U.S. Department
of Justice
Chambers v. District of Columbia Brief as Amicus
ORAL ARGUMENT NOT YET SCHEDULED
No. 19-7098
IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
_________________
MARY E. CHAMBERS, Plaintiff-Appellant
v.
DISTRICT OF COLUMBIA, Defendant-Appellee
_________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
_________________
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT AND URGING REVERSAL ON THE ISSUE PRESENTED HEREIN
_________________
ERIC S. DREIBAND
Assistant Attorney General
ALEXANDER V. MAUGERI
Deputy Assistant Attorney General
TOVAH R. CALDERON
ANNA M. BALDWIN
Attorneys
U.S. Department of Justice
Civil Rights Division
Appellate Section
Ben Franklin Station
P.O. Box 14403
Washington, D.C. 20044-4403
(202) 305-5278
SHARON FAST GUSTAFSON
General Counsel
JENNIFER S. GOLDSTEIN
Associate General Counsel
SYDNEY A.R. FOSTER
Assistant General Counsel
JEREMY D. HOROWITZ
Attorney
Equal Employment Opportunity Commission
Office of the General Counsel
131 M Street NE, Fifth Floor
Washington, D.C. 20507
(202) 663-4055
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
A. Parties and Amici
All parties appearing in the district court and before this Court are listed in the Brief for Appellant. The United States files this brief as amicus curiae and did not participate in the district court proceedings.
B. Ruling Under Review
References to the ruling at issue appear in the Brief for Appellant.
C. Related Cases
The United States is not aware of any related cases within the meaning of D.C. Circuit Rule 28(a)(1)(C).
s/ Anna M. Baldwin
ANNA M. BALDWIN
Attorney
Date: March 12, 2020
TABLE OF CONTENTS
PAGE
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES INTEREST OF THE UNITED STATES .............................. 1
STATEMENT OF THE ISSUE ................................................................................. 2
PERTINENT STATUTE ........................................................................................... 3
STATEMENT OF THE CASE .................................................................................. 3
SUMMARY OF ARGUMENT ................................................................................. 4
ARGUMENT
I ALL DISCRIMINATORY JOB TRANSFERS (AND DISCRIMINATORY DENIALS OF REQUESTED JOB TRANSFERS) ARE ACTIONABLE UNDER SECTION
2000e-2(a)(1) ......................................................................................... 5
II THIS COURT MAY WISH TO HOLD DISPOSITION OF THIS CASE IN ABEYANCE PENDING THE SUPREME COURT’S RESOLUTION OF THE ISSUE................ 6
CONCLUSION .......................................................................................................... 7
CERTIFICATE OF COMPLIANCE
ATTACHMENT
TABLE OF AUTHORITIES
CASES: PAGE
Brown v. Brody, 199 F.3d 446 (D.C. Cir. 1999) ....................................................... 4
Forgus v. Esper, No. 18-942 (S. Ct.) (petition for certiorari pending).............2, 4-6
Peterson v. Linear Controls, Inc., No. 18-1401 (S. Ct.) (petition for certiorari pending) .....................4-6
Townsend v. United States, No. 19-5259 (D.C. Cir.) ............................................6-7
STATUTES:
Age Discrimination in Employment Act, 29 U.S.C. 633(a) ...................................... 7
Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. ....................................................... 1
42 U.S.C. 2000e-2(a)(1) ..............................................................................2-7
42 U.S.C. 2000e-5(a) ....................................................................................... 1
42 U.S.C. 2000e-5(f)(1) ................................................................................... 1
42 U.S.C. 2000e-16 ......................................................................................... 1
RULE:
Federal Rule of Appellate Procedure 29(a).............................................................. 2
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
_________________
No. 19-7098
MARY E. CHAMBERS,
Plaintiff-Appellant
v.
