                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 07-1725


JACQUE JOHNSON, JR.,

                Plaintiff - Appellant,

           v.

MECHANICS & FARMERS BANK,

                Defendant - Appellee.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:05-cv-00258-FDW)


Argued:   October 30, 2008                 Decided:   January 23, 2009


Before WILKINSON, Circuit Judge, Samuel G. WILSON, United States
District Judge for the Western District of Virginia, sitting by
designation, and Henry E. HUDSON, United States District Judge
for the Eastern District of Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED:   Humphrey  S.  Cummings,  CUMMINGS   LAW  FIRM,  P.A.,
Charlotte, North Carolina, for Appellant.   Sheri Lea Roberson,
WOMBLE, CARLYLE, SANDRIDGE & RICE, P.L.L.C., Raleigh, North
Carolina, for Appellee.   ON BRIEF: Richard L. Rainey, WOMBLE,
CARLYLE, SANDRIDGE & RICE, P.L.L.C., Charlotte, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Jacque      Johnson     (“Johnson”)        appeals   the       district   court’s

order granting his former employer, Mechanics & Farmers Bank

(“the      Bank”),    summary      judgment       on     his     discrimination      and

retaliation claims under the Age Discrimination in Employment

Act of 1967, 29 U.S.C. §§ 621-34 (2000) (“ADEA”) that arise out

of the Bank’s decisions to place him on probation, deny him

incentive     pay,    and    ultimately      terminate         his   employment.      We

affirm.



                                            I.

      From 1998 to 2005, Johnson worked in the Bank’s Charlotte

branches     as     City    Executive,      the   senior       officer   and    manager

responsible for all Charlotte operations. 1                    In 2004, when Johnson

was   56    years    old,    the   Bank’s    Charlotte         operations    were   well

below      budget     expectations       for      both     loans       and   deposits,

negatively affecting the Bank’s budget as a whole.                       In May 2004,

the Bank’s Charlotte operations had a shortfall of approximately

$4.5 million in loan production, an amount that erased budget

surpluses in other cities and was principally responsible for

the Bank’s total shortfall of $1.4 million in budgeted loans.

      1
       In 2004, the Bank’s other City Executives were Stanley
Green, Jr., age 65 (Raleigh), Evelyn Acree, age 42 (Winston-
Salem), and Queron Smith, age 29 (Durham).



                                            2
(J.A. 523.) 2         Although branches in other cities failed to meet

their      production     goals   each    month    for       loans   and   deposits         in

2004, the Charlotte operations frequently missed the mark by the

widest margin.         (J.A. 523-30.) 3

       With     the    Charlotte     operations’         poor       performance       as     a

backdrop, in the late summer and early fall of 2004, Wesley

Christopher,      Johnson’s       supervisor      and    the    Bank’s     Senior      Vice

President       and    Banking    Group     Executive,         offered     Johnson         two

alternative jobs that he and others believed would better suit

Johnson’s skills.          It is clear that Christopher intended to hire

38-year-old       Kevin     Price    (“Price”)          to    eventually       fill        the

Charlotte       City     Executive    position          he    expected     Johnson          to

relinquish.

       Christopher       first    offered       Johnson       the    position     of       the

Bank’s Commercial Lending Manager, the supervisor of all four

City       Executives.      After    discussing         the    offer     and    demanding

changes in the position, Johnson refused it twice because he

       2
       In the same month, the Bank’s Durham operations had a
surplus of approximately $3.1 million in loans, the Raleigh
operations had a deficit of $143,000, and the Winston-Salem
operations had a surplus of $121,000. (J.A. 523.)
       3
       At the end of 2004, the Bank’s Charlotte branches were
approximately $5.6 million (14.09%) below budget expectations in
loans, and $3.2 million (9.94%) below budget expectations in
deposits.    Overall, the Bank finished about $14.3 million
(7.63%) below budget in loans and about $740,000 (0.39%) above
budget expectations in deposits. (J.A. 530.)



                                            3
would not receive an “immediate salary adjustment” but instead

would have to wait until March 2005 to gauge the adequacy of his

performance in the new position.                   (J.A. 301.)          According to

Johnson,     after       his     second     refusal     Christopher       responded:

“Jacque, let me be straight with you, we’re concerned about your

Charlotte operation and you have a Bull’s Eye on your Chest.”

