Brown, Regina C. v. Brody, Kenneth D.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 15, 1999 Decided December 21, 1999

No. 97-5347

Regina C. Brown,

Appellant

v.

Kenneth D. Brody, Chairman, Export-Import Bank of the

United States,

Appellee

Appeal from the United States District Court

for the District of Columbia

(95cv00298)

James L. Kestell argued the cause for appellant. With him

on the briefs was Michael P. Deeds.

Michael A. Humphreys, Assistant U.S. Attorney, argued

the cause for appellee. With him on the brief were Wilma A.

Lewis, U.S. Attorney, and R. Craig Lawrence, Assistant U.S.

Attorney.

Before: Wald,* Henderson, and Randolph, Circuit Judges.

Opinion for the Court filed by Circuit Judge Randolph.

Randolph, Circuit Judge: This is an appeal from an order

of the district court, Hogan, J., granting summary judgment

for the Export-Import Bank on three counts of unlawful

discrimination alleged by a former employee, Regina C.

Brown. We affirm the district court's order granting sum-

mary judgment for the Bank because Brown has failed to

allege any legally cognizable adverse employment action and

because her attempts to discredit the Bank's account of its

employment decisions as a web of pretextual artifice is thor-

oughly unconvincing.

I

Brown "is a 50 year old black female with three separate

Master's Degrees." Brief for Appellant at 2. She began

working at the Export-Import Bank as a GS-12 loan officer

in August 1984. During the next ten years, she received two

promotions, rising to the level of a GS-14 senior loan officer.

In June 1994, she left the Bank to accept an appointment at

the State Department as Deputy Assistant Secretary of State

for African Affairs.

Brown spent her first year at the Bank on rotational

assignment. After working for a short period in several

divisions, including three months in Contracts Administration,

she switched to the Africa/Middle East Division, concentrat-

ing her efforts on countries located in West Africa. There

she remained through the early 1990's, when it became

apparent that many of these countries were unable to meet

their financial obligations, and that the Bank would curtail its

business in the region. By the second quarter of 1993, most

of these countries were closed for new business. The Bank

expected this condition to endure for some time and Brown

concedes that it lasted through at least 1994.

__________

* Former Circuit Judge Wald was a member of the panel at the

time of oral argument, but did not participate in the decision.

These changes and others prompted the Bank to reorga-

nize its allocation of personnel and shift a number of people

into temporary reassignments. Some of the transfers were

voluntary, others were not; the rotations fell upon both sexes

and upon both black and white employees. It was the Bank's

policy to require all senior practitioners to make themselves

available for reassignment as required by the Bank's shifting

needs. The Bank also considered reassignments of this kind

to be an important educational tool for the professional

development of its staff.

On September 17, 1993, Brown received word from Ray-

mond Albright--a Senior Vice-President at the Bank, a white

male, and Brown's second-level supervisor--that she was to

be reassigned to the Contracts Administration Division of the

Bank the following month. Brown strongly objected to this

reassignment because she believed Contracts was a less

prestigious "back-shop" area and because, having worked for

a short period in Contracts many years earlier as a GS-12,

she felt she had little to learn from such a rotation. The

Bank maintained that Brown's presence was needed in Con-

tracts and that the numerous transfers in the fall of 1993 had

the effect of balancing the number of senior practitioners

between the Bank's various departments.

Unconvinced, Brown thought the "catalyst" behind her

transfer was her immediate supervisor, Carl Leik, a white

male. By her lights, she was moved because of racial and

sexual animus. She first approached one of the Bank's equal

employment opportunity counselors with this allegation on

September 20, 1993, when she signed a form laying out her

rights and responsibilities under the Bank's grievance proce-

dures. Brown made a formal complaint on October 8, naming

Leik and Albright as the discriminating officials. Despite her

objections, Brown was transferred to Contracts Administra-

tion on October 18 along with another GS-14 from the Claims

Division, Kenneth Vranich, who is white.

On October 22, 1993, two days after her formal transfer to

Contracts Administration, Brown received a copy of her

annual performance evaluation from Leik. The evaluation

measured her performance in five different categories accord-

ing to a mathematical scale ranging from five points for an

"outstanding" rating to one point for an "unacceptable" rat-

ing. Brown received a "superior" rating in the areas of

"technical knowledge," "special projects," and "supervision."

She received a "fully satisfactory" rating in the "case work"

category. This rating was accompanied by remarks which

noted the prohibition against further loan activity in West

Africa and suggested that Brown lacked enthusiasm for the

lesser function of debt collection. Finally, Brown received a

two-point "minimally satisfactory" rating for internal and

external oral and written communication. The comments

attached to that rating stated that "Ms. Brown has consis-

tently been negligent in advising the division's managers of

her meetings with the public, developments in her assign-

ments and providing copies of outgoing correspondence.

There have been a number of instances of a lack of courtesy."

The cumulative average of Brown's scores was 3.4, which, as

for any cumulative score between 2.75 and 3.75, meant that

Brown received an overall rating of "fully satisfactory."

Brown claimed that this was the lowest performance apprais-

al she had ever received and she met with Leik and Albright

to discuss her evaluation one week later on October 29.

During that meeting, Albright gave Brown a "Letter of

Admonishment" chronicling a number of separately memori-

alized conflicts between Brown and her supervisors and also

between Brown and her peers and superiors in other divisions

of the Bank. Brown "indicated that [she] seriously disagreed

with the allegations which he was belatedly raising" and

signed the evaluation "under protest" because she felt that

she should discuss the matter with her attorney. Later that

same day, Brown made an informal complaint of discrimina-

tion and retaliation against Leik and Albright, but she did not

amend her previous formal complaint or file a new one.1

__________

1 There is some dispute about whether the EEO counselor told

Brown she must file a formal complaint. The effect of this dispute

on the district court's opinion is discussed infra at Part II.A.2. It

bears mention at this point, however, that Brown's claim to have

initiated separate informal complaints on both October 22 and

During this same period--the fall of 1993--Brown began to

receive employment overtures from the State Department.

