Samuel Ortiz-Diaz v. HUD, Office Inspector General ( 2017 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 14, 2016 Decided August 2, 2016
Reissued August 11, 2017
No. 15-5008
SAMUEL ORTIZ-DIAZ,
APPELLANT
v.
UNITED STATES DEPARTMENT OF HOUSING & URBAN
DEVELOPMENT, OFFICE OF INSPECTOR GENERAL,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:12-cv-00726)
Eden Brown Gaines argued the cause and filed the briefs for
appellant.
Alexander D. Shoaibi, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief was R. Craig
Lawrence, Assistant U.S. Attorney.
Before: HENDERSON, ROGERS and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
2
Opinion concurring in the judgment filed by Circuit Judge
HENDERSON.
Concurring opinion filed by Circuit Judge ROGERS.
Concurring opinion filed by Circuit Judge KAVANAUGH.
ROGERS, Circuit Judge: This is a Title VII appeal from the
grant of summary judgment to the government and the denial of
a motion to compel the production of evidence. Samuel Ortiz-
Diaz was a criminal investigator in the Office of the Inspector
General at the U.S. Department of Housing and Urban
Development. Pursuant to the Office’s voluntary transfer
program whereby employees could request transfer to a different
location, at no cost to the government, Ortiz-Diaz requested
transfers that would have improved both his professional
advancement and personal circumstances. Specifically, he
sought to move away from a supervisor whom he believed was
biased against him and other minorities, to a field office that
would afford him valuable experience and allow him to live in
or closer to Albany, New York, where he and his wife
maintained their home. His requests were summarily denied by
that same supervisor, despite the fact that other, non-minority
employees had routinely been granted similar transfers.
Ortiz-Diaz sued the Department, alleging unlawful race and
national origin discrimination under Title VII, 42 U.S.C.
§§ 2000e et seq. The district court granted summary judgment
on the ground that Ortiz-Diaz failed to offer sufficient evidence
that he suffered an adverse employment action. Ortiz-Diaz v.
United States Dep’t of Hous. & Urban Dev., 75 F. Supp. 3d 561,
568 (D.D.C. 2014). This court, over a dissent, affirmed,
Ortiz-Diaz v. United States Dep’t of Hous. & Urban Dev., 831
F.3d 488, 493 (D.C. Cir. 2016), and Ortiz-Diaz filed a petition
for rehearing en banc. Before that petition was resolved, the
3
original three-judge court decided sua sponte to reconsider the
case and vacated its opinion. We now conclude upon further
consideration that nothing in our Title VII precedent would bar
Ortiz-Diaz from proceeding to trial and that he has otherwise
proffered sufficient evidentiary support to show summary
judgment was inappropriate. Accordingly, we reverse and
remand his case to the district court for further proceedings.
I.
On appeal from the grant of summary judgment, the court
must view the evidence in the light most favorable to Ortiz-Diaz
as the non-moving party, drawing all reasonable inferences in
his favor. See, e.g., Tolan v. Cotton, 134 S. Ct. 1861, 1866
(2014); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). The following factual background is drawn primarily
from two sworn declarations submitted by Ortiz-Diaz in
opposing the Department’s motion for summary judgment. See
generally Pl.’s Decl. in Support of his Opp’n to Def.’s Mot. for
Summ. J. (“Ortiz-Diaz Decl.”); Pl.’s Supp. Decl. in Support of
his Opp’n to Def.’s Mot. for Summ. J. (“Ortiz-Diaz Supp.
Decl.”).
A.
Prior to working at HUD’s Washington, D.C. headquarters,
Ortiz-Diaz had been assigned to its Hartford, Connecticut
location in order to be closer to his wife, with whom he lived in
Albany, New York. His 2009 transfer to Washington was
intended to enhance his career prospects, and indeed it came
with a promotion to senior special agent, but Ortiz-Diaz never
abandoned the hope of returning to a position in Albany, where
the couple continued to maintain a home they owned.
In Washington, D.C., Ortiz-Diaz worked in close proximity
to Assistant Inspector General John McCarty, who, although not
4
Ortiz-Diaz’s immediate supervisor, made personnel decisions
and had the ability to affect Ortiz-Diaz’s advancement within
the Office. McCarty, for instance, was the ultimate
decisionmaker regarding employee promotions. He also had to
approve all transfer requests under the Office’s transfer
program. McCarty had previously exercised his transfer
authority over Ortiz-Diaz; shortly after Hurricane Katrina,
McCarty involuntarily transferred Ortiz-Diaz and an African-
American investigator to Mississippi, over Ortiz-Diaz’s protest,
while non-minority investigators who similarly protested were
not transferred.
