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Douglas v. Jackson

March 22, 2007

FREDERICK C. DOUGLAS, JR., PLAINTIFF,
v.
ALPHONSO R. JACKSON, SECRETARY OF HOUSING AND URBAN DEVELOPMENT, DEFENDANT.



The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge

MEMORANDUM OPINION

Frederick C. Douglas, Jr., brings this action against the Secretary of the United States Department of Housing and Urban Development ("Secretary" or "HUD"), in his official capacity, alleging that the Secretary discriminated against him on the basis of his race (Black), in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., when his superior at HUD failed to nominate him for a Presidential Rank Award for Fiscal Year (FY) 2003. Before the court is the Secretary's's motion to dismiss, or in the alternative, for summary judgment. Upon consideration of the motion, the opposition thereto, and the record of this case, the court concludes that the motion must be granted.

I. BACKGROUND

A. The Presidential Rank Awards Program

The Presidential Rank Awards Program recognizes senior executives for their exceptional achievement over a period of at least three years. See 5 U.S.C. § 4507; 5 C.F.R. § 451.301.

There are two types of Awards: (1) the Distinguished Rank Award, which is given for sustained extraordinary accomplishment and includes a lump-sum payment of 35 percent of base pay; and (2) the Meritorious Rank Award, which is given for sustained accomplishment and includes a lump-sum payment of 20 percent of base pay. Id. § 451.304. To be considered for an Award, an eligible employee must first be nominated by her respective agency. Id.*fn1 Within HUD, such nominations are solicited from departments heads and then reviewed by the Performance Review Board ("PRB"). According to HUD's criteria for selecting nominees, a candidate must "demonstrate extraordinary leadership, produce results and foster partnerships and community solutions." Def.'s Ex. 7 (HUD Award Criteria) at 1. Based on these criteria, the PRB determines which nominees should be recommended to the Secretary. The Secretary then decides which nominations to forward to the Office of Personnel Management ("OPM"). 5 C.F.R. § 451.305.OPM, in turn, determines which nominations to forward to the President. Id. Finally, the President decides which nominees shall receive the Awards. 5 U.S.C. § 4507.

B. Douglas's Complaint

In January 1999, Douglas was appointed Deputy Assistant Secretary for Single Family Housing, an SES position at HUD. On or about December 11, 2003, he learned that Assistant Secretary for Housing John C. Weicher had not nominated him for a Presidential Rank Award for FY 2003 when Weicher refused to meet with Douglas to discuss his nomination.*fn2 Weicher had nominated Margaret Young, Deputy Assistant Secretary for Finance and Budget, who is White and who ultimately received an Award that year.

On January 27, 2003, Douglas filed an informal complaint with HUD's Equal Employment Opportunity ("EEO") counselor alleging that he was discriminated against on the basis of his race when Weicher refused to meet with him on or about December 11, 2002, to discuss the "possibility of a recommendation for the prestigious Presidential Rank Award." Def.'s Ex. 1 (EEO Counselor's Report) at 1 ("EEO Report"). He also alleged that Weicher had been discriminating against him since June 2001 by failing to recommend him for three other monetary awards, some of which were awarded to White subordinates; by giving preferential assignments to White subordinates; and by undermining his authority in front of other subordinates. As a remedy, Douglas sought compensation for the monetary awards he did not receive, including "[r]ecognition through monetary award in an amount equal to 35 percent of complainant['s] SES salary for loss of consideration to be recommended for a Presidential Rank Program Award and mental anguish the collective discrimination has caused ($48,440)." Id. at 2. He also sought assignment to another agency and attorney's fees. HUD declined to resolve the complaint at the informal stage.

On February 27, 2003, Douglas filed a formal EEO complaint with HUD reiterating his allegation that Weicher "[r]efused to meet with complainant to discuss the possibility of a recommendation for the prestigious Presidential Rank Award." Def.'s Ex. 2 (EEO Complaint) ¶ 8. After an investigation, HUD's EEO office issued a "final decision" on March 1, 2004, dismissing his complaint regarding the Award because he had failed to show that Weicher's failure to meet with him regarding the nomination had "caused him harm or that others not of his protected class were not so harmed." Def.'s Ex. 1 (EEO Final Decision) at 6.*fn3

II. ANALYSIS

Before the court is the Secretary's motion to dismiss or, in the alternative, for summary judgment, on the grounds that Douglas (1) failed to timely exhaust all administrative remedies; or, in the alternative, (2) cannot prove that he suffered an adverse employment action. Because the court agrees that Douglas cannot establish that he suffered an adverse employment action, the court grants summary judgment in favor of the Secretary.

A. Failure to Exhaust Administrative Remedies

Before a federal employee may file a lawsuit under Title VII, she is required to exhaust any administrative remedies available to her through her agency's internal employment discrimination process. 42 U.S.C. § 2000e-16(c); 29 C.F.R. § 1614.310; Brown v. Gen. Serv. Admin., 425 U.S. 820, 832 (1976) (recognizing that right to sue under Title VII requires fulfillment of "certain preconditions" which includes "seek[ing] relief in the agency that has allegedly discriminated against [her]"); see also Bayer v. U.S. Dep't of the Treasury, 956 F.2d 330, 332 (D.C. Cir. 1992). Exhaustion is required "in order to give federal agencies an opportunity to handle matters internally whenever possible and to ensure that the federal courts are burdened only when reasonably ...


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