United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 14, 2016 Decided August 2, 2016

No. 15-5008

SAMUEL ORTIZ-DIAZ,

APPELLANT

v.

UNITED STATES DEPARTMENT OF HOUSING 

& URBAN DEVELOPMENT, OFFICE OF INSPECTOR GENERAL,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:12-cv-00726)

Eden Brown Gaines argued the cause and filed briefs for 

the appellant.

Alexander D. Shoaibi, Assistant United States Attorney, 

argued the cause for the appellee. R. Craig Lawrence, 

Assistant United States Attorney was with him on brief.

Before: HENDERSON, ROGERS and KAVANAUGH, Circuit 

Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.
2

Concurring opinion filed by Circuit Judge 

HENDERSON.

Concurring opinion filed by Circuit Judge 

KAVANAUGH.

Dissenting opinion filed by Circuit Judge ROGERS.

 KAREN LECRAFT HENDERSON, Circuit Judge: Plaintiff 

Samuel Ortiz-Diaz appeals from the grant of summary 

judgment in favor of defendant United States Department of 

Housing and Urban Development (HUD) in his 

discrimination lawsuit brought pursuant to 42 U.S.C. 

§§ 2000e et seq. The district court found that the action

complained of—denial of Ortiz-Diaz’s requests for lateral 

transfers on the basis of race and/or national origin—was not 

cognizable under Title VII because it did not constitute an

“adverse employment action.” Ortiz-Diaz v. United States 

Dep’t of Housing and Urban Dev., 75 F. Supp. 3d 561, 568 

(D.D.C. 2014). We affirm.

I.

Ortiz-Diaz began his employment with HUD in April 

1998 as a criminal investigator in San Juan, Puerto Rico. In 

2000 he was reassigned to Hartford, Connecticut to be closer 

to his wife, who was employed in Albany, New York. In 

2009 Ortiz-Diaz applied for and accepted a promotion to 

senior special agent, a GS-14 position, in HUD’s Office of 

Inspector General (OIG) in Washington, D.C. The promotion 
3

was approved by Assistant Inspector General for 

Investigations John McCarty.1

 

In July 2010 Ortiz-Diaz applied for an Assistant Special 

Agent in Charge (ASAC) position in New York City (NYC) 

but was not selected. McCarty made the decision and OrtizDiaz believed that he was not selected because he is Hispanic. 

See Ortiz-Diaz Decl. ¶ 11, J.A. 611 (“I was angry because I 

believed that McCarty was . . . making improper personnel 

decisions based on race.”). He told a colleague he was not 

going to “take it quietly” and that he was gearing up for “a 

super heavyweight fight.” No “fight” ensued—apparently

because Ortiz-Diaz subsequently learned that McCarty’s 

selectee was also Hispanic. 

On September 30, 2010 Ortiz-Diaz accepted a GS-13 

level position as a program analyst with HUD’s Office of 

Public and Indian Housing in Albany. Around this time 

McCarty, on learning that Ortiz-Diaz was seeking to leave 

OIG, asked the latter if he was interested in an ASAC vacancy 

in Chicago or, alternatively, a transfer to NYC at the GS-13 

level. Instead of pursuing either option, in October 20102

 1 Ortiz-Diaz received a relocation allowance for his move to 

D.C. which he was required to repay in the event he did not remain 

in that position for at least one year (until December 15, 2010).

2 The district court order reflects that this event occurred in 

October 2014. Further blurring the time-line, Ortiz-Diaz’s 

complaint indicates he requested this transfer on October 12, 2012. 

We believe both dates are inaccurate. Ortiz-Diaz’s complaint 

indicates that he left HUD altogether on January 1, 2011. 

Moreover, he filed his complaint in May 2012. We arrive at 

October 2010 because that is the date contained in an Equal 

Employment Opportunity Commission investigative summary and 

because it is consistent with the rest of the time-line. 
4

Ortiz-Diaz requested a transfer to an investigative position in 

Albany or Hartford pursuant to HUD’s no-cost, voluntary 

transfer program. That program “allows investigators to 

request voluntary transfers to duty stations of their choice for 

reasons other than the specific staffing needs of the Agency,” 

Oritz-Diaz, 75 F. Supp. 3d at 564, but the relocation is at the 

employee’s expense. In addition, the program does not 

guarantee that a request will be approved; instead, an

employee is considered for transfer as a vacancy arises. 

McCarty denied the request on October 12, 2010, stating that 

HUD OIG maintained no investigative office in Albany and 

that there was no vacancy in Hartford. Ortiz-Diaz filed his

complaint on May 4, 2012 alleging that his October 2010

request was denied because he is Hispanic. The district court 

granted summary judgment to HUD because “[a]bsent 

extraordinary circumstances not present here, a purely lateral 

transfer does not amount to an adverse employment action”

cognizable under Title VII. Id. at 565 (citing Medina v. 

Henderson, No. 98-5471, 1999 WL 325497 at *1 (D.C. Cir. 