Upon his arrival in the Washington, D.C. headquarters,
Ortiz-Diaz soon observed incidents that suggested a
discriminatory work environment was fostered by McCarty. He
heard McCarty refer to the “hired help,” which he understood as
a derogatory reference to minority employees; he witnessed
McCarty referring to Latino employees by the same name, or by
the names of other Latino employees, claiming that Latinos “all
look alike;” and he learned of discrimination complaints filed
against McCarty by other minority employees. Ortiz-Diaz Decl.
¶ 7. A former co-worker said he left HUD as a direct result of
his dealings with McCarty, whom he believed was biased
against minority men like himself. According to the former co-
worker, it was “common knowledge that McCarty repeatedly
denied and/or attempted to deny promotion opportunities to
minorities.” Letter from Patrick Jefferson to Eden Gaines
Brown at 1.
As a result, Ortiz-Diaz came to the conclusion that his
career would suffer if he remained in close proximity to
McCarty at headquarters. Believing that a return to the field
would offer valuable experience and establish relationships with
field supervisors who could support his future promotional
efforts, he began exploring his prospects for a transfer. He
5
identified opportunities in Albany and Region 1 (New England),
where he would be supervised by Special Agent in Charge Rene
Febles. Febles and others working in Region 1 informed Ortiz-
Diaz of the important, high-profile work done there that needed
the attention of capable agents. This was in contrast to other,
underperforming regions that were generally viewed
unfavorably at headquarters, such that Ortiz-Diaz believed his
career would suffer if he were to transfer there, as McCarty had
previously recommended. Febles indicated to Ortiz-Diaz that he
could use another agent, that he thought Ortiz-Diaz would be a
good fit, and that it would be acceptable for Ortiz-Diaz to work
either from his Albany home or from the Department’s Albany
office. Although there were no regularly stationed investigators
in the Albany office, it was routine practice for investigators to
work remotely, particularly given that the nature of their work
often required them to work in the field conducting interviews
and working alongside law enforcement.
Pursuant to the Department’s no-cost voluntary transfer
program, Ortiz-Diaz placed his name on a list of agents
requesting transfer and indicated Albany as his preferred
destination. That program, which does not guarantee that any
request will be approved, is to be administered “without regard
to race, sex, religion, color, national origin, age or disability.”
Office of Inspector Gen., Dep’t of Housing & Urban Dev., Merit
Staffing Plan at 7 (Nov. 2010); see Trans World Airlines, Inc. v.
Thurston, 469 U.S. 111, 120–21 (1985). The program had
previously enabled non-minority employees to transfer between
offices, and in some of those instances, new positions were
created in order to facilitate the requested transfers. McCarty
was involved in each of those decisions.
Ortiz-Diaz, having learned of an additional opening in
Hartford, approached his immediate supervisors to discuss
transfer but they advised him to ask McCarty directly for a
6
transfer to Albany or Hartford. McCarty denied both requests
without explanation. Over the course of this litigation, McCarty
has since stated that the denials resulted from the lack of an
investigative office in Albany and the lack of an open position
in Hartford, even though many investigators were allowed to
work remotely and the Hartford position was filled shortly after
Ortiz-Diaz’s transfer request was denied. Ortiz-Diaz resigned
in 2011 three months after his transfer requests were denied,
leaving the Office where he had worked since 1998 to accept a
lower-paying position elsewhere in the Department.
B.
To succeed on his Title VII claims, Ortiz-Diaz was required
to show, among other things, that he suffered an adverse
employment action. Ginger v. District of Columbia, 527 F.3d
1340, 1343 (D.C. Cir. 2008). “Purely subjective injuries, such
as dissatisfaction with a reassignment, or public humiliation or
loss of reputation,” will not suffice. Forkkio v. Powell, 306 F.3d
1127, 1130 (D.C. Cir. 2002). Instead, a plaintiff denied a purely
lateral transfer must show some other materially adverse
consequence affecting the terms, conditions, or privileges of
employment or future employment opportunities, whereby a
reasonable trier of fact could find that he suffered objectively
tangible harm. Brown v. Brody, 199 F.3d 446, 457 (D.C. Cir.
1999).
The district court granted summary judgment to the
Department on the ground that Ortiz-Diaz failed to show that he
suffered an adverse employment action. Ortiz-Diaz, 75 F. Supp.
