HUD never decides

who receives a Presidential Rank Award—the President does,

based on subjective criteria. Douglas, however, cannot sue

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the President under Title VII because he is not Douglas’s

employer. See 42 U.S.C. § 2000e-16(c). On the other hand,

in Cones, the same entity, Cones’s employer, decided whom

to hire, as well as whom to interview, and how the hiring

process would be conducted, making it unremarkable that

Cones could bootstrap the agency’s failure to allow him to

compete to the agency’s failure to promote him. Not so with

the Presidential Rank Award, where Congress, by statute, has

created a decisionmaking process that includes both those

inside and outside of an agency, with the final decision being

made by the President. Thus Cones tells us nothing about the

loss of opportunity to compete for consideration by the

President, whose unfettered discretion in selecting

Presidential Rank Award recipients would not be subject to

review under Title VII. Because the ultimate decision to give

a Presidential Rank Award is unconstrained by objective

criteria and beyond the reach of Title VII, Weicher’s decision

to not recommend Douglas is also beyond that reach.3

3

To be sure, Weicher’s decision guaranteed that Douglas would not

receive an award. But, given the lack of ascertainable criteria and

the boundless discretion of the President, a fact-finder could not

determine whether Douglas suffered “objectively tangible harm.”

Forkkio, 306 F.3d at 1131. Indeed, Douglas’s lost “chances for a

substantial monetary award,” Dis. Op. at 2, were so speculative

that, with the obvious exception of Young and those few others that

were recommended by their respective department heads, any

senior executive at HUD with a high annual performance rating

(which is to say, every senior executive rated by Weicher), could

have brought the exact same claim as Douglas. Just as a poor

performance evaluation—which obviously might cause harm—is

not itself actionable because of inherent speculativeness, failing to

recommend a worker for a Presidential Rank Award—which also

might cause harm—is not actionable, and for the same reason. The

dissent quarrels with our causation analysis, arguing it is unclear

“what level of certainty the court expects plaintiffs like Douglas to

establish.” Dis. Op. at 7. The simple answer is that Douglas’s

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Finally, a few words about the dissent. Though we share

his revulsion for racial animus, the secret memo scenario,

apparently consequential to our colleague, is not unique to

Douglas’s case, but could be offered in any case where the

requirement of an adverse employment action has not been

satisfied. If, for example, discovery unearthed a memo stating

a supervisor would never give a black person a positive

performance evaluation (and if the administrative conciliation

process failed to offer relief), our precedent holds that such an

evaluation would not be deemed an adverse employment

action unless it “affect[ed] the employee’s grade or salary.”

Taylor, 350 F.3d at 1293. In this regard, our colleague’s

quarrel is not with us, but with the adverse employment action

requirement itself. We’ll let him fight that battle alone.

Likewise, while conceding that some non-subjective

“harms” are not adverse employment actions, “such as those

threatened by negative performance evaluations,” the dissent

seems to suggest (without saying so directly) that Russell was

wrongly decided, or at least that it should be read narrowly,

more as a statistical blip than a doctrinal principle. Dis. Op.

at 2. We think the court in Russell was correct. Just as the

harm resulting from a single performance evaluation viewed

in isolation is speculative, cf. Weber, 494 F.3d at 184–85, so

too is it speculative whether Douglas would have received a

Presidential Rank Award had he been recommended.

Douglas cannot show he suffered an objectively tangible harm

because he cannot show that losing the opportunity to

chance at winning a Presidential Rank Award was entirely

uncertain. That is enough to dispose of this case. Cf. Weber, 494

F.3d at 184–85 (pattern of receipt of bonuses based upon prior

positive evaluations established causal link); Russell, 257 F.3d at

818–19 (causal link established by showing bonus followed

automatically from positive evaluation).

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compete significantly changed his employment status. The

same cannot be said of the loss of opportunity to compete for

a promotion; under our caselaw decisions relating to one’s

work responsibilities and position like “‘hiring, firing, failing

to promote, [and] reassignment with significantly different

responsibilities’” categorically are adverse employment

actions. Taylor, 350 F.3d at 1293 (quoting Burlington Indus.,

Inc., 524 U.S. at 761). Hence, the dissent just gets it wrong:

in both precedent and principle, there is a meaningful

distinction between eliminating an employee from

consideration for the Presidential Rank Award and

eliminating her from consideration for a promotion or job

opening.

As Douglas cannot show he suffered an adverse

employment action, we AFFIRM the grant of summary

judgment.4

So ordered.

