From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...
Aug. 2 — A Hispanic federal employee whose lateral transfer requests were denied can't pursue a discrimination lawsuit because the denials weren't “adverse” employment actions, a divided U.S. Court of Appeals for the District of Columbia Circuit ruled ( Ortiz-Diaz v. Dep't of Hous. and Urban Dev., 2016 BL 248844, D.C. Cir., No. 15-5008, 8/2/16 ).
The decision illustrates that it is difficult to show adverse action if a requested transfer wouldn't change an employee's pay or benefits. It also shows federal judges can sharply disagree on how summary judgment standards apply under Title VII of the 1964 Civil Rights Act.
In a 2-1 decision, the court said Samuel Ortiz-Diaz lacks race and national origin bias claims against the Department of Housing and Urban Development, because an employer's denial of lateral transfers generally isn't an adverse job action.
Ortiz-Diaz can't show any special circumstances, such as that the transfers would have increased his promotion opportunities, to justify an exception to the usual rule, Judge Karen LeCraft Henderson wrote in an opinion joined by Judge Brett M. Kavanaugh.
In dissent, Judge Judith W. Rogers said Ortiz-Diaz raised a genuine factual dispute over whether the denied jobs would have improved his advancement opportunities.
A senior special agent in HUD's Office of Inspector General in Washington, Ortiz-Diaz in October 2010 requested transfer to an investigative position in Albany, N.Y., or in Hartford, Conn., under the agency's voluntary transfer program.
That program allows employees to seek transfers to desired duty stations, paying their own relocation costs, for reasons other than the agency's staffing needs. Ortiz-Diaz wanted to move closer to his wife, who worked in Albany.
Ortiz-Diaz's supervisor denied his transfer requests. Ortiz-Diaz sued under Title VII, alleging the requests were denied because he is Hispanic.
A federal district court granted summary judgment to HUD, saying that “absent extraordinary circumstances,” denial of a “purely lateral transfer” isn't adverse action.
Ortiz-Diaz argued a reasonable jury could find the transfer denials were a “materially adverse action.”
The denials affected his career opportunities because his supervisor in Washington allegedly discriminated against Hispanics and he would have worked for a Hispanic supervisor in Albany, Ortiz-Diaz argued. The opportunity to perform “high-profile work” in Albany or Hartford also would improve his promotion prospects, Ortiz-Diaz said.
But his desire to work for another, allegedly unbiased, supervisor is “irrelevant” to the adverse action inquiry, the appeals court said.
Ortiz-Diaz said the Albany supervisor wouldn't have issues working with Hispanic men. “If such a declaration were sufficient to raise a jury issue, our materiality requirement would be an empty vessel indeed,” the court said.
Ortiz-Diaz offered only “a bare assertion” that his requested transfers would have enhanced his promotion prospects, the court said. That is insufficient to except him from the usual rule that denial of a lateral transfer isn't adverse action, the court said.
In a concurring opinion, Kavanaugh said precedent supports a judgment for HUD but that he is skeptical about the prior 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,” he wrote.
Rogers in dissent said the majority “stumbles badly” in describing a district court's proper role when considering summary judgment.
Ortiz-Diaz presented evidence not merely that he would be more satisfied working in Albany or Hartford, but that he would be better positioned to advance, the dissent said.
His sworn declarations about the professional advantages of the requested moves, which HUD didn't dispute, raise a jury issue that denial of the transfers was an adverse action, Rogers wrote.
Ortiz-Diaz's lawyer at Brown Gaines LLC wasn't available for comment Aug. 2. The U.S. attorney's office in Washington, which represented HUD, declined to comment.
To contact the reporter on this story: Kevin McGowan in Washington at email@example.com
To contact the editor responsible for this story: Susan J. McGolrick at firstname.lastname@example.org
Text of the opinion is available at http://www.bloomberglaw.com/public/document/SAMUEL_ORTIZDIAZ_APPELLANT_v_UNITED_STATES_DEPARTMENT_OF_HOUSING_.
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)