3d at 568. It concluded that Ortiz-Diaz’s inability to live closer
to his wife constituted only a “subjective, personal
disappointment[]” that is not materially adverse, id. at 566, and
that Ortiz-Diaz failed to offer anything more than “speculation”
that transfer would have bettered his career opportunities,
despite recognizing that the latter harm could suffice if
7
supported by competent evidence, see id. at 566–67. The
district court also denied Ortiz-Diaz’s motion to compel the
Department to produce evidence from its records, concluding
that the evidence sought, even if favorable to Ortiz-Diaz, would
not affect his inability to show an adverse employment action.
Id. at 568.
This court’s review of the grant of summary judgment is de
novo. Muwekma Ohlone Tribe v. Salazar, 708 F.3d 209, 215
(D.C. Cir. 2013). Summary judgment is only appropriate when,
viewing the evidence in the light most favorable to the non-
moving party, there is no genuine issue as to any material fact.
Id.; Fed. R. Civ. P. 56(a). The court reviews the denial of a
motion to compel discovery for abuse of discretion. Russell v.
Principi, 257 F.3d 815, 820 (D.C. Cir. 2001).
II.
Title VII prohibits “discriminat[ion] against any individual
with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s race . . .
or national origin.” 42 U.S.C. § 2000e-2(a). Its primary
objective “was to achieve equality of employment opportunities
and remove barriers that have operated in the past to favor an
identifiable group of white employees over other employees.”
Albemarle Paper Co. v. Moody, 422 U.S. 405, 417 (1975)
(quoting Griggs v. Duke Power Co., 401 U.S. 424, 429–30
(1971)). Title VII was enacted at a time when racially and
ethnically biased supervisors left employees with two options:
(1) quit their jobs, imperiling their ability to work and survive
economically, or (2) endure the discrimination, and the attendant
economic and professional toll it inflicted. Congress created a
third option by empowering employees to demand equal
treatment and to be “ma[d]e . . . whole for injuries suffered on
account of unlawful employment discrimination.” Albemarle
8
Paper Co., 422 U.S. at 418.
Ortiz-Diaz’s allegation of harm, that he was denied a
transfer away from a racially and ethnically biased supervisor to
a non-biased supervisor more likely to advance his career, falls
within Title VII’s heartland. Although lateral transfers to
different positions within a Department offering the same pay
and benefits are ordinarily not changes in the “terms, conditions,
or privileges of employment,” 42 U.S.C. § 2000e-2(a); see
Brown, 199 F.3d at 457, a discriminatory denial of a lateral
transfer away from a biased supervisor can certainly be
actionable under Title VII, given the adverse impact on the
employee’s potential for career advancement. See Stewart v.
Ashcroft, 352 F.3d 422, 426 (D.C. Cir. 2003). Nothing in this
court’s precedent on lateral transfers or material adversity
requires a contrary result. For instance, even in Brown, 199
F.3d at 457, where the court held that the denial of a lateral
transfer did not constitute a materially adverse action because
the plaintiff expressed only subjective disappointment at the
denial, the court recognized that a showing of “consequences
affecting . . . future employment opportunities” could be
sufficient. Id. Precedent of our sister circuits is to the same
effect. See Randlett v. Shalala, 118 F.3d 857, 861–62 (1st Cir.
1997); Collins v. Illinois, 830 F.2d 692, 704 (7th Cir. 1987);
Rodriguez v. Bd. of Educ., 620 F.2d 362, 366 (2d Cir. 1980).
Our precedent outside the lateral transfer context bears little
on Ortiz-Diaz’s claims. In Forkkio, 306 F.3d at 1132, the court
concluded there was no showing of material adversity where the
plaintiff was simply assigned to work for an unpleasant, overly
critical supervisor, much as the district court had observed that
“[t]he essence of [Forkkio’s] complaint is that he did not
appreciate Mr. Cherry’s method of supervision,” Forkkio v.
Tanoue, 131 F. Supp. 2d 36, 45 (D.D.C. 2001). Similarly, the
court has held unduly speculative claims of harm arising from
9
the denial of a recommendation for an award, Douglas v.
Donovan, 559 F.3d 549, 553 (D.C. Cir. 2009), and from a
temporary, unrealized exposure to being laid off, Russell, 257
F.3d at 819–20. But the relatively minor, attenuated harms
rejected as a matter of law in Forkkio and Russell are a far cry
from the career-stifling transfer denials of which Ortiz-Diaz
complained. So too, the “garden-variety workplace tension” that
was deemed immaterial in Baird v. Gotbaum, 662 F.3d 1246,
1249–50 (D.C. Cir. 2011), bears no resemblance to the adversity
Ortiz-Diaz faced as a result of the denial of transfer away from
his allegedly discriminatory supervisor.
