UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


BROWN, REGINA C.

v.

BRODY, KENNETH D.


97-5347a

D.C. Cir. 1999


*	*	*


Randolph, Circuit Judge: This is an appeal from an order  of the
district court, Hogan, J., granting summary judgment  for the
Export-Import Bank on three counts of unlawful  discrimination alleged
by a former employee, Regina C.  Brown. We affirm the district court's
order granting sum- mary judgment for the Bank because Brown has
failed to  allege any legally cognizable adverse employment action and
 because her attempts to discredit the Bank's account of its 
employment decisions as a web of pretextual artifice is thor- oughly


I


Brown "is a 50 year old black female with three separate  Master's
Degrees." Brief for Appellant at 2. She began  working at the
Export-Import Bank as a GS-12 loan officer  in August 1984. During the
next ten years, she received two  promotions, rising to the level of a
GS-14 senior loan officer.  In June 1994, she left the Bank to accept
an appointment at  the State Department as Deputy Assistant Secretary
of State  for African Affairs.


Brown spent her first year at the Bank on rotational  assignment. After
working for a short period in several  divisions, including three
months in Contracts Administration,  she switched to the Africa/Middle
East Division, concentrat- ing her efforts on countries located in
West Africa. There  she remained through the early 1990's, when it
became  apparent that many of these countries were unable to meet 
their financial obligations, and that the Bank would curtail its 
business in the region. By the second quarter of 1993, most  of these
countries were closed for new business. The Bank  expected this
condition to endure for some time and Brown  concedes that it lasted
through at least 1994.




__________

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


These changes and others prompted the Bank to reorga- nize its
allocation of personnel and shift a number of people  into temporary
reassignments. Some of the transfers were  voluntary, others were not;
the rotations fell upon both sexes  and upon both black and white
employees. It was the Bank's  policy to require all senior
practitioners to make themselves  available for reassignment as
required by the Bank's shifting  needs. The Bank also considered
reassignments of this kind  to be an important educational tool for
the professional  development of its staff.


On September 17, 1993, Brown received word from Ray- mond Albright--a
Senior Vice-President at the Bank, a white  male, and Brown's
second-level supervisor--that she was to  be reassigned to the
Contracts Administration Division of the  Bank the following month.
Brown strongly objected to this  reassignment because she believed
Contracts was a less  prestigious "back-shop" area and because, having
worked for  a short period in Contracts many years earlier as a GS-12,
 she felt she had little to learn from such a rotation. The  Bank
maintained that Brown's presence was needed in Con- tracts and that
the numerous transfers in the fall of 1993 had  the effect of
balancing the number of senior practitioners  between the Bank's


Unconvinced, Brown thought the "catalyst" behind her  transfer was her
immediate supervisor, Carl Leik, a white  male. By her lights, she was
moved because of racial and  sexual animus. She first approached one
of the Bank's equal  employment opportunity counselors with this
allegation on  September 20, 1993, when she signed a form laying out
her  rights and responsibilities under the Bank's grievance proce-
dures. Brown made a formal complaint on October 8, naming  Leik and
Albright as the discriminating officials. Despite her  objections,
Brown was transferred to Contracts Administra- tion on October 18
along with another GS-14 from the Claims  Division, Kenneth Vranich,


On October 22, 1993, two days after her formal transfer to  Contracts
Administration, Brown received a copy of her  annual performance
evaluation from Leik. The evaluation 


measured her performance in five different categories accord- ing to a
mathematical scale ranging from five points for an  "outstanding"
rating to one point for an "unacceptable" rat- ing. Brown received a
"superior" rating in the areas of  "technical knowledge," "special
projects," and "supervision."  She received a "fully satisfactory"
rating in the "case work"  category. This rating was accompanied by
remarks which  noted the prohibition against further loan activity in
West  Africa and suggested that Brown lacked enthusiasm for the 
lesser function of debt collection. Finally, Brown received a 
two-point "minimally satisfactory" rating for internal and  external
oral and written communication. The comments  attached to that rating
stated that "Ms. Brown has consis- tently been negligent in advising
the division's managers of  her meetings with the public, developments
in her assign- ments and providing copies of outgoing correspondence. 
There have been a number of instances of a lack of courtesy."  The
cumulative average of Brown's scores was 3.4, which, as  for any
cumulative score between 2.75 and 3.75, meant that  Brown received an
overall rating of "fully satisfactory."  Brown claimed that this was
the lowest performance apprais- al she had ever received and she met
with Leik and Albright  to discuss her evaluation one week later on
October 29.  During that meeting, Albright gave Brown a "Letter of 
Admonishment" chronicling a number of separately memori- alized
conflicts between Brown and her supervisors and also  between Brown
and her peers and superiors in other divisions  of the Bank. Brown
"indicated that [she] seriously disagreed  with the allegations which
he was belatedly raising" and  signed the evaluation "under protest"
because she felt that  she should discuss the matter with her
attorney. Later that  same day, Brown made an informal complaint of
discrimina- tion and retaliation against Leik and Albright, but she
did not  amend her previous formal complaint or file a new one.1




__________

n 1 There is some dispute about whether the EEO counselor told  Brown
she must file a formal complaint. The effect of this dispute  on the
district court's opinion is discussed infra at Part II.A.2. It  bears
mention at this point, however, that Brown's claim to have  initiated
separate informal complaints on both October 22 and 


During this same period--the fall of 1993--Brown began to  receive
employment overtures from the State Department.  On September 27,
Brown was informed that she was being  considered for Deputy Assistant
Secretary for African Affairs  and she was offered that job after an
interview on October 8.  Although Brown did not accept the position
when it was  originally offered, she states that she accepted it later
that  month contingent upon the Bank's agreement to let her  return to
the Bank after she finished her job at State. She  began the process
of obtaining a security clearance in Decem- ber and requested a letter
of re-employment from the Bank.


