Mary Chambers v. DC

M
 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued November 20, 2020           Decided February 19, 2021

                         No. 19-7098

                    MARY E. CHAMBERS,
                       APPELLANT

                              v.

                   DISTRICT OF COLUMBIA,
                         APPELLEE


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



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

    Eric S. Dreiband, Assistant Attorney General, U.S.
Department of Justice, Tovah Calderon and Anna M. Baldwin,
Attorneys, Jennifer S. Goldstein, Associate General Counsel,
Equal Employment Opportunity Commission, and Sydney A.R.
Foster, Assistant General Counsel, were on the brief for amicus
curiae United States of America in support of appellant.

     Megan Browder, Attorney, Office of the Attorney General
for the District of Columbia, argued the cause for appellee. On
                                2
the brief were Karl A. Racine, Attorney General, Loren L.
AliKhan, Solicitor General, Caroline S. Van Zile, Principal
Deputy Solicitor General, Carl J. Schifferle, Deputy Solicitor
General, and Holly M. Johnson, Senior Assistant Attorney
General.

    Before: TATEL and GARLAND*, Circuit Judges, and
GINSBURG, Senior Circuit Judge.

    Opinion for the Court filed PER CURIAM.

    Concurring opinion filed by Circuit Judge TATEL and
Senior Circuit Judge GINSBURG.

     PER CURIAM: Over the years, the District of Columbia’s
Office of the Attorney General (OAG) denied Mary
Chambers’s multiple requests for a lateral transfer to a different
unit within OAG. Chambers alleges that under Title VII of the
Civil Rights Act of 1964, those lateral transfer denials
constituted unlawful sex discrimination and unlawful
retaliation for filing discrimination charges with the Equal
Employment Opportunity Commission (EEOC). The district
court, relying on circuit precedent, granted summary judgment
to the District because Chambers failed to show materially
adverse consequences arising from the denials of her purely
lateral transfer requests. For the reasons set forth below, we
affirm.

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

* Judge Garland was a member of the panel at the time this case
was argued but did not participate in the final disposition of the
case.
                                3
initially assigned to the Interstate Unit, Chambers later sought
transfers to the Intake Unit, also within OAG’s Child Support
Division. Those requests were denied. Chambers filed a charge
of discrimination with the EEOC in August 2010 based on
those denials.

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

     In September 2011, Chambers again asked her supervisors
for a transfer. J.A. 103. This time, Chambers offered to switch
positions with an employee in the Intake Unit.

Id. Hours later, Chambers’s

Division Director denied this request too.

Id. In 2014, Chambers

sued the District of Columbia, alleging
gender discrimination under Title VII. Following discovery,
the district court granted summary judgment to the District.
Chambers v. District of Columbia, 

389 F. Supp. 3d 77

(D.D.C.
2019). The court found that her discrimination and retaliation
claims arising from the denial of lateral transfers were not
actionable under circuit law because she “failed to show that a
genuine issue of material fact exist[ed] as to whether she
suffered an adverse action.”

Id. at 93.

This appeal followed and
is limited to the discrimination and retaliation claims associated
with the lateral transfer denials.

     Summary judgment is appropriate only if “there is no
genuine issue as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see
                               4
Anderson v. Liberty Lobby, Inc., 

477 U.S. 242

, 247–48 (1986).
A dispute about a material fact is not “genuine” unless “the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” 

Anderson, 477 U.S. at 248

. We
review the district court’s grant of summary judgment de novo.
Minter v. District of Columbia, 

809 F.3d 66

, 68 (D.C. Cir.
2015).

                               II.
     Title VII makes it unlawful for private-sector employers to
“discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex, or
national origin.” 42 U.S.C. § 2000e-2(a)(1). Title VII also
requires that “[a]ll personnel actions affecting employees . . .
in those units of the Government of the District of Columbia
having positions in the competitive service . . . shall be made
free from any discrimination based on race, color, religion, sex,
or national origin.” 42 U.S.C. § 2000e-16(a). Although these
provisions differ, our court has held that “the two contain
identical prohibitions.” Czekalski v. Peters, 

475 F.3d 360

, 363
(D.C. Cir. 2007).

