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 oneyear 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 PardoKronemann “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 [PardoKronemann] 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, PardoKronemann 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 PardoKronemann 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. PardoKronemann, 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 PardoKronemann 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 PardoKronemann’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 PardoKronemann’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. PardoKronemann.” 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 PardoKronemann, 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 PardoKronemann 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, PardoKronemann’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 PardoKronemann’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 PardoKronemann’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 PardoKronemann 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, PardoKronemann’s original trial counsel fell ill, and the district 

court extended discovery through February 2007. HUD then 

moved for summary judgment in March, and PardoKronemann 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, PardoKronemann 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 PardoKronemann to depose the three witnesses “whose depositions 

were noticed by plantiff’s previous counsel.” PardoKronemann 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 PardoKronemann 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., PardoKronemann’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 PardoKronemann’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 PardoKronemann’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 PardoKronemann 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, PardoKronemann’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 PardoKronemann’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 PardoKronemann 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 PardoKronemann’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 PardoKronemann with the same formal title he had when he left 

OGC in 1999 and kept when he came back in 2001: AttorneyAdvisor, 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, PardoKronemann 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, PardoKronemann’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 lowlevel research tasks, not on a par with his past handbookdrafting 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, PardoKronemann 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 PardoKronemann 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.