Apr. 30, 1999)). The district court also found that a transfer 

from the D.C. headquarters would have necessitated a 

downgrade to the GS-13 level, which itself may have 

constituted an “adverse employment action.” Id. at 565–66.3

 

Finally, Ortiz-Diaz’s then-pending motion to compel was 

 3 The district court noted Ortiz-Diaz’s claim that “it was 

common to maintain pay grades when transferred to the field” but 

concluded that he “provide[d] no evidence in support of this 

allegation.” Ortiz-Diaz, 75 F. Supp. 3d at 566; cf. Decl. of HUD 

OIG Acting Assistant Inspector General of Investigations Lester 

Davis ¶ 3, J.A. 339 (“Senior Special Agents (GS-14) stationed with 

the Criminal Investigations Division who have requested 

reassignment to the field as a Special Agent have been required to 

accept a downgrade to Special Agent (GS-13)”). Ortiz-Diaz 

pressed the same point on appeal but again offered no supporting 

evidence. 
5

denied because “even if Mr. Ortiz-Diaz uncovered all that he 

hopes for . . . it would not alter the conclusion that his denial 

of a lateral transfer was not an adverse employment decision.” 

Id. at 568. 

II.

Title VII prohibits “discriminat[ion] against any 

individual with respect to his compensation, terms, 

conditions, or privileges of employment, because of such 

individual’s race . . . or national origin.” 42 U.S.C. § 2000e2(a); see also Bundy v. Jackson, 641 F.2d 934, 942 (D.C. Cir. 

1981) (Title VII puts “same restrictions on federal . . . 

agencies as it does on private employers.”). Under our Circuit 

precedent the action complained of must be “materially 

adverse” to support a discrimination claim. Ginger v. District 

of Columbia, 527 F.3d 1340, 1343 (D.C. Cir. 2008). At this

stage, the “evidence of the [employee] is to be believed and 

all justifiable inferences are to be drawn in his favor.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 

Nevertheless, the employee must produce more than a 

“mere . . . scintilla of evidence,” id. at 252, and “[c]onclusory 

allegations unsupported by fact[s] . . . will not create a triable 

issue.” Exxon Corp. v. FTC, 63 F.2d 120, 127 (D.C. Cir. 

1980); see also Greene v. Dalton, 164 F.3d 671, 675 (D.C. 

Cir. 1999). 

Ortiz-Diaz maintains that he clears the “materially 

adverse action” hurdle, our precedent notwithstanding. See, 

e.g., Stewart v. Ashcroft, 352 F.3d 422, 426 (D.C. Cir. 2003) 

(plaintiff “denied a lateral transfer—that is, one in which 

[plaintiff] suffers no diminution in pay or benefits—does not 

suffer an actionable injury unless there are some other 

materially adverse consequences affecting the terms, 

conditions, or privileges of her employment.” (emphasis 
6

added)); Forkkio v. Powell, 306 F.3d 1127, 1130–31 (D.C. 

Cir. 2002) (“Purely subjective injuries, such as dissatisfaction 

with a reassignment . . . are not adverse actions. . . . In 

contrast with purely subjective harms, reassignment with 

significantly different responsibilities . . . generally indicates 

an adverse action.” (internal quotation marks omitted)). He 

so contends because, in addition to his “dissatisfaction with 

[the lack of] reassignment,” id. at 1130, the transfer denial

tangibly injured his “career opportunities” in light of

McCarty’s allegedly discriminatory conduct and his belief 

that his promotion outlook would be rosier “if he worked for 

Special Agent in Charge . . . Rene Febles (who [is] Hispanic) 

in [Albany],” Appellant Br. 8, 28. He also claims that there 

was “high profile work” in Hartford and Albany and that 

performance of said work would have similarly “enhanced 

[his] promotion opportunities.” Ortiz-Diaz Decl. ¶ 12, J.A. 

611. 

The desire to work for Febles (or, conversely, to escape 

McCarty) is irrelevant under our precedent. In Forkkio the 

plaintiff alleged that his supervisor took many “offensive” 

actions, including criticizing his work product and “ma[king] 

personnel decisions about [the plaintiff’s] staff without 

consulting him.” 306 F.3d at 1130. Apparently believing that 

discriminatory animus motivated these actions, the plaintiff 

filed three complaints with the Equal Employment 

Opportunity Commission. Id. When the controversy reached 

us, we held that working under the supervisor constituted, at 

most, “subjective injury” and was therefore not materially 

adverse. Id. at 1131–32. Even granting that perhaps in an 

extraordinary case having one supervisor instead of another 

could constitute adverse action, Ortiz-Diaz’s preference is, 

apparently, simply a product of Febles’s alleged freedom 

from “issues working with Hispanic men.” Ortiz-Diaz Decl. 

