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Case number 19-1798, Mayor E. Chambers, a balance versus District of Columbia.

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Mr. Branch for the balance, Ms.

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Browder for the epaulee.

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I'd like to reserve two minutes, please.

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Good morning.

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Good morning.

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May it please the court.

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I'm David Branch and I represent the appellant, Ms.

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Chambers.

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The issue in this appeal is whether a purely lateral transfer or whether purely lateral transfers are adverse actions under Title VII.

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It's appellant's position that the district court aired in concluding that purely lateral transfers are not adverse actions under Title VII.

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Our position is supported by the amicus file by the Department of Justice and here under just a plain meaning of the statute.

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It's clear that a purely lateral transfer does qualify as an adverse action.

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Mr support is aware, Miss chambers was a supporting enforcement specialist at the district of Columbia office of attorney general and on multiple occasions she made requests for transfers, I think, in the record, it indicates that she made at least 20 requests for transfers and in 2011 she followed.

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An EEO claim and following the EEO claim, a request, additional request for a transfer was denied.

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Suppel this position that the denial of the transfer itself is an adverse, it can be an adverse action, particularly under the circumstances here.

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as it relates to retaliation when the standard is whether action taken by the employer would dissuade some reasonable person from pursuing an EEO complaint.

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Wait, Mr. Branch, can I want to tease out this, what you just said, but before I do that, I want to be clear about this.

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My understanding of the government's position

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is that our decision in Brody was wrong in light of subsequent cases, particularly white, and in light of the text that with respect to the discrimination provision of Title VII, a purely lateral transfer is covered, correct?

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Yes.

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But my understanding is that from the government's brief,

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that they do not think the same is true with respect to retaliation.

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That is footnote five, I'm sorry, not footnote five.

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In the attached forges brief footnote six, the government says, I'm just gonna have to find it again, hold on.

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which is on page 18, the government says a material adversity requirement is appropriate under 2000 E-3A.

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That's the retaliation provision because the text and then goes on.

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And in their Peterson brief in the SG's office, which we haven't been provided, but which was cited at footnote five of that brief,

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The court, the government says the court in white held that retaliation claims may be based only on actions that a reasonable employee may have found materially adverse.

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That was the language you just used.

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So I want to be clear on what your position is here.

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Is your position, I understand the position that with respect to the discrimination provision of Title VII, a purely lateral transfer is enough, but with respect to retaliation,

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Do you agree that it has to be material adverse in the way that a reasonable person would read it that way?

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Your honor, I think that the standard is whether it would be an action that's materially adverse that would dissuade a reasonable person from pursuing a claim.

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OK.

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Um, then to be clear, the, um, just to be absolute, just let me say it one more time.

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So I'm sure I think that's right.

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And I think that's also consistent with white.

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Um, but that means that a pure Europe, the claims that you have that were dismissed because they were, um, because the court found them to be purely lateral that had to do with discrimination should not have been dismissed in your view.

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if we were to, for example, if on Boncourt, for example, were to overrule Brody.

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But the retaliation claim that was dismissed on the ground that it was not, that a purely lateral transfer is not enough and it has to be materially adverse could only be dismissed if we found that it was materially adverse.

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Is that right?

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Yes.

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And I think it is.

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I understand that.

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I just want to get the law straight.

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OK.

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Thank you.

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OK.

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And the court, I'm not sure if the court is aware, the Supreme Court did deny the served petition in the Forgas.

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We know that.

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Right.

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But just to clarify here,

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We're still bound by our precedent.

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There's nothing we can do.

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This panel can do about that.

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So do you want to say something about the retaliation claim?

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It seems to me that's, well, they're both properly before us, but it's hard to see how this panel can do anything

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about your discrimination claim.

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Do you agree with that, given our precedent?

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Obviously, I understand the principle of star decisive, and the court is known by precedent.

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We did note an opinion, or dissenting opinion, by Justice Thomas that the court always has the opportunity to correct an error.

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That's the Supreme Court.

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We can only get eye on bump.

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You agree with that, don't you?

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Yes.

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Yeah.

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In terms of the retaliation claim, Your Honor, it's our position that Miss Chambers in the district court did present evidence which would support her position of retaliation that there was action taken that would dissuade a reasonable person from pursuing.

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Well, before you go into the details, can I just get straight

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what we're talking about here.

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So there's two different EEOC charges, right?

