UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROBERT G. WALSH,

Plaintiff-Appellant,

v. No. 96-1528

CIBA-GEIGY CORPORATION,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

James C. Fox, Chief District Judge.

(CA-94-634-5-F)

Submitted: August 12, 1997

Decided: September 2, 1997

Before WILKINSON, Chief Judge, and HALL and

MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Marvin Schiller, Raleigh, North Carolina, for Appellant. Martin N.

Erwin, SMITH, HELMS, MULLISS & MOORE, L.L.P., Greensboro,

North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Robert Walsh appeals from the district court's grant of a Motion

for Judgment as a Matter of Law pursuant to Fed. R. Civ. P. 50(a).

Walsh's action alleged that the Appellee CIBA-GEIGY Corporation,

his former employer ("employer"), terminated him based on his age

in violation of the Age Discrimination in Employment Act

("ADEA"), 29 U.S.C. § 621 et seq. He also brought claims of wrongful discharge and breach of contract under North Carolina law.

Walsh began working for employer as a draftsman at its New York

facility in 1969. He left New York in October 1989 to take a new

position as Manager of Engineering and Maintenance at the company's facility in North Carolina. Walsh alleges that prior to accepting

the job, he sought and received assurances from Phil Young, the Site

Director at the North Carolina facility, that if he transferred he would

be permitted to keep his position until his planned retirement at age

65. Young left the company in May 1991, and was replaced by Dan

Lehman.

In May 1993, Lehman asked Walsh to add the duties of Safety

Manager to his existing responsibilities. Walsh responded that he was

unqualified for the position. Although Lehman responded that the

company would send him to school for any necessary training, Walsh

still expressed no interest in the position. Around the end of June

1993, the company held two meetings at which it solicited volunteers

from among Walsh and certain co-workers to assume the responsibilities of Site Safety Manager. By this time, the employee who formerly

held the Safety Manager position had left the company.

On July 12, 1993, Lehman gave Walsh a memo from another company official which recommended that the duties of Safety Manager

be assigned to Walsh. Walsh responded with a letter the next day stating again that he was unqualified for the position, and that the training

he needed "would take too much time to accomplish and not be in the

best interest of this unit." A couple of weeks later, Lehman told

Walsh that the site safety position had been consolidated with another

engineering position requiring a greater level of engineering expertise

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than Walsh possessed, effectively eliminating Walsh's position. The

new position was awarded to a forty-year old male who, unlike

Walsh, was an engineer. At the time of his discharge, Walsh was 59

years of age.

On appeal, Walsh first alleges that the district court erred by relying on our decision in O'Connor v. Consolidated Coin Caterers

Corp., 56 F.3d 542 (4th Cir. 1995) (O'Connor I), in finding that his

ADEA claim could not succeed as a matter of law. In O'Connor, we

held that if the individual selected to replace a plaintiff was a member

of the class protected by the statute, i.e., 40 or over, then the plaintiff

could not establish a prima facie case of discrimination under

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Id. at 546.

Walsh correctly contends that the Supreme Court subsequently

reversed this holding, finding that whether "one member of the protected class lost out to another member is irrelevant, so long as he lost

out because of his age." O'Connor v. Consolidated Coin Caterers

Corp., ___ U.S. ___, 116 S.Ct. 1307, 1310 (1996).

Our review, however, of the grant of a Rule 50 motion is de novo.

Malone v. Microdyne Corp., 26 F.3d 471, 475 (4th Cir. 1994). Hence,

we may properly assess in this case whether, even absent our holding

in O'Connor I, the jury could have reached only one conclusion

regarding Walsh's ADEA claim. See Gairola v. Virginia Dep't of

Gen. Servs., 753 F.2d 1281, 1285 (4th Cir. 1985). We agree with the

employer that a reasonable jury could not have found establishment

of age discrimination in this case.

A plaintiff can prove an ADEA violation either (1) by direct or

indirect evidence relevant and probative to the issue, or (2) by means

of the proof scheme used in McDonnell Douglas , as adapted to

ADEA claims. See O'Connor I, 56 F.3d at 545-46. To establish a

prima facie case of age discrimination under the McDonnell Douglas

scheme, Walsh needed to prove that (1) he was a member of the protected age group (40 or over), (2) he was discharged or demoted, (3)

at the time of his discharge or demotion, he was performing his job

at a level that met his employer's legitimate expectations, and (4)

after his discharge or demotion, he was replaced by someone of comparable qualifications, who was substantially younger than himself.

