As I discussed in this prior post, I believe the court's refusal to consider subjective injuries is inconsistent with the Supreme Court's decision in Burlington Northern & Santa Fe Railway v. White, 548 U.S. 53 (2006). Because the transfers Ortiz-Diaz requested would have moved his duty station closer to his wife's, I think the court should have taken that into consideration in determining whether it was reasonable for him to have viewed the transfer denials as adverse.
In the reissued decision, as in the original, the panel did not consider subjective injuries, but it nonetheless concluded that Ortiz-Diaz had alleged that the transfer denials were materially adverse. The court explained that Ortiz-Diaz had alleged and presented evidence that he was denied a transfer away from a racially biased supervisor and that a lateral transfer away from the supervisor would have improved his career prospects.
What is most interesting about the new decision is the court's strong disapproval of the D.C. Circuit requirement that a plaintiff establish material adversity. Each of the panel members filed a separate concurrence arguing that a lateral transfer should be considered per se actionable, regardless of whether it is materially adverse. Specifically, Judge Judith Rogers contended that the D.C. Circuit should recognize that any transfer denied because of race or another protected characteristic is covered by Title VII; Judge Brett Kavanaugh contended that transferring an employee because of race "plainly constitutes discrimination with respect to 'compensation, terms, conditions, or privileges of employment'" under section 703(a)(1) of Title VII; and finally Judge Karen Lecraft Henderson contended that the defendant's transfer program could qualify as a "privilege" of Ortiz-Diaz's employment.
The thing is, the rejection of a materiality requirement would be inconsistent with the Supreme Court's decision in Burlington Northern. There, the Court explained that Title VII's retaliation provision is limited to "materially adverse actions":
We speak of material adversity because we believe it is important to separate significant from trivial harms. Title VII, we have said, does not set forth "a general civility code for the American workplace."The requirement of material adversity would apply no less to someone alleging discrimination based on race (or color, sex, religion, or national origin) than it would to someone alleging retaliation. Indeed, if there is a difference, then coverage is broader as to retaliation claims, not the reverse.
Although the concurrences in Ortiz-Diaz would have you believe that the D.C. Circuit's requirement of material adversity is an outlier position, that is not at all the case. So far as I know, this is the position of every court of appeals. Given the substantial body of case law requiring material adversity, including at the Supreme Court level, any hope that the materiality requirement will be abolished seems little more than a pipe dream.
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.
