UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1077
BARBARA A. JYACHOSKY,
Plaintiff - Appellant,
v.
DONALD C. WINTER, Secretary, Department of the Navy,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:06-cv-00849-CMH-TRJ)
Argued: May 14, 2009 Decided: September 14, 2009
Before Sandra Day O’CONNOR, Associate Justice (Retired), Supreme
Court of the United States, sitting by designation, WILKINSON,
Circuit Judge, and Joseph F. ANDERSON, Jr., United States
District Judge for the District of South Carolina, sitting by
designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Jeffrey Lynn Rhodes, ALBO & OBLON, LLP, Arlington,
Virginia, for Appellant. Leslie Bonner McClendon, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON
BRIEF: Declan C. Leonard, ALBO & OBLON, LLP, Arlington,
Virginia, for Appellant. Chuck Rosenberg, United States
Attorney, Lauren A. Wetzler, Steven E. Gordon, Assistant United
States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Barbara A. Jyachosky appeals the district court’s decision
to grant summary judgment to her former employer, the Department
of the Navy. Jyachosky alleged the Navy intentionally
discriminated and retaliated against her on the bases of her sex
and age, in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e, and the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. This case
centers on the reassignment of Jyachosky to a non-supervisory
position in 1997 and elimination of her position in 2003. We
agree with the district court that Jyachosky is unable to
establish a prima facie case of discrimination based on the 1997
reassignment and that the Navy’s 2003 elimination of her
position does not satisfy the threshold Title VII requirement of
an adverse employment action. Therefore, we affirm the
dismissal of the action.
I.
Jyachosky, a female born in 1943, worked for the Navy from
June 1969 until August 2004, when she retired as a GS-15.
Jyachosky worked primarily as a public affairs officer for the
Naval Ship Engineering Center (“NAVSEC”), a field activity of
the Naval Ship Systems Command (“NAVSHIPS”). After NAVSEC’s
merger with NAVSHIPS in 1976 to form the Naval Sea Systems
3
Command (“NAVSEA”), Jyachosky continued to work for NAVSEA,
where she ultimately held the supervisory position of Head of
the Public Affairs Branch from June 1988 until April 1997. As
the Director of Congressional and Public Affairs, Navy Captain
David Thomas served as Jyachosky’s supervisor from 1991 until he
retired in July 1994. In September 1994, Navy Captain Gordon
Peterson succeeded Captain Thomas as Jyachosky’s supervisor.
In April 1997, the Navy permanently reassigned Jyachosky
from her position as the Head of the Public Affairs Branch to a
non-supervisory position in the Program Executive Office,
Surface/Combatants/AEGIS Program (“PEO SC/AP”). The Navy
reassigned Jyachosky after having received numerous complaints
regarding deficiencies in performance of her supervisory role.
To the Navy, these complaints, and the accompanying high
turnover rate among Jyachosky’s subordinates, were evidence of a
serious underlying morale problem. In his letter informing
Jyachosky of her reassignment, Captain Peterson stated “I am no
longer confident that you have the ability to inspire positive
relationships, morale and teamwork among all members of your
staff that are so essential to our overall mission.”
Nevertheless, Jyachosky was not the only individual in
NAVSEA with a high turnover rate. Jyachosky’s turnover rate,
thirteen turnovers in nine years, was proportionally lower than
that of her younger male counterpart, William Scott, who had
4
nine turnovers in six years. In addition, Jyachosky claims her
supervisor, Captain Peterson, had approximately twenty-two
personnel turnovers in four years, a number the Navy claims she
derived by adding her own turnover rate to that of Scott.
Jyachosky had previously received high marks on her
performance evaluations while in the Head position. (See, e.g.,
J.A. at 136 – 139.) These marks, however, are in reference to
Jyachosky’s efforts to improve in light of the complaints
received. For example, in a letter dated November 30, 1994, the
Vice Commander from NAVSEA told Jyachosky that “it is obvious
that a long-standing, serious morale problem exists in your
division.” (J.A. at 128.) He continued:
I am concerned that you may rely too much on oversight
of behaviors you consider unacceptable rather than the
hands-on development and support of the people who are
working for you . . . [Y]ou attribute the negative
statements of individuals interviewed to unpopular
decisions you have had to make vis-à-vis problem
employees. I am not persuaded that this is purely the
case given the preponderance of corroborative
information derived separately from several of your
own subordinates/peers during the course of factfinding for [my above statement of concern].
The Vice Commander concluded, “I, therefore, obviously
expect improvement in your performance as a leader and a
supervisor.” (J.A. at 129.)
Upon Jyachosky’s reassignment, Angela Smookler, a female,
replaced Jyachosky as the Head of NAVSEA’s Public Affairs
Branch.
