                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 13-1011


JAMES M. DARNELL,

                Plaintiff - Appellant,

          v.

TYSON FOODS, INC.,

                Defendant - Appellee.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Robert J. Conrad,
Jr., Chief District Judge. (3:11-cv-00473-RJC-DCK)


Submitted:   July 15, 2013                 Decided:   July 31, 2013


Before DUNCAN and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Kirk J. Angel, THE ANGEL LAW FIRM, PLLC, Concord, North
Carolina, for Appellant.     Kevin J. Dalton, Matthew R. Korn,
FISHER & PHILLIPS LLP, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

        James     Darnell   (Darnell)       appeals      the     district       court’s

decision to grant summary judgment to his former employer, Tyson

Foods,       Incorporated    (Tyson).          Darnell     alleged       that    Tyson

intentionally discriminated against him on the basis of his age

in violation of the Age Discrimination in Employment Act (ADEA),

29 U.S.C. § 621 et seq.               This case centers on the proposed

reassignment of Darnell from a supervisory position on the first

shift to a supervisory position on the third shift.                           We agree

with the district court that Darnell is unable to establish a

prima     facie     case    of   discrimination       because          the    proposed

reassignment does not satisfy the threshold ADEA requirement of

an adverse employment action.           Accordingly, we affirm.



                                         I

        Darnell    became   an   employee    of   Tyson    in     1989    when    Tyson

purchased a poultry processing facility owned by Holly Farms,

Inc.    in    Wilkesboro,    North    Carolina.       In       June   1992,     Darnell

voluntarily transferred to a maintenance technician position at

Tyson’s Monroe, North Carolina processing plant (Monroe Plant).

In   December      1996,    Darnell   was    promoted      to    the     position    of

maintenance supervisor in the labeling department, a position he

held at the Monroe Plant until his resignation in May 2010.



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Darnell typically arrived at the Monroe Plant around 6:00 a.m.

and ended his shift around 5:00 p.m.

     The Monroe Plant had five departmental equipment lines at

the time of Darnell’s resignation and a maintenance supervisor

assigned to each line: evisceration; debone; cut-up; net-weight;

and labeling.      Only the labeling line regularly operated during

the third shift.      During the third shift, the machines at the

Monroe   Plant     were   cleaned    and     preventive    maintenance    was

performed by a crew of maintenance technicians so the equipment

was ready to run at the start of the first shift.

     On December 1, 2009, the positions of thirty-six year old

Assistant Maintenance Manager Glenn Rossi (Darnell’s superior)

and fifty-six year old third shift Maintenance Supervisor Jimmy

Vo (Vo) were eliminated through a reduction in force to reduce

costs.   At the time of his termination, Vo’s regularly scheduled

hours were from 11:00 p.m. until approximately 9:00 a.m.               Vo was

the only maintenance supervisor and member of management on the

third shift and his termination left the third shift with no

management supervision.

     By the end of December 2009, there was an increase in the

frequency of machines breaking down that resulted in a marked

decrease in production at the Monroe Plant.               On March 4, 2010,

Plant    Manager    Jonathan    Edwards      (Edwards)    provided     written

disciplinary     counseling    to   former    Maintenance    Manager     David

                                    - 3 -
McHugh     (McHugh)    regarding       the    need   to    correct    the   increased

equipment     breakdowns       and    rectify     the     preventive     maintenance

deficiencies.         There    were    no     significant       improvements   during

March 2010, and, on April 2, 2010, Edwards notified McHugh that

he   was    being    removed    from    the     maintenance       manager   position,

effective April 19, 2010.

      In    March     2010,    Tyson    sent     Dennis     Joy     (Joy)   from    its

corporate office in Springdale, Arkansas to the Monroe Plant to

analyze the processes, costs, and performance of the maintenance

departments at the plant.             In performing this analysis, Joy was

concerned about the lack of maintenance supervision on the third

shift and that preventive maintenance was not being performed,

resulting     in     significant      and     increasing        equipment   failures.

Because an additional maintenance supervisor position could not

be added due to the costs involved, Joy concluded that one of

the five maintenance supervisors at the Monroe Plant needed to

have his schedule adjusted to cover the third shift, provide

management     presence,       and    ensure    preventative        maintenance     was

being properly performed.

      Joy    recommended       to    Edwards     that     Darnell’s     schedule     be

adjusted     based    on   Darnell’s         training     and    experience    in   the

labeling department and relative lack of experience in the other

departments.        In reaching his recommendation, Joy analyzed the

qualifications of all of the maintenance supervisors and whether

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any of the other supervisors would be a better fit for the shift

adjustment,    but   Darnell’s        experience     in    labeling,    and     his

inexperience    in   the      other    departments,       made   him   the    only

feasible choice.

     Darnell was initially informed of the reassignment decision

during   a    meeting    on    April    23,     2010.      Darnell     agreed    a

maintenance supervisor was needed on the third shift, but said

he was not interested.         After the meeting, Joy and Complex Human

Resources Manager Leonard Parks (Parks) discussed whether the

third shift 11:00 p.m. to 9:00 a.m. schedule could be modified

in an effort to find an alternative that Darnell might accept

that would also comply with business needs.                 They came up with

two potential options.         One option was a 3:00 a.m. to 1:00 p.m.

shift for Darnell that would also entail adjusting the schedule

of a second shift maintenance supervisor to stay later until

Darnell arrived.        Another alternative was to permit Darnell, if

he preferred, to take a non-management maintenance technician

position on the first shift and Tyson would hire a maintenance

supervisor for the third shift.                 Edwards was advised of and

approved the potential alternatives to be offered.