(J.A.     301.)      Christopher          then   demanded     an   update    by    the

following morning as to what Johnson was doing “to get Charlotte

loans back on budget and timing.”                     (J.A. 301.)        Finally, on

October    1,     2004   Christopher        offered    Johnson     another   job,    a

lateral    position       as     Senior    Underwriter,       which   Johnson     also

refused on that date.

     Immediately         after    Johnson    refused    the    Senior    Underwriter

position, Christopher placed Johnson on probation, citing the

poor performance of the Bank’s Charlotte branches in “key areas”

including loans and deposits.              (J.A. 297.) 4      Johnson responded by


     4
       These events moved quickly. At 4:32 p.m. Christopher sent
Johnson a job description for the Senior Underwriter position
and required him to respond at once.      (J.A. 739.)    Johnson
called and rejected the position, and at 5:44 p.m. Christopher
placed him on probation, informing him that he was subject to
termination if Charlotte’s performance did not improve.    (J.A.
749, 750-51.) Then, at 6:37 p.m., Christopher wrote Lee Johnson
asking for permission to extend an offer to Kevin Price who
Christopher intended to “eventually be the Charlotte City Exec.”
(J.A. 766.)    He also recommended that the Bank “actively and
vigorously pursue a quick and reasonable settlement” and began
planning an “exit package” for Johnson. (J.A. 766-67.)



                                            4
filing a grievance challenging Christopher’s decision, calling

his       superior’s       conduct         unprofessional,             vindictive,          and

duplicitous,       and     adding       that       Christopher’s        own      performance

“should      be     called     into        question.”               (J.A.        299,   303.)

Nevertheless,         Christopher       held        open     the     Senior      Underwriter

position     for    Johnson.         But       despite       further    entreaties         from

Christopher, Johnson refused to speak with Christopher about the

position and in a variety of correspondence with senior officers

and       directors       characterized            Christopher’s         entreaties         as

“harassing.”          (J.A. 343-45.) 5             As a result, Lee Johnson, the

Bank’s President and Chief Executive Officer, wrote Johnson on

October 22, 2004 that many of Johnson’s communications within

the Bank, separate and apart from his grievance concerning his

probation, were “insubordinate and unprofessional” and that “any

further      deviations       .     .      .       [would]     result       in     immediate

termination.”         (J.A. 384.)          However, Lee Johnson also struck a

conciliatory chord, noting his belief that Johnson was “fully

capable of continuing to be a productive employee.”                           (J.A. 384.)

      As     anticipated,         the      Bank      hired      Price       to     serve     as

Charlotte’s        Vice    President        and      Senior        Business      Development


      5
        Johnson   also  filed   a  grievance   complaining that
Christopher had directed him to apply “inconsistent, illogical,
and wrongful disciplinary action to subordinates . . . .” (J.A.
392.)



                                               5
Officer,    a    new    position.      Price   coordinated    with   Johnson    to

support the Bank’s sales and production, but reported directly

to the Bank’s corporate office.

     On November 1, 2004 Lee Johnson wrote Johnson that he was

setting    aside       Johnson’s    probation,   although     the   gist   of   the

letter mirrored his October 22 letter, warning that Johnson was

expected “to fully execute [his] responsibilities as the City

Executive of Charlotte” and that “any further deviations . . .

[would] result in immediate termination.”                  (J.A. 385.)     Again,

Lee Johnson noted his belief that Johnson was “fully capable of

continuing to be a productive employee.”             (J.A. 385.)

     Johnson filed an age discrimination charge with the Equal

Employment and Opportunity Commission (“EEOC”) claiming that the

Bank had not disciplined others who had not met their production

goals and had hired a younger person who was “slated to replace

[Johnson] as City Executive.”           (J.A. 387.) 6   He also claimed that

during     the    discussions       concerning    the   new    positions,       his

superiors made two statements revealing their aged-based animus:

first, Christopher allegedly told him the Bank was looking for

“young blood,” and second, Lee Johnson called Johnson “the ‘God

Father’ of the City Executives.”             (J.A. 387.)

     6
       Johnson filed the charge on October 27, 2004 after Lee
Johnson chastised him for his insubordinate tone but several
days before Lee Johnson set aside his probation.


                                         6
     More than two months later, Christopher sought advice from

a management consultant concerning a plan to terminate Johnson

on January 7, 2005 “due to performance issues.” (J.A. 859.)                                  On

January    5,   2005,      the   consultant         wrote      Christopher         concerning

“the process of removing a key executive.”                           (J.A. 860-62.)        Lee

Johnson raised questions, however, and wanted to speak with the

Bank’s attorney since the Bank had been responding to Johnson’s

EEOC charge.        Lee Johnson thought it was “important” that he

“understand     the       overall    evaluation         of    comparable         individuals”

and asked whether the Bank had “completed a review of other city

executives,      executives         that   may      not       have   met    their       goals.”

