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.