# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 20, 2020 Decided February 19, 2021

No. 19-7098

M ARY E. C HAMBERS , A PPELLANT

v.

D ISTRICT OF C OLUMBIA , A PPELLEE

Appeal from the United States District Court for the District of Columbia (No. 1:14-cv-02032)

David A. Branch argued the cause and filed the briefs for appellant. Johnnie L. Johnson III entered an appearance.

Eric S. Dreiband , Assistant Attorney General, U.S. Department of Justice, Tovah Calderon and Anna M. Baldwin

, Attorneys, Jennifer S. Goldstein , Associate General Counsel, Equal Employment Opportunity Commission, and Sydney A.R. Foster , Assistant General Counsel, were on the brief for amicus curiae United States of Americ a in support of appellant.

Megan Browder , Attorney, Office of the Attorney General for the District of Columbia, ar gued the cause for appellee. On2

the brief were Karl A. Racine , Attorney General, Loren L. AliKhan , Solicitor General, Caroline S. Van Zile , Principal Deputy Solicitor General, Carl J. Schifferle , Deputy Solicitor General, and Holly M. Johnson , Senior Assistant Attorney General.

Before: T ATEL and G ARLAND *, Circuit Judges , and G INSBURG , Senior Circuit Judge

. Opinion for the Court filed P ER C URIAM

. Concurring opinion filed by Circuit Judge T ATEL and Senior Circuit Judge G INSBURG

.

P ER C URIAM : Over the years, the District of Columbia’s Office of the A ttorney General (OAG) denied Mary Chambers’s multiple requests for a lateral transfer to a different unit within OAG. Chambers allege s that under T itle VII of the Civil Rights Act of 1964, those lateral transfer denials constituted unlawful sex di scrimination and unlawful retaliation for filing discrimination charges with the Equal Employment Opportunity Commission (EEOC). The district court, relying on circuit preced ent, granted summary judgment to the District because Chambers failed to show materially adverse consequences arising fr om the denials of her purely lateral transfer requests. For the reasons set forth below, we affirm.

I. In 2000, Chambers became a Support Enforcement Specialist within OAG’s Child Support Division. Although

* Judge Garland was a member of th e panel at the time this case was argued but did not participate in the final disposition of the

case.3
initially assigned to the Intersta te Unit, Chambers later sought transfers to the Intake Unit, also within OAG’s Child Support Division. Those requests were deni ed. Chambers filed a charge of discrimination with the EEOC in August 2010 based on those denials.

In September 2010, Chambers sent an e- mail to her supervisors, asking them to r econsider her transfer request. They denied her request th e next day, explaining that transferring her did “not fit into management’s immediate plans.” Joint Appendix (J.A.) 75. Chambers filed another charge of discrimination with the EEOC in March 2011, alleging that the transfer denial constituted sex discrimination and retaliation under Title VII. Charge of Discrimination, J.A. 101.

In September 2011, Chambers again asked her supervisors for a transfer. J.A. 103. This time , Chambers offered to switch positions with an employee in the Intake Unit. Id. Hours later, Chambers’s Division Directordenied this request too. Id.

In 2014, Chambers sued the District of Columbia, alleging gender discrimination under Title VII. Following discovery, the district court granted summa ry judgment to the District. Chambers v. District of Columbia , 389 F. Supp. 3d 77 (D.D.C. 2019). The court found that her di scrimination and retaliation claims arising from the denial of lateral transfers were not actionable under circuit law because she “failed to show that a genuine issue of material fact exist[ed] as to whether she suffered an adverse action.” Id. at 93. This appeal followed and is limited to the discrimination a nd retaliation claims associated with the lateral transfer denials.

Summary judgment is appropria te only if “there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see4
Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247–48 (1986). A dispute about a material fact is not “genuine” unless “the evidence is such that a reasona ble jury could return a verdict for the nonmoving party.” Anderson , 477 U.S. at 248. We review the district court’s gran t of summary j udgment de novo. Minter v. District of Columbia , 809 F.3d 66, 68 (D.C. Cir. 2015).

II. Title VII makes it unlawful for private-sector employers to “discriminate against any indi vidual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). T itle VII also requires that “[a]ll personnel ac tions affecting employees . . . in those units of the Government of the District of Columbia having positions in the competitive service . . . shall be made free from any discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a). Although these provisions differ, our court has held that “the two contain identical prohibitions.” Czekalski v. Peters , 475 F.3d 360, 363 (D.C. Cir. 2007).