¶ 12, J.A. 611. If such a declaration were sufficient to raise a 
7

jury issue, our materiality requirement would be an empty 

vessel indeed.4

Granted, a lateral transfer that increased promotion 

prospects might qualify, notwithstanding the “speculativeness 

of the harm.” See Douglas v. Donovan, 559 F.3d 549, 552–53 

(D.C. Cir. 2009). Compare id. at 553 (“failure to be 

recommended” for award “not categorically an adverse 

employment action” notwithstanding possibility of financial 

gain because of “inherent uncertainty” of recommendation 

leading to benefit), with id. at 552–53 (some actions, such as 

“hiring, firing, failing to promote, [and] reassignment with 

significantly different responsibilities . . . are conclusively 

presumed to be adverse employment actions, even if any 

alleged harm is speculative.”). But, even if so, Ortiz-Diaz 

offered only a bare assertion that his transfer would enhance 

his promotion prospects. He alleged that there was “high 

profile” work in Hartford and Albany, Ortiz-Diaz Decl. ¶ 12, 

J.A. 611, but never described it nor linked it to his promotion 

prospects. Whether the Washington, D.C. headquarters—

whence Ortiz-Diaz was seeking transfer—also included high 

profile work was similarly unaddressed. Also left 

unexplained was why he would seek transfer to a lower pay 

 4 Our dissenting colleague takes issue with our analysis of the 

relevance of subjective injury under our precedent, noting that in 

Ginger v. District of Columbia, 527 F.3d 1340 (D.C. Cir. 2008), we 

held a change in work schedule can constitute materially adverse 

action. Dissent Op. 4. But in Ginger the plaintiffs in fact alleged 

“lost income as a result of the” change and, although the Court 

credited that a schedule change “can” suffice without monetary 

loss, the plaintiffs there were moved from a “permanent shift” to a 

“rotating shift” which “severely affected their sleep schedules and 

made it more difficult for them to work overtime and part-time day 

jobs.” Ginger, 527 F.3d at 1343–44 (emphasis added). Those 

difficulties are plainly not subjective.
8

rate, see supra n.3,5 when in fact McCarty was talking to him 

about an assistant special agent in charge position.6

In Baird v. Gotbaum, 662 F.3d 1246 (D.C. Cir. 2011), 

the plaintiff alleged, inter alia, that her employer’s workplace 

rules, including a code of civility among employees, were 

 5 Our dissenting colleague submits that Ortiz-Diaz proffered 

evidence that McCarty approved transfer requests in some instances 

without a grade reduction. Dissent Op. 7. That observation is 

beside the point because the locations to which Ortiz-Diaz 

requested transfer did result in a grade reduction and, as we 

explained, Ortiz-Diaz has not contested that fact. 

6 Our dissenting colleague finds that Ortiz-Diaz’s declaration 

establishes the materially adverse action’s existence vel non, see 

Dissent Op. 5–6, bypassing much well-established precedent in the 

process. First, self-serving averments ordinarily do not allow a 

Title VII plaintiff to survive summary judgment. See Holcomb v. 

Powell, 433 F.3d 889, 899 (D.C. Cir. 2006) (rejecting “purely 

conclusory” allegations of discriminatory animus at summary 

judgment); Burke v. Gould, 286 F.3d 513, 520 (D.C. Cir. 2002) 

(“[B]are allegations of discrimination are insufficient to defeat a 

properly supported motion for summary judgment.”). More to the 

point, a Title VII plaintiff must produce “evidence” which 

“reasonable minds could differ as to the import of.” Liberty Lobby,

477 U.S at 250–51 (emphasis added). But Ortiz-Diaz’s declaration 

contains no evidence regarding, inter alia, Febles’s supervisory 

virtues, the existence of “high profile” work in Hartford and Albany 

or the fit, if any, between a lower-rung position and accelerated 

promotion prospects. Finally, setting aside the sufficiency of OrtizDiaz’s allegations, whether an action is materially adverse is not 

only a question of fact but a requisite of a Title VII claim,

supported by a record of “objectively tangible harm” that is not 

“speculative.” Douglas, 559 F.3d at 553, 556 (emphasis added). By 

contrast, the dissent’s preferred authority counsels only that we 

“credit [Ortiz-Diaz’s] version of events,” Robinson v. Pezzat, 818 

F.3d 1, 8 (D.C. Cir. 2016) (emphasis added), which we have done. 
9

“terms, conditions, or privileges of employment with respect 

to which Title VII affords protection.” Id. at 1250 (internal 

quotations omitted). We upheld the dismissal of a claim 

premised on a violation of the code. Id. As we explained, it 

was “necessary for her discrimination claims” to allege that a 

term, condition or privilege was affected but such an 

allegation was “in itself . . . plainly not sufficient.” Id. 