4

Because the exhaustion requirement, though mandatory, is not

jurisdictional, see Munsell v. Dep’t of Agriculture, 509 F.3d 572,

581 (D.C. Cir. 2007); In re James, 444 F.3d 643, 647–48 (D.C. Cir.

2006), we do not decide whether Douglas adequately exhausted his

administrative remedies.

TATEL, Circuit Judge, dissenting: Imagine that discovery

in this case had turned up a memo from Frederick Douglas’s

former supervisor, John Weicher, expressly stating that he

would never nominate a black person for the Presidential Rank

Award. Under this court’s holding—that disqualification

from competing for a lucrative employment award is not an

adverse employment action—Douglas would have no recourse

to Title VII even in the face of such direct evidence of

discriminatory intent. Because this result cannot be squared

with Title VII, and because there is no principled difference

between the hypothetical case and Douglas’s with respect to

the only issue we address today—whether Weicher’s rejection

of Douglas qualifies as an adverse employment action—I

respectfully 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, he

experienced “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.

2

To be sure, we have recognized that some harms, such as

those threatened by negative performance evaluations standing

alone, may be too speculative to constitute adverse

employment actions. See Maj. Op. at 4 (citing Russell, 257

F.3d at 818). The reasoning underlying that principle, though

entirely correct where applicable, has nothing to do with this

case. As we explained in Russell v. Principi: “The 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.” 257 F.3d

at 818. In this case, by contrast, we needn’t speculate at all as

to the negative consequences of Weicher’s rejection of

Douglas’s candidacy. It represented the final word,

irremediably foreclosing Douglas from competing for the

award. See Appellee’s Br. 18 (conceding that the

“non-nomination . . . took [Douglas] out of the running” for the

award). Unlike a “single poor evaluation,” which merely adds

to the overall mix of information in an employee’s personnel

file, Russell, 257 F.3d at 818, Weicher’s rejection had the

direct and immediate effect of terminating Douglas’s chances

for a substantial monetary award. No future action could

mitigate this adverse impact and render the rejection “of no real

consequence,” id.

The proper analogy is thus not to a negative performance

evaluation, but rather to excluding a candidate from the

selection process for a promotion or a job opening, either of

which would qualify as an adverse employment action. Like

hiring and promotions, the Presidential Rank Award involves a

formalized, multi-layered selection process for a specific,

tangible employment benefit—a significant sum of money.

This case is thus much like Cones v. Shalala, 199 F.3d 512,

521 (D.C. Cir. 2000), where we held that refusing to allow an

employee to compete for a job opening qualified as an adverse

3

employment action without regard to how likely it was that the

employee would actually be hired. We neither asked how

many other individuals would have applied for the job nor

required the employee to show that he would automatically

have been the successful candidate. We simply reasoned that

“refusing to allow [an employee] to compete” for a benefit is

“tantamount to refusing” to grant the benefit. Id. So too

here. Refusing to allow Douglas to compete for the

Presidential Rank Award was “tantamount to refusing” the

award.

Seeking to avoid the obvious implications of Cones for

this case, the court attempts to distinguish the Presidential

Rank Award selection process from selection processes for

hiring and promotions. Relying on oft-quoted language in

Burlington Industries, Inc. v. Ellerth—“a tangible employment

action [for purposes of vicarious liability] constitutes a

significant change in employment status, such as hiring, firing,

failing to promote, reassignment with significantly different

responsibilities, or a decision causing a significant change in

benefits,” 524 U.S. 742, 761 (1998)—the court says there is a

difference between actions “related to one’s work

responsibilities and position” like hiring, firing, failing to

promote, and reassignment, and “decisions causing [a]

significant change in benefits.” Maj. Op. at 5–6. According

to the court, actions in the first category—hiring, firing, failing

to promote, and reassignment—“are conclusively presumed to

be adverse employment actions, even if any alleged harm is

speculative,” id. at 5, as are decisions relating to such actions,

like the refusal to allow an employee to compete for a

promotion in Cones, Maj. Op. at 12. For the second category,

however, the court offers up a newly-minted strict “causation

requirement” applicable only to employment benefits: “a

decision causing [a] significant change in benefits . . . alone

requires an employee to explain how the employer’s action

4

harmed his employment status,” id. at 6. Under this new

rule, for decisions such as refusal to hire or promote that cause

an employee to lose out on a better job, rejected candidates

need show only that they were eliminated at some point in the

process. By contrast, for decisions that cause an employee to

lose out on an employment benefit, rejected candidates

apparently must now prove that they would have ultimately

received the benefit had they not been eliminated at an earlier

stage of competition. Because receiving the Presidential

Rank Award represents a change in benefits rather than a

change in work responsibilities or position, id. at 6–7, the court

concludes that denial of the opportunity to compete for the

award doesn’t qualify as an adverse employment action unless

the employee can show that he would have otherwise received

the award, id. at 11–12.

