Ortiz-Diaz v. U.S. Dep't of Hous. & Urban Dev.

• Decision Date: 02 August 2016
• Docket Number: No. 15-5008,15-5008
• Parties: Samuel ORTIZ-DIAZ, Appellant v. UNITED STATES DEPARTMENT OF HOUSING & URBAN DEVELOPMENT, OFFICE OF INSPECTOR GENERAL, Appellee
• Court: U.S. Court of Appeals — District of Columbia Circuit

867 F.3d 70

Samuel ORTIZ-DIAZ, Appellant
v.
UNITED STATES DEPARTMENT OF HOUSING & URBAN DEVELOPMENT, OFFICE OF INSPECTOR GENERAL, Appellee

No. 15-5008

United States Court of Appeals, District of Columbia Circuit.

Argued March 14, 2016
Decided August 2, 2016
Reissued August 11, 2017

Eden Brown Gaines, Washington, argued the cause and filed the briefs for appellant.

Alexander D. Shoaibi, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief was R. Craig Lawrence, Assistant U.S. Attorney.

Before: Henderson, Rogers and Kavanaugh, Circuit Judges.

Opinion concurring in the judgment filed by Circuit Judge Henderson.

Concurring opinion filed by Circuit Judge Rogers.

Concurring opinion filed by Circuit Judge Kavanaugh.

Rogers, Circuit Judge

This is a Title VII appeal from the grant of summary judgment to the government and the denial of a motion to compel the production of evidence. Samuel Ortiz-Diaz was a criminal investigator in the Office of the Inspector General at the U.S. Department of Housing and Urban Development. Pursuant to the Office's voluntary transfer program whereby employees could request transfer to a different location, at no cost to the government, Ortiz-Diaz requested transfers that would have improved both his professional advancement and personal circumstances. Specifically, he sought to move away from a supervisor whom he believed was biased against him and other minorities, to a field office that would afford him valuable experience and allow him to live in or closer to Albany, New York, where he and his wife maintained their home. His requests were summarily denied by that same supervisor, despite the fact that other, non-minority employees had routinely been granted similar transfers.

Ortiz-Diaz sued the Department, alleging unlawful race and national origin discrimination under Title VII, 42 U.S.C. §§ 2000e et seq. The district court granted summary judgment on the ground that Ortiz-Diaz failed to offer sufficient evidence that he suffered an adverse employment action. Ortiz-Diaz v. United States Dep't of Hous. & Urban Dev. , 75 F.Supp.3d 561, 568 (D.D.C. 2014). This court, over a dissent, affirmed, Ortiz-Diaz v. United States Dep't of Hous. & Urban Dev. , 831 F.3d 488, 493 (D.C. Cir. 2016), and Ortiz-Diaz filed a petition for rehearing en banc . Before that petition was resolved, the original three-judge court decided sua sponte to reconsider the case and vacated its opinion. We now conclude upon further consideration that nothing in our Title VII precedent would bar Ortiz-Diaz from proceeding to trial and that he has otherwise proffered sufficient evidentiary support to show summary judgment was inappropriate. Accordingly, we reverse and remand his case to the district court for further proceedings.

867 F.3d 72

I.

On appeal from the grant of summary judgment, the court must view the evidence in the light most favorable to Ortiz-Diaz as the non-moving party, drawing all reasonable inferences in his favor. See, e.g. , Tolan v. Cotton , ––– U.S. ––––, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014) ; Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The following factual background is drawn primarily from two sworn declarations submitted by Ortiz-Diaz in opposing the Department's motion for summary judgment. See generally Pl.'s Decl. in Support of his Opp'n to Def.'s Mot. for Summ. J. ("Ortiz-Diaz Decl."); Pl.'s Supp. Decl. in Support of his Opp'n to Def.'s Mot. for Summ. J. ("Ortiz-Diaz Supp. Decl.").

A.

Prior to working at HUD's Washington, D.C. headquarters, Ortiz-Diaz had been assigned to its Hartford, Connecticut location in order to be closer to his wife, with whom he lived in Albany, New York. His 2009 transfer to Washington was intended to enhance his career prospects, and indeed it came with a promotion to senior special agent, but Ortiz-Diaz never abandoned the hope of returning to a position in Albany, where the couple continued to maintain a home they owned.

