United States Court of Appeals, District of Columbia Circuit
March 14, 2016
from the United States District Court for the District of
Columbia (No. 1:12-cv-00726)
Brown Gaines argued the cause and filed briefs for the
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.
LeCraft Henderson, Circuit Judge
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.
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
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.
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 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.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
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).
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.
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
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,  when in fact
McCarty was talking to him about an assistant special agent
in charge position.
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 ...