Jyachosky v. Winter

343 F. App'x 871

• Court: Court of Appeals for the Fourth Circuit
• Decided: September 14, 2009
• Docket: 08-1077
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-1077

BARBARA A. JYACHOSKY,

Plaintiff - Appellant,

v.

DONALD C. WINTER, Secretary, Department of the Navy,

Defendant - Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:06-cv-00849-CMH-TRJ)

Argued: May 14, 2009 Decided: September 14, 2009

Before Sandra Day O’CONNOR, Associate Justice (Retired), Supreme Court of the United States, sitting by designation, WILKINSON, Circuit Judge, and Joseph F. ANDERSON, Jr., United States District Judge for the District of South Carolina, sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: Jeffrey Lynn Rhodes, ALBO & OBLON, LLP, Arlington, Virginia, for Appellant. Leslie Bonner McClendon, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Declan C. Leonard, ALBO & OBLON, LLP, Arlington, Virginia, for Appellant. Chuck Rosenberg, United States Attorney, Lauren A. Wetzler, Steven E. Gordon, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit.

2 PER CURIAM:

Barbara A. Jyachosky appeals the district court’s decision

to grant summary judgment to her former employer, the Department

of the Navy. Jyachosky alleged the Navy intentionally

discriminated and retaliated against her on the bases of her sex

and age, in violation of Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e, and the Age Discrimination in

Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. This case

centers on the reassignment of Jyachosky to a non-supervisory

position in 1997 and elimination of her position in 2003. We

agree with the district court that Jyachosky is unable to

establish a prima facie case of discrimination based on the 1997

reassignment and that the Navy’s 2003 elimination of her

position does not satisfy the threshold Title VII requirement of

an adverse employment action. Therefore, we affirm the

dismissal of the action.

I.

Jyachosky, a female born in 1943, worked for the Navy from

June 1969 until August 2004, when she retired as a GS-15.

Jyachosky worked primarily as a public affairs officer for the

Naval Ship Engineering Center (“NAVSEC”), a field activity of

the Naval Ship Systems Command (“NAVSHIPS”). After NAVSEC’s

merger with NAVSHIPS in 1976 to form the Naval Sea Systems

3 Command (“NAVSEA”), Jyachosky continued to work for NAVSEA,

where she ultimately held the supervisory position of Head of

the Public Affairs Branch from June 1988 until April 1997. As

the Director of Congressional and Public Affairs, Navy Captain

David Thomas served as Jyachosky’s supervisor from 1991 until he

retired in July 1994. In September 1994, Navy Captain Gordon

Peterson succeeded Captain Thomas as Jyachosky’s supervisor.

In April 1997, the Navy permanently reassigned Jyachosky

from her position as the Head of the Public Affairs Branch to a

non-supervisory position in the Program Executive Office,

Surface/Combatants/AEGIS Program (“PEO SC/AP”). The Navy

reassigned Jyachosky after having received numerous complaints

regarding deficiencies in performance of her supervisory role.

To the Navy, these complaints, and the accompanying high

turnover rate among Jyachosky’s subordinates, were evidence of a

serious underlying morale problem. In his letter informing

Jyachosky of her reassignment, Captain Peterson stated “I am no

longer confident that you have the ability to inspire positive

relationships, morale and teamwork among all members of your

staff that are so essential to our overall mission.”

Nevertheless, Jyachosky was not the only individual in

NAVSEA with a high turnover rate. Jyachosky’s turnover rate,

thirteen turnovers in nine years, was proportionally lower than

that of her younger male counterpart, William Scott, who had

4 nine turnovers in six years. In addition, Jyachosky claims her

supervisor, Captain Peterson, had approximately twenty-two

personnel turnovers in four years, a number the Navy claims she

derived by adding her own turnover rate to that of Scott.

Jyachosky had previously received high marks on her

performance evaluations while in the Head position. (See, e.g.,

J.A. at 136 – 139.) These marks, however, are in reference to

Jyachosky’s efforts to improve in light of the complaints

received. For example, in a letter dated November 30, 1994, the

Vice Commander from NAVSEA told Jyachosky that “it is obvious

that a long-standing, serious morale problem exists in your

division.” (J.A. at 128.) He continued:

I am concerned that you may rely too much on oversight of behaviors you consider unacceptable rather than the hands-on development and support of the people who are working for you . . . [Y]ou attribute the negative statements of individuals interviewed to unpopular decisions you have had to make vis-à-vis problem employees. I am not persuaded that this is purely the case given the preponderance of corroborative information derived separately from several of your own subordinates/peers during the course of fact- finding for [my above statement of concern].

The Vice Commander concluded, “I, therefore, obviously

expect improvement in your performance as a leader and a

supervisor.” (J.A. at 129.)

Upon Jyachosky’s reassignment, Angela Smookler, a female,

replaced Jyachosky as the Head of NAVSEA’s Public Affairs

Branch.

