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Ortiz-Diaz v. United States Department of Housing & Urban Development

United States Court of Appeals, District of Columbia Circuit

August 2, 2016

Samuel Ortiz-Diaz, Appellant
United States Department of Housing & Urban Development, Office of Inspector General, Appellee

          Argued March 14, 2016

         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 briefs for the appellant.

          Alexander D. Shoaibi, Assistant United States Attorney, argued the cause for the appellee. R. Craig Lawrence, Assistant United States Attorney was with him on brief.

          Before: Henderson, Rogers and Kavanaugh, Circuit Judges.


          Karen LeCraft Henderson, Circuit Judge

         Plaintiff Samuel Ortiz-Diaz appeals from the grant of summary judgment in favor of defendant United States Department of Housing and Urban Development (HUD) in his discrimination lawsuit brought pursuant to 42 U.S.C. §§ 2000e et seq. The district court found that the action complained of-denial of Ortiz-Diaz's requests for lateral transfers on the basis of race and/or national origin-was not cognizable under Title VII because it did not constitute an "adverse employment action." Ortiz-Diaz v. United States Dep't of Housing and Urban Dev., 75 F.Supp.3d 561, 568 (D.D.C. 2014). We affirm.


         Ortiz-Diaz began his employment with HUD in April 1998 as a criminal investigator in San Juan, Puerto Rico. In 2000 he was reassigned to Hartford, Connecticut to be closer to his wife, who was employed in Albany, New York. In 2009 Ortiz-Diaz applied for and accepted a promotion to senior special agent, a GS-14 position, in HUD's Office of Inspector General (OIG) in Washington, D.C. The promotion was approved by Assistant Inspector General for Investigations John McCarty.[1]

         In July 2010 Ortiz-Diaz applied for an Assistant Special Agent in Charge (ASAC) position in New York City (NYC) but was not selected. McCarty made the decision and Ortiz-Diaz believed that he was not selected because he is Hispanic. See Ortiz-Diaz Decl. ¶ 11, J.A. 611 ("I was angry because I believed that McCarty was . . . making improper personnel decisions based on race."). He told a colleague he was not going to "take it quietly" and that he was gearing up for "a super heavyweight fight." No "fight" ensued-apparently because Ortiz-Diaz subsequently learned that McCarty's selectee was also Hispanic.

         On September 30, 2010 Ortiz-Diaz accepted a GS-13 level position as a program analyst with HUD's Office of Public and Indian Housing in Albany. Around this time McCarty, on learning that Ortiz-Diaz was seeking to leave OIG, asked the latter if he was interested in an ASAC vacancy in Chicago or, alternatively, a transfer to NYC at the GS-13 level. Instead of pursuing either option, in October 2010[2] Ortiz-Diaz requested a transfer to an investigative position in Albany or Hartford pursuant to HUD's no-cost, voluntary transfer program. That program "allows investigators to request voluntary transfers to duty stations of their choice for reasons other than the specific staffing needs of the Agency, " Oritz-Diaz, 75 F.Supp.3d at 564, but the relocation is at the employee's expense. In addition, the program does not guarantee that a request will be approved; instead, an employee is considered for transfer as a vacancy arises. McCarty denied the request on October 12, 2010, stating that HUD OIG maintained no investigative office in Albany and that there was no vacancy in Hartford. Ortiz-Diaz filed his complaint on May 4, 2012 alleging that his October 2010 request was denied because he is Hispanic. The district court granted summary judgment to HUD because "[a]bsent extraordinary circumstances not present here, a purely lateral transfer does not amount to an adverse employment action" cognizable under Title VII. Id. at 565 (citing Medina v. Henderson, No. 98-5471, 1999 WL 325497 at *1 (D.C. Cir. Apr. 30, 1999)). The district court also found that a transfer from the D.C. headquarters would have necessitated a downgrade to the GS-13 level, which itself may have constituted an "adverse employment action." Id. at 565-66.[3]Finally, Ortiz-Diaz's then-pending motion to compel was denied because "even if Mr. Ortiz-Diaz uncovered all that he hopes for . . . it would not alter the conclusion that his denial of a lateral transfer was not an adverse employment decision." Id. at 568.