The distinction the court draws fails to hold up. The court

nowhere explains why actions related to “one’s work

responsibilities and position,” id. at 5, fall more squarely under

Title VII’s ban on discrimination in “compensation, terms,

conditions or privileges of employment,” 42 U.S.C. §

2000e-2(a)(1), than do actions related to, for example, work

hours, vacation time, bonuses, or any other employment

benefit. See George v. Leavitt, 407 F.3d 405, 410–11 (D.C.

Cir. 2005) (explaining that the Title VII provision governing

federal employers, 42 U.S.C. §2000e-16(a), is construed in

terms of the provision governing private employers, 42 U.S.C.

§2000e-2(a)). Nor is it clear whether the court means to

include all employment benefits in its disfavored category now

subject to the causation requirement. The court seems to

place pay and bonuses in the benefits category. Maj. Op. at 6.

But why? Surely pay directly “relate[s] to one’s . . . position,”

so why wouldn’t pay decisions, just like promotion decisions,

categorically qualify as adverse employment actions without

regard to how speculative the ultimate harm? For that matter,

5

why doesn’t the Presidential Rank Award also “relate to one’s

work responsibilities and position”? After all, the award is

based on an employee’s achievements in carrying out his work

responsibilities and is calculated as a percentage of the salary

for his position.

In any event, regardless of where the court draws the line,

Burlington Industries provides no support for treating benefits

differently from position and work responsibilities. Every

item on Burlington Industries’ non-exhaustive list refers to the

end result sought: a new job, retention of one’s job, a

promotion, or a decision causing a significant change in

benefits—here the President’s decision to award a substantial

sum of money. If definitively barring a candidate from

consideration for one of these desired outcomes constitutes an

adverse employment action—as the court acknowledges with

respect to promotions—then barring a candidate from

consideration for any of them does.

Not only does the court’s distinction find no support in

Burlington Industries, but it makes no sense. For example,

suppose an employer asks line supervisors to nominate

candidates for one available high-level vacancy and separately

for one available bonus. Now suppose a line supervisor

refuses to nominate a minority employee for either the

promotion or the bonus, and two white employees are

ultimately chosen. Under the court’s “causation requirement”

the minority employee has suffered an adverse employment

action as to the promotion but not as to the bonus. The

minority employee would now have a Title VII claim related to

the bonus only if she could show that had the line supervisor

not excluded her she would have received the bonus over any

of the other nominees. Nothing in Title VII or in our Title VII

cases even hints that the statute provides less protection for

employees adversely affected by decisions involving money

6

than for those adversely affected by decisions involving

promotions.

The court does acknowledge that because bonuses and pay

have “a ‘direct, measurable and immediate effect’” on

compensation, the loss of a bonus qualifies as an adverse

action. Maj. Op. at 6. Yet the court fails to explain what it

means by “loss of a bonus.” Does “loss of a bonus” refer

solely to the final decision such that a bonus is actionable only

if an employee can show that she in fact lost the bonus, i.e. that

she would have received it but for the employer’s action? If

so, then it leads to the arbitrary result in the hypothetical above.

Or does “loss of a bonus” include loss of the opportunity to

compete for a bonus such that an employee eliminated from

competition has suffered an adverse employment action

regardless of how likely it was that she would actually receive

the bonus? If so, the court’s reasoning defeats its conclusion

in this very case—surely an employee who obtains an award

worth 35 percent of his salary in recognition of his work

accomplishments has experienced as direct, measurable, and

immediate an effect on his compensation as does an employee

who receives a less substantial bonus. “By parity of

reasoning,” id., loss of the award through elimination from

competition “likewise has such an effect,” id.

Perhaps the court means to limit its causation requirement

to employer actions, like the single performance evaluation,

that on their face have no obvious connection to any particular

selection process. But even for such actions, I see no basis for

distinguishing between hiring, firing, failing to promote, and

reassignment on the one hand, and other employment benefits

on the other. Nothing in our negative performance evaluation

cases indicates that the analysis of an evaluation’s impact

differs when the employee is worried about her ability to get a

future promotion rather than a future bonus or raise. Surely

7

the court does not mean to suggest that the recipient of a

negative performance evaluation need no longer show that the

evaluation in fact played a role in taking her out of the running

for a job or promotion.

Not only is there no basis for requiring a different showing

for employment benefits than for promotions, but the court’s

causation analysis gets it backwards. We know from Cones

that the question isn’t whether absent the employer’s action the

plaintiff would have gotten the benefit, but rather whether as a

result of the employer’s action the plaintiff could not. Cf.