In other words, under our Title VII precedent, Ortiz-Diaz’s
Title VII claims involve far more than a mere dislike of
McCarty, see Forkkio, 306 F.3d at 1132, or a “subjective
preference[]” to work for Febles in Albany, Brown, 199 F.3d at
457 (quoting Doe v. Dekalb Cty. Sch. Dist., 145 F.3d 1441, 1448
(11th Cir. 1998)). Indeed, his claims of adversity involve far
more than the harm found sufficient in Russell, 257 F.3d at818–19, the reduction of a bonus as a result of a worse-than-
expected performance evaluation. Ortiz-Diaz proffered
evidence that McCarty’s bias against minorities would have
hindered his career advancement if he remained at headquarters,
and that a transfer to work under Febles’ supervision would have
improved the likelihood that his career could advance based
solely on merit. As the district court recognized, Ortiz-Diaz, 75
F. Supp. 3d at 567, this states a cognizable injury to Ortiz-Diaz’s
“future employment opportunities.” Brown, 199 F.3d at 457;
see also Stewart, 352 F.3d at 426. On the other hand, the district
court’s distinction between the ability to be considered for
transfer from the ultimate transfer decision, Ortiz-Diaz, 75 F.
Supp. 3d at 565, cannot be squared with this court’s rejection of
such distinctions in Hopkins v. Price Waterhouse, 920 F.2d 967,
978 (D.C. Cir. 1990) (discussing Hishon v. King & Spalding,
467 U.S. 69, 77–78 (1984)). Title VII “promises [Ortiz-Diaz]
10
nondiscriminatory consideration for [a no-cost transfer] where
consideration is held out as a privilege of employment.”
Hopkins, 920 F.2d at 978.
The Department’s efforts to minimize the legal significance
of the claimed injury are likewise not well-taken. It should go
without saying that Ortiz-Diaz’s legally protected interest in
avoiding a racially and ethnically biased supervisor is more
weighty than a “personal preference[].” See Appellee Br. 12.
Nor can the claimed harm be written off as “based largely on
speculation.” See id. at 13–15. The burden to show harm
arising from diminished career prospects is necessarily rooted in
probabilities — here, that a requested transfer would likely have
better advanced Ortiz-Diaz’s career than staying in the
discriminatory work environment fostered by McCarty.
Although a claimed harm cannot be so unduly speculative as to
be immaterial, see Douglas, 559 F.3d at 553, the evidence
proffered by Ortiz-Diaz does not suffer from that deficiency, as
we discuss in more detail below, instead presenting genuine
disputes of material fact that rendered summary judgment
inappropriate.
The only remaining question is whether Ortiz-Diaz has
provided sufficient evidence to allow a reasonable juror to find
for him. Czekalski v. Peters, 475 F.3d 360, 365 (D.C. Cir.
2007); see also Pardo-Kronemann v. Donovan, 601 F.3d 599,
607 (D.C. Cir. 2010). The district court’s conclusion that he had
not was based on a fundamental error of law. It ruled that Ortiz-
Diaz had offered only “his own speculation” that transfer would
have improved his career opportunities, Ortiz-Diaz, 75 F. Supp.
3d at 567, but this court has repeatedly held that under certain
circumstances a plaintiff’s sworn declaration can create a
genuine issue of material fact and thereby render summary
judgment inappropriate. E.g., United States v. Seventeen
Thousand Nine Hundred Dollars ($17,900.00) in United States
11
Currency, 859 F.3d 1085, 1092–93 (D.C. Cir. 2017); Chenari v.
George Washington Univ., 847 F.3d 740, 747–48 (D.C. Cir.
2017); Arrington v. United States, 473 F.3d 329, 337–38 (D.C.
Cir. 2006).