Title VII also includes an antiretaliation provision that makes it unlawful for a pr ivate-sector employer to “discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). Although Title VII contains no antiretaliation provision for federal government or District of Columbia employers, the Supreme Cour t has “assume[d] without deciding that it is unlawful for a federal agency to retaliate5
against a civil servant for complaining of discrimination.” Green v. Brennan , 136 S. Ct. 1769, 1774 n.1 (2016).

Discrimination and retaliation claims supported by circumstantial evidence are evaluated under the burden-shifting framework of McDonnell Douglas Corp v. Green , 411 U.S. 792 (1973). See Walker v. Johnson , 798 F.3d 1085, 1091 (D.C. Cir. 2015). “A plai ntiff must fi rst establish her prima facie case.” Id. To do so, the plaintiff must “allege she is part of a protected clas s under Title VII, she suffered a cognizable adverse employment action, and the action gives rise to an inference of discrimination.” Id. Once the plaintiff clears that hurdle, the “burden shifts to the employer to identify the legitimate, non-discriminator y or non-retaliatory reason on which it relied in taking the complained-of action.” Id. at 1092. And if the defendant satisfies that burden, the plaintiff, to defeat summary judgment, must produce “sufficient evidence for a reasonable jury to find that the employer’s asserted nondiscriminatory or non -retaliatory reason was not the actual reason and that the employer in tentionally discriminated or retaliated against the employee.” Id. (internal quot ation marks omitted).

The threshold question in this case is whether Chambers established that she suffered an adverse employment action. As the district court correctly note d, generally “[t]he standard for what constitutes an adverse action differs unde r Title VII’s anti-discrimination and an ti-retaliation provisions.” Chambers

, 389 F. Supp. 3d at 92. The dist rict court also correctly described our circuit precedent regarding whether a lateral transfer—or denial thereof—without diminution in pay or benefits qualifies as an adverse action, which applies the same standard under Title VII’ s antidiscrimination and antiretaliation provisions. Id. at 93. Specifically, in Brown v. Brody , 199 F.3d 446 (D.C. Cir. 1999), our court held that for6
cases involving purely lateral transf ers, “a plaintiff . . . does not suffer an actionable injury unless there are some other materially adverse consequences affecting the terms, conditions, or privileges of he r employment or her future employment opportunities such th at a reasonable trier of fact could conclude that the plai ntiff has suffered objectively tangible harm.” Id . at 457.

Chambers urges us to revisit Brown ’s interpretation of Title VII’s antidiscrimination pr ovision because, she argues, it is incompatible with the plai n text of that provision and inconsistent with a later Supreme Court decision, Burlington Northern & Santa Fe Railway Co. v. White , 548 U.S. 53, 64–65 (2006). Of course, “[o]ne three- judge panel does not have the authority to overrule another th ree-judge panel of the court.” LaShawn A. v. Barry , 87 F.3d 1389, 1395 (D.C. Cir. 1996). We shall therefore evaluate Ch ambers’s discrimination and retaliation claims under the same standard the district court applied, and we reach the same conclusion: no reasonable jury could conclude that Chambers suffered materially adverse consequences associated with the denial of her lateral transfer requests for purposes of her disc rimination or retaliation claim.

Discrimination Claim Chambers makes two argumen ts for why her transfer denial qualifies as an adverse action under Title VII’s antidiscrimination provisi on. Neither has merit.

First, she argues that the denial “resulted in lost awards and career advancement opportunities” because a male colleague who was transferred to her desi red unit subsequently received a promotion and incentive awards. Appellant’s Br. 9. But her only evidence to support this ar gument is a timeline of that male colleague’s career progres sion, which states that the colleague won awards after he was transferred out of the Intake7
Unit. J.A. 137. Based on this evidence alone, no reasonable jury could find that the District’s refusal to transfer her resulted in lost awards or career opportunities. See Burley v. National Passenger Rail Corp. , 801 F.3d 290, 301 (D.C. Cir. 2015) (noting “all of the relevant aspects of [a plaintiff’s] employment situation [must have been] nearly identical to those of the [comparator]” (int ernal quotation ma rks omitted)).

Second, Chambers argues that the denial forced her to remain in an “unbearable working condition.” Appellant’s Br. 17. In support, she claims she was “forced to manage a disproportionate amount of cases.” Id. But Chambers demonstrates no personal knowledge about the caseloads carried by her coworkers in her unit, and the record is silent on the caseload in her desired unit. See Fed. R. Civ. P. 56(c)(4) (requiring personal knowledge for affidavits used to support summary judgment). Chambers also argues that she ultimately had to take an extended medical leave because her working conditions were unbearable. But no record evidence supports her claim that something about her working environment required leave. Rather, the only record evidence regarding the reason for her leave is her depos ition statement that she had a stroke right before she took l eave. J.A. 31. Lastly, Chambers argues that her leave and paymen t processing was delayed, but she put forth no evidence showing that her unit placement caused or contributed to those de lays in processing paperwork.

