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

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 14, 2016 Decided August 2, 2016

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 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.

Opinion for the Court filed by Circuit Judge HENDERSON.
 2
Concurring opinion filed by Circuit Judge
HENDERSON.

Concurring opinion filed by Circuit Judge
KAVANAUGH.

Dissenting opinion filed by Circuit Judge ROGERS.

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.

I.

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
 3
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

1
Ortiz-Diaz received a relocation allowance for his move to
D.C. which he was required to repay in the event he did not remain
in that position for at least one year (until December 15, 2010).
2
The district court order reflects that this event occurred in
October 2014. Further blurring the time-line, Ortiz-Diaz’s
complaint indicates he requested this transfer on October 12, 2012.
We believe both dates are inaccurate. Ortiz-Diaz’s complaint
indicates that he left HUD altogether on January 1, 2011.
Moreover, he filed his complaint in May 2012. We arrive at
October 2010 because that is the date contained in an Equal
Employment Opportunity Commission investigative summary and
because it is consistent with the rest of the time-line.
 4
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
3
The district court noted Ortiz-Diaz’s claim that “it was
common to maintain pay grades when transferred to the field” but
concluded that he “provide[d] no evidence in support of this
allegation.” Ortiz-Diaz, 75 F. Supp. 3d at 566; cf. Decl. of HUD
OIG Acting Assistant Inspector General of Investigations Lester
Davis ¶ 3, J.A. 339 (“Senior Special Agents (GS-14) stationed with
the Criminal Investigations Division who have requested
reassignment to the field as a Special Agent have been required to
accept a downgrade to Special Agent (GS-13)”). Ortiz-Diaz
pressed the same point on appeal but again offered no supporting
evidence.
 5
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.

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); 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
 6
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
 7
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
4
Our dissenting colleague takes issue with our analysis of the
relevance of subjective injury under our precedent, noting that in
Ginger v. District of Columbia, 527 F.3d 1340 (D.C. Cir. 2008), we
held a change in work schedule can constitute materially adverse
action. Dissent Op. 4. But in Ginger the plaintiffs in fact alleged
“lost income as a result of the” change and, although the Court
credited that a schedule change “can” suffice without monetary
loss, the plaintiffs there were moved from a “permanent shift” to a
“rotating shift” which “severely affected their sleep schedules and
made it more difficult for them to work overtime and part-time day
jobs.” Ginger, 527 F.3d at 1343–44 (emphasis added). Those
difficulties are plainly not subjective.
 8
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

5
Our dissenting colleague submits that Ortiz-Diaz proffered
evidence that McCarty approved transfer requests in some instances
without a grade reduction. Dissent Op. 7. That observation is
beside the point because the locations to which Ortiz-Diaz
requested transfer did result in a grade reduction and, as we
explained, Ortiz-Diaz has not contested that fact.
6
Our dissenting colleague finds that Ortiz-Diaz’s declaration
establishes the materially adverse action’s existence vel non, see
Dissent Op. 5–6, bypassing much well-established precedent in the
process. First, self-serving averments ordinarily do not allow a
Title VII plaintiff to survive summary judgment. See 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.”). More to the
point, a Title VII plaintiff must produce “evidence” which
“reasonable minds could differ as to the import of.” Liberty Lobby,
477 U.S at 250–51 (emphasis added). But Ortiz-Diaz’s declaration
contains no evidence regarding, inter alia, Febles’s supervisory
virtues, the existence of “high profile” work in Hartford and Albany
or the fit, if any, between a lower-rung position and accelerated
promotion prospects. Finally, setting aside the sufficiency of Ortiz-
Diaz’s allegations, whether an action is materially adverse is not
only a question of fact but a requisite of a Title VII claim,
supported by a record of “objectively tangible harm” that is not
“speculative.” Douglas, 559 F.3d at 553, 556 (emphasis added). By
contrast, the dissent’s preferred authority counsels only that we
“credit [Ortiz-Diaz’s] version of events,” Robinson v. Pezzat, 818
F.3d 1, 8 (D.C. Cir. 2016) (emphasis added), which we have done.
 9
“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 suppos[ed] that anything
in that category ipso facto me[t] the adverse action test,” but,
as we made plain, she was wrong. Id. 7

