Pardo-Kronemann v. Donovan

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 4, 2010 Decided April 16, 2010

No. 08-5155

JOSE PARDO-KRONEMANN,
APPELLANT

v.

SHAUN L. S. DONOVAN, SECRETARY OF HOUSING AND URBAN
DEVELOPMENT,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:05-cv-00626)

John F. Karl Jr. argued the cause and filed the brief for
appellant. Kristen G. Hughes entered an appearance.

Jane M. Lyons, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief was R. Craig Lawrence,
Assistant U.S. Attorney.

Before: ROGERS and TATEL, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge TATEL.
 2
Dissenting opinion filed by Senior Circuit Judge
WILLIAMS.

TATEL, Circuit Judge: Appellant, an attorney at the
Department of Housing and Urban Development, alleges that
HUD retaliated against him in violation of Title VII of the
Civil Rights Act of 1964 by transferring him to a non-legal
position and by declaring him absent without leave (AWOL)
when he failed to report to his new job. After partially
denying appellant’s Rule 56(f) motion, the district court
granted summary judgment to HUD on both claims. For the
reasons set forth in this opinion, we reverse as to the transfer
claim, affirm as to the AWOL claim, and find no abuse of
discretion in the district court’s resolution of the Rule 56(f)
motion.

I.
Appellant Jose Pardo-Kronemann first worked at HUD as
a graduate student intern in the Office of International Affairs
(OIA). After completing law school in 1991, he returned to
HUD as an entry-level attorney in the Office of the General
Counsel (OGC), first in the Public Housing Division and then
in the Finance Division, his preferred position. Sometime in
1998 or 1999, HUD reassigned Pardo-Kronemann to OGC’s
Program Compliance Division.

Around this time, Pardo-Kronemann filed several Equal
Employment Opportunity (EEO) complaints alleging
retaliation for prior EEO activity and discrimination on the
basis of his Cuban origin. He also asked Howard Glaser,
counselor to HUD Secretary Andrew Cuomo, about a possible
detail away from HUD. In a subsequent letter, Glaser noted
that Pardo-Kronemann had requested a one-year detail and
that, upon his return, he sought reinstatement “preferably to
the . . . Office of International Affairs or the . . . Finance
 3
Division [of OGC].” Letter from Howard Glaser, Counselor
to the Secretary, HUD, to Jose Pardo-Kronemann (July 21,
1999). The letter stated that “the Department is agreeable to a
detail . . . renewable to the permissible extent,” and that “[a]t
the conclusion of the detail, [Pardo-Kronemann] would return
to [his] position at HUD or a mutually agreeable position,
including consideration for reassignment to the Finance
Division.” Id.

In accordance with Glaser’s letter, HUD approved a one-
year detail to the Inter-American Development Bank (IDB)
from November 1999 to November 2000. At the conclusion
of that detail, Pardo-Kronemann sought a second detail, this
time to the Inter-American Investment Corporation. When
HUD said no, Pardo-Kronemann took approved leave without
pay from December 2000 to February 2001. During that time,
he continued working on a handbook for fostering mortgage
markets in developing nations that he had begun while on
detail at IDB.

Returning to HUD in March 2001, Pardo-Kronemann
met with Matthew Hunter, Assistant HUD Secretary and
White House Liaison, and asked him for either a second detail
or a political appointment in the new administration. During
that meeting, Pardo-Kronemann gave Hunter copies of his
previously filed EEO complaints. Hunter Aff. ¶ 4, Nov. 11,
2002. Hunter “saw no reason to spend additional HUD
money on detailing” Pardo-Kronemann away from the
Department and concluded that “a political appointment
would not be appropriate.” Id. ¶ 7.

HUD then returned Pardo-Kronemann to OGC, though
with the Department’s permission, he continued working on
the IDB handbook from March through October. During this
time, OGC assigned Pardo-Kronemann no legal work, nor did
 4
he request any, though he did receive a small number of
assignments from the Office of the Secretary. In particular,
Hunter asked Pardo-Kronemann to prepare a memorandum on
the history of OIA, where he had worked as an intern during
graduate school. Hunter found the final product
disappointing, but Pardo-Kronemann contends that another
employee actually completed the memorandum. Id. ¶ 6;
Pardo-Kronemann Dep. 152–55 (undated).

HUD officials soon became concerned that Pardo-
Kronemann “was not doing any work, was keeping sporadic
work hours, and was generally not living up to his obligation
as a Federal employee.” Hunter Aff. ¶ 8. Sometime between
June (according to Pardo-Kronemann) and September 2001
(according to HUD), HUD officials began to consider
transferring Pardo-Kronemann out of OGC. On October 15,
with the decision nearly final, Deputy General Counsel
George Weidenfeller sent an email to several OGC employees
stating “Per Matthew Hunter, please prepare papers to
reassign Jose [Pardo-Kronemann] to the HUD International
Affairs Office.” E-mail from George Weidenfeller, Deputy
General Counsel, HUD, to Sinthea Kelly and Kathryn J.
Davis, HUD (Oct. 15, 2001). According to record evidence,
HUD officials, including Weidenfeller and Hunter, made the
transfer decision without consulting Pardo-Kronemann and
over the objection of the Deputy Assistant Secretary in charge
of OIA, Shannon Sorzano, who was instructed to “write a
position description and find something for [Pardo-
Kronemann] to do.” Sorzano Aff. ¶ 5, Nov. 9, 2002. OGC
and human resources officials subsequently rewrote that job
description “to ensure that the duties did not reflect
performance of any legal work.” Id. ¶ 15.

Pardo-Kronemann learned nothing of the impending
transfer until December. Although his position description
 5
was still being drafted, he was instructed to report to OIA on
January 7, 2002. He then met with Sorzano, who informed
him that OIA focused on research and had no legal work.
When Pardo-Kronemann indicated that he wanted to decline
the “offer,” Sorzano responded that she did not know whether
he could. Id. ¶ 11. Pardo-Kronemann then sought leave for
his first week at OIA, but he followed the wrong procedures.
Id. ¶ 12–13. When Pardo-Kronemann failed to report for
work, Sorzano placed him on AWOL status, resulting in a
two-day suspension. He began work at OIA two days later.
Pardo-Kronemann’s title, grade, pay, and benefits remained
unchanged.

After exhausting his administrative remedies before the
Equal Employment Opportunity Commission, Pardo-
Kronemann sued the HUD Secretary in the United States
District Court for the District of Columbia. He alleged that
HUD violated Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq., by transferring him to a non-legal
position and by placing him on AWOL status, both in
retaliation for his prior EEO activity and advocacy “on behalf
of IMAGE,” “an organization whose mission is to promote
and increase hiring, promotion, and retention of Hispanics in
the federal government.” Compl. ¶ 34, 16. Following
discovery and the partial denial of Pardo-Kronemann’s Rule
56(f) motion for additional discovery, the district court
granted HUD’s motion for summary judgment on both
claims. Pardo-Kronemann v. Jackson, 541 F. Supp. 2d 210
(D.D.C. 2008). Pardo-Kronemann appeals.

II.
We begin with Pardo-Kronemann’s claim of retaliatory
transfer. Examining the evidence in accordance with
McDonnell Douglas’s burden-shifting framework, the district
court found that Pardo-Kronemann probably established the
 6
first two elements of a prima facie case of retaliation: HUD
concedes that his EEO complaints qualified as statutorily
protected activity, and the record reflects a “genuine dispute
of material fact as to whether he suffered an adverse
personnel action based upon the reassignment” to a non-legal
position. Pardo-Kronemann, 541 F. Supp. 2d at 215–18; see
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
The district court expressed some doubt that Pardo-
Kronemann could satisfy the third requirement—a causal
connection between his 1999 EEO complaints and his late
2001 transfer. But because HUD had already offered a
“legitimate, non-discriminatory reason” for the
reassignment—a desire to place Pardo-Kronemann in an
office where he would be happier and more productive—the
district court properly ruled that the McDonnell Douglas
burden-shifting framework “effectively evaporate[d].”
Pardo-Kronemann, 541 F. Supp. 2d at 215; see, e.g., Carter v.
George Wash. Univ., 387 F.3d 872, 878 (D.C. Cir. 2004).
Thus, “the sole remaining question” became “retaliation vel
non”—whether, based on all the evidence, a reasonable jury
could conclude that HUD’s proffered reason for the transfer
was pretext for retaliation. Pardo-Kronemann, 541 F. Supp.
2d at 219; see Jones v. Bernanke, 557 F.3d 670, 678 (D.C.
Cir. 2009). Emphasizing that Pardo-Kronemann had failed to
seek legal work in his first eight months back at OGC, the
district court concluded that no reasonable jury could find
HUD’s proffered reason for the transfer pretextual. Pardo-
Kronemann, 541 F. Supp. 2d at 220–21.

