                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-1813


EARNEST PARISH, III,

                Plaintiff - Appellant,

          v.

SIEMENS MEDICAL SOLUTIONS USA, INCORPORATED,

                Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:08-cv-00622-BR)


Submitted:   April 14, 2011                    Decided:   May 9, 2011


Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Angela Newell Gray, Greensboro, North Carolina, for Appellant.
Patricia L. Holland, Nicola A.L. Prall, JACKSON LEWIS LLP, Cary,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Earnest Parish appeals the district court’s grant of

summary    judgment        to    Appellee    Siemens       Medical   Solutions     USA

(“Siemens”) on Parish’s racial discrimination, retaliation, and

disparate treatment claims.           We affirm.

            Parish, an African-American, was hired by Siemens in

1998, and by 2004, had been promoted to the level of Call Center

Supervisor.         He     was    promoted       by    Operations    Manager     Freda

Kuhfahl,     and    on     her    retirement      she     was   replaced   by    Chloe

Mazuroski.         Prior    to    retiring,      Kuhfahl    prepared   a    2004-2005

performance        evaluation       for     Parish,       indicating      performance

deficiencies in a number of areas.                       Within a few months of

assuming the position of Operations Manager, Mazuroski placed

Parish on a Performance Improvement Plan (“PIP”) in order to

address    several       complaints       from    other     supervisors    and    from

Parish’s subordinates, and remedy what she saw as continuing

performance issues.

            In the course of the PIP, Parish requested that his

staff be able to meet with a representative from Human Resources

(“HR”), without him present, in order to raise whatever concerns

they might have about his management.                   Parish’s subordinates met

with Kelly Walsh, a human resources (“HR”) Business Partner, and

they verbally shared their concerns with her regarding Parish’s

management technique and ability.                     During meetings with Walsh,

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members of Parish’s staff indicated that they did not feel that

he    gave     them    appropriate       recognition,                that    his    training       was

“horrendous,” that he held them to “ridiculous expectations,”

that they were not treated fairly by Parish, and that he was

“hard     to    trust”        because        he        did     not       follow     through     with

communications.          Walsh reported these findings to Parish and to

Siemens.

               While     he    was      on        the        PIP,       Parish     complained      of

discrimination to HR representatives at Siemens.                                   He stated that

she     only    singled       out    African-American                    employees     for     harsh

treatment.            Other   African-American                 employees         echoed     Parish’s

concerns about Mazuroski.

               In     light    of    Parish’s           continued           performance       issues

despite the PIP, Mazuroski informed Parish that he could either

accept a demotion, or he would have thirty days to resolve the

issues or face termination.                   Parish chose to accept a demotion

rather than face termination.                     In addition, while he was on the

PIP, Parish applied for another position at Siemens, but was not

selected.       The position was filled by a Caucasian woman.

               Parish ultimately brought suit against Siemens in the

district court.          He claimed that Siemens violated Title VII, 42

U.S.C.A.       §§ 2000e-2000e-17         (West           2003       &    Supp.     2010),    and    42

U.S.C. § 1981 (2006).                He alleged discrimination, retaliation,

and disparate treatment.                 Siemens moved for summary judgment,

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and the district court granted the motion.                    The court concluded

that Parish was not performing his job at a satisfactory level

and thus could not sustain a discrimination claim.                        The court

also concluded that there was no basis for a retaliation claim

because   Parish    had    shown    no     causal    relationship    between      his

protected activity and the decision not to hire him for the

other   position.       Finally,        with   respect   to    Parish’s   claim   of

disparate treatment, the court concluded that Parish had adduced

no evidence in support of the claim.                This appeal followed.

              This court reviews a district court’s order granting

summary judgment de novo.           Jennings v. Univ. of N.C., 482 F.3d

686, 694 (4th Cir. 2007) (en banc).                  “At the summary judgment

stage, facts must be viewed in the light most favorable to the

nonmoving party only if there is a ‘genuine’ dispute as to those

facts.”   Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Fed.

R. Civ. P. 56(c)).         Summary judgment “should be rendered 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(a).            “[T]here is no issue

for   trial    unless     there    is    sufficient      evidence   favoring      the

nonmoving party for a jury to return a verdict for that party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986);

see also Scott, 550 U.S. at 380 (“Where the record taken as a

                                           4
whole could not lead a rational trier of fact to find for the

nonmoving party, there is no ‘genuine issue for trial.’”)

               Absent direct evidence of intentional discrimination,

Title    VII    and       § 1981     claims      are      analyzed      under      the    burden-

shifting     framework         established           in    McDonnell     Douglas         Corp.    v.

Green, 411 U.S. 792, 793 (1973).                          See Bryant v. Bell Atl. Md.,

Inc., 288 F.3d 124, 133 n.7 (4th Cir. 2002) (recognizing that

the elements of a discrimination claim are the same under both

Title    VII        and    § 1981).            Under      McDonnell      Douglas,         once    a

plaintiff establishes a prima facie case of discrimination, the

burden     shifts         to   the       defendant         to    come        forward      with    a

legitimate,          nondiscriminatory               reason       for        the    employment

decision.       If the defendant meets this burden, the onus returns

to the plaintiff to demonstrate that the reason is pretextual

and   that     discrimination            was    the       motivating     force      behind       the

decision.       McDonnell Douglass, 411 U.S. at 802-04.

               To    establish       a   prima       facie      case    of    discrimination,

Parish had to prove:

      (1) [he] is a member of a protected class; (2) [he]
      suffered adverse employment action; (3) [he] was
      performing [his] job duties at a level that met [his]
      employer’s legitimate expectations at the time of the
      adverse employment action; and (4) the position
      remained open or was filled by similarly qualified
      applicants outside the protected class.

Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285

(4th Cir. 2004) (en banc).

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            We conclude that the district court did not err in

concluding that Parish failed to make a prima facie showing of

discrimination.      While Parish is a member of a protected class,

and   did   suffer    an     adverse   employment         action,      he     was   not

performing his duties at a level that met Siemens’s legitimate

expectations.      The record is replete with examples of management

dissatisfaction with Parish’s performance.                     Kuhfahl, Mazuroski,

and Walsh received frequent and harsh complaints from Parish’s

subordinates,      his     colleagues,       and        other     groups      in    the

organization.            Mazuroski      offered          specific          performance

improvement guidelines, and Parish was simply unsuccessful at

improving his performance to a level that met his employer’s

expectations.        Under    these    facts,      we    see    no    error    in   the

district court’s grant of summary judgment in favor of Siemens.

            Parish    argues    that    he   was        meeting      his    employer’s

expectations, and offers statements from one of his subordinates

and   a   fellow   supervisor    in    support      of    his     claim.       As   the

district court noted, however, this evidence is not relevant to

the question of whether, from the perspective of the employer,

Parish was adequately performing his job duties.                     See Holland v.

Washington Homes, Inc., 487 F.3d 208, 217 (4th Cir. 2007) (“it

is the perception of the decisionmaker which is relevant”).

            Because Parish has not made out a prima facie case, we

affirm the judgment of the district court.                        We dispense with

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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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