5 On August 25, 1997, Jyachosky filed an administrative

discrimination complaint with the Equal Employment Opportunity

Commission (“EEOC”) against Captain Peterson concerning her

reassignment. An Administrative Judge held that the Navy had

“met its burden of articulating a legitimate, nondiscriminatory

reason for her reassignment,” and that Jyachosky had failed to

proffer any evidence of pretext. Jyachosky appealed this

decision to the EEOC’s Office of Federal Operations, which

affirmed the Administrative Judge’s decision.

In December of 2002, the Navy directed PEO Ships, the

Program Executive Office to which Jyachosky was then assigned,

to reduce its civilian employment for the fiscal year 2004 by

twenty-one percent. Ultimately, PEO Ships would eliminate

sixty-two positions. At the outset, the Executive Director of

PEO Ships, Alan Weyman, and Deputy Program Executive Officer,

Charles Hamilton, decided to focus the reductions on “front-

office” staff, and to rely in their place on support from staff

in Central Command headquarters. In March 2003, Hamilton

implemented this approach and reduced the PEO Ships “front

office” staff from twenty-five to eight civilian employees.

Jyachosky’s position was among the seventeen “front office”

staff positions eliminated. Eleven of the seventeen positions

eliminated were held by men. The only individual in the “front

office” who was under the age of forty also had his position

6 eliminated. After Jyachosky’s position was eliminated, her

responsibilities were taken over by Bonita Solarczyk, a 49-year-

old female GS-15 who was the PEO Ships Business Financial

Manager.

After informing Jyachosky that her position was being

eliminated, the Navy did not fire her, but placed her in the

NAVSEA Placement Program (“NPP”), with the goal of finding her

another position in NAVSEA. While assigned to the NPP,

Jyachosky continued to perform the same duties for PEO Ships,

maintained the same grade level and pay, and stayed in the same

physical location as when she was assigned to PEO Ships. In

July 2004, the Navy reassigned Jyachosky to the position of

Congressional and Public Affairs Officer for PEO Littoral and

Mine Warfare (“PEO LMW”). The job responsibilities of this

position were essentially identical to those of Jyachosky’s job

in PEO Ships; Jyachosky would be responsible for public and

Congressional affairs for all of PEO LMW. In addition,

Jyachosky was to maintain the same grade and pay in PEO LMW.

Jyachosky was unaware of missing out on any promotional

opportunities, performance awards, or pay increases as a result

of being reassigned out of PEO Ships.

Although she formally accepted the position at PEO LMW,

Jyachosky retired before it became effective. Jyachosky

represented to the Navy that her physical and emotional health

7 would not sustain another transfer and submitted supporting

physician’s letters. Her retirement became effective August 3,

2004.

On June 10, 2003, Jyachosky initiated an administrative

complaint with the EEOC against Hamilton, Wyman, and Rear

Admiral W.W. Cobb, the Program Executive Officer for PEO Ships,

concerning the 2003 elimination of her position and her 1997

reassignments to the NPP and PEO LMW. An Administrative Judge

granted the Navy summary judgment in concluding that the Navy

had articulated a legitimate, non-discriminatory reason for

eliminating Jyachosky’s position and that it was not pretextual.

Jyachosky appealed both the Administrative Judge’s

decisions to the district court, which granted summary judgment

to the Navy on both claims.

II.

Title VII of the Civil Rights Act of 1964 prohibits an

employer from “discriminat[ing] against any individual with

respect to his compensation, terms, conditions, or privileges of

employment, because of such individual’s race, color, religion,

sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Title VII

also makes it unlawful for an employer “to limit, segregate, or

classify his employees or applicants for employment in any way

which would deprive or tend to deprive any individual of

8 employment opportunities or otherwise adversely affect his

status as an employee, because of such individual’s race, color,

religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(2).

The district court found that Jyachosky had failed to

establish a prima facie case of a Title VII violation with

respect to the 1997 reassignment. To establish a prima facie

case, Jyachosky must show that she was a member of a protected

class who suffered an adverse employment decision even though

she was meeting her employer’s legitimate expectations and that

she was replaced by someone who was not a member of the

protected class. The district court held that Jyachosky had

satisfied the first two elements of her Title VII claim because

she is an above-forty-year-old female who was reassigned from a

supervisory position to a non-supervisory position. However,

the district court determined that Jyachosky failed to produce

evidence that she met the Navy’s legitimate expectations.

We review the district court’s grant of summary judgment de

novo. Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d

277, 283 (4th Cir. 2004). “Summary judgment is proper ‘if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law.’”

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.

9 R. Civ. P. 56 (c)). Rule 56 mandates the entry of summary

judgment if the nonmoving party, after a reasonable time of

discovery, “fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on

which that party will bear the burden of proof at trial.” Id.

at 322. “[A] complete failure of proof concerning an essential

element of the nonmoving party’s case necessarily renders all

other facts immaterial [and] [t]he moving party is entitled to

judgment as a matter of law….” Id. at 323 (internal quotation

marks omitted).

III.

A.