We review the district court’s decision de novo. See,
e.g., Carter, 387 F.3d at 878. “Summary judgment is
appropriate only if the pleadings, depositions, answers to
interrogatories, admissions, and affidavits filed pursuant to
discovery show that, first, ‘there is no genuine issue as to any
material fact’ and, second, ‘the moving party is entitled to a
 7
judgment as a matter of law.’” Holcomb v. Powell, 433 F.3d
889, 895 (D.C. Cir. 2006) (quoting Fed. R. Civ. P. 56(c)).
We review the evidence in the light most favorable to the
non-moving party—here, Pardo-Kronemann—and draw all
reasonable inferences in his favor. Id. “Credibility
determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury
functions, not those of a judge” at summary judgment.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Thus, we do not “determine the truth of the matter,” but
instead decide only “whether there is a genuine issue for
trial.” Id. at 249.

Because HUD has proffered a legitimate reason for the
transfer, we, like the district court, focus on “whether a
reasonable jury could infer . . . retaliation from all the
evidence.” Jones, 557 F.3d at 677 (quoting Carter, 387 F.3d
at 878) (omission in original) (quotation marks omitted). In
doing so, “[we] review[] each of the three relevant categories
of evidence—prima facie, pretext, and any other” to
determine whether the evidence creates a genuine dispute on
the “ultimate issue of retaliation ‘either directly by [showing]
that a discriminatory reason more likely motivated the
employer or indirectly by showing that the employer’s
proffered explanation is unworthy of credence.’” Id. at 679,
678 (quoting U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 716 (1983) (alteration in original)). Although
“evidence of pretext is not per se sufficient to permit an
inference” of retaliation, it “‘[u]sually . . . will be enough to
get a plaintiff’s claim to a jury.’” Id. (quoting George v.
Leavitt, 407 F.3d 405, 413 (D.C. Cir. 2005) (omission in
original)); see also Aka v. Wash. Hosp. Ctr., 156 F.3d 1284,
1294 (D.C. Cir. 1998) (en banc) (“In an appropriate case, ‘the
factfinder’s disbelief of the reasons put forward by the
 8
defendant’ will allow it to infer intentional discrimination.”)
(internal citation omitted).

HUD argues that the district court got it exactly right. In
support, it maintains that no reasonable jury could possibly
conclude that the Department had retaliated against Pardo-
Kronemann because, after all, it reassigned him to the very
office where he wanted to work, the Office of International
Affairs. See Letter from Howard Glaser, Counselor to the
Secretary, HUD, to Jose Pardo-Kronemann (July 21, 1999)
(noting that, when requesting the detail, Pardo-Kronemann
sought “[r]eassignment to HUD at the end of the detail
period, preferably to the HUD Office of International Affairs
or the [OGC] Finance Division”). But this case is not quite
so simple. Pardo-Kronemann points to several pieces of
evidence that could convince a reasonable jury that HUD
transferred him to OIA not to make him happier and more
productive, but rather in retaliation for his EEO activities.

Most important, Pardo-Kronemann relies on Hunter’s
testimony during the EEOC administrative hearing. While
discussing the several meetings leading up to the transfer,
Hunter engaged in the following exchange with Pardo-
Kronemann’s counsel:

Q. Was the fact that the complainant had prior EEO
activity a reason or a fact in your suggesting that he
be reassigned to the Office of International Affairs?
A. No.
Q. Did you know at the time of the meeting referred
to here that he had prior EEO activity?
A. No. I mean I would know—I would not have
referred someone who might be viewed as a problem
to another office to create another problem, I
wouldn’t have done that. I mean that was an
 9
important office for the Secretary, . . . it was
someone [sic] we were not trying to put the B team
or C team, we were looking for an A team down
there.

Transcript of EEO Hearing at 51–52, Pardo-Kronemann v.
Martinez, EEOC Case No. 100-2003-07306X (Sept. 8, 2004)
(emphasis added).

We agree with Pardo-Kronemann that this testimony
could well lead a reasonable jury to question Hunter’s
credibility and therefore the legitimacy of HUD’s proffered
reason for the transfer. For one thing, when answering “no”
to the question “did you know at the time of the meeting
referred to here that he had prior EEO activity,” Hunter was
flatly contradicting his earlier statement that when he and
Pardo-Kronemann met months before the reassignment,
Pardo-Kronemann gave him copies of his EEO complaints.
See Hunter Aff. ¶ 4. Moreover, the rest of the answer—“I
would not have referred someone who might be viewed as a
problem to another office to create another problem”—
particularly when combined with Hunter’s false denial of
knowledge of the EEO complaints, could be interpreted by a
reasonable jury as “yes, had I known about Pardo-
Kronemann’s EEO complaints, I never would have referred
such a ‘problem’ employee to another office”—precisely
what Title VII prohibits. HUD believes that any such
inference is “more than counterbalanced by [Hunter’s]
statement that he was trying to send an ‘A’ team player to
OIA.” Appellee’s Br. 37. Perhaps so, but given the fact that
Hunter held Pardo-Kronemann responsible for poor work on
the OIA memorandum, a reasonable jury might well wonder
whether he really was seeking to assemble an “A team” at
OIA, or whether he was in fact ridding OGC of a “problem”
employee. True, Hunter’s statements could be interpreted
 10
more innocently, but resolving such conflicting inferences is a
“jury function, not [one] of a judge . . . ruling on a motion for
summary judgment.” Anderson, 477 U.S. at 255.

Other record evidence reinforces our conclusion that a
reasonable jury could find that HUD’s proffered reason for
transferring Pardo-Kronemann was in fact pretext for
retaliation. First, in 1999, when Pardo-Kronemann told
Glaser of his interest in working at OIA, the office had at least
$10 million in grant funding for relief programs. By 2001,
the parties agree, it had exhausted that funding, and OIA had
“no role . . . other than to do research.” Pardo-Kronemann
Dep. 14, June 30, 2006. Given this, Pardo-Kronemann
contends, a reasonable jury could conclude that HUD
management did not “honestly and reasonably believe[]” that
he would still want to work at OIA at the time of the transfer.
Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 496
(D.C. Cir. 2008) (emphasizing that the relevant question in
pretext analysis is whether the employer reasonably and
honestly believes in the asserted reason for employment
action). We agree, particularly since no one at HUD even
asked Pardo-Kronemann whether his preferences had changed
since 1999. Of course, “[n]othing in the law requires an
employer to consult with an employee before assigning new
duties.” Appellee’s Br. 32–33. But we think a reasonable
jury might well wonder why HUD officials failed to consult
Pardo-Kronemann if they were truly interested in finding him
a job that would make him happier.

Second, when Sorzano first learned that HUD officials
might transfer Pardo-Kronemann to OIA, she told Hunter that
the office had no attorney positions and that the prospect of a
transfer “was not looking good.” Sorzano Aff. ¶ 4. A couple
of months later, and at least a month after the transfer decision
was made, Larry Thompson, General Deputy Assistant
 11
Secretary for Policy Development and Research, told Sorzano
that Pardo-Kronemann would be transferred and directed her
“to write a position description and find something for him to
do.” Id. ¶ 5 (emphasis added). If HUD officials really were
seeking to improve Pardo-Kronemann’s productivity, why, a
reasonable jury might ask, would they have transferred him
over the objection of his soon-to-be supervisor to an office
with no legal work?