(J.A. 878.)      He stated that, although he did not want to “delay

unnecessarily,” he believed the Bank “need not rush to judgment”

given its “prior start.”             (J.A. 878.)

     On March 25, 2005, Steven Savia, an outside consultant who

frequently      worked      on   the   Bank’s       personnel         matters,      issued    a

report on each City Executive’s eligibility for incentive pay

for 2004.       According to the Bank’s formula, if the Bank as a

whole     reached     a    given     threshold          net    income      for    the     year,

individual employees could qualify for incentive pay based on

their performance in certain criteria.                        For City Executives, the

incentive pay criteria included growth in loans, deposits, other

objective       measures,        and       a       partially-subjective,                overall

performance      evaluation.           Based       on    Savia’s      report,       all    City

                                               7
Executives except Johnson received incentive pay for 2004.                             On

March 28, 2005, Johnson filed a second EEOC charge, alleging

that the Bank had denied him incentive pay on account of his age

or in retaliation for his previously-filed EEOC charge.

       On April 26, 2005, an altercation occurred at one of the

Bank’s Charlotte branches between two employees, Leslie Cato and

Lori   Corpening.         Christopher    hired     Savia    to    investigate         the

incident.         Savia    interviewed       Cato,     Corpening,           and    others

involved in the incident and viewed a security camera recording

before reaching the following conclusions:

       Based on these [third-party] accounts, it appears
       clear that Ms. Cato was in fact the aggressor. There
       is also a reasonably consistent account of the
       language and intensity of Ms. Cato’s actions.   There
       is agreement that Ms. Cato had to be restrained and
       required a strong effort to calm her.   Ms. Corpening
       had a colleague stand with her on the lobby side of
       the breezeway door with Ms. Cato being restrained on
       the other side continuing to curse and threaten Ms.
       Corpening.

(J.A. 1565.)       Based on this report, on May 3, 2005 Christopher

directed Johnson to fire Cato and transfer Corpening.                             Rather

than   follow     this    directive,    however,      on   May    6,    2005      Johnson

requested a copy of Savia’s report for his own review, stating

that   he   did    not    wish   to   expose    the    Bank      to    an    “unfounded

lawsuit”    by    firing     Cato.      (J.A.    1568.)          In    an     email   to

Christopher on May 9, 2005, Johnson wrote,

       I am deeply disappointed with your entire memo dated
       May 3, 2005, concerning the incident between Lori

                                         8
     [Corpening] and Leslie [Cato] on April 26, 2005. Your
     memo is vague, and there is a lot to be desired in the
     area of clarity, truth, and understanding. . . .
          Steve Savia, your paid consultant, was very
     transparent in his interviews, and I’m sure his
     analysis of the incident is tainted as well. . . .
     [D]ue to his [Savia’s] bias perpetrated by your
     direction and his desire for commissions, you and he
     continue to spin results which creates a diametrically
     opposite analysis of the incident.

(J.A. 1569.)     Despite the insubordinate tone of Johnson’s email,

Christopher complied with Johnson’s request and sent him Savia’s

report.    Johnson reviewed the report, and wrote Christopher that

he had reached the opposite conclusion, that Corpening was the

aggressor in the incident, and further that

     Steve [Savia] should be criticized for his unreliable
     and unprofessional report.     His extremely negligent
     investigative process was lacking in proper due
     diligence. . . . My recommendation is that Mr. Savia,
     your paid consultant, obtain proper training in his
     fact gathering techniques and the logical analysis of
     data required to complete a competent and unbiased
     investigation prior to his next assignment, if any.

(J.A.   1575.)     Johnson   never     fired   Cato.     On    May   23,    2005,

Christopher      and   Lee    Johnson      fired   Johnson,      citing      his

insubordination and previous poor performance.                Price and Tanya

Dial-Bethune, age 42, performed Johnson’s duties until the Bank

hired Johnson’s 57-year-old replacement on June 26, 2006.

        Johnson filed a third EEOC charge, alleging that the Bank

had terminated him on account of his age and in retaliation for

his previously-filed EEOC charges, and he ultimately filed suit

in   district    court.      In   an   oral    opinion   delivered     at    the

                                       9
conclusion of the summary judgment hearing, the district court

granted the Bank summary judgment as to all claims.



