Lead Opinion
Opinion concurring in the judgment filed by Circuit Judge HENDERSON.
Concurring opinion filed by Circuit Judge ROGERS.
Concurring opinion filed by Circuit Judge KAVANAUGH.
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.,
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, — U.S. -,
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 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 coüld shpport his future promotional efforts, he began exploring his prospects for a transfer. He 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 re
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, col- or, 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,
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 transfer to Albany or Hartford. MeCarty 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,
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,
This court’s review of the grant of summary judgment is de novo. Muwekma Ohlone Tribe v. Salazar,
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,
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,
Our precedent outside the lateral transfer context bears little on Ortiz-Diaz’s claims. In Forkkio,
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,
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,
The only remaining question is whether Ortiz-Diaz has provided sufficient evidence to allow a reasonable juror to find for him. Czekalski v. Peters,
In his sworn declarations, Ortiz-Diaz offered the following objective, non-copcluso-ry statements of fact;
• 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;
• 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;
• 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;
• McCarty had involuntarily transferred minority investigators to Mississippi while granting non-minority investigators’ requests to remain where they were, id. ¶ 6;
• McCarty had repeatedly made remarks that to 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,
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. Deck ¶¶ 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,
Ortiz-Diaz also proffered sufficient evidence to show genuine disputes of fact concerning other elements of his claim (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 ro.oted in racial and ethnic bias. This by extension strengthened the inference that the transfer denials were materially adverse. But see Ortiz-Diaz,
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. 79 (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,
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,
Concurrence Opinion
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
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 1
In hopes of securing a transfer, Ortiz-Diaz sought to use HUD’s no-cost
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 consequences affecting the terms, conditions, or privileges of the plaintiffs employment such that a reasonable trier of fact could find objec
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.
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 “bias[]” could affect Ortiz-Diaz’s career development. See Maj. Op. 74-75. 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 71. But my colleagues ignore the fact that, four years later and within a year of allegedly becoming action-ably 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. 74. But they overlook the fact that, as the district court noted, see Ortiz-Diaz v. U.S. Dep’t of Hous. & Urban Dev.,
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,
Notes
. Region 1 includes Hartford, Connecticut.
. It is called a “no-cost” transfer because relocation costs are borne by the transferee.
. His belief was supported by Judge Kava-naugh, 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.
. 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
. 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.,
Concurrence Opinion
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.,
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 from our otherwise stifling materiality standard under precedent that two judges initially concluded barred him from a judicial remedy. Ortiz-Diaz,
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. 81 (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.
, 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,
Concurrence Opinion
concurring:
Our precedents hold that discriminatory transfers (and discriminatory denials of transfers) are ordinarily not actionable under Title VII. See Stewart v. Ashcroft,
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. § 20Q0e-2(a). I look forward to a future case where our Court says as much.