[00:00:01] Speaker 00:
Case number 15-508, Samuel Ortiz Diaz, Appellant, versus United States Department of Housing and Urban Development, Office of Inspector General.

[00:00:11] Speaker 00:
Ms.

[00:00:11] Speaker 00:
Gaines for the appellant, Mr. Schwabe for the appellee.

[00:00:41] Speaker 01:
Ms.

[00:00:41] Speaker 01:
Gaines, good morning.

[00:00:43] Speaker 01:
Good morning, Your Honors, and may it please the court, I'd like to reserve four minutes for rebuttal time.

[00:00:48] Speaker 01:
My name is Eden Brown Gaines and my client behind me is Samuel Ortiz Diaz.

[00:00:53] Speaker 01:
And I'm introducing him because it's important that the court know that Mr. Ortiz has dedicated his adult life to the service of this nation and the enforcement of its laws.

[00:01:02] Speaker 01:
And he went to the district court asking that the district court enforce Title VII on his behalf.

[00:01:08] Speaker 01:
Imagine, Your Honors, that there is a water cooler

[00:01:11] Speaker 01:
in the office environment and above the water cooler is a sign that reads whites only.

[00:01:20] Speaker 01:
A water cooler is a benefit that we all can agree is not required for the employer to provide.

[00:01:27] Speaker 01:
It's simply a benefit, something that helps the employees get through their day.

[00:01:32] Speaker 01:
A benefit that we all should agree cannot be doled out in a discriminatory fashion.

[00:01:38] Speaker 01:
We can agree that there actually should be no rights only sign above the water cooler in the employment environment.

[00:01:44] Speaker 01:
It is unlawful.

[00:01:46] Speaker 01:
Unlawful even though not a penny is lost by any worker.

[00:01:51] Speaker 01:
Unlawful even though no one lost control of a major budget.

[00:01:55] Speaker 01:
No one lost supervisory duties.

[00:01:58] Speaker 01:
Unlawful even though it's a benefit that is not in any way related to the actual workplace.

[00:02:04] Speaker 03:
Although presumably backed up by a constitutional provision.

[00:02:08] Speaker 01:
I'm sorry, Your Honor, I can't hear you.

[00:02:10] Speaker 03:
Although presumably backed up by a constitutional claim.

[00:02:15] Speaker 01:
It's unlawful because Title VII says that, plain and simple, there cannot be any discrimination in the workplace.

[00:02:22] Speaker 01:
And you can't discriminate based on race, and in this case, race and national origin.

[00:02:27] Speaker 01:
But I think if the district court opinion stands, employers will be free to place whites-only signs over benefits and privileges of employment, any benefit and privilege of employment.

[00:02:39] Speaker 01:
And that is not within the meaning of Title VII.

[00:02:42] Speaker 01:
And I think for the court, that should be something that is untenable.

[00:02:45] Speaker 01:
There are three issues in this case, Your Honors, before the court.

[00:02:49] Speaker 01:
The first is whether participation in HUD OIG's voluntary no-calls transfer program constitutes an adverse action within the meaning of Title VII.

[00:03:00] Speaker 01:
And the district court said it doesn't, but clearly the denial of that benefit does constitute a violation because it is an adverse action under the law of this circuit.

[00:03:10] Speaker 03:
Well, what's your strongest case?

[00:03:12] Speaker 03:
The strongest in this circuit?

[00:03:15] Speaker 01:
Well, there's several cases in the circuit.

[00:03:17] Speaker 01:
We've cited to Stewart versus Ashcroft, Brown versus Brody.

[00:03:21] Speaker 01:
And it's not in our brief, but also a similar issue came up in Schakowsky versus Peters.

[00:03:26] Speaker 03:
What I'm getting at is this circuit has a fairly high bar for what constitutes an adverse action.

[00:03:36] Speaker 03:
And it's not enough that, in your hypothetical, you don't want the sign over the water cooler.

[00:03:45] Speaker 03:
you have to show that something concrete happened.

[00:03:51] Speaker 03:
And as I read your papers, the strongest statement that you have, because the district court said you simply didn't present evidence of these adverse consequences,

[00:04:09] Speaker 03:
is the effect on your client's career path.

[00:04:16] Speaker 03:
That's paragraph 12 of plaintiff's declaration.

[00:04:26] Speaker 03:
So the argument here is that one, using your water cooler analogy, that anybody could drink water from the fountain.

[00:04:40] Speaker 03:
and only minorities were being prevented.

[00:04:52] Speaker 03:
As you're arguing here, as I understand your case, you think that's enough for Title VII.

[00:04:58] Speaker 03:
But our cases,

[00:05:02] Speaker 03:
in Brown versus Brody, and then we backed off a little bit on that.

[00:05:08] Speaker 03:
But we've had cases where people have shown they didn't get a promotion, they didn't get a bonus, that type of thing.

[00:05:18] Speaker 03:
I mean, it's concrete.

[00:05:20] Speaker 03:
And the most concrete thing I could find was paragraph 12.

[00:05:25] Speaker 03:
Is there anything more?

[00:05:27] Speaker 01:
There's two things, Your Honor, and I think one speaks to exactly what you're saying, and the other speaks to the improper whittling down of what Title VII's remedial purposes really are to be.

[00:05:38] Speaker 01:
So addressing your argument first, yes, I mean, this court has said clearly, if there is a denial of a benefit that impacts some materially adverse consequence, like your pay,

[00:05:51] Speaker 02:
your leave, your job responsibilities.

[00:05:56] Speaker 02:
But not just pay or leave.

[00:05:58] Speaker 02:
It's a benefit.

[00:05:59] Speaker 03:
And as you're noting... I understand your argument about whittling down Title VII, but this panel certainly has to apply the law of this circuit.

[00:06:08] Speaker 03:
And we have required these concrete

[00:06:14] Speaker 01:
that's right.

[00:06:16] Speaker 01:
And there's two points with respect to the law of the circuit.

[00:06:19] Speaker 01:
It's one when you pointed out Mr Ortiz did produce evidence that showed materially adverse impact.

[00:06:25] Speaker 01:
He was going to move to region one or two where the work was more high profile.

[00:06:29] Speaker 01:
The court

[00:06:29] Speaker 01:
The court in Stewart versus Ashcroft talked about future opportunities, not just something that's happening in the present, but future opportunities.

[00:06:37] Speaker 01:
And that idea is that I'm trying to make a move.

[00:06:40] Speaker 01:
I'm doing something that's going to give me the opportunity to be promoted, to gain the skills and experience that's going to enhance my career in a way that may have some pecuniary result.

[00:06:50] Speaker 01:
And so Mr. Ortiz produced evidence which clearly indicated that the regions that he was trying to move to, region one and two, were more sophisticated.

[00:06:57] Speaker 03:
that evidence?

[00:06:59] Speaker 01:
That is an affidavit that was noted there also in his testimony.

[00:07:05] Speaker 01:
So he's saying clearly that there is an issue here about future opportunities.

[00:07:09] Speaker 01:
He also brought up the point about wanting to get away from the discriminatory decision maker.

[00:07:15] Speaker 01:
The agency says that that is speculative, but indeed it wasn't speculative.

[00:07:18] Speaker 01:
We're talking about a decision maker who probably had more complaints against him for discrimination than there are cherry blossoms around the title basin.

[00:07:27] Speaker 03:
But he promoted your client.

[00:07:28] Speaker 01:
He actually promoted my client when he was the only candidate who had applied for the position.

[00:07:34] Speaker 01:
And so when he moved to the GS-14 position in Washington, DC, no one else wanted the job.

[00:07:39] Speaker 01:
No one else wanted to work there.