DISTRICT OF COLUMBIA,
Defendant-Appellee
_________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT AND URGING REVERSAL ON
THE ISSUE PRESENTED HEREIN
_________________
INTEREST OF THE UNITED STATES
The United States has a substantial interest in the proper interpretation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. The Attorney General and the Equal Employment Opportunity Commission (EEOC) share enforcement responsibility under Title VII. See 42 U.S.C. 2000e-5(a) and (f)(1). In addition, Title VII applies to the United States in its capacity as the Nation’s largest employer. 42 U.S.C. 2000e-16. This case presents an important question
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regarding when discriminatory job transfers (and discriminatory denials of an employee’s request to transfer) are actionable under Title VII, an issue that the United States recently addressed in Forgus v. Esper, No. 18-942 (S. Ct.) (petition for certiorari pending).
The United States files this brief under Federal Rule of Appellate Procedure 29(a).
STATEMENT OF THE ISSUE
Title VII of the Civil Rights Act of 1964 provides, among other things, that:
[i]t shall be an unlawful employment practice for an employer * * * to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.
42 U.S.C. 2000e-2(a)(1).
This case presents the issue of whether a denial of a lateral transfer request, i.e., a transfer involving no diminution in pay and benefits, on the basis of the requesting employee’s sex, constitutes discrimination “with respect to * * * compensation, terms, conditions, or privileges of employment” under Section 2000e-2(a)(1).1
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1 The United States takes no position on the merits of plaintiff’s claim or on any other issue presented in this case.
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PERTINENT STATUTE
Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2(a)(1) states:
(a) Employer practices
It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin[.]
STATEMENT OF THE CASE
Plaintiff-Appellant Mary Chambers was employed as a Support Enforcement Specialist in the Interstate Unit of the Child Support Services Division of the District of Columbia’s Office of Attorney General. J.A. 276. As relevant here, Chambers alleged that the District “permitt[ed] male employees to transfer to other departments * * * but denied [Chambers] * * * the same opportunity to transfer” because of her sex. J.A. 276 (first set of brackets in original).
The district court granted summary judgment to the District of Columbia. J.A. 293-295. The district court explained that under this Court’s precedent, the denial of a purely lateral transfer, i.e., “a transfer involving no diminution in pay and benefits,” is not actionable under Section 2000e-2(a)(1) “unless there are some other materially adverse consequences affecting the terms, conditions, or privileges
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of [an employee’s] employment or her future employment opportunities such that a reasonable trier of fact could conclude that the plaintiff has suffered objectively tangible harm.” J.A. 293 (brackets in original) (quoting Brown v. Brody, 199 F.3d 446, 457 (D.C. Cir. 1999)). Accordingly, the district court held that the District was entitled to summary judgment because Chambers had adduced no evidence that she “suffered any harm, let alone any material adverse consequences,” from the denial of the requested transfer. J.A. 294 (rejecting as unsupported by the record Chambers’ contentions that she suffered “a loss in pay” or was “delayed in receiving” a pay increase as a result of the denied transfer (citations omitted)).
Chambers appealed. J.A. 296.
SUMMARY OF ARGUMENT
The United States files this brief to inform the Court of its view that all discriminatory job transfers (and discriminatory denials of job transfers) are actionable under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2(a (1). The United States recently explained this view in a brief in opposition to certiorari it filed in Forgus v. Esper, No. 18-942 (S. Ct.) (petition for certiorari pending). In addition, the Supreme Court has asked for the United States’ views on the scope of the prohibition against discrimination under Section 2000e-2(a)(1) in Peterson v. Linear Controls, Inc., No. 18-1401 (S. Ct.) (petition for certiorari pending). The petition for a writ of certiorari in Peterson raises the question
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whether the “terms, conditions, or privileges of employment” covered in Section 2000e-2(a)(1) are limited only to hiring, firing, promotions, compensation, and leave.
The United States respectfully suggests that this Court may wish to hold this case pending the Supreme Court’s resolution of both Forgus and Peterson. The statutory construction issues in Forgus and Peterson overlap considerably with the lateral-transfer issue in this case.
