United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 4, 2001 Decided July 27, 2001
No. 00-5172
Lisa K. Russell,
Appellant
v.
Anthony J. Principi, Secretary of Veterans Affairs,
Appellee
Appeal from the United States District Court
for the District of Columbia
(No. 97cv00749)
Mark G. Chalpin argued the cause and filed the briefs for
appellant.
David J. Ball, Jr., Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Wilma A.
Lewis, U.S. Attorney at the time the brief was filed, and R.
Craig Lawrence, Assistant U.S. Attorney.
Before: Williams, Ginsburg and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge: The principal issue in this appeal is
whether Lisa K. Russell presented a prima facie case of
reverse discrimination by alleging an adverse employment
action under Title VII of the Civil Rights Act of 1964, 42
U.S.C. s 2000e et seq. Russell alleged that the Department
of Veterans Affairs engaged in reverse discrimination in
violation of Title VII by awarding her a lower performance
rating and a smaller cash bonus than her similarly-situated
coworker. In Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir.
1999), the court rejected the argument that "poor perfor-
mance evaluations are necessarily adverse actions." Relying
on Brown, the district court granted the Department's motion
for summary judgment on the ground that Russell had not
shown that she suffered an adverse employment action. We
hold that the loss of a bonus can constitute an adverse
employment action under Title VII and, therefore, reverse
the grant of summary judgment. As to Russell's challenges
to certain orders as abuses of discretion, we affirm in part
and remand in part. We deny Russell's belated request to
plead a new cause of action for bad faith litigation abuse.
I.
Lisa K. Russell, a GS 13 procurement analyst, sued the
Department of Veterans Affairs for reverse discrimination
after her work performance for the period 1992-93 was rated
"excellent" and she received a bonus of $807, while Sherry
Patton, her coworker, was rated "outstanding" and received a
bonus of $1,355. Russell is Caucasian; Patton is African
American. "Outstanding" was the highest of five possible
ratings; "excellent" was the second highest rating. The size
of the bonus was tied to the rating. Russell alleged that her
work performance and qualifications were superior to those of
Patton, and that her supervisors had engaged in a pattern of
preferential treatment of Patton based on her race. Russell
further alleged that her "excellent" rating was adverse be-
cause it damaged her chances for promotion and provided her
with less protection "against being laid off during a govern-
ment 'reduction in force,' or RIF, pursuant to a formula
outlined by the Office of Personnel Management." The par-
ties filed cross motions for summary judgment, and the
district court granted summary judgment for the Department
on the ground that Russell had not made out a prima facie
case of disparate treatment discrimination under Title VII, as
stated in Brown. The district court ruled that neither Rus-
sell's performance rating nor her bonus, even if lower than
she allegedly deserved, could be considered adverse actions.
As to her promotion claim, the district court noted that
Russell had not offered any evidence that she was denied a
promotion opportunity or that the performance rating would
have affected her current grade and step position. The
district court also rejected Russell's RIF argument as moot
as of the time of its ruling on summary judgment, because
only Russell's last three performance evaluations could affect
how she would fare during a RIF.
II.
Applying the familiar test of McDonnell Douglas v. Green,
411 U.S. 792, 802 (1973), the court in Brown stated that to
establish a prima facie case for disparate treatment discrimi-
nation "[i]n federal as in private employment cases ... the
plaintiff must establish that (1) she is a member of a protect-
ed class; (2) she suffered an adverse employment action; and
(3) the unfavorable action gives rise to an inference of dis-
crimination." Brown, 199 F.3d at 452; see also McDonnell
Douglas, 411 U.S. at 802. A plaintiff who alleges reverse
discrimination must, in addition, demonstrate "additional
'background circumstances [that] support the suspicion that
the defendant is that unusual employer who discriminates
against the majority.' " Harding v. Gray, 9 F.3d 150, 153
(D.C. Cir. 1993) (quoting Parker v. Baltimore & Ohio R.R.,
652 F.2d 1012, 1017 (D.C. Cir. 1981)). In Brown, the court
observed that a "thick body of precedent ... refutes the
notion that formal criticism or poor performance evaluations
are necessarily adverse actions." Brown, 199 F.3d at 458.
The court held that a " 'fully satisfactory' performance rating
[was not] an adverse employment action ... [because al-
though it] may have been lower than normal, it was not
adverse in an absolute sense." Id. Russell contends that the
district court erred in granting summary judgment to the
Department both because Brown did not hold that perfor-
mance evaluations can never constitute adverse actions and
because her case is distinguishable as she consequently re-
ceived a lower bonus than her similarly situated coworker and
was subjected to a greater risk of being RIFed than her
coworker. The Department responds that Russell's " 'excel-
lent' rating cannot be characterized as adverse because her
rating was favorable, not negative or even neutral as in
Brown." Our review of the grant of summary judgment is de
novo. See id.
