The refusal of an agency to grant a Presidential Rank Award to a senior exec is not appealable as a discriminatory practice under anti-bias law, the federal appeals court in the District of Columbia held recently (case No. 07-5339).
In a divided opinion, the appeals court called the process for granting such awards–the meritorious executive award for sustained accomplishment and the distinguished executive, for sustained extraordinary accomplishment–"labyrinthine, with numerous ways to fail, but only one to succeed." That way is recommendation by the employing agency and selection by OPM, with final approval by the President.
In the case before the court, a black male asserted that the agency’s recommendation of a white female was discriminatory, but the court found that the failure to be recommended for the reward, unlike the failure to be promoted, is not categorically the kind of adverse employment action that brings anti-discrimination law into play. In addition, since the agency’s recommendation is only one step in the process, there is no direct tie between the recommendation and the award.
A dissenting judge said that while it is true that "not everything that makes an employee unhappy" is actionable under the law, the rejection of the plaintiff as a candidate for the award was a "tangible action" comparable to a failure to be promoted.