In his sworn declarations, Ortiz-Diaz offered the following
objective, non-conclusory statements of fact:
C the requested transfer would allow him “to gain
[investigative field] experience at the GS-14 level,
[and to] establish favorable relationships with
supervisors in the field,” whose support “would
make it more difficult for McCarty to deny a
promotion for [him],” Ortiz-Diaz Supp. Decl. ¶ 5;
C the regions to which Ortiz-Diaz sought transfer
were viewed favorably at headquarters, did not
appear to be plagued by the same performance
deficiencies that existed in other regions, and
investigators in his chosen regions were lauded for
their accomplishments, id. ¶ 6;
C Special Agent in Charge Febles had need for
another investigator, thought Ortiz-Diaz would be
a good fit for the “important, high profile work
which needed the attention of capable agents,” and
others in that region confirmed the quality of
available work there, Ortiz-Diaz Decl. ¶¶ 12–13;
C McCarty had involuntarily transferred minority
investigators to Mississippi while granting non-
minority investigators’ requests to remain where
they were, id. ¶ 6;
C McCarty had repeatedly made remarks that to
12
Ortiz-Diaz indicated a bias against minorities, and
McCarty had been the subject of discrimination
complaints filed by other minority employees, id.
¶ 7.
Even leaving aside the former co-worker’s letter further
indicating McCarty’s bias, and the Department’s
acknowledgment of other discrimination complaints against
McCarty, the declarations alone provided sufficient competent
evidence to allow a reasonable juror to infer, as did Ortiz-Diaz
himself, that a transfer away from McCarty to Febles’
supervision would have improved his career prospects. See
Stewart, 352 F.3d at 427; see also Bouman v. Block, 940 F.2d
1211, 1229 (9th Cir. 1991). In any event, the co-worker’s letter
and the Department’s acknowledgment corroborated Ortiz-
Diaz’s declarations regarding McCarty’s discriminatory
conduct.
Furthermore, the Department does not dispute that, as a
general matter, investigative experience in the field helps one’s
prospects for advancement within the Office, see Oral Arg. Tr.
30:11–23, which buttresses Ortiz-Diaz’s sworn testimony that
the additional field experience resulting from transfer “would
have better prepared [him] for promotion,” Ortiz-Diaz Supp.
Decl. ¶¶ 4–5. Nor does the Department make an undisputed
showing that the transfer would have necessarily entailed a
demotion and/or decrease in pay, but see Ortiz-Diaz, 75 F. Supp.
3d at 565–66, given record evidence that other non-minority
employees were allowed to remain at the GS-14 level following
transfer, and McCarty’s own admission that he discussed with
Ortiz-Diaz a transfer to New York City that would have allowed
him to remain at GS-14.
Ortiz-Diaz also proffered sufficient evidence to show
genuine disputes of fact concerning other elements of his claim
13
(discriminatory motive, pretext), which indirectly bear upon the
issue of material adversity. In other words, in the context of
Ortiz-Diaz’s particular claim, it logically follows that the
stronger his showing that McCarty discriminated against him in
denying the transfers, the stronger his claim that remaining with
McCarty at headquarters would have materially harmed his
career. Thus, evidence that McCarty facilitated transfers for
non-minority employees even to offices without an open
position strengthened the inference that McCarty’s refusal to do
so for Ortiz-Diaz was rooted in racial and ethnic bias. This by
extension strengthened the inference that the transfer denials
were materially adverse. But see Ortiz-Diaz, 75 F. Supp. 3d at
568. Similarly, evidence that similarly situated investigators
had previously been allowed to work remotely or from
Department locations without an investigative office, and
evidence that the Hartford position remained open until months
after Ortiz-Diaz’s resignation, strengthened the inference that
McCarty’s stated rationale for the transfer denials was
pretextual. See Wheeler v. Georgetown Univ. Hosp., 812 F.3d
1109, 1115 (D.C. Cir. 2016). Again, this evidence also bore
upon the material adversity of the transfer denials. But see
Ortiz-Diaz, 75 F. Supp. 3d at 568.
Our colleague doubts that McCarty was biased against
minority employees, in light of evidence that McCarty had
previously promoted Ortiz-Diaz to senior special agent, and
hired another minority investigator as Assistant Special Agent
in Charge in New York City. See Concurring Op. 4 (Henderson,
J.). Even assuming such evidence could be sufficient for a
reasonable factfinder to conclude McCarty harbored no racial or
ethnic bias, this court’s role at summary judgment is not to find
facts in lieu of a jury, particularly not against the non-moving
party. The court must merely determine whether sufficient
evidence exists for a reasonable jury to find in Ortiz-Diaz’s
favor, i.e., that McCarty did harbor such a bias. Tolan, 134 S.
14
Ct. at 1866. For the reasons discussed, Ortiz-Diaz met that
burden with documentary evidence and sworn testimony
offering objective, non-conclusory statements of fact that are
capable of proof at trial. Even though there may be evidence
cutting against Ortiz-Diaz’s claims, that evidence only
highlights the need for this case to be decided by a jury. And
even if the jury ultimately agrees that the evidence of bias “is, at
most, slight,” Concurring Op. 4 (Henderson, J.), it would in no
way undermine the result the court reaches today.