On September 27, Brown was informed that she was being

considered for Deputy Assistant Secretary for African Affairs

and she was offered that job after an interview on October 8.

Although Brown did not accept the position when it was

originally offered, she states that she accepted it later that

month contingent upon the Bank's agreement to let her

return to the Bank after she finished her job at State. She

began the process of obtaining a security clearance in Decem-

ber and requested a letter of re-employment from the Bank.

In March 1994, while the State Department had Brown's

application for a security clearance under review, the Bank

decided to create a new Project Finance section and posted

notices for three new positions available for competitive selec-

tion. Brown applied for a transfer to one of those positions,

but she was not selected during the interviews held on April

29. Albright and Leik were two of three senior managers on

the selection board. Brown believed she was not selected in

retaliation for having filed an EEO complaint against these

individuals the previous fall. However, Brown did not file

another complaint. Instead, "[a]s a result of these non-

selections and because she remained stuck in the Contracts

Division, Brown believed she had no choice but to accept an

appointment [as] a Deputy Assistant Secretary of State for

African Affairs at the State Department." Brief for Appel-

lant at 6.2

On February 14, 1995, Brown commenced this action pur-

suant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.

ss 2000e et seq., charging Kenneth D. Brody, the Chairman

__________

October 29 is in conflict with her own affidavit. Compare Brief for

Appellant at 5 with Brown Aff. p 16, J.A. 368.

2 Brown's affidavit is inconsistent about the time when she re-

ceived a "firm commitment" from the State Department. She

states within the same paragraph that it came in "late May" and on

"June 17." Brown also maintains elsewhere in a June 10 memoran-

dum that the State Department would "finalize an offer" "within the

next few days."

of the Export-Import Bank with racial and sexual discrimina-

tion as well as retaliation. In her complaint, Brown claimed

that the Bank had discriminated against her by involuntarily

reassigning her from the Africa/Middle East Division of the

Bank to Contracts Administration. She also claimed that the

Bank discriminated against her by giving her an evaluation

lower than she had been accustomed to receiving, by failing to

promote her to a position within the Project Finance Division;

and by refusing to provide her with a letter of re-employment

after she had accepted a political position with the State

Department. After discovery, the Bank moved for summary

judgment arguing that Brown's complaint failed to present a

genuine issue of material fact and that the Bank was entitled

to judgment as a matter of law.

The district court granted the Bank's motion for summary

judgment. As to Brown's claim of improper reassignment,

the court ruled that she had failed to establish a prima facie

case because the Bank routinely re-assigned employees with-

in its organization as a common business practice; and be-

cause other similarly situated employees within the defen-

dant's organization were, in fact, involuntarily reassigned on a

regular basis. See Brown v. Brody, Civ. No. 95-298 (TFH),

mem. op. at 6-7 (D.D.C. Nov. 12, 1997). Brown's claims of

discrimination pertaining to a lower-than-usual performance

appraisal and a letter of admonishment were, in the court's

view, lacking in substance. See id. at 8, 10-11. The court

also found that the Bank's actions in not transferring Brown

to one of the three available positions within its Project

Finance Division was not unlawful because the Bank present-

ed legitimate, non-discriminatory reasons for selecting others

over Brown. See id. at 12-14.

Brown has abandoned two of the theories she advanced in

the proceedings below. She does not now claim that she was

constructively discharged from her job because of the Bank's

alleged discriminatory practices. See id. at 10-12. Nor does

she challenge the district court's ruling that she was not

entitled to a letter of re-employment when she left the Bank

to accept a higher-paying political appointment at the State

Department for an indefinite duration. See id. at 14-17.

II

Brown sees discrimination, racial and sexual, in three of the

Bank's actions: (1) transferring her to Contracts Administra-

tion (Claim I); (2) giving her a "fully satisfactory" evaluation

and a letter of admonishment (Claim II); and (3) denying her

a transfer to a newly created position in Project Finance

(Claim III). She also alleges that in taking the last two

actions, the Bank unlawfully retaliated against her.3

A. Sexual Discrimination

Viewing the record in the light most favorable to Brown,

we detect no genuine issue about any material fact relating to

Brown's claims of sexual discrimination and we are convinced

that no reasonable jury could return a verdict in her favor on

this basis. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986); Aka v. Washington Hosp. Ctr., 156 F.3d 1284,

1288 (D.C. Cir. 1998) (en banc). With respect to her first

claim--involuntary transfer--Brown argues that she was "ex-

changed" with a lower-graded white female from Contracts

Administration.4 This decision thus was not based on sex.

With respect to the second claim--the performance evalua-

tion--there is no evidence that women were singled out for

poor performance reviews. Brown's lone example of her

supervisor Leik's past habit of issuing poor performance

ratings was a black man, Kenneth M. Tinsley, and his deposi-

tion was hardly supportive of Brown's allegation of pattern

discrimination. See Tinsley Dep., J.A. 360-64, 455-56. On

her third claim--non-selection for a desired lateral transfer--

the district court correctly observed that any sexual discrimi-

nation claim would be baseless because two of the three

__________

3 The record contains nothing to substantiate the claim of system-

ic disparate treatment weakly alleged in Brown's complaint; in any

event, her brief does not list such a claim as an issue on appeal.

