Aaron C. James v.  Booz-Allen & Hamilton, Incorporated

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 AARON C. JAMES,
Plaintiff-Appellant,
v. No. 03-1559 
BOOZ-ALLEN & HAMILTON,
INCORPORATED,
Defendant-Appellee. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CA-02-1496-A)
Argued: February 25, 2004
Decided: May 14, 2004
Before WILKINSON, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the opinion,
in which Judge Traxler and Judge Shedd joined.
COUNSEL
ARGUED: Peter Charles Cohen, CHARLSON BREDEHOFT, P.C.,
Reston, Virginia, for Appellant. Thomas Peter Gies, CROWELL &
MORING, Washington, D.C., for Appellee. ON BRIEF: Elaine
Charlson Bredehoft, CHARLSON BREDEHOFT, P.C., Reston, Vir-
ginia, for Appellant. Terence F. Flynn, CROWELL & MORING,
Washington, D.C., for Appellee.

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OPINION
WILKINSON, Circuit Judge:
Aaron C. James appeals the district court’s decision to grant sum-
mary judgment in a Title VII case to his former employer Booz-Allen
& Hamilton, Inc. ("BAH"). This case centers on the reassignment of
James from his role as Project Manager for BAH’s contract with the
Washington Metropolitan Area Transit Authority ("WMATA").
James continued to serve as a BAH Senior Associate, but he was
asked to focus on outside marketing and business development oppor-
tunities for the company, while continuing to work on the WMATA
contract. This role was consistent with preexisting responsibilities and
goals that were laid out in his job description and annual evaluations.
James continued to perform professional-level work, received a raise
and a sizable bonus, and remained on course toward future promotion.
We agree with the district court that the reassignment did not satisfy
the threshold Title VII requirement of an adverse employment action,
and thus affirm the dismissal of the action.
I.
Appellant James is an African American male and an electrical
engineer with more than twenty-years experience in urban rail trans-
portation. From October 1988 to May 1994, James worked for the
Transportation Practice Group of BAH. In 1994 he voluntarily left
BAH. Two years later, he was recruited to return and rehired as a
Senior Associate Level IV, a promotion from his previous position.
James’ job description envisioned his working multiple years as a
Senior Associate and assuming a variety of roles.
From 1996 to February, 1999, James served as the Project Manager
for BAH’s contract with WMATA. Under this contract BAH pro-
vided engineering services to prepare for and oversee the procurement
of new rail cars for the Metro system. Gary Schulman directly super-
vised James and served as the BAH Principal in charge of the
WMATA project which James managed. Ghassan Salameh, as a BAH
Vice-President and the head of the Transportation Group, also over-
saw James. During the time that James managed the WMATA proj-
ect, WMATA’s expanding needs caused BAH’s contract revenues to
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grow from approximately $1 million to $10 million annually. James
eventually assumed responsibility for supervising a group of twenty-
five to thirty employees who worked on the WMATA contract.
James’ Title VII complaint focuses on BAH’s decision to reassign
him in February 1999 and on his subsequent annual performance
evaluation. James received mixed evaluations that included both
praise and criticism throughout his tenure at BAH. James received a
rating of "effective" in his 1996-1997 annual BAH evaluation. This
evaluation noted that James needed to improve his personal time man-
agement practices and the timeliness of work delivery, to refine his
client handling skills, and to build strong relationships with key
WMATA officials. James received the highest rating of "excellent" in
his 1997-1998 evaluation. But this evaluation noted difficulties in
James’ relationship with his WMATA counterpart, Ray Stoezer,
which some reviewers attributed to James’ being "too administra-
tively focused and rigid." The evaluation directed James to expand his
role in developing BAH’s transportation practice by cultivating new
clients and business opportunities.
During the spring of 1998, BAH’s responsibilities under the
WMATA contract greatly increased when WMATA contracted with
a foreign firm to build a new series of subway cars. Simultaneously,
WMATA officials voiced concerns to Salameh about BAH’s level of
support for the contract. On June 5, 1998, James responded to
Salameh’s request for input on how to improve BAH’s performance
by writing a memo that largely attributed BAH’s problems to the
shortcomings of his counterpart, WMATA’s Stoezer. Salameh subse-
quently met with WMATA’s Deputy General Manager and discussed
how to resolve WMATA’s concerns. On July 30, 1998, Salameh sub-
mitted a proposal to WMATA to provide additional staff support, and
subsequently hired Richard Trabucco to serve as BAH’s direct liaison
with Stoezer, so that James could focus on his managerial duties.