In view of the reversal of the grant of summary judgment,
the district court must reconsider Ortiz-Diaz’s motion to compel
the production of evidence by the Department regarding
voluntary, no-cost transfers granted to non-minority employees,
evidence of vacancy announcements, facts to support the
Department’s defenses, as well as prior complaints of
discrimination against supervisors and the like. See Russell, 257
F.3d at 820–21. As discussed, the district court’s reasoning —
that none of the requested information would alter the
conclusion that denial of a lateral transfer is not an adverse
employment decision, Ortiz-Diaz, 75 F. Supp. 3d at 568 — was
manifestly flawed.
KAREN LECRAFT HENDERSON, Circuit Judge, concurring
in the judgment: I concur in the judgment which sends this case
to a jury to resolve because the record could be read to contain
at least one genuine issue of material fact, thereby precluding
summary judgment. But I have reservations about my
colleagues’ discussion of the factual record. I therefore write
separately to explain the potential fact dispute I see and why I
believe the majority’s broader approach is unwise.
I.
Ortiz-Diaz began working as a criminal investigator for
HUD in April 1998. In 2000, after his wife accepted a job in
Albany, New York, he requested and received a transfer to
work in Hartford, Connecticut. But in 2009, Ortiz-Diaz wanted
to change jobs again. He applied for a promotion to senior
special agent with the Criminal Investigation Division in
Washington, D.C. McCarty approved the promotion, which
came with a raise—Ortiz-Diaz moved from GS-13 to GS-14 on
the government pay scale. Nevertheless, Ortiz-Diaz wanted to
return to New York. Within several months, he applied for an
Assistant Special Agent in Charge (ASAC) position in New
York City. Ortiz-Diaz interviewed with McCarty but was
ultimately not selected. Ortiz-Diaz believed he was not
selected because of his race. As it turned out, the successful
candidate—whom McCarty approved—was also Hispanic.
Aware Ortiz-Diaz was upset over his non-selection, McCarty
asked if Ortiz-Diaz was interested in certain other positions,
including an ASAC vacancy in Chicago. Ortiz-Diaz pursued
none of them.
Instead, he requested a transfer to an investigative position
in Albany or Hartford. These locations appealed to him in part
because they would enable him to work in Region 11 or under
1
Region 1 includes Hartford, Connecticut.
2
Febles. Even though a transfer likely would have entailed a
pay cut, Ortiz-Diaz believed that working under Febles—
whom he described as a “solid supervisor”—would “enhance[]
[his] promotion opportunities.” Joint Appendix 611.
Moreover, he understood from conversations with Febles that
he could work remotely from Albany. Similarly, based on
communications with Region 1 officials, Ortiz-Diaz believed
“there was important, high profile work” to be done which
“needed the attention of capable agents.” Id.
In hopes of securing a transfer, Ortiz-Diaz sought to use
HUD’s no-cost2 voluntary transfer program. The no-cost
transfer program allows qualifying employees to transfer for
reasons other than HUD staffing needs. As detailed in internal
HUD documents, an employee initiates his request by formally
submitting a written document to the proper HUD official—
McCarty, in Ortiz-Diaz’s case. But when Ortiz-Diaz contacted
McCarty, he was told, without explanation, that he could not
transfer to Albany or Hartford. This was so even though a
vacancy had earlier been announced in Hartford and Febles
told him he could work in Albany.
II.
On these facts, I agree that a jury should consider Ortiz-
Diaz’s Title VII claim in light of the peculiar features of HUD’s
no-cost transfer program and its potential to aid Ortiz-Diaz’s
professional development.
A.
An employment action cannot support a Title VII
discrimination claim unless it “has materially adverse
2
It is called a “no-cost” transfer because relocation costs are
borne by the transferee.
3
consequences affecting the terms, conditions, or privileges of
the plaintiff’s employment such that a reasonable trier of fact
could find objectively tangible harm.” Ginger v. District of
Columbia, 527 F.3d 1340, 1343 (D.C. Cir. 2008) (brackets,
ellipses and internal quotation marks omitted). The United
States Supreme Court has interpreted the “term[], condition[],
or privilege[]” label broadly. It can apply to everything from a
security clearance, see Niskey v. Kelly, 859 F.3d 1, 8 (D.C. Cir.