[00:07:40] Speaker 01:
So you could call it a promotion, but it was actually just the fact that there was nobody else who was interested.

[00:07:45] Speaker 03:
He was getting more money for the work he was doing.

[00:07:48] Speaker 01:
He was, but you have to understand the culture of HUD OIG, Your Honor.

[00:07:51] Speaker 03:
Well, that's my point.

[00:07:53] Speaker 03:
Where is that evidence?

[00:07:56] Speaker 01:
That brings me to the second point.

[00:07:58] Speaker 01:
I think there is evidence in the record that he's put forward that says that it impacted his future opportunities.

[00:08:03] Speaker 01:
But there was a motion to compel that was pending.

[00:08:06] Speaker 01:
And Mr. Ortiz was seeking evidence.

[00:08:08] Speaker 01:
Now, the district court denied the motion to compel, claiming that there's no evidence that was being requested that could have helped Mr. Ortiz because he was finding that there was no adverse action.

[00:08:17] Speaker 01:
But that, in fact, was not correct.

[00:08:19] Speaker 01:
Part of the subject of the motion to compel were what are called peer review reports.

[00:08:24] Speaker 01:
And within those reports, there would have been evidence to have suggested the nature of the work.

[00:08:29] Speaker 01:
It would have made it clear for the court, and perhaps a jury or a fact finder, why it was important for Mr. Ortiz to be able to move to this region.

[00:08:37] Speaker 01:
There was some testimony in the record from Rene Febles, who was what they call the SAC, the Special Agent in Charge over Region 2, who was actually looking or seeking for an extra agent

[00:08:49] Speaker 01:
in Region 2 because of the nature of the work and the need to have someone who is more senior level or high level actually come and perform there.

[00:08:57] Speaker 01:
So what we didn't get, these peer review reports would have given the court examples of what exactly was needed, the kind of work that was needed, where the agency was faltering by not perhaps having this individual there, but that's discovery that we never got, and it wouldn't be appropriate to

[00:09:14] Speaker 01:
deny the appellant the opportunity to get to a jury when the district court and the government purposely blocked their access to the kind of material and information that would support their claim.

[00:09:27] Speaker 01:
When I speak to the whittling down of Title VII, I'm actually not speaking to the concept that if you can prove that there's a materially adverse or significant impact on future opportunities, then you can get to a jury.

[00:09:38] Speaker 01:
I'm actually speaking to the very beginning, just the basics of Title VII and its remedial purposes.

[00:09:45] Speaker 01:
And Title VII is clearly designed to extirpate discrimination from the workplace.

[00:09:51] Speaker 01:
And so here we have a scenario.

[00:09:53] Speaker 01:
If we're going to say that, hey, there's nothing here, there's nothing adverse, there's nothing that actually happened to him and the denial of this transfer, you're creating a scenario where an employer can say,

[00:10:04] Speaker 01:
We're going to have a benefit.

[00:10:06] Speaker 01:
We're going to create a benefit.

[00:10:08] Speaker 01:
And we can dole out this benefit so long as there's no pecuniary loss.

[00:10:12] Speaker 03:
So long as... So the peer review report, you say, would talk about the nature of the work in Region 1 or 2?

[00:10:23] Speaker 01:
That is the expectation.

[00:10:24] Speaker 01:
I never actually saw all of them, but my understanding from my client is that it shows what's wrong.

[00:10:30] Speaker 01:
It shows what's going on in the region, and it shows where they're faltering.

[00:10:35] Speaker 01:
The idea at that time was that Mr. Febules was looking for another agent to fit into that region because of the nature of the work that needed to be performed in that region.

[00:10:46] Speaker 01:
The same can be said.

[00:10:46] Speaker 01:
He was also seeking to go to region one, and the peer reviews may have

[00:10:50] Speaker 01:
demonstrated in region one that there was a need, an actual need for the work.

[00:10:57] Speaker 03:
So in your motion to compel, does it proffer to the district court that this type of evidence would demonstrate how his career, his future opportunities

[00:11:13] Speaker 01:
The motion to compel just simply indicated the types of evidence that we were looking for.

[00:11:18] Speaker 01:
It indicated that he had not gotten peer review reports.

[00:11:22] Speaker 01:
There were other evidence that also wasn't provided, so it kind of listed.

[00:11:26] Speaker 03:
But you've read the district court's opinion.

[00:11:29] Speaker 03:
Yes.

[00:11:30] Speaker 03:
And it's saying, as I read it,

[00:11:36] Speaker 03:
there weren't these proffers.

[00:11:38] Speaker 01:
The district court's opinion said that because the district court is finding that there wasn't an adverse action, there's nothing about what was in the motion to compel that would help Mr Ortiz.

[00:11:49] Speaker 01:
And it wasn't on the merits.

[00:11:52] Speaker 01:
I'm sorry.

[00:11:52] Speaker 03:
Why is that incorrect?

[00:11:55] Speaker 01:
It's incorrect because there was plenty of evidence that Mr. Ortiz was seeking in the motion to compel that would have assisted him.

[00:12:02] Speaker 03:
It may not have.

[00:12:03] Speaker 03:
And did the motion to compel make that clear to the district court?

[00:12:09] Speaker 01:
The motion to compel gave reasons for why all of the evidence was needed and why it was probative of the discrimination that he was trying to prove.

[00:12:18] Speaker 03:
I mean, it's clear he wants to move.

[00:12:20] Speaker 03:
It's clear he doesn't like his supervisor.

[00:12:23] Speaker 03:
It's clear he doesn't think he's being treated fairly on the basis of his race.

[00:12:36] Speaker 03:
And the district court says, that's not enough, just your personal feelings.

[00:12:44] Speaker 03:
I need hard evidence that your pay is affected, your future opportunities are adversely affected.

[00:12:53] Speaker 01:
Well, interestingly enough, Your Honor, the district court said two things.

[00:12:57] Speaker 01:
So it was also clear that white individuals were allowed this benefit and privilege

[00:13:03] Speaker 01:
at a whim.

[00:13:04] Speaker 01:
And Mr Ortiz is the only person in the record who wasn't granted this privilege.

[00:13:08] Speaker 01:
But in the motion to dismiss, I'm sorry, Your Honor.

[00:13:11] Speaker 01:
the district court's motion to dismiss which is also published.

[00:13:15] Speaker 01:
The district court said that allegations that an employee was denied a transfer which impacted career opportunities easily satisfied the standard.

[00:13:25] Speaker 01:
That was in the district court's opinion denying the government's motion to dismiss.

[00:13:30] Speaker 06:
What about the specific facts here of Albany and Hartford and

[00:13:35] Speaker 06:
The government's alternative argument for firmness here is that even assuming there's an adverse employment action, they proffer legitimate nondiscriminatory reason for what happened here, and there wasn't sufficient evidence shown to undermine that.

[00:13:51] Speaker 01:
I think that's not true.

[00:13:53] Speaker 01:
I think there is sufficient evidence in the record that shows that the decision-makers' reasons are not worthy of credence.

[00:13:58] Speaker 01:
The decision-makers advanced two reasons.

[00:14:01] Speaker 01:
One, they said that there was no office in Albany.

[00:14:05] Speaker 01:
And Mr. Ortiz proffered evidence that showed that these investigators, they work with law enforcement, sometimes the U.S.

[00:14:11] Speaker 01:
Attorney's Office, sometimes the local police.

[00:14:14] Speaker 01:
They didn't actually need to be housed in a HUD OIG office that housed an investigations aspect of the line of business.

[00:14:21] Speaker 01:
We gave examples of offices, Billings, Montana, that weren't actual brick and mortar offices for HUD OIG investigators, and yet officers were working out of those offices.