Third, Sorzano states in her affidavit that “[t]hroughout
this matter [she] ha[s] never been informed of the Office of
General Counsel’s basis for reassigning Mr. Pardo-
Kronemann.” Id. ¶ 17. Indeed, when Thompson first told
Sorzano of the transfer, she asked for an explanation, but
Thompson responded only that “the decision has been made.”
Id. ¶ 6. When Sorzano contacted three other HUD officials to
object to the reassignment, each told her that the decision had
been made but offered no explanation. See id. (Carole
Jefferson, Deputy Assistant Secretary for Administration, told
Sorzano that “the decision was out of her hands and had
already been made”); Sorzano Dep. 9, Nov. 2, 2007 (Dan
Murphy, Chief of Staff to HUD Secretary Mel Martinez, said
that the transfer “was already decided. It was a done deal”);
Sorzano Aff. ¶ 7 (Hunter told Sorzano for the second time
without explanation that “the matter had been decided”). We
agree with Pardo-Kronemann that a reasonable jury could
conclude from this evidence that HUD officials were seeking
to conceal a retaliatory motive.

To sum up, Hunter’s questionable EEO testimony, HUD
officials’ failure to discuss the transfer with Pardo-
Kronemann, and Sorzano’s inability to obtain an explanation
for the reassignment would allow a reasonable jury to
conclude that HUD transferred Pardo-Kronemann to OIA not
to make him happier and more productive, but in retaliation
 12
for his prior EEO activity. In saying this, we reiterate that our
job at this stage of the litigation is not to evaluate the evidence
or to decide whether Pardo-Kronemann was in fact a victim of
unlawful retaliation, but only to determine whether the record
contains sufficient evidence for a reasonable jury to so
conclude. Because it does, summary judgment for HUD was
inappropriate.

III.
Our dissenting colleague would affirm on the ground that
Pardo-Kronemann has failed to establish one of the required
elements of a prima facie case of retaliation: that the transfer
“constitutes an adverse employment action,” Holcomb, 433
F.3d at 902. As an initial matter, we note that HUD raises
this argument only in what HUD counsel described as a
“relatively limited” footnote, Oral Arg. at 30:10; see
Appellee’s Br. 38 n.10, and that we have on occasion
considered such arguments forfeited, see, e.g., NSTAR Elec.
& Gas Corp. v. FERC, 481 F.3d 794, 800 (D.C. Cir. 2007);
Sugar Cane Growers Coop. of Fla. v. Veneman, 289 F.3d 89,
93 n.3 (D.C. Cir. 2002). In any event, we agree with the
district court that Pardo-Kronemann has raised a genuine
issue of material fact as to whether his transfer from OGC to
OIA qualifies as an adverse employment action.

An employment action is materially adverse where it
“well might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.”
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68
(2006) (internal quotation marks omitted). Lateral
transfers—those entailing “‘no diminution in pay and
benefits’”—qualify as adverse employment actions if they
result in “‘materially adverse consequences affecting the
terms, conditions, or privileges’” of the plaintiff’s
employment. Stewart v. Ashcroft, 352 F.3d 422, 426 (D.C.
 13
Cir. 2003) (quoting Brown v. Brody, 199 F.3d 446, 457 (D.C.
Cir. 1999)). Although we have stated that “a purely lateral
transfer, that is, a transfer that does not involve a demotion in
form or substance, cannot rise to the level of a materially
adverse employment action,” Brown, 199 F.3d at 455–56
(internal quotation marks omitted); see Dissenting Op. at 17,
we have also held that “[w]hether a particular reassignment
of duties constitutes an adverse action . . . is generally a jury
question,” Czekalski v. Peters, 475 F.3d 360, 365 (D.C. Cir.
2007). Indeed, “[t]he court may not take that question away
from the jury if a reasonable juror could find that the
reassignment left the plaintiff with significantly diminished
responsibilities.” Id. (concluding that a jury could find
adversity where, after a lateral transfer, plaintiff supervised
fewer employees and managed a smaller budget). Thus, as
the Supreme Court has held, transfers resulting in no decrease
in pay or benefits may nonetheless be adverse. See White,
548 U.S. at 70 (finding that employment actions may be
adverse even where “both the former and present duties fall
within the same job description” because “[a]lmost every job
category involves some responsibilities and duties that are
less desirable than others”); see also Holcomb, 433 F.3d at
902 (concluding that jury could find adversity from
reassignment with “significantly different responsibilities”);
Stewart, 352 F.3d at 427 (concluding that jury could find
adversity in failure to transfer plaintiff to position with same
pay and benefits but involving greater supervisory duties and
prospects for advancement).

Where, as here, the plaintiff alleges retaliation based on a
reassignment, the fact-finder must compare the position the
plaintiff held before the transfer to the one he holds
afterwards. Here the parties compare the OGC position
Pardo-Kronemann occupied both before and after his IDB
detail to his new position at OIA. The question, then, is
 14
whether a reasonable jury could conclude that the transfer
from the former to the latter was adverse. According to HUD,
the answer is no because Pardo-Kronemann’s salary, benefits,
and grade remained the same; indeed, he maintained the same
title, switching from an Attorney Advisor in OGC to an
Attorney Advisor in OIA. But we agree with Pardo-
Kronemann that a reasonable jury could conclude from the
job descriptions that OGC attorneys have “significantly
different responsibilities” than OIA attorneys. Holcomb, 433
F.3d at 902 (quoting Forkkio v. Powell, 306 F.3d 1127, 1131
(D.C. Cir. 2002)).

According to the OGC Attorney Advisor position
description, Pardo-Kronemann “perform[ed] a variety of
difficult and complex duties,” including “provision of legal
services to . . . Departmental officials”; serving as “lead
attorney in major . . . litigation matters”; and “provid[ing]
legal advice with respect to financial marketing issues.”
Position Description, Attorney Advisor, Apr. 12, 1995.
Although this describes Pardo-Kronemann’s job in the OGC
Finance Division before being detailed to IDB, HUD does
not contend that Pardo-Kronemann’s duties would have been
materially different had he remained in the OGC position to
which he returned after the detail. In fact, HUD itself uses
this position description as the basis for its comparison. See
Def.’s Mem. in Supp. of Mot. for Summ. J. 9; cf. Hayes v.
U.S. Postal Serv., 390 F.3d 1373, 1377 (Fed. Cir. 2004)
(noting that “an employee continues to be the incumbent of
the position from which he was detailed”) (internal quotation
marks and citation omitted). By contrast, Pardo-
Kronemann’s OIA position description looks quite different.
Although stating that he “[p]rovide[s] advisory services . . .
on questions of law” and “[c]onduct[s] research of laws, legal
opinions, policies, regulations and related legal analyses,” the
position description emphasizes that “[a]ll professional legal
 15
guidance regarding the formulation and development of the
Department’s international programs and activities is
received from the Office of the General Counsel.” Position
Description, Attorney Advisor (International), Jan. 9, 2002.

It is true, as HUD counsel emphasized at oral argument,
that lawyers work throughout the Department, but as the two
position descriptions demonstrate, only OGC lawyers can
practice law, e.g., issue legal opinions, represent the agency
in administrative proceedings, and coordinate with the
Department of Justice to represent HUD in court. Indeed,
OGC and Human Resources personnel rewrote Pardo-
Kronemann’s OIA position description to ensure that his
duties in that office “did not reflect performance of any legal
work.” Sorzano Aff. ¶ 15.

Other record evidence also indicates that the transfer
from OGC to OIA amounted to a transfer from a legal to a
non-legal position. In late October 2001, upon completing
the IDB handbook and before he even knew about the
transfer, Pardo-Kronemann asked OGC for legal work. See
Pl.’s Decl. in Opp’n to Def.’s Mot. for Summ. J. ¶ 12. From
this, a jury could reasonably conclude that absent the transfer,
he would have resumed his usual legal duties as an OGC
attorney. Yet as Sorzano explained, following the transfer
Pardo-Kronemann’s “skills and education are not being fully
utilized in the Office of International Affairs.” Sorzano Aff.
¶ 17. Indeed, Sorzano found herself “puzzled” upon learning
that a lawyer might join her office. Sorzano Dep. 18.
Moreover, “[w]hen [Pardo-Kronemann] submitted a training
request for Continuing Legal Education . . . that is a condition
to [his] continuing membership in the Bar of the
Commonwealth of Pennsylvania, Sorzano denied the
request,” explaining that he “do[es] not do legal work.” Pl.’s
Decl. in Opp’n to Def.’s Mot. for Summ. J. ¶ 3. Similarly,
 16
Geraghty testified that Pardo-Kronemann is doing “research,”
and that he is unable to issue legal documents on which HUD
could rely without “the approval of the Office of the General
Counsel,” “[e]ven if [Pardo-Kronemann] ha[s] higher rank”
than the OGC attorney granting that approval. Geraghty Dep.
45.

