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

867 F.3d 70, 2016 U.S. App. LEXIS 23805, 101 Empl. Prac. Dec. (CCH) 45,852, 130 Fair Empl. Prac. Cas. (BNA) 645

• Court: Court of Appeals for the D.C. Circuit
• Decided: August 2, 2016
• Docket: No. 15-5008
• Status: Published

Opinions

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 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 eviden-tiary 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, — U.S. -, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 896 (2014); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 265, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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 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 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, 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, 469 U.S. 111, 120-21, 105 S.Ct. 613, 83 L.Ed.2d 523 (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 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, 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 Jie 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 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, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975) (quoting Griggs v. Duke Power Co., 401 U.S. 424, 429-30, 91 S.Ct. 849, 28 L.Ed.2d 158 (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 Paper Co., 422 U.S. at 418, 95 S.Ct. 2362.

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 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 at 818-19, 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, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)). Title VII “promises [Ortiz-Diaz] 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 con-elusion 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 plaintiffs 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 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-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, 352 F.3d at 427; see also Bouman v. Block, 940 F.2d 1211, 1229 (9th Cir. 1991). In any event, the co-wórker’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. 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, 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 (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, 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. Hasp., 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. 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, 134 S.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. 79 (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 668—was manifestly flawed.