[00:14:32] Speaker 01:
We gave evidence that Mr. Febulous had told Mr. Febulous.

[00:14:35] Speaker 06:
But that's different from the transfers of the similarly situated

[00:14:40] Speaker 06:
officers where there was a need in the other offices for them, at least that's what the government says.

[00:14:47] Speaker 06:
Can you respond to that?

[00:14:47] Speaker 01:
Yes, sir.

[00:14:48] Speaker 01:
The evidence in the record is not that there was a need for these transfers when white people transferred.

[00:14:53] Speaker 01:
The evidence in the record is that, hey, I want to move because my husband lives in Boston.

[00:14:57] Speaker 01:
Can I move there?

[00:14:58] Speaker 01:
I want to move because I don't like Grand Rapids, Michigan.

[00:15:01] Speaker 01:
Can I move to Texas?

[00:15:03] Speaker 01:
That's the evidence in the record.

[00:15:04] Speaker 01:
There's actually no evidence that the government proffered was suggested there was a need for any of the numerous white officers who were allowed this benefit to transfer.

[00:15:12] Speaker 01:
The second aspect of your first question, Your Honor, was also that the Harford position was no longer available.

[00:15:21] Speaker 01:
And the evidence in the record was that the position, there was a white special agent who'd asked to move to Boston because she wanted to live with her husband.

[00:15:30] Speaker 01:
She vacated the position that Mr. Ortiz was seeking the transfer to.

[00:15:34] Speaker 01:
When he asked for it, Mr. McCarty said, oh, it was a mistake.

[00:15:37] Speaker 01:
We weren't supposed to put it out.

[00:15:38] Speaker 01:
But there's actually evidence on the record where he's sending an email to his deputy saying send out this announcement.

[00:15:44] Speaker 06:
They said that was a mistake.

[00:15:47] Speaker 06:
That could be you may disbelieve that, but isn't

[00:15:49] Speaker 06:
What's the evidence in the record show that it wasn't a mistake?

[00:15:52] Speaker 01:
I think there's evidence that a fact finder could find Mr. McCarty not credible because he claimed in his deposition when I first asked him that it was a mistake.

[00:16:01] Speaker 01:
I knew it was a mistake.

[00:16:02] Speaker 01:
I never intended to do it.

[00:16:03] Speaker 01:
He didn't know I had that email where he's actually asking for this person to send this announcement out.

[00:16:09] Speaker 01:
And he couldn't explain why he later asked that individual to send the announcement out.

[00:16:13] Speaker 01:
The other aspect of it is that when Mr. Ortiz, the Hispanic individual, asked for it, he said no.

[00:16:19] Speaker 01:
But a couple of months later, another white special agent from South Carolina asked to go to that position.

[00:16:25] Speaker 01:
And that was granted over the objection of the special agent in charge over that region.

[00:16:30] Speaker 01:
He said she was actually needed in the region, and she couldn't go.

[00:16:33] Speaker 01:
And Mr. McCarty overruled that SAC and sent that white agent

[00:16:37] Speaker 01:
into the very position that he says wasn't available and that nobody could work.

[00:16:41] Speaker 01:
So I think that's sufficient evidence for a jury to find that his reasons for denying the transfer are not worthy of credence.

[00:16:49] Speaker 01:
I think also with respect to the motion to compel, we were also seeking evidence on the way the offices were set up.

[00:16:56] Speaker 01:
They had given us the picture of offices as of May 2011.

[00:17:01] Speaker 01:
And mind you, these things were going on in the fall of 2010.

[00:17:05] Speaker 01:
So we were seeking information about what the office picture looked like, where people were working at that time, and they refused to give us that evidence.

[00:17:12] Speaker 01:
And so we were also seeking in the motion to compel to have the evidence to kind of bolster that claim that there were many agents who were working in different offices at the time and not necessarily tethered to an office that showed investigations.

[00:17:26] Speaker 01:
I mean, I think all in all,

[00:17:28] Speaker 01:
what was confusing for me is that the district court seemed to be on the right track in denying the motion to dismiss.

[00:17:34] Speaker 01:
And then there was some inexplicable change in the standards of speak.

[00:17:38] Speaker 01:
I think this case meets the standards and we adverse employment.

[00:17:41] Speaker 01:
Yes, sir.

[00:17:41] Speaker 01:
Yes, sir.

[00:17:42] Speaker 01:
And what we also haven't talked about is the Supreme Court's case and he Sean versus Baldy, I mean, which says it, I think best in that case, the court made clear that when there is a benefit

[00:17:52] Speaker 01:
And I don't think there's any denial that this voluntary no-cost transfer program, which was actually an organized program, it wasn't ad hoc decisions made to move people around, although for white individuals, it tended to work that way.

[00:18:06] Speaker 01:
There was an actual program that was a benefit to offset this mobility clause, to move people around so that they could get the kind of experience that they needed.

[00:18:15] Speaker 01:
And in Hishon versus King and Spalding, the Supreme Court clearly said that you cannot dole out a benefit

[00:18:22] Speaker 01:
in a manner that is discriminatory.

[00:18:24] Speaker 01:
And I think inherent in that discussion, inherent in that decision, is the idea that even if there's no loss of pay, even if there's no loss of supervisory duties, even if you don't lose your budget like in Tchaikovsky versus Peters, there can still be an adverse action because we're not going to allow employers to give benefits only to individuals based on protected classes.

[00:18:48] Speaker 01:
And that's exactly what is happening here at HUD-OIG.

[00:18:52] Speaker 01:
You have a discriminatory decision-maker saying that only whites can drink at the water fountain.

[00:18:57] Speaker 01:
Only whites can participate in this program.

[00:19:00] Speaker 01:
And that is not what Title VII allows.

[00:19:03] Speaker 01:
Title VII says that's not okay.

[00:19:05] Speaker 01:
And this court... Let me stop you referring to more questions because you're out of time.

[00:19:09] Speaker 04:
We'll give you a couple minutes to reply.

[00:19:11] Speaker 04:
Sure.

[00:19:11] Speaker 04:
Thank you.

[00:19:14] Speaker 04:
Mr. Shoibi?

[00:19:24] Speaker 07:
May it please the court.

[00:19:31] Speaker 07:
Mr Ortiz has provided no evidence that being denied his request to move to a location closer to his wife because of his own personal preference to a position that would have resulted in a demotion

[00:19:50] Speaker 07:
from a senior special agent, supervisory special agent position at a GS-14 to a GS-13 position outside of headquarters rises to the level of what this court has repeatedly found to be the necessities, the requirements for an adverse employment action.

[00:20:08] Speaker 03:
Was the demotion true as to the Hartford position?

[00:20:12] Speaker 07:
I'm sorry, Your Honor.

[00:20:12] Speaker 03:
Was the demotion true as to the Hartford position?

[00:20:17] Speaker 07:
I believe it was.

[00:20:18] Speaker 07:
For both positions, Your Honor, he was a GS-14.

[00:20:27] Speaker 07:
And I believe it was in the record that moving to another position, he would have had to take the demotion down to a GS-13.

[00:20:35] Speaker 03:
So neither of those, that didn't enter into the reasons given?

[00:20:43] Speaker 07:
That didn't enter into the reasons given?

[00:20:45] Speaker 03:
Two reasons were given.

[00:20:46] Speaker 03:
He couldn't transfer to Albany because there was no office.

[00:20:49] Speaker 07:
That was the primary reason, yes.

[00:20:52] Speaker 03:
All right.

[00:20:53] Speaker 03:
But there's all this evidence you don't need in office.