(emphases added). Baird “evidently suppos[ed] that anything 

in that category ipso facto me[t] the adverse action test,” but, 

as we made plain, she was wrong. Id.7

 

 7 Ortiz-Diaz cites Trans World Airlines, Inc. v. Thurston, 469 

U.S. 111 (1985), as authority for his claim. Although the case 

involved a so-called “transfer,” its facts make plain that the transfer 

was not lateral. Rather, in Trans World the defendant airline 

required a captain to cease working in that capacity at age 60. It 

allowed him to remain with the airline after attaining that age, 

however, as a “flight engineer”—but only through a bidding 

procedure that did not guarantee a position. Id. at 116. A captain 

under 60 who was unable to retain his position was permitted to 

“displace automatically . . . a less senior flight engineer” without 

participating in the bidding process, a benefit that formed the basis 

of an age discrimination claim. Id. (emphasis added). The Court 

referred to an age-disqualified captain’s attempt to become a flight 

engineer as a “transfer request,” id. at 118, but the “transfer” was in 

fact a forced demotion, a far cry from our lateral transfer definition 

which “does not involve a demotion in form or substance,” Brown

v. Brody, 199 F.3d 446, 456 (D.C. Cir. 1999). 

Similarly, Ortiz-Diaz’s reliance on contrary decisions of our 

sister circuits is misplaced. He cites Randlett v. Shalala, 118 F.3d 

857 (1st Cir. 1997), for the proposition that, if “transfer . . . [is] a 

common enough practice,” its denial is actionable under Title VII, 

Appellant Br. 23. The First Circuit, without explanation, concluded 

that, to Randlett, “transfer . . . was doubtless as important as a 

promotion.” Randlett, 118 F.3d at 862. But Randlett held only that 

“refusal to transfer is [not] automatically outside Title VII,” id. 
10

For the foregoing reasons, the judgment of the district 

court is affirmed.

So ordered.

 

(emphasis added), a position consistent with our precedent, see 

Stewart, 352 F.3d at 426. Ortiz-Diaz’s other cited cases, both 

within and without our Circuit, do not even involve transfer. See 

Judie v. Hamilton, 872 F.2d 919, 921–22 (9th Cir. 1989) (denial of 

supervisory responsibilities); Scott-Brown v. Cohen, 220 F. Supp. 

2d 504, 511 (D. Md. 2002) (denial of advanced sick leave); Paquin 

v. Fed. Nat’l Mortg. Ass’n, 119 F.3d 23, 32 (D.C. Cir. 1997) 

(withdrawing proposed severance package); Passer v. Am. Chem. 

Soc., 935 F.2d 322, 331 (D.C. Cir. 1991) (cancelling symposium 

honoring plaintiff). 
KAREN LECRAFT HENDERSON, Circuit Judge, concurring: 

At oral argument Ortiz-Diaz’s counsel posed a disturbing 

hypothetical. She claimed that, if we accept the defendant’s 

argument, we would affirm dismissal of a suit challenging an 

employer’s affixing a “whites-only” sign to a water cooler 

because “not a penny is lost by any worker . . . no one lost 

supervisory duties . . . [and it is] not in any way related to the 

actual workplace.” Oral Arg. Recording 1:11–2:04. Although 

such action could, in my view, constitute a “discriminatorily 

hostile or abusive environment . . . sufficiently severe or 

pervasive” to sustain a hostile work environment claim under 

Title VII, Harris v. Forklift Sys, Inc., 510 U.S. 17, 21 (1993), 

it has no relevance to our “materially adverse action” 

precedent. 
KAVANAUGH, Circuit Judge, concurring: I join the 

majority opinion because it faithfully follows our precedents. 

Our cases hold that lateral transfers to different positions or 

posts with the same pay and benefits are ordinarily not 

changes‎ in‎ the‎ “terms,‎ conditions,‎ or‎ privileges”‎ of‎

employment. I write this concurrence simply to note my 

skepticism about those cases. In my view, a forced lateral 

transfer – or the denial of a requested lateral transfer – on the 

basis of race is actionable under Title VII. Based on our 

precedents, however, I join the majority opinion. 
ROGERS, Circuit Judge, dissenting: Once again the court

returns to the issue of the proper role of the district court at

summary judgment but this time stumbles badly. 

I.

Samuel Ortiz-Diaz was a criminal investigator in the Office

of the Inspector General at the U.S. Department of Housing and

Urban Development. That Office had adopted a merit staffing

plan, which includes a voluntary transfer program whereby

employees, including investigators, could request transfer to a

different location, at no cost to the government. The merit

staffing plan’s stated policy is that the program is to be

administered without regard to race, sex, color, national origin,

age, or disability. The program was a privilege of Ortiz-Diaz’s

employment. See Hishon v. King & Spalding, 467 U.S. 69,

75–76 (1984).

