PARDO-KRONEMANN v. DONOVAN No. 08-5155.
601 F.3d 599 (2010)
Jose PARDO-KRONEMANN, Appellant v. Shaun L.S. DONOVAN, Secretary of Housing and Urban Development, Appellee.
United States Court of Appeals, District of Columbia Circuit.
Decided April 16, 2010.
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.
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.
Appellant Jose Pardo-Kronemann first worked at HUD as a graduate student intern in the Office of International Affairs
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 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 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]
Pardo-Kronemann learned nothing of the impending transfer until December. Although his position description 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,
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 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,
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 judgment as a matter of law.'" Holcomb v. Powell,
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,
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
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:
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 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, 106 S.Ct. 2505.
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,
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 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 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.
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;
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,
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 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,
According to the OGC Attorney Advisor position description, Pardo-Kronemann "perform[ed] a variety of difficult and complex
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, 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;
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 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.,
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:
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 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
The dissent also relies on a passage in HUD's reply brief. See Dissenting Op. at 614. Although district courts, like this court, generally deem arguments made only in reply briefs to be forfeited, see, e.g., Jones v. Mukasey,
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 614. 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 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.
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.
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 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,
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
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,
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.
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 614. 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:
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 609.
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:
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 607.
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 607.
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,
Maj. Op. at 609-10. 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."
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:
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 608-10. First is the observation that HUD conceded
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 610 ("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 609-10. 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 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.
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,
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.
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,
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.
* * *
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, 126 S.Ct. 2405 (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 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.
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
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 not,
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 either,
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 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.
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,
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.
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.
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 F.3d at 364-65. His numerous arguments to the contrary are smoke and mirrors.
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