In September, 1998, James bypassed established channels of com-
munication with the client and discussed parts of the WMATA con-
tract with a WMATA senior executive without notifying Stoezer or
David Tarantino, the WMATA Contracting Officer responsible for
the project. Tarantino responded with a letter sharply criticizing
James’ conduct. James’ supervisor Gary Schulman did not fire or
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reassign James after this incident. Instead, Schulman apologized to
WMATA officials for any misunderstandings, and proposed a series
of meetings and other measures to avoid future miscommunication.
Over the next several months, Schulman and Salameh continued to
receive feedback from WMATA officials and BAH workers about
shortcomings in the technical depth, support, and speed of turnaround
of the consulting work that James oversaw. These complaints focused
on the failures of an internet-based document control system, delays
in laying out an inspection plan for the cars and in lining up qualified
personnel for the inspections, and unsatisfactory draft specifications
for an overhaul of WMATA cars.
On December 14, 1998, WMATA’s Deputy General Manager
Chuck Thomas sent a letter to Salameh reiterating that WMATA
wanted an organizational structure with a single point of contact. This
letter noted that "[t]o date, a major time-consuming problem for the
WMATA PM [Stoezer] has been associated with obtaining timely and
reliable performance from the BAH engineering support staff. This
situation appears to be approaching resolution and the BAH engineer-
ing and program support team performance has been improving since
the arrival of Mr. Richard Trabucco." The district court made refer-
ence to this letter from the client in finding that BAH had a legitimate
business purpose in reassigning James.
In January 1999, WMATA and BAH officials discussed a new
organizational chart for the WMATA contract in which James would
retain a broad coordination and oversight role as "Director of Proj-
ects." But BAH’s Program Auditor Burt and BAH’s liaison to
WMATA Trabucco reported to James’ supervisors, Salameh and
Schulman, that WMATA officials continued to have concerns about
both BAH’s performance under the contract and BAH’s management
structure. Given these reports, documented client concerns, and a his-
tory of personal difficulties between James and his client counter-
parts, Schulman and Salameh decided to reassign James.
On February 5, 1999, BAH reorganized the project and hired Karl
Berger, a white male, to head the WMATA contract. James was asked
to focus on his preexisting marketing and business development
objectives to identify and acquire new clients and new opportunities
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for BAH. During this time James was no longer in a managerial role,
but he continued to work as a staff member on parts of the WMATA
contract. This allowed James to continue to have billable hours, even
while he focused his efforts on cultivating new business opportunities
for BAH.
From the time of James’ reassignment in February, 1999 to his res-
ignation in July, James remained a Senior Associate Level IV. He
received a "highly effective" rating on his next annual evaluation, a
five percent salary increase, and a $15,000 bonus. This "highly effec-
tive" rating was lower than the "excellent" rating he received the year
before, but it was higher than the "effective" rating he received in
1997.
In March 1999, one month after his reassignment, James founded
an independent minority contractor business under the name of James
Transportation Engineering Consultants. He also applied to a BAH
competitor to serve as a full-time subcontractor, a position he eventu-
ally accepted immediately prior to his resignation from BAH in July
1999. On March 26, 1999, James filed a charge of race discrimination
against BAH with the Equal Employment Opportunity Commission
and Prince George’s County Human Relations Commission
("PGCHRC"), alleging that he had been treated differently than simi-
larly situated white employees. After an investigation, the PGCHRC
dismissed the charge as unsubstantiated.
On October 18, 2000, James filed suit in the district court for the
District of Columbia alleging a discriminatory demotion and a new
claim that his April 1999 annual evaluation of "highly effective" was
tainted by racial bias. On March 14, 2002, James amended his com-
plaint and dropped the allegations concerning his 1998-1999 perfor-
mance appraisal. However, James continued to rely extensively on
this evaluation in his brief as evidence that he faced adverse employ-
ment action. The case was later transferred to the Eastern District of
Virginia, and after discovery, briefing, and oral argument, the district
court granted BAH’s motion for summary judgment.
