Some Personnel Actions Not Covered by EEO Complaint Process

When a federal senior executive does not get nominated for a Presidential Rank Award, is that a basis for a discrimination complaint? An executive at HUD charged he was subjected to race discrimination when a department head nominated a white woman but not the complainant. The unhappy executive filed a discrimination complaint and a federal court has now issued its decision.

A federal appeals court by a 2-to-1 decision has declined to recognize that not being nominated for a Presidential rank award constitutes an adverse employment decision under Title VII. (Douglas v. Donovan, Secretary of Housing and Urban Development, C.A.D.C. No. 07-5339, 3/17/2009)

Mr. Douglas, a black male, was Deputy Assistant Secretary for Single Family Housing in the Department of Housing and Urban Development, when he leveled a discrimination complaint based on race against his agency. His department head nominated a white female for a presidential rank award and did not recommend Douglas. The white female made it through the process and eventually received a rank award. (Opinion p. 3)

The agency processed Douglas’ complaint and eventually concluded that there was no discrimination. Douglas filed suit under Title VII. The district court made a summary ruling in the agency’s favor, finding that Douglas had not suffered an adverse employment action and thus could not sustain a discrimination complaint. (p. 3) Douglas took his case to the appeals court. The D.C. Circuit Court of Appeals has now affirmed the district court’s decision and reasoning for denying Douglas his day in court. (p. 3)

A Presidential Rank of Meritorious or Distinguished Executive "as measured by purse and prestige" is the highest recognition for a federal Senior Executive Service (SES) employee. (p. 2) By law the total number of Meritorious Rank awards in any given year cannot exceed 5% of the total SES corps and the number of Distinguished Rank awards cannot exceed 1% of the total. In addition to the rank, the executive receives a whopping lump sum monetary award—35% of basic pay for the Distinguished Rank and 20% for Meritorious. (p. 2)

The process by which these ranks are awarded is, to use the appeals court’s phrase, "labyrinthine…. with numerous ways to fail, but only one to succeed. " (p. 2) As applied to HUD, the process involves first a recommendation from the department head; then review by the HUD Performance Review Board which looks at all the nominations and comes up with a recommended slate; then review by the Deputy Secretary and Secretary of HUD who make the final agency recommendation. From there, the HUD slate goes to the Office of Personnel Management (OPM). OPM’s job is to whittle the numerous agencies’ recommended slates into a final list that OPM submits to the President of the United States for the final decision. (pp. 3-4)

Mr. Douglas confronts two basic problems in making his case. The first and biggest is that to succeed with a discrimination claim under Title VII, he has to show that he suffered "an adverse personnel action." The question is quite simply whether not being recommended for a Presidential Rank award fits that bill. (pp. 3-4)

According to the district court and now the appeals court, it does not: "The Presidential Rank Award recognizes extraordinary performance…[I]t is intended to reward outstanding leadership and innovation—indefinable star qualities that are by their very nature subjective…. 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." (pp. 6-7)

The second big problem for Douglas’ case is that it is difficult if not impossible to tie his supervisor’s failure to nominate him to a conclusion that he therefore did not receive a rank award. For this reason the court concludes that the decision not to nominate him is beyond the reach of Title VII: "A departmental recommendation is but a single point in the assessment, one cog in a complex machine…. {I]t 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.’" (pp. 7-10)

To underscore speciousness of trying to tie the nomination and eventual rank award together, the court’s decision notes the following interesting facts. First, over a 6-year period (1999-2004), 32 HUD officials were nominated by the agency but only half received a rank award. Second, when Douglas later was recommended for the award he was not selected. (p. 7)

This case shows there are some personnel actions that are beyond the reach of Title VII’s discrimination complaint process.

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.