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.
 6
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
 7
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
 8
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
 9
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
 10
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
 11

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).
 12
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.