The record is also devoid of anything to support a disparate impact

theory.

4 Brown's description of this move as an "exchange" is not

accurate. See infra Part II.B.1.

employees selected for that transfer were women. See

Brown, mem. op. at 12 n.5.

B. Racial Discrimination and Retaliation

In Mungin v. Katten, Muchin & Zavis, 116 F.3d 1549,

1556-57 (D.C. Cir. 1997), we wrote: "Perhaps in recognition

of the judicial micromanagement of business practices that

would result if [courts] ruled otherwise, other circuits have

held that changes in assignments or work-related duties do

not ordinarily constitute adverse employment decisions if

unaccompanied by a decrease in salary or work hour

changes." This was said on review of a verdict. Here, the

appeal is of a summary judgment and the employer is federal,

rather than private. Whether that should matter in our

analysis, whether an "adverse" employment action is a pre-

requisite for such a Title VII suit, is the question we now

consider.

1. The Need for an Adverse Personnel Action

Federal employment practices and private employment

practices are regulated in separate provisions of Title VII.

The provisions differ slightly. Private employers must com-

ply with 42 U.S.C. s 2000e-2(a), which makes it an unlawful

employment practice to discriminate on the basis of "race,

color, religion, sex, or national origin" in hiring decisions, in

compensation, terms and conditions of employment, and in

classifying employees in a way that would "adversely affect"

their status as employees. Federal employers, including

government corporations such as the Export-Import Bank,

must adhere to 42 U.S.C. s 2000e-16: "All personnel actions

affecting employees ... in executive agencies as defined in

section 105 of Title 5 ... shall be made free from any

discrimination based on race, color, religion, sex, or national

origin." 42 U.S.C. s 2000e-16(a).

"Despite the difference in language between [the Title VII

provisions governing private and federal employers], we have

held that Title VII places the same restrictions on federal and

District of Columbia agencies as it does on private employers,

Barnes v. Costle, [561 F.2d 983, 988 (D.C. Cir. 1977)], and so

we may construe the latter provision in terms of the former."

Bundy v. Jackson, 641 F.2d 934, 942 (D.C. Cir. 1981). Our

court has therefore applied the familiar test of McDonnell

Douglas v. Green, 411 U.S. 792, 802 (1973), in Title VII suits

against federal employers, even though the Supreme Court

formulated the test in a private sector discrimination case.

See, e.g., Holbrook v. Reno, 1999 WL 1065159, at *3 (D.C. Cir.

Nov. 26, 1999); Parker v. Secretary, U.S. Dep't of Housing &

Urban Dev., 891 F.2d 316, 320 (D.C. Cir. 1989); Mitchell v.

Baldrige, 759 F.2d 80, 84 (D.C. Cir. 1985); McKenna v.

Weinberger, 729 F.2d 783, 788 (D.C. Cir. 1984); Valentino v.

United States Postal Serv., 674 F.2d 56, 63 (D.C. Cir. 1982).

The Supreme Court too has assumed the test's applicability

to the federal government. See United States Postal Serv.

Bd. of Governors v. Aikens, 460 U.S. 711 (1983).

In federal as in private employment cases, our decisions--

with an exception to be mentioned in a moment--require

plaintiffs to satisfy the first step of the McDonnell Douglas

test by showing that they have been subjected to some sort of

adverse personnel or employment action. Thus, to state a

prima facie claim of disparate treatment discrimination, the

plaintiff must establish that (1) she is a member of a protect-

ed class; (2) she suffered an adverse employment action; and

(3) the unfavorable action gives rise to an inference of dis-

crimination. See, e.g., McKenna, 729 F.2d at 789.5 For

retaliation claims, such as the one Brown alleges, the prima

facie requirements are slightly different. The plaintiff must

show "1) that she engaged in a statutorily protected activity;

2) that the employer took an adverse personnel action; and 3)

that a causal connection existed between the two." Mitchell,

759 F.2d at 86 (quoting McKenna, 729 F.2d at 790); accord,

e.g., Carney v. American Univ., 151 F.3d 1090, 1095 (D.C.

Cir. 1998); Paquin v. Federal Nat'l Mortgage Ass'n, 119 F.3d

23, 31 (D.C. Cir. 1997); Passer v. American Chem. Soc'y, 935

F.2d 322, 331 (D.C. Cir. 1991). A common element required

__________

5 Other circuits use the same formula. See, e.g., Norville v.

Staten Island Univ. Hosp., 1999 WL 996945, at *3 (2d Cir. Nov. 2,

1999); Brennan v. Metropolitan Opera Ass'n, 192 F.3d 310, 316 (2d

Cir. 1999); Price v. S-B Power Tool, 75 F.3d 362, 365 (8th Cir.

1996); Little v. Cox's Supermarkets, 71 F.3d 637, 642 n.3 (7th Cir.

1995).

for discrimination and retaliation claims against federal em-

ployers, and private employers, is thus some form of legally

cognizable adverse action by the employer. See Doe v.

DeKalb County Sch. Dist., 145 F.3d 1441, 1448 n.10 (11th Cir.

1998) (citations omitted).

Realizing the difficulty these formulations pose for her

case, as will become clear later, Brown tells us the require-

ment of an adverse personnel action applies only to private

sector Title VII cases, but that in Title VII suits against

federal employers, any sort of personnel action undertaken

for discriminatory reasons suffices. Strong support for her

position seems to come from the following passages in Palmer

v. Shultz, 815 F.2d 84, 97-98 (D.C. Cir. 1987):

A plaintiff may bring a Title VII claim for alleged

discrimination with respect to any employment decision

by an agency of the federal government. The statute

itself states that "all personnel actions affecting employ-

ees or applicants for employment ... shall be made free

from any discrimination based on [race, color, religion,

sex, or national origin]." 42 U.S.C. s 2000e-16[(a)].

