Pardo-Kronemann v. Donovan

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.

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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

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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 one-

year 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

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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 Pardo-

Kronemann “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 [Pardo-

Kronemann] 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

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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, Pardo-

Kronemann 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

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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 Pardo-

Kronemann 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. Pardo-

Kronemann, 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 Pardo-

Kronemann 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 Pardo-

Kronemann’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

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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 Pardo-

Kronemann’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

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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. Pardo-

Kronemann.” 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 Pardo-

Kronemann, 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

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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

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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 Pardo-

Kronemann 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, Pardo-

Kronemann’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

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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 Pardo-

Kronemann’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 Pardo-

Kronemann’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 Pardo-

Kronemann 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, Pardo-

Kronemann’s original trial counsel fell ill, and the district

court extended discovery through February 2007. HUD then

moved for summary judgment in March, and Pardo-

Kronemann 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, Pardo-

Kronemann 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 Pardo-

Kronemann to depose the three witnesses “whose depositions

were noticed by plantiff’s previous counsel.” Pardo-

Kronemann 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 Pardo-

Kronemann 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., Pardo-

Kronemann’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 Pardo-

Kronemann’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 Pardo-

Kronemann’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 Pardo-

Kronemann 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, Pardo-

Kronemann’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 Pardo-

Kronemann’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 Pardo-

Kronemann 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 Pardo-

Kronemann’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 Pardo-

Kronemann with the same formal title he had when he left

OGC in 1999 and kept when he came back in 2001: Attorney-

Advisor, 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, Pardo-

Kronemann 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, Pardo-

Kronemann’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 low-

level research tasks, not on a par with his past handbook-

drafting 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, Pardo-

Kronemann 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 Pardo-

Kronemann 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.