199 F.3d 446 (D.C. Cir. 1999)
Regina C. Brown, Appellantv.Kenneth D. Brody, Chairman, Export-Import Bank of the United States, Appellee
No. 97-5347
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 15, 1999Decided December 21, 1999

[Copyrighted Material Omitted]
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:


1
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 summary 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 thoroughly unconvincing.


2
* 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.


3
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, concentrating 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.


4
These changes and others prompted the Bank to reorganize 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.


5
On September 17, 1993, Brown received word from Raymond 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 Contracts 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.


6
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 procedures.  Brown made a formal complaint on October 8, naming  Leik and Albright as the discriminating officials.  Despite her  objections, Brown was transferred to Contracts Administration on October 18 along with another GS-14 from the Claims  Division, Kenneth Vranich, who is white.


7
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 according to a mathematical scale ranging from five points for an  "outstanding" rating to one point for an "unacceptable" rating.  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 consistently been negligent in advising the division's managers of  her meetings with the public, developments in her assignments 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 appraisal 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 memorialized 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 discrimination and retaliation against Leik and Albright, but she did not  amend her previous formal complaint or file a new one.1


8
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 December and requested a letter of re-employment from the Bank.


9
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 selection.  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 nonselections 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 Appellant at 6.2


10
On February 14, 1995, Brown commenced this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.  §§ 2000e et seq., charging Kenneth D. Brody, the Chairman of the Export-Import Bank with racial and sexual discrimination 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.


11
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 within its organization as a common business practice;  and because other similarly situated employees within the defendant'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 presented legitimate, non-discriminatory reasons for selecting others  over Brown.  See id. at 12-14.


12
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

13
Brown sees discrimination, racial and sexual, in three of the  Bank's actions:  (1) transferring her to Contracts Administration (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

14
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 "exchanged" 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 evaluation--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 deposition 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 discrimination claim would be baseless because two of the three employees selected for that transfer were women.  See  Brown, mem. op. at 12 n.5.

B. Racial Discrimination and Retaliation

15
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 prerequisite for such a Title VII suit, is the question we now  consider.

1.The Need for an Adverse Personnel Action

16
Federal employment practices and private employment  practices are regulated in separate provisions of Title VII.The provisions differ slightly.  Private employers must comply with 42 U.S.C.  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.  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.  2000e-16(a).


17
"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, 196 F.3d 255, 259 (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).


18
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 protected class;  (2) she suffered an adverse employment action;  and  (3) the unfavorable action gives rise to an inference of discrimination.  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 for discrimination and retaliation claims against federal employers, 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).


19
Realizing the difficulty these formulations pose for her  case, as will become clear later, Brown tells us the requirement 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):


20
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 employees or applicants for employment ... shall be made free from any discrimination based on [race, color, religion, sex, or national origin]."  42 U.S.C.  2000e-16[(a)].


21
* * *


22
[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.


23
If we took these statements from Palmer at face value, the  opinion would appear to conflict with other federal employment decisions in this circuit.  This court's opinion in Mitchell, 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 treatment 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 action."  Furthermore, Palmer's stress on the language of  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.


24
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 insufficient 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


25
Unlike Palmer, but like Mitchell and McKenna, Brown's  claim is an individual disparate treatment claim rather than a 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  2000e-16's  prohibition against discrimination in "all personnel actions,"  and concluded that the plaintiffs could state a claim "regardless 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.") (emphasis added).7


26
Brown also relies upon another decision of this court,  Passer v. American Chemical Society, 935 F.2d 322 (D.C. Cir. 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 employment 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 employers occur after employees have left.  See id. at 331 (citing  cases).


27
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.  2000e-16(a).8This amendment also changed 5 U.S.C.  2302(a)(2)(A)(xi).That subsection had read "any other significant change in duties or responsibilities which is inconsistent with the employee's salary or grade level."  It now reads "any other  significant change in duties, responsibilities, or working conditions."  See  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.  2000e-16(c), a federal employee  must first be "aggrieved" in order to bring an action and   2000e-16(d) states that civil actions brought by federal  employees are governed by the same rules as those controlling suits by private employees set forth in  2000e-5(f)-(k).Section 2000e-5(f)(1) refers to the "person or persons aggrieved" numerous times throughout its substantial length.


