News from the Courts: On August 11, 2017, a panel of the U.S. Court of Appeals for the District of Columbia Circuit issued its revised opinion in Ortiz-Diaz v. Dept. of Housing and Urban Development, Office of Inspector General, No. 15-5008. Reversing its own prior decision, the panel reinstated portions of Mr. Ortiz-Diaz's EEO complaint.
Mr. Ortiz-Diaz had filed an EEO complaint for race and national origin discrimination after the Agency denied his request for a reassignment under the Agency's voluntary reassignment policy. Part of Mr. Ortiz-Diaz's reasons for requesting the reassignment was to get away from a supervisor whom Mr. Ortiz-Diaz accused of allegedly discriminating against him.
Once Mr. Ortiz-Diaz's case reached federal district court, the judge granted summary judgment for the Agency, citing D.C. Circuit precedent which holds that a lateral reassignment, without more, is not an "adverse employment action" which could give rise to a discrimination complaint. Notably, other jurisdictions (including the EEOC's federal sector administrative hearings process) take a different position on this issue, and generally find denials of reassignments to be adverse employment actions. Initially, on appeal, the D.C. Circuit panel upheld summary judgment. After Mr. Ortiz-Diaz requested rehearing en banc, the panel on its own initiative decided to revisit its own prior decision.
In its new decision, the panel now found that Mr. Ortiz-Diaz's case did identify an adverse employment action. The panel was unable to overturn the prior D.C. Circuit precedent to allow all denied reassignments to constitute "adverse employment actions" (which would require an en banc decision), but criticized that prior line of precedent. However, the panel did find that the denial of Mr. Ortiz-Diaz's request for reassignment was an "adverse employment action" because the request was being requested to get Mr. Ortiz-Diaz away from an allegedly discriminating supervisor and to give Mr. Ortiz-Diaz better opportunities for upward mobility without interference from that allegedly discriminating supervisor. The panel also rejected the trial court's denial of Mr. Ortiz-Diaz's motion to compel discovery for evidence regarding how comparator employees' requests for voluntary reassignment were treated by the agency, regarding prior discrimination complaints against the managers involved in Mr. Ortiz-Diaz's case, and other possibly relevant evidence.
Circuit Judge Rodgers, in concurrence, further noted "Perhaps our reconsideration will serve as a shot across the bow that courts in this Circuit must adhere to the summary judgment standard and not prematurely reject evidence that a jury could reasonably credit."