                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 15-1090


CLINTON W. JONES,

                Plaintiff - Appellant,

          v.

CONSTELLATION ENERGY PROJECTS & SERVICES GROUP, INC., merged
with Constellation Newenergy, Inc.,

                Defendant - Appellee.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, Senior District Judge.
(8:13-cv-00850-RWT)


Submitted:   September 29, 2015            Decided:   October 22, 2015


Before NIEMEYER, SHEDD, and HARRIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Barton David Moorstein, BLANK, MOORSTEIN, & LIPSHUTZ, LLP,
Rockville, Maryland, for Appellant.    John M. Remy, Michael N.
Petkovich, JACKSON LEWIS P.C., Reston, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Clinton     W.     Jones    appeals     the    district    court’s        order

granting       summary    judgment   to    Constellation      Energy    Projects     &

Services       Group,    Inc.     (“CEPS”)     on    his   (1)   racial    and     age

discrimination claims under Title VII of the Civil Rights Act of

1964, see 42 U.S.C. §§ 2000e-2000e-17 (2012), 42 U.S.C. § 1981

(2012), and the Age Discrimination in Employment Act (ADEA), see

29 U.S.C. §§ 621-634 (2012) (Counts 1, 3, 5); (2) retaliation

claims under Title VII and 42 U.S.C. § 1981 (Counts 2, 4); and

(3) various state law claims sounding in contract law (Counts 6-

10).       On appeal, Jones argues that the district court erred in

holding that he failed to present direct or indirect evidence of

retaliation and that he failed to make out a prima facie case of

racial and age discrimination and of retaliation. 1                     Finding no

error, we affirm.

       “We review the district court’s grant of summary judgment

de     novo,    viewing    the     facts     and    the    reasonable     inferences

therefrom in the light most favorable to the nonmoving party.”



       1
       Although Jones’ opening brief mentions his state law
claims in passing, Jones presents no arguments regarding why the
district court’s order erred in granting summary judgment on
these claims. Accordingly, Jones has waived appellate review of
his state law claims in Counts 6-10 of his amended complaint.
See United States v. Bartko, 728 F.3d 327, 335 (4th Cir. 2013)
(holding that issue not raised in opening brief, as required by
Fed. R. App. P. 28(a)([8])(A), is waived).



                                           2
Bonds v. Leavitt, 629 F.3d 369, 380 (4th Cir. 2011).                               “Summary

judgment is appropriate where there are no genuine issues of

material fact and the moving party is entitled to judgment as a

matter of law.”          Hoschar v. Appalachian Power Co., 739 F.3d 163,

169 (4th Cir. 2014).                 Where the moving party makes an initial

showing that there is no genuine issue of material fact, the

nonmoving     party      must    “go     beyond    the    pleadings”      and      rely    on

affidavits,         depositions,         answers     to        interrogatories,           and

admissions         on   file    to    demonstrate    that       a   genuine     issue     of

material fact exists.                Celotex Corp. v. Catrett, 477 U.S. 317,

324 (1986).         Finally, “[i]t is well established that [a] genuine

issue of material fact is not created where the only issue of

fact is to determine which of . . . two conflicting versions of

the plaintiff's testimony is correct.”                     S.P. v. City of Tacoma

Park, 134 F.3d 260, 274 n.12 (4th Cir. 1998) (internal quotation

marks omitted).

                                            I.

       A plaintiff may prove discrimination under Title VII, 42

U.S.C. § 1981, or the ADEA “either through direct and indirect

evidence      of    [discriminatory]        animus,       or    through      the    burden-

shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S.

792 . . . (1973).”              Foster v. Univ. of Md.-Eastern Shore, 787

F.3d 243, 249 (4th Cir. 2015); see Love-Lane v. Martin, 355 F.3d

766,    786    (4th      Cir.    2004)     (holding       that      claims    of     racial

                                            3
discrimination under § 1981 are evaluated under the Title VII

framework).         On appeal, Jones alleges he made out a prima facie

case of discrimination under the McDonnell Douglas test.                                       To

advance a discrimination claim beyond the summary judgment stage

under McDonnell           Douglas,    a    plaintiff    must      put    forth         a    prima

facie       case    by    showing   that    (1)   “he   belongs         to    a    protected

class;” (2) “he suffered an adverse employment action;” (3) “at

the time of the adverse action, he was performing his job at a

level that met employer’s legitimate expectations;” and (4) the

adverse      employment      action      occurred    under    circumstances                giving

rise to an inference of unlawful discrimination.                             Adams v. Trs.

of the Univ. of N.C.-Wilmington, 640 F.3d 550, 558 (4th Cir.