Following years of working for the Office of the Inspector

General, Ortiz-Diaz accepted a GS-14 position in the central

office in Washington, D.C. At some point, he requested a

transfer to Albany, New York where the Special Agent in

Charge in the region had requested an agent. When an email

was circulated regarding a position in Hartford, Connecticut,

Ortiz-Diaz also requested to transfer there. Both transfer

requests were denied by his supervisor. Ortiz-Diaz viewed

gaining criminal experience in the field as the way to advance

within the Inspector General’s Office, a view the government

does not dispute. Instead, the government disputes Ortiz-Diaz’s

claim that the denials were due to his supervisor’s bias against

Hispanics and Puerto Ricans, see Am. Compl. ¶¶ 10–11, 16–18,

and moved for summary judgment in the district court on the

grounds that he had suffered no adverse employment impact and

could not demonstrate pretext. The district court agreed as to

the first ground. Ortiz-Diaz v. U.S. Dep’t of Housing & Urban
2

Dev., 75 F. Supp. 3d 561, 565–67 (D.D.C. 2014). 

Ortiz-Diaz, however, had submitted his sworn declarations

to the district court stating that a transfer to the field would

provide the type of experience that would enable him to advance

within the Inspector General’s Office and he explained why. He

also proffered evidence that his supervisor had approved transfer

requests of white comparators without a decrease in pay or

benefits, and that those transfers were approved notwithstanding

the lack of an office or need in the transfer city, which were the

reasons given for denying Ortiz-Diaz’s transfer requests. He

proffered as well a letter from a colleague corroborating his

claim that his supervisor was biased against minorities. And the

government’s supplemental response to his discovery requests

produced a list of the discrimination complaints that had been

filed against Ortiz-Diaz’s supervisor, who was responsible for

approving his transfer requests and his future promotion within

the D.C. Office. 

Further, Ortiz-Diaz had filed a motion to compel “full and

complete responses” to his discovery requests relating to

potential comparators, stating the government had failed to

produce documentary evidence of identified transfers and he

could not independently determine which transfers were

voluntary or involuntary. Responding to his opposition to

summary judgment, the government had claimed that the five

transfers mentioned by Ortiz-Diaz were in response to hardship

applications or involved individuals who were not similarly

situated. 

After his transfer requests were denied, Ortiz-Diaz resigned

from his GS-14 position in the Inspector General’s Office,

where had worked for nine years. He accepted a GS-13 position

elsewhere in the Department.
3

II.

Summary judgment is appropriate only if the record

evidence shows that “there is no genuine dispute as to any

material fact” and that the moving party “is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a); Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986). This court, like the

district court, must “‘examine the facts in the record and all

reasonable inferences derived therefrom in a light most

favorable to’ the nonmoving party.” Robinson v. Pezzat, 818

F.3d 1, 8 (D.C. Cir. 2016) (quoting DeGraff v. District of

Columbia, 120 F.3d 298, 299–300 (D.C. Cir. 1997); see Adickes

v. S.H. Kress & Co., 398 U.S. 144, 158 (1970). Indeed, “[t]he

evidence of the non-movant is to be believed.” Anderson, 477

U.S. at 255. “This mode of analysis serves to separate the ‘jury

functions’ of making ‘[c]redibility determinations . . . ,

weighing . . . the evidence, and . . . drawing . . . legitimate

inferences from the facts’ from the district court’s role as the

arbiter of legal questions.” Robinson, 818 F.3d at 8 (quoting

Anderson, 477 U.S. at 255) (alterations in original). 

As this court explained in Arrington v United States, 473

F.3d 329 (D.C. Cir. 2006), “[a]lthough a jury might ultimately

decide to credit the version of the events described by [the]

defendant[] over that offered by the plaintiff, this is not a basis

upon which a court may rest in granting a motion for summary

judgment.” Id. at 333 (internal quotation marks omitted). The

summary judgment standard requires us to credit the plaintiff’s

version of events, even if “‘directly contradictory’ to other

testimony.” Robinson, 818 F.3d at 8 (quoting Tolan v. Cotton,

134 S. Ct. 1861, 1867 (2014)). “Thus, we do not ‘determine the

truth of the matter,’ but instead decide only ‘whether there is a

genuine issue for trial.” Pardo-Kronemann v. Donovan, 601

F.3d 599, 604 (D.C. Cir. 2010).
4

A.

Today, the court, in concluding upon de novo review that

Ortiz-Diaz did not suffer an adverse employment action as a

result of the denial of his transfer requests, misapplies the

summary judgment standard. In Stewart v. Ashcroft, 352 F.3d

422, 426–27 (D.C. Cir. 2003), the court explained that while

lateral transfers entailing no diminution in pay and benefits were

ordinarily not adverse employment actions, denials of transfers

could be adverse employment actions if they result in “objective,

tangible, and materially adverse consequences [affecting] the

terms, conditions, or privileges” of the plaintiff’s employment,

id. at 426 (citing Brown v. Brody, 199 F.3d 446, 457 (D.C. Cir.

1999)), even if the employee suffered no diminution in pay or

benefits. The court referred, as an example, to denial of an

opportunity to advance within the hierarchy of a department. Id.

(citing Brown, 199 F.3d at 457). Although “purely subjective

injuries, such as dissatisfaction with a reassignment,” are not

adverse actions, Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C.