* * *

[This language covers] "all personnel actions" [based on

race, color, religion, sex, or national origin] regardless of

whether the personnel action affects promotions or

causes other tangible or economic loss.

If we took these statements from Palmer at face value, the

opinion would appear to conflict with other federal employ-

ment decisions in this circuit. This court's opinion in Mitch-

ell, for example, stated the test for retaliation in terms, not of

any personnel action, but of an "adverse personnel action"

and it did so in a Title VII suit against a federal agency (the

Commerce Department). See 759 F.2d at 86. In McKenna

v. Weinberger, 729 F.2d at 789, another Title VII suit against

a federal agency, this court held that for a disparate treat-

ment claim to succeed there must be "proof that an adverse

personnel action was taken and that it was motivated by

discriminatory animus. The inquiry in such a case must focus

on the circumstances surrounding the adverse personnel ac-

tion." Furthermore, Palmer's stress on the language of

s 2000e-16(a) as contrasted with the provision applicable to

private employers, see 815 F.2d at 97-98, seems at odds with

Barnes, 561 F.2d at 988, and with Bundy, 641 F.2d at 942.

The cases just mentioned--Bundy, Barnes, Mitchell and

McKenna--were decided before Palmer, but Palmer cited

none of them.

Since one panel of this court cannot overrule another,

LaShawn A. v. Barry, 87 F.3d 1389, 1393, 1395-96 (D.C. Cir.

1996) (en banc), we must attempt to reconcile Palmer with

our other decisions. This requires us to examine the case in

further detail. Palmer reversed a district court's dismissal of

a class action brought against the State Department by

female employees alleging a host of discriminatory practices.

The State Department argued that while there might be

statistical evidence showing that it had discriminated against

women in certain types of personnel decisions, the plaintiffs

could not state a claim regarding other types of employment

decisions in the absence of similar evidence. The court

rejected that argument, concluding that "when plaintiffs in a

Title VII case introduce statistical evidence of an extreme

disparity in the selection rates for men and women for a

certain type of job, the fact that these plaintiffs have insuffi-

cient evidence to establish an inference of discrimination

regarding other employment decisions should not block an

inference of discrimination on the specific type of employment

decision at issue." 815 F.2d at 98.6

Unlike Palmer, but like Mitchell and McKenna, Brown's

claim is an individual disparate treatment claim rather than a

__________

6 That conclusion was illustrated by the following example: "if

Title VII plaintiffs present evidence that the underselection of

women for a particular type of job assignment measures above 3.0

standard deviations, this evidence necessarily raises an inference of

discrimination in these assignments regardless of the statistical

evidence concerning other assignments." 815 F.2d at 98-99.

Palmer's conclusion, and the example following it, explain an earlier

passage in which the court said that the plaintiffs "may bring a

disparate treatment claim regarding discrimination in any type of

personnel decision regardless of whether or not that discrimination

has an effect on other, arguably more important, personnel deci-

pattern or practice claim. The very different nature of the

claim in Palmer places in context the portion of the opinion

we have quoted above. When Palmer stressed s 2000e-16's

prohibition against discrimination in "all personnel actions,"

and concluded that the plaintiffs could state a claim "regard-

less of whether the personnel action affects promotions or

causes other tangible or economic loss," id., it relied on

Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986),

decided just months before. In Meritor, the Supreme Court

recognized a cause of action for "hostile work environment"

sexual harassment in addition to the more traditional cause of

action for so-called quid pro quo harassment. See id. at 64.

After Meritor, plaintiffs could maintain an action even in the

absence of a tangible economic effect on employment if the

work atmosphere was "so heavily polluted with discrimination

as to destroy completely the emotional and psychological

stability of minority group workers." Id. at 66 (quoting

Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971)); see also

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 754 (1998)

(explaining the difference between specific claims and hostile

work environment claims and noting that the latter requires a

showing of "severe or pervasive conduct") (citing Oncale v.

Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998);

Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)); see also

id. at 768 (Thomas, J., dissenting) ("In race discrimination

cases, employer liability has turned on whether the plaintiff

has alleged an adverse employment consequence, such as

firing or demotion, or a hostile work environment.") (empha-

sis added).7

Brown also relies upon another decision of this court,

Passer v. American Chemical Society, 935 F.2d 322 (D.C. Cir.

__________

sions." Id. at 98. By this point, the court had already found

evidence of pervasive sexual discrimination at the Department

based on statistical evidence alone. See id. at 91-97.

7 Brown also cites Hayes v. Shalala, 902 F. Supp. 259 (D.D.C.

1995), to support her argument that Palmer does not require a

tangible effect in order for a federal employee to state a claim

under s 2000e-16(a). The district court in Hayes noted that Palm-

er could be read as in conflict with the narrower reading of

1991), to show that an employer's actions need not have any

effect on the employee's working conditions. Passer held

that a retiring employee could state a claim for retaliation

under the Age Discrimination in Employment Act when his

former employer indefinitely postponed a public symposium

in his honor after the employee filed an ADEA claim against

it. See id. at 331-32. The employer freely admitted that it

did so in retaliation, see id. at 330, but argued that the

retaliation provision only applied to decisions affecting em-

ployment and that Passer could not state a claim because he

had left its employment. The court rejected that argument

because a great number of retaliatory actions taken by em-

ployers occur after employees have left. See id. at 331 (citing

cases).