In March 1994, while the State Department had Brown's  application for
a security clearance under review, the Bank  decided to create a new
Project Finance section and posted  notices for three new positions
available for competitive selec- tion. Brown applied for a transfer to
one of those positions,  but she was not selected during the
interviews held on April  29. Albright and Leik were two of three
senior managers on  the selection board. Brown believed she was not
selected in  retaliation for having filed an EEO complaint against
these  individuals the previous fall. However, Brown did not file 
another complaint. Instead, "[a]s a result of these non- selections
and because she remained stuck in the Contracts  Division, Brown
believed she had no choice but to accept an  appointment [as] a Deputy
Assistant Secretary of State for  African Affairs at the State
Department." Brief for Appel- lant at 6.2


On February 14, 1995, Brown commenced this action pur- suant to Title
VII of the Civil Rights Act of 1964, 42 U.S.C.  ss 2000e et seq.,
charging Kenneth D. Brody, the Chairman 




__________

n October 29 is in conflict with her own affidavit. Compare Brief for 
Appellant at 5 with Brown Aff. p 16, J.A. 368.


2 Brown's affidavit is inconsistent about the time when she re- ceived
a "firm commitment" from the State Department. She  states within the
same paragraph that it came in "late May" and on  "June 17." Brown
also maintains elsewhere in a June 10 memoran- dum that the State
Department would "finalize an offer" "within the  next few days."


of the Export-Import Bank with racial and sexual discrimina- tion as
well as retaliation. In her complaint, Brown claimed  that the Bank
had discriminated against her by involuntarily  reassigning her from
the Africa/Middle East Division of the  Bank to Contracts
Administration. She also claimed that the  Bank discriminated against
her by giving her an evaluation  lower than she had been accustomed to
receiving, by failing to  promote her to a position within the Project
Finance Division;  and by refusing to provide her with a letter of
re-employment  after she had accepted a political position with the
State  Department. After discovery, the Bank moved for summary 
judgment arguing that Brown's complaint failed to present a  genuine
issue of material fact and that the Bank was entitled  to judgment as


The district court granted the Bank's motion for summary  judgment. As
to Brown's claim of improper reassignment,  the court ruled that she
had failed to establish a prima facie  case because the Bank routinely
re-assigned employees with- in its organization as a common business
practice; and be- cause other similarly situated employees within the
defen- dant's organization were, in fact, involuntarily reassigned on
a  regular basis. See Brown v. Brody, Civ. No. 95-298 (TFH),  mem. op.
at 6-7 (D.D.C. Nov. 12, 1997). Brown's claims of  discrimination
pertaining to a lower-than-usual performance  appraisal and a letter
of admonishment were, in the court's  view, lacking in substance. See
id. at 8, 10-11. The court  also found that the Bank's actions in not
transferring Brown  to one of the three available positions within its
Project  Finance Division was not unlawful because the Bank present-
ed legitimate, non-discriminatory reasons for selecting others  over
Brown. See id. at 12-14.


Brown has abandoned two of the theories she advanced in  the
proceedings below. She does not now claim that she was  constructively
discharged from her job because of the Bank's  alleged discriminatory
practices. See id. at 10-12. Nor does  she challenge the district
court's ruling that she was not  entitled to a letter of re-employment
when she left the Bank  to accept a higher-paying political
appointment at the State  Department for an indefinite duration. See


II


Brown sees discrimination, racial and sexual, in three of the  Bank's
actions: (1) transferring her to Contracts Administra- tion (Claim I);
(2) giving her a "fully satisfactory" evaluation  and a letter of
admonishment (Claim II); and (3) denying her  a transfer to a newly
created position in Project Finance  (Claim III). She also alleges
that in taking the last two  actions, the Bank unlawfully retaliated
against her.3


A. Sexual Discrimination


Viewing the record in the light most favorable to Brown,  we detect no
genuine issue about any material fact relating to  Brown's claims of
sexual discrimination and we are convinced  that no reasonable jury
could return a verdict in her favor on  this basis. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242,  248 (1986); Aka v. Washington
Hosp. Ctr., 156 F.3d 1284,  1288 (D.C. Cir. 1998) (en banc). With
respect to her first  claim--involuntary transfer--Brown argues that
she was "ex- changed" with a lower-graded white female from Contracts 
Administration.4 This decision thus was not based on sex.  With
respect to the second claim--the performance evalua- tion--there is no
evidence that women were singled out for  poor performance reviews.
Brown's lone example of her  supervisor Leik's past habit of issuing
poor performance  ratings was a black man, Kenneth M. Tinsley, and his
deposi- tion was hardly supportive of Brown's allegation of pattern 
discrimination. See Tinsley Dep., J.A. 360-64, 455-56. On  her third
claim--non-selection for a desired lateral transfer-- the district
court correctly observed that any sexual discrimi- nation claim would
be baseless because two of the three 




__________

n 3 The record contains nothing to substantiate the claim of system- ic
disparate treatment weakly alleged in Brown's complaint; in any 
event, her brief does not list such a claim as an issue on appeal. 
The record is also devoid of anything to support a disparate impact 
theory.


4 Brown's description of this move as an "exchange" is not  accurate.
See infra Part II.B.1.


employees selected for that transfer were women. See  Brown, mem. op.
at 12 n.5.