     Title VII also includes an antiretaliation provision that
makes it unlawful for a private-sector employer to
“discriminate against any of his employees . . . because he has
opposed any practice made an unlawful employment practice
by this subchapter, or because he has made a charge, testified,
assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.” 42 U.S.C.
§ 2000e-3(a). Although Title VII contains no antiretaliation
provision for federal government or District of Columbia
employers, the Supreme Court has “assume[d] without
deciding that it is unlawful for a federal agency to retaliate
                                5
against a civil servant for complaining of discrimination.”
Green v. Brennan, 

136 S. Ct. 1769

, 1774 n.1 (2016).

     Discrimination and retaliation claims supported by
circumstantial evidence are evaluated under the
burden-shifting framework of McDonnell Douglas Corp v.
Green, 

411 U.S. 792

(1973). See Walker v. Johnson, 

798 F.3d 1085

, 1091 (D.C. Cir. 2015). “A plaintiff must first establish
her prima facie case.”

Id. To do so,

the plaintiff must “allege
she is part of a protected class under Title VII, she suffered a
cognizable adverse employment action, and the action gives
rise to an inference of discrimination.”

Id. Once the plaintiff

clears that hurdle, the “burden shifts to the employer to identify
the legitimate, non-discriminatory or non-retaliatory reason on
which it relied in taking the complained-of action.”

Id. at 1092.

And if the defendant satisfies that burden, the plaintiff, to
defeat summary judgment, must produce “sufficient evidence
for a reasonable jury to find that the employer’s asserted
nondiscriminatory or non-retaliatory reason was not the actual
reason and that the employer intentionally discriminated or
retaliated against the employee.”

Id. (internal quotation marks

omitted).

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

Chambers, 389 F. Supp. 3d at 92

. The district court also correctly
described our circuit precedent regarding whether a lateral
transfer—or denial thereof—without diminution in pay or
benefits qualifies as an adverse action, which applies the same
standard under Title VII’s antidiscrimination and
antiretaliation provisions.

Id. at 93.

Specifically, in Brown v.
Brody, 

199 F.3d 446

(D.C. Cir. 1999), our court held that for
                                 6
cases involving purely lateral transfers, “a plaintiff . . . does not
suffer an actionable injury unless there are some other
materially adverse consequences affecting the terms,
conditions, or privileges of her employment or her future
employment opportunities such that a reasonable trier of fact
could conclude that the plaintiff has suffered objectively
tangible harm.”

Id. at 457.

     Chambers urges us to revisit Brown’s interpretation of
Title VII’s antidiscrimination provision because, she argues, it
is incompatible with the plain text of that provision and
inconsistent with a later Supreme Court decision, Burlington
Northern & Santa Fe Railway Co. v. White, 

548 U.S. 53

, 64–65
(2006). Of course, “[o]ne three-judge panel does not have the
authority to overrule another three-judge panel of the court.”
LaShawn A. v. Barry, 

87 F.3d 1389

, 1395 (D.C. Cir. 1996). We
shall therefore evaluate Chambers’s discrimination and
retaliation claims under the same standard the district court
applied, and we reach the same conclusion: no reasonable jury
could conclude that Chambers suffered materially adverse
consequences associated with the denial of her lateral transfer
requests for purposes of her discrimination or retaliation claim.

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

     First, she argues that the denial “resulted in lost awards and
career advancement opportunities” because a male colleague
who was transferred to her desired unit subsequently received
a promotion and incentive awards. Appellant’s Br. 9. But her
only evidence to support this argument is a timeline of that
male colleague’s career progression, which states that the
colleague won awards after he was transferred out of the Intake
                                 7
Unit. J.A. 137. Based on this evidence alone, no reasonable
jury could find that the District’s refusal to transfer her resulted
in lost awards or career opportunities. See Burley v. National
Passenger Rail Corp., 

801 F.3d 290

, 301 (D.C. Cir. 2015)
(noting “all of the relevant aspects of [a plaintiff’s]
employment situation [must have been] nearly identical to
those of the [comparator]” (internal quotation marks omitted)).

     Second, Chambers argues that the denial forced her to
remain in an “unbearable working condition.” Appellant’s Br.
17. In support, she claims she was “forced to manage a
disproportionate amount of cases.”

