UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit. 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 factfinding 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 “frontoffice” 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-yearold 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 
15 

For the foregoing reasons, the judgment of the district 

court is 

AFFIRMED.