The Supreme Court has described the concept of a "tangi-
ble employment action" as "a significant change in employ-
ment status, such as hiring, firing, failing to promote, reas-
signment with significantly different responsibilities, or a
decision causing a significant change in benefits." Burling-
ton Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998). Thus,
"[w]hile adverse employment actions extend beyond readily
quantifiable losses, not everything that makes an employee
unhappy is an actionable adverse action. Minor and even
trivial employment actions that 'an irritable, chip-on-the-
shoulder employee did not like would otherwise form the
basis of a discrimination suit.' " Smart v. Ball State Univ., 89
F.3d 437, 441 (7th Cir. 1996) (quoting Williams v. Bristol-
Myers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996)). We take
no issue with the "objectively tangible harm" requirement,
which guards against both "judicial micromanagement of
business practices," Mungin v. Katten, Muchin & Zavis, 116
F.3d 1549, 1556 (D.C. Cir. 1997), and frivolous suits over
insignificant slights. Performance evaluations are likely to be
"[i]nterlocutory or mediate decisions having no immediate
effect upon employment." Id. at 1555. 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. This
reasoning is reflected in Brown where the court suggested
that performance evaluations should not be considered ad-
verse actions if they did not "affect[ ] the [employee's] grade
or salary," and analogized performance evaluations to lateral
transfers, which are not actionable injuries unless they "af-
fect[ ] the terms, conditions, or privileges of [an employee's]
employment or her future employment opportunities such
that a reasonable trier of fact could conclude that the plaintiff
has suffered objectively tangible harm." Brown, 199 F.3d at
457. In contrast, 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. Furthermore, the
loss of a bonus that is worth hundreds of dollars is not a petty
detriment.
The Department nonetheless suggests that Brown controls
because Russell's "excellent" rating and $807 bonus, although
both lower than Russell believed she deserved, were "not
adverse in an absolute sense." Id. at 458. Because we do
not equate performance evaluations and monetary bonuses,
the Department's reasoning fails. Furthermore, the logic of
an action that is "adverse in an absolute sense" fits poorly
with employment decisions involving bonuses. The denial of
a bonus, or the award of a lesser bonus for discriminatory
reasons, could never be considered "adverse in an absolute
sense." A performance evaluation can drop below an aver-
age, but a bonus cannot be negative. The perverse logical
conclusion of the Department's reasoning is that an employer
could award $500 bonuses to all white employees and $1
bonuses to all similarly situated black employees without
running afoul of Brown, because under such a discriminatory
scheme no employee would be worse off in an absolute sense.
We decline to extend Brown in this manner. Rather, we view
Brown's language about absolute deprivations as simply stat-
ing that in most circumstances performance evaluations alone
at the satisfactory level or above should not be considered
adverse employment actions.
The Department also urges us to rely on Rabinovitz v.
Pena, 89 F.3d 482 (7th Cir. 1996), a case cited with approval
in Brown. In Rabinovitz, the plaintiff claimed that he was
given a "fully successful" rather than an "exceptional" perfor-
mance appraisal, which "prevented him from receiving a $600
bonus." Id. at 488. The Seventh Circuit held that "the loss
of a bonus is not an adverse employment action in a case such
as this where the employee is not automatically entitled to the
bonus." Id. at 488-89. The Department maintains in its
brief that Russell "actually received more favorable treat-
ment" than Rabinovitz because "she received a higher 'excel-
lent' rating" and an award that was "only $548 less than that
received by her co-worker with the highest possible rating."
In Brown, the court had no occasion to address whether a
performance rating accompanied by a bonus differential was
actionable. Brown can properly be understood, therefore, as
citing Rabinovitz only to "refute[ ] the notion that formal
criticism or poor performance evaluations are necessarily
adverse actions." Brown, 199 F.3d at 458. As for the precise
holding of Rabinovitz, the phrase "not automatically entitled
to the bonus" is not entirely clear but appears to mean that
the amount of the bonus Rabinovitz could have received was
entirely discretionary. By contrast, the Department con-
ceded at oral argument that the size of Russell's bonus was
directly tied to her performance rating; a higher rating would
have automatically meant a larger bonus. Regardless of the
factual differences between the two cases, however, we reject
the notion that a denial of a monetary bonus is not a
cognizable employment action under Title VII.
