Mary Chambers v. DC

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

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the brief were Karl A. Racine, Attorney General, Loren L.

AliKhan, Solicitor General, Caroline S. Van Zile, Principal

Deputy Solicitor General, Carl J. Schifferle, Deputy Solicitor

General, and Holly M. Johnson, Senior Assistant Attorney

General.

Before: TATEL and GARLAND*, Circuit Judges, and

GINSBURG, Senior Circuit Judge.

Opinion for the Court filed PER CURIAM.

Concurring opinion filed by Circuit Judge TATEL and

Senior Circuit Judge GINSBURG.

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

Office of the Attorney General (OAG) denied Mary

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

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

Civil Rights Act of 1964, those lateral transfer denials

constituted unlawful sex discrimination and unlawful

retaliation for filing discrimination charges with the Equal

Employment Opportunity Commission (EEOC). The district

court, relying on circuit precedent, granted summary judgment

to the District because Chambers failed to show materially

adverse consequences arising from the denials of her purely

lateral transfer requests. For the reasons set forth below, we

affirm.

I.

In 2000, Chambers became a Support Enforcement

Specialist within OAG’s Child Support Division. Although

* Judge Garland was a member of the panel at the time this case

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

case.

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initially assigned to the Interstate Unit, Chambers later sought

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

Division. Those requests were denied. Chambers filed a charge

of discrimination with the EEOC in August 2010 based on

those denials.

In September 2010, Chambers sent an e-mail to her

supervisors, asking them to reconsider her transfer request.

They denied her request the next day, explaining that

transferring her did “not fit into management’s immediate

plans.” Joint Appendix (J.A.) 75. Chambers filed another

charge of discrimination with the EEOC in March 2011,

alleging that the transfer denial constituted sex discrimination

and retaliation under Title VII. Charge of Discrimination, J.A.

101.

In September 2011, Chambers again asked her supervisors

for a transfer. J.A. 103. This time, Chambers offered to switch

positions with an employee in the Intake Unit. Id. Hours later,

Chambers’s Division Director denied this request too. Id.

In 2014, Chambers sued the District of Columbia, alleging

gender discrimination under Title VII. Following discovery,

the district court granted summary judgment to the District.

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

2019). The court found that her discrimination and retaliation

claims arising from the denial of lateral transfers were not

actionable under circuit law because she “failed to show that a

genuine issue of material fact exist[ed] as to whether she

suffered an adverse action.” Id. at 93. This appeal followed and

is limited to the discrimination and retaliation claims associated

with the lateral transfer denials.

Summary judgment is appropriate only if “there is no

genuine issue as to any material fact and the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see

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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

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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

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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

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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

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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.

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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

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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 &

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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

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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

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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

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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.