B. Racial Discrimination and Retaliation


In Mungin v. Katten, Muchin & Zavis, 116 F.3d 1549,  1556-57 (D.C. Cir.
1997), we wrote: "Perhaps in recognition  of the judicial
micromanagement of business practices that  would result if [courts]
ruled otherwise, other circuits have  held that changes in assignments
or work-related duties do  not ordinarily constitute adverse
employment decisions if  unaccompanied by a decrease in salary or work
hour  changes." This was said on review of a verdict. Here, the 
appeal is of a summary judgment and the employer is federal,  rather
than private. Whether that should matter in our  analysis, whether an
"adverse" employment action is a pre- requisite for such a Title VII
suit, is the question we now  consider.


1. The Need for an Adverse Personnel Action


Federal employment practices and private employment  practices are
regulated in separate provisions of Title VII.  The provisions differ
slightly. Private employers must com- ply with 42 U.S.C. s 2000e-2(a),
which makes it an unlawful  employment practice to discriminate on the
basis of "race,  color, religion, sex, or national origin" in hiring
decisions, in  compensation, terms and conditions of employment, and
in  classifying employees in a way that would "adversely affect" 
their status as employees. Federal employers, including  government
corporations such as the Export-Import Bank,  must adhere to 42 U.S.C.
s 2000e-16: "All personnel actions  affecting employees ... in
executive agencies as defined in  section 105 of Title 5 ... shall be
made free from any  discrimination based on race, color, religion,
sex, or national  origin." 42 U.S.C. s 2000e-16(a).


"Despite the difference in language between [the Title VII  provisions
governing private and federal employers], we have  held that Title VII
places the same restrictions on federal and  District of Columbia
agencies as it does on private employers,  Barnes v. Costle, [561 F.2d
983, 988 (D.C. Cir. 1977)], and so  we may construe the latter
provision in terms of the former."  Bundy v. Jackson, 641 F.2d 934,
942 (D.C. Cir. 1981). Our 


court has therefore applied the familiar test of McDonnell  Douglas v.
Green, 411 U.S. 792, 802 (1973), in Title VII suits  against federal
employers, even though the Supreme Court  formulated the test in a
private sector discrimination case.  See, e.g., Holbrook v. Reno, 1999
WL 1065159, at *3 (D.C. Cir.  Nov. 26, 1999); Parker v. Secretary,
U.S. Dep't of Housing &  Urban Dev., 891 F.2d 316, 320 (D.C. Cir.
1989); Mitchell v.  Baldrige, 759 F.2d 80, 84 (D.C. Cir. 1985);
McKenna v.  Weinberger, 729 F.2d 783, 788 (D.C. Cir. 1984); Valentino
v.  United States Postal Serv., 674 F.2d 56, 63 (D.C. Cir. 1982).  The
Supreme Court too has assumed the test's applicability  to the federal
government. See United States Postal Serv.  Bd. of Governors v.
Aikens, 460 U.S. 711 (1983).


In federal as in private employment cases, our decisions-- with an
exception to be mentioned in a moment--require  plaintiffs to satisfy
the first step of the McDonnell Douglas  test by showing that they
have been subjected to some sort of  adverse personnel or employment
action. Thus, to state a  prima facie claim of disparate treatment
discrimination, the  plaintiff must establish that (1) she is a member
of a protect- ed class; (2) she suffered an adverse employment action;
and  (3) the unfavorable action gives rise to an inference of dis-
crimination. See, e.g., McKenna, 729 F.2d at 789.5 For  retaliation
claims, such as the one Brown alleges, the prima  facie requirements
are slightly different. The plaintiff must  show "1) that she engaged
in a statutorily protected activity;  2) that the employer took an
adverse personnel action; and 3)  that a causal connection existed
between the two." Mitchell,  759 F.2d at 86 (quoting McKenna, 729 F.2d
at 790); accord,  e.g., Carney v. American Univ., 151 F.3d 1090, 1095
(D.C.  Cir. 1998); Paquin v. Federal Nat'l Mortgage Ass'n, 119 F.3d 
23, 31 (D.C. Cir. 1997); Passer v. American Chem. Soc'y, 935  F.2d
322, 331 (D.C. Cir. 1991). A common element required 




__________

n 5 Other circuits use the same formula. See, e.g., Norville v.  Staten
Island Univ. Hosp., 1999 WL 996945, at *3 (2d Cir. Nov. 2,  1999);
Brennan v. Metropolitan Opera Ass'n, 192 F.3d 310, 316 (2d  Cir.
1999); Price v. S-B Power Tool, 75 F.3d 362, 365 (8th Cir.  1996);
Little v. Cox's Supermarkets, 71 F.3d 637, 642 n.3 (7th Cir.  1995).


for discrimination and retaliation claims against federal em- ployers,
and private employers, is thus some form of legally  cognizable
adverse action by the employer. See Doe v.  DeKalb County Sch. Dist.,
145 F.3d 1441, 1448 n.10 (11th Cir.  1998) (citations omitted).


Realizing the difficulty these formulations pose for her  case, as will
become clear later, Brown tells us the require- ment of an adverse
personnel action applies only to private  sector Title VII cases, but
that in Title VII suits against  federal employers, any sort of
personnel action undertaken  for discriminatory reasons suffices.
Strong support for her  position seems to come from the following
passages in Palmer  v. Shultz, 815 F.2d 84, 97-98 (D.C. Cir. 1987):


A plaintiff may bring a Title VII claim for alleged  discrimination
with respect to any employment decision  by an agency of the federal
government. The statute  itself states that "all personnel actions
affecting employ- ees or applicants for employment ... shall be made
free  from any discrimination based on [race, color, religion,  sex,
or national origin]." 42 U.S.C. s 2000e-16[(a)].


* * *


[This language covers] "all personnel actions" [based on  race, color,
religion, sex, or national origin] regardless of  whether the
personnel action affects promotions or  causes other tangible or
economic loss.