28
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

29
Brown alleges that the Bank discriminated against her in  two lateral transfer decisions.  It first assigned her to a 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 transfer 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.


30
"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 F. Lidge III, The Meaning of Discrimination:  Why Courts  Have Erred in Requiring Employment Discrimination  Plaintiffs to Prove that the Employer's Action was Materially Adverse or Ultimate, 47 U. Kan. L. Rev. 333, 336-38 &  n.22, 341 (1999).


31
The Supreme Court reinforced this approach to discrimination 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:


32
The concept of a tangible employment action appears innumerous cases in the Courts of Appeals discussing claims involving race, age, and national origin discrimination, as well as sex discrimination.  Without endorsing 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 significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different 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).


33
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.").


34
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 diminution 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 employment 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").


35
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 employee may bring a vicarious liability suit against her employer 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.


36
3."Fully Satisfactory" Evaluation and Letter of Admonishment


37
Brown argues that the district court committed two reversible 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 independent 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 ExIm."  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.


38
On the question whether Brown's "fully satisfactory" performance 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.11These 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.


39
While Brown's evaluation may have been lower than normal, 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 this procedure, there is no evidence that she ever sought such  an adjustment.

4.Allegations of Pretext

40
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.


41
The analysis of pretext allegations proceeds as follows:


42
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 faciecase;  (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).


43
Aka, 156 F.3d at 1289.  Although the presentation of evidence  rebutting pretext is sometimes sufficient to defeat a defendant's motion for summary judgment, see Carpenter v. Federal 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 decisions.  "As courts are not free to second-guess an employer's  business judgment," a plaintiff's mere speculations are "insufficient to create a genuine issue of fact regarding [an employer's] articulated reasons for [its decisions] and avoid summary  judgment."  Branson v. Price River Coal Co., 853 F.2d 768,  772 (10th Cir. 1988).


44
a. Involuntary Lateral Transfer


45
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 employment 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 explanation.


46
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 possibility 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 transferred 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 productively 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 Contracts 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.


47
b. Job Appraisal and Admonishment Letter


48
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.


49
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.


50
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 backdated or that a delay between the preparation and delivery of  performance reviews was abnormal.


51
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 advanced 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.  Either 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.


52
c. Non-Selection for Desired Lateral Transfer


53
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.


54
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, provided 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."  Texas 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).


55
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 expertise--lending.  Their involvement might matter if Brown had  successfully demonstrated discrimination or retaliation at an  earlier stage in their relationship or a pattern of discrimination against other similarly situated black people, but she has  not.  See Aka, 156 F.3d at 1289;  Fischbach, 86 F.3d at 1182.


56
* * *


57
For the reasons set forth above, the district court's order  granting summary judgment for the Export-Import Bank is


58
Affirmed.



Notes:


*
 Former Circuit Judge Wald was a member of the panel at the  time of oral argument, but did not participate in the decision.


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 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 received 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 memorandum that the State Department would "finalize an offer" "within the  next few days."


3
 The record contains nothing to substantiate the claim of systemic 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.


5
 Other circuits use the same formula.  See, e.g., Norville v.  Staten Island Univ. Hosp., 196 F.3d 89, 95 (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).


6
 That conclusion was illustrated by the following example:  "if  Title VII plaintiffs present evidence that the under selection 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 decisions."  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  2000e-16(a).  The district court in Hayes noted that Palmer could be read as in conflict with the narrower reading of   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' allegations, 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 constitutes "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 reassignment," "a performance evaluation," and "any other significant  change in duties, responsibilities, or working conditions."  5 U.S.C.   2302(a)(2)(A)(iv), (viii), (xi);  see also id.  2302(b)(1)(A).  Although 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,  5(a)(3), 108  Stat. 4361, 4364 (amending  2302 to include "a Government corporation 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   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).


10
 Courts of appeals routinely apply the same standards to evaluate Title VII claims as they do ADA claims, ADEA claims, and even 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 (comparing 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 discriminatory employment practices.  Compare, e.g., 29 U.S.C.  623(a)(1)  (ADEA), and 42 U.S.C.  2000e-2(a) (Title VII), with 42 U.S.C.   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.  623(d), "is parallel to the anti-retaliation  provision contained in Title VII of the Civil Rights Act of 1964, 42  U.S.C.  2000e-3(a), and cases interpreting the latter provision are  frequently relied upon in interpreting the former").


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).


