UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

INELLA REDMOND,

Plaintiff-Appellant,

v.

AVALON INDUSTRIES, INCORPORATED,

No. 97-1207

Defendant-Appellee,

BALTIMORE COMMUNITY RELATIONS

COMMISSION,

Party-in-interest.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Frank A. Kaufman, Senior District Judge.

(CA-95-1343-K)

Submitted: October 21, 1997

Decided: November 17, 1997

Before HALL and MICHAEL, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Mark E. Herman, WILLIAM G. KOLODNER, P.A., Baltimore,

Maryland, for Appellant. Carl R. Gold, Maureen Walsh David, Towson, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Inella Redmond appeals from the district court order granting summary judgment in favor of the Defendant, Avalon, on her claim of

employment discrimination in violation of the Age Discrimination in

Employment Act. We affirm.

We note initially, as did the district court, that Redmond appears

to be advancing two separate theories or incidents of age discrimination: (1) that she was denied the position for which she applied on the

basis of her age; and (2) that she was denied the opportunity to compete for later available positions on the basis of her age. As to her first

claim, we agree with the district court's determination that Redmond

cannot establish a prima facie case of age discrimination because the

position for which she was applying was no longer open as of the date

of her application. Turning to her second claim, we also agree with

the district court's determination that Redmond cannot establish a

prima facie case because she is unable to demonstrate that she meets

the employer's job qualifications--recent commercial or factory sewing experience--or that anyone who was hired for the position of

stitcher did not at the very least come closer to achieving these qualifications than she did.

While Redmond offers a statement made by one of Avalon's representatives to the effect that Redmond was older than the candidate

Avalon was looking for, Redmond states that this comment was made

by an individual named Jackie. The only Jackie present at Avalon at

the time Redmond visited to tender her application was a receptionist

who had no impact in the decision-making process. In fact, the only

individual responsible for making hiring decisions at that time was

out of the office. Although this representative arranged for someone

else to meet with Redmond in his absence, it is uncontroverted that

this individual did not have hiring authority at the time in question.

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We thus find there to be an insufficient nexus between the statement

and the decision-making process. See EEOC v. Clay Printing Co., 955

F.2d 936, 942 (4th Cir. 1992) (explaining nexus requirement); see

also Tomsic v. State Farm Mut. Auto. Ins. Co., 85 F.3d 1472, 1479

(10th Cir. 1996) (suggesting that remark must be made by someone

with role in the decisional process); Cone v. Longmont United Hosp.

Ass'n, 14 F.3d 526, 531 (10th Cir. 1994) (stating that age-related

comments made by non-decision-makers are not material in showing

action was based on age discrimination). Finally, we note that Avalon's employee data reveals that they have several employees of an

age covered by the ADEA. Among these, one employee is in her seventies (as was Redmond), another was in his sixties, and two more

were in their fifties. Given the entirety of this information, we agree

that even if Redmond could establish a prima facie case, she could not

carry the burden of overcoming Avalon's legitimate nondiscriminatory reason and establishing that its failure to hire her was the result

of unlawful age discrimination. We therefore affirm. 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

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