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See Burns v. AAF-McQuay, Inc., 96 F.3d 728, 731 (4th Cir. 1996).*

In this case, Walsh effectively concedes that he could not establish the

third or fourth elements. There is no dispute that he was not qualified

to perform the safety or engineering aspects of the new position.

Moreover, the fourth element of the McDonnell Douglas scheme survives at least to the extent that the plaintiff must show that he was

replaced by someone of comparable qualifications. In this case, there

is no dispute that Walsh lacked the engineering qualifications of his

replacement. Accordingly, the record cannot support a finding of a

prima facie case of age discrimination under the McDonnell Douglas

scheme.

Nor does the record contain evidence, either direct or indirect,

which could establish age discrimination under ordinary principles of

proof. To establish an ADEA violation under the direct standard of

proof scheme, Walsh had to show that (1) he was an employee covered by the statute, (2) an employer covered by the statute took action

unfavorable to him, and (3) age was a determining factor in the action

in the sense that but for the employer's intent to discriminate on the

basis of age, he would not have suffered the adverse employment

action. See O'Connor I, 56 F.3d at 548. Where the relevant decisionmaker has hired or offered the plaintiff a promotion shortly before his

termination, a strong inference arises that discrimination was not a

factor motivating the discharge. See Mitchell v. Data Gen. Corp., 12

F.3d 1310, 1318 (4th Cir. 1993). The only evidence supportive of

Walsh's position is his testimony that during the last few months preceding his termination, Lehman asked him on several occasions when

he was planning to retire. As Walsh presented this evidence in isolation, without demonstrating any nexus to his termination, we find that

the statements do not evince discriminatory intent. Id. at 549. Moreover, we note that Walsh's superiors offered him the training necessary to retain his position before offering it to another. Accordingly,

we find that the district court properly granted judgment as a matter

of law on Walsh's ADEA claim.

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*Prior to the Supreme Court's decision in O'Connor, a plaintiff also

had to establish that following his discharge or demotion, he was

replaced by someone of comparable qualifications outside the protected

class. The Supreme Court's decision somewhat modifies this last requirement. See Burns, 96 F.3d at 731 n.1.

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Walsh next challenges the district court's decision to grant

employer judgment on his wrongful discharge claim. Walsh contends

that his termination fits within the class of cases recognizing an

exception to North Carolina's employment at-will doctrine in situations where an employee's termination is in contravention of an

expressed public policy of the State. See Amos v. Oakdale Knitting

Co., 416 S.E.2d 166, 167 (N.C. 1992). Specifically, Walsh asserts that

his termination is inconsistent with the policy of State Occupational

Safety and Health laws intended to promote workplace safety,

because had he attempted to perform the job offered to him he would

have endangered the safety of his co-workers and the public.

We need not address employer's argument that Walsh has reframed

his public policy argument before this court to the point that it constitutes an argument initially raised on appeal. Instead, we find that the

district court correctly determined that employer did not ask Walsh to

do anything which would violate North Carolina's policies favoring

workplace safety. The obvious purpose of the position the employer

offered was to promote workplace safety. Moreover, Walsh admitted

in his testimony that he could have performed the duties requested

with training, and that such training was offered. The district court

therefore properly granted judgment on the wrongful discharge claim.

Finally, we reject Walsh's position that Mr. Young's promise of a

job until Walsh reached age 65 created an oral contract for a term of

definite duration. First, under North Carolina law, promises of a permanent job do not create a contract for a definite period of time. See

Nantz v. Employment Security Comm'n, 226 S.E.2d 340, 343 (N.C.

1976). Second, even if such a promise could otherwise create a contract, in this case there is insufficient consideration to support a contract. In North Carolina, where an employee forfeits his position in

one city and moves to another city in order accept a job within the

same company, the employee's actions provide insufficient consideration for a contract, and the employee remains an at-will employee.

See Buffaloe v. United Carolina Bank, 366 S.E.2d 918, 920-21 (N.C.

App. 1988). As no contract for a definite duration existed in this case,

Walsh's claim of breach must fail.

Accordingly, the judgment order of the district court is affirmed.

We dispense with oral argument because the facts and legal conten-

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tions are adequately presented in the materials before the court and

argument would not aid the decisional process.

AFFIRMED

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