7
Ortiz-Diaz cites Trans World Airlines, Inc. v. Thurston, 469
U.S. 111 (1985), as authority for his claim. Although the case
involved a so-called “transfer,” its facts make plain that the transfer
was not lateral. Rather, in Trans World the defendant airline
required a captain to cease working in that capacity at age 60. It
allowed him to remain with the airline after attaining that age,
however, as a “flight engineer”—but only through a bidding
procedure that did not guarantee a position. Id. at 116. A captain
under 60 who was unable to retain his position was permitted to
“displace automatically . . . a less senior flight engineer” without
participating in the bidding process, a benefit that formed the basis
of an age discrimination claim. Id. (emphasis added). The Court
referred to an age-disqualified captain’s attempt to become a flight
engineer as a “transfer request,” id. at 118, but the “transfer” was in
fact a forced demotion, a far cry from our lateral transfer definition
which “does not involve a demotion in form or substance,” Brown
v. Brody, 199 F.3d 446, 456 (D.C. Cir. 1999).
Similarly, Ortiz-Diaz’s reliance on contrary decisions of our
sister circuits is misplaced. He cites Randlett v. Shalala, 118 F.3d
857 (1st Cir. 1997), for the proposition that, if “transfer . . . [is] a
common enough practice,” its denial is actionable under Title VII,
Appellant Br. 23. The First Circuit, without explanation, concluded
that, to Randlett, “transfer . . . was doubtless as important as a
promotion.” Randlett, 118 F.3d at 862. But Randlett held only that
“refusal to transfer is [not] automatically outside Title VII,” id.
 10
For the foregoing reasons, the judgment of the district
court is affirmed.

So ordered.

(emphasis added), a position consistent with our precedent, see
Stewart, 352 F.3d at 426. Ortiz-Diaz’s other cited cases, both
within and without our Circuit, do not even involve transfer. See
Judie v. Hamilton, 872 F.2d 919, 921–22 (9th Cir. 1989) (denial of
supervisory responsibilities); Scott-Brown v. Cohen, 220 F. Supp.
2d 504, 511 (D. Md. 2002) (denial of advanced sick leave); Paquin
v. Fed. Nat’l Mortg. Ass’n, 119 F.3d 23, 32 (D.C. Cir. 1997)
(withdrawing proposed severance package); Passer v. Am. Chem.
Soc., 935 F.2d 322, 331 (D.C. Cir. 1991) (cancelling symposium
honoring plaintiff).
 KAREN LECRAFT HENDERSON, Circuit Judge, concurring:
At oral argument Ortiz-Diaz’s counsel posed a disturbing
hypothetical. She claimed that, if we accept the defendant’s
argument, we would 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 Arg. Recording 1:11–2:04. 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),
it has no relevance to our “materially adverse action”
precedent.
‎ KAVANAUGH , Circuit Judge, concurring: I join the
majority opinion because it faithfully follows our precedents.
Our cases hold that lateral transfers to different positions or
posts with the same pay and benefits are ordinarily not
changes‎ in‎ the‎ “terms,‎ conditions,‎ or‎ privileges”‎ of‎
employment. I write this concurrence simply to note my
skepticism about those cases. In my view, a forced lateral
transfer – or the denial of a requested lateral transfer – on the
basis of race is actionable under Title VII. Based on our
precedents, however, I join the majority opinion.
 ROGERS, Circuit Judge, dissenting: Once again the court
returns to the issue of the proper role of the district court at
summary judgment but this time stumbles badly.

I.

Samuel Ortiz-Diaz was a criminal investigator in the Office
of the Inspector General at the U.S. Department of Housing and
Urban Development. That Office had adopted a merit staffing
plan, which includes a voluntary transfer program whereby
employees, including investigators, could request transfer to a
different location, at no cost to the government. The merit
staffing plan’s stated policy is that the program is to be
administered without regard to race, sex, color, national origin,
age, or disability. The program was a privilege of Ortiz-Diaz’s
employment. See Hishon v. King & Spalding, 467 U.S. 69,
75–76 (1984).