Cir. 2002), not all “dissatisfaction” is immaterial. For instance,

in Ginger v. District of Columbia, 527 F.3d 1340, 1344 (D.C.

Cir. 2008), the court concluded that a transfer of police officers

to a more difficult and inconvenient work schedule could be an

adverse action, even without a change in the officers’

responsibilities or pay. 

So have our sister circuits. For example, the First Circuit 

explained, noting the “pretty open-ended language” of “terms,

conditions, or privileges,” in Title VII, 42 U.S.C. § 2000e-2a,

that an adverse employment action can include the denial of a

lateral transfer in view of the “the impact on [the plaintiff]” and

the plaintiff’s affidavits that it was “customary practice” to grant

“hardship” transfers. Randlett v. Shalala, 118 F.3d 857, 862 (1st

Cir. 1997) (citing cases). Indeed, as Judge Harlington Wood,

Jr., joined by Judge Ripple and Senior Judge Eschbach, wrote

for the Seventh Circuit in reversing the grant of summary
5

judgment:

One does not have to be an employment expert to

know that an employer can make an employee’s job

undesirable or even unbearable without money or

benefits ever entering into the picture. 

Collins v. Illinois, 830 F.2d. 692, 703 (7th Cir. 1987). 

Ortiz-Diaz proffered evidence not merely that he would be

more satisfied working in Albany or Hartford, but that he would

be better positioned to advance within the Inspector General’s

Office. According to Ortiz-Diaz’s sworn declarations, a lateral

transfer would have enhanced his opportunities for promotion. 

See Pltf.’s Decl. (June 25, 2014) in Support of Oppo. to Deft.’s

Mot. for Sum. Judgment ¶ 12 (“Pltf.’s Decl.”); Pltf.’s Supp.

Decl. (Sept. 4, 2012) in Support of Oppo. to Deft.’s Mot. for

Sum. Judgment ¶¶ 2, 4 (“Pltf.’s Supp. Decl.”). Specifically, he

explained that in order to better position himself for promotion,

he sought “to return to the field in order to gain experience at the

GS-14 level, establish favorable relationships with supervisors

in the field, . . . and give [him]self a bit of distance from the

discriminatory environment at headquarters.” Pltf.’s Supp.

Decl. ¶ 5. Investigators in Regions 1 and 2, to which he sought

transfers, “were lauded for their accomplishments and there did

not appear to be serious performance deficiencies” in those

regions. Id. ¶ 6. The Albany and Hartford locations presented

an opportunity to engage in “important, high profile work” that

would enhance his chances of promotion. Pltf.’s Decl. ¶ 12. 

Additionally, in Albany, his supervisor would have been Rene

Febles, an Hispanic whom Ortiz-Diaz believed would not be

inclined to discriminate against him because he was an Hispanic

and Puerto Rican. Id. By contrast, in the Washington, D.C.

office, Ortiz-Diaz explained that he considered his chances of

advancement limited because his supervisor was racially biased
6

against Hispanics and other minorities, and he was not alone in

that view. Id. ¶¶ 6–7; see Letter from Patrick Jefferson to Eden

Gaines Brown, Esq. (Mar. 12, 2012); Deft.’s Response to

Interrogatories, Request No. 5 (Dec. 20, 2013) (supplemental

discovery response listing discrimination complaints filed

against Ortiz-Diaz’s supervisor).

These are not mere “bare assertions” or subjective

preferences, as the court suggests, see Op. 7; rather, they are

objective statements — uncontested by the government — about

the expected professional benefits to Ortiz-Diaz from the

requested transfers. Evidence of his supervisor’s discriminatory

statements about Hispanics in the workplace and other

complaints of discrimination filed against his supervisor not

only corroborated Ortiz-Diaz’s view of his supervisor’s bias, but

was relevant, contrary to Judge Henderson’s view, to showing

that denial of his transfer requests had “materially adverse

consequences,” Forkkio, 306 F.3d at 1131, on his chances for

advancement if he remained in the D.C. Office. His resignation

following nine years in the Inspector General’s Office for a

lesser paying job underscores the adversity caused by the denial

of his transfer requests as a result of the discriminatory bind in

which he found himself in the D.C. Office.

Such evidence is sufficient to create a triable issue as to

whether the denial of Ortiz-Diaz’s transfer requests constitutes

a materially adverse employment action. The court, although

acknowledging that “a lateral transfer with increased promotion

prospects might qualify” as an adverse action, Op. 7, avoids this

conclusion only by improperly discounting Ortiz-Diaz’s sworn

declarations. Yet, contrary to the court’s view, see Op. 8 n.6, a

plaintiff’s sworn statement, even if uncorroborated, can provide

sufficient evidence to establish a disputed issue of material fact. 

