Frederick C. DOUGLAS, Jr., Appellant v. Shaun DONOVAN, Secretary of Housing and Urban Development, Appellee, 559 F.3d 549

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, and the financial benefits are substantial. The Presidential Rank Award process is labyrinthine, with numerous ways to fail, but only one to succeed.

An 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 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, 118 S.Ct. 2257, 141 L.Ed.2d 633 (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, 118 S.Ct. 2257 (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 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 no-nadverse 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, 118 S.Ct. 2257) (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 case-law, 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.

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 557, 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 to reward outstanding leadership and innovation — indefinable star qualities that are by their very nature subjective.

See 5 U.S.C. § 4507(e) (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 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 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 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. 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 557. 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 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, 118 S.Ct. 2257).

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. So ordered. . 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.”). . 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 [inlc-udes] a lump-sum payment of ... 35 percent of annual basic pay.”). .

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 557, 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 specula-tiveness, 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 559. The simple answer is that Douglas’s 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). .

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.