Following years of working for the Office of the Inspector
General, Ortiz-Diaz accepted a GS-14 position in the central
office in Washington, D.C. At some point, he requested a
transfer to Albany, New York where the Special Agent in
Charge in the region had requested an agent. When an email
was circulated regarding a position in Hartford, Connecticut,
Ortiz-Diaz also requested to transfer there. Both transfer
requests were denied by his supervisor. Ortiz-Diaz viewed
gaining criminal experience in the field as the way to advance
within the Inspector General’s Office, a view the government
does not dispute. Instead, the government disputes Ortiz-Diaz’s
claim that the denials were due to his supervisor’s bias against
Hispanics and Puerto Ricans, see Am. Compl. ¶¶ 10–11, 16–18,
and moved for summary judgment in the district court on the
grounds that he had suffered no adverse employment impact and
could not demonstrate pretext. The district court agreed as to
the first ground. Ortiz-Diaz v. U.S. Dep’t of Housing & Urban
 2

Dev., 75 F. Supp. 3d 561, 565–67 (D.D.C. 2014).

Ortiz-Diaz, however, had submitted his sworn declarations
to the district court stating that a transfer to the field would
provide the type of experience that would enable him to advance
within the Inspector General’s Office and he explained why. He
also proffered evidence that his supervisor had approved transfer
requests of white comparators without a decrease in pay or
benefits, and that those transfers were approved notwithstanding
the lack of an office or need in the transfer city, which were the
reasons given for denying Ortiz-Diaz’s transfer requests. He
proffered as well a letter from a colleague corroborating his
claim that his supervisor was biased against minorities. And the
government’s supplemental response to his discovery requests
produced a list of the discrimination complaints that had been
filed against Ortiz-Diaz’s supervisor, who was responsible for
approving his transfer requests and his future promotion within
the D.C. Office.

Further, Ortiz-Diaz had filed a motion to compel “full and
complete responses” to his discovery requests relating to
potential comparators, stating the government had failed to
produce documentary evidence of identified transfers and he
could not independently determine which transfers were
voluntary or involuntary. Responding to his opposition to
summary judgment, the government had claimed that the five
transfers mentioned by Ortiz-Diaz were in response to hardship
applications or involved individuals who were not similarly
situated.

After his transfer requests were denied, Ortiz-Diaz resigned
from his GS-14 position in the Inspector General’s Office,
where had worked for nine years. He accepted a GS-13 position
elsewhere in the Department.
 3

II.

Summary judgment is appropriate only if the record
evidence shows that “there is no genuine dispute as to any
material fact” and that the moving party “is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). This court, like the
district court, must “‘examine the facts in the record and all
reasonable inferences derived therefrom in a light most
favorable to’ the nonmoving party.” Robinson v. Pezzat, 818
F.3d 1, 8 (D.C. Cir. 2016) (quoting DeGraff v. District of
Columbia, 120 F.3d 298, 299–300 (D.C. Cir. 1997); see Adickes
v. S.H. Kress & Co., 398 U.S. 144, 158 (1970). Indeed, “[t]he
evidence of the non-movant is to be believed.” Anderson, 477
U.S. at 255. “This mode of analysis serves to separate the ‘jury
functions’ of making ‘[c]redibility determinations . . . ,
weighing . . . the evidence, and . . . drawing . . . legitimate
inferences from the facts’ from the district court’s role as the
arbiter of legal questions.” Robinson, 818 F.3d at 8 (quoting
Anderson, 477 U.S. at 255) (alterations in original).

