                                     UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 19-1448


ASHLEY C. COCKMAN,

                     Plaintiff - Appellant,

              v.

CIRCLE K STORES INC.,

                     Defendant - Appellee.



Appeal from the United States District Court for the Western District of North Carolina, at
Statesville. Graham C. Mullen, Senior District Judge. (5:18-cv-00061-GCM)


Submitted: May 28, 2020                                            Decided: June 3, 2020


Before WILKINSON, AGEE, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Todd J. Combs, COMBS LAW, PLLC, Mooresville, North Carolina, for Appellant.
Tracey T. Barbaree, Beth A. Moeller, MOELLER BARBAREE LLP, Atlanta, Georgia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

          Ashley Carson Cockman appeals the district court’s order granting summary

judgment to Circle K Stores Inc., on Cockman’s claims of age discrimination under the

Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (2018) (ADEA), and

wrongful discharge under N.C. Gen. Stat. § 143-422 (2019). We affirm.

          “We review a district court’s grant of summary judgment de novo.” Variety Stores,

Inc. v. Wal-Mart Stores, Inc., 888 F.3d 651, 659 (4th Cir. 2018) (alterations and internal

quotation marks omitted). Summary judgment is appropriate “‘if the movant shows that

there is no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). In making this determination,

“courts must view the evidence in the light most favorable to the nonmoving party and

refrain from weighing the evidence or making credibility determinations.” Id. (internal

quotation marks omitted).

          “The ADEA prohibits employers from refusing to hire, discharging, or otherwise

discriminating against any person who is at least 40 years of age ‘because of’ the person’s

age.” *       EEOC v. Balt. Cty., 747 F.3d 267, 272 (4th Cir. 2014) (citing 29 U.S.C.

§§ 623(a)(1), 631(a)). To demonstrate a claim under the ADEA, Cockman either had to

provide direct evidence of discrimination or demonstrate a prima facie case of

discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801-02 (1973);


          *
        North Carolina law applies the same standards as the ADEA. Rishel v. Nationwide
Mut. Ins. Co., 297 F. Supp. 2d 854, 875 (M.D.N.C. 2003) (dismissing North Carolina
wrongful discharge claim because the ADEA claim failed).

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Mereish v. Walker, 359 F.3d 330, 333-35 (4th Cir. 2004) (applying McDonnell Douglas

framework to ADEA claims). Because Cockman failed to present direct evidence of age

discrimination, he had to proceed under the McDonnell Douglas burden-shifting

framework. To establish a prima facie case of age discrimination under McDonnell

Douglas, Cockman had to demonstrate that: “(1) he is a member of a protected class, (2) he

suffered an adverse employment action (such as discharge), (3) he was performing his job

duties at a level that met the employer’s legitimate expectations at the time of the adverse

employment action, and (4) his position remained open or was filled by a similarly

qualified applicant outside the protected class.” Baqir v. Principi, 434 F.3d 733, 742

(4th Cir. 2006).

       If the plaintiff makes a prima facie showing, then the burden shifts to the employer

to articulate some legitimate, nondiscriminatory reason for the employment action.

Dugan v. Albemarle Cty. Sch. Bd., 293 F.3d 716, 721 (4th Cir. 2002). If the employer

comes forward with such a reason, “the burden reverts to the plaintiff to establish that the

employer’s nondiscriminatory rationale is a pretext for intentional discrimination.”

Heiko v. Colombo Sav. Bank, 434 F.3d 249, 258 (4th Cir. 2006). To do so, the plaintiff

must “show that the employer’s proffered explanation is unworthy of credence, thus

supporting an inference of discrimination, or offer other forms of circumstantial evidence

sufficiently probative of intentional discrimination.” Dugan, 293 F.3d at 721.

       The district court held that Cockman failed to establish a prima facie case, stating

that the evidence and Cockman’s own admissions “overwhelmingly” showed that

Cockman was not meeting Circle K’s expectations under the Light of Day policy, which

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required every employee to treat other employees with respect. We agree with the district

court that the evidence that Cockman violated the policy is overwhelming. Multiple

coworkers and vendors complained to Circle K’s human resources department and to

Cockman’s supervisors, who counseled Cockman about his communications and the Light

of Day policy. Circle K warned Cockman that he was in violation of the policy and that

failure to improve could result in the termination of his employment. Despite this warning,

Cockman made derogatory comments regarding his supervisor one week later. In the face

of this evidence, Cockman failed to establish that he was meeting Circle K’s expectations.

We further conclude that the district court properly held that, in any event, Circle K had a

legitimate, nondiscriminatory reason for terminating Cockman’s employment.

       Accordingly, we affirm the district court’s judgment. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials

before this court and argument would not aid the decisional process.

                                                                               AFFIRMED




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