[00:20:56] Speaker 07:
I'm sorry.

[00:20:58] Speaker 07:
The key, Your Honor, is in the program itself.

[00:21:05] Speaker 07:
The no cost transfer program strictly says,

[00:21:10] Speaker 07:
Employees will be considered for each geographic location identified as vacancies become available.

[00:21:23] Speaker 07:
There was no vacancy in Albany.

[00:21:25] Speaker 07:
There was no vacancy in Hartford.

[00:21:28] Speaker 06:
But the response is that there's disputes about that on Albany that you didn't have to, you could be assigned to an office, another existing office with Hartford that someone was assigned there the following year, I think.

[00:21:45] Speaker 06:
And so that a jury from that evidence could reasonably conclude that there was

[00:21:50] Speaker 06:
something of a vacancy.

[00:21:53] Speaker 06:
Now maybe in the end they wouldn't believe that, but that they could at least go through that evidence and figure it out.

[00:22:01] Speaker 07:
Two points, Your Honor.

[00:22:02] Speaker 07:
The first point, and this really is the primary point here, this is under no circumstances an adverse employment action.

[00:22:08] Speaker 07:
Okay, first of all, before I get into the facts of this transfer,

[00:22:11] Speaker 07:
But even when you get into the facts of the transfer to Hartford, you'll see that the transfer to Hartford, this position was not available until after Mr. Ortiz had even left the agency.

[00:22:23] Speaker 06:
The departure of Michelle Jackson from Boston, the movement of- You have the email that goes out, and then you have, okay, that's a mistake, and then you have, six months later, someone filling the spot in Hartford.

[00:22:40] Speaker 06:
Right?

[00:22:41] Speaker 07:
There's enough chronology?

[00:22:45] Speaker 07:
That was because Jackson left Boston subsequently.

[00:22:52] Speaker 07:
I mean, these are separate events.

[00:22:54] Speaker 07:
The email went out.

[00:22:55] Speaker 07:
The email was a mistake.

[00:22:57] Speaker 07:
And remember, Ortiz didn't apply for this position even after it went out and it was a mistake.

[00:23:03] Speaker 07:
He didn't express an interest in going to Hartford until October, until much later, at which point, well after that mistake had been

[00:23:11] Speaker 07:
acknowledged.

[00:23:11] Speaker 07:
I wasn't officially withdrawn.

[00:23:12] Speaker 06:
I understand how someone could think.

[00:23:14] Speaker 06:
Okay, there's an email that goes out saying there's a vacancy and then they when you press them on it, they say that's a mistake.

[00:23:21] Speaker 06:
And then the next year they actually do fill a spot there.

[00:23:24] Speaker 06:
Don't you think that's enough for a jury to think something's foot?

[00:23:29] Speaker 07:
Um, your honor, I don't think it is because the facts as as

[00:23:33] Speaker 07:
in this record indicate that that position, again, was not even open and available until after Ortiz left.

[00:23:42] Speaker 07:
But again, we have to go to the primary point here.

[00:23:45] Speaker 07:
I mean, I can get into the weeds on these arguments, and I think the government prevails on all of them.

[00:23:50] Speaker 07:
But I think that the primary argument here is there is no way this is an adverse employment action.

[00:23:55] Speaker 07:
It doesn't rise to the level.

[00:23:57] Speaker 07:
Appellant relies on the Hishon case.

[00:23:59] Speaker 07:
The Hishon case deals with consideration for partnership in a law firm.

[00:24:04] Speaker 03:
An attorney enters practice... So his argument is he's trying to get experience in the field that will enhance his experience and

[00:24:18] Speaker 03:
enable him to obtain advancement in the future.

[00:24:23] Speaker 07:
The record is replete with evidence that the reason Mr. Ortiz wanted to move is because he wanted to be close to his life.

[00:24:30] Speaker 03:
Could have more than one reason.

[00:24:35] Speaker 07:
It still doesn't fall into any possible case law that says this is a unanimous employment action.

[00:24:43] Speaker 03:
We've got this declaration

[00:24:47] Speaker 03:
where he suggests that being in headquarters is a dead end.

[00:24:53] Speaker 03:
Ignore the discrimination aspects of it.

[00:24:57] Speaker 03:
You've got to get out in the field where you get involved in these interesting and challenging, sophisticated, sensational investigations.

[00:25:08] Speaker 03:
So he wants to get out there.

[00:25:10] Speaker 03:
And he wants to get out there

[00:25:13] Speaker 03:
to enhance his future opportunities.

[00:25:16] Speaker 03:
And he wants to be near Albany as opposed to Spokane, Washington.

[00:25:24] Speaker 07:
And he does this approximately six months after the person who supposedly is discriminating against him, Mr. McCarty, places him in this position, this supervisory position at headquarters, a GS-14, for the advancement of his career,

[00:25:40] Speaker 03:
But do you understand what we're getting at?

[00:25:42] Speaker 03:
Excuse me.

[00:25:44] Speaker 03:
His perception is headquarters is sort of the dead end.

[00:25:49] Speaker 03:
He's willing to take a demotion to get out into the field, a demotion in pay, because he wants his experience.

[00:25:59] Speaker 07:
Well, I think Mr. Ortiz wants to have his cake and eat it too.

[00:26:05] Speaker 07:
And he moved to Washington specifically for the purpose of advancing his career.

[00:26:10] Speaker 07:
He made an agreement that he would be in that position from December 09 to December 10.

[00:26:16] Speaker 07:
He goes there.

[00:26:17] Speaker 07:
He's a supervisor.

[00:26:18] Speaker 07:
He's got a supervisor position.

[00:26:19] Speaker 07:
He's in headquarters.

[00:26:20] Speaker 07:
He's a 14.

[00:26:20] Speaker 07:
He's got an increase in pay, increase in a lot of things in terms of career.

[00:26:24] Speaker 07:
And then six months later, he says, I want to get out of here.

[00:26:27] Speaker 07:
I want to be closer to my wife.

[00:26:29] Speaker 07:
I don't think that it is.

[00:26:30] Speaker 03:
No, he says, I want to get out in the field to get this experience that will enhance my future opportunities.

[00:26:40] Speaker 07:
Well, the word speculative comes to mind, Your Honor.

[00:26:43] Speaker 07:
I mean, what he is saying, what he's trying to turn that into adverse.

[00:26:46] Speaker 03:
And that's what I want to understand.

[00:26:47] Speaker 03:
Is the government taking issue with his basic thesis?

[00:26:54] Speaker 03:
That infield experience is valuable for people who are seeking to advance within the organization.

[00:27:03] Speaker 03:
I didn't see that in your brief.

[00:27:05] Speaker 07:
I don't think we need to go there.

[00:27:06] Speaker 03:
No, but I mean you're not taking that position either.

[00:27:10] Speaker 03:
In other words, you're not saying that his desire is wholly a figment of his imagination.

[00:27:17] Speaker 07:
I'm saying that his desire that moving from a, and I'm sorry to repeat this again, but I think it is relevant, that his desire to move from a supervisory position out of headquarters to lower pay

[00:27:31] Speaker 07:
is going to somehow better his career is the definition of speculative.

[00:27:36] Speaker 07:
I mean, he may believe it, but that doesn't mean that it's anything that should be considered in terms of deciding the refusal to move him as an adverse action.

[00:27:46] Speaker 03:
Well, we can all cite examples of a lot of people who didn't get what they wanted and went on to do something else that looked like it was a step backward, and they advanced subsequently

[00:27:58] Speaker 03:
So that's not irrational.

[00:28:02] Speaker 07:
It's not irrational, but we can't say that it's an adverse action.