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Tell me if I'm right about this.

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It says August 2010.

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Yes.

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All right.

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And then a transfer was denied one month later, right?

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In September.

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Yes.

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So my first question about that,

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Where in the district court, or even in your blue brief here, did the plaintiff argue that that denial of the transfer was retaliatory for the EEO complaint filed in August?

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I know you make the point in your reply brief, but where in the district court does she argue that that transfer was retaliatory?

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So, Your Honor, the appellant was represented by a different counsel at the district court.

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Right.

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I understand that, but you made the argument in your reply brief.

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Yes.

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You wrote that, right?

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Yes.

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Where did she say that?

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Where did she make that claim in the district court?

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All I can say is that she made a general claim that she requested at least 20 transfers and the requests were not granted.

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Okay.

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All right.

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But there's no place.

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So you're telling me then that, I mean, I've looked, we couldn't find any place where she connected this, where she connected the September denial to the August EEO complaint.

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I couldn't find it.

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All right.

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Then the next one is March 2011, right?

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That's the next EEO complaint.

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That's correct.

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Right?

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Okay.

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And the transfer to denial was in September, six months later.

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Yes.

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Okay.

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We have case law in this circuit, I think, which says that anything beyond

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three months or so is not temporally connected sufficiently to make out a retaliation claim, I think.

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Isn't that accurate?

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I think it's two months.

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Two months.

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Mr. Branch, do you know about those cases?

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I do.

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Yeah.

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So what's your response to that?

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I mean, this is six months later.

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I understand, Your Honor.

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I understand the court's opinion.

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I think that case, in all cases, have to be more fact specific.

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So if you have a former complainant who's filed an EEO complaint and files a later EEO complaint,

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And action here is taken, well, it was taken six months after the latest EEO complaint, but the EEO complaint was still ongoing.

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So the fact that there was a complaint filed, it's our position, that would not necessarily end the protected activity.

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If there's a- Do you have any cases that say that?

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Has this circuit said that?

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The fact that the- I mean, isn't it true, I mean,

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In most circumstances, these EEO administrative complaints are not resolved instantly.

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And it's not unusual that it would be pending.

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An EEO complaint filed on January 1st would be pending at the time if the defendant was denied a transfer a month later.

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I mean, that's not unusual.

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But my other point is, I mean, do you know of any cases that say that?

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You didn't argue this in your brief, right?

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So what I will say is not all protected activity is just limited to the actual filing of an EEO complaint.

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For example, I don't know the specific facts of the case where the court held that if something happened more than two months later, it was not

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Temporarily approximate to the action complained about, but you may have a case where someone just Opposes discrimination or someone reports something and it's not pursued beyond that as opposed to a case where someone files a complaint.

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It's ongoing.

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Yeah, I understand that.

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But your case is you you alleged you know you're a plaintiff here alleges

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denial of transfer in retaliation to filing EEO complaints.

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That's her case.

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She didn't say it was in retaliation for anything else.

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She said it was in retaliation for those two complaints.

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She did say it was in retaliation for filing her EEO, filing the EEO complaints, but there were multiple denials of transfers.

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Okay.

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All right.

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Doesn't it depend, Mr. Branch, on when the defendant learns of the complaint?

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So even if it was filed six months before, the defendant doesn't learn about it until two months before.

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We're no longer in the six month range.

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The question is retaliation for knowing that someone's complained, not just for complaining.

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Doesn't that help your case?

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It does help our case, your honor.

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And I'm not sure that we have exactly in the record when the district learned that she filed this, filed the second complaint.

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I don't know how long it took.

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But the fact that if the court's rule is that generally if it's two months, the fact that it's six months,

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just does not appear to be, I don't think that there's a bright line rule that absolutely it has to, if it's more than two months, then it can't be considered retaliation, particularly when you have other facts supporting the position that is retaliatory.

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Okay.

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Judge Garland, Judge Ginsburg, any other questions?

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No, thank you.

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All right.

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We'll hear from Mr. Frager.

[00:14:17] Speaker 00:
Good morning, your honors.

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Megan Browder on behalf of the district.

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That's okay.

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I'm sorry.

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Not a problem.

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I do want to pick up on something that Judge Tatel was speaking about before, and that this case is about two transfers.

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There's the 2010 transfer, which Ms.

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Chambers alleges was discriminatory.