2011).

       Jones, as an African-American in his 50s at the time of his

termination, is a member of two protected classes for purposes

of    the    first       element.     Regarding      the    second      element,           Jones

identifies four potential adverse employment actions: (1) CEPS

issuing him a “basic performance” performance review for 2009;

(2) CEPS placing him on a performance improvement plan (“PIP”);

(3)     CEPS       shortchanging      him    on     commissions;         and       (4)      CEPS

terminating         his    employment.       “The    requirement         of       an   adverse

employment action seeks to differentiate those harms that work a

significant          detriment      on     employees       from    those           that       are

relatively insubstantial or trivial.”                      Adams v. Anne Arundel

                                             4
Cty. Pub. Sch., 789 F.3d 422, 431 (4th Cir. 2015) (internal

quotation marks omitted).              Although “[c]onduct short of ultimate

employment decisions can constitute adverse employment action,”

James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375-76 (4th

Cir.       2004)        (internal     quotation        marks      omitted),        “adverse

employment action . . . denotes some direct or indirect impact

on an individual’s employment as opposed to harms immaterially

related to it,” Anne Arundel Cty. Pub. Sch., 789 F.3d at 431.

Thus, the plaintiff must demonstrate “a significant change in

employment status, such as hiring, firing, failing to promote,

reassignment with significantly different responsibilities, or a

decision causing a significant change in benefits.”                                Hoyle v.

Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011) (internal

quotation marks omitted).

       Jones       has    not    demonstrated        how    his   “basic   performance”

evaluation         or    his    placement   on   a    PIP    changed   his    employment

status or his compensation.                  Further, although shortfalls in

commissions do constitute the denial of compensation and could

qualify as an adverse employment action, the record supports

CEPS’ contention that it did not shortchange Jones on any of the

three commissions occurring after January 2009. 2                             On    appeal,


       2
       Although the “Statement of Issues” section in Jones’
opening brief identifies as an issue the district court’s ruling
that most of his commission claims were time-barred, the
(Continued)
                                             5
Jones does not cite any evidence in the record that creates a

genuine       issue    of    material       fact    regarding    whether         CEPS

shortchanged        Jones   on   commissions.       Accordingly,     we    conclude

that while Jones has satisfied the second element, only Jones’

termination qualifies as an adverse employment action.

       Turning to the third element, whether an employee met his

employer’s legitimate expectations at the time of termination

depends on the “perception of the decision maker . . ., not the

self-assessment of the plaintiff.”                 Hawkins v. PepsiCo, Inc.,

203    F.3d   274,    280   (4th   Cir.   2000).     And   because    it    is   the

plaintiff’s burden to persuade the trier of fact that he met his

employer’s legitimate subjective employment expectations, at the

prima facie stage we must consider the employer’s “evidence that

the employee was not meeting those expectations.”                  Warch v. Ohio

Cas. Ins. Co., 435 F.3d 510, 515-16 (4th Cir. 2006).                        Having

reviewed the record, we conclude that Jones has not demonstrated

that    he    was     satisfying    CEPS’     legitimate   job     expectations.




argument section of the brief makes no reference to this issue.
Accordingly, Jones has waived appellate review of the district
court’s decision that the majority of his claims were time-
barred and only those claims after January 2009 can constitute
an adverse employment action for purposes of establishing a
prima facie case under 42 U.S.C. § 1981.        See Eriline Co.
S.A. v. Johnson, 440 F.3d 648, 653 n.7 (4th Cir. 2006) (holding
one-sentence assignment of error in opening brief insufficient
to raise issue for purposes of appellate review).



