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No Court Jurisdiction on Award Decision

In a controversial split decision, a U.S. Court of Appeals held that a plaintiff could not challenge his failure to receive a coveted Presidential Rank Award that includes a monetary bonus because no adverse employment actions occurred. Douglas v. Donovan, (D.C. Cir. No. 07-5339, 3/17/09). The DC Circuit majority found that the plaintiff had no viable claim of race discrimination under the Civil Rights Act as any harm was speculative since the President makes the final decision. As a result, the supervisor’s failure to recommend the plaintiff could not be considered a “significant change in employment status” but was more analogous to a disappointing performance review.

At the time of his request for the nomination, the plaintiff was the Department of Housing and Urban Development’s Deputy Assistant Secretary for Single Family Housing, an SES position. He subsequently was transferred and learned that a white female employee had been nominated and received the presidential award, which is the highest recognition given to federal career employees. The majority decided that the plaintiff suffered no significant change in his employment status because he did not “experience material adverse consequences” affecting the terms and conditions of his employment or any future employment opportunities such that a reasonable jury could find “objectively tangible harm.”

The dissent noted that the failure to nominate the plaintiff for the award was more analogous to exclusion from a selection process for promotion or hiring, which has been deemed to be actionable as being tantamount to a refusal to promote. As the presidential award includes up to 35 percent of a federal senior executive’s pay, it is a significant sum of money which the plaintiff was foreclosed from competing.