If we took these statements from Palmer at face value, the  opinion
would appear to conflict with other federal employ- ment decisions in
this circuit. This court's opinion in Mitch- ell, for example, stated
the test for retaliation in terms, not of  any personnel action, but
of an "adverse personnel action"  and it did so in a Title VII suit
against a federal agency (the  Commerce Department). See 759 F.2d at
86. In McKenna  v. Weinberger, 729 F.2d at 789, another Title VII suit
against  a federal agency, this court held that for a disparate treat-
ment claim to succeed there must be "proof that an adverse  personnel
action was taken and that it was motivated by  discriminatory animus.
The inquiry in such a case must focus  on the circumstances
surrounding the adverse personnel ac- tion." Furthermore, Palmer's
stress on the language of 


s 2000e-16(a) as contrasted with the provision applicable to  private
employers, see 815 F.2d at 97-98, seems at odds with  Barnes, 561 F.2d
at 988, and with Bundy, 641 F.2d at 942.  The cases just
mentioned--Bundy, Barnes, Mitchell and  McKenna--were decided before
Palmer, but Palmer cited  none of them.


Since one panel of this court cannot overrule another,  LaShawn A. v.
Barry, 87 F.3d 1389, 1393, 1395-96 (D.C. Cir.  1996) (en banc), we
must attempt to reconcile Palmer with  our other decisions. This
requires us to examine the case in  further detail. Palmer reversed a
district court's dismissal of  a class action brought against the
State Department by  female employees alleging a host of
discriminatory practices.  The State Department argued that while
there might be  statistical evidence showing that it had discriminated
against  women in certain types of personnel decisions, the plaintiffs
 could not state a claim regarding other types of employment 
decisions in the absence of similar evidence. The court  rejected that
argument, concluding that "when plaintiffs in a  Title VII case
introduce statistical evidence of an extreme  disparity in the
selection rates for men and women for a  certain type of job, the fact
that these plaintiffs have insuffi- cient evidence to establish an
inference of discrimination  regarding other employment decisions
should not block an  inference of discrimination on the specific type


Unlike Palmer, but like Mitchell and McKenna, Brown's  claim is an
individual disparate treatment claim rather than a 




__________

n 6 That conclusion was illustrated by the following example: "if 
Title VII plaintiffs present evidence that the underselection of 
women for a particular type of job assignment measures above 3.0 
standard deviations, this evidence necessarily raises an inference of 
discrimination in these assignments regardless of the statistical 
evidence concerning other assignments." 815 F.2d at 98-99.  Palmer's
conclusion, and the example following it, explain an earlier  passage
in which the court said that the plaintiffs "may bring a  disparate
treatment claim regarding discrimination in any type of  personnel
decision regardless of whether or not that discrimination  has an
effect on other, arguably more important, personnel deci-


pattern or practice claim. The very different nature of the  claim in
Palmer places in context the portion of the opinion  we have quoted
above. When Palmer stressed s 2000e-16's  prohibition against
discrimination in "all personnel actions,"  and concluded that the
plaintiffs could state a claim "regard- less of whether the personnel
action affects promotions or  causes other tangible or economic loss,"
id., it relied on  Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57
(1986),  decided just months before. In Meritor, the Supreme Court 
recognized a cause of action for "hostile work environment"  sexual
harassment in addition to the more traditional cause of  action for
so-called quid pro quo harassment. See id. at 64.  After Meritor,
plaintiffs could maintain an action even in the  absence of a tangible
economic effect on employment if the  work atmosphere was "so heavily
polluted with discrimination  as to destroy completely the emotional
and psychological  stability of minority group workers." Id. at 66
(quoting  Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971)); see also
 Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 754 (1998) 
(explaining the difference between specific claims and hostile  work
environment claims and noting that the latter requires a  showing of
"severe or pervasive conduct") (citing Oncale v.  Sundowner Offshore
Servs., Inc., 523 U.S. 75, 81 (1998);  Harris v. Forklift Sys., Inc.,
510 U.S. 17, 21 (1993)); see also  id. at 768 (Thomas, J., dissenting)
("In race discrimination  cases, employer liability has turned on
whether the plaintiff  has alleged an adverse employment consequence,
such as  firing or demotion, or a hostile work environment.") (empha-


Brown also relies upon another decision of this court,  Passer v.
American Chemical Society, 935 F.2d 322 (D.C. Cir. 




__________

n sions." Id. at 98. By this point, the court had already found 
evidence of pervasive sexual discrimination at the Department  based
on statistical evidence alone. See id. at 91-97.


7 Brown also cites Hayes v. Shalala, 902 F. Supp. 259 (D.D.C.  1995),
to support her argument that Palmer does not require a  tangible
effect in order for a federal employee to state a claim  under s
2000e-16(a). The district court in Hayes noted that Palm- er could be
read as in conflict with the narrower reading of 


1991), to show that an employer's actions need not have any  effect on
the employee's working conditions. Passer held  that a retiring
employee could state a claim for retaliation  under the Age
Discrimination in Employment Act when his  former employer
indefinitely postponed a public symposium  in his honor after the
employee filed an ADEA claim against  it. See id. at 331-32. The
employer freely admitted that it  did so in retaliation, see id. at
330, but argued that the  retaliation provision only applied to
decisions affecting em- ployment and that Passer could not state a
claim because he  had left its employment. The court rejected that
argument  because a great number of retaliatory actions taken by em-
ployers occur after employees have left. See id. at 331 (citing 