For these reasons, we hold that summary judgment was
inappropriate because Russell presented a prima facie case of
reverse discrimination under Title VII based on an adverse
employment action. To the extent, however, that Russell
relies on her temporary exposure to a higher risk of RIF, we
hold that such an unrealized risk of a future adverse action,
even if formalized, is too ephemeral to constitute an adverse
employment action; as the district court noted, "while the
disputed rating might have affected [Russell's] chances of
being '[RIF]ed' at an earlier date, it cannot affect her chances
now."
III.
Russell also challenges a series of orders by the district
court for which our review is for abuse of discretion. See
Shepherd v. Am. Broad. Cos., 62 F.3d 1469, 1475 (D.C. Cir.
1995) (sanctions); Carey Canada, Inc. v. Columbia Cas. Co.,
940 F.2d 1548, 1559 (D.C. Cir. 1991) (discovery). We find
either no abuse of discretion or no need to make such a
finding inasmuch as the discovery issues will need to be
addressed on remand, in light of our reversal of the grant of
summary judgment. Much of Russell's brief and the record
she supplied on appeal address her claims that the Depart-
ment mishandled and destroyed evidence that would show
that her coworker was not entitled to the outstanding perfor-
mance rating and larger bonus, and that she was entitled to
attorneys fees. We are unable to determine on the basis of
this record whether some of the district court's rulings deny-
ing Russell's motion for sanctions and certain discovery re-
quests were influenced by its interpretation of Brown. Fur-
thermore, some of the district court's rulings appear to rely
on its earlier dismissal of Russell's Bivens claims; the rele-
vance of that dismissal is unexplained.
Insofar as Russell contends that the district court erred in
not awarding costs and attorneys fees after directing the
Department not to destroy records, she has misconstrued the
district court's ruling. The district court's statements pro-
vide no basis to conclude that the district court made the
necessary predicate finding of bad faith. The district court
judge stated: "Although I don't think it is necessary, I will
direct the Government not to destroy any documents that are
relevant to this case." Russell's counsel indicated that he was
satisfied with this ruling. On appeal, Ms. Russell interprets
the judge's remark as a sanction against the Department
under the district court's inherent powers. Hardly. By
saying "I don't think it is necessary," the judge was indicating
that he found little or no merit to the motion and that he did
not believe that the Department was destroying evidence.
The district court did not find that the Department had acted
in bad faith in destroying records, and absent such a finding,
there was no basis for the award of monetary sanctions. See
Shepherd, 62 F.3d at 1475; United States v. Wallace, 964
F.2d 1214, 1219 (D.C. Cir. 1992). Thus, Russell provides no
ground on which the court could conclude that the district
court abused its discretion in denying costs and attorneys
fees.
Russell's contention that the district court abused its dis-
cretion in denying her motion for sanctions for bad faith
litigation abuses without an evidentiary hearing fares no
better. She presents no basis for concluding that the district
court abused its discretion in proceedings without such a
hearing. See LaPrade v. Kidder Peabody & Co., Inc., 146
F.3d 899, 904 (D.C. Cir. 1998). Indeed, she argued in the
district court that no hearing was needed because the evi-
dence was clear. To the extent that Russell also contends
that the district court erred in failing to impose sanctions, we
remand this issue. The district court gave no reasons in its
order denying the motion for sanctions, and thus this court
cannot determine how the district court resolved the parties'
disputed claims of material fact. See Lyles v. United States,
759 F.2d 941, 942 (D.C. Cir. 1985).
Regarding discovery, the district court will need to reas-
sess, in light of our reversal of the grant of summary judg-
ment, the relevance of Russell's motion to compel discovery
responses to five interrogatories, which pertained to the
handling of a letter that she sent concerning the safeguarding
of records, the disposition of telephone records, alleged docu-
ment destruction by Department attorneys, Department ac-
tion to preserve telephone records, and Department policies
and procedures to preserve records. To the extent relevant
to Russell's claim of disparate treatment, the discovery re-
quests may be meritorious. To the extent they relate to her
motion for sanctions for litigation abuse that the district court
properly denies, there may be no basis for granting the
requests. We leave these matters to the district court on
remand, to proceed as is appropriate, recognizing that the
district court may ultimately conclude that its prior discovery
rulings should stand.
Finally, Russell's effort to pursue an independent cause of
action for bad faith litigation abuse against the Department
fails. As Russell acknowledges, to date no circuit court has
held that a federal cause of action exists. Because she did
not raise this issue in the district court and does not show on
appeal that "a manifest injustice might otherwise result,"
Herbert v. National Academy of Sciences, 974 F.2d 192, 196
(D.C. Cir. 1992), we decline to decide now whether such a
federal cause of action exists.
Accordingly, we reverse the grant of summary judgment
for failure to present a prima facie case under Title VII, and
remand the case for further proceedings; we deny the re-
quest to plead a new cause of action.