See Robinson, 818 F.3d at 9 (citing Arrington, 473 F.3d at 336,

338); see also Tolan, 134 S. Ct. at 1867. Ortiz-Diaz’s
7

statements about the benefits of transfer are not unduly

speculative or inappropriately conclusory, see Forkkio, 306 F.3d

at 1131, in the context of the no-cost transfer program whereby

an employee could switch job locations. This is not a case in

which the plaintiff simply avers that his supervisor behaved with

discriminatory intent, see Op. 8 n.6 (citing, e.g., Holcomb v.

Powell, 433 F.3d 889, 899 (D.C. Cir. 2006)), but a case in which

the plaintiff stated objective facts about the world that could be

proved or disproved at trial.

Furthermore, by questioning the credibility of Ortiz-Diaz’s

sworn statements that a position in the field would lead to better

opportunities for advancement, the court fails on summary

judgment, as the Supreme Court has repeatedly instructed, to

construe the record and reasonable inferences “in the light most

favorable to the party opposing the motion,” here, Ortiz-Diaz. 

Adickes, 398 U.S. at 158–59 (internal quotation and citation

omitted). Not only does the court err in taking a position never

advanced by the government in moving for summary judgment,

see Pardo-Kronemann, 601 F.3d at 609, the court errs in

deriding as “lower rung” the positions to which Ortiz-Diaz

sought to transfer in Albany and Hartford. Op. 7, 8 n.6. OrtizDiaz’s evidence is to the contrary, explaining exactly why he

considered the transfers to afford opportunities for professional

advancement that his position in the D.C. Office did not, and the

government has never challenged that evidence. Even if the

court is referencing a transfer to a GS-13 position, Ortiz-Diaz

proffered evidence that his supervisor approved other transfers

without a diminution in grade. See Pltf.’s Oppo. to Sum.

Judgment ¶ 24; Pltf.’s Decl. ¶ 20. 

Whether an employment action is adverse is a question for

the jury. Pardo-Kronemann, 601 F.3d at 607. The government

did not dispute that in-field criminal-investigative work was the

path for Ortiz-Diaz to position himself for promotion, or that
8

Regions 1 and 2 were prime locations for doing so. Yet the

court today demands more details. See Op. 7. On what basis? 

The government has never contested Ortiz-Diaz’s claims on that

ground, and “the evidence of the non-movant is to be believed,”

Anderson, 477 U.S. at 255. Neither did the government

challenge that the no-cost transfer program was a privilege of his

employment, see Hishon, 467 U.S. at 75–75. Febles’ email

requesting an investigator in Albany and the email about the

transfer opportunity in Hartford, as well as a Hartford position

that was filled shortly after Ortiz-Diaz resigned, were

corroborative of the availability of the opportunities for transfer

to prime in-field locations. Ortiz-Diaz’s resignation and

acceptance of a lower paying position lends gravitas, at this

stage of the proceedings, to the record evidence and reasonable

inferences therefrom of adversity as a result of being denied an

opportunity for professional advancement. See Stewart, 352

F.3d at 427; cf. Bouman v. Block, 940 F.2d 1211, 1229 (9th Cir.

1991). 

Under the circumstances, upon viewing the evidence most

favorably to Ortiz-Diaz as the non-moving party, as the court

must, a reasonable jury could find the denials of the requested

transfers under the no-cost transfer program caused him

“objectively tangible harm.” Douglas v. Donovan, 559 F.3d

549, 552 (D.C. Cir. 2009). Nothing in our precedent requires a

different outcome on summary judgment, and the court offers no

analysis for the conclusion it does. See concurring op.,

Kavanaugh, J. Instead, the court’s conclusion appears to

indicate, much as Ortiz-Diaz’s counsel suggested during oral

argument, that there can be no material adversity from transfer

denials where a supervisor has a policy that, notwithstanding a

concrete opportunity for professional advancement, no

Hispanics need apply for the no-cost transfer program at the

D.C. Office of the Department’s Inspector General’s Office. See

Oral Arg. Rec. 18:49–19:04 (“You have a discriminatory
9

decisionmaker saying that only whites . . . can participate in this

[no-cost transfer] program.”). Yet no court could condone that

result.

B.

Furthermore, on this record, there is no other basis to grant

summary judgment to the government on the merits of OrtizDiaz’s discrimination claims. Again, the court must consider

the evidence and reasonable inferences most favorably to OrtizDiaz as the non-moving party. Also, “summary judgment

[must] be refused where the nonmoving party has not had the

opportunity to discover information that is essential to his

opposition.” Anderson, 477 U.S. at 250 n.5 (citing FED.R.CIV.

P. 56(f)); see Russell v. Principi, 257 F.3d 815, 820–21 (D.C.

Cir. 2001). 

In moving for summary judgment, the government stated

that Ortiz-Diaz’s requested transfers were denied because there

was no available position and no need for another agent in either

Albany or Hartford at the time of his transfer request. See

Deft.’s Statement of Material Facts in Support of Sum.