5
On August 25, 1997, Jyachosky filed an administrative
discrimination complaint with the Equal Employment Opportunity
Commission (“EEOC”) against Captain Peterson concerning her
reassignment. An Administrative Judge held that the Navy had
“met its burden of articulating a legitimate, nondiscriminatory
reason for her reassignment,” and that Jyachosky had failed to
proffer any evidence of pretext. Jyachosky appealed this
decision to the EEOC’s Office of Federal Operations, which
affirmed the Administrative Judge’s decision.
In December of 2002, the Navy directed PEO Ships, the
Program Executive Office to which Jyachosky was then assigned,
to reduce its civilian employment for the fiscal year 2004 by
twenty-one percent. Ultimately, PEO Ships would eliminate
sixty-two positions. At the outset, the Executive Director of
PEO Ships, Alan Weyman, and Deputy Program Executive Officer,
Charles Hamilton, decided to focus the reductions on “front-
office” staff, and to rely in their place on support from staff
in Central Command headquarters. In March 2003, Hamilton
implemented this approach and reduced the PEO Ships “front
office” staff from twenty-five to eight civilian employees.
Jyachosky’s position was among the seventeen “front office”
staff positions eliminated. Eleven of the seventeen positions
eliminated were held by men. The only individual in the “front
office” who was under the age of forty also had his position
6
eliminated. After Jyachosky’s position was eliminated, her
responsibilities were taken over by Bonita Solarczyk, a 49-year-
old female GS-15 who was the PEO Ships Business Financial
Manager.
After informing Jyachosky that her position was being
eliminated, the Navy did not fire her, but placed her in the
NAVSEA Placement Program (“NPP”), with the goal of finding her
another position in NAVSEA. While assigned to the NPP,
Jyachosky continued to perform the same duties for PEO Ships,
maintained the same grade level and pay, and stayed in the same
physical location as when she was assigned to PEO Ships. In
July 2004, the Navy reassigned Jyachosky to the position of
Congressional and Public Affairs Officer for PEO Littoral and
Mine Warfare (“PEO LMW”). The job responsibilities of this
position were essentially identical to those of Jyachosky’s job
in PEO Ships; Jyachosky would be responsible for public and
Congressional affairs for all of PEO LMW. In addition,
Jyachosky was to maintain the same grade and pay in PEO LMW.
Jyachosky was unaware of missing out on any promotional
opportunities, performance awards, or pay increases as a result
of being reassigned out of PEO Ships.
Although she formally accepted the position at PEO LMW,
Jyachosky retired before it became effective. Jyachosky
represented to the Navy that her physical and emotional health
7
would not sustain another transfer and submitted supporting
physician’s letters. Her retirement became effective August 3,
2004.
On June 10, 2003, Jyachosky initiated an administrative
complaint with the EEOC against Hamilton, Wyman, and Rear
Admiral W.W. Cobb, the Program Executive Officer for PEO Ships,
concerning the 2003 elimination of her position and her 1997
reassignments to the NPP and PEO LMW. An Administrative Judge
granted the Navy summary judgment in concluding that the Navy
had articulated a legitimate, non-discriminatory reason for
eliminating Jyachosky’s position and that it was not pretextual.
Jyachosky appealed both the Administrative Judge’s
decisions to the district court, which granted summary judgment
to the Navy on both claims.
II.
Title VII of the Civil Rights Act of 1964 prohibits an
employer from “discriminat[ing] 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). Title VII
also makes it unlawful for an employer “to limit, segregate, or
classify his employees or applicants for employment in any way
which would deprive or tend to deprive any individual of
8
employment opportunities or otherwise adversely affect his
status as an employee, because of such individual’s race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(2).
The district court found that Jyachosky had failed to
establish a prima facie case of a Title VII violation with
respect to the 1997 reassignment. To establish a prima facie
case, Jyachosky must show that she was a member of a protected
class who suffered an adverse employment decision even though
she was meeting her employer’s legitimate expectations and that
she was replaced by someone who was not a member of the
protected class. The district court held that Jyachosky had
satisfied the first two elements of her Title VII claim because
she is an above-forty-year-old female who was reassigned from a
supervisory position to a non-supervisory position. However,
the district court determined that Jyachosky failed to produce
evidence that she met the Navy’s legitimate expectations.
We review the district court’s grant of summary judgment de
novo. Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d
277, 283 (4th Cir. 2004). “Summary judgment is proper ‘if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.’”
Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986) (quoting Fed.
9
R. Civ. P. 56 (c)). Rule 56 mandates the entry of summary
judgment if the nonmoving party, after a reasonable time of
discovery, “fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Id.
at 322. “[A] complete failure of proof concerning an essential
element of the nonmoving party’s case necessarily renders all
other facts immaterial [and] [t]he moving party is entitled to
judgment as a matter of law….”
Id. at 323 (internal quotation
marks omitted).
III.
A.
Because Jyachosky offers no direct evidence of
discrimination by the legal decisionmaker, her claims are
analyzed under the burden-shifting framework of McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 – 805 (1973). First,
Jyachosky must prove a prima facie case of discrimination, and
then the burden shifts to the Navy to articulate a “legitimate,
nondiscriminatory reason for the employee’s rejection.”
