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Douglas v. Preston, No. 07-5339 (D.C. Cir. Mar. 17, 2009); Zokari v. Gates, No. 07-6173 (10th Cir. Mar. 17, 2009)


Does the refusal of an agency to nominate a federal employee for a prestigious presidential award (supposedly for racial reasons) constitute an "adverse employment action" under Title VII? Does the refusal of a Nigerian employee to take lessons to improve his English necessarily constitute a "protected activity" under Title VII's anti-retaliation section? No, hold (respectively) the D.C. and Tenth Circuits, in decisions published yesterday.

Douglas v. Preston, No. 07-5339 (D.C. Cir. Mar. 17, 2009):  The plaintiff claimed that his agency, HUD, refused to submit his name to compete for a Presidential Rank Award, whose winners are approved by the White House (by its discretion) and which carries a cash reward of 20-35% of a civil servant's annual salary. Nominations must originate with a department head, and Mr. Douglas alleged that his boss gave the nod to a white female employee instead.  The district court granted summary judgment, holding that refusal to nominate an employee for an award where the outcome is uncertain was not an actionable harm under Title VII.

The panel majority affirms, adopting an analysis recognizing that while certain kinds of activity may automatically be taken as adverse (termination, demotion, failure to promote or hire), for more exotic claims about privileges and perks withheld, the plaintiff bears the addition al burden of showing that the denial cause some kind of injury:

"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 . . . [As in Burlington Northern, 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 case law, employment decisions of this type are conclusively presumed to be adverse employment actions, even if any alleged harm is speculative.

"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  . . .'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."

The panel majority observes, in the case at hand, that the Presidential Rank Award nominees have to survive several levels of review even with the nomination, and their fate rests in the hands of the president, who has unreviewable discretion to determine awardees. 

Not getting to the starting blocks in a process so fraught with doubt, the panel majority holds, is not sufficiently adverse:

"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 [the department head] 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.'"

Judge Tatel, dissenting, denies the distinction between actions impinging on work status and duties on the one hand, and those concerning with employment benefits such as the Award.  He states this hypothetical:

"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."

In discussing this issue with other lawyers, I have used a similar example:  "Sorry, but corner offices are for men only." (Indeed, why not Jim Crow office kitchens under the majority's schema?)  While the requirement of an "adverse employment action" was compelled by the pre-1991 make-whole remedies of Title VII, the existence of legal remedies renders this entire analysis outmoded.  Tangible racial or gender indignities related to any terms and conditions of employment ought to be illegal under Title VII, even if the only remedy is nominal damages.

Zokari v. Gates, No. 07-6173 (10th Cir. Mar. 17, 2009):  The district court granted summary judgment on a retaliation claim, while the employee's discrimination went to trial (and lost).  Attempting to revive the retaliation claim, the plaintiff argues that he state a claim where (1) his agency manager insisted that he take English-as-a-second-language lessons to soften his accent; (2) the employee refused; and (3) shortly thereafter, he was fired for "poor work performance." 

The panel affirms summary judgment, holding that even if the refusal was a protected activity, Mr. Zokari could not show that it "caused" his termination: "Although Mr. Zokari may have refused the English class because he felt that the request was discriminatory, he has not presented evidence that he made this basis of his refusal known to his supervisors. He never told them of his belief that their request constituted improper discrimination based on his race or national origin. The only reason he gave [his superiors] for his refusal was that the failure of others to understand him was due to their lack of exposure to people with an accent, a problem that would disappear over time. This explanation would not have informed his supervisors that he was opposing a violation of Title VII. The natural interpretation of his remarks is that he was refusing the request because he thought the course unnecessary."

In short, if an employer is unaware of the significance that the employee himself places on the activity, it may not be protected.  If Mr. Zokari had said, at the time, that he thought the English-lesson idea was demeaning and a possible violation of federal law, he presumably would have gotten past this problem.  Alas, lawyers and judges often have impractical ideas for how people should behave at work.

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