Given these differences between the OGC and OIA jobs,
we think a reasonable jury could conclude that the transfer
qualifies as an adverse employment action. We therefore
have no need to consider Pardo-Kronemann’s claim that his
actual work at OIA is less sophisticated than suggested by the
position description. See Pardo-Kronemann Dep. 14–15,
June 30, 2006; Compl. ¶¶ 25, 27–33; Pl.’s Opp. to Mot. for
Summ. J. 17 (Pardo-Kronemann was “assigned to a research
job, that was similar to what he had done as an intern in
[OIA] at a much lower grade level when he was paid $4.50
per hour more than twenty years earlier”); see also Holcomb,
433 F.3d at 902–03 (finding that a dramatic decrease in duties
to below grade level could constitute adverse employment
action).

The dissent has a very different view of this issue. It
compares Pardo-Kronemann’s new position at OIA not to his
position at OGC, but to his pre-transfer, temporary work on
the IDB handbook. Finding his work on the handbook
similar to his work at OIA, the dissent concludes that no
reasonable jury could find the transfer adverse. That,
however, is not HUD’s argument. Instead, as we indicate
above, HUD compares Pardo-Kronemann’s OIA position to
his OGC position as a whole, including not just the
handbook, but also the office in which Pardo-Kronemann
worked and the legal work he did before the detail. Thus, in
this court HUD argues only that the transfer was not adverse
because Pardo-Kronemann’s pay and level of work remained
 17
unchanged. In the district court, HUD likewise compared
Pardo-Kronemann’s OIA position to the OGC position,
though there it argued that the transfer was not adverse
because he “continue[d] to perform legal work.” Def.’s
Mem. in Supp. of Mot. for Summ. J. 9. Neither here nor in
the district court has HUD compared Pardo-Kronemann’s
OIA job to his work on the IDB handbook. Indeed, in
arguing that the transfer was not adverse, HUD never even
mentions the handbook. See Salazar v. Wash. Metro. Area
Transit Auth., 401 F.3d 504, 510–11 (D.C. Cir. 2005) (noting
that our usual practice is to consider only those arguments
raised by the parties).

The dissent concedes that HUD has failed to argue here
that the handbook is the relevant baseline. It claims,
however, that HUD made the argument in the district court.
First, the dissent relies on HUD’s motion in support of
summary judgment, in which it stated:

Plaintiff alleges that the reassignment was an
adverse action because it resulted in a change in his
duties as an attorney. (“…Plaintiff was reassigned
from his position as an attorney with the OGC to his
current position as a de facto program analyst.” See
Compl. ¶ 25.) The record reflects that from March
until December 2001, Plaintiff had no job description
and it is unclear to whom exactly he was to have
been reporting substantively. He was performing no
work for OGC, but OGC maintained his time and
attendance records.

Def.’s Mem. in Supp. of Mot. for Summ. J. 7 (citations
omitted). But this passage merely recites the facts and
summarizes Pardo-Kronemann’s claim as a general matter—
that the transfer from OGC to OIA had a negative impact on
 18
his duties as an attorney. The paragraph says nothing about
which pre-transfer duties provide the relevant baseline and, as
noted above, never refers to the handbook. What’s more, in
pointing out that “OGC maintained [Pardo-Kronemann’s]
time and attendance records” immediately before the transfer,
the cited passage makes clear that Pardo-Kronemann retained
a position in OGC during this time. This fact is undisputed:
HUD concedes that Pardo-Kronemann’s 2001 transfer was
“from an Attorney position in the OGC” to a position in OIA.
Def.’s Statement of Material Facts Not in Dispute ¶ 14.

Moreover, both before and after the quoted language—
which, again, we cite only because the dissent relies on it—
HUD itself compared the OIA position to Pardo-
Kronemann’s OGC work more generally. On the very same
page, HUD noted that “during his tenure in OGC, as a
general attorney, Plaintiff reported to various Assistant
General Counsel and advised differing client sub-agencies.”
Def.’s Mem. in Supp. of Mot. for Summ. J. 7 (citation
omitted). On the next page, HUD stated that after the
transfer, “[t]he nature of [Pardo-Kronemann’s] work may
have changed, insofar as he may be advising the [Deputy
Assistant Secretary for International Affairs] rather than a
client HUD component. But, there is no evidence that there
was a reduction in his responsibilities when Plaintiff was
laterally transferred to OIA.” Id. at 8 (emphasis added).
Completely missing from this discussion is any argument that
Pardo-Kronemann “was not providing ‘advisory services . . .
on questions of law’ before the transfer either,” Dissenting
Op. at 13 (quoting Position Description, Attorney Advisor
(International), Jan. 9, 2002). Instead, HUD argued that
“[d]ue to the similarities and comparability of the OGC
attorney position (where plaintiff last had a position
description) and the OIA International Attorney-Advisor
position, and the lack of any loss of salary or benefits,
 19
Plaintiff cannot establish that his reassignment constituted an
adverse action.” Def.’s Mem. in Supp. of Mot. for Summ. J.
9 (emphasis added). Indeed, HUD assured the district court
that the move was not adverse because Pardo-Kronemann
“continue[s] to perform legal work” at OIA. Id. at 9; see also
id. at 10.

The dissent also relies on a passage in HUD’s reply
brief. See Dissenting Op. at 5. Although district courts, like
this court, generally deem arguments made only in reply
briefs to be forfeited, see, e.g., Jones v. Mukasey, 565 F.
Supp. 2d 68, 81 (D.D.C. 2008), the cited language likewise
fails to make the dissent’s argument. Again saying nothing
about the handbook, HUD simply reiterated the fact that
immediately before the transfer, Pardo-Kronemann “had not
been reporting to any particular component of the
Department.” Def.’s Reply in Supp. of Mot. for Summ. J. 6.
HUD went on to cite a number of cases for the proposition
that a plaintiff’s mere unhappiness with a new assignment
does not in itself prove that an action was adverse. Although
that is certainly correct, we can find no argument in the
quoted paragraph—or, for that matter, anywhere else in the
reply brief—that the appropriate baseline consists solely of
the IDB handbook.

In sum, HUD argued neither that the handbook is the
proper basis for comparison nor that we must disregard the
fact that immediately before the transfer, Pardo-Kronemann
maintained a position in OGC. Pardo-Kronemann, moreover,
did not “fudge[] the matter,” Dissenting Op. at 5. Instead,
throughout his district court brief, Pardo-Kronemann
compared his OIA job to his OGC position generally, arguing
that “removing an attorney like Pardo-Kronemann from his
position as an attorney qualifies as an ‘adverse action,’” Pl.’s
Opp’n to Mot. for Summ J. 20, because in OIA, he “has no
 20
clients who seek his legal advice and does not perform any
legal work,” id. at 17. See also id. (“Sorzano’s Affidavit
makes it clear that the position in OIA was not comparable to
that Pardo-Kronemann previously held in OGC.”); id. at 18
(“Pardo-Kronemann was placed in a position that was
manufactured specifically for him to justify his removal from
OGC.”). The point, then, is that following the IDB detail,
Pardo-Kronemann returned to a permanent OGC position and
worked on a temporary assignment. Because a jury could
reasonably find that unlike the OGC position, the OIA
position provides no opportunity for legal work, a question of
material fact exists as to whether the transfer from OGC to
OIA was adverse.

IV.
We can easily dispose of Pardo-Kronemann’s two
remaining challenges. First, he contends that the district court
erred in granting summary judgment to HUD on his
retaliatory AWOL claim. Second, he argues that the district
court abused its discretion in denying in part his Rule 56(f)
motion for additional discovery.