II.
The district court found that James had failed to establish a prima
facie case of a Title VII or Section 1981 violation. See McDonnell
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Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The court held
that James had satisfied three of the four elements of a prima facie
case: James was a member of a protected class, was qualified for the
position in question, and was replaced by a white individual. But the
district court determined that James failed to produce evidence that
BAH had taken adverse employment action against him. The court
concluded:
There was no demotion. There was a transfer of responsibil-
ities. The man’s salary was not affected. He received his
bonus. He still had professional-level work. He was still, if
he wanted to be, on track for promotion. There simply is not
in this record the adverse action that would satisfy that ele-
ment.
James challenges this holding and contends that BAH did take
adverse employment actions.
We review the district court’s grant of summary judgment de novo.
See Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1167
(4th Cir. 1988). And we shall review briefly at the outset the settled
principles in our circuit on adverse employment actions. Title VII of
the Civil Rights Act of 1964 prohibits an employer from "dis-
criminat[ing] against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such indi-
vidual’s race, color, religion, sex, or national origin." 42 U.S.C.
§ 2000e-2(a)(1) (emphasis added). 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 employment opportunities or otherwise
adversely affect his status as an employee, because of such individu-
al’s race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-
2(a)(2) (emphasis added).
Regardless of the route a plaintiff follows in proving a Title VII
action, see Hill v. Lockheed Martin Logistics Management, Inc., 354
F.3d 277, 284-85 (4th Cir. 2004) (en banc),1 the existence of some
1James must satisfy the same elements to establish a prima facie case
of racial discrimination under either Title VII or 42 U.S.C. § 1981. See
Thompson v. Potomac Electric Power, 312 F.3d 645, 649 n.1 (4th Cir.
2002); Gairola v. Virginia Dep’t of Gen. Servs., 753 F.2d 1281, 1285
(4th Cir. 1985).
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adverse employment action is required. This court has set forth
clearly what constitutes an adverse employment action. An adverse
employment action is a discriminatory act which "adversely affect[s]
‘the terms, conditions, or benefits’ of the plaintiff’s employment."
Von Gunten v. Maryland, 243 F.3d 858, 865 (4th Cir. 2001) (quoting
Munday v. Waste Mgmt. of North America, Inc., 126 F.3d 239, 243
(4th Cir. 1997)).2 "Conduct short of ‘ultimate employment decisions’
can constitute adverse employment action." Id. at 865.
The mere fact that a new job assignment is less appealing to the
employee, however, does not constitute adverse employment action.
Von Gunten, 243 F.3d at 868. A "reassignment can only form the
basis of a valid Title VII claim if the plaintiff can show that the reas-
signment had some significant detrimental effect." Boone v. Goldin,
178 F.3d 253, 256 (4th Cir. 1999). "[A]bsent any decrease in compen-
sation, 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
256-57; see also Taylor v. Virginia Dep’t of Corrs., 177 F. Supp. 2d
497, 504-05 (E.D. Va. 2001).
III.
James alleges a litany of adverse changes to the terms and condi-
tions of his employment that began with his removal as Project Man-
ager for the WMATA contract. These allegations fall into three
categories: a claim of denial of opportunities for promotion and pro-
fessional development, a challenge to James’ 1998-1999 performance
evaluation, and a claim of constructive discharge.
2Von Gunten entailed the interpretation of the anti-retaliation provision
of Title VII, see 42 U.S.C. § 2000e-3, rather than the employment dis-
crimination provision in 42 U.S.C. § 2000e-2 involved in this case. See
Von Gunten, 243 F.3d at 863 n.1. However, Von Gunten’s discussion of
what constitutes adverse action applies here as "‘[i]n the absence of
strong contrary policy considerations, conformity between the provisions
of Title VII is to be preferred.’" Id. at 863 n.1 (quoting Ross v. Communi-
cations Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985)).
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A.
James asserts that his potential for promotion and professional
development was stymied by his reassignment in February 1999 and
his subsequent treatment. He claims he was not considered for man-
aging other projects and that because of that he was able to bill less.