                                         II.

     Summary judgment is proper “if the pleadings, the discovery

and disclosure materials on file, and any affidavits show that

there is no genuine issue as to any material fact and that the

movant is entitled to judgment as a matter of law.”                           Fed. R.

Civ. P. 56(c).      We review a district court’s grant of summary

judgment de novo, viewing the evidence and making all reasonable

inferences in the light most favorable to the nonmoving party.

Sempione v. Provident Bank of Md., 75 F.3d 951, 954 (4th Cir.

1996).



                                         III.

     Johnson     maintains    his      evidence,   viewed       either    through   a

mixed-motive     framework        or   through     a     modified      paradigm     of

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973),

raises a triable issue of fact that the Bank placed him on

probation   on   account     of    his    age.     The       Bank   maintains     that

Johnson’s probation, which it set aside within 30 days, was not

an adverse employment action, and that Johnson has otherwise

failed to create a triable issue of fact.                    We conclude under a

mixed-motive     analysis     that       Johnson       has    failed     to   marshal

                                          10
sufficient evidence for a reasonable jury to conclude that his

age    was    a     determinative       influence         on    the     Bank’s      decision     to

place him on probation.                We also agree with the district court,

that    Johnson       failed     to     establish         a     prima      facie      case   under

McDonnell Douglas because he failed to demonstrate that he was

meeting       the     Bank’s     legitimate            expectations          (based    upon     the

Bank’s       relatively       poor     performance         in    the       Charlotte     area    as

measured by a shortfall in budget expectations for both loans

and    deposits).            Essentially          for     the    same        reason,    we    also

conclude       that     the     Bank    has       articulated          a     legitimate,      non-

discriminatory         reason     for       placing      Johnson        on      probation     which

Johnson       has    not    shown      to    be    a     pretext       for      discrimination.

Accordingly,          the      district       court        properly          entered     summary

judgment for the Bank on that claim.

                                                  A.

       “The ultimate question in every employment discrimination

case involving a claim of disparate treatment is whether the

plaintiff was the victim of intentional discrimination.”                                     Reeves

v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 153 (2000).

Under     the       “mixed      motive”       proof       scheme,          an     employee      may

demonstrate that permissible and forbidden reasons motivated his

employer to take adverse employment action.                                  Hill v. Lockheed

Martin Logistics Mgmt., Inc., 354 F.3d 277, 284 (4th Cir. 2004)

(en banc).           Mixed-motive cases require the employee to prove

                                                  11
that    the   protected       trait    “‘actually      played     a   role    in    the

employer’s         decisionmaking      process    and     had     a   determinative

influence on the outcome.’”                Id. at 286 (quoting Reeves, 530

U.S. at 141); cf. Price Waterhouse v. Hopkins, 490 U.S. 228,

276-77 (1989) (O’Connor, J., concurring).                    Under a mixed-motive

analysis, the question distills to whether Johnson has marshaled

sufficient evidence for a reasonable jury to conclude that age

was a determinative influence on the Bank’s decision to place

him on probation.        We conclude that he has not.

       We   have     previously     assumed     without      deciding    that      Price

Waterhouse continues to govern the ADEA mixed-motive framework.

Under that framework, an employee must marshal direct evidence

of discrimination to satisfy his burden of proof.                       E.E.O.C. v.

Warfield-Rohr Casket Co., Inc., 364 F.3d 160, 163 n.1 (4th Cir.

2004).      This is because the Civil Rights Act of 1991, Pub. L.

No. 102-166, 105 Stat. 1071 (codified as amended in scattered

sections      of    42   U.S.C.)      (2000),    amended      Title     VII   without

similarly amending the ADEA, and in any event, “maintaining the

higher evidentiary burden in Price Waterhouse for ADEA claims is

not    implausible,      given      that   age    is    often     correlated       with

perfectly legitimate, non-discriminatory employment decisions.”

Mereish v. Walker, 359 F.3d 330, 340 (4th Cir. 2004).                           In the

employment         context,    direct      evidence     of      discrimination       is

“evidence of conduct or statements that both reflect directly on

                                           12
the alleged discriminatory attitude and that bear directly on

the contested employment decision.”                     Taylor v. Va. Union Univ.,

193 F.3d 219, 232 (4th Cir. 1999) (en banc), abrogated on other

grounds,      Desert    Palace,         Inc.    v.    Costa,       539       U.S.    90   (2003).