Burke v. Gould, 286 F.3d 513, 522 (D.C. Cir. 2002) (negative

performance evaluation constitutes adverse employment action

when plaintiff received bonuses “nearly every year

previously” (emphasis added)). Performance evaluations

generally do not conclusively terminate an employment benefit

selection process; Weicher’s elimination of Douglas from the

Presidential Rank Award process did.

Nor is it clear what level of certainty the court expects

plaintiffs like Douglas to establish. After all, Douglas’s hope

for the Presidential Rank Award was hardly a pipe dream: in

the year Weicher rejected him, two-thirds of those nominated

received awards, Appellant’s Reply Br. 3–4. What greater

showing is now required at the summary judgment stage to

permit a reasonable jury to infer that Douglas would have

received the award?

In support of its conclusion that Douglas failed to meet its

flawed causation requirement, the court focuses on the highly

selective nature of the Presidential Rank Award, stating that

“[u]nlike being considered for a promotion, . . . being

recommended for . . . the extraordinary distinction of a

Presidential Rank Award is not an ordinary expectation of

employment.” Maj. Op. at 8. Yet much like promotion

8

opportunities, the Presidential Rank Award is offered annually,

and all career Senior Executive Service members with three or

more years of service are eligible to compete. Appellee’s Br.

2–3 (citing 5 C.F.R. § 451.301(b)). For eligible Senior

Executive Service members, then, competing for a Presidential

Rank Award is indeed an ordinary expectation of

employment—or as the statute puts it, a “privilege[] of

employment,” 42 U.S.C. § 2000e-2(a)(1). Nor is it relevant

that the Presidential Rank Award represents a “lofty” award,

Maj. Op. at 9. If prestige determined the scope of Title VII,

employers could refuse to hire or promote minorities into the

most desirable elite positions, yet Title VII clearly covers such

positions, see, e.g., Stewart v. Ashcroft, 352 F.3d 422, 426–27

(D.C. Cir. 2003) (recognizing that non-selection as chief of

section in the Department of Justice constitutes an adverse

employment action).

Further seeking to distinguish the Presidential Rank

Award from other employment decisions that involve similar

selection processes, the court emphasizes that the President, as

the ultimate decision-maker, enjoys unfettered discretion and

is immune from suit, Maj. Op. at 9–10. But Douglas is not

suing the President for denying the award; he’s suing his

employer, the Secretary of Housing and Urban Development,

for terminating his candidacy for an award calculated as a

percentage of his HUD salary and paid for with HUD funds,

Appellant’s Opening Br. at 2. True, Weicher lacked ultimate

authority to grant the award, but he did have authority to ensure

that Douglas was excluded—a power he exercised to

Douglas’s irreparable detriment.

Finally, the court says that promotion decisions are

“subject—in the most part—to objective criteria” while the

Presidential Rank Award is based on subjective criteria. Maj.

Op. at 9. Yet we have long recognized that promotion and

9

hiring decisions often turn on subjective criteria, see Aka v.

Wash. Hosp. Ctr., 156 F.3d 1284, 1298 (D.C. Cir. 1998) (en

banc) (“[E]mployers may of course take subjective

considerations into account in their employment decisions . . .

.”), and such decisions nonetheless remain subject to Title VII.

Moreover, it is far from clear that the Presidential Rank Award

process is in fact divorced from objective criteria. For

example, “an exceptional record of achieving important

program results,” Saul Ramirez Decl. Attach. B at 7, would

likely involve objective accomplishments such as Douglas’s

claim that he increased single family home ownership,

Appellant’s Opening Br. at 11. But even were the award

criteria entirely subjective, relying on such criteria to pick

award recipients is no different from relying on subjective

criteria to choose between two job candidates with

indistinguishable objective qualifications, cf. Aka, 156 F.3d at

1298 (hiring decision based on the purely subjective criteria of

“enthusiasm” when objective criteria did not clearly favor

selected candidate), or from hiring decisions for jobs such as

speechwriter or graphic designer that by their nature are highly

subjective.

By focusing on the subjectivity of the award, the court

exposes the fundamental flaw in its decision: it conflates the

question of whether Weicher’s disqualification of Douglas was

sufficiently adverse with the ultimate question of whether it

was motivated by discriminatory animus. That the

Presidential Rank Award recognizes subjective “star

qualities,” Maj. Op. at 7, may make it more difficult for

Douglas to show that Weicher rejected him because of race,

but it has nothing to do with whether Weicher’s decision is the

type of employment action Title VII seeks to rid of

discrimination.