As this court explained in Arrington v United States, 473
F.3d 329 (D.C. Cir. 2006), “[a]lthough a jury might ultimately
decide to credit the version of the events described by [the]
defendant[] over that offered by the plaintiff, this is not a basis
upon which a court may rest in granting a motion for summary
judgment.” Id. at 333 (internal quotation marks omitted). The
summary judgment standard requires us to credit the plaintiff’s
version of events, even if “‘directly contradictory’ to other
testimony.” Robinson, 818 F.3d at 8 (quoting Tolan v. Cotton,
134 S. Ct. 1861, 1867 (2014)). “Thus, we do not ‘determine the
truth of the matter,’ but instead decide only ‘whether there is a
genuine issue for trial.” Pardo-Kronemann v. Donovan, 601
F.3d 599, 604 (D.C. Cir. 2010).
 4

A.
Today, the court, in concluding upon de novo review that
Ortiz-Diaz did not suffer an adverse employment action as a
result of the denial of his transfer requests, misapplies the
summary judgment standard. In Stewart v. Ashcroft, 352 F.3d
422, 426–27 (D.C. Cir. 2003), the court explained that while
lateral transfers entailing no diminution in pay and benefits were
ordinarily not adverse employment actions, denials of transfers
could be adverse employment actions if they result in “objective,
tangible, and materially adverse consequences [affecting] the
terms, conditions, or privileges” of the plaintiff’s employment,
id. at 426 (citing Brown v. Brody, 199 F.3d 446, 457 (D.C. Cir.
1999)), even if the employee suffered no diminution in pay or
benefits. The court referred, as an example, to denial of an
opportunity to advance within the hierarchy of a department. Id.
(citing Brown, 199 F.3d at 457). Although “purely subjective
injuries, such as dissatisfaction with a reassignment,” are not
adverse actions, Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C.
Cir. 2002), not all “dissatisfaction” is immaterial. For instance,
in Ginger v. District of Columbia, 527 F.3d 1340, 1344 (D.C.
Cir. 2008), the court concluded that a transfer of police officers
to a more difficult and inconvenient work schedule could be an
adverse action, even without a change in the officers’
responsibilities or pay.

So have our sister circuits. For example, the First Circuit
explained, noting the “pretty open-ended language” of “terms,
conditions, or privileges,” in Title VII, 42 U.S.C. § 2000e-2a,
that an adverse employment action can include the denial of a
lateral transfer in view of the “the impact on [the plaintiff]” and
the plaintiff’s affidavits that it was “customary practice” to grant
“hardship” transfers. Randlett v. Shalala, 118 F.3d 857, 862 (1st
Cir. 1997) (citing cases). Indeed, as Judge Harlington Wood,
Jr., joined by Judge Ripple and Senior Judge Eschbach, wrote
for the Seventh Circuit in reversing the grant of summary
 5

judgment:

One does not have to be an employment expert to
know that an employer can make an employee’s job
undesirable or even unbearable without money or
benefits ever entering into the picture.

Collins v. Illinois, 830 F.2d. 692, 703 (7th Cir. 1987).

Ortiz-Diaz proffered evidence not merely that he would be
more satisfied working in Albany or Hartford, but that he would
be better positioned to advance within the Inspector General’s
Office. According to Ortiz-Diaz’s sworn declarations, a lateral
transfer would have enhanced his opportunities for promotion.
See Pltf.’s Decl. (June 25, 2014) in Support of Oppo. to Deft.’s
Mot. for Sum. Judgment ¶ 12 (“Pltf.’s Decl.”); Pltf.’s Supp.
Decl. (Sept. 4, 2012) in Support of Oppo. to Deft.’s Mot. for
Sum. Judgment ¶¶ 2, 4 (“Pltf.’s Supp. Decl.”). Specifically, he
explained that in order to better position himself for promotion,
he sought “to return to the field in order to gain experience at the
GS-14 level, establish favorable relationships with supervisors
in the field, . . . and give [him]self a bit of distance from the
discriminatory environment at headquarters.” Pltf.’s Supp.
Decl. ¶ 5. Investigators in Regions 1 and 2, to which he sought
transfers, “were lauded for their accomplishments and there did
not appear to be serious performance deficiencies” in those
regions. Id. ¶ 6. The Albany and Hartford locations presented
an opportunity to engage in “important, high profile work” that
would enhance his chances of promotion. Pltf.’s Decl. ¶ 12.
Additionally, in Albany, his supervisor would have been Rene
Febles, an Hispanic whom Ortiz-Diaz believed would not be
inclined to discriminate against him because he was an Hispanic
and Puerto Rican. Id. By contrast, in the Washington, D.C.
office, Ortiz-Diaz explained that he considered his chances of
advancement limited because his supervisor was racially biased
 6