In this case, as in Passer, we are less concerned with the

kind of employment action involved, than with its effect on the

employee. Viewed in this light, there is nothing remarkable

about the statement in Palmer that no particular type of

personnel action was automatically excluded from serving as

the basis of a cause of action under 42 U.S.C. s 2000e-16(a).8

This amendment also changed 5 U.S.C. s 2302(a)(2)(A)(xi).

That subsection had read "any other significant change in

__________

s 2000e-16 in Page v. Bolger, 645 F.2d 227 (4th Cir. 1981). While

recognizing that it was bound by Palmer, the court confined its

decision in Hayes. After stating "that many of Mr. Hayes' allega-

tions, if believed, might have affected the terms of his employment

and thus have been actionable even under the analysis in Page"

because they would have "directly affected Mr. Hayes' work record

or the terms of his compensation," 902 F. Supp. at 266, the court

decided that "Mr. Hayes must be permitted to argue that the

totality of actions taken by his employer collectively created a

harassing and retaliatory environment, even if individual actions

may not have left a permanent paper trail or may even have been

"mediate" employment decisions as identified by the Fourth Circuit

in Page." Id. at 267.

8 Palmer drew support for its conclusion from the listing of

specific personnel actions covered by the Foreign Service Act. See

815 F.2d at 97. There is no comparable specific statute for the

Export-Import Bank. Title VII does not itself define what consti-

duties or responsibilities which is inconsistent with the em-

ployee's salary or grade level." It now reads "any other

significant change in duties, responsibilities, or working condi-

tions." See s 5(a)(2), 108 Stat. 4363. Even so, there must

still be some kind of injury for a federal employee to state a

claim. Under 42 U.S.C. s 2000e-16(c), a federal employee

must first be "aggrieved" in order to bring an action and

s 2000e-16(d) states that civil actions brought by federal

employees are governed by the same rules as those control-

ling suits by private employees set forth in s 2000e-5(f)-(k).

Section 2000e-5(f)(1) refers to the "person or persons ag-

grieved" numerous times throughout its substantial length.

In short, in Title VII cases such as Brown's, federal

employees like their private counterparts must show that

they have suffered an adverse personnel action in order to

establish a prima facie case under the McDonnell Douglas

framework. How this affects Brown's claims is the next

subject.9

2. Lateral Transfers

Brown alleges that the Bank discriminated against her in

two lateral transfer decisions. It first assigned her to a

__________

tutes "personnel actions" by federal employers. However, Title V,

which prohibits discrimination and retaliation by federal entities,

mentions employment actions such as "a detail, transfer or reas-

signment," "a performance evaluation," and "any other significant

change in duties, responsibilities, or working conditions." 5 U.S.C.

s 2302(a)(2)(A)(iv), (viii), (xi); see also id. s 2302(b)(1)(A). Al-

though this provision did not become applicable to organizations like

the Export-Import Bank until after the events giving rise to this

case, see Act of Oct. 29, 1994, Pub. L. No. 103-424, s 5(a)(3), 108

Stat. 4361, 4364 (amending s 2302 to include "a Government corpo-

ration as defined in section 9101 of title 31"), we agree with Brown

that involuntary transfers, performance evaluations, and refusals

of transfer applications are "personnel actions" covered by

s 2000e-16(a).

9 Part II.B.1 of this opinion has been circulated to and approved

by the entire court and thus constitutes the law of the circuit. See

Irons v. Diamond, 670 F.2d 265, 268 n.11 (D.C. Cir. 1981).

position she did not desire and later declined to assign her to

a newly created position she did desire. There is no dispute

that the pay and benefits were the same in Brown's original

job, in the job to which she was sent, and in the job she was

denied. Brown has argued that the same legal standards

should govern both her involuntary transfer to Contracts

Administration and the denial of her bid for a desired trans-

fer into Project Finance. See Appellant's Reply Brief at 11.

We agree. Unfortunately for Brown, this means that claims

one and three both fail as a matter of law.

"The clear trend of authority," as we mentioned in Mungin,

116 F.3d at 1556-57, "is to hold 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.' " Ledergerber v. Stangler, 122 F.3d

1142, 1144 (8th Cir. 1997) (quoting Williams v. Bristol-Myers

Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996)). A survey of the

relevant case law shows that the authority requiring a clear

showing of adversity in employee transfer decisions is both

wide and deep. See, e.g., Doe, 145 F.3d at 1453-54; Kocsis v.

Multi-Care Management, Inc., 97 F.3d 876, 886-87 (6th Cir.

1996); Crady v. Liberty Nat'l Bank & Trust Co., 993 F.2d

132, 135-36 (7th Cir. 1993); Harlston v. McDonnell Douglas

Corp., 37 F.3d 379, 382-83 (8th Cir. 1994); Flaherty v. Gas

Research Inst., 31 F.3d 451, 457-58 (7th Cir. 1994); Spring v.

Sheboygan Area Sch. Dist., 865 F.2d 883, 885-86 (7th Cir.

1989); Caussade v. Brown, 924 F. Supp. 693, 701, 704 (D. Md.

1996), aff'd without opinion, 107 F.3d 865 (4th Cir. 1997);

Kauffman v. Kent State Univ., 815 F. Supp. 1077, 1083-86

(N.D. Ohio 1993); McCoy v. WGN Television, 758 F. Supp.

1231, 1236-37 (N.D. Ill. 1990); Haimovitz v. United States

Dep't of Justice, 720 F. Supp. 516, 523-27 (W.D. Pa. 1989);

Ferguson v. E.I. duPont de Nemours & Co., 560 F. Supp.