Id. But Chambers demonstrates

no personal knowledge about the caseloads
carried by her coworkers in her unit, and the record is silent on
the caseload in her desired unit. See Fed. R. Civ. P. 56(c)(4)
(requiring personal knowledge for affidavits used to support
summary judgment). Chambers also argues that she ultimately
had to take an extended medical leave because her working
conditions were unbearable. But no record evidence supports
her claim that something about her working environment
required leave. Rather, the only record evidence regarding the
reason for her leave is her deposition statement that she had a
stroke right before she took leave. J.A. 31. Lastly, Chambers
argues that her leave and payment processing was delayed, but
she put forth no evidence showing that her unit placement
caused or contributed to those delays in processing paperwork.

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

                       Retaliation Claim
    Chambers offers only one argument for why her transfer
denial qualifies as an adverse action that would violate Title
                                8
VII’s antiretaliation provision. Specifically, she argues that
“when an employer acts to deprive an employee of something
it knew she values[,] it constitutes an adverse action.”
Appellant’s Br. 15. And, according to Chambers, because the
District knew of her desire to transfer, the transfer denial was
materially adverse.

     Chambers correctly cites White for the proposition that an
employee’s particular circumstances may affect whether a
retaliatory act resulted in materially adverse consequences. As
the Court explained, “[a] schedule change in an employee’s
work schedule may make little difference to many workers, but
may matter enormously to a young mother with school-age
children.” 

White, 548 U.S. at 69

. Chambers, however,
overlooks the preceding paragraph, where the Court tied the
standard to that of a “reasonable employee,” because the
antiretaliation provision’s “standard for judging harm must be
objective.”

Id. at 68.

Because Chambers has offered no
evidence that reasonable employees in this context would find
the denial of lateral transfer requests to be materially adverse,
we agree with the district court that Chambers failed to raise a
genuine issue of material fact as to whether the District’s denial
of her transfer request qualified as an adverse action under Title
VII’s antiretaliation provision.

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

                                                     So ordered.
    TATEL, Circuit Judge, and GINSBURG, Senior Circuit
Judge, concurring.
     We write separately to join our colleagues who believe it
“long past time for the en banc court to . . . make clear that
transfers denied because of race, color, religion, sex, or
national origin are barred under Title VII,” and that “any action
by an employer to deny an employment benefit on such
grounds is an adverse employment action under Title VII.”
Ortiz-Diaz v. U.S. Department of Housing & Urban
Development, 

867 F.3d 70

, 81 (D.C. Cir. 2017) (Rogers, J.,
concurring) (citing Kavanaugh, J., concurring). This case,
moreover, is an appropriate vehicle for the en banc court to
correct our court’s precedential interpretation of Title VII’s
antidiscrimination provision. Chambers urges us to overturn it;
the issue is fully briefed; and the EEOC and United States
Department of Justice (DOJ) filed an amicus brief “to inform
the Court of its view that all discriminatory job transfers (and
discriminatory denials of job transfers) are actionable” under
that provision, attaching its brief in opposition to certiorari filed
in Forgus v. Esper, 

141 S. Ct. 234

(Mem.) (2020). DOJ
Chambers Br. 4; DOJ Brief at 8, Forgus v. Esper, 

141 S. Ct. 234

(Mem.) (2020) (No. 18-942) (“DOJ Forgus Br.”); see also
Appellant’s Br. 12–15.

     For its part, the District took no explicit position on the
proper interpretation of Title VII’s antidiscrimination
provision in either its brief or at oral argument. Oral Arg. Rec.
at 15:50–16:05. But in response to this court’s order to advise
us of its position, the District “agree[d] with the United States’
textual interpretation of the antidiscrimination provision with
respect to lateral transfers.” Appellee’s Resp. to the Court’s
November 20, 2020 Order at 1–2, Chambers v. District of
Columbia, No. 19-7098 (Nov. 25, 2020) (“Appellee’s Resp.”).
The District nonetheless argued “that this case should be
affirmed on other grounds.”

Id. 2

     We, however, see no value in allowing our court’s
incorrect interpretation of a straightforward statutory
provision, first set forth in Brown v. Brody, 

199 F.3d 446

(D.C.
Cir. 1999), to remain circuit precedent any longer. Brown held
that a plaintiff bringing a Title VII discrimination claim based
on a purely lateral transfer must establish “some other
materially adverse consequences affecting the terms,
conditions, or privileges of her employment or her future
employment opportunities” arising from the transfer, “such that
a reasonable trier of fact could conclude that the plaintiff has
suffered objectively tangible harm.” 