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And in fact, on the August 2010 charge,

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Ms.

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Chambers brought a separate claim against the district for that charge, which was also dismissed.

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So she would be precluded from bringing any sort of retaliation claim against the district here because she already brought a retaliation claim on other grounds against the district before.

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Again, also there's the 2011 request, but as a threshold issue, the district is entitled to summary judgment on both claims.

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for the same reasons.

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Ms.

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Chambers has failed to show any objectively tangible harm stemming from either denial.

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All right, can I ask you a question about that?

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So the position of the United States Justice Department is that a purely lateral transfer on the basis of race, religion, gender is a violation of Title VII.

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What is the position of the District of Columbia on this?

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So first to say that the district responded to Ms.

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Chambers' opening brief and saying that this court, as Your Honors have said this morning, this court is bound by stare decisis.

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I understand that.

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But now I'd like to know, just as the Justice Department offered up its position, that a racially discriminatory

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lateral transfer with nothing else violates Title VII.

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What is the position of the attorney general of the District of Columbia?

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Setting aside that DOJ is not a party in this case, that would not categorically be an adverse action because this court has said several times that you have to have... Leave aside Brody.

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I'd just like to know for my own information.

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So just to put it clearly as I can,

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If a supervisor says, I will not laterally transfer you because of your race, but I will transfer laterally transfer anyone of my race.

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Your position is really it could it really be the case that the District of Columbia's position is that that doesn't violate title seven.

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Without any attendant consequences?

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Yes.

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Yes.

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And I think that follows from the Supreme Court and from this court.

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Indeed, in Ortiz Diaz, which is a case from just three years ago, this court had a similar.

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I know it follows from our cases.

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As you know, then Judge Kavanaugh and Judge Rogers wrote separately in those cases to say that we should overturn that question.

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The government also knows, that is the United States also knows what our cases hold, but they say it's wrong.

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Now, I know that as a staff attorney, you're not entitled to make this decision, but I would like the attorney general's office to file within five days what their position is on what the law should be with respect to a discriminatory

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um lateral transfer okay we can certainly do that your honor great um i would also note on that point that um title seven is a balance it's a balance between the employee's right to be free from discrimination but also employer prerogatives to make a myriad decisions that employers have to make every day in order to see those words balance

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In Title VII, the only words I see in Title VII are the same words that Judge Kavanaugh and Judge Rogers saw, which don't say anything about balance.

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They say, it shall be unlawful to discriminate against any individual with respect to his terms and conditions of employment because of the individual's race.

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It doesn't say there's a balance.

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That's what the text says.

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The text does not say that, Your Honor, you're correct.

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But the text also does not say adverse action.

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That's a judicial gloss that the Supreme Court has put upon it.

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No, but the Supreme Court has not put that gloss on discrimination.

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It has put that gloss on retaliation, but it has not put the gloss on discrimination.

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In fact, there is a provision of the discrimination section which does talk about adverse action, but that is subpart two.

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which is where you limit, segregate, or classify employees or otherwise adversely affect his status.

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But subpart one, which is the one at issue for us, does not use the word adversely.

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That's correct, but I believe there still must be materially adverse consequences stemming from- I know that that is certainly the law in our circuit and in, I think, all the other circuits.

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But the Justice Department has urged the Supreme Court to change that.

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And I would like to know what the Attorney General of the District of Columbia believes, whether they agree with the Justice Department or not.

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That's all.

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The district will certainly file that to this court.

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I would note that this is a threshold issue for Ms.

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Chambers and that even if she passes that threshold issue, her claims still fail on a multitude of reasons.

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As to her 2010 discrimination claim,

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She doesn't show any pretext on the basis on the part of the district.

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The district gave a legitimate reason for denying her transfer in 2010.

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They said that the child support services division is going through reorganization and she's needed in the enforcement division.

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She doesn't dispute that that was a legitimate reason and she doesn't provide any evidence to suggest that that reason was pretextual or that it was made on the basis of discrimination.

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The closest that she comes, she tries to name a number of comparators, but none of these are apt or appropriate comparators to her.

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Because as this court said in Burleigh, to be an appropriate comparator, the proffered person must be nearly identical in, sorry, the employee position must be nearly identical in all material relevant aspects.

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And the persons that Ms.