Johnson      contends    that      two    statements         made       in    the    context     of

offering him alternative positions are direct evidence of the

Bank’s discriminatory animus: Christopher told Johnson that the

Bank wanted to bring in “young blood,” and Lee Johnson referred

to     him      as      “the           Godfather.”             Despite              considerable

underperformance        by       the    Bank’s       Charlotte          operations,       Johnson

contends      these     statements,         coupled         with    the       timing      of    his

probation, create a triable issue of fact under a mixed-motive

analysis that age was a determinative influence on the Bank’s

decision to place him on probation.                    We disagree.

       Viewed in its totality, without regard to its direct or

circumstantial nature, we find the evidence insufficient for a

reasonable      jury        to     conclude          that     Johnson’s             age   was     a

determinative influence on the Bank’s decision to place him on

probation.           From    May        through      September           2004,      the    Bank’s

uncontradicted evidence reveals Charlotte’s chronic failure to

meet    its    loan     production         budget.           During          this     time,     the

Charlotte branches were on average about 10% behind their loan

budget, each month lagging behind to the tune of several million

dollars.        (J.A.       523-27.)           Operations          in    other       cities,     in

                                               13
contrast,      either     met     their       loan    production          budget    or     only

slightly underperformed.                Charlotte’s consistent shortfall was

primarily      responsible        for    the    Bank’s      inability        to    meet     its

overall loan budget: in September 2004, for example, when the

Bank was about $5.6 million behind its loan budget, about $4.3

million of that deficit belonged to Charlotte.                        (J.A. 527.)           The

same   pattern      appears      with       deposits:      Charlotte       never    met     its

deposit production goals during this time period; in September

2004, for example, while the Bank exceeded its overall deposit

goal   by   $4.7    million,         Charlotte       was    more    than     $4.2    million

behind its deposit goal.              (J.A. 523-27.)

       Given the consistently poor financial performance of the

Charlotte      operations,        two       ambiguous,      stray     comments       in    the

course    of   offering        Johnson      lateral     positions         his   supervisors

have   described     as    a     “better      fit”    for    his    abilities        are    not

sufficient     to   create       a   triable       issue    of     fact    that     the    Bank

placed Johnson on probation on account of his age.                                 Nor do we

find the timing of the decision probative of age discrimination.

Johnson’s superiors believed Johnson was impeding their efforts

to turn around the Bank’s Charlotte operations.                            As they viewed

it, he was in the way and would not move.                             Although Johnson

contends    that    his    probation         was     discriminatory         because       other

City     Executives        had       also     failed       to      meet     their     budget

expectations,        the         uncontradicted            evidence        supports         the

                                              14
conclusion that the Charlotte office frequently missed the mark

by the widest margin.                   Under the circumstances, the Bank was

free       to   place        Johnson    on   notice    that    it    would    penalize      or

replace         him     if    its      Charlotte    operations       did     not   improve.

Accordingly, we find insufficient evidence under a mixed-motive

framework        for     a    reasonable     jury     to   conclude    that     age   was    a

determinative influence on the Bank’s decision to place Johnson

on probation. 7

                                               B.

        Johnson maintains that his placement on probation raises a

triable         issue    of     age    discrimination        under    the    second   proof

scheme available to him – the McDonnell Douglas scheme.                                  The

district court found that Johnson failed to establish a prima

facie       case       under     McDonnell         Douglas    for     several      reasons,

including Johnson’s inability to show that his performance met

his        employer’s           legitimate         expectations        concerning        the

performance of the Bank’s Charlotte operations.                             It also found

that even if Johnson had established a prima facie case, the


       7
       We have previously held that ADEA mixed-motive cases
remain subject to the Price Waterhouse analysis, which allows an
employer to avoid liability with proof that “it would have taken
the same adverse employment action absent a discriminatory
motive.”   See Baqir v. Principi, 434 F.3d 733, 745 n.13 (4th
Cir. 2006). Because we find insufficient evidence of age-based
animus, we have no reason to decide whether the Bank would have
placed Johnson on probation absent any age-based animus.



                                               15
Bank    offered       un-rebutted       evidence     that      it       placed    him    on

probation       for      a    legitimate,        non-discriminatory          reason       –

underperformance in Charlotte’s operations as measured by loans

and deposits.         We agree.