Retaliatory AWOL
On the last business day before Pardo-Kronemann’s
transfer was to take effect, he sought leave from OGC and
submitted a copy of the request to OIA. Although an OIA
administrator informed Pardo-Kronemann that he needed
Sorzano’s approval, he never sought it. Instead, he failed to
report for work on the following Monday, at which point
Sorzano, after consulting with Human Resources, placed him
on AWOL status, resulting in a two-day suspension. As one
might expect, HUD’s proffered non-retaliatory reason for this
action is that Pardo-Kronemann was in fact absent without
 21
leave. The district court concluded that no reasonable jury
could find this explanation pretextual.

Although acknowledging that he failed to seek Sorzano’s
approval for leave, Pardo-Kronemann insists that a reasonable
jury could find that HUD marked him AWOL in retaliation
for his EEO activity. He claims that Sorzano had no
legitimate business reason for placing him on AWOL status
because his position description remained unfinished and OIA
had no work for him to do. Yet Sorzano explained that she
marked Pardo-Kronemann AWOL because “as a GS-14
attorney with over 12 years of government experience, he
should have known how to apply for leave through the proper
channels.” Sorzano Aff. ¶ 13. In addition, Sorzano believed
that “approving his leave under these circumstances would set
a bad precedent for other employees.” Id. This strikes us as
an entirely legitimate business purpose, and Pardo-
Kronemann offers nothing to suggest that a reasonable jury
could think otherwise.

Pardo-Kronemann next argues that a jury could infer
retaliation from the fact that John Geraghty, his OIA
supervisor, told him that the decision “came from the Tenth
Floor,” where the Office of the Secretary and OGC are
located, and that Pardo-Kronemann had “some pretty
powerful enemies” there. Pl.’s Decl. in Opp’n to Def.’s Mot.
for Summ. J. ¶ 10–11. But Pardo-Kronemann never claims
that Geraghty had firsthand knowledge of how the AWOL
decision was made. Like the district court, we thus agree with
HUD that Geraghty’s statements “reflect[] at most a personal
opinion or sympathy,” Appellee’s Br. 46, insufficient for a
reasonable jury to conclude that HUD’s explanation is pretext
for retaliation. See Haynes v. Williams, 392 F.3d 478, 485
(D.C. Cir. 2004) (“The possibility that a jury might speculate
 22
in the plaintiff's favor is insufficient to defeat summary
judgment.”).

Rule 56(f) Motion
After almost eight months of discovery, Pardo-
Kronemann’s original trial counsel fell ill, and the district
court extended discovery through February 2007. HUD then
moved for summary judgment in March, and Pardo-
Kronemann obtained new counsel in May. In June, having
yet to file his response to HUD’s summary judgment motion,
Pardo-Kronemann’s new counsel moved for additional
discovery under Rule 56(f), which states that a district court
may grant more time for discovery “[i]f a party opposing
[summary judgment] shows by affidavit that, for specified
reasons, it cannot present facts essential to justify its
opposition.” Fed. R. Civ. P. 56(f). Specifically, Pardo-
Kronemann sought to depose five additional witnesses and to
require those witnesses to produce all emails referring to him,
though he later narrowed the request for Sorzano’s emails.
See Pl.’s Reply in Supp. of Mot. Pursuant to Rule 56(f).
Granting the motion in part, the district court allowed Pardo-
Kronemann to depose the three witnesses “whose depositions
were noticed by plantiff’s previous counsel.” Pardo-
Kronemann v. Jackson, No. 05–626 (D.D.C. Oct. 2, 2007)
(order granting in part and denying in part Rule 56(f) motion).
The district court denied discovery of the e-mails. We review
this decision for an abuse of discretion. See Hussain v.
Nicholson, 435 F.3d 359, 363 (D.C. Cir. 2006). As we have
said, district courts enjoy “broad discretion in structuring
discovery,” Edmond v. U.S. Postal Serv. Gen. Counsel, 949
F.2d 415, 425 (D.C. Cir. 1991), and appellate courts “are
especially reluctant to interfere with [their] decisions
regarding their own day-to-day operations,” Hussain, 435
F.3d at 363.
 23
On appeal Pardo-Kronemann argues that the district court
erred by failing to explain its reasons for denying discovery of
the emails. In support, he points to our previous statement
that “[w]hen ‘we review a district court’s decision
. . . for an abuse of discretion, it is imperative that a district
court articulate its reasons.’” McCready v. Nicholson, 465
F.3d 1, 15 (D.C. Cir. 2006) (quoting EEOC v. Nat’l
Children’s Ctr., Inc., 98 F.3d 1406, 1410 (D.C. Cir. 1996)).
Here, however, the district court’s rationale, though not
explicitly stated, is quite apparent: the court allowed Pardo-
Kronemann to complete discovery that counsel had already
scheduled (the three depositions) but barred any new
discovery (the other two depositions and the emails). Cf.
Nat’l Children’s Ctr., 98 F.3d at 1410 (remanding where this
court was “unable to discern” the district court’s reasoning).
After ten months of discovery, including multiple extensions,
this decision hardly amounted to an abuse of discretion.

V.
We reverse the grant of summary judgment to HUD on
the retaliatory transfer claim, but affirm with regard to the
retaliatory AWOL claim and the denial of additional
discovery.

So ordered.
 WILLIAMS, Senior Circuit Judge, dissenting: My
colleagues appear to address the contentions of the defendant
Department of Housing and Urban Development with what
one might call a “magic words” approach, reminiscent of the
old writ system. They quote a passage from HUD’s brief in
district court, making what seems like a clear argument, and
then declare that it “says nothing about” the only topic it
discusses. Maj. Op. at 18. This enables the majority to apply
a notion of “adverse action” for purposes of retaliation claims
under Title VII that is both unprecedented and entirely
unjustified by reference to the text, purpose, or normal
operation of the statute.

In its papers before the district court, HUD took a prosaic,
obvious, almost inevitable position on the proper baseline for
resolving whether plaintiff Pardo-Kronemann’s allegedly
retaliatory reassignment was an “adverse action.” It
advocated simply comparing his new position with the one he
held at the time of the reassignment in January 2002:

Plaintiff alleges that the reassignment was an adverse
action because it resulted in a change in his duties as an
attorney. (“. . . Plaintiff was reassigned from his position
as an attorney within OGC [Office of General Counsel] to
his current position as a de facto program analyst.” See
Comp. ¶ 25.) The record reflects that from March until
December 2001, Plaintiff had no job description and it is
unclear to whom exactly he was to have been reporting
substantively. See Weidenfeller Declaration, Exh. 11.
He was performing no work for OGC, but OGC
maintained his time and attendance records. Id. ¶ 7. At a
management meeting, it became clear that plaintiff was
not performing any work for the office of the Secretary
after his return from [a position at the Inter-American
Development Bank to which he had been “detailed” for a
period of HUD-paid work]. Id. ¶ 8.
 2

Def.’s Mem. in Supp. of Mot. for Summ. J. 7, Joint Appendix
(“J.A.”) 1465 (emphasis in original).

The passage seems perfectly plain. The first sentence sets
out what the brief writer perceives to be plaintiff’s adverse
action claim (namely, that the reassignment produced a
“change in his duties”), and the second, third and fourth
sentences point to what plaintiff was actually doing at the time
of the reassignment—specifically, no work for the Office of
General Counsel, and indeed not much else. I cannot grasp
how this can be characterized as saying “nothing about which
pre-transfer duties provide the relevant baseline.” See Maj.
Op. at 18.

To understand the parties’ positions, as well as the
majority’s view, it’s helpful to step back and briefly consider
the chronology of events concluding in Pardo-Kronemann’s
allegedly retaliatory transfer:

Sometime in 1998: Pardo-Kronemann is assigned to
the Program Compliance Division of HUD’s Office of
General Counsel (“OGC”).

April 1999: Pardo-Kronemann files the last of
several complaints of discrimination or retaliation.

November 1999: Pardo-Kronemann is “detailed” to
the Inter-American Development Bank (“IDB” or “the
Bank”) for six months, at his request. During his time
there, ultimately extended until November 2000, he
works on a handbook for creation of primary and
secondary mortgage markets in developing nations.