We therefore agree with the district court that Chambers failed to raise a genuine issue of material fact as to whether the District’s denial of her transfer request qualified as an adverse action under Title VII’s an tidiscrimination provision.

Retaliation Claim Chambers offers only one argument for why her transfer denial qualifies as an adverse ac tion that would violate Title8
VII’s antiretaliation provisi on. Specifically, she argues that “when an employer acts to depr ive an employee of something it knew she values[,] it constitutes an adverse action.” Appellant’s Br. 15. And, according to Chambers, because the District knew of her de sire to transfer, the transfer denial was materially adverse.

Chambers correctly cites White for the proposition that an employee’s particular circumst ances may affect whether a retaliatory act resulted in mate rially adverse consequences. As the Court explained, “[a] sche dule change in an employee’s work schedule may make little difference to many workers, but may matter enormously to a young mother with school-age children.” White , 548 U.S. at 69. Chambers, however, overlooks the preceding paragr aph, where the Court tied the standard to that of a “ reasonable employee,” because the antiretaliation provision’s “standa rd for judging harm must be objective.” Id. at 68. Because Chambers has offered no evidence that reasonable employees in this context would find the denial of lateral transfer requests to be materially adverse, we agree with the district court that Chambers failed to raise a genuine issue of material fact as to whether the District’s denial of her transfer request qualifie d as an adverse action under Title VII’s antiretaliation provision.

III. For the foregoing reasons, the district court’s grant of summary judgment in favor of the District is affirmed.

So ordered

.T ATEL , Circuit Judge , and G INSBURG , Senior Circuit Judge , concurring.
We write separately to join our colleagues who believe it “long past time for the en banc court to . . . make clear that transfers denied because of race, color, religion, sex, or national origin are barred under Title VII,” and that “any action by an employer to deny an employment benefit on such grounds is an adverse employme nt action under Title VII.” Ortiz-Diaz v. U.S. Department of Housing & Urban Development , 867 F.3d 70, 81 (D.C. Cir. 2017) (Rogers, J., concurring) (citing Kavanaugh, J ., concurring). This case, moreover, is an appropriate vehicle for the en banc court to correct our court’s precedential interpretation of Title VII’s antidiscrimination provision. Cham bers urges us to overturn it; the issue is fully briefed; and the EEOC and United States Department of Justice (DOJ) filed an amicus brief “to inform the Court of its view that all discriminatory job transfers (and discriminatory denial s of job transfers) are actionable” under that provision, attaching its brief in opposition to certiorari filed in Forgus v. Esper , 141 S. Ct. 234 (Mem.) (2020). DOJ Chambers Br. 4; DOJ Brief at 8, Forgus v. Esper , 141 S. Ct. 234 (Mem.) (2020) (No. 18-942) (“DOJ Forgus Br.”); see also Appellant’s Br. 12–15.

For its part, the District took no explicit position on the proper interpretation of Titl e VII’s antidiscrimination provision in either its brief or at oral argument. Oral Arg. Rec. at 15:50–16:05. But in response to th is court’s order to advise us of its position, the District “agree[d] with the United States’ textual interpretation of the antidiscrimination provision with respect to lateral transfers.” Appellee’s Resp. to the Court’s November 20, 2020 Order at 1–2, Chambers v. District of Columbia , No. 19-7098 (Nov. 25, 2020) (“Appellee’s Resp.”). The District nonetheless argued “that this case should be affirmed on other grounds.” Id.2
We, however, see no value in allowing our court’s incorrect interpretation of a straightforward statutory provision, first set forth in Brown v. Brody , 199 F.3d 446 (D.C. Cir. 1999), to remain circuit precedent any longer. Brown held that a plaintiff bringing a Title VII discrimination claim based on a purely lateral transfer must establish “some other materially adverse consequences affecting the terms, conditions, or privileges of he r employment or her future employment opportunities” arising from the transfer, “such that a reasonable trier of fact could conclude that th e plaintiff has suffered objectively tangible harm.” Brown , 199 F.3d at 457. Without analyzing Title VII’s text, Brown relied on two sources: “the clear trend of author ity” in out-of-circuit cases, and the fact that the Supreme Court in Burlington Industries, Inc. v. Ellerth , 524 U.S. 742 (1998), “reinf orced” the approach of not treating purely lateral tr ansfers as adverse employment actions in the context of retaliation claims. Brown , 199 F.3d at 455–57 (internal quotation marks o mitted). We believe that Brown ’s interpretation is mistaken for multiple reasons.

