UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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