A divided panel of the D.C. Circuit issued a lengthy decision on claims brought by a federal sector attorney at HUD who alleged that he was retaliated against for his EEO complaint by being transferred to another position that (even though at the same salary/grade), had no legal responsibilities, and presumably was a dead-end, make-work position. The majority agreed with the plaintiff in holding that this kind of transfer can be retaliatory. Senior Judge Williams authored a lengthy dissent on this issue.

Some excerpts follow:

http://pacer.cadc.uscourts.gov/common/opinions/201004/08-5155-1240241.pdf

Pardo-Kroneman v. Donovan (Secretary of Housing and Urban Development), No. 08-5155 (D.C. Cir. Apr. 16, 2010).

Appeal from the United States District Court for the District of Columbia (No. 1:05-cv-00626).

John F. Karl Jr. argued the cause and filed the brief for appellant. Kristen G. Hughes entered an appearance.

Jane M. Lyons, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief was R. Craig Lawrence, Assistant U.S. Attorney.

Before: ROGERS and TATEL, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge TATEL.

Dissenting opinion filed by Senior Circuit Judge WILLIAMS.

TATEL, Circuit Judge:

Appellant, an attorney at the Department of Housing and Urban Development, alleges that HUD retaliated against him in violation of Title VII of the Civil Rights Act of 1964 by transferring him to a non-legal position and by declaring him absent without leave (AWOL) when he failed to report to his new job. After partially denying appellant’s Rule 56(f) motion, the district court granted summary judgment to HUD on both claims. For the reasons set forth in this opinion, we reverse as to the transfer claim, affirm as to the AWOL claim, and find no abuse of discretion in the district court’s resolution of the Rule 56(f) motion. . . .

Our dissenting colleague would affirm on the ground that Pardo-Kronemann has failed to establish one of the required elements of a prima facie case of retaliation: that the transfer “constitutes an adverse employment action,” Holcomb, 433 F.3d at 902. . . . . In any event, we agree with the district court that Pardo-Kronemann has raised a genuine issue of material fact as to whether his transfer from OGC to OIA qualifies as an adverse employment action.

An employment action is materially adverse where it “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quotation marks omitted). Lateral transfers—those entailing “‘no diminution in pay and benefits’”—qualify as adverse employment actions if they result in “‘materially adverse consequences affecting the terms, conditions, or privileges’” of the plaintiff’s employment. Stewart v. Ashcroft, 352 F.3d 422, 426 (D.C. Cir. 2003) (quoting Brown v. Brody, 199 F.3d 446, 457 (D.C. Cir. 1999)). Although we have stated that “a purely lateral transfer, that is, a transfer that does not involve a demotion in form or substance, cannot rise to the level of a materially adverse employment action,” Brown, 199 F.3d at 455–56 (internal quotation marks omitted); see Dissenting Op. at 17, we have also held that “[w]hether a particular reassignment of duties constitutes an adverse action . . . is generally a jury question,” Czekalski v. Peters, 475 F.3d 360, 365 (D.C. Cir. 2007). Indeed, “[t]he court may not take that question away from the jury if a reasonable juror could find that the reassignment left the plaintiff with significantly diminished responsibilities.” Id. (concluding that a jury could find adversity where, after a lateral transfer, plaintiff supervised fewer employees and managed a smaller budget). Thus, as the Supreme Court has held, transfers resulting in no decrease in pay or benefits may nonetheless be adverse. See White, 548 U.S. at 70 (finding that employment actions may be adverse even where “both the former and present duties fall within the same job description” because “[a]lmost every job category involves some responsibilities and duties that are less desirable than others”); see also Holcomb, 433 F.3d at 902 (concluding that jury could find adversity from reassignment with “significantly different responsibilities”); Stewart, 352 F.3d at 427 (concluding that jury could find adversity in failure to transfer plaintiff to position with same pay and benefits but involving greater supervisory duties and prospects for advancement).

Where, as here, the plaintiff alleges retaliation based on a reassignment, the fact-finder must compare the position the plaintiff held before the transfer to the one he holds afterwards. Here the parties compare the OGC position Pardo-Kronemann occupied both before and after his IDB detail to his new position at OIA. The question, then, is whether a reasonable jury could conclude that the transfer from the former to the latter was adverse. According to HUD, the answer is no because Pardo-Kronemann’s salary, benefits, and grade remained the same; indeed, he maintained the same title, switching from an Attorney Advisor in OGC to an Attorney Advisor in OIA. But we agree with Pardo-Kronemann that a reasonable jury could conclude from the job descriptions that OGC attorneys have “significantly different responsibilities” than OIA attorneys. Holcomb, 433 F.3d at 902 (quoting Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002)).

. . . . Given these differences between the OGC and OIA jobs, we think a reasonable jury could conclude that the transfer qualifies as an adverse employment action.