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Chambers lists either didn't hold her same job or a similar job,

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we're transferred by somebody else, we're not transferred at all, we're transferred due to more pressing reasons such as an accommodation or some combination of these factors.

[00:21:16] Speaker 00:
So she's not pointed to a comparator and she doesn't provide any other evidence of a discriminatory motive.

[00:21:24] Speaker 03:
And- Is it your position then that if we were to agree with your last point, we could

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pre-dermit the threshold question for another day.

[00:21:37] Speaker 00:
I believe this court could, Your Honor.

[00:21:39] Speaker 00:
In Hernandez v. Pritzker, there was a similar position where it was a question of whether the transfer was an adverse action.

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And this court said, we don't have to reach that issue because even if it was an adverse action, the claim still fails.

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These claims were before the district court.

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The district briefed this issue below.

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and so this court could affirm on that ground.

[00:22:06] Speaker 03:
What was the case you just mentioned?

[00:22:08] Speaker 00:
Hernandez v Pritzker.

[00:22:10] Speaker 00:
Sorry, I don't have the case site right in front of me.

[00:22:14] Speaker 00:
And as to the 2011 denial of transfer, as Judge Tatel mentioned earlier, the temporal proximity simply is just too far removed and she doesn't provide

[00:22:25] Speaker 00:
any other evidence of a retaliatory motive.

[00:22:28] Speaker 00:
And to Judge Garland's point, we don't have any evidence in the record to suggest when Ms.

[00:22:33] Speaker 00:
Rice or the district became aware of her charge of discrimination.

[00:22:37] Speaker 00:
She does say in her reply brief that temporal proximity can suffice for causation.

[00:22:47] Speaker 00:
But again, that's only for the causation part.

[00:22:50] Speaker 00:
This court has been clear that once you get to pretext, you have to have something beyond the temporal proximity because Ms.

[00:22:58] Speaker 00:
Chambers cannot show that and she also cannot show any discriminatory motive for the 2010 transfer.

[00:23:04] Speaker 00:
The district would ask that the district court be affirmed.

[00:23:10] Speaker 04:
All right.

[00:23:10] Speaker 04:
Okay, thank you.

[00:23:13] Speaker 04:
Mr. Branch, you are out of time, but you can have one minute.

[00:23:28] Speaker 01:
Mr. Branch, I think your microphone must be off because we're not here.

[00:23:32] Speaker 01:
You must be on mute.

[00:23:33] Speaker 01:
Okay, now you're on.

[00:23:34] Speaker 01:
Yes.

[00:23:36] Speaker 02:
So, Your Honor, for the 2010 denial of transfer,

[00:23:42] Speaker 02:
Ms.

[00:23:43] Speaker 02:
Chambers did list names of individuals who were similarly situated who were permitted to transfer.

[00:23:50] Speaker 02:
So we believe that that issue raised at least an issue for the court that should have survived summary judgment.

[00:23:59] Speaker 02:
Her list and her assertions of the individuals who were transferred was countered with

[00:24:06] Speaker 02:
an assertion by Ms.

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Rice of the positions held by these individuals and her position was that they were not similarly situated but that was that's really an issue that should have been resolved by a jury beyond summary judgment.

[00:24:22] Speaker 02:
We just have two competing versions of whether these folks were similarly situated and there's no requirement that they be exactly in the same position.

[00:24:32] Speaker 02:
In terms of the 2011

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denial of transfer there was the district game make an argument that part of miss chambers position was that there was she included hearsay with her assertions of what her position was and the positions of these and other individuals and basically she reported that

[00:24:58] Speaker 02:
Another supervisor indicated that she would welcome Ms.

[00:25:01] Speaker 02:
Chambers to her position, to her division.

[00:25:05] Speaker 02:
That was an issue, was not hearsay, was really an admission by the opposing party, by an agent of the district.

[00:25:13] Speaker 02:
So our position that she did present sufficient evidence to survive summary judgment.

[00:25:19] Speaker 02:
And we believe that the court needs to address the issue of whether this adverse action,

[00:25:29] Speaker 02:
Article 7 permits an adverse action, purely lateral transfer as part of an adverse action.

[00:25:38] Speaker 04:
All right.

[00:25:39] Speaker 04:
Thank you.

[00:25:39] Speaker 04:
Ms.

[00:25:40] Speaker 04:
Browder, Mr. Branch, thank you both.

[00:25:42] Speaker 04:
The case is submitted.