As a result of this lower billing, he claims that he would have been
ineligible for future bonuses and that harassment about his low billing
suggested that his job was in jeopardy. He asserts further that he was
excluded from important meetings dealing with the WMATA project
and excluded from a conference that a similarly situated white male
was permitted to attend. James claims he was also denied the opportu-
nity to regain his Project Manager position when his successor was
reassigned after a few months. Instead, he alleges that high level BAH
managers advised him to "lay low" and that he was never given an
explanation for why BAH reassigned him or limited his subsequent
opportunities.
It is clear that James found his new role and responsibilities with
BAH less appealing, but that fact in and of itself does not constitute
adverse employment action. Von Gunten, 243 F.3d at 868. The ques-
tion is whether there was a change in the terms or conditions of his
employment which had a "significant detrimental effect" on his
opportunities for promotion or professional development. Boone, 178
F.3d at 256. We must ask whether there was "a decrease in compensa-
tion, job title, level of responsibility, or opportunity for promotion."
Id. at 256-57.
And it is here that James’ case falls short. His lengthy list of com-
plaints does nothing to impeach the district court’s holding that he did
not suffer an adverse employment action. It was significant to the dis-
trict court, as it is to us, that James retained his position of Senior
Associate and received the same pay, benefits, and other terms and
conditions of employment. He even received a five-percent raise after
the reassignment and a $15,000 bonus, the largest performance bonus
he had ever received with BAH. He was reassigned to cultivate mar-
keting and business development opportunities for BAH, which was
a preexisting area of responsibility. And success in this area of
responsibility would enhance his future chances for promotion.
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James’ claim that he was excluded from "important meetings"
lacks specificity, and he fails further to substantiate how the alleged
exclusions, whatever they might have been, adversely affected him.
Similarly, the alleged harassment that James faced about his level of
non-billables amounts to nothing more than his being asked to comply
with a BAH policy that employees receive approval for high amounts
of non-billable hours. Since James’ non-billable marketing and busi-
ness development activities were part of his job description and
exactly what his supervisors asked him to do, it is hard to imagine
how this could have an adverse effect.
In sum, an employee’s dissatisfaction with this or that aspect of
work does not mean an employer has committed an actionable
adverse action. And speculation about the future adverse conse-
quences of a reassignment may not rise to the level of a genuine dis-
pute. Inasmuch as James departed the company before he even came
up for promotion, we are left to guesswork and conjecture as to what
his prospects would have been. James’ speculations about the impact
of his reassignment on his opportunities for professional development
are merely that — stark assertions that are not sufficient to survive
summary judgment. See Bryant v. Bell Atlantic Maryland, Inc., 288
F.3d 124, 135 (4th Cir. 2002).
B.
James claims that his 1998-1999 annual evaluation, if not an
adverse employment action in itself, is nonetheless indicative of the
adverse consequences he suffered generally. James argues that BAH
deviated from its ordinary practice by having a non-supervisor, Mike
Cannell, perform his annual evaluation in 1999. He claims this perfor-
mance review included false allegations, which led to the lowering of
James’ performance review from the "excellent" rating that James
received the previous year to a "highly effective" rating. James asserts
that this lower rating prevented him from being considered for a pro-
motion, in addition to denying him opportunities for bigger bonuses
and greater responsibilities.
A "downgrade of a performance evaluation could effect a term,
condition, or benefit of employment" if it has a tangible effect on the
terms or conditions of employment. Von Gunten, 243 F.3d at 867 (cit-
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ing Spears v. Missouri Dep’t of Corr. & Human Res., 210 F.3d 850,
854 (8th Cir. 2000)). However, a poor performance evaluation "is
actionable only where the employer subsequently uses the evaluation
as a basis to detrimentally alter the terms or conditions of the recipi-
ent’s employment." Spears, 210 F.3d at 854. An evaluation merely
causing a loss of prestige or status is not actionable. Cossette v. Min-
nesota Power & Light, 188 F.3d 964, 972 (8th Cir. 1999).
Here James’ rating of "highly effective" was admittedly one level
below his previous annual evaluation. Yet it was one level higher than
he had received two years earlier. In fact, this latest evaluation was
generally positive and consistent with his earlier evaluations, and
James received both a pay-raise and a bonus. There is nothing in the
record to suggest that BAH used "the evaluation as a basis to detri-
mentally alter the terms or conditions of the recipient’s employment."