1172, 1201 (D. Del. 1983); cf. Dollis v. Rubin, 77 F.3d 777,

781-82 (5th Cir. 1995); Connell v. Bank of Boston, 924 F.2d

1169, 1178-80 (1st Cir. 1991).10 See generally Ernest

__________

10 Courts of appeals routinely apply the same standards to evalu-

ate Title VII claims as they do ADA claims, ADEA claims, and even

F. Lidge III, The Meaning of Discrimination: Why Courts

Have Erred in Requiring Employment Discrimination

Plaintiffs to Prove that the Employer's Action was Material-

ly Adverse or Ultimate, 47 U. Kan. L. Rev. 333, 336-38 &

n.22, 341 (1999).

The Supreme Court reinforced this approach to discrimina-

tion claims in Burlington Industries, Inc. v. Ellerth, 524 U.S.

742 (1999), which cited many of the cases listed above when it

announced a "tangible employment action" standard in cases

of vicarious liability. The relevant passage of the Court's

opinion deserves full quotation:

The concept of a tangible employment action appears in

numerous cases in the Courts of Appeals discussing

claims involving race, age, and national origin discrimina-

tion, as well as sex discrimination. Without endorsing

__________

ERISA claims. See, e.g., Doe, 145 F.3d at 1448 ("We can assist our

consideration of the adversity standard under the ADA, therefore,

by looking to the broader experience of our court and others with

employment discrimination law."); see also id. at 1447-48 (compar-

ing Harris v. H & W Contracting Co., 102 F.3d 516, 523-24 (11th

Cir. 1996) (ADA); Maddow v. Procter & Gamble Co., 107 F.3d 846,

852-53 (11th Cir. 1997) (ADEA), Collins v. State of Illinois, 830

F.2d 692, 702-04 (7th Cir. 1987) (Title VII)); Chaffin v. John H.

Carter Co., 179 F.3d 316, 319 (5th Cir. 1999) (adopting the same

adversity requirement for Family Medical Leave Act); Little, 71

F.3d at 642-43 (same as to ERISA claims); Pendarvis v. Xerox

Corp., 3 F. Supp. 2d 53, 57 (D.D.C. 1998) (same as to Pregnancy

Discrimination Act). The Supreme Court does so as well. See, e.g.,

Ellerth, 524 U.S. at 761. This is so because these statutes often use

the same "terms and conditions" language to proscribe discrimina-

tory employment practices. Compare, e.g., 29 U.S.C. s 623(a)(1)

(ADEA), and 42 U.S.C. s 2000e-2(a) (Title VII), with 42 U.S.C.

s 12112(a) (ADA). For the same reason, courts rely on cases

applying like-worded retaliation provisions in different statutes.

See Passer, 935 F.2d at 330 (noting that the ADEA retaliation

provision, 29 U.S.C. s 623(d), "is parallel to the anti-retaliation

provision contained in Title VII of the Civil Rights Act of 1964, 42

U.S.C. s 2000e-3(a), and cases interpreting the latter provision are

frequently relied upon in interpreting the former").

the specific results of those decisions, we think it prudent

to import the concept of a tangible employment action for

resolution of the vicarious liability issue we consider

here. A tangible employment action constitutes a signifi-

cant change in employment status, such as hiring, firing,

failing to promote, reassignment with significantly differ-

ent responsibilities, or a decision causing a significant

change in benefits. Compare Crady v. Liberty Nat.

Bank & Trust Co. of Ind., 993 F.2d 132, 136 (C.A.7 1993)

("A materially adverse change might be indicated by a

termination of employment, a demotion evidenced by a

decrease in wage or salary, a less distinguished title, a

material loss of benefits, significantly diminished material

responsibilities, or other indices that might be unique to

a particular situation"), with Flaherty v. Gas Research

Institute, 31 F.3d 451, 456 (C.A.7 1994) (a "bruised ego"

is not enough); Kocsis v. Multi-Care Management, Inc.,

97 F.3d 876, 887 (C.A.6 1996) (demotion without change

in pay, benefits, duties, or prestige insufficient) and

Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382

(C.A.8 1994) (reassignment to more inconvenient job

insufficient).

Id. at 761; see also id. at 768 (Thomas, J., dissenting) ("In

race discrimination cases, employer liability has turned on

whether the plaintiff has alleged an adverse employment

consequence, such as firing or demotion, or a hostile work

environment. If a supervisor takes an adverse employment

action because of race, causing the employee a tangible job

detriment, the employer is vicariously liable for resulting

damages.").

These developments allow us to announce the following

rule: a plaintiff who is made to undertake or who is denied a

lateral transfer--that is, one in which she suffers no diminu-

tion in pay or benefits--does not suffer an actionable injury

unless there are some other materially adverse consequences

affecting the terms, conditions, or privileges of her employ-

ment or her future employment opportunities such that a

reasonable trier of fact could conclude that the plaintiff has

suffered objectively tangible harm. Mere idiosyncracies of

personal preference are not sufficient to state an injury. See,

e.g., Dilenno v. Goodwill Indus., 162 F.3d 235, 236 (3d Cir.

1998); Doe, 145 F.3d at 1448 (finding "no case, in [the 11th]

or any other circuit, in which a court explicitly relied on the

subjective preferences of a plaintiff to hold that plaintiff had

suffered an adverse employment action"); Smart v. Ball

State Univ., 89 F.3d 437, 441 (7th Cir. 1996) (emphasizing

that "not everything that makes an employee unhappy is an

actionable adverse action").

