Thursday, August 4, 2016

Ortiz-Diaz v. HUD: The Adverse Action Standard and the Reasonable Person in the Plaintiff's Shoes

 In Ortiz-Diaz v. HUD, No.15-5008 (D.C. Cir. Aug. 2, 2016), the court affirmed summary judgment for the defendant on a Title VII claim of national origin discrimination, concluding that Samuel Ortiz-Diaz, a special agent in HUD's Office of Inspector General in Washington, D.C., was not subjected to a "materially adverse action" when he was denied a lateral transfer to a duty station in another city. The court explained that an employer's action is not materially adverse unless supported by a record of "objectively tangible harm" and that "purely subjective injuries" are not enough. The court acknowledged that denial of a lateral transfer might be materially adverse if the transfer would have increased promotion prospects, but Ortiz-Diaz's "bare assertion" was insufficient to establish the requisite harm.

In my view, the court's refusal to consider "subjective injuries," although likely consistent with circuit precedent, is contrary to the Supreme Court's decision in Burlington Northern & Santa Fe Railway v. White, 548 U.S. 53 (2006).

In Burlington Northern, the Court held that Title VII prohibits retaliatory actions that are materially adverse, meaning that they would dissuade a reasonable person from complaining about discrimination. The Court explained that the test for determining whether an action was materially adverse depends on the effects of an action on a reasonable person, since the standard must be objective so that it is "judicially administrable . . . [, and] avoids the uncertainties and unfair discrepancies that can plague a judicial effort to determine a plaintiff's unusual subjective feelings." The Court further explained, however:
Context matters. "The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81-82 (1998). 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.
Thus, the test for evaluating whether an employer action is materially adverse is objective in the sense that the action is evaluated from the perspective of a reasonable person, but it is nonetheless subjective in the sense that the action is evaluated from the perspective of a reasonable person in the shoes of the individual alleging discrimination

The inconsistency between Burlington Northern and Ortiz-Diaz is perhaps most apparent in the district court decision
Mr. Ortiz-Diaz's contention that the denial of his transfer request constituted an adverse employment action arises in part from the fact that he wished to live closer to his family. Such subjective, personal disappointments do not meet the objective indicia of an adverse employment action. . . . 
. . . In Medina v. Henderson, the D.C. Circuit held that an employee had not demonstrated that her employer's decision to relocate her from Denver to Washington, D.C. was an adverse employment decision because it would not "require a material change in appellant's title, duties, salary, benefits, or working hours, or otherwise amount to a constructive demotion." If an employer's decision to force an employee to move across the country is not, without more, an adverse employment decision, it is unlikely that the reverse -- denying an employee’s request to transfer across the country -- would be.
Had Ortiz-Diaz alleged retaliation, then pursuant to Burlington Northern, the fact that a transfer would have moved his duty station closer to his wife's would have been relevant in evaluating whether the denial of his transfer request was materially adverse. There seems no reason that a particular individual's circumstances should be disregarded merely because he alleged national origin discrimination instead of retaliation. Indeed, in Burlington Northern, the Court cited Oncale, a hostile work environment case, to support the proposition that "context matters" in evaluating material adversity. If an employee's particular circumstances are relevant for both retaliation and hostile work environment claims, then the same should hold true for a national origin claim challenging a lateral transfer. And pursuant to Burlington Northern, the consideration of a particular individual's personal circumstances is not only permissible -- it is required.

Update: For a discussion of the reissued decision (which is very different), see this post.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.