[00:28:06] Speaker 07:
Remember, what the court also pointed out was it was a request to be transferred.

[00:28:09] Speaker 07:
He got the request to be transferred.

[00:28:10] Speaker 03:
I know your idea is it's just an opportunity to submit a request.

[00:28:15] Speaker 07:
It's an opportunity to submit a request.

[00:28:16] Speaker 07:
He got that opportunity to submit a request, and he hasn't provided it.

[00:28:21] Speaker 07:
But even if we buy into his theory that it was the transfer that was promised,

[00:28:29] Speaker 07:
He didn't fulfill the terms of the transfer under the policy, because there was no position available.

[00:28:40] Speaker 07:
And there were no guarantees that he would get it.

[00:28:42] Speaker 06:
That's not to the adverse action part of the case.

[00:28:45] Speaker 06:
That's to the non-discriminatory explanation part of the case.

[00:28:50] Speaker 06:
That was my point earlier, but I think you're answering a different thing sometimes.

[00:28:55] Speaker 06:
On the adverse action.

[00:28:57] Speaker 06:
If you perceive this as helping your career, to follow up on Judge Rogers' question, and you've denied it, and you've denied it because of your race, why is that not an adverse action?

[00:29:14] Speaker 06:
Just the common sense of the term.

[00:29:17] Speaker 07:
because I think the case law doesn't support that type of speculative belief as being supportive of an adverse action.

[00:29:24] Speaker 07:
There has to be some type of either concrete loss in payer benefits, something that some tangible, I think the word that's used is tangible.

[00:29:33] Speaker 06:
Mr. Stewart versus Ashcroft talked about the structure of the organization as being relevant to and said,

[00:29:39] Speaker 06:
And we've drawn a line while generally lateral transfers or the denial of them could not be considered adverse employment actions, there are circumstances where they could be.

[00:29:48] Speaker 06:
So that's where we are.

[00:29:49] Speaker 06:
Where in the case, we don't have an absolute rule about a lateral transfers or else you'd prevail.

[00:29:54] Speaker 07:
Stewart's a great example.

[00:29:56] Speaker 07:
Because there, there was something tangible.

[00:29:59] Speaker 07:
Here's a person who's moving to become supervisory senior litigation counsel.

[00:30:04] Speaker 07:
That's something tangibly superior.

[00:30:06] Speaker 07:
It may affect his future career ability.

[00:30:08] Speaker 07:
It'll affect his prestige.

[00:30:10] Speaker 07:
It'll affect his employability in the future, that type of thing.

[00:30:14] Speaker 07:
That has nothing at all to do with saying, I want to move out, out of a supervisor position, that I have agreed to stay in for a year.

[00:30:21] Speaker 07:
I think that's, to me, that's an important point.

[00:30:24] Speaker 07:
Because he says, I'm going to do this job for a year, I'm going to take the 14, I'm going to be a supervisor, six months into it, he says, I want to leave.

[00:30:29] Speaker 07:
And there's nothing about the position that he's going to that has the indicia of being better, like a senior litigation counsel did in Stuart.

[00:30:37] Speaker 07:
I mean, I think that's a very clear distinction.

[00:30:40] Speaker 06:
But I guess the subjectivity makes this hard, because you use a legal analogy.

[00:30:45] Speaker 06:
If you're a main justice, and you want to be a judge someday, and you want to transfer to a local US attorney's office, and it's lower pay, but you think it'll help your chances of being a judge, and you're denied it because you're African-American, you're saying you're out of luck.

[00:31:00] Speaker 07:
Well, I think that if we look, if we're going to go by the case law,

[00:31:07] Speaker 07:
in this circuit, it remains speculative.

[00:31:12] Speaker 07:
I think it just has to be speculative.

[00:31:14] Speaker 07:
Anybody can say, I want to do this, I want to do that, because I think it's going to help me.

[00:31:18] Speaker 07:
And every time it's a jury question.

[00:31:20] Speaker 07:
The circuit has been clear.

[00:31:21] Speaker 07:
It has to be a loss in something tangible.

[00:31:25] Speaker 07:
It has to be pay.

[00:31:25] Speaker 07:
It has to be some type of tangible.

[00:31:27] Speaker 04:
It has to be objectively tangible.

[00:31:30] Speaker 04:
You haven't left out the word objectively.

[00:31:32] Speaker 07:
And I appreciate that, Your Honor.

[00:31:34] Speaker 07:
Objectively tangible.

[00:31:36] Speaker 07:
And there is nothing like that here.

[00:31:40] Speaker 03:
What about the lack of discovery?

[00:31:44] Speaker 07:
Well, you know, I think Judge Lambert, district court rather, I think district court perceived from what was going on here, there was a tremendous amount of discovery in this case.

[00:31:58] Speaker 07:
I mean, everything that could have been given to the plaintiff was given.

[00:32:04] Speaker 07:
And I don't want to bore the court with going through all this.

[00:32:07] Speaker 03:
Give me some examples.

[00:32:09] Speaker 03:
Oh, some relevant examples.

[00:32:11] Speaker 07:
Relevant examples.

[00:32:11] Speaker 07:
2,000 plus pages of documents, three disks.

[00:32:16] Speaker 07:
Oh, no, no, no, no, no.

[00:32:18] Speaker 03:
Not volume.

[00:32:20] Speaker 03:
OK.

[00:32:20] Speaker 03:
Content.

[00:32:22] Speaker 07:
Content.

[00:32:23] Speaker 07:
All the available information regarding who was transferred, what their

[00:32:37] Speaker 07:
GS level was, where it was available, what their race was.

[00:32:41] Speaker 07:
Part of the problem here is that a lot of this information was not kept.

[00:32:45] Speaker 07:
But everything that was kept was turned over.

[00:32:49] Speaker 03:
And it wasn't kept because of the records disposal process?

[00:32:54] Speaker 07:
I believe that's correct.

[00:32:54] Speaker 03:
Well, I'm just asking.

[00:32:56] Speaker 07:
Not only the records disposal process, but also it was not something that was compiled in that fashion.

[00:33:03] Speaker 03:
So who gets the benefit of that?

[00:33:09] Speaker 07:
Again, I think that, I think it goes back to, I focus on, because I did the discovery in this case, I know that discovery was tremendously burdensome, and we gave it to him anyway.

[00:33:24] Speaker 07:
But that still avoids the problem.

[00:33:25] Speaker 03:
But counsel, all you keep telling me about burdens on the government, you talk about the volume, I want to know the content so that the district court could be satisfied that

[00:33:38] Speaker 03:
this plaintiff could not show an adverse action.

[00:33:45] Speaker 03:
A tangible.

[00:33:49] Speaker 03:
Objectively tangible.

[00:33:52] Speaker 07:
Objectively tangible, the information that she requested regarding transfers was provided, the information regarding... So is the rule

[00:34:06] Speaker 03:
following up on Judge Kavanaugh's example, that the denial of the transfer in his example necessarily as a matter of law could not be an adverse action?

[00:34:19] Speaker 07:
The denial of the transfer where there is no, under the law of this circuit, lessening of pay, of benefits.

[00:34:31] Speaker 03:
So even if it's a dead-end job,

[00:34:34] Speaker 03:
You're pushing papers.

[00:34:36] Speaker 03:
You're preparing the budget.

[00:34:39] Speaker 03:
You're doing administrative stuff.

[00:34:42] Speaker 03:
And in order to be advanced in this position, what you need is to be out in the field and getting that type of experience.

[00:34:57] Speaker 03:
Does all of this turn on the fact that in order to get that experience that has the potential for future advancement, if you accept a reduction in pay, it necessarily as a matter of law cannot be an adverse action?