against Hispanics and other minorities, and he was not alone in
that view. Id. ¶¶ 6–7; see Letter from Patrick Jefferson to Eden
Gaines Brown, Esq. (Mar. 12, 2012); Deft.’s Response to
Interrogatories, Request No. 5 (Dec. 20, 2013) (supplemental
discovery response listing discrimination complaints filed
against Ortiz-Diaz’s supervisor).

These are not mere “bare assertions” or subjective
preferences, as the court suggests, see Op. 7; rather, they are
objective statements — uncontested by the government — about
the expected professional benefits to Ortiz-Diaz from the
requested transfers. Evidence of his supervisor’s discriminatory
statements about Hispanics in the workplace and other
complaints of discrimination filed against his supervisor not
only corroborated Ortiz-Diaz’s view of his supervisor’s bias, but
was relevant, contrary to Judge Henderson’s view, to showing
that denial of his transfer requests had “materially adverse
consequences,” Forkkio, 306 F.3d at 1131, on his chances for
advancement if he remained in the D.C. Office. His resignation
following nine years in the Inspector General’s Office for a
lesser paying job underscores the adversity caused by the denial
of his transfer requests as a result of the discriminatory bind in
which he found himself in the D.C. Office.

Such evidence is sufficient to create a triable issue as to
whether the denial of Ortiz-Diaz’s transfer requests constitutes
a materially adverse employment action. The court, although
acknowledging that “a lateral transfer with increased promotion
prospects might qualify” as an adverse action, Op. 7, avoids this
conclusion only by improperly discounting Ortiz-Diaz’s sworn
declarations. Yet, contrary to the court’s view, see Op. 8 n.6, a
plaintiff’s sworn statement, even if uncorroborated, can provide
sufficient evidence to establish a disputed issue of material fact.
See Robinson, 818 F.3d at 9 (citing Arrington, 473 F.3d at 336,
338); see also Tolan, 134 S. Ct. at 1867. Ortiz-Diaz’s
 7

statements about the benefits of transfer are not unduly
speculative or inappropriately conclusory, see Forkkio, 306 F.3d
at 1131, in the context of the no-cost transfer program whereby
an employee could switch job locations. This is not a case in
which the plaintiff simply avers that his supervisor behaved with
discriminatory intent, see Op. 8 n.6 (citing, e.g., Holcomb v.
Powell, 433 F.3d 889, 899 (D.C. Cir. 2006)), but a case in which
the plaintiff stated objective facts about the world that could be
proved or disproved at trial.

Furthermore, by questioning the credibility of Ortiz-Diaz’s
sworn statements that a position in the field would lead to better
opportunities for advancement, the court fails on summary
judgment, as the Supreme Court has repeatedly instructed, to
construe the record and reasonable inferences “in the light most
favorable to the party opposing the motion,” here, Ortiz-Diaz.
Adickes, 398 U.S. at 158–59 (internal quotation and citation
omitted). Not only does the court err in taking a position never
advanced by the government in moving for summary judgment,
see Pardo-Kronemann, 601 F.3d at 609, the court errs in
deriding as “lower rung” the positions to which Ortiz-Diaz
sought to transfer in Albany and Hartford. Op. 7, 8 n.6. Ortiz-
Diaz’s evidence is to the contrary, explaining exactly why he
considered the transfers to afford opportunities for professional
advancement that his position in the D.C. Office did not, and the
government has never challenged that evidence. Even if the
court is referencing a transfer to a GS-13 position, Ortiz-Diaz
proffered evidence that his supervisor approved other transfers
without a diminution in grade. See Pltf.’s Oppo. to Sum.
Judgment ¶ 24; Pltf.’s Decl. ¶ 20.