In this case, as in Passer, we are less concerned with the  kind of
employment action involved, than with its effect on the  employee.
Viewed in this light, there is nothing remarkable  about the statement
in Palmer that no particular type of  personnel action was
automatically excluded from serving as  the basis of a cause of action
under 42 U.S.C. s 2000e-16(a).8  This amendment also changed 5 U.S.C.
s 2302(a)(2)(A)(xi).  That subsection had read "any other significant




__________

n s 2000e-16 in Page v. Bolger, 645 F.2d 227 (4th Cir. 1981). While 
recognizing that it was bound by Palmer, the court confined its 
decision in Hayes. After stating "that many of Mr. Hayes' allega-
tions, if believed, might have affected the terms of his employment 
and thus have been actionable even under the analysis in Page" 
because they would have "directly affected Mr. Hayes' work record  or
the terms of his compensation," 902 F. Supp. at 266, the court 
decided that "Mr. Hayes must be permitted to argue that the  totality
of actions taken by his employer collectively created a  harassing and
retaliatory environment, even if individual actions  may not have left
a permanent paper trail or may even have been  "mediate" employment
decisions as identified by the Fourth Circuit  in Page." Id. at 267.


8 Palmer drew support for its conclusion from the listing of  specific
personnel actions covered by the Foreign Service Act. See  815 F.2d at
97. There is no comparable specific statute for the  Export-Import
Bank. Title VII does not itself define what consti-


duties or responsibilities which is inconsistent with the em- ployee's
salary or grade level." It now reads "any other  significant change in
duties, responsibilities, or working condi- tions." See s 5(a)(2), 108
Stat. 4363. Even so, there must  still be some kind of injury for a
federal employee to state a  claim. Under 42 U.S.C. s 2000e-16(c), a
federal employee  must first be "aggrieved" in order to bring an
action and  s 2000e-16(d) states that civil actions brought by federal
 employees are governed by the same rules as those control- ling suits
by private employees set forth in s 2000e-5(f)-(k).  Section
2000e-5(f)(1) refers to the "person or persons ag- grieved" numerous
times throughout its substantial length.


In short, in Title VII cases such as Brown's, federal  employees like
their private counterparts must show that  they have suffered an
adverse personnel action in order to  establish a prima facie case
under the McDonnell Douglas  framework. How this affects Brown's
claims is the next  subject.9


2. Lateral Transfers


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




__________

n tutes "personnel actions" by federal employers. However, Title V, 
which prohibits discrimination and retaliation by federal entities, 
mentions employment actions such as "a detail, transfer or reas-
signment," "a performance evaluation," and "any other significant 
change in duties, responsibilities, or working conditions." 5 U.S.C. 
s 2302(a)(2)(A)(iv), (viii), (xi); see also id. s 2302(b)(1)(A). Al-
though this provision did not become applicable to organizations like 
the Export-Import Bank until after the events giving rise to this 
case, see Act of Oct. 29, 1994, Pub. L. No. 103-424, s 5(a)(3), 108 
Stat. 4361, 4364 (amending s 2302 to include "a Government corpo-
ration as defined in section 9101 of title 31"), we agree with Brown 
that involuntary transfers, performance evaluations, and refusals  of
transfer applications are "personnel actions" covered by  s


9 Part II.B.1 of this opinion has been circulated to and approved  by
the entire court and thus constitutes the law of the circuit. See 
Irons v. Diamond, 670 F.2d 265, 268 n.11 (D.C. Cir. 1981).


position she did not desire and later declined to assign her to  a
newly created position she did desire. There is no dispute  that the
pay and benefits were the same in Brown's original  job, in the job to
which she was sent, and in the job she was  denied. Brown has argued
that the same legal standards  should govern both her involuntary
transfer to Contracts  Administration and the denial of her bid for a
desired trans- fer into Project Finance. See Appellant's Reply Brief
at 11.  We agree. Unfortunately for Brown, this means that claims  one
and three both fail as a matter of law.


"The clear trend of authority," as we mentioned in Mungin,  116 F.3d at
1556-57, "is to hold that a 'purely lateral transfer,  that is, a
transfer that does not involve a demotion in form or  substance,
cannot rise to the level of a materially adverse  employment action.'
" Ledergerber v. Stangler, 122 F.3d  1142, 1144 (8th Cir. 1997)
(quoting Williams v. Bristol-Myers  Squibb Co., 85 F.3d 270, 274 (7th
Cir. 1996)). A survey of the  relevant case law shows that the
authority requiring a clear  showing of adversity in employee transfer
decisions is both  wide and deep. See, e.g., Doe, 145 F.3d at 1453-54;
Kocsis v.  Multi-Care Management, Inc., 97 F.3d 876, 886-87 (6th Cir. 
1996); Crady v. Liberty Nat'l Bank & Trust Co., 993 F.2d  132, 135-36
(7th Cir. 1993); Harlston v. McDonnell Douglas  Corp., 37 F.3d 379,
382-83 (8th Cir. 1994); Flaherty v. Gas  Research Inst., 31 F.3d 451,
457-58 (7th Cir. 1994); Spring v.  Sheboygan Area Sch. Dist., 865 F.2d
883, 885-86 (7th Cir.  1989); Caussade v. Brown, 924 F. Supp. 693,
701, 704 (D. Md.  1996), aff'd without opinion, 107 F.3d 865 (4th Cir.
1997);  Kauffman v. Kent State Univ., 815 F. Supp. 1077, 1083-86 
(N.D. Ohio 1993); McCoy v. WGN Television, 758 F. Supp.  1231, 1236-37
(N.D. Ill. 1990); Haimovitz v. United States  Dep't of Justice, 720 F.
Supp. 516, 523-27 (W.D. Pa. 1989);  Ferguson v. E.I. duPont de Nemours
& Co., 560 F. Supp.  1172, 1201 (D. Del. 1983); cf. Dollis v. Rubin,
77 F.3d 777,  781-82 (5th Cir. 1995); Connell v. Bank of Boston, 924
F.2d  1169, 1178-80 (1st Cir. 1991).10 See generally Ernest 