                                          6
Accordingly, Jones has not satisfied the third element of the

McDonnell Douglas test.                 Therefore, Jones has not made out a

prima   facie       case   of    racial     or     age      discrimination,       and    the

district court properly granted summary judgment on Counts 1, 3,

and 5 of Jones’ amended complaint.

                                            II.

       A plaintiff bringing a retaliation claim under Title VII or

42   U.S.C.     § 1981     can      prove   his     claim         “through    direct    and

indirect evidence of retaliatory animus, or through the burden-

shifting framework of McDonnell Douglas.”                          Foster, 787 F.3d at

249.     On    appeal,     Jones     argues       that      he    presented   direct    and

indirect evidence of discriminatory animus and that he made out

a prima facie case of retaliation under the McDonnell Douglas

framework.      We consider both arguments in turn.

       A plaintiff seeking to use direct and indirect evidence to

establish a claim of retaliation following a complaint of racial

discrimination is required to present “evidence of conduct or

statements that both reflect directly the alleged discriminatory

attitude      and   that     bear    directly      on       the   contested     employment

decision.”      Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d

562, 577-78 (4th Cir. 2015) (internal quotation marks omitted).

Even    assuming      that      Jones    created        a    genuine    issue    of     fact

regarding whether there was a racially discriminatory attitude

at CEPS, this issue of fact is only material if Jones also

                                             7
presented       some     evidence          tying       the     racially       discriminatory

attitude at CEPS to his termination.

       Here,     Jones       alleges      a    temporal        connection        between     his

protected       activity          of    complaining           internally        about    racial

discrimination         and    his       termination.           The     record    shows    Jones

complained of racial discrimination in November 2009 and CEPS

terminated him nine months later, in August 2010.                                 We conclude

that     the    significant            lapse   of       time       between    the   protected

activity       engaged       in    by    Jones        and    his    termination      does    not

support an inference of retaliation.                           Cf. Foster, 787 F.3d at

257 (finding inference of causation where termination occurred

within    one     month       of       employee       filing       complaint);      Pascual v.

Lowe’s Home Cntrs., Inc., 193 F. App’x 229, 233 (4th Cir. 2006)

(No. 05-1847) (finding no causal connection where three to four

months     passed        between          claimed           protected        activities      and

termination); King v. Rumsfeld, 328 F.3d 145, 151 n.5 (4th Cir.

2003) (finding inference of causation where termination occurred

within two and a half months of employer receiving notice of

employee’s EEOC filing).

       In an effort to overcome this temporal gap, Jones further

contends that he was placed under scrutiny by CEPS shortly after

his complaint.           To establish a causal link between the alleged

animus    and    the     adverse         employment          action,    a    plaintiff      must

demonstrate that the individuals who expressed animus played a

                                                  8
role    in    the    adverse    employment        action.          Crockett    v.   Mission

Hosp., Inc., 717 F.3d 348, 356 (4th Cir. 2013).                                 Here, the

record       shows   that    the     individuals      responsible        for    overseeing

Jones’       performance       and    for    Jones’    termination        were      Gregory

Jarosinski, CEPS’ President of Sales, and Walter Godleski, CEPS’

Director       of     Sales.         Jones’       amended        complaint     raises    no

allegations          that    Godleski       made      any        statements     exhibiting

discriminatory animus, and Jones conceded during his deposition

testimony       Jarosinski      made    no    such     statements.            Accordingly,

where Jones has not established any causal connection between

the alleged statements demonstrating racial animus and Jones’

termination, he has not presented sufficient direct and indirect

evidence of retaliation to survive summary judgment.

       Turning to the elements of a prima facie retaliation claim

under the modified McDonnell Douglas framework, a plaintiff must

show (1) he engaged in a protected activity, (2) his employer

took an adverse action, and (3) there was a causal connection

between the two.             Foster, 787 F.3d at 250.                 Jones’ failure to

present       direct    or   indirect       evidence        of    a   causal    connection

between his complaint, the discriminatory animus at CEPS, and

his termination, likewise renders Jones unable to satisfy the

third element of the modified McDonnell Douglas framework.

       Therefore, we affirm the district court’s order granting

CEPS’    motion       for    summary    judgment.           We     dispense     with    oral

                                              9
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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