Brown, 199 F.3d at 457

.
Without analyzing Title VII’s text, Brown relied on two
sources: “the clear trend of authority” in out-of-circuit cases,
and the fact that the Supreme Court in Burlington Industries,
Inc. v. Ellerth, 

524 U.S. 742

(1998), “reinforced” the approach
of not treating purely lateral transfers as adverse employment
actions in the context of retaliation claims. 

Brown, 199 F.3d at 455

–57 (internal quotation marks omitted). We believe that
Brown’s interpretation is mistaken for multiple reasons.

     First, the text of Title VII’s antidiscrimination provision,
section 703(a)(1), contains no requirement of “materially
adverse consequences” for proving a discrimination claim—a
fact that Brown overlooked. Section 703(a)(1) flatly makes it
unlawful for an employer “to discriminate against any
individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual’s race,
color, religion, sex, or national origin.” 42 U.S.C.
§ 2000e-2(a)(1). Because the key terms are undefined, we give
“the term[s their] ordinary meaning.” Taniguchi v. Kan Pacific
Saipan, Ltd., 

566 U.S. 560

, 566 (2012). And under its ordinary
meaning, “the phrase ‘terms, conditions, or privileges of
employment’ in Title VII is an expansive concept.” Meritor
Savings Bank, FSB v. Vinson, 

477 U.S. 57

, 66 (1986) (quoting
42 U.S.C. § 2000e-2(a)(1)). As DOJ’s brief in Forgus points
                               3
out, “it is difficult to imagine a more fundamental ‘term[]’ or
‘condition[]’ of employment than the position itself.” DOJ
Forgus Br. 13 (quoting 42 U.S.C. § 2000e-2(a)(1)).
Accordingly, “transferring an employee because of the
employee’s [sex] (or denying an employee’s requested transfer
because of the employee’s [sex]) plainly constitutes
discrimination with respect to ‘compensation, terms,
conditions, or privileges of employment’ in violation of Title
VII.” 

Ortiz-Diaz, 867 F.3d at 81

(Kavanaugh, J., concurring)
(quoting 42 U.S.C. § 2000e-2(a)(1)).

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

508 U.S. 200

, 208 (1993).

     This is not to say that Title VII’s antidiscrimination
provision is limitless or that its text can be read as a “general
civility code” for the American workplace. Oncale v.
Sundowner Offshore Services, Inc., 

523 U.S. 75

, 81 (1998). To
the contrary, section 703(a)(1) limits the kind of discrimination
that is actionable to discrimination “with respect to . . .
compensation, terms, conditions, or privileges of
employment.” 42 U.S.C. § 2000e-2(a)(1). In other words,
section 703(a)(1) “protects an individual only from
employment-related discrimination.” Burlington Northern &
                              4
Santa Fe Railway Co. v. White, 

548 U.S. 53

, 61 (2006)
(emphasis added). Section 703(a)(1) also requires that an
employee establish that the employer “discriminate[d] because
of” a protected characteristic. 42 U.S.C. § 2000e-2(a)(1)
(emphasis added). In practice, this means that a Title VII
plaintiff must do far more than merely allege different
treatment based on a protected characteristic.

     Brown cannot remain circuit law for a second reason:
given the Supreme Court’s decision in White, 

548 U.S. 53

,
which limited the scope of the Court’s holding in Ellerth, 524
U.S 742, Brown’s interpretation of Title VII’s
antidiscrimination provision now conflicts with Supreme Court
precedent. In Ellerth, the Court dealt with the standard that
applies to vicarious liability for hostile work environment
claims under Title VII. Relying on agency law, the Court held
that such liability is appropriate only “when the supervisor’s
harassment culminates in a tangible employment action.”

Id. at 765

(emphasis added). The question in Brown—whether purely
lateral transfers are actionable under section 703(a)(1)—is
therefore distinct from the question in Ellerth. Brown,
however, explained that the reasoning in Ellerth still broadly
“reinforced” the idea that some tangible harm was required for
a transfer or transfer denial to be actionable under Title VII.