__________

n 10 Courts of appeals routinely apply the same standards to evalu- ate
Title VII claims as they do ADA claims, ADEA claims, and even 


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


The Supreme Court reinforced this approach to discrimina- tion claims
in Burlington Industries, Inc. v. Ellerth, 524 U.S.  742 (1999), which
cited many of the cases listed above when it  announced a "tangible
employment action" standard in cases  of vicarious liability. The
relevant passage of the Court's  opinion deserves full quotation:


The concept of a tangible employment action appears in  numerous cases
in the Courts of Appeals discussing  claims involving race, age, and
national origin discrimina- tion, as well as sex discrimination.
Without endorsing 




__________

n ERISA claims. See, e.g., Doe, 145 F.3d at 1448 ("We can assist our 
consideration of the adversity standard under the ADA, therefore,  by
looking to the broader experience of our court and others with 
employment discrimination law."); see also id. at 1447-48 (compar- ing
Harris v. H & W Contracting Co., 102 F.3d 516, 523-24 (11th  Cir.
1996) (ADA); Maddow v. Procter & Gamble Co., 107 F.3d 846,  852-53
(11th Cir. 1997) (ADEA), Collins v. State of Illinois, 830  F.2d 692,
702-04 (7th Cir. 1987) (Title VII)); Chaffin v. John H.  Carter Co.,
179 F.3d 316, 319 (5th Cir. 1999) (adopting the same  adversity
requirement for Family Medical Leave Act); Little, 71  F.3d at 642-43
(same as to ERISA claims); Pendarvis v. Xerox  Corp., 3 F. Supp. 2d
53, 57 (D.D.C. 1998) (same as to Pregnancy  Discrimination Act). The
Supreme Court does so as well. See, e.g.,  Ellerth, 524 U.S. at 761.
This is so because these statutes often use  the same "terms and
conditions" language to proscribe discrimina- tory employment
practices. Compare, e.g., 29 U.S.C. s 623(a)(1)  (ADEA), and 42 U.S.C.
s 2000e-2(a) (Title VII), with 42 U.S.C.  s 12112(a) (ADA). For the
same reason, courts rely on cases  applying like-worded retaliation
provisions in different statutes.  See Passer, 935 F.2d at 330 (noting
that the ADEA retaliation  provision, 29 U.S.C. s 623(d), "is parallel
to the anti-retaliation  provision contained in Title VII of the Civil
Rights Act of 1964, 42  U.S.C. s 2000e-3(a), and cases interpreting
the latter provision are  frequently relied upon in interpreting the


the specific results of those decisions, we think it prudent  to import
the concept of a tangible employment action for  resolution of the
vicarious liability issue we consider  here. A tangible employment
action constitutes a signifi- cant change in employment status, such
as hiring, firing,  failing to promote, reassignment with
significantly differ- ent responsibilities, or a decision causing a
significant  change in benefits. Compare Crady v. Liberty Nat.  Bank &
Trust Co. of Ind., 993 F.2d 132, 136 (C.A.7 1993)  ("A materially
adverse change might be indicated by a  termination of employment, a
demotion evidenced by a  decrease in wage or salary, a less
distinguished title, a  material loss of benefits, significantly
diminished material  responsibilities, or other indices that might be
unique to  a particular situation"), with Flaherty v. Gas Research 
Institute, 31 F.3d 451, 456 (C.A.7 1994) (a "bruised ego"  is not
enough); Kocsis v. Multi-Care Management, Inc.,  97 F.3d 876, 887
(C.A.6 1996) (demotion without change  in pay, benefits, duties, or
prestige insufficient) and  Harlston v. McDonnell Douglas Corp., 37
F.3d 379, 382  (C.A.8 1994) (reassignment to more inconvenient job 


Id. at 761; see also id. at 768 (Thomas, J., dissenting) ("In  race
discrimination cases, employer liability has turned on  whether the
plaintiff has alleged an adverse employment  consequence, such as
firing or demotion, or a hostile work  environment. If a supervisor
takes an adverse employment  action because of race, causing the
employee a tangible job  detriment, the employer is vicariously liable
for resulting  damages.").


These developments allow us to announce the following  rule: a
plaintiff who is made to undertake or who is denied a  lateral
transfer--that is, one in which she suffers no diminu- tion in pay or
benefits--does not suffer an actionable injury  unless there are some
other materially adverse consequences  affecting the terms,
conditions, or privileges of her employ- ment or her future employment
opportunities such that a  reasonable trier of fact could conclude
that the plaintiff has  suffered objectively tangible harm. Mere


personal preference are not sufficient to state an injury. See,  e.g.,
Dilenno v. Goodwill Indus., 162 F.3d 235, 236 (3d Cir.  1998); Doe,
145 F.3d at 1448 (finding "no case, in [the 11th]  or any other
circuit, in which a court explicitly relied on the  subjective
preferences of a plaintiff to hold that plaintiff had  suffered an
adverse employment action"); Smart v. Ball  State Univ., 89 F.3d 437,
441 (7th Cir. 1996) (emphasizing  that "not everything that makes an
employee unhappy is an  actionable adverse action").