ARGUMENT
I ALL DISCRIMINATORY JOB TRANSFERS (AND DISCRIMINATORY DENIALS OF REQUESTED JOB TRANSFERS) ARE ACTIONABLE UNDER SECTION 2000e-2(a)(1)
In the brief it recently filed in opposition to the petition for a writ of certiorari in Forgus v. Esper, No. 18-942 (S. Ct.) (petition for certiorari pending), the United States explained its view that that all discriminatory job transfers (and discriminatory denials of job transfers) are actionable under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2(a)(1). See Brief in Opp. at 13-16. The United States will soon be filing another brief addressing the scope of the prohibition against discrimination in the “terms, conditions, or privileges of employment” under Section 2000e-2(a)(1) in Peterson v. Linear Controls, Inc., No. 18-1401 (S. Ct.) (petition for certiorari pending). The United States’ brief in
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Forgus is attached for this Court’s consideration, and the United States will provide its brief in Peterson to this Court upon its filing.
II THIS COURT MAY WISH TO HOLD DISPOSITION OF THIS CASE IN ABEYANCE PENDING THE SUPREME COURT’S RESOLUTION OF THE ISSUE
This Court may wish to hold this case in abeyance pending the Supreme Court’s disposition of Forgus v. Esper, No. 18-942 (S. Ct.) (petition for certiorari pending), and Peterson v. Linear Controls, Inc., No. 18-1401 (S. Ct.) (petition for certiorari pending). Forgus specifically addresses lateral transfers, and Peterson raises the question whether the “terms, conditions, or privileges of employment” covered in Section 2000e-2(a)(1) are limited only to hiring, firing, promotions, compensation, and leave. The statutory construction issues in Forgus and Peterson thus overlap considerably with the transfer issue in this case. If certiorari is granted in either Forgus or Peterson, the decisions in those cases would be binding here and could potentially clarify or overrule some of this Court’s Title VII precedents. We anticipate that the Supreme Court will decide whether to grant certiorari in Forgus and Peterson this Term.2
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2 In another pending case where the United States is a party, Townsend v. United States, No. 19-5259 (D.C. Cir.), this Court recently granted the government’s motion to hold briefing in abeyance pending the Supreme Court’s (continued…)
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CONCLUSION
The United States respectfully urges this Court to reconsider its precedent holding that discriminatory transfers and denials of transfers are not always actionable under Section 2000e-2(a)(1) or hold the decision in this case in abeyance pending the Supreme Court’s disposition of the petitions for a writ of certiorari in Forgus and Peterson, and if certiorari is granted, the decisions in those cases.
Respectfully submitted,
ERIC S. DREIBAND
Assistant Attorney General
ALEXANDER V. MAUGERI
Deputy Assistant Attorney General
s/ Anna M. Baldwin
TOVAH R. CALDERON
ANNA M. BALDWIN
Attorneys
U.S. Department of Justice
Civil Rights Division
Appellate Section
Ben Franklin Station
P.O. Box 14403
Washington, D.C. 20044-4403
(202) 305-5278
SHARON FAST GUSTAFSON
General Counsel
JENNIFER S. GOLDSTEIN
Associate General Counsel
SYDNEY A.R. FOSTER
Assistant General Counsel
JEREMY D. HOROWITZ
Attorney
Equal Employment
Opportunity Commission
Office of the General Counsel
131 M Street NE, Fifth Floor
Washington, D.C. 20507
(202) 663-4055
____________
(…continued)
disposition of Forgus, Peterson, and another case not relevant here. Order (Oct. 25, 2019). Townsend involves a discrimination claim under the federal-sector provisions of the Age Discrimination in Employment Act, 29 U.S.C. 633(a), regarding a four-day change in job positions that the district court rejected as not constituting an actionable adverse employment action.
CERTIFICATE OF COMPLIANCE
I certify, pursuant to Federal Rule of Appellate Procedure 32(g):
(1) This brief complies with Federal Rule of Appellate Procedure 29 and with Federal Rule of Appellate Procedure 32(a)(7)(B) because, excluding the parts of the brief exempted by Federal Rule of Appellate Procedure 32(f), it contains 1248 words according to the word processing program used to prepare the brief.
(2) This brief complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of Appellate Procedure 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Office Word 2019, in 14-point Times New Roman font.
s/ Anna M. Baldwin
ANNA M. BALDWIN
Attorney
Date: March 12, 2020