       To establish a prima facie case under the McDonnell Douglas

framework, the employee must prove that (1) he is a member of a

protected class; (2) who suffers an adverse employment action;

(3) at the time of the action, his performance was satisfactory

to meet his employer’s legitimate expectations, and (4) he was

treated less favorably than persons who are not members of the

protected class.             See E.E.O.C. v. Clay Printing Co., 955 F.2d

936, 941 (4th Cir. 1992).               If he does so, the burden shifts to

the employer to proffer a legitimate, non-discriminatory reason

for the adverse employment action.                Hill, 354 F.3d at 285.                When

the employer meets its burden, the McDonnell Douglas framework

“disappear[s] and the sole remaining issue [is] discrimination

vel    non.”      Id.    (quoting      Reeves,    530   U.S.     at      142-43).       The

employee       then     has    the    ultimate    burden    to      prove        that   the

employer’s       proffered           reasons     were   but         a     pretext       for

discrimination.          St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,

515 (1993); see also Hill, 354 F.3d at 285.

       The Bank argues that Johnson has not established a prima

facie case because a one-month probationary period that is set

aside is not an adverse employment action (element two under

                                           16
McDonnell Douglas) and because he failed to prove he was meeting

his        employer’s         legitimate       expectations        (element         three).

Alternatively,          the     Bank   argues       that    it    placed      Johnson    on

probation for a legitimate and non-discriminatory reason, namely

its Charlotte operations were significantly underperforming in

both       loans    and       deposits.        In    attacking         this    reason    as

pretextual, Johnson marshals essentially the same evidence he

offered in his mixed-motive analysis.

       We agree with the district court that Johnson has failed to

establish a prima facie case under McDonnell Douglas because he

has failed to show that he was meeting the Bank’s legitimate

expectations for its Charlotte operations. 8                           However, whether

considered         at   the    prima   facie    case      stage   or    at    the   pretext

stage,       his    claim      collapses   for      the    same    reason:      Charlotte

operations         were     substantially       underperforming          in    loans    and


       8
       “Job performance and relative employee qualifications are
widely recognized as valid, non-discriminatory bases for any
adverse employment decision.”    Evans v. Tech. Applications &
Serv. Co., 80 F.3d 954, 960 (4th Cir. 1996).           When the
legitimate expectations of an employer are at issue on summary
judgment, both the employer and the employee may present
evidence of the expectations themselves and their legitimacy.
Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 515-17 (4th Cir.
2006).   In evaluating performance, “[i]t is the perception of
the decision maker which is relevant.” Smith v. Flax, 618 F.2d
1062, 1067 (4th Cir. 1980).        Though Johnson claims that
Christopher’s budget expectations for Charlotte were higher than
those for other cities, nothing he has marshaled demonstrates
they were not legitimate.



                                            17
deposits.       Accordingly, we agree with the district court that

Johnson       has    not    raised       a     triable     issue    of   fact   under     the

McDonnell Douglas proof scheme.



                                                IV.

     Johnson maintains that the Bank denied him incentive pay in

March of 2005, for his 2004 performance, based on age and in

retaliation         for    filing       his     initial     EEOC    charge.         The   Bank

maintains it denied him incentive pay because he did not qualify

for it under the Bank’s incentive pay formula, as applied by its

consultant,         which       in     large     measure     factored     in    loans     and

deposits.       For essentially the same reasons we concluded earlier

that Johnson failed to raise a triable issue of fact either

under     a     mixed-motive            or     McDonnell      Douglas      proof      scheme

concerning his probation, we conclude that the district court

properly        entered          summary          judgment         on    Johnson’s        age

discrimination claim for the Bank’s denial of incentive pay.

For similar reasons, we also conclude that the district court

properly entered summary judgment as to his retaliation claim.

                                                 A.

     We        see         no        necessity        in    repeating         the     Bank’s

“underperformance in loans and deposits” refrain here, which we

again conclude sufficiently supports the Bank’s decision.                                  We

note, however, that from the Bank’s perspective, in addition to

                                                 18
missing his budget for loans and deposits more often by the

widest margin of any of the four City Executives, by the time of

Johnson’s performance review, the Bank’s CEO had warned Johnson

(before      he   complained      of    age      discrimination)          about    the

disrespectful      and     insubordinate        tone    of    his   correspondence

within the company.         Under the circumstances, Johnson is unable

to show either under a mixed-motive proof scheme that age was a

determinative     influence       on   the     Bank’s   decision     to    deny    him

incentive pay or under the McDonnell Douglas proof scheme that

his       performance    was      meeting       his     employer’s        legitimate

expectations. 9

                                          B.