In both Ellerth and Faragher v. City of Boca Raton, 524  U.S. 775
(1999), the Court specifically identified "discharge,  demotion, or
undesirable reassignment" as three examples of  the kind of "tangible
employment action" for which an em- ployee may bring a vicarious
liability suit against her employ- er under Title VII. 524 U.S. at
765; 524 U.S. at 808. Brown  was not discharged; she left the Bank for
a more prestigious  position and a sixty percent raise. Nor was Brown
demoted;  she retained the same rank and salary at all times relevant
to  this litigation. While Brown was temporarily reassigned to a 
position she thought undesirable, and she was later not  selected for
a position she did find desirable, there is no  objective basis for
finding that she was harmed by these  decisions in any tangible way.
Therefore, the district court  properly disposed of claims one and
three for failure to state  a prima facie case.


3. "Fully Satisfactory" Evaluation and Letter of Admon- ishment


Brown argues that the district court committed two revers- ible errors
in its consideration of her performance evaluation  and letter of
admonishment. First, Brown correctly observes  that the district court
identified a material factual dispute  about the circumstances
surrounding Brown's failure to file a  formal EEO complaint. Brown now
argues this question  should have been submitted to a jury. One
wonders why.  The district court assumed that a "reasonable jury"
might  allow Brown to prevail against the Bank's exhaustion defense, 
but ultimately concluded that Brown did not make out a  prima facie
claim. See Brown, mem. op. at 9-11. Second, 


Brown argues that the district court erred in failing to  consider her
"satisfactory" performance rating as an indepen- dent injury and
improperly "subsumed" that inquiry into  Brown's now-abandoned
constructive discharge claim. See  Brief for Appellant at 8, 17-18.
The analysis appears to be  correct for the most part, but the
district court did tersely  observe that "the appraisal and letter of
admonishment ...  did not threaten or even affect [Brown's] employment
at Ex- Im." Brown, mem. op. at 11. While the court offered no 
explanation for this conclusion, this is hardly fatal since our 
review of the grant of summary judgment is de novo.


On the question whether Brown's "fully satisfactory" per- formance
rating is an adverse employment action, the weight  of contemporary
authority is once again solidly with the  Bank. Just as lateral
transfers do not ordinarily constitute  "adverse actions," a similarly
thick body of precedent, cited in  the margin, refutes the notion that
formal criticism or poor  performance evaluations are necessarily
adverse actions.11  These cases support the Bank's contention that
"[n]either the  letter nor the appraisal constituted adverse action
because  neither affected the appellant's grade or salary." Brief for 


While Brown's evaluation may have been lower than nor- mal, it was not
adverse in an absolute sense. The overall  "fully satisfactory" rating
is the middle of five grades and  Brown was rated "superior" in three
of five specific areas. It  also appears that such evaluations could
be adjusted on  appeal before a separate administrative branch and
that  Leik's tough evaluations had been successfully adjusted by at 
least one other employee. Although Brown clearly knew of 




__________

n 11 See Mattern v. Eastman Kodak Co., 104 F.3d 702, 708, 710 (5th 
Cir. 1997); Rabinovitz v. Pena, 89 F.3d 482, 486, 488-90 (7th Cir. 
1996); Smart, 89 F.3d at 442-43; Kelecic v. Board of Regents, No.  94
C 50381, 1997 WL 311540, at *9 (N.D. Ill. June 6, 1997); Lucas  v.
Cheney, 821 F. Supp. 374, 375-76 (D. Md. 1992); Nelson v.  University
of Me. Sys., 923 F. Supp. 275, 280-82 (D. Me. 1996); cf.  Raley v. St.
Mary's County Comm'rs, 752 F. Supp. 1272, 1278 (D.  Md. 1990).


this procedure, there is no evidence that she ever sought such  an
adjustment.


4. Allegations of Pretext


In addition to Brown's failure to establish a prima facie  case of
discrimination or retaliation, there is an alternative  ground for
affirming the grant of summary judgment in favor  of the Bank--namely,
Brown failed to show that the Bank's  explanations for its actions
were a pretext for discrimination  and retaliation.


The analysis of pretext allegations proceeds as follows:


Assuming then that the employer has met its burden of  producing a
nondiscriminatory reason for its actions, the  focus of proceedings at
trial (and at summary judgment)  will be on whether the jury could
infer discrimination  from the combination of (1) the plaintiff's
prima facie  case; (2) any evidence the plaintiff presents to attack
the  employer's proffered explanation for its actions; and (3)  any
further evidence of discrimination that may be avail- able to the
plaintiff (such as independent evidence of  discriminatory statements
or attitudes on the part of the  employer) or any contrary evidence
that may be available  to the employer (such as evidence of a strong
track  record in equal opportunity employment).


Aka, 156 F.3d at 1289. Although the presentation of evidence  rebutting
pretext is sometimes sufficient to defeat a defen- dant's motion for
summary judgment, see Carpenter v. Feder- al Nat'l Mortgage Ass'n, 165
F.3d 69, 72 (D.C. Cir. 1999),  Brown, who had the ultimate burden of
persuasion, offered  nothing beyond her own speculations and
allegations to refute  the Bank's legitimate, non-discriminatory
reasons for its deci- sions. "As courts are not free to second-guess
an employer's  business judgment," a plaintiff's mere speculations are
"insuf- ficient to create a genuine issue of fact regarding [an
employ- er's] articulated reasons for [its decisions] and avoid
summary  judgment." Branson v. Price River Coal Co., 853 F.2d 768, 


a. Involuntary Lateral Transfer


Brown alleges that her involuntary transfer to Contracts  was not
consistent with the treatment of other employees and  that the real
purpose of the transfer was to provide employ- ment development for a
white female, Mrs. El Mohandes, at  Brown's expense. Brown's theory,
and theory is all that  there is, does not stand up in the face of the
Bank's explana- tion.