In both Ellerth and Faragher v. City of Boca Raton, 524

U.S. 775 (1999), the Court specifically identified "discharge,

demotion, or undesirable reassignment" as three examples of

the kind of "tangible employment action" for which an em-

ployee may bring a vicarious liability suit against her employ-

er under Title VII. 524 U.S. at 765; 524 U.S. at 808. Brown

was not discharged; she left the Bank for a more prestigious

position and a sixty percent raise. Nor was Brown demoted;

she retained the same rank and salary at all times relevant to

this litigation. While Brown was temporarily reassigned to a

position she thought undesirable, and she was later not

selected for a position she did find desirable, there is no

objective basis for finding that she was harmed by these

decisions in any tangible way. Therefore, the district court

properly disposed of claims one and three for failure to state

a prima facie case.

3. "Fully Satisfactory" Evaluation and Letter of Admon-

ishment

Brown argues that the district court committed two revers-

ible errors in its consideration of her performance evaluation

and letter of admonishment. First, Brown correctly observes

that the district court identified a material factual dispute

about the circumstances surrounding Brown's failure to file a

formal EEO complaint. Brown now argues this question

should have been submitted to a jury. One wonders why.

The district court assumed that a "reasonable jury" might

allow Brown to prevail against the Bank's exhaustion defense,

but ultimately concluded that Brown did not make out a

prima facie claim. See Brown, mem. op. at 9-11. Second,

Brown argues that the district court erred in failing to

consider her "satisfactory" performance rating as an indepen-

dent injury and improperly "subsumed" that inquiry into

Brown's now-abandoned constructive discharge claim. See

Brief for Appellant at 8, 17-18. The analysis appears to be

correct for the most part, but the district court did tersely

observe that "the appraisal and letter of admonishment ...

did not threaten or even affect [Brown's] employment at Ex-

Im." Brown, mem. op. at 11. While the court offered no

explanation for this conclusion, this is hardly fatal since our

review of the grant of summary judgment is de novo.

On the question whether Brown's "fully satisfactory" per-

formance rating is an adverse employment action, the weight

of contemporary authority is once again solidly with the

Bank. Just as lateral transfers do not ordinarily constitute

"adverse actions," a similarly thick body of precedent, cited in

the margin, refutes the notion that formal criticism or poor

performance evaluations are necessarily adverse actions.11

These cases support the Bank's contention that "[n]either the

letter nor the appraisal constituted adverse action because

neither affected the appellant's grade or salary." Brief for

Appellee at 7.

While Brown's evaluation may have been lower than nor-

mal, it was not adverse in an absolute sense. The overall

"fully satisfactory" rating is the middle of five grades and

Brown was rated "superior" in three of five specific areas. It

also appears that such evaluations could be adjusted on

appeal before a separate administrative branch and that

Leik's tough evaluations had been successfully adjusted by at

least one other employee. Although Brown clearly knew of

__________

11 See Mattern v. Eastman Kodak Co., 104 F.3d 702, 708, 710 (5th

Cir. 1997); Rabinovitz v. Pena, 89 F.3d 482, 486, 488-90 (7th Cir.

1996); Smart, 89 F.3d at 442-43; Kelecic v. Board of Regents, No.

94 C 50381, 1997 WL 311540, at *9 (N.D. Ill. June 6, 1997); Lucas

v. Cheney, 821 F. Supp. 374, 375-76 (D. Md. 1992); Nelson v.

University of Me. Sys., 923 F. Supp. 275, 280-82 (D. Me. 1996); cf.

Raley v. St. Mary's County Comm'rs, 752 F. Supp. 1272, 1278 (D.

Md. 1990).

this procedure, there is no evidence that she ever sought such

an adjustment.

4. Allegations of Pretext

In addition to Brown's failure to establish a prima facie

case of discrimination or retaliation, there is an alternative

ground for affirming the grant of summary judgment in favor

of the Bank--namely, Brown failed to show that the Bank's

explanations for its actions were a pretext for discrimination

and retaliation.

The analysis of pretext allegations proceeds as follows:

Assuming then that the employer has met its burden of

producing a nondiscriminatory reason for its actions, the

focus of proceedings at trial (and at summary judgment)

will be on whether the jury could infer discrimination

from the combination of (1) the plaintiff's prima facie

case; (2) any evidence the plaintiff presents to attack the

employer's proffered explanation for its actions; and (3)

any further evidence of discrimination that may be avail-

able to the plaintiff (such as independent evidence of

discriminatory statements or attitudes on the part of the

employer) or any contrary evidence that may be available

to the employer (such as evidence of a strong track

record in equal opportunity employment).

Aka, 156 F.3d at 1289. Although the presentation of evidence

rebutting pretext is sometimes sufficient to defeat a defen-

dant's motion for summary judgment, see Carpenter v. Feder-

al Nat'l Mortgage Ass'n, 165 F.3d 69, 72 (D.C. Cir. 1999),

Brown, who had the ultimate burden of persuasion, offered

nothing beyond her own speculations and allegations to refute

the Bank's legitimate, non-discriminatory reasons for its deci-

sions. "As courts are not free to second-guess an employer's

business judgment," a plaintiff's mere speculations are "insuf-

ficient to create a genuine issue of fact regarding [an employ-

er's] articulated reasons for [its decisions] and avoid summary

judgment." Branson v. Price River Coal Co., 853 F.2d 768,

772 (10th Cir. 1988).

a. Involuntary Lateral Transfer

Brown alleges that her involuntary transfer to Contracts

was not consistent with the treatment of other employees and

that the real purpose of the transfer was to provide employ-

ment development for a white female, Mrs. El Mohandes, at

Brown's expense. Brown's theory, and theory is all that

there is, does not stand up in the face of the Bank's explana-

tion.