     On April 24, 2010, a second meeting was held, with Edwards,

Joy, Parks, and Darnell present.               Darnell was provided with the

other two options as alternatives to the 11:00 p.m. start time.

Darnell was advised to let them know his decision on Monday,

                                       - 5 -
April 26, 2010.         Darnell said “There ain’t no way in hell I’m

going to do that” and walked out of Edwards’ office and slammed

the door behind him.            (J.A. 121).         After leaving the meeting,

Darnell told several hourly maintenance employees: “These damn

fools think I’m going to go third shift.”                   (J.A. 128).      This was

the last shift Darnell worked at the Monroe Plant.

       On   April    26,   2010,    rather        than   advising    Tyson    of     his

decision, Darnell informed Joy: “I got five weeks’ vacation.                           I

want    two   of    them    right       now.”      (J.A.    124-25).        Regarding

Darnell’s     decision     to   continue        employment,      Darnell    told    Joy:

“I’ll let you know what I think about it when I come back.”

(J.A. 126).         Darnell was granted the two-week vacation request

until May 10, 2010.

       On May 10, 2010, Darnell met with Parks and informed him

that he was not going to adjust his schedule.                      Darnell resigned

and left the Monroe Plant.                 At the time of his resignation,

Darnell was sixty-three years old.                 After Darnell’s resignation,

Tyson   temporarily        adjusted      the    schedules     of   its     four    other

maintenance     supervisors        by    extending       their   working     hours    to

twelve-hour shifts for over seven months while a search for a

replacement was performed.               Kevin Shaw was hired to become the

third shift maintenance supervisor in December 2010.                         Shaw was

fifty-seven years old at the time he was hired.



                                          - 6 -
       On September 22, 2011, Darnell sought relief under the ADEA

by filing a complaint in the United States District Court for

the Western District of North Carolina.                      Following the close of

discovery, Tyson filed a motion for summary judgment, which the

district court granted on December 7, 2012.                        The district court

concluded that Darnell could not establish a prima facie case of

age     discrimination      because     he       failed      to     offer     sufficient

evidence     to   demonstrate      that:       (1)    the    proposed       reassignment

constituted       an     adverse      employment            action;     (2)       he        was

constructively         discharged;    and       (3)     he    was     replaced         by     a

substantially younger individual.

       This timely appeal followed.



                                           II

                                           A

       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).            “[S]ummary 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.

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

                                       - 7 -
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 a

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

marks omitted).

                                           B

      The   ADEA    forbids      “an   employer       .   .       .    to     discharge      any

individual or otherwise discriminate against any individual with

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

employment,      because    of    such    individual’s                age.”      29    U.S.C.

§ 623(a).      Absent direct evidence of intentional discrimination,

we   analyze     ADEA   claims     under       the    burden-shifting              framework

established for Title VII claims in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973).               Warch v. Ohio Cas. Ins. Co., 435

F.3d 510, 513–14 (4th Cir. 2006).                Under this framework, Darnell

must first establish a prima facie case of age discrimination by

a preponderance of the evidence.                 Id. at 513.                To establish a

prima facie case of age discrimination, Darnell must demonstrate

that: (1) he is a member of a protected class; (2) he suffered

an   adverse     employment   action;      (3)       he   was         performing      his    job

                                         - 8 -
duties      at    a     level    that     met     his     employer’s       legitimate

expectations at the time of the adverse employment action; and

(4) the position remained open or was filled by a similarly

qualified applicant outside the protected class.                           Hill, 354

F.3d at 285.

       If a prima facie case is established, the burden shifts to

Tyson to     demonstrate        “a    legitimate,      nondiscriminatory     reason”

for the adverse employment action.                    Warch, 435 F.3d at 513–14.

If Tyson meets this burden, “the presumption of discrimination

created by the prima facie case disappears from the case and the

plaintiff        must   prove    that     the    proffered        justification    is

pretextual.”       Id. at 514 (internal quotation marks omitted).

       We agree with the district court that Darnell failed to

establish a prima facie case of age discrimination because there

was no adverse employment action.                     In James v. Booz-Allen &

Hamilton, Inc., 368 F.3d 371 (4th Cir. 2004), we stated 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    376   (citation,     alterations,         and    internal    quotation   marks

omitted).



                                         - 9 -
      It    is    undisputed         that    Darnell’s       salary,    benefits,    job

title, and promotion opportunities were not threatened by the

proposed reassignment.              He testified at his deposition that his

job duties “would be basically the same,” but that he would be

working    at    “a   different        time.”        (J.A.   136).      Moreover,    the

duration of the new shift was not longer than the duration of

his first-shift schedule.                In short, the change in time, without

any change to Darnell’s terms and conditions of employment, does

not   constitute         an    adverse      employment    action.       Id.    Because

Darnell cannot demonstrate that the proposed reassignment was an

adverse employment action under the ADEA, the district court

correctly granted Tyson’s motion for summary judgment. *



                                             III

      For the reasons stated herein, the judgment of the district

court is affirmed.              We dispense with oral argument because the

facts     and    legal    contentions        are     adequately   presented     in   the

materials       before        the   court    and   argument     would    not   aid   the

decisional process.

                                                                               AFFIRMED

      *
        Because Darnell cannot demonstrate that the proposed
reassignment was an adverse employment action, we need not
decide the issues of whether Darnell was constructively
discharged or whether he was replaced by a substantially younger
individual.



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