Whether an employment action is adverse is a question for
the jury. Pardo-Kronemann, 601 F.3d at 607. The government
did not dispute that in-field criminal-investigative work was the
path for Ortiz-Diaz to position himself for promotion, or that
 8

Regions 1 and 2 were prime locations for doing so. Yet the
court today demands more details. See Op. 7. On what basis?
The government has never contested Ortiz-Diaz’s claims on that
ground, and “the evidence of the non-movant is to be believed,”
Anderson, 477 U.S. at 255. Neither did the government
challenge that the no-cost transfer program was a privilege of his
employment, see Hishon, 467 U.S. at 75–75. Febles’ email
requesting an investigator in Albany and the email about the
transfer opportunity in Hartford, as well as a Hartford position
that was filled shortly after Ortiz-Diaz resigned, were
corroborative of the availability of the opportunities for transfer
to prime in-field locations. Ortiz-Diaz’s resignation and
acceptance of a lower paying position lends gravitas, at this
stage of the proceedings, to the record evidence and reasonable
inferences therefrom of adversity as a result of being denied an
opportunity for professional advancement. See Stewart, 352
F.3d at 427; cf. Bouman v. Block, 940 F.2d 1211, 1229 (9th Cir.
1991).

Under the circumstances, upon viewing the evidence most
favorably to Ortiz-Diaz as the non-moving party, as the court
must, a reasonable jury could find the denials of the requested
transfers under the no-cost transfer program caused him
“objectively tangible harm.” Douglas v. Donovan, 559 F.3d
549, 552 (D.C. Cir. 2009). Nothing in our precedent requires a
different outcome on summary judgment, and the court offers no
analysis for the conclusion it does. See concurring op.,
Kavanaugh, J. Instead, the court’s conclusion appears to
indicate, much as Ortiz-Diaz’s counsel suggested during oral
argument, that there can be no material adversity from transfer
denials where a supervisor has a policy that, notwithstanding a
concrete opportunity for professional advancement, no
Hispanics need apply for the no-cost transfer program at the
D.C. Office of the Department’s Inspector General’s Office. See
Oral Arg. Rec. 18:49–19:04 (“You have a discriminatory
 9

decisionmaker saying that only whites . . . can participate in this
[no-cost transfer] program.”). Yet no court could condone that
result.

B.
Furthermore, on this record, there is no other basis to grant
summary judgment to the government on the merits of Ortiz-
Diaz’s discrimination claims. Again, the court must consider
the evidence and reasonable inferences most favorably to Ortiz-
Diaz as the non-moving party. Also, “summary judgment
[must] be refused where the nonmoving party has not had the
opportunity to discover information that is essential to his
opposition.” Anderson, 477 U.S. at 250 n.5 (citing FED. R. CIV.
P. 56(f)); see Russell v. Principi, 257 F.3d 815, 820–21 (D.C.
Cir. 2001).

In moving for summary judgment, the government stated
that Ortiz-Diaz’s requested transfers were denied because there
was no available position and no need for another agent in either
Albany or Hartford at the time of his transfer request. See
Deft.’s Statement of Material Facts in Support of Sum.
Judgment ¶¶ 17–19. Ortiz-Diaz’s factual statement in opposing
summary judgment disputed these factual assertions. See Pltf.’s
Statement of Material Facts in Dispute ¶¶ 17–19. Nonetheless,
once an employer offers a legitimate, non-discriminatory reason
for the adverse action, the “one central question” is whether
Ortiz-Diaz has proffered “sufficient evidence for a reasonable
jury to find that the [government’s] asserted non-discriminatory
reason was not the actual reason and that the [government]
intentionally discriminated against [him] on the basis of [his
membership in a protected class].” Brady v. Office of Sergeant
at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). “Employees may
cast doubt on the employer’s proffered reason by, among other
things, pointing to [1] changes and inconsistencies in the stated
reasons for the adverse action; [2] the employer’s failure to
 10