      Johnson     claims    the    Bank      denied     him   incentive      pay    in

retaliation for his EEOC charge.                 He argues that the January

2005 email exchange discussing Christopher’s plan to terminate

him reveals retaliatory animus.                The Bank counters that nothing

in those emails remotely suggests retaliation.                      It argues that

      9
       In calculating incentive pay the Bank rounded upward the
overall performance evaluation scores of the two City Executives
who performed better overall on the objective measures of loan
and deposit growth and rounded downward the overall performance
evaluation scores of the other two.    Johnson claims that this
practice is evidence of disparate treatment because it worked to
the advantage of two younger City Executives and to the
disadvantage of Johnson and the other older City Executive.
Johnson, however, offered nothing to suggest that the rounding
was not performance-based or was anything other than a
coincidental correlation with age.



                                          19
the evidence is insufficient to establish a prima facie case of

retaliation and, alternatively, that even if Johnson established

a prima facie case of retaliation, he did not receive incentive

pay because of his performance.                  We assume without deciding that

Johnson’s     evidence         establishes            a       prima       facie      case    of

retaliation, but we find that Johnson has not created a triable

issue of fact that the Bank’s proffered reasons for denying him

incentive pay were pretextual.

     An employer violates the ADEA by retaliating against an

employee for engaging in a protected activity.                                 29 U.S.C. §

623(d)     (2000).       The     elements         of      a    prima       facie     case   of

retaliation       are   (1)    the   plaintiff             engaged        in    a    protected

activity, (2) the employer took an adverse employment action

against    the    plaintiff,     and    (3)       a       causal      connection       existed

between     the    protected     activity         and         the     adverse       employment

action.     Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th

Cir. 1989).       If the employee establishes a prima facie case, the

employer may rebut it by presenting evidence of a legitimate,

non-retaliatory reason for the adverse action.                             Id.      After the

employer    presents     evidence      of    its       legitimate,         non-retaliatory

reason, the burden shifts back to the employee to show that the

employer’s proffered reason is pretextual.                          Id.

     Applying        these     standards,         even         assuming        Johnson      has

established a prima facie case, we find that Johnson’s evidence

                                            20
does not demonstrate that the Bank’s legitimate, non-retaliatory

reason for denying him incentive pay – underperformance — was

pretextual.         We agree with the Bank that the January 2005 email

exchanges support no inference that the Bank’s proffered reason

for denying Johnson incentive pay was pretextual.                              If anything,

Lee Johnson’s correspondence shows restraint.                                He thought it

important      not       to   “rush      to   judgment”       and    to    “understand      the

overall      evaluation        of     comparable       individuals.”            (J.A.   878.)

Accordingly,          the     district        court      properly          granted    summary

judgment      as    to    Johnson’s        retaliation        claim       arising    from    his

denial of incentive pay.



                                                 V.

       Johnson maintains that the Bank terminated him on account

of his age and retaliated against him for filing EEOC charges

and    for    opposing        Christopher’s           directive       to    terminate       Cato

following her conflict with her co-employee.                              The Bank counters

that it terminated Johnson because Johnson added insubordination

to    the    Bank’s      original        concerns     about    his    performance.           The

court concludes that Johnson has offered nothing new to support

his age discrimination claim, whether considered under a mixed-

motive or McDonnell Douglas framework, that he has not shown

that the Bank’s proffered reasons are a pretext for retaliation,

or    that    his     refusal       to    fire    Cato    was       protected       opposition

                                                 21
activity.       Accordingly, the district court properly granted the

Bank’s motion for summary judgment as to Johnson’s termination

claims.

                                              A.

       Other than the fact of termination and the assignment of

his    duties    to    two    other     existing       employees,    Johnson       offers

nothing new to support his age discrimination claim.                           However,

these facts lend no support to his claim that his age played a

role in his termination.                Indeed, Johnson had clearly become

insubordinate         and    insolent     in       dealing   with    his    superiors.

Rather than obey Christopher’s orders to fire Cato and transfer

Corpening, Johnson demanded to see a copy of Savia’s report,

then    called    that       report     and        Christopher’s    analysis       of    it

tainted, unclear, and untruthful.                     Under the circumstances, no

reasonable jury could conclude that the Bank terminated him on

account of his age or, for essentially the same reason, because

he filed a charge of discrimination with the EEOC.                          Therefore,

the district court properly granted summary judgment on these

claims.

