Opinion
No. 08-5006.
January 26, 2009.
Appeal from the United States District Court for the District of Columbia (No. 05cv02270).
David A. Branch, Law Office of David A. Branch, Washington, DC, for Appellant.
R. Craig Lawrence, Assistant U.S. Attorney, U.S. Attorney's Office, Washington, DC, for Appellee.
Before: ROGERS and BROWN, Circuit Judges, and EDWARDS, Senior Circuit Judge.
JUDGMENT
This appeal was considered on the record from the United States District Court for the District of Columbia and on the briefs and oral arguments of counsel. The court has determined that the issues presented occasion no need for a published opinion. See D.C. CIR. RULE 36(b). It is
ORDERED and ADJUDGED that the judgment of the district court be affirmed.
Appellant, an employee of the Department of Education, sued the Department, claiming her performance evaluation of "successful" constituted an adverse employment action. However, "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." Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003); see also Russell v. Principi 257 F.3d 815, 819 (D.C. Cir. 2001). Appellant argued for the first time in her opposition to summary judgment that her performance evaluation resulted in a lesser bonus, but she offered no notice of such a link in her complaint. At oral argument, Appellant cited Steele v. Schafer, 535 F.3d 689 (D.C. Cir. 2008), to support the sufficiency of her complaint, but the complaint in Steele expressly referenced a hostile workplace, id. at 694. Here, Appellant's complaint merely referenced benefits generally. But assuming her complaint sufficed under Federal Rule of Civil Procedure 8, the Department has offered a reasonable explanation for Appellant's 2003 performance evaluation, and Appellant has failed to show that this explanation was pretextual.
Because the mandatory exhaustion requirement 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 Appellant adequately exhausted her administrative remedies.
The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or rehearing en banc. See FED. R.APP. P. 41(b); D.C. CIR. RULE 41.