2017), to a bonus, see Russell v. Principi, 257 F.3d 815, 818–
19 (D.C. Cir. 2001), to eligibility for election to a law firm’s
partnership, see Hishon v. King & Spalding, 467 U.S. 69, 75
(1984).
So recognizing, I believe it may also apply to HUD’s no-
cost transfer program. The program was spelled out in internal
HUD documents. Established procedures governed how an
employee could submit a request. And the program may have
operated as a salve to special agents, whose jobs also required
a separate “mobility agreement” permitting an agent’s
involuntary transfer based on HUD needs. Ortiz-Diaz believed
he could use it to gain valuable experience and enhance his
promotion potential. Indeed, he was willing to risk a pay cut
to obtain that experience.3 On these facts, I believe the program
could qualify as a “privilege” of his employment, raising a
genuine issue of material fact for jury resolution.
B.
My colleagues reach a similar conclusion but by a different
route. In their view, the denial of a lateral transfer away from
McCarty is itself actionable under Title VII, because his
3
His belief was supported by Judge Kavanaugh, who observed
at oral argument that a lawyer may wish to work for a “local U.S.
Attorney’s Office . . . [at] lower pay” because he “think[s] it’ll help
[his] chances of being a judge[.]” Oral Argument Tr. 27.
4
“bias[]” could affect Ortiz-Diaz’s career development. See
Maj. Op. 7–8. But, in my view, they cherry-pick the factual
record to reach this conclusion. For example, they reach back
twelve years to recount that McCarty temporarily (and
involuntarily) transferred Ortiz-Diaz and another minority
investigator to Mississippi in the wake of Hurricane Katrina.
Id. at 3. But my colleagues ignore the fact that, four years later
and within a year of allegedly becoming actionably biased,
McCarty approved Ortiz-Diaz’s promotion to senior special
agent. They also ignore that McCarty worked to find Ortiz-
Diaz a different comparably attractive job after awarding the
New York ASAC position to another employee—who, again,
was Hispanic. Likewise, my colleagues conclude that keeping
Ortiz-Diaz under McCarty’s supervision amounts to an adverse
employment action. See Maj. Op. 8. But they overlook the fact
that, as the district court noted, see Ortiz-Diaz v. U.S. Dep’t of
Hous. & Urban Dev., 75 F. Supp. 3d 561, 565–66 (D.D.C.
2014), transferring Ortiz-Diaz to Albany or Hartford may itself
have constituted an adverse employment action because it
could entail a pay cut.
C.
My colleagues’ true qualm, I take it, is with our lateral
transfer precedent. As Judge Kavanaugh recognizes, that
precedent teaches that denials of lateral transfers generally do
not support a Title VII discrimination claim. See Stewart v.
Ashcroft, 352 F.3d 422, 426 (D.C. Cir. 2003). Today, we
narrow that precedent on facts whose discriminatory bent is, at
most, slight. As I have recounted, McCarty’s alleged bias was
hardly self-evident.4 And in our adversarial system, facts
4
To establish that prejudice, my colleagues rely largely on
Ortiz-Diaz’s sworn declaration. Granted, “there is no rule of law that
the testimony of a discrimination plaintiff, standing alone, can never
make out a case of discrimination that could withstand a summary
5
matter. See, e.g., Carducci v. Regan, 714 F.2d 171, 177 (D.C.
Cir. 1983). I would wait for a claim with more “objectively
tangible harm.” Ginger v. District of Columbia, 527 F.3d 1340,
1343 (D.C. Cir. 2008) (internal quotation marks omitted).5
judgment motion.” Johnson v. Perez, 823 F.3d 701, 710 (D.C. Cir.
2016) (emphasis added) (internal quotation marks omitted). But the
law surrounding its sufficiency at summary judgment is hardly as
clear as they suggest. See, e.g., Holcomb v. Powell, 433 F.3d 889,
899 (D.C. Cir. 2006) (rejecting “purely conclusory” allegations of
discriminatory animus at summary judgment); Burke v. Gould, 286
F.3d 513, 520 (D.C. Cir. 2002) (“[B]are allegations of discrimination
are insufficient to defeat a properly supported motion for summary
judgment.”).
5
At oral argument Ortiz-Diaz’s counsel posed a disturbing
hypothetical. She claimed that, if we were to accept HUD’s
argument, we would have to affirm dismissal of a suit challenging an
employer’s affixing a “whites-only” sign to a water cooler because
“not a penny is lost by any worker . . . [,] no one lost supervisory
duties . . . [and it is] not in any way related to the actual workplace.”