         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); see also Bundy v. Jackson, 641 F.2d 934, 942 (D.C. Cir. 1981) (Title VII puts "same restrictions on federal . . . agencies as it does on private employers."). Under our Circuit precedent the action complained of must be "materially adverse" to support a discrimination claim. Ginger v. District of Columbia, 527 F.3d 1340, 1343 (D.C. Cir. 2008). At this stage, the "evidence of the [employee] is to be believed and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Nevertheless, the employee must produce more than a "mere . . . scintilla of evidence, " id. at 252, and "[c]onclusory allegations unsupported by fact[s] . . . will not create a triable issue." Exxon Corp. v. FTC, 63 F.2d 120, 127 (D.C. Cir. 1980); see also Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).

         Ortiz-Diaz maintains that he clears the "materially adverse action" hurdle, our precedent notwithstanding. See, e.g., Stewart v. Ashcroft, 352 F.3d 422, 426 (D.C. Cir. 2003) (plaintiff "denied a lateral transfer-that is, one in which [plaintiff] suffers no diminution in pay or benefits-does not suffer an actionable injury unless there are some other materially adverse consequences affecting the terms, conditions, or privileges of her employment." (emphasis added)); Forkkio v. Powell, 306 F.3d 1127, 1130-31 (D.C. Cir. 2002) ("Purely subjective injuries, such as dissatisfaction with a reassignment . . . are not adverse actions. . . . In contrast with purely subjective harms, reassignment with significantly different responsibilities . . . generally indicates an adverse action." (internal quotation marks omitted)). He so contends because, in addition to his "dissatisfaction with [the lack of] reassignment, " id. at 1130, the transfer denial tangibly injured his "career opportunities" in light of McCarty's allegedly discriminatory conduct and his belief that his promotion outlook would be rosier "if he worked for Special Agent in Charge . . . Rene Febles (who [is] Hispanic) in [Albany], " Appellant Br. 8, 28. He also claims that there was "high profile work" in Hartford and Albany and that performance of said work would have similarly "enhanced [his] promotion opportunities." Ortiz-Diaz Decl. ¶ 12, J.A. 611.

         The desire to work for Febles (or, conversely, to escape McCarty) is irrelevant under our precedent. In Forkkio the plaintiff alleged that his supervisor took many "offensive" actions, including criticizing his work product and "ma[king] personnel decisions about [the plaintiff's] staff without consulting him." 306 F.3d at 1130. Apparently believing that discriminatory animus motivated these actions, the plaintiff filed three complaints with the Equal Employment Opportunity Commission. Id. When the controversy reached us, we held that working under the supervisor constituted, at most, "subjective injury" and was therefore not materially adverse. Id. at 1131-32. Even granting that perhaps in an extraordinary case having one supervisor instead of another could constitute adverse action, Ortiz-Diaz's preference is, apparently, simply a product of Febles's alleged freedom from "issues working with Hispanic men." Ortiz-Diaz Decl. ¶ 12, J.A. 611. If such a declaration were sufficient to raise a jury issue, our materiality requirement would be an empty vessel indeed.[4]

         Granted, a lateral transfer that increased promotion prospects might qualify, notwithstanding the "speculativeness of the harm." See Douglas v. Donovan, 559 F.3d 549, 552-53 (D.C. Cir. 2009). Compare id. at 553 ("failure to be recommended" for award "not categorically an adverse employment action" notwithstanding possibility of financial gain because of "inherent uncertainty" of recommendation leading to benefit), with id. at 552-53 (some actions, such as "hiring, firing, failing to promote, [and] reassignment with significantly different responsibilities . . . are conclusively presumed to be adverse employment actions, even if any alleged harm is speculative."). But, even if so, Ortiz-Diaz offered only a bare assertion that his transfer would enhance his promotion prospects. He alleged that there was "high profile" work in Hartford and Albany, Ortiz-Diaz Decl. ¶ 12, J.A. 611, but never described it nor linked it to his promotion prospects. Whether the Washington, D.C. headquarters- whence Ortiz-Diaz was seeking transfer-also included high profile work was similarly unaddressed. Also left unexplained was why he would seek transfer to a lower pay rate, see supra n.3, [5] when in fact McCarty was talking to him about an assistant special agent in charge position.[6]

         In Baird v. Gotbaum, 662 F.3d 1246 (D.C. Cir. 2011), the plaintiff alleged, inter alia, that her employer's workplace rules, including a code of civility among employees, were "terms, conditions, or privileges of employment with respect to which Title VII affords protection." Id. at 1250 (internal quotations omitted). We upheld the dismissal of a claim premised on a violation of the code. Id. As we explained, it was "necessary for her discrimination claims" to allege that a term, condition or privilege was affected but such an allegation was "in itself . . . plainly not sufficient." Id. (emphases added). Baird "evidently ...

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