In Washington, D.C., Ortiz-Diaz worked in close proximity to Assistant Inspector General John McCarty, who, although not Ortiz-Diaz's immediate supervisor, made personnel decisions and had the ability to affect Ortiz-Diaz's advancement within the Office. McCarty, for instance, was the ultimate decisionmaker regarding employee promotions. He also had to approve all transfer requests under the Office's transfer program. McCarty had previously exercised his transfer authority over Ortiz-Diaz; shortly after Hurricane Katrina, McCarty involuntarily transferred Ortiz-Diaz and an African-American investigator to Mississippi, over Ortiz-Diaz's protest, while non-minority investigators who similarly protested were not transferred.

Upon his arrival in the Washington, D.C. headquarters, Ortiz-Diaz soon observed incidents that suggested a discriminatory work environment was fostered by McCarty. He heard McCarty refer to the "hired help," which he understood as a derogatory reference to minority employees; he witnessed McCarty referring to Latino employees by the same name, or by the names of other Latino employees, claiming that Latinos "all look alike;" and he learned of discrimination complaints filed against McCarty by other minority employees. Ortiz-Diaz Decl. ¶ 7. A former co-worker said he left HUD as a direct result of his dealings with McCarty, whom he believed was biased against minority men like himself. According to the former co-worker, it was "common knowledge that McCarty repeatedly denied and/or attempted to deny promotion opportunities to minorities." Letter from Patrick Jefferson to Eden Gaines Brown at 1.

As a result, Ortiz-Diaz came to the conclusion that his career would suffer if he remained in close proximity to McCarty at headquarters. Believing that a return to the field would offer valuable experience and establish relationships with field supervisors who could support his future promotional efforts, he began exploring his prospects for a transfer. He identified opportunities in Albany and Region 1 (New England), where he would be supervised by Special Agent in Charge Rene Febles. Febles and others working in Region 1 informed Ortiz-Diaz of the important, high-profile work done there that needed the attention of capable agents. This was in contrast to other, underperforming regions

867 F.3d 73

that were generally viewed unfavorably at headquarters, such that Ortiz-Diaz believed his career would suffer if he were to transfer there, as McCarty had previously recommended. Febles indicated to Ortiz-Diaz that he could use another agent, that he thought Ortiz-Diaz would be a good fit, and that it would be acceptable for Ortiz-Diaz to work either from his Albany home or from the Department's Albany office. Although there were no regularly stationed investigators in the Albany office, it was routine practice for investigators to work remotely, particularly given that the nature of their work often required them to work in the field conducting interviews and working alongside law enforcement.

Pursuant to the Department's no-cost voluntary transfer program, Ortiz-Diaz placed his name on a list of agents requesting transfer and indicated Albany as his preferred destination. That program, which does not guarantee that any request will be approved, is to be administered "without regard to race, sex, religion, color, national origin, age or disability." Office of Inspector Gen., Dep't of Housing & Urban Dev., Merit Staffing Plan at 7 (Nov. 2010); see Trans World Airlines, Inc. v. Thurston , 469 U.S. 111, 120–21, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985). The program had previously enabled non-minority employees to transfer between offices, and in some of those instances, new positions were created in order to facilitate the requested transfers. McCarty was involved in each of those decisions.

Ortiz-Diaz, having learned of an additional opening in Hartford, approached his immediate supervisors to discuss transfer but they advised him to ask McCarty directly for a transfer to Albany or Hartford. McCarty denied both requests without explanation. Over the course of this litigation, McCarty has since stated that the denials resulted from the lack of an investigative office in Albany and the lack of an open position in Hartford, even though many investigators were allowed to work remotely and the Hartford position was filled shortly after Ortiz-Diaz's transfer request was denied. Ortiz-Diaz resigned in 2011 three months after his transfer requests were denied, leaving the Office where he had worked since 1998 to accept a lower-paying position elsewhere in the Department.

B.

To succeed on his Title VII claims, Ortiz-Diaz was required to show, among other things, that he suffered an adverse employment action. Ginger v. District of Columbia , 527 F.3d 1340, 1343 (D.C. Cir. 2008). "Purely subjective injuries, such as dissatisfaction with a reassignment, or public humiliation or loss of reputation," will not suffice. Forkkio v. Powell , 306 F.3d 1127, 1130 (D.C. Cir. 2002). Instead, a plaintiff denied a purely lateral transfer must show some other materially adverse consequence affecting the terms, conditions, or privileges of employment or future...