follow established procedures or criteria; [3] the employer’s
general treatment of minority employees; or [4] discriminatory
statements by the decisionmaker.” Evans v. Sebelius, 716 F.3d
617, 620 (D.C. Cir. 2013) (internal quotation marks omitted);
Morris v. McCarthy, No. 14-5074, 2016 WL 3254902, at *5
(D.C. Cir. June 14, 2016) (citing Aka v. Wash. Hosp. Ctr., 156
F.3d 1284, 1289 (D.C. Cir. 1998)); see Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). In opposing
summary judgment, Ortiz-Diaz presented arguments, based on
record evidence, to cast doubts for each of these reasons on the
government’s asserted non-discriminatory reasons. See Pltf.’s
Oppo. to Sum. Judgment Part IV C, D. “Although evidence of
pretext is not per se sufficient to permit an inference of
[discrimination], it usually will be enough to get a plaintiff’s
claim to the jury.” Pardo-Kronemann, 601 F.3d at 604 (internal
quotation and alterations omitted).

Ortiz-Diaz sought to show pretext in part through evidence
that transfer requests of similarly situated white employees were
granted, regardless of agency need or existing vacancies or
offices. See Pltf.’s Mem. in Support of Mot. to Compel 3. Such
evidence is relevant to demonstrating pretext. Showing that
transfers of white comparators were routinely approved
notwithstanding the absence of vacancies or offices in the
transfer location could demonstrate that the reasons given for
denying his transfer requests are “unworthy of credence,”
Reeves, 530 U.S. at 143 (quoting Tex. Dept. of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981)). In addition, Ortiz-
Diaz’s declaration specifically recounted his supervisor’s
discriminatory statements about Hispanics in the workplace, see
Pltf.’s Decl. ¶¶ 6–7, and there was evidence discrimination
complaints had been previously filed against his supervisor.
Such statements by a supervisor, this court has held, are
sufficient to defeat summary judgment. See Morris, No. 14-
5071, 2016 WL 3254902, at *7 (citing cases). To the extent the
 11

government attempted to show that Ortiz-Diaz’s supervisor was
not biased against Hispanics, see Mem. of Points & Auth. in
Support of Deft.’s Mot. for Sum. Judgment at 5–6, at the
summary judgment stage the court must credit Ortiz-Diaz’s
evidence, as the non-movant, and accord all reasonable
inferences from the evidence in his favor. See Adickes, 398 U.S.
at 158; see also Anderson, 477 U.S. at 255. Credibility is a
question for the trier of fact. See Reeves, 530 U.S. at 142.

And even if Ortiz-Diaz had not proffered sufficient evidence
of pretext to preclude summary judgment, Ortiz-Diaz’s motion
to compel full and complete discovery would need to be
addressed anew. Cf. Russell v. Principi, 257 F.3d at 820–21. In
moving to compel, Ortiz-Diaz argued that in discovery the
government had failed to produce documents or to indicate
which of the transfers it had identified were voluntary as opposed
to mandatory; he was unable to identify them but a government
witness had explained there was a paper trail by which the
government could. See Mot. to Compel 3–4; Pltf.’s Oppo. to
Deft.’s Mot. for Sum. Judgment at 15–16; Depo. of Lester Davis,
Acting Insp. General of Investigations, HUD, at 14, 21 (Apr. 8,
2014). The district court never considered the motion in
connection with the question whether Ortiz-Diaz had shown
pretext; in granting summary judgment on the ground Ortiz-Diaz
had failed to establish an adverse employment action, the district
court denied the motion on the ground that it would not produce
evidence that would alter its conclusion on that issue. See Ortiz-
Diaz, 75 F. Supp. 3d at 565–68. Because the motion to compel
sought evidence of pretext, summary judgment would be
inappropriate.

Accordingly, because on summary judgment the evidence is
to be viewed most favorably to the party opposing the motion, a
reasonable jury could find that the denial of Ortiz-Diaz’s transfer
requests adversely affected his opportunity for professional
 12

advancement, see Stewart, 352 F.3d. at 427, and because, as the
district court observed, the reasons for the denial of his transfer
requests were “hotly disputed,” Ortiz-Diaz, 75 F. Supp. 3d at
564, summary judgment is inappropriate. I respectfully dissent.