November 2000: Pardo-Kronemann seeks and is
granted unpaid leave from HUD; he continues to work on
the handbook.
 3

March 2001: Pardo-Kronemann returns to HUD,
where he is nominally assigned to OGC but is physically
in the Office of the Secretary. He continues to work on
the handbook, as well as on the issue of how HUD could
be more effective in the international arena; he does no
standard OGC legal work.

June 2001: Discussions allegedly begin among
higher-level persons at HUD regarding possible
assignment of Pardo-Kronemann to HUD’s Office of
International Affairs (“OIA”).

October 15, 2001: Papers are executed for
reassignment of Pardo-Kronemann to OIA—the action
that he challenges as retaliatory.

October 31, 2001: Pardo-Kronemann turns in the
handbook and, for the first time so far as the record
discloses, states that he “would welcome legal
assignments.”

The majority does not assess “adverse action” by
reference to the benchmark claimed by HUD (i.e., Pardo-
Kronemann’s role at the agency in 2001, before his
assignment to OIA). Instead, it looks to the OGC job that
Pardo-Kronemann occupied from 1998 until November 1999,
and which he relinquished of his own volition more than two
years before the challenged transfer. See Maj. Op. at 13.

In defense of this surprising view, the majority insists it is
doing nothing more than acquiescing in HUD’s own
interpretation of how Title VII’s retaliation provision applies
to the facts of this case—however contrary to the agency’s
interest that interpretation may be. Maj. Op. at 13. But the
majority is factually wrong: HUD cannot remotely be said to
have tied its fate to the position the majority ascribes to it, let
 4

alone to have done so sufficiently unambiguously to justify
our departing from the law in deference to a senseless
alternative.

The passage I’ve quoted at length above clearly treats the
“adverse action” inquiry as turning on differences between
Pardo-Kronemann’s new job and the one he was doing when
he was transferred. My colleagues disagree. In their view,

this passage merely recites the facts and summarizes
Pardo-Kronemann’s claim as a general matter—that the
transfer from OGC to OIA had a negative impact on his
duties as an attorney. The paragraph says nothing about
which pre-transfer duties provide the relevant baseline
....

Maj. Op. at 17-18. Nothing? The paragraph, like most legal
arguments, begins by referencing a legal standard: “Plaintiff
alleges that the reassignment was an adverse action because it
resulted in a change in his duties.” Def.’s Mem. in Supp. of
Mot. for Summ. J. 7, J.A. 1465 (emphasis in original). Then it
offers facts that are obviously selected to show that the legal
standard cannot possibly be satisfied: “The record reflects that
from March until December 2001, Plaintiff had no job
description . . . . He was performing no work for OGC . . . .
Plaintiff was not performing any work for the office of the
Secretary.” Id.

The meaning of these words seems inescapable. The
defendant is saying that Pardo-Kronemann can’t be said to
have suffered an adverse action, because an adverse action
requires adversity compared with some baseline, and the
proper baseline in Pardo-Kronemann’s case was the position
he occupied “from March until December 2001,” in which he
did “no work.”
 5

As it happens, Pardo-Kronemann never took issue with
that formulation. Rather, he fudged the matter, at best
implicitly adopting the position that the majority now imputes
to HUD, namely that the proper baseline is his work at OGC
before November 1999, when he was “detailed” to the IDB at
his request. He pointed to “his prior position as an attorney in
OGC,” Pl.’s Mem. in Opp. to Mot. for Summ. J. 6, J.A. 1006,
and went on to disparage the job in OIA as possibly not even
being “a bona fide legal position,” id. Given the
disparagement, his OGC reference is likely intended to allude
to the pre-November 1999 era when he was apparently doing
conventional OGC work. In response, HUD re-asserted its
view that the proper benchmark was Pardo-Kronemann’s
position at the time of reassignment:

Plaintiff was placed in the OIA, when it was discovered
that for several months after his return, from a detail at
the IDB, he had not been reporting to any particular
component of the Department and that OIA would be an
appropriate match. . . . Unfortunately, from the beginning,
he resisted the change . . . In Lester v. Natsios, 290 F.
Supp. 2d 11, 29-30 (D.D.C. 2003), the court recognized
that changes in responsibility are not adverse actions but
constitute “ordinary tribulations of the workplace” which
employees should expect. See also Jones v. Billington,
12 F. Supp. 2d 1, 13 (D.D.C. 1997) (“not everything that
makes an employee unhappy is an actionable adverse
action”) aff’d without opn., 1998 WL 389101 (D.C. Cir.
1998).

Def.’s Reply in Supp. of Mot. for Summ. J. 6-7.

The majority offers just over three pages worth of reasons
explaining why HUD cannot possibly be understood to have
said what it said. Maj. Op. at 16-20. First is the observation
that HUD conceded that OGC kept Pardo-Kronemann’s time
 6

and attendance records upon his return to the agency. Maj.
Op. at 18. This is true. It is also completely consistent with
the conclusion that the “adverse action” baseline the agency
advocated was what Pardo-Kronemann was doing on his
return to the agency, when OGC was keeping his time and
attendance records.

Next, the majority is troubled by the fact that in the
passages of HUD’s district court filings that I’ve highlighted,
the agency does not mention the handbook—which, in Pardo-
Kronemann’s view, was his principal project in 2001. See
Appellant’s Br. at 8-9; Maj. Op. at 19 (“Again saying nothing
about the handbook . . .”); id. (“[W]e can find no argument in
the quoted paragraph—or, for that matter, anywhere else in
the reply brief—that the appropriate baseline consists solely
of the IDB handbook.”). The reason is simply that the
government’s papers made a stronger claim as to Pardo-
Kronemann’s activities in the critical period, arguing that in
2001, he “was performing no work for OGC . . . [or] for the
Office of the Secretary,” see Def.’s Mem. in Supp. of Mot. for
Summ. J. 7, J.A. 1465. But in evaluating a motion for
summary judgment we take the facts in the light most
favorable to the non-moving party. Obviously a neutral judge
is hardly bound to a summary-judgment seeker’s rather
aggressive reading of the conflicting materials. The point is
that HUD looked to that period as a baseline for assessing
adversity.

Finally, the majority observes that “HUD itself compared
the OIA position to Pardo-Kronemann’s OGC work more
generally.” Maj. Op. at 18. Assuming arguendo that this is
true—and, moreover, that the phrase “OGC work more
generally” should be construed to cover the work that Pardo-
Kronemann did at OGC from 1998-1999—it shows nothing
more than that HUD was covering its bases. While the
agency explicitly advocated use of the standard “adverse
 7

action” baseline (to wit, the employee’s job at the time of the
supposed retaliation), it also made a variety of contingent
arguments: even if the appropriate baseline were the job
Pardo-Kronemann voluntarily abandoned two years before the
putative adversity struck rather than the one he was doing
when it happened, the new job still couldn’t be said to amount
to a step down.

In fact, even if one made the further assumption that the
agency didn’t frame its alternative arguments as such, but
simply offered conflicting perspectives on the “baseline”
issue, one still wouldn’t be able to reach the conclusion the
majority adopts. In this scenario, the panel would need to
choose for itself which of the two legal theories to follow,
presumably on the basis of which was consistent with the law.
In no case would the proper judicial response be to
deliberately ignore one of the theories for no stated reason
other than a fictional contention that no conflict existed
between the parties.1

In reality, once we clear the alleged waiver out of the
way, selection of the proper baseline for resolving whether the
assignment was an adverse action seems quite
straightforward. The question of the “adversity” required for
an “action” to be retaliatory naturally depends on objective
differences between the conditions before and after the
change. See Burlington North. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 70 (2006) (referring to “the former and present

1
It is true, as the majority notes, that HUD’s brief on appeal
doesn’t offer a perspective one way or the other on the question of
what the proper baseline for comparison is in the “adverse action”
analysis. Neither, for that matter, does Pardo-Kronemann—an
omission the majority does not hold against him.
 8

duties”); Czekalski v. Peters, 475 F.3d 360, 364-65 (D.C. Cir.
2007).

