McClintick v. Leavitt (Maryland U.S.D.C.) (Not approved for publication)

Signed March 26, 2007. Opinion and Order by Judge Richard D. Bennett.

Memorandum and Opinion granting summary judgment in part.

Held: 1) A federal employee can seek relief for employment discrimination only by asserting causes of action under Title VII.

2) Not being nominated for a discretionary merit-based award may constitute an adverse employment action actionable under Title VII if the plaintiff can show that such a determination represents a decision on permanent pay status.

Facts: Plaintiff, white male, worked for U.S. Dept. Health and Human Services. His direct supervisor was an African-American female. In 2004, the Plaintiff was not nominated for a so-called Quality Step Increase ("QSI"). QSI's are awards given for sustained performance of high quality that significantly exceeds an acceptable level of competence. The Plaintiff had been nominated to receive a QSI for 2003, and had received other merit-based awards, when he was previously supervised by a different supervisor, who was Caucasian.

The Plaintiff sued, alleging that he did not receive a QSI for 2004 because of racial discrimination and retaliation for filing an earlier discrimination charge. The Plaintiff alleged four causes of action: Count I - race discrimination (Title VII), Count II - race discrimination (§1981); Count III - retaliation for participating in protected activity (Title VII); Count IV - retaliation in violation of §1981.

The Defendant moved to dismiss for failure to state a claim or, in the alternative, for summary judgment. The Court dismissed Counts II and IV because they were based upon §1981, a cause of action not available to Plaintiff, a federal employee. The Court denied the motion as to Counts I and III, finding that the Plaintiff had alleged sufficient facts to state a cause of action.

A full copy of the opinion is available in PDF format.