Brown was transferred because there was almost no work  for her to do
in her original position: the West African  countries she oversaw were
barred from taking out more  loans and her duties were confined to
loan collection. That  condition was forecasted to continue and did in
fact continue  for at least a year. All personnel at Brown's level
were  required to sign a statement acknowledging that the possibili-
ty of transfer to other divisions went with the job and, unlike 
performance ratings, such transfers were not appealable.  Brown's
transfer was at all times considered to be temporary,  a one year
rotation. A white male, Mr. Vranich, was trans- ferred into Contracts
Administration at the same time as  Brown. The result was to balance
employees at Brown's  level across each of the Bank's various
divisions. Contrary to  Brown's persistent suggestion, El Mohandes,
who was  brought over from Contracts to Brown's division, did not take
 Brown's job. El Mohandes took a lower-level job in the  North African
portion of the division and the countries El  Mohandes dealt
with--Morocco, Algeria, Tunisia--were not  barred from receiving new
loans. That El Mohandes was  later promoted to Brown's level during
the next two years as  the Middle East-Africa Division merged with the
European  Division is irrelevant. Promotion is not necessarily a zero-
sum game. It does not follow that Brown was harmed  because another
employee with substantially different area of  expertise in an
international bank was advanced. Contrary  to Brown's selective
quotation from Albright's memorandum  for the record, see Brief for
Appellant at 7 n.4, Albright  moved Brown for Brown's benefit--both to
reduce tension  with her immediate supervisor and to employ Brown
produc- tively after West Africa was closed for further business. 


Brown went on to receive commendations from her new boss,  Mrs. Newton.
Brown's unsubstantiated anecdotal evidence  that Contracts was a
"back-shop" dead-end is defeated by two  facts: Brown was commended
for her work there, and, at the  very least, El Mohandes successfully
transferred out of Con- tracts to other divisions in the Bank. Brown's
argument that  a white female, Mrs. Emmet, had never been rotated to 
Contracts is inconclusive. Emmet was assigned to countries  that were
still able to do business with the Bank.


b. Job Appraisal and Admonishment Letter


With respect to discrimination, Brown offers only one  example to prove
that Leik demonstrated a pattern of writing  poor evaluations for
black employees. That individual did not  support Brown's allegations
in his deposition, but instead  consistently described his
relationship with Leik as "good"  despite receiving a
lower-than-normal performance appraisal.


Brown's retaliation claim is no more substantial. Brown  was first
informed of Albright's intention to transfer her on  September 17,
1993. Brown filed her first informal complaint  on October 8, 1993.
Brown first received her evaluation on  October 22. She then filed an
informal complaint alleging  retaliation on October 26. Brown
discussed the evaluation  with Leik and Albright for the first time on
October 29, when  she signed it "under protest." It appears she
received the  letter of admonishment on October 29, a letter that was 
prepared on October 26.


The problem with Brown's retaliation claim is that the  signature dates
listed on the evaluation are September 3 for  Leik and September 8 for
Albright. In other words, the  evaluation was completed by Leik two
weeks before Brown  was first informed of her upcoming transfer and
more than a  month before Brown filed her first informal complaint. 
Hence, the evaluation could not have been retaliatory.  Brown offered
no evidence that her evaluation was back- dated or that a delay
between the preparation and delivery of  performance reviews was


Brown's insistence in claim two that there was no reason  for her to
anticipate either a poor evaluation or a letter of  admonishment is
greatly undermined by her arguments ad- vanced in support of claim one
that significant tension existed  between her and Leik in the months
leading up to her  involuntary transfer. Brown cannot have it both
ways. Ei- ther the relationship was bitter, which very slightly
supports  claim one, or the relationship seemed smooth, which very 
slightly supports claim two. Furthermore, Albright's letter  of
admonishment thoroughly documents numerous conflicts  between Brown
and Leik, and her conflicts with employees in  other divisions of the


c. Non-Selection for Desired Lateral Transfer


Despite Brown's consistent representations to the contrary,  the Bank
did not deny Brown a promotion. The Bank did not  select her for a
lateral transfer into one of three newly  created GS-14 positions
Brown thought to be more appealing.  A higher GS-15 position was also
advertised, but the Bank  canceled that position and no one was hired
to fill it. See  Brown, mem. op. at 12 n.4.


The Bank's explanation of its decision to transfer three  other
employees is sufficient to defeat Brown's claims of  pretext. First,
it is undisputed that two of the three people  transferred into the
new positions were senior to Brown.  Thus, the alleged discrimination
or retaliation cannot be  considered a pattern. The differences
between Brown and  the third selectee are too nebulous to support an
inference of  either discrimination or retaliation. "[T]he employer
has  discretion to choose among equally qualified candidates, pro-
vided the decision is not based upon unlawful criteria. The  fact that
a court may think that the employer misjudged the  qualifications of
the applicants does not in itself expose him to  Title VII liability,
although this may be probative of whether  the employer's reasons are
pretexts for discrimination." Tex- as Dep't of Community Affairs v.
Burdine, 450 U.S. 248, 259  (1981); see Aka, 156 F.3d at 1294;
Fischbach v. District of  Columbia, 86 F.3d 1180, 1182 (D.C. Cir.


Brown presses her retaliation claim by observing that Leik  and
Albright were two of the three people on the panel which  made the
transfer decision. Their participation on the panel  is hardly
surprising. Who else would have served on such a  panel? The position
was squarely within their area of exper- tise--lending. Their
involvement might matter if Brown had  successfully demonstrated
discrimination or retaliation at an  earlier stage in their
relationship or a pattern of discrimina- tion against other similarly
situated black people, but she has  not. See Aka, 156 F.3d at 1289;


* * *


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


Affirmed.