Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ortiz-Diaz v. United States Department of Housing and Urban Development

United States District Court, District Circuit

August 16, 2013




Plaintiff Samuel Ortiz-Diaz brings this Title VII action against his former employer–– defendant U.S. Department of Housing and Urban Development, Office of the Inspector General (“HUD-OIG”)––alleging retaliation and discrimination on the bases of race and national origin when HUD-OIG denied his requests to transfer and excluded him from meetings. HUD-OIG moves to dismiss for failure to state a claim or, in the alternative, summary judgment. Upon consideration of this motion [5], Ortiz-Diaz’s opposition [6] thereto, and HUD-OIG’s reply [8], the Court will GRANT the motion with respect to the retaliation claim and DENY the motion with respect to the discrimination claims.


Ortiz-Diaz worked as a criminal investigator in HUD-OIG headquarters in Washington, DC, from December 15, 2009, to January 1, 2011. While in this position, he testifies to having been subjected to a pattern of discriminatory treatment because he is Hispanic and was born in Puerto Rico. In 2010 he began seeking transfer to HUD-OIG field offices in the northeast in an alleged attempt to leave the discriminatory environment and find better opportunities for career advancement. His attempts were never successful, however, and Ortiz-Diaz grew very angry over HUD-OIG’s denials.

Subsequently, in September 2010, Ortiz-Diaz claims that Assistant Inspector General for Investigations John McCarty, ordered that Ortiz-Diaz no longer attend joint meetings with the Department of Justice (“DOJ”) that he had previously been assigned to attend. Ortiz-Diaz alleges that his exclusion from these meetings limited his training and opportunities for career advancement by preventing him from interacting with employees of other agencies and generally casting his reputation in a negative light.

Also, in October 2010, Ortiz-Diaz claims that he had a telephone conversation with Special Agent-in-Charge Rene Febles who informed him that Region 2 (New York) needed another Special Agent at the same pay grade as Ortiz-Diaz’s current position. Ortiz-Diaz then requested that he be transferred to HUD-OIG’s office in Albany, New York, to fill this position. While there was no investigative division in the Albany office, Ortiz-Diaz claims that other HUD-OIG offices commonly allow employees in various divisions to share office space even if their divisions do not have an official presence in those offices. Ortiz-Diaz’s request was passed up the chain of command to McCarty who was the ultimate decision maker. Despite Febles’ alleged support of the transfer, McCarty denied the request on October 12, 2010. That same day, Ortiz-Diaz allegedly spoke with McCarty and verbally requested another transfer to Hartford, CT, in response to an announcement offering a position also at Ortiz-Diaz’s pay grade. According to Ortiz-Diaz, McCarty verbally denied the request.

On November 2, 2010, Ortiz-Diaz filed a discrimination complaint with the Equal Employment Opportunity Commission (“EEOC”), stating that the above events constituted discrimination based on his “Hispanic” race and “Puerto Rican” national origin. In its Notice of Acceptance, the EEOC stated that under its policy, “Hispanic” was defined as a national origin, not a race, and that it would therefore only investigate for discrimination based on national origin. Ortiz-Diaz’s counsel responded to this decision by objecting to the characterization of “Hispanic” as only a national origin, and not a race, but stated, “given the method of proof required to make a claim pursuant to Title VII, we see the distinction as insignificant.” After 180 days had passed from the filing of the complaint without a final decision from EEOC, Ortiz-Diaz filed this action in federal court pursuant to 42 U.S.C. § 2000e-16(c). In his complaint before this court, he alleges an additional count of retaliation not previously specified in his EEOC complaint, claiming that HUD-OIG’s decision to exclude him from meetings was in response to his belief that he had been discriminated against. HUD-OIG now moves to dismiss for failure to state a claim or, in the alternative, for summary judgment. Ortiz-Diaz opposes this motion and seeks time for discovery, given that none has been conducted since he filed his civil action before this court.


Title VII of the Civil Rights Act of 1964 protects employees from discrimination on the basis of certain protected statuses, such as race and national origin, as well as retaliation in response to employee conduct that opposes prohibited discrimination. University of Texas Southwestern Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2525 (2013). Status-based discrimination claims arise under 42 U.S.C. § 2000e-2(a)(1): “It 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 . . . or national origin.” (emphasis added). To succeed under this section, employees must prove that they suffered an adverse employment action that was at least partially motivated by the employer’s animus to their protected status. See 42 U.S.C. 2000e-2(m) (holding employer’s liable when these statuses were a “motivating factor for any employment practice, even though other factors also motivated the practice”).

Claims of retaliation are derived from 42 U.S.C. § 2000(e)-3, which provides in relevant part, “[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because [they] have opposed any practice made an unlawful employment practice by this subchapter.” To succeed in this claim, employees must establish that (1) they engaged in actions protected under this statute, that (2) these actions were a cause-in-fact of their exclusion from the meetings, and that (3) the employer’s retaliation constituted an adverse employment action. Nassar, 133 S.Ct. at 2534. Our review of both discrimination and retaliation claims is de novo. Chandler v. Roudebush, 425 U.S. 840, 841 (1976).

A. Dismissal

1. Failure to State a Claim (Rule 12(b)(6))

The Federal Rules of Civil Procedure set a relatively low bar for complaints: they must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P.8(a)(2). Given this liberal standard, dismissal under Rule 12(b)(6) is only appropriate when a complaint does not allege enough facially plausible facts to permit the court to reasonably infer that the defendant is liable for the alleged violation. Ashcroft v. Iqbal, 556 U.S. 662, 678–79; Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). For example, complaints that merely state unsupported legal conclusions or that formulaically recite the elements of a cause of action without alleging sufficient facts to back up the action are properly dismissed under Rule 12(b)(6). E.g., Iqbal 556 U.S. at 678–79. When deciding whether a complaint satisfies this standard, courts are to construe the complaint, and draw all reasonable inferences from it, in a light most favorable to the plaintiff, and to accept as true all of the complaint’s plausible factual allegations. 5B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1357 (3d ed. 2008).

With specific reference to employment discrimination cases like this one, the Supreme Court in Twombly emphasized that courts should not require complaints to contain more facts than is necessary to “nudge[] [a] claim across the line from conceivable to plausible.” Twombly 550 U.S. at 569–70. Thus, they need not allege “specific facts beyond those necessary to state [the] claim and the grounds showing entitlement to relief.” Id. (reaffirming its earlier holding in Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) that complaints alleging employment discrimination need not contain facts supporting each element of a cause of action in detail). “[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.” Id. at 563 (emphasis added)). Moreover, our circuit has, post-Twombly, been even more emphatic––“[b]ecause racial discrimination in employment is a claim upon which relief can be granted, . . . ‘I was turned down for a job because of my race’ is all a complaint has to state to survive a motion to dismiss under Fed.R.Civ.P. ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.