Brown was transferred because there was almost no work

for her to do in her original position: the West African

countries she oversaw were barred from taking out more

loans and her duties were confined to loan collection. That

condition was forecasted to continue and did in fact continue

for at least a year. All personnel at Brown's level were

required to sign a statement acknowledging that the possibili-

ty of transfer to other divisions went with the job and, unlike

performance ratings, such transfers were not appealable.

Brown's transfer was at all times considered to be temporary,

a one year rotation. A white male, Mr. Vranich, was trans-

ferred into Contracts Administration at the same time as

Brown. The result was to balance employees at Brown's

level across each of the Bank's various divisions. Contrary to

Brown's persistent suggestion, El Mohandes, who was

brought over from Contracts to Brown's division, did not take

Brown's job. El Mohandes took a lower-level job in the

North African portion of the division and the countries El

Mohandes dealt with--Morocco, Algeria, Tunisia--were not

barred from receiving new loans. That El Mohandes was

later promoted to Brown's level during the next two years as

the Middle East-Africa Division merged with the European

Division is irrelevant. Promotion is not necessarily a zero-

sum game. It does not follow that Brown was harmed

because another employee with substantially different area of

expertise in an international bank was advanced. Contrary

to Brown's selective quotation from Albright's memorandum

for the record, see Brief for Appellant at 7 n.4, Albright

moved Brown for Brown's benefit--both to reduce tension

with her immediate supervisor and to employ Brown produc-

tively after West Africa was closed for further business.

Brown went on to receive commendations from her new boss,

Mrs. Newton. Brown's unsubstantiated anecdotal evidence

that Contracts was a "back-shop" dead-end is defeated by two

facts: Brown was commended for her work there, and, at the

very least, El Mohandes successfully transferred out of Con-

tracts to other divisions in the Bank. Brown's argument that

a white female, Mrs. Emmet, had never been rotated to

Contracts is inconclusive. Emmet was assigned to countries

that were still able to do business with the Bank.

b. Job Appraisal and Admonishment Letter

With respect to discrimination, Brown offers only one

example to prove that Leik demonstrated a pattern of writing

poor evaluations for black employees. That individual did not

support Brown's allegations in his deposition, but instead

consistently described his relationship with Leik as "good"

despite receiving a lower-than-normal performance appraisal.

Brown's retaliation claim is no more substantial. Brown

was first informed of Albright's intention to transfer her on

September 17, 1993. Brown filed her first informal complaint

on October 8, 1993. Brown first received her evaluation on

October 22. She then filed an informal complaint alleging

retaliation on October 26. Brown discussed the evaluation

with Leik and Albright for the first time on October 29, when

she signed it "under protest." It appears she received the

letter of admonishment on October 29, a letter that was

prepared on October 26.

The problem with Brown's retaliation claim is that the

signature dates listed on the evaluation are September 3 for

Leik and September 8 for Albright. In other words, the

evaluation was completed by Leik two weeks before Brown

was first informed of her upcoming transfer and more than a

month before Brown filed her first informal complaint.

Hence, the evaluation could not have been retaliatory.

Brown offered no evidence that her evaluation was back-

dated or that a delay between the preparation and delivery of

performance reviews was abnormal.

Brown's insistence in claim two that there was no reason

for her to anticipate either a poor evaluation or a letter of

admonishment is greatly undermined by her arguments ad-

vanced in support of claim one that significant tension existed

between her and Leik in the months leading up to her

involuntary transfer. Brown cannot have it both ways. Ei-

ther the relationship was bitter, which very slightly supports

claim one, or the relationship seemed smooth, which very

slightly supports claim two. Furthermore, Albright's letter

of admonishment thoroughly documents numerous conflicts

between Brown and Leik, and her conflicts with employees in

other divisions of the bank.

c. Non-Selection for Desired Lateral Transfer

Despite Brown's consistent representations to the contrary,

the Bank did not deny Brown a promotion. The Bank did not

select her for a lateral transfer into one of three newly

created GS-14 positions Brown thought to be more appealing.

A higher GS-15 position was also advertised, but the Bank

canceled that position and no one was hired to fill it. See

Brown, mem. op. at 12 n.4.

The Bank's explanation of its decision to transfer three

other employees is sufficient to defeat Brown's claims of

pretext. First, it is undisputed that two of the three people

transferred into the new positions were senior to Brown.

Thus, the alleged discrimination or retaliation cannot be

considered a pattern. The differences between Brown and

the third selectee are too nebulous to support an inference of

either discrimination or retaliation. "[T]he employer has

discretion to choose among equally qualified candidates, pro-

vided the decision is not based upon unlawful criteria. The

fact that a court may think that the employer misjudged the

qualifications of the applicants does not in itself expose him to

Title VII liability, although this may be probative of whether

the employer's reasons are pretexts for discrimination." Tex-

as Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259

(1981); see Aka, 156 F.3d at 1294; Fischbach v. District of

Columbia, 86 F.3d 1180, 1182 (D.C. Cir. 1996).

Brown presses her retaliation claim by observing that Leik

and Albright were two of the three people on the panel which

made the transfer decision. Their participation on the panel

is hardly surprising. Who else would have served on such a

panel? The position was squarely within their area of exper-

tise--lending. Their involvement might matter if Brown had

successfully demonstrated discrimination or retaliation at an

earlier stage in their relationship or a pattern of discrimina-

tion against other similarly situated black people, but she has

not. See Aka, 156 F.3d at 1289; Fischbach, 86 F.3d at 1182.

* * *

For the reasons set forth above, the district court's order

granting summary judgment for the Export-Import Bank is

Affirmed.