Judgment ¶¶ 17–19. Ortiz-Diaz’s factual statement in opposing

summary judgment disputed these factual assertions. See Pltf.’s

Statement of Material Facts in Dispute ¶¶ 17–19. Nonetheless,

once an employer offers a legitimate, non-discriminatory reason

for the adverse action, the “one central question” is whether

Ortiz-Diaz has proffered “sufficient evidence for a reasonable

jury to find that the [government’s] asserted non-discriminatory

reason was not the actual reason and that the [government]

intentionally discriminated against [him] on the basis of [his

membership in a protected class].” Brady v. Office of Sergeant

at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). “Employees may

cast doubt on the employer’s proffered reason by, among other

things, pointing to [1] changes and inconsistencies in the stated

reasons for the adverse action; [2] the employer’s failure to
10

follow established procedures or criteria; [3] the employer’s

general treatment of minority employees; or [4] discriminatory

statements by the decisionmaker.” Evans v. Sebelius, 716 F.3d

617, 620 (D.C. Cir. 2013) (internal quotation marks omitted);

Morris v. McCarthy, No. 14-5074, 2016 WL 3254902, at *5

(D.C. Cir. June 14, 2016) (citing Aka v. Wash. Hosp. Ctr., 156

F.3d 1284, 1289 (D.C. Cir. 1998)); see Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). In opposing

summary judgment, Ortiz-Diaz presented arguments, based on

record evidence, to cast doubts for each of these reasons on the

government’s asserted non-discriminatory reasons. See Pltf.’s

Oppo. to Sum. Judgment Part IV C, D. “Although evidence of

pretext is not per se sufficient to permit an inference of

[discrimination], it usually will be enough to get a plaintiff’s

claim to the jury.” Pardo-Kronemann, 601 F.3d at 604 (internal

quotation and alterations omitted).

Ortiz-Diaz sought to show pretext in part through evidence

that transfer requests of similarly situated white employees were

granted, regardless of agency need or existing vacancies or

offices. See Pltf.’s Mem. in Support of Mot. to Compel 3. Such

evidence is relevant to demonstrating pretext. Showing that

transfers of white comparators were routinely approved

notwithstanding the absence of vacancies or offices in the

transfer location could demonstrate that the reasons given for

denying his transfer requests are “unworthy of credence,”

Reeves, 530 U.S. at 143 (quoting Tex. Dept. of Community

Affairs v. Burdine, 450 U.S. 248, 256 (1981)). In addition, OrtizDiaz’s declaration specifically recounted his supervisor’s

discriminatory statements about Hispanics in the workplace, see

Pltf.’s Decl. ¶¶ 6–7, and there was evidence discrimination

complaints had been previously filed against his supervisor. 

Such statements by a supervisor, this court has held, are

sufficient to defeat summary judgment. See Morris, No. 14-

5071, 2016 WL 3254902, at *7 (citing cases). To the extent the
11

government attempted to show that Ortiz-Diaz’s supervisor was

not biased against Hispanics, see Mem. of Points & Auth. in

Support of Deft.’s Mot. for Sum. Judgment at 5–6, at the

summary judgment stage the court must credit Ortiz-Diaz’s

evidence, as the non-movant, and accord all reasonable

inferences from the evidence in his favor. See Adickes, 398 U.S.

at 158; see also Anderson, 477 U.S. at 255. Credibility is a

question for the trier of fact. See Reeves, 530 U.S. at 142. 

And even if Ortiz-Diaz had not proffered sufficient evidence

of pretext to preclude summary judgment, Ortiz-Diaz’s motion

to compel full and complete discovery would need to be

addressed anew. Cf. Russell v. Principi, 257 F.3d at 820–21. In

moving to compel, Ortiz-Diaz argued that in discovery the

government had failed to produce documents or to indicate

which of the transfers it had identified were voluntary as opposed

to mandatory; he was unable to identify them but a government

witness had explained there was a paper trail by which the

government could. See Mot. to Compel 3–4; Pltf.’s Oppo. to

Deft.’s Mot. for Sum. Judgment at 15–16; Depo. of Lester Davis,

Acting Insp. General of Investigations, HUD, at 14, 21 (Apr. 8,

2014). The district court never considered the motion in

connection with the question whether Ortiz-Diaz had shown

pretext; in granting summary judgment on the ground Ortiz-Diaz

had failed to establish an adverse employment action, the district

court denied the motion on the ground that it would not produce

evidence that would alter its conclusion on that issue. See OrtizDiaz, 75 F. Supp. 3d at 565–68. Because the motion to compel

sought evidence of pretext, summary judgment would be

inappropriate. 

Accordingly, because on summary judgment the evidence is

to be viewed most favorably to the party opposing the motion, a

reasonable jury could find that the denial of Ortiz-Diaz’s transfer

requests adversely affected his opportunity for professional
12

advancement, see Stewart, 352 F.3d. at 427, and because, as the

district court observed, the reasons for the denial of his transfer

requests were “hotly disputed,” Ortiz-Diaz, 75 F. Supp. 3d at

564, summary judgment is inappropriate. I respectfully dissent.