First, the text of Title VII’s antidiscrimination provision, section 703(a)(1), contains no requirement of “materially adverse consequences” for proving a discrimination claim—a fact that Brown overlooked. Section 703(a) (1) flatly makes it unlawful for an employer “to discriminate against any individual with respec t to his compensation, terms, conditions, or privileges of employment, b ecause of such individual’s race, color, religion, sex, or na tional origin.” 42 U.S.C. § 2000e-2(a)(1). Because the key terms are undefined, we give “the term[s their] ordinary meaning.” Taniguchi v. Kan Pacific Saipan, Ltd. , 566 U.S. 560, 566 (2012). And under its ordinary meaning, “the phrase ‘terms, conditions, or privileges of employment’ in Title VII is an expansive concept.” Meritor Savings Bank, FSB v. Vinson , 477 U.S. 57, 66 (1986) (quoting 42 U.S.C. § 2000e-2(a)(1)). As DOJ’s brief in Forgus points3
out, “it is difficult to imagine a more fundamental ‘term[]’ or ‘condition[]’ of employment th an the position itself.” DOJ Forgus Br. 13 (quoting 42 U.S.C. § 2000e-2(a)(1)). Accordingly, “transferring an employee because of the employee’s [sex] (or denying an employee’s requested transfer because of the employee’s [sex]) plainly constitutes discrimination with respect to ‘compensation, terms, conditions, or privileges of empl oyment’ in violation of Title VII.” Ortiz-Diaz , 867 F.3d at 81 (Kavan augh, J., concurring) (quoting 42 U.S.C. § 2000e-2(a)(1)).

The absence of an expre ss textual requirement of “materially adverse consequences” in section 703(a)(1) is all the more significant given the in clusion of such a requirement in the very next provision, sec tion 703(a)(2). That provision makes it unlawful for an employer to “limit, segregate, or classify his employees . . . in any way which would deprive or tend to deprive any individua l of employment opportunities or otherwise adversely affect his status.” 42 U.S.C. § 2000e-2(a)(2) (emphasis added) . “Where Congress includes particular language in one secti on of a statute but omits it in another . . . it is generally presumed that Congress acts intentionally and purposely.” Keene Corp. v. United States

, 508 U.S. 200, 208 (1993).

This is not to say that Title VII’s antidiscrimination provision is limitless or that its te xt can be read as a “general civility code” for the American workplace. Oncale v. Sundowner Offshore Services, Inc. , 523 U.S. 75, 81 (1998). To the contrary, section 703(a)(1) lim its the kind of discrimination that is actionable to discrimi nation “with respect to . . . compensation, terms, conditi ons, or privileges of employment.” 42 U.S.C. § 2000e -2(a)(1). In other words, section 703(a)(1) “protects an individual only from employment-related discrimination.” Burlington Northern &4
Santa Fe Railway Co. v. White , 548 U.S. 53, 61 (2006) (emphasis added). Section 703(a )(1) also requir es that an employee establish that the employer “discriminate[d] because of

” a protected characteristic. 42 U.S.C. § 2000e-2(a)(1) (emphasis added). In practice, this means that a Title VII plaintiff must do far more than merely allege different treatment based on a prot ected characteristic.

Brown cannot remain circuit law for a second reason: given the Supreme Court’s decision in White , 548 U.S. 53, which limited the scope of the Court’s holding in Ellerth

, 524 U.S 742, Brown ’s interpretation of Title VII’s antidiscrimination provision now conflicts with Supreme Court precedent. In Ellerth , the Court dealt with the standard that applies to vicarious liability for hostile work environment claims under Title VII. Relying on agency law, the Court held that such liability is appropriate only “when the supervisor’s harassment culminates in a tangible employment action .” Id. at 765 (emphasis added). The question in Brown— whether purely lateral transfers are actiona ble under section 703(a)(1)

— is therefore distinct from the question in Ellerth

. Brown
, however, explained that the reasoning in Ellerth still broadly “reinforced” the idea that some tangible harm was required for a transfer or transfer denial to be actionable under Title VII. Brown , 199 F.3d at 456. At the time, this interpretation of Ellerth was not unreasonable given th at the Supreme Court has held that hostile work environm ent claims can be cognizable under section 703(a)(1), th e provision at issue in Brown. See Meritor Savings Bank , 477 U.S. at 66.