It is fairly easy to rule out all of Pardo-Kronemann’s past
positions other than his assignment at the time of the transfer
to OIA.2 His OGC job from 1998 to November 1999, which
he left voluntarily, was one he had not occupied for over two
years before the allegedly retaliatory action. See Pl.’s
Statement of Material Facts in Dispute and Material Facts
Omitted by Def. (“Plaintiff’s Statement of Facts”) at 3, J.A.
1034 (asserting that HUD detailed Pardo-Kronemann to the
Bank pursuant to a settlement agreement). And the Bank stint
and the unpaid leave were clearly temporary arrangements.

Apart from HUD’s supposed waiver, the majority
attempts to support its approach solely by citation to a Federal
Circuit opinion, Hayes v. U.S. Postal Service, 390 F.3d 1373,
1377 (2004), which it quotes for the proposition that “an
employee continues to be the incumbent of the position from
which he was detailed.” Maj. Op. at 14. The quote from

2
By “assignment” I do not, of course, mean a particular
project on which Pardo-Kronemann was working upon his 2001
return to the agency, as the majority says I do. See Maj. Op. at 16
(“The dissent . . . compares Pardo-Kronemann’s new position at
OIA not to his position at OGC, but to his pre-transfer, temporary
work on the IDB handbook.”). I mean, obviously, the position he
was occupying at that time. The majority’s later statement that the
“dissent concedes that HUD has failed to argue that the handbook is
the relevant baseline,” Maj. Op. at 17, is very much in the spirit of
“When did you stop beating your wife?” It builds in a premise that
is disconnected from reality. No one involved in this case,
including me, has ever suggested that the “handbook” was itself a
job or an assignment in the relevant sense of being a position which
Pardo-Kronemann ever held.
 9

Hayes is linguistically accurate, but the case has nothing to do
with determining the baseline for evaluation of whether an
action is adverse for purposes of Title VII retaliation. Hayes
was a challenge by federal employees claiming that their
assignments, following the elimination of their prior positions,
violated civil service protections. The language the majority
quotes is from the court’s quotation of a Merit System
Protection Board decision on whether transfer to a temporary
detail constituted a protection-triggering demotion. See 390
F.3d at 1377 (quoting Dixon v. United States Postal Serv., 64
M.S.P.R. 445, 450 (1994)). Dixon, the MSPB decision, had
reasoned that a “detail by its very nature is temporary.” But,
assuming it makes sense to extend civil service doctrine to
Title VII, there are two fatal difficulties here. First, Pardo-
Kronemann’s “detail” to the IDB had concluded in November
2000, and he had since been either on leave or in work for the
Office of the Secretary that no party here characterizes as a
“detail.” Second, even if Pardo-Kronemann’s activities in the
international housing sphere from November 1999 through
October 2001 could be classified as a “detail,” the quoted
passages of civil service doctrine don’t address the status of a
two-year “detail” into a new field, made explicitly at the
employee’s request.

In the end, my colleagues offer no colorable answer to
the question their approach begs: why would we ask whether
a transfer left an employee worse off not vis-à-vis where he
was when it happened, but instead vis-à-vis a position he had
long since departed at his own request? As far as I am aware,
no case in this court or any other, published or unpublished,
has ever framed its Title VII “adverse action” analysis as a
function of the latter rather than the former inquiry.
 10

* * *

Once we select the standard baseline for determining
whether an action is adverse, it is clear that there is no genuine
issue of material fact whether Pardo-Kronemann can make out
a prima facie case of retaliation.

The issue before the court should be whether a jury could
reasonably find “material adversity,” see Burlington
Northern, 548 U.S. at 68 (emphasis in original), in Pardo-
Kronemann’s transfer from the position he occupied upon his
return to HUD in March 2001, to the position he occupied
starting in January 2002. The ultimate inquiry, of course, is
whether the challenged action “well might have dissuaded a
reasonable worker from making or supporting a charge of
discrimination.” See id. (internal quotation marks omitted).

By his own account (i.e., in the light most favorable to
him), Pardo-Kronemann spent the period from March until
October 2001 doing three work-related tasks: finishing the
handbook; drafting a memo about how HUD could be more
effective in the international area; and discussing with another
HUD employee a written history of OIA (a task that Pardo-
Kronemann had been assigned but which he did not work on
because the other employee claimed prior title to the project).
See Appellant’s Br. at 8-9. During this time, he was
technically part of HUD’s OGC, but was performing no
assignments for that office. See id. at 8; Plaintiff’s Statement
of Facts at 4-5, J.A. 1035-36. While Pardo-Kronemann
continued, through at least the early period after his return to
HUD in March 2001, “to request [a] second year of . . .
detail,” this time at the Inter-American Investment
Corporation, it was not until October 31, he says, that he
requested “legal” work. Appellant’s Br. at 8-9. By that time,
though, the allegedly retaliatory transfer was, in Pardo-
Kronemann’s view, well underway; he claims it had been
 11

hatched as early as June of that year, Reply Br. at 24, and in
any event no later than September, Appellant’s Br. at 11.3

Compared with his pre-existing slate of perks and
responsibilities, Pardo-Kronemann’s job in HUD’s Office of
International Affairs simply can’t be said to be a step down.
The new position came with the same grade and pay,
Plaintiff’s Statement of Facts at 7, J.A. 1038, and left Pardo-
Kronemann with the same formal title he had when he left
OGC in 1999 and kept when he came back in 2001: Attorney-
Advisor, see J.A. 1515. The job description provided, among
other things, that he was to “[c]onduct research of laws, legal
opinions, policies, regulations, and related legal analyses of
foreign governments and international organizations that serve
to impede the development of market forces in housing and
land development systems.” In other words, Pardo-
Kronemann was charged with continuing precisely the type of
work that he was performing when, he says, the agency

3
Whatever the role (if any) of an employee’s expressed
aspirations in assessing the “adversity” of an action, Pardo-
Kronemann’s October 31 expression of interest in garden-variety
legal work cannot render his assignment to the Office of
International Affairs—which was officially underway no later than
October 15—“adverse.” See E-mail from George Weidenfeller,
Deputy General Counsel, HUD, to Sinthea Kelly et al. (Oct. 15,
2001), J.A. 45 (“[P]lease prepare papers to reassign Jose Pardo
Kronemann to the HUD International Affairs Office.”). The
majority nevertheless sees something significant in the request.
Maj. Op. at 15. To be clear, Pardo-Kronemann’s claim in this case
is that the agency retaliated against him. The action he says the
agency took by way of retaliation was one the agency had
determined to take before he revealed his renewed interest in
conventional legal work; it escapes me how such an expression
could render the prior event retaliatory.
 12

decided to retaliate against him by transferring him to a new
department. The handbook regarding mortgage markets in
developing nations (the main work of his old job) was surely a
“comprehensive issue and research paper[ ] . . . . [regarding]
legal developments affecting housing and urban policies
abroad,” part of the work encompassed by the job description
for his new job. See id. If the agency effected any substantive
change from the status quo, it was a nominal expansion of the
array of tasks Pardo-Kronemann was executing during his
time back from the Bank; among his newly listed charges was
“[p]rovid[ing] advisory services, as requested, on questions of
law and interpretation of regulatory and administrative policy
in foreign government and multilateral bodies”—a form of
work quite distinct from the writing projects he carried out in
2001. See id.

Pardo-Kronemann has made a number of arguments why
these straightforward conclusions are either wrong or at least
too uncertain for summary judgment. None withstands
scrutiny.

First is the contention that the transfer could reasonably
be deemed adverse because the new job was not a “bona fide
legal position.” Pl.’s Mem. in Opp. to Mot. for Summ. J. 6,
J.A. 1006. The obvious flaw in this disparagement is that it is
no more true of the new job than of the old. In the old job,
Pardo-Kronemann reported to a policy advisor in the
Secretary’s office, working on a paper about mortgage
markets for eight months. In the new job, he reported to
another person, also outside the General Counsel’s office, in a
position designed for him to do virtually identical work.
Regardless of whether that work is characterized as “legal” or
 13

not,4 the inescapable conclusion is that the new job entailed no
diminution of work responsibilities; they were the same,
though potentially broader in the new position.