                                              B.

       Johnson    offered       nothing        in      the   district      court        that

positioned his refusal to fire Cato as legitimate, protected

“opposition activity.”            Accordingly, we find no fault in the



                                              22
district court’s decision granting the Bank summary judgment on

that claim.

       The    ADEA,    like      Title       VII,     prohibits      an    employer       from

retaliating      against         an    employee        who    has     opposed      unlawful

discrimination.            Compare 29 U.S.C. § 623(d) (2000) (stating it

is unlawful for “an employer to discriminate against any of his

employees . . . because such individual . . . has opposed any

practice made unlawful” under the ADEA) with 42 U.S.C. §2000e-

3(a)   (stating       it    is   “an    unlawful       employment      practice     for     an

employer to discriminate against any of his employees because he

has opposed any practice made an unlawful employment practice”

under Title VII).

       “Opposition          activity         encompasses           utilizing       informal

grievance procedures as well as staging informal protests and

voicing      one’s    opinions         in    order    to     bring    attention      to    an

employer’s discriminatory activities.”                       Laughlin v. Metro. Wash.

Airports Auth., 149 F.3d 253, 259 (4th Cir. 1998).                               As we have

said in the closely analogous Title VII context, in determining

whether an employee engages in legitimate opposition activity,

“we balance the purpose of the Act to protect persons engaging

reasonably in activities opposing . . . discrimination against

Congress’     equally        manifest        desire    not    to     tie   the    hands     of

employers in the objective selection and control of personnel.”

Id.    (internal      citations        and    quotations       omitted      and    emphasis

                                              23
added).       Although the retaliation claimant does not have to show

that   the      underlying   discrimination        claim    was      meritorious       to

prevail on a related retaliation claim, he must show that he

“subjectively       (that    is,   in   good      faith)    believed”      that       his

employer violated the ADEA, and that his belief “was objectively

reasonable in light of the facts.”                 See Peters v. Jenney, 327

F.3d 307, 321 (4th Cir. 2003) (applying Title VII retaliation

standard in Title VI context) (internal citations and quotations

omitted).        “Because    the   analysis       for   determining      whether       an

employee       reasonably    believes    a    practice      is      unlawful     is   an

objective one, the issue may be resolved as a matter of law.”

Jordan v. Alternative Res. Corp., 458 F.3d 332, 339 (4th Cir.

2006).        With these precepts in mind we turn to Johnson’s claim

that he engaged in protected opposition activity when he refused

to terminate Cato.

       Johnson argues that he reasonably believed he was free to

disregard his superior’s directives to fire Cato because it was

retaliatory.        We assume that Johnson in fact believed what he

says     he    believed.      However,       we    find    that      belief      to   be

objectively unreasonable.          We also find under a balancing test

that Johnson did not engage reasonably in activities opposing

discrimination.       Johnson’s     superior        hired       a    consultant       to

investigate the incident between Cato and Corpening.                           After an

investigation,       that    consultant       prepared      a       reasoned     report

                                        24
concluding that Cato was the aggressor, that she continued to

curse and threaten Corpening, and another Bank employee had to

restrain her.       Right or wrong, that was his conclusion, and he

passed     it   along     to   Johnson’s    superiors,    and   they    directed

Johnson to terminate Cato.           Johnson had no liberty to disregard

that directive based on his own machinations and unsupported

speculation about Savia’s and the Bank’s motivations.

     We also find that Johnson’s opposition activities are not

protected       because    the    manner     of    his   communications      with

Christopher was unreasonable.             Again, it is fundamental that to

receive     protection     Johnson   must     be    “engaging   reasonably    in

activities opposing . . . discrimination.”                Laughlin, 149 F.3d

at 259.     Recognizing this fact, Johnson attempts to characterize

his May 6, 2005 email to Christopher as an effort “to seek

guidance from Christopher.”          (Appellant’s Reply Br. 24.)          It is

clearly no such thing when considered together with his follow-

up   May    9   email     which   could     not    reasonably   be    considered

earnestly and respectfully seeking new information.                  The tone of

the May 9 email is unmistakably insubordinate and insolent, the

very things Lee Johnson had warned him about before.                  Therefore,

the district court properly entered summary judgment for the

Bank as to Johnson’s retaliatory discharge claim.




                                       25
                               VI.

     For the foregoing reasons, we affirm the district court’s

decision to grant summary judgment for the Bank.

                                                      AFFIRMED




                               26
