                            UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.




                             15
