United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 20, 2020 Decided February 19, 2021 

No. 19-7098 

MARY E. CHAMBERS, 

APPELLANT

v. 

DISTRICT OF COLUMBIA, 

APPELLEE

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 America in support of appellant. 

Megan Browder, Attorney, Office of the Attorney General 

for the District of Columbia, argued the cause for appellee. On 
2 

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: TATEL and GARLAND*, Circuit Judges, and 

GINSBURG, Senior Circuit Judge. 

Opinion for the Court filed PER CURIAM. 

Concurring opinion filed by Circuit Judge TATEL and 

Senior Circuit Judge GINSBURG. 

PER CURIAM: Over the years, the District of Columbia’s 

Office of the Attorney General (OAG) denied Mary 

Chambers’s multiple requests for a lateral transfer to a different 

unit within OAG. Chambers alleges that under Title VII of the 

Civil Rights Act of 1964, those lateral transfer denials 

constituted unlawful sex discrimination and unlawful 

retaliation for filing discrimination charges with the Equal 

Employment Opportunity Commission (EEOC). The district 

court, relying on circuit precedent, granted summary judgment 

to the District because Chambers failed to show materially 

adverse consequences arising from 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 the panel at the time this case 

was argued but did not participate in the final disposition of the 

case. 
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initially assigned to the Interstate Unit, Chambers later sought 

transfers to the Intake Unit, also within OAG’s Child Support 

Division. Those requests were denied. 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 reconsider her transfer request. 

They denied her request the 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 Director denied this request too. Id. 

In 2014, Chambers sued the District of Columbia, alleging 

gender discrimination under Title VII. Following discovery, 

the district court granted summary judgment to the District. 

Chambers v. District of Columbia, 389 F. Supp. 3d 77 (D.D.C. 

2019). The court found that her discrimination 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 and retaliation claims associated 

with the lateral transfer denials. 

Summary judgment is appropriate 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); see 
4 

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 reasonable jury could return a verdict 

for the nonmoving party.” Anderson, 477 U.S. at 248. We 

review the district court’s grant of summary judgment 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 individual 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). Title VII also 

requires that “[a]ll personnel actions 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 private-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 Court has “assume[d] without 

deciding that it is unlawful for a federal agency to retaliate 
5 

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 plaintiff must first establish 

her prima facie case.” Id. To do so, the plaintiff must “allege 

she is part of a protected class 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-discriminatory 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 intentionally discriminated or 

retaliated against the employee.” Id. (internal quotation marks 

omitted). 

The threshold question in this case is whether Chambers 

established that she suffered an adverse employment action. As 

the district court correctly noted, generally “[t]he standard for 

what constitutes an adverse action differs under Title VII’s 

anti-discrimination and anti-retaliation provisions.” Chambers, 

389 F. Supp. 3d at 92. The district 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 for 
6 

cases involving purely lateral transfers, “a plaintiff . . . does not 

suffer an actionable injury unless there are some other 

materially adverse consequences affecting the terms, 

conditions, or privileges of her employment or her future 

employment opportunities such that a reasonable trier of fact 

could conclude that the plaintiff has suffered objectively 

tangible harm.” Id. at 457. 

Chambers urges us to revisit Brown’s interpretation of 

Title VII’s antidiscrimination provision because, she argues, it 

is incompatible with the plain 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 three-judge panel of the court.” 

LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996). We 

shall therefore evaluate Chambers’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 discrimination or retaliation claim. 

Discrimination Claim 

Chambers makes two arguments for why her transfer 

denial qualifies as an adverse action under Title VII’s 

antidiscrimination provision. 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 desired unit subsequently received 

a promotion and incentive awards. Appellant’s Br. 9. But her 

only evidence to support this argument is a timeline of that 

male colleague’s career progression, which states that the 

colleague won awards after he was transferred out of the Intake 
7 

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]” (internal quotation marks 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 deposition statement that she had a 

stroke right before she took leave. J.A. 31. Lastly, Chambers 

argues that her leave and payment processing was delayed, but 

she put forth no evidence showing that her unit placement 

caused or contributed to those delays 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 antidiscrimination provision. 

Retaliation Claim 

Chambers offers only one argument for why her transfer 

denial qualifies as an adverse action that would violate Title 
8 

VII’s antiretaliation provision. Specifically, she argues that 

“when an employer acts to deprive 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 desire to transfer, the transfer denial was 

materially adverse. 

Chambers correctly cites White for the proposition that an 

employee’s particular circumstances may affect whether a 

retaliatory act resulted in materially adverse consequences. As 

the Court explained, “[a] schedule 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 paragraph, where the Court tied the 

standard to that of a “reasonable employee,” because the 

antiretaliation provision’s “standard 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 qualified 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.
TATEL, Circuit Judge, and GINSBURG, 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 employment 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. Chambers 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 denials 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 Title VII’s antidiscrimination 

provision in either its brief or at oral argument. Oral Arg. Rec. 

at 15:50–16:05. But in response to this 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 her employment or her future 

employment opportunities” arising from the transfer, “such that 

a reasonable trier of fact could conclude that the 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 authority” in out-of-circuit cases, 

and the fact that the Supreme Court in Burlington Industries, 

Inc. v. Ellerth, 524 U.S. 742 (1998), “reinforced” the approach 

of not treating purely lateral transfers as adverse employment 

actions in the context of retaliation claims. Brown, 199 F.3d at 

455–57 (internal quotation marks omitted). 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 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). 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 points 
3 

out, “it is difficult to imagine a more fundamental ‘term[]’ or 

‘condition[]’ of employment than 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 employment’ in violation of Title 

VII.” Ortiz-Diaz, 867 F.3d at 81 (Kavanaugh, J., concurring) 

(quoting 42 U.S.C. § 2000e-2(a)(1)). 

The absence of an express textual requirement of 

“materially adverse consequences” in section 703(a)(1) is all 

the more significant given the inclusion of such a requirement 

in the very next provision, section 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 individual 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 section 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 text 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) limits the kind of discrimination 

that is actionable to discrimination “with respect to . . . 

compensation, terms, conditions, 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 requires 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 protected 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 actionable 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 that the Supreme Court has 

held that hostile work environment claims can be cognizable 

under section 703(a)(1), the 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 the 
5 

purpose of Ellerth’s “tangible employment action” 

requirement was “only to ‘identify 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 VII’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 differences” in language between the 

antidiscrimination and antiretaliation 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 provision, “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 provision, unlike the [antidiscrimination] 

provision, is not limited to discriminatory actions that affect the 
6 

terms and conditions of employment.” 548 U.S. at 64. But it 

made the antiretaliation provision more burdensome in another 

sense: by imposing a “materially adverse” and “objective” 

harm requirement on the antiretaliation provision without 

doing so for the antidiscrimination provision. Id. at 68. 

Both distinctions are in line 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 VII’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 outside 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 when 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 employee’s race would, under current 

circuit law, escape Title VII liability so long as the employee is 

unable to show additional “objectively 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 have 
7 

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, statutory text, Supreme Court 

precedent, and Title VII’s objectives make clear that employers 

should never be permitted to transfer an employee or deny an 

employee’s transfer request merely 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.