[00:35:16] Speaker 07:
not unless you can point to some other tangible, objectively tangible evidence showing that it would somehow be.

[00:35:27] Speaker 03:
And that's why I pointed out the government is not taking issue with his premise that field work is what gets you advanced in this organization, not sitting in headquarters.

[00:35:42] Speaker 07:
I'm not objectively taking exception to that.

[00:35:46] Speaker 07:
What I am taking exception to is just because I say it's the case, it's so.

[00:35:50] Speaker 07:
But just because I think it's the case, it's so.

[00:35:53] Speaker 07:
And that's, I think, why the circuit has emphasized this objectively tangible standard.

[00:35:58] Speaker 07:
You can't have people just saying, oh, I should have gotten this, I should have gotten that, because it's my belief that it would have helped me somehow.

[00:36:04] Speaker 07:
I mean, there has to be something beyond that.

[00:36:06] Speaker 03:
What would a plaintiff have to proffer?

[00:36:16] Speaker 07:
to show that going to a lesser pain.

[00:36:19] Speaker 03:
That of, take Judge Kavanaugh's example, that every judge on the federal bench has at some point in his or her career been an assistant US attorney.

[00:36:34] Speaker 03:
Now, is that what, would he have to come in with evidence to show that people who have advanced in the agency have always had

[00:36:45] Speaker 03:
field, infield experience?

[00:36:50] Speaker 07:
I think that... I don't want to concede that that type of proffer would necessarily get you there, but I think you certainly would have to do something... I can't see considering it unless there was something like that, that moving out... Well, if the government isn't challenging the premise, that's what I'm getting at.

[00:37:14] Speaker 03:
What's the evidence he has to offer?

[00:37:24] Speaker 07:
I think it would have to be something that would fit into the definition

[00:37:31] Speaker 07:
something that would better the terms, conditions, privilege, employment or future employment opportunities.

[00:37:36] Speaker 03:
I mean, you would have... Future employment opportunities.

[00:37:38] Speaker 03:
That's what we're focusing on.

[00:37:39] Speaker 07:
Probably have to proffer something that would say, you know, people that move out into the field generally do become promoted at a better rate than people who are stuck in headquarters getting paid more money in a supervisory position.

[00:37:52] Speaker 03:
How would he get that information?

[00:37:58] Speaker 03:
I gather from your answers here that that was not part of discovery.

[00:38:06] Speaker 07:
It was everything that was requested and available to the government was provided in discovery in this case.

[00:38:13] Speaker 03:
So are you saying the motion to compel was asking for things that didn't exist?

[00:38:18] Speaker 07:
I would say the motion to compel, everything was already provided in terms of what the motion was.

[00:38:22] Speaker 03:
Well, council represented that the peer reviews were not turned over.

[00:38:26] Speaker 03:
As I understood her argument.

[00:38:36] Speaker 07:
And I think that Judge Lambert correctly stated that the information sought, including the peer review, could not

[00:38:44] Speaker 07:
come up with information that would have somehow turned this transfer into an adverse employment action.

[00:38:50] Speaker 07:
This refusal to transfer somebody into a non-guaranteed position.

[00:38:53] Speaker 07:
Can we go back to that point as well?

[00:38:56] Speaker 07:
There was no position available.

[00:38:58] Speaker 07:
And the policy specifically said there are no guarantees.

[00:39:02] Speaker 07:
I think it might even have it in caps.

[00:39:04] Speaker 07:
It said there are no guarantees.

[00:39:07] Speaker 03:
But I thought the plaintiff proffered that

[00:39:11] Speaker 03:
The history of these transfers show that positions were created when these requests came in.

[00:39:17] Speaker 03:
So the fact of a pre-existing vacancy wasn't necessarily determinative.

[00:39:28] Speaker 07:
Well, the only circumstances in which it was not was one was a demotion.

[00:39:37] Speaker 07:
And the other, I believe, was not even something that was made.

[00:39:42] Speaker 07:
So much of the appellant's argument is based on the actions of Mr. McCarty.

[00:39:47] Speaker 07:
Mr. McCarty wasn't even involved in the other transfer, which I believe was pursuant to a settlement agreement.

[00:39:54] Speaker 06:
The problem here is our case law had what arguably was a fairly bright line, right?

[00:39:59] Speaker 06:
And Brody and then Stewart.

[00:40:03] Speaker 06:
I mean, you could argue that, but in any event, it's not so bright after Stewart, right?

[00:40:07] Speaker 06:
Judge Henderson, in Concurrence of the Judgments, Stewart talked about that.

[00:40:11] Speaker 06:
And now we're stuck with trying to figure out whether the, quote, circumstances of the case make it adverse or not.

[00:40:18] Speaker 06:
It's very, and this is more our problem than yours, I'm just commenting that it's very challenging because if you tell someone

[00:40:26] Speaker 06:
If someone applies for a lateral transfer and they're denied, they feel like it's an adverse action, understandably.

[00:40:32] Speaker 06:
Objectively, everyone would feel like, I wanted that, and I'm denied that.

[00:40:37] Speaker 06:
And you want it for a reason, because you think it's better for your career, your personal situation.

[00:40:43] Speaker 07:
Look at the best case that the appellant came up with.

[00:40:45] Speaker 07:
I mean, this is at the end.

[00:40:46] Speaker 07:
They have sections entitled in it.

[00:40:48] Speaker 07:
Haishan is the case we have to look at.

[00:40:50] Speaker 07:
Look at how different.

[00:40:51] Speaker 06:
I understand.

[00:40:52] Speaker 06:
I'm just talking about the real world and common sense, which is you apply for a job, a transfer within your organization because you think it's a better situation for you.

[00:41:03] Speaker 06:
That's why you do it, right?

[00:41:05] Speaker 06:
That's why we all do it.

[00:41:07] Speaker 06:
And if you're if.

[00:41:08] Speaker 06:
If you don't get it, it seems adverse.

[00:41:11] Speaker 06:
It seems like an adverse action.

[00:41:12] Speaker 06:
And if someone tells you you didn't get it because you're African-American, that really seems problematic.

[00:41:17] Speaker 07:
But this is our... But these are promotions.

[00:41:21] Speaker 07:
I feel like I've gotten away from the framework here.

[00:41:24] Speaker 07:
These are all dealing with promotions.

[00:41:26] Speaker 07:
Even appellate in her brief calls high on a promotion case.

[00:41:29] Speaker 07:
This isn't a promotion.

[00:41:30] Speaker 07:
This is a request to be transferred for the benefit of the agency.

[00:41:32] Speaker 06:
I understand that, but our case law doesn't draw a bright line that once arguably appeared about lateral transfers just being out altogether.

[00:41:41] Speaker 06:
You can't challenge a lateral transfer that did not have a lateral transfer.

[00:41:45] Speaker 06:
That arguably appeared in some earlier cases, but no longer is the bright line.

[00:41:50] Speaker 06:
And when it's not the bright line, it becomes very challenging for me to figure out

[00:41:55] Speaker 06:
to draw that line.

[00:41:56] Speaker 06:
Now, you have a whole second argument that, you know, it's the fact-specific argument that there really was no discrimination here sufficient to get to the student jury, and I take that argument.

[00:42:05] Speaker 06:
The adverse action part of the case I find very challenging because I don't think our law

[00:42:12] Speaker 06:
It's very clear, but I'm not sure it can be very clear.

[00:42:16] Speaker 06:
Unless we just say all lateral transfers are adverse actions or all lateral transfers are not adverse actions, it's going to be hard to figure out which ones are and which ones are not.

[00:42:27] Speaker 07:
If we look at the law of the circuit, though, if we look at Stuart, it has to be something.