But the Supreme Court’s decision in White , seven years after Brown , has overtaken our court’ s reasoning in that case

. In White , the Supreme Court clarified that “ Ellerth did not discuss the scope of [Title VII’ s] general antidiscrimination provision.” Id. at 65. The Court also made clear that the5
purpose of Ellerth ’s “tangible empl oyment action” requirement was “only to ‘ident ify a class of [hostile work environment] cases’ in which an employer should be held vicariously liable (without an affirmative defense) for the acts of supervisors.” Id. at 64 (alteration in original) (quoting Ellerth , 524 U.S. at 760). Given White

, Brown ’s reading of Ellerth is no longer tenable.

The District reads White differently. In its post-oral argument filing, it argues that “the Supreme Court—rather than this Court” may be the “proper forum” to address the question of how White affects Title VII’s antidiscrimination provision. Appellee’s Resp. at 5. This is so , the District argues, because a “plain-text reading of Title VI I’s antidiscrimination provision is in some tension with” White. Id. at 4. We disagree. It is true, as the District argues, that in White , the Court held that adverse actions “in the retaliation context . . . are limited to those that result in harm that is ‘objective’ and ‘material.’” Id. (quoting White

, 548 U.S. at 68). But the Court also expressly held that “Congress intended the differenc es” in language between the antidiscrimination and antireta liation provisions “to make a legal difference.” White , 548 U.S. at 62–63.

The District also argues that courts have interpreted the antiretaliation provision to be “ less burdensome for plaintiffs to satisfy than the antidiscrimination provision.” Appellee’s Resp. at 4–5. Because, the District continues, White imposed a “materially adverse” and “ objective” standard on the antiretaliation provisi on, “it is reasonable to assume Congress intended a similar de minimus exception for its antidiscrimination provision.” Id. Here, too, the District misreads White , which made the antiretaliation provision less burdensome for plaintiffs in one sense: it held that “the antiretaliation provi sion, unlike the [antidiscrimination] provision, is not limited to discrimi natory actions that affect the6
terms and conditions of employ ment.” 548 U.S. at 64. But it made the antiretaliation provision more burdensome in another sense: by imposing a “materiall y adverse” and “objective” harm requirement on the an tiretaliation provision without doing so for the antidiscrimination provision. Id. at 68.

Both distinctions are in lin e with the objectives of the respective provisions, as discussed in White . “[T]he antiretaliation provision seeks to prevent employer interference with unfettered access to Title VI I’s remedial mechanisms . . . And normally, petty slights, minor annoyances, and simple lack of good manners will not create such deterrence.” Id

. (internal quotation marks omitted) . Accordingly, “petty slights and minor annoyances” fall outsi de of Title VII’s protection against retaliatory behavior. In contrast, the antidiscrimination provision “seeks a workplace where individuals are not discriminated against because of their racial, ethnic, religion, or gender-based status” and “to prevent injury to individuals based on who they are.” Id. at 63 (citing McDonnell Douglas Corp v. Green , 411 U.S. 792, 800–01 (1973)). Permitting employers to discriminate wh en granting or denying purely lateral transfers would lead to consequences that are plainly inconsistent with that objective. For example, a supervisor who tells her employee that she is denying a lateral transfer request solely because of the empl oyee’s race would, under current circuit law, escape Title VII liabi lity so long as the employee is unable to show additional “obj ectively tangible harm” arising out of the transfer denial.

Since Brown , our court has consistently held that purely lateral transfers and denials of purely lateral transfers, without more, are not actionable under Title VII’s antidiscrimination provision. See Ortiz-Diaz , 867 F.3d at 74; Czekalski v. Peters

, 475 F.3d 360, 364–65 (D.C. Cir. 2007); Stewart v. Ashcroft

, 352 F.3d 422, 426 (D.C. Cir. 2003). Every other circuit to have7
considered the issue has taken the same approach. See, e.g.
, Forgus v. Mattis , 753 F. App’x 150, 153 (4th Cir. 2018); Nichols v. Southern Illinois University-Edwardsville , 510 F.3d 772, 780 (7th Cir. 2007); Reese v. State of Michigan Family Independent Agency , 31 F. App’x 172, 174 (6th Cir. 2002).

In our view, however, stat utory text, Supreme Court precedent, and Title V II’s objectives make cl ear that employers should never be permitted to tr ansfer an employee or deny an employee’s transfer request mere ly because of that employee’s race, color, religion, sex, or national origin. Yet under Brown
, an employer may do just that so long as the employee suffers no “tangible harm” associated with that transfer or transfer denial. We suggest that the full court hear this case en banc to correct this clear legal error.