But, says Pardo-Kronemann, this is just an illusion. Even
if the new job description provided for a suite of duties
comparable to the ones he enjoyed before the transfer, the
reality of the new position was different: it consisted of low-
level research tasks, not on a par with his past handbook-
drafting or the new job description. Recording of Oral
Argument 6:38-6:53 (Feb. 4, 2010) (“[T]hey manufactured the
position description . . . and it had no connection to the reality
of his assignments. . . . He was doing low-level research.”).
The argument fails for two independent reasons. First, Pardo-
Kronemann didn’t make it in his motion in opposition to
summary judgment before the district court. He did offer the
bare assertion that “the position description does not
accurately describe Pardo-Kronemann’s duties,” Pl.’s Mem. in
Opp. to Mot. for Summ. J. 7, J.A. 1007—but that remark
comes in the middle of a three-page discussion of why the
new position relegated him to research rather than legal work.
See id. at 5-8, J.A. 1005-1008. Not only is the allegation
wholly unsupported by reference to any citation to the record,
but in context, it can only be read to argue that the portions of
the job description that require Pardo-Kronemann to provide
“advisory services, as requested, on questions of law,” among
similar tasks, are inconsistent with the work he was actually
assigned. This gets him nowhere. He was not providing
“advisory services . . . on questions of law” before the transfer

4
In fact, studying the development of primary and secondary
mortgage markets appears to be not only very important work, see,
e.g., Hernando de Soto, The Mystery of Capital: Why Capitalism
Triumphs in the West and Fails Everywhere Else (2000), but also
“legal” in many senses of the term.
 14

either, at least in the sense of advising line officials as to what
conduct was lawful.

Second, the “untrue job description” argument fails
because the record contains substantial evidence that the
assignments Pardo-Kronemann actually executed were, in
fact, undeniably comparable to his work on the handbook—
and no material evidence that they weren’t. So, for example,
his first task in the new position was to “analyze the Puerto
Rican housing laws and regulations as a guide to Latin
America.” Sorzano Dep. at 204 (Nov. 2, 2007), J.A. 1289.
Another assignment was to work on the question, apparently
fashionable in international policy circles, whether “there is
[a] legal right to housing in the sense that the government has
to provide [it] to every citizen.” Geraghty Dep. at 15 (Nov.
28, 2006), J.A. 1350. Neither the Sorzano testimony nor the
Geraghty testimony is susceptible of the interpretation that
there was a mismatch between Pardo-Kronemann’s job
description and job performance such that any change in his
work might be thought to represent “material adversity.” Nor
does any other evidence change the calculus.

Pardo-Kronemann also argues that, principal duties aside,
ancillary benefits of the new position were significantly
different from those of the old. But he offers few illustrative
examples, none the least bit telling. One is that in OGC he
could travel to conferences to further his legal career, while he
couldn’t in OIA. But again, whatever force the contention
might theoretically have, Pardo-Kronemann himself conceded
that, in fact, he didn’t travel for his previous work at HUD.
See Pardo-Kronemann Dep. at 135 (June 30, 2006), J.A. 1510.

Another imaginable diminution of ancillary benefits
might be that while Pardo-Kronemann performed the same
work, he did so in a different department. Assuming
arguendo that such a change might constitute “material
 15

adversity,” it simply isn’t the case that, in the relevant
analysis, Pardo-Kronemann went from doing “non-legal”
work as a full-fledged part of the Office of General Counsel to
doing such work someplace else. Instead, he went from doing
a certain kind of work, reporting to a senior policy advisor in
the Office of the Secretary, to doing work of the same kind,
reporting to a more senior person in the Office of International
Affairs.5 See Def’s Mem. in Supp. of Mot. for Summ. J. 8,
J.A. 1466 (making the uncontroverted point that following his
transfer, Pardo-Kronemann reported to a higher ranking
supervisor than he had before).

A contrary view amounts to the position that it is always
a jury question whether a lateral transfer is an adverse action.
After all, a department switch will always alter future paths to
direct (rather than lateral) advancement. And yet even our
farthest-reaching cases have refrained from adopting any such
per se rule. See, e.g., Czekalski, 475 F.3d at 365 (“Whether a
particular reassignment of duties constitutes an adverse action
for purposes of Title VII is generally a jury question.”
(emphasis added)); see also Baloch v. Kempthorne, 550 F.3d
1191, 1196 n.1 (D.C. Cir. 2008) (“Some courts of appeals
have interpreted the adverse action requirement more
narrowly than Czekalski.”). Thus we have multiple times
affirmed summary judgments granted for want of an adverse
action where an employer had shifted the plaintiff laterally
after protected activity. See, e.g., Jones v. District of
Columbia Dep’t of Corrections, 429 F.3d 276, 281 (D.C. Cir.
2005); Brown v. Brody, 199 F.3d 446, 457 (D.C. Cir. 1999);

5
The transfer, moreover, hardly isolated him from the Office
of General Counsel altogether. His first assignment in International
Affairs actually originated from OGC. See Affidavit of Jose Pardo-
Kronemann at 8 (Sept. 20, 2002), J.A. 1409.
 16

Johnson v. Williams, 117 Fed. Appx. 769, 771-72 (D.C. Cir.
2004) (unpublished); Sussman v. Powell, 64 Fed. Appx. 248,
249 (D.C. Cir. 2003) (unpublished).

Yet another argument is that Pardo-Kronemann’s
reassignment to International Affairs was adverse because he
had an agreement with HUD to place him in a “mutually
agreeable position” upon his return from the Bank, and that
HUD breached that agreement by placing him somewhere he
didn’t want to be. See Letter from Howard B. Glaser,
Counselor to the Secretary, HUD, to Jose Pardo-Kronemann,
July 21, 1999, at 1, J.A. 1492. Even if such an agreement had
existed—notwithstanding the author’s proviso, two sentences
after the “mutually agreeable” language, that “[t]his letter and
our discussions are not a settlement or negotiation of any
formal complaints you may have, but my attempt to help out
an employee who is looking for a more challenging and
satisfying work assignment”—it certainly didn’t grant to
Pardo-Kronemann a perpetual veto over all future
employment assignments. To the extent, then, that HUD had
committed to allow Pardo-Kronemann to occupy a “mutually
agreeable position” upon his return from his detail, the agency
discharged that obligation by giving him eight months in
which to finish the project he’d been working on for the Bank.
And, of course, there is literally nothing in the record beyond
Pardo-Kronemann’s conclusory assertions to suggest that the
letter should be construed as an agreement at all. Nor is there
any law suggesting that breach of a non-binding agreement
with one who engaged in protected activity, standing alone,
could ever qualify as adverse action.6

6
So far as appears, Pardo-Kronemann makes no claim for
breach of contract, a cause of action that, if valid, would on his
 17

Finally, Pardo-Kronemann sees great significance in the
fact that his boss at International Affairs, Ms. Sorzano,
believed that in his new role, Pardo-Kronemann would not be
“fully using [his] skills and legal education.” See Appellant’s
Br. at 54; Pl.’s Mem. in Opp. to Mot. for Summ. J. 6, J.A.
1006. But this is analytically irrelevant to the “adverse
action” inquiry. The question is whether Pardo-Kronemann
was made worse off by the transfer compared with where he
was before the transfer—not whether, after the transfer, he
was using his legal skills to the fullest possible extent. As it
happens, before the transfer he was doing work that was in a
sense legal, and in a sense pure research. After the transfer,
the same was true. Nothing Ms. Sorzano said could allow a
reasonable jury to conclude otherwise.

We’ve previously noted, repeatedly, that

The clear trend of authority . . . is to hold that a purely
lateral transfer . . . that does not involve a demotion in
form or substance, cannot rise to the level of a materially
adverse employment action. A survey of the relevant
case law shows that the authority requiring a clear
showing of adversity in employee transfer decisions is
both wide and deep.

Brown, 199 F.3d at 455-56 (citations and internal quotation
marks omitted), quoted in haec verba in Jones, 429 F.3d at
281. There is no plausible, let alone genuine, issue of material
fact whether Pardo-Kronemann’s transfer was a “demotion in
form or substance” compared with the position he occupied
upon his return to HUD from the Bank. Cf. Czekalski, 475

theory give him exactly he what he wants without the bother of
proving retaliation.
 18

F.3d at 364-65. His numerous arguments to the contrary are
smoke and mirrors.