[00:42:32] Speaker 07:
Stuart talks about a transfer to senior position.

[00:42:35] Speaker 07:
I think we are really, it's going to be, like you said, it's going to be very problematic if it becomes, it's my opinion that it's going to better my career to go here, but there's no way to objectively determine that.

[00:42:49] Speaker 07:
And I think recognizing that.

[00:42:51] Speaker 06:
There's no way to objectively disprove that.

[00:42:54] Speaker 06:
Exactly.

[00:42:55] Speaker 06:
That's the problem, I suppose, is that it's hard to say that's, oh, you're wrong.

[00:43:01] Speaker 06:
Actually, going out into the field is going to harm, it's no different for your career.

[00:43:05] Speaker 06:
You say, actually, I think it's going to improve my career prospects.

[00:43:09] Speaker 06:
And how do we know?

[00:43:10] Speaker 06:
And that's the problem.

[00:43:11] Speaker 06:
I mean, a bright line one way or the other would help us.

[00:43:13] Speaker 06:
But obviously, I think that would be problematic, too.

[00:43:17] Speaker 06:
And Stuart does not have a bright line.

[00:43:19] Speaker 07:
But again, but this case is not, I know you acknowledge what I just said.

[00:43:24] Speaker 07:
I'm going to say it again because I think it's important.

[00:43:26] Speaker 07:
And that is that when you're talking about adverse action, it has to be something more substantive than a program.

[00:43:31] Speaker 07:
It's something in the agency where it says, we can involuntarily move you wherever we want to move you.

[00:43:36] Speaker 07:
We'll pay your expenses for our benefit.

[00:43:38] Speaker 07:
And for our benefit as well, we'll allow you to apply if there's a position available to go someplace.

[00:43:46] Speaker 07:
You know, we get people who want to be in certain places for our benefit.

[00:43:49] Speaker 07:
But to bring that up to the level of this is, you know, I was denied this and this is an adverse action, it doesn't rise to that level.

[00:43:57] Speaker 07:
It's not even close to what the situation was in Haisham.

[00:43:59] Speaker 06:
What about the water fountain hypothetical?

[00:44:02] Speaker 07:
I'm sorry?

[00:44:03] Speaker 07:
What about the water fountain hypothetical?

[00:44:06] Speaker 07:
The water fountain hypothetical

[00:44:12] Speaker 07:
is a, well, I think there's all kinds of things that attach to the water fountain hypothetical.

[00:44:17] Speaker 07:
As Judge Rogers points out, there's constitutional protections there, but as well, I believe that there's an example.

[00:44:23] Speaker 07:
If you're denied an opportunity to go to a water fountain because of your race, there are all kinds of issues with

[00:44:30] Speaker 07:
being demeaned with placing somebody else above you, but with the type of things.

[00:44:35] Speaker 06:
But what if you're denied lateral transfers, could you erase?

[00:44:38] Speaker 06:
OK, all the white people can laterally transfer, but no one else.

[00:44:42] Speaker 06:
And under your theory of the case, that's not an adverse action.

[00:44:53] Speaker 06:
You could have an explicit policy that said that, and under your theory you'd say, that's right, that's not an adverse action.

[00:44:58] Speaker 06:
You have an alternative argument in this case.

[00:45:00] Speaker 06:
I understand that, so I'm not, you know, I understand.

[00:45:03] Speaker 06:
But I'm just saying your theory of the case goes very broadly into some hypotheticals that would be very problematic, which counsel's rightly pointed out.

[00:45:11] Speaker 07:
Right.

[00:45:11] Speaker 07:
Which I think goes back to the fact that there has to be some way to objectively determine what, in fact, is an adverse action.

[00:45:20] Speaker 07:
And I think the circuit has done that.

[00:45:21] Speaker 07:
And I think the appellant is trying to squeeze something in here that based on the case law and based on her own arguments where she focuses on a non-promotion case as the best example is not analogous.

[00:45:37] Speaker 03:
So, could I just hone in a little here?

[00:45:40] Speaker 03:
If there had been a proffer of testimony by, and I can't remember the name of the man who was in charge of the Albany office, let's just call him Mr. Jones, and if Mr. Jones... Fables.

[00:45:54] Speaker 03:
Excuse me?

[00:45:55] Speaker 07:
Was it Fables?

[00:45:56] Speaker 03:
I think it was... Well, you know who I'm referring to.

[00:46:00] Speaker 03:
If there had been an affidavit from him along the lines of saying that coming here would afford the plaintiff the type of experience he needs if he's going to move up in this organization, would that be enough?

[00:46:23] Speaker 03:
In other words, I suppose part of the argument here is all we have and I'll ask counsel for

[00:46:30] Speaker 03:
appellant here, all we have is the plaintiff's declaration.

[00:46:39] Speaker 07:
The plaintiff's speculation.

[00:46:41] Speaker 03:
Declaration.

[00:46:42] Speaker 03:
I'm sorry.

[00:46:43] Speaker 03:
Declaration under oath.

[00:46:47] Speaker 07:
I think if something like that existed, I think it would certainly support

[00:47:01] Speaker 07:
the speculation that it might somehow better his career prospects.

[00:47:07] Speaker 07:
I don't think it takes something like a request to transfer under a policy that is meant to benefit the agency and turn that into something that can be grounds for an adverse employment action, the denial of which can be grounds for an adverse employment action.

[00:47:23] Speaker 07:
It's just not the type of substantive change

[00:47:31] Speaker 07:
There was no change here.

[00:47:33] Speaker 07:
He was denied an opportunity to go someplace because there were no available positions out there.

[00:47:38] Speaker 07:
And that's that.

[00:47:40] Speaker 07:
Every other adverse action case talks about some kind of change.

[00:47:44] Speaker 07:
There's no change here.

[00:47:45] Speaker 07:
And if you look at the Medina case, which was decided by the circuit, there somebody was forcibly transferred to another location.

[00:47:53] Speaker 07:
And the court found that's not an adverse action.

[00:47:56] Speaker 07:
If a forcible transfer is not an adverse action, how can a refusal to transfer out

[00:48:01] Speaker 07:
And I keep going back to this because I can't stop thinking about it.

[00:48:04] Speaker 07:
A GS-14 supervisory position.

[00:48:08] Speaker 07:
He got what he needed to advance his career.

[00:48:10] Speaker 03:
You just can't accept the reality that for some people money isn't everything.

[00:48:16] Speaker 07:
I understand that too, but he did make an agreement to be there for a year.

[00:48:21] Speaker 07:
And the record is replete with him saying, I want to go back to my wife, which is a personal preference which the court has said should not be considered in an adverse action case.

[00:48:31] Speaker 07:
All right, thank you.

[00:48:33] Speaker 04:
Okay, thank you.

[00:48:34] Speaker 04:
Does Ms.

[00:48:34] Speaker 04:
Gaines have any time?

[00:48:37] Speaker 04:
All right, why don't you take two minutes.

[00:48:42] Speaker 01:
Just quickly, Your Honors, let me just point out a misstatement of the record.

[00:48:45] Speaker 01:
Mr. Ortiz was not in a supervisory position in CID, and there is evidence in the record that he wouldn't have had to have taken a demotion.

[00:48:53] Speaker 01:
They proffered evidence of several white investigators who had been in headquarters and moved out to the field who actually retained their grades as GS-14s, and then he gave evidence of also a GS-15 who retained the position.

[00:49:05] Speaker 01:
So it wasn't even about money in that sense.

[00:49:07] Speaker 01:
He would not have been taking a demotion to go back.

[00:49:09] Speaker 01:
It would not have been necessary for him to do so.