Id. at
802. Once the Navy provides a legal reason, Jyachosky again
carries the burden to show, by a preponderance of the evidence,
that the offered reason was merely a pretext for discrimination.
Id. at 804.
10
To make out a prima facie case of age and gender
discrimination, Jyachosky must establish that (1) she is a
member of a protected class, (2) she suffered an adverse
employment action, (3) she was performing her job duties at a
level that met her employer’s legitimate expectations at the
time of the adverse employment action, and (4) the position
remained open or was filled by similarly-qualified applicants
either outside the protected class (for gender discrimination)
or substantially younger with comparable qualifications (for age
discrimination). Holland v. Washington Homes, Inc., 487 F.3d
208, 214 (4th Cir. 2007); Warch v. Ohio Cas. Ins. Co.,
435 F.3d
510, 513 (4th Cir. 2006).
Assuming that Jyachosky can establish the first two
elements as an above-forty-year-old female who was reassigned to
a non-supervisory position, * the third element still proves
problematic. Although Jyachosky can point to positive
performance reviews, there is ample evidence in the record that
she was having substantial problems with her supervisory role.
*
“The mere fact that a new job assignment is less appealing
to the employee, however, does not constitute adverse employment
action.” James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371,
376 (4th Cir. 2004). A “reassignment can only form the basis of
a valid Title VII claim if the plaintiff can show that the
reassignment had some significant detrimental effect.”
Id.,
quoting Boone v. Goldin,
178 F.3d 253, 256 (4th Cir. 1999). See
discussion infra at III. B.
11
These documents are dated contemporaneously with her performance
reviews, indicating that these problems were not manufactured
after her dismissal to serve as a pretext. (J.A. 100-29.) Even
viewing the evidence in the light most favorable to Jyachosky,
the record is clear that awards given to Jyachosky were intended
to encourage further improvement, rather than to signal that she
was currently meeting expectations.
To avoid a finding that Jyachosky was not meeting the
Navy’s legitimate expectations (and thus failing to make her
prima facie case of discrimination), she challenges, on appeal,
the credibility of statements made by her subordinates who
criticized her leadership style. This argument appears to be
raised for the first time before this court, and because
Jyachosky has not argued that exceptional circumstances justify
consideration of these arguments, her credibility challenges
have been waived. The record reflects that Jyachosky was not
meeting the legitimate expectations of her employer, and she
thus cannot establish the third prong of a prima facie case of
age or gender discrimination.
Even if Jyachosky had met the Navy’s legitimate
expectations regarding her performance, Jyachosky is unable to
establish the final element of a prima facie case of gender
discrimination because she was replaced by a member of her
protected class, Angela Smookler.
12
Because Jyachosky failed to establish a prima facie case of
either gender or age discrimination, we affirm the judgment of
the district court.
B.
With respect to Jyachosky’s age and gender discrimination
claims relating to her 2003 reassignment, she first argues that
the district court should have admitted direct evidence of
discrimination by considering her affidavit that Rear Admiral
Cobb stated in an All Hands meeting that “older workers were a
terrible problem in NAVSEA.” (J.A. at 951). The district court
excluded this evidence because Jyachosky never alleged she was
present at the meeting, only that she could confirm the
statement with a tape recording. As such, the district court
reasoned the evidence had to be excluded under the best evidence
rule because Jyachosky did not produce the tape recording.
Jyachosky now argues that the district court should have
inferred that she had been present at the meeting because it was
called an “All Hands” meeting. The court need not decide this
question because if it was error to exclude the tape recording,
it was harmless.
In order to maintain a valid claim of age or gender
discrimination, an individual must have suffered an adverse
employment decision. Id. In James v. Booz-Allen & Hamilton,
Inc.,
368 F.3d 371 (4th Cir. 2004), the Fourth Circuit stated
13
that “absent any decrease in compensation, job title, level of
responsibility, or opportunity for promotion, reassignment to a
new position commensurate with one’s salary level does not
constitute an adverse employment action even if the new job does
cause some modest stress not present in the old position.” Id.
at 375, quoting Boone v. Goldin,
178 F.3d 253, 256 – 257 (4th
Cir. 1999).
It is undisputed that Jyachosky’s salary remained the same
and her job title remained similar. She admits that she would
have had similar duties as to her previous position, except she
claims that she would have been working with a smaller subset of
systems involving a narrower application. Jyachosky makes no
claim that she lost opportunities for promotion. Although she
claims that the reassignment would have detrimentally affected
her health, as supported by her physician’s letters, she has
provided no explanation as to how the reassignment would have
impacted her other than the ordinary stresses associated with a
new job. Such stresses are not the “significant detrimental
effect” that precedent contemplates. Id.,368 F.3d at 376.
In short, Jyachosky did not demonstrate that the 2003
reassignment was an adverse employment action under Title VII.
The Navy was therefore entitled to summary judgment.
14
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
15