Because Jyachosky offers no direct evidence of

discrimination by the legal decisionmaker, her claims are

analyzed under the burden-shifting framework of McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802 – 805 (1973). First,

Jyachosky must prove a prima facie case of discrimination, and

then the burden shifts to the Navy to articulate a “legitimate,

nondiscriminatory reason for the employee’s rejection.” Id. at

802. Once the Navy provides a legal reason, Jyachosky again

carries the burden to show, by a preponderance of the evidence,

that the offered reason was merely a pretext for discrimination.

Id. at 804.

10 To make out a prima facie case of age and gender

discrimination, Jyachosky must establish that (1) she is a

member of a protected class, (2) she suffered an adverse

employment action, (3) she was performing her job duties at a

level that met her employer’s legitimate expectations at the

time of the adverse employment action, and (4) the position

remained open or was filled by similarly-qualified applicants

either outside the protected class (for gender discrimination)

or substantially younger with comparable qualifications (for age

discrimination). Holland v. Washington Homes, Inc., 487 F.3d

208, 214 (4th Cir. 2007); Warch v. Ohio Cas. Ins. Co., 435 F.3d

510, 513 (4th Cir. 2006).

Assuming that Jyachosky can establish the first two

elements as an above-forty-year-old female who was reassigned to

a non-supervisory position, * the third element still proves

problematic. Although Jyachosky can point to positive

performance reviews, there is ample evidence in the record that

she was having substantial problems with her supervisory role.

* “The mere fact that a new job assignment is less appealing to the employee, however, does not constitute adverse employment action.” James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 376 (4th Cir. 2004). A “reassignment can only form the basis of a valid Title VII claim if the plaintiff can show that the reassignment had some significant detrimental effect.” Id., quoting Boone v. Goldin, 178 F.3d 253, 256 (4th Cir. 1999). See discussion infra at III. B.

11 These documents are dated contemporaneously with her performance

reviews, indicating that these problems were not manufactured

after her dismissal to serve as a pretext. (J.A. 100-29.) Even

viewing the evidence in the light most favorable to Jyachosky,

the record is clear that awards given to Jyachosky were intended

to encourage further improvement, rather than to signal that she

was currently meeting expectations.

To avoid a finding that Jyachosky was not meeting the

Navy’s legitimate expectations (and thus failing to make her

prima facie case of discrimination), she challenges, on appeal,

the credibility of statements made by her subordinates who

criticized her leadership style. This argument appears to be

raised for the first time before this court, and because

Jyachosky has not argued that exceptional circumstances justify

consideration of these arguments, her credibility challenges

have been waived. The record reflects that Jyachosky was not

meeting the legitimate expectations of her employer, and she

thus cannot establish the third prong of a prima facie case of

age or gender discrimination.

Even if Jyachosky had met the Navy’s legitimate

expectations regarding her performance, Jyachosky is unable to

establish the final element of a prima facie case of gender

discrimination because she was replaced by a member of her

protected class, Angela Smookler.

12 Because Jyachosky failed to establish a prima facie case of

either gender or age discrimination, we affirm the judgment of

the district court.

B.

With respect to Jyachosky’s age and gender discrimination

claims relating to her 2003 reassignment, she first argues that

the district court should have admitted direct evidence of

discrimination by considering her affidavit that Rear Admiral

Cobb stated in an All Hands meeting that “older workers were a

terrible problem in NAVSEA.” (J.A. at 951). The district court

excluded this evidence because Jyachosky never alleged she was

present at the meeting, only that she could confirm the

statement with a tape recording. As such, the district court

reasoned the evidence had to be excluded under the best evidence

rule because Jyachosky did not produce the tape recording.

Jyachosky now argues that the district court should have

inferred that she had been present at the meeting because it was

called an “All Hands” meeting. The court need not decide this

question because if it was error to exclude the tape recording,

it was harmless.

In order to maintain a valid claim of age or gender

discrimination, an individual must have suffered an adverse

employment decision. Id. In James v. Booz-Allen & Hamilton,

Inc., 368 F.3d 371 (4th Cir. 2004), the Fourth Circuit stated

13 that “absent any decrease in compensation, job title, level of

responsibility, or opportunity for promotion, reassignment to a

new position commensurate with one’s salary level does not

constitute an adverse employment action even if the new job does

cause some modest stress not present in the old position.” Id.

at 375, quoting Boone v. Goldin, 178 F.3d 253, 256 – 257 (4th

Cir. 1999).

It is undisputed that Jyachosky’s salary remained the same

and her job title remained similar. She admits that she would

have had similar duties as to her previous position, except she

claims that she would have been working with a smaller subset of

systems involving a narrower application. Jyachosky makes no

claim that she lost opportunities for promotion. Although she

claims that the reassignment would have detrimentally affected

her health, as supported by her physician’s letters, she has

provided no explanation as to how the reassignment would have

impacted her other than the ordinary stresses associated with a

new job. Such stresses are not the “significant detrimental

effect” that precedent contemplates. Id., 368 F.3d at 376.

In short, Jyachosky did not demonstrate that the 2003

reassignment was an adverse employment action under Title VII.

The Navy was therefore entitled to summary judgment.

14 For the foregoing reasons, the judgment of the district

court is

AFFIRMED.