[00:49:12] Speaker 01:
I think what Judge Kavanaugh pointed out is very important about the state of the law here, and I think this case presents an opportunity to give some clarification in the context of an adverse action.

[00:49:23] Speaker 01:
I think what this court has said pretty clearly is that you have to look at the circumstances of the case.

[00:49:28] Speaker 01:
There is a general rule, and the rule is that sometimes a purely lateral transfer can be an adverse action, but we have to look a little closer at the facts or the circumstances in order to make that determination.

[00:49:39] Speaker 01:
And this case presents an opportunity for this court to actually do that in a context.

[00:49:44] Speaker 01:
And I think this court should certainly be guided by the basic principles of Title VII.

[00:49:49] Speaker 01:
As pointed out, as I stated, Title VII isn't about giving benefits to people because of their race or denying benefits to people because of their race.

[00:49:58] Speaker 01:
If the court just goes back to the basics and takes the opportunity to clarify here,

[00:50:02] Speaker 01:
The decision has to be that we're not going to allow a circumstance where a benefit of employment, even if it was a purely lateral transfer, can be meted out in a discriminatory fashion.

[00:50:12] Speaker 06:
The challenge is, I think, if we accept your position, it's going to be hard to ever say that a denial of a lateral transfer is not an adverse employment action.

[00:50:22] Speaker 01:
I don't think that's a problem where there is evidence in the record that something is given to people based on race.

[00:50:28] Speaker 01:
That can never be OK.

[00:50:29] Speaker 06:
So you're saying it's not a problem that all denials of lateral transfers

[00:50:33] Speaker 06:
could be adverse employment actions.

[00:50:36] Speaker 01:
I'm saying anytime there's evidence that there's a benefit of employment in the workplace that was given exclusively to people because of their race or where they were born or their religion or any, you know, or if you're denied that benefit because of an immutable characteristic, that is never okay.

[00:50:53] Speaker 01:
And perhaps as the law has evolved, there was this thought that discrimination issues were better in the workplace.

[00:51:00] Speaker 01:
The courts don't need to be as vigilant.

[00:51:02] Speaker 01:
I think anybody who's watching Trump's rise knows that that's not true in this country.

[00:51:07] Speaker 01:
And this is the court's chance to restate that we're sticking to the principles of Title VII, and we're not going to allow discrimination in the workplace, period.

[00:51:17] Speaker 01:
I think in this case,

[00:51:18] Speaker 01:
It fits within Stewart v. Ashcroft, because there is, as Judge Rogers pointed out, evidence that there would have been something for his career.

[00:51:26] Speaker 01:
There was a benefit.

[00:51:28] Speaker 01:
And it's important to note that his affidavit is undisputed.

[00:51:31] Speaker 01:
The plaintiff can give testimony to his own benefit, and the government offered no testimony that disputed that.

[00:51:38] Speaker 01:
I think if I look closer to the record, I could also tell you that his very first... You're out of time.

[00:51:42] Speaker 03:
Judge Rogers has a question.

[00:51:44] Speaker 03:
What about the government's alternative argument?

[00:51:47] Speaker 03:
insufficient, assume that you get over the first hurdle.

[00:51:52] Speaker 03:
What about the second hurdle?

[00:51:54] Speaker 03:
Insufficient evidence to get to the jury.

[00:51:56] Speaker 01:
I think that's just absolutely not true.

[00:51:58] Speaker 01:
As discussed before, I think there's plenty of evidence for a jury to find that the discriminatory reasons for not transferring him, that there was no office in Albany and that there was no vacancy, is not true.

[00:52:10] Speaker 01:
In the record, it shows that

[00:52:12] Speaker 03:
that there's enough evidence in the record to show that the reasons given were pretextual.

[00:52:16] Speaker 01:
Oh, absolutely.

[00:52:17] Speaker 01:
Absolutely.

[00:52:18] Speaker 03:
Well, is that your argument?

[00:52:19] Speaker 01:
Yes, ma'am.

[00:52:19] Speaker 01:
Yes, ma'am.

[00:52:20] Speaker 01:
Special Agent Michaela Jackson asked to leave Hartford.

[00:52:23] Speaker 01:
There is a memo in the record from Diane DeShellis, who was the supervisor, asking to replace Miss Jackson.

[00:52:29] Speaker 01:
The court should note that when Miss Jackson left, there was no evidence that she was leaving for a vacancy.

[00:52:35] Speaker 01:
in Boston, she was just asking to go there because she wanted to get married.

[00:52:39] Speaker 01:
In fact, all of the white individuals who transferred, there's no evidence in the record that suggests there was actually a vacancy when they transferred.

[00:52:46] Speaker 01:
In fact, there probably wasn't.

[00:52:47] Speaker 01:
But here, Diane DeShellis asked to replace her.

[00:52:50] Speaker 01:
Mr. McCarty said, sure.

[00:52:51] Speaker 01:
He sent out an announcement saying that she should be replaced.

[00:52:54] Speaker 01:
It was only a problem when Mr. Ortiz asked for it.

[00:52:57] Speaker 01:
And then when he left, it was no longer a problem.

[00:52:59] Speaker 01:
And a white special agent took the job.

[00:53:02] Speaker 01:
Again, in discovery, we were precluded from getting evidence to show that there were lots of offices that weren't investigation offices, but housed investigators.

[00:53:10] Speaker 01:
But there was sufficient evidence in the record, even with that discovery shortfall, to show that

[00:53:15] Speaker 01:
Mr. Ortiz is correct.

[00:53:17] Speaker 01:
There's Rene Febless's memo saying that he wanted another investigator.

[00:53:21] Speaker 01:
He testified actually at his deposition saying that he could have worked from his home or that he could have worked for some office.

[00:53:27] Speaker 01:
And then there's plenty of evidence showing that other white special agents actually did that, that they didn't necessarily work in offices that were assigned to HUD investigations.

[00:53:37] Speaker 03:
What's the evidence you were precluded from obtaining in discovery?

[00:53:42] Speaker 01:
got a little list.

[00:53:43] Speaker 01:
There was the evidence of the peer reviews across the offices in Region 1 and 2, just to clarify that there would have been several peer reviews for that region.

[00:53:53] Speaker 01:
There was evidence concerning the makeup of the offices at the time.

[00:53:58] Speaker 01:
We got May 2011, but Mr. Ortiz was proving these points for 2010.

[00:54:03] Speaker 01:
They didn't give us any evidence about the makeup of the office in 2011.

[00:54:08] Speaker 01:
There was also the informal nature of the transfer request.

[00:54:12] Speaker 01:
Mr. Schwabe said that they gave over everything about transfers.

[00:54:16] Speaker 01:
Nothing could be further from the truth.

[00:54:17] Speaker 01:
In fact, I had to pull out evidence about who transferred from just a chart that I had about where people were in different periods of time.

[00:54:25] Speaker 01:
They gave me no evidence of approvals.

[00:54:28] Speaker 01:
There were email chains that said, may I transfer?

[00:54:31] Speaker 01:
And Mr. McCarty would say, yes.

[00:54:32] Speaker 01:
None of that evidence was turned over.

[00:54:34] Speaker 01:
And it appears that there was a plethora of that kind of evidence.

[00:54:37] Speaker 01:
And so I picked out the main things that were the most important.

[00:54:40] Speaker 01:
There were a lot of things that I put in the motion to compel that would have been helpful, but weren't the most probative things.

[00:54:45] Speaker 01:
Oh, you're out of time.

[00:54:46] Speaker 01:
OK.

[00:54:46] Speaker 01:
Thank you, Your Honor.

[00:54:47] Speaker 01:
Thank you.