                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


SHERWIN TURNER,                          
                  Plaintiff-Appellant,
                  v.
                                                 No. 00-2255
RICHARD DANZIG, SECRETARY OF THE
NAVY,
               Defendant-Appellee.
                                         
           Appeal from the United States District Court
          for the Eastern District of Virginia, at Norfolk.
             Robert G. Doumar, Senior District Judge.
                          (CA-99-1201-2)

                       Submitted: April 6, 2001

                        Decided: May 8, 2001

     Before LUTTIG, WILLIAMS, and MOTZ, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                             COUNSEL

William P. Robinson, Jr., ROBINSON, NEELEY & ANDERSON,
Norfolk, Virginia, for Appellant. Helen F. Fahey, United States Attor-
ney, Anita K. Henry, Assistant United States Attorney, Norfolk, Vir-
ginia, for Appellee.
2                          TURNER v. DANZIG
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                               OPINION

PER CURIAM:

   Sherwin Turner appeals the district court’s order granting summary
judgment in favor of Defendant in this employment discrimination
action. We affirm.

   Turner, an African-American, worked for NEXCOM, the Navy
Exchange Service Command, and for NEXCEN, a regional office of
the Navy Exchange Service Command, from October 1990 through
his termination in September 1997. On October 28, 1996, NEXCOM
suspended Turner from work without pay for five days for disciplin-
ary problems. Turner never returned to work and was on disability
status from approximately October 30, 1996, through September
1997. NEXCOM terminated Turner’s employment in September
1997, citing his failure to comply with NEXCOM’s policies and pro-
cedures, use of disrespectful language, failure to attend scheduled
meetings, and poor work performance.

   Turner sued Richard Danzig, Secretary, Department of the Navy,
alleging racial and sexual discrimination and retaliatory discharge in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.A.
§§ 2000e to 2000e-17 (West 1994 & Supp. 2000), discrimination on
the basis of disability in violation of the Rehabilitation Act, 29
U.S.C.A. §§ 791, 794, 794a (West 1999), violation of the Equal Pay
Act, 29 U.S.C.A. § 206 (West 1998), intentional and negligent inflic-
tion of emotional distress, and breach of contract.

   Danzig filed a Motion for Summary Judgment, which the district
court granted. Turner timely appealed, contending that the facts set
forth by him in the district court proceedings raise material issues of
fact precluding summary judgment as to his claim of racial discrimi-
nation.*

  *Turner has not challenged on appeal the district court’s dismissal of
his claims of sexual and disability discrimination, retaliation, negligent
                           TURNER v. DANZIG                            3
   We review de novo the district court’s granting of summary judg-
ment. Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162,
1167 (4th Cir. 1988). Summary judgment is properly granted when
there are no genuine issues of material fact and when the record taken
as a whole could not lead a rational trier of fact to find for the non-
moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52
(1986). In determining whether summary judgment is appropriate,
this court views the facts in the light most favorable to the non-
moving party. Id. at 255.

    To set forth a prima facie case of racial discrimination, Turner must
prove by a preponderance of the evidence that: (1) he is a member of
a protected class; (2) he was qualified for his job and was performing
it to Defendant’s legitimate expectations; (3) in spite of his qualifica-
tions and performance, he was fired; and (4) the position remained
open to similarly situated qualified applicants after his dismissal. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Wil-
liams v. Cerberonics, Inc., 871 F.2d 452, 455 (4th Cir. 1989). Once
Turner established a prima facie case, the Defendant then had the bur-
den to advance a legitimate, non-discriminatory reason for the dis-
charge. See McDonnell Douglas Corp., 411 U.S. at 804; Williams,
871 F.2d at 455-56. Once the Defendant advanced a legitimate, non-
discriminatory reason for the discharge, the burden then shifted to
Turner to present evidence that the stated reasons are pretextual. Wil-
liams, 871 F.2d at 455-56.

   The Defendant presented evidence of legitimate, non-
discriminatory reasons for terminating Turner. Because Turner failed
to produce any evidence to show these proffered reasons for his dis-
charge were pretextual or motivated by discriminatory animus as
required by McDonnell Douglas, his claim fails. See Williams, 871
F.2d at 457. Thus, we find the district court properly granted sum-
mary judgment to the Defendant on Turner’s claim of racial discrimi-
nation.

and intentional infliction of emotional distress, breach of contract, and
violation of the Equal Pay Act. Accordingly, he has waived appellate
review of these claims. Tucker v. Waddell, 83 F.3d 688, 690 n.1 (4th Cir.
1996).
4                        TURNER v. DANZIG
   We affirm the order of the district court. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
in the decisional process.

                                                        AFFIRMED