Spears, 210 F.3d at 854. James’ claim that this evaluation took him
off track for promotion and formed a basis for denying him opportu-
nities is again conjectural. Sylvia Dev. Corp. v. Calvert County, 48
F.3d 810, 818 (4th Cir. 1995). James overlooks the fact that, at the
time of his 1998-1999 evaluation, BAH was in the midst of a transi-
tion to a system in which annual evaluations were conducted by an
individual who did not supervise the employee. James also fails to
offer any support for his claims that the evaluation involved false-
hoods, as opposed to mere disagreements over his performance.
C.
James next alleges that BAH’s actions led to irreparable damage to
his reputation and that he was subject to constructive discharge. He
asserts that Bill Brooks, then a Vice President and Partner at BAH,
told James that James’ supervisor Ghassan Salameh had expressed
critical comments about James in a partners’ meeting that discussed
promotions and that Brooks suggested that James start looking for
another job. Therefore, James claims he was subject to the ultimate
adverse action of constructive discharge, which led him to resign on
July 31, 1999.
To establish constructive discharge, a plaintiff must be able to
show that his former employer "deliberately ma[de] an employee’s
working conditions intolerable, and thereby force[d] him to quit." Bri-
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stow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985). "De-
motion can constitute a constructive discharge, especially where the
demotion is essentially a career-ending action or a harbinger of dis-
missal." Carter v. Ball, 33 F.3d 450, 459 (4th Cir. 1994). However,
mere "[d]issatisfaction with work assignments, a feeling of being
unfairly criticized, or difficult or unpleasant working conditions are
not so intolerable as to compel a reasonable person to resign." Id. at
459. Even a "‘slight decrease in pay coupled with some loss of super-
visory responsibilities,’ is insufficient evidence of constructive dis-
charge." Id. at 459 (quoting Jurgens v. EEOC, 903 F.2d 386, 391-92
(5th Cir. 1990)).
We view the alleged statement by then-BAH Partner Bill Brooks
about James’ lack of prospects for promotion in the light most favor-
able to James. Even so, the significance of the comment is limited by
the fact that it comes from a single BAH partner who had no role in
supervising James or in determining his prospects for promotion. This
evidence thus falls far short of establishing the existence of "a calcu-
lated effort to pressure [James] into resignation through the imposi-
tion of unreasonably harsh conditions, in excess of those faced by his
co-workers." Bristow, 770 F.2d at 1255. James claims that Brooks’
statement, coupled with all of the additional slights he faced,
amounted to irreparable damage to his reputation that left him with
no choice but to leave. However, the evidence suggests that James
enjoyed a number of positive benefits following his reassignment, and
he certainly has produced no evidence that he faced the kind of harsh
working conditions that would compel any reasonable employee to
quit.
D.
Our holding here is in line with our decisions in Boone and Von
Gunten, which failed to find adverse employment actions in situations
where employees faced reassignments, changes in working condi-
tions, and negative performance evaluations. See Von Gunten, 243
F.3d at 868; Boone, 178 F.3d at 256. It is obvious that Congress in
Title VII did not want to tolerate invidious discrimination on the part
of companies that merely falls short of the ultimate sanction of dis-
missal. At the same time, the language of the statute requires the exis-
tence of some adverse employment action to establish a Title VII
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violation. The statute’s wording makes clear that Congress did not
want the specter of liability to hang over every personnel decision. In
awarding summary judgment on this record, the district court properly
struck the balance in favor of the employer’s need to enjoy some flex-
ibility in matching an employee’s tasks to his own talents and the
company’s business requirements.3
IV.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
3James also argues that race was the motive for his reassignment and
the alleged setbacks that he faced. BAH asserts that it reassigned James
because of documented problems in the WMATA project which James
had overseen as Project Manager and longstanding concerns about his
relationship with his WMATA counterparts. The district court did not
directly rule on this argument, but noted: "if you are the commander of
a group and there’s a problem with the group, the commander may be
fine, but if the group isn’t working out, it’s not unreasonable for an
employer to reshuffle the whole arrangement." It further stated there was
no "smoking gun or any suggestion that the plaintiff’s race played any
factor in the decisions that [BAH] made about [James’] employment." In
the absence of any adverse employment action and the absence of any
direct ruling below on this ground, we decline to address this argument
as well.
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