Oral Argument Tr. 4. Although such action could, in my view,
constitute a “discriminatorily hostile or abusive
environment . . . sufficiently severe or pervasive” to sustain a hostile
work environment claim under Title VII, Harris v. Forklift Sys, Inc.,
510 U.S. 17, 21 (1993) (internal quotation marks omitted), it has no
relevance to our “materially adverse action” precedent.
ROGERS, Circuit Judge, concurring: In returning this case
to the district court, the three judges originally assigned to hear
this appeal have, upon reconsideration, concluded that our Title
VII precedent does not bar Ortiz-Diaz from proceeding to trial
on his claims. For the reasons set forth in my dissent from the
now-vacated opinion, Ortiz-Diaz v. United States Dep’t of Hous.
and Urban Dev., 831 F.3d 488, 494–500 (D.C. Cir. 2016)
(Rogers, J., dissenting), I welcome this result.1
Perhaps our reconsideration will serve as a shot across the
bow that courts in this Circuit must adhere to the summary
judgment standard and not prematurely reject evidence that a
jury could reasonably credit. The ink that has been spilled over
the course of this appeal, however, does not augur favorably for
that result. Our precedent, and the record in this case, have been
so finely parsed that one can only marvel at Ortiz-Diaz’s escape
1
Because Ortiz-Diaz proffered sufficient evidence of harm
to his career prospects to survive summary judgment, the court had no
need to address whether his inability to reunite with his wife in Albany
could have also constituted a materially adverse employment
consequence. Suffice it to note that the court has recognized suffering
personal disappointment does not necessarily place a plaintiff’s claim
beyond the scope of Title VII. Severe effects upon the employee’s
personal life — such as schedule changes that affect sleep schedules
or interfere with the plaintiff’s education — “can render an
employment action ‘adverse’ even if the employee’s responsibilities
and wages are left unchanged.” Ginger v. Dist. of Columbia, 527 F.3d
1340, 1344 (D.C. Cir. 2008) (quoting Freedman v. MCI Telecomms.
Corp., 255 F.3d 840, 844 (D.C. Cir. 2001)); see Keeton v. Flying J,
Inc., 429 F.3d 259, 265–66 (6th Cir. 2005). Again, the operative
question is whether a reasonable factfinder, considering Ortiz-Diaz’s
particular circumstances, would agree with him that the transfer denial
created material adversity, i.e., that the inability to relocate nearer to
his wife constitutes an “objectively tangible” harm. Ginger, 527 F.3d
at 1344.
2
from our otherwise stifling materiality standard under precedent
that two judges initially concluded barred him from a judicial
remedy. Ortiz-Diaz, 831 F.3d at 491–93 & n.7; id. at 494
(Kavanaugh, J., concurring); see Ortiz-Diaz v. United States
Dep’t of Hous. and Urban Dev., 75 F. Supp. 3d 561, 568
(D.D.C. 2014). I fear that the next plaintiff, alleging a similar
wrong, may not be as fortunate.
Therefore, it remains long past time for the en banc court to
join its sister circuits to make clear that transfers denied because
of race, color, religion, sex, or national origin are barred under
Title VII, see Concurring Op. 1 (Kavanaugh, J.), and that any
action by an employer to deny an employment benefit on such
grounds is an adverse employment action under Title VII.
KAVANAUGH, Circuit Judge, concurring: Our precedents
hold that discriminatory transfers (and discriminatory denials
of transfers) are ordinarily not actionable under Title VII. See
Stewart v. Ashcroft, 352 F.3d 422, 426 (D.C. Cir. 2003); Brown
v. Brody, 199 F.3d 446, 457 (D.C. Cir. 1999). The majority
opinion narrows those precedents and holds that discriminatory
transfers are sometimes actionable, including under the
circumstances alleged in this case. I am comfortable with that
narrowing of our precedents, and I therefore join the majority
opinion.
That said, uncertainty will remain about the line separating
transfers actionable under Title VII from those that are not
actionable. In my view, the en banc Court at some point should
go further and definitively establish the following clear
principle: All discriminatory transfers (and discriminatory
denials of requested transfers) are actionable under Title VII.
As I see it, transferring an employee because of the employee’s
race (or denying an employee’s requested transfer because of
the employee’s race) plainly constitutes discrimination with
respect to “compensation, terms, conditions, or privileges of
employment” in violation of Title VII. 42 U.S.C. § 2000e-2(a).
I look forward to a future case where our Court says as much.