Brown, 199 F.3d at 456

. At the time, this interpretation of
Ellerth was not unreasonable given that the Supreme Court has
held that hostile work environment claims can be cognizable
under section 703(a)(1), the provision at issue in Brown. See
Meritor Savings 

Bank, 477 U.S. at 66

.

     But the Supreme Court’s decision in White, seven years
after Brown, has overtaken our court’s reasoning in that case.
In White, the Supreme Court clarified that “Ellerth did not
discuss the scope of [Title VII’s] general antidiscrimination
provision.”

Id. at 65.

The Court also made clear that the
                                5
purpose of Ellerth’s “tangible employment action”
requirement was “only to ‘identify a class of [hostile work
environment] cases’ in which an employer should be held
vicariously liable (without an affirmative defense) for the acts
of supervisors.”

Id. at 64

(alteration in original) (quoting

Ellerth, 524 U.S. at 760

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

     The District reads White differently. In its post-oral
argument filing, it argues that “the Supreme Court—rather than
this Court” may be the “proper forum” to address the question
of how White affects Title VII’s antidiscrimination provision.
Appellee’s Resp. at 5. This is so, the District argues, because a
“plain-text reading of Title VII’s antidiscrimination provision
is in some tension with” White.

Id. at 4.

We disagree. It is true,
as the District argues, that in White, the Court held that adverse
actions “in the retaliation context . . . are limited to those that
result in harm that is ‘objective’ and ‘material.’”

Id. (quoting White, 548

U.S. at 68). But the Court also expressly held that
“Congress intended the differences” in language between the
antidiscrimination and antiretaliation provisions “to make a
legal difference.” 

White, 548 U.S. at 62

–63.

     The District also argues that courts have interpreted the
antiretaliation provision to be “less burdensome for plaintiffs
to satisfy than the antidiscrimination provision.” Appellee’s
Resp. at 4–5. Because, the District continues, White imposed a
“materially adverse” and “objective” standard on the
antiretaliation provision, “it is reasonable to assume Congress
intended a similar de minimus exception for its
antidiscrimination provision.”

Id. Here, too, the

District
misreads White, which made the antiretaliation provision less
burdensome for plaintiffs in one sense: it held that “the
antiretaliation provision, unlike the [antidiscrimination]
provision, is not limited to discriminatory actions that affect the
                                6
terms and conditions of 

employment.” 548 U.S. at 64

. But it
made the antiretaliation provision more burdensome in another
sense: by imposing a “materially adverse” and “objective”
harm requirement on the antiretaliation provision without
doing so for the antidiscrimination provision.

Id. at 68.

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

Id. (internal quotation marks

omitted). Accordingly, “petty slights
and minor annoyances” fall outside of Title VII’s protection
against retaliatory behavior. In contrast, the antidiscrimination
provision “seeks a workplace where individuals are not
discriminated against because of their racial, ethnic, religion,
or gender-based status” and “to prevent injury to individuals
based on who they are.”

Id. at 63

(citing McDonnell Douglas
Corp v. Green, 

411 U.S. 792

, 800–01 (1973)). Permitting
employers to discriminate when granting or denying purely
lateral transfers would lead to consequences that are plainly
inconsistent with that objective. For example, a supervisor who
tells her employee that she is denying a lateral transfer request
solely because of the employee’s race would, under current
circuit law, escape Title VII liability so long as the employee is
unable to show additional “objectively tangible harm” arising
out of the transfer denial.

     Since Brown, our court has consistently held that purely
lateral transfers and denials of purely lateral transfers, without
more, are not actionable under Title VII’s antidiscrimination
provision. See 

Ortiz-Diaz, 867 F.3d at 74

; Czekalski v. Peters,

475 F.3d 360

, 364–65 (D.C. Cir. 2007); Stewart v. Ashcroft,

352 F.3d 422

, 426 (D.C. Cir. 2003). Every other circuit to have
                               7
considered the issue has taken the same approach. See, e.g.,
Forgus v. Mattis, 753 F. App’x 150, 153 (4th Cir. 2018);
Nichols v. Southern Illinois University-Edwardsville, 

510 F.3d 772

, 780 (7th Cir. 2007); Reese v. State of Michigan Family
Independent Agency, 31 F. App’x 172, 174 (6th Cir. 2002).

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

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