                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 08-1882


DEAN M. INMAN,

                 Plaintiff - Appellant,

           v.

KLOCKNER PENTAPLAST OF AMERICA,           INCORPORATED;    KLOCKNER
PENTAPLAST PARTICIPATIONS,

                 Defendants – Appellees,

           and

KLOCKNER PENTAPLAST GROUP,

                 Defendant.

----------------------------------------

AARP,

                 Amicus Supporting Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville.    Norman K. Moon,
District Judge. (3:06-cv-00011-nkm-bwe)


Argued:   September 24, 2009                 Decided:   October 22, 2009


Before TRAXLER, Chief Judge, HAMILTON, Senior Circuit Judge, and
Mark S. DAVIS, United States District Judge for the Eastern
District of Virginia, sitting by designation.
Reversed and remanded by unpublished per curiam opinion.


ARGUED: Adam Augustine Carter, EMPLOYMENT LAW GROUP, PC,
Washington, D.C., for Appellant.      Melvin Earl Gibson, Jr.,
TREMBLAY & SMITH, Charlottesville, Virginia, for Appellees. ON
BRIEF: R. Scott Oswald, EMPLOYMENT LAW GROUP, PC, Washington,
D.C., for Appellant.     Thomas E. Albro, Patricia D. McGraw,
TREMBLAY & SMITH, Charlottesville, Virginia, for Appellees.
Laurie A. McCann, Daniel B. Kohrman, AARP FOUNDATION LITIGATION,
Melvin Radowitz, AARP, Washington, D.C., for Amicus Supporting
Appellant.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

     Dean Inman appeals the grant of summary judgment against

him on his claim of discrimination under the Age Discrimination

in Employment Act, see 29 U.S.C.A. § 623(a)(1) (West 2008), and

his request for declaratory judgment, both of which arise from

his assertion that he was improperly terminated.                       We reverse the

grant of summary judgment and remand for further proceedings.



                                         I.

     Klöckner Pentaplast of America, Inc. (“KPA”) is one of the

world's leading producers of films for pharmaceuticals, medical

devices,      food,    electronics,      and         general       purpose    thermoform

packaging, as well as printing and specialty applications.                            In

2001, Cinven Company and J.P Morgan bought KPA for more than

$800 million, planning to cuts costs, increase profits, and re-

sell the company in four or five years.                   In 2007, they sold KPA

to a private equity firm for approximately $1.8 billion.

     When he was fired by KPA in December 2005, Inman was 58

years   old    and    was   serving   as       Vice    President       of    Technology.

Inman had worked for KPA for 17 years, starting in 1988 as a

manager in training before eventually becoming head of KPA’s

technical     department.        Inman         was    also     a    member    of   KPA’s

“Steering Team,” an executive committee comprised of KPA senior

leadership that managed the company.

                                           3
      In 2003, Michael Tubridy became President of KPA’s North

and South American Operations after having served unofficially

in that capacity for a few months.                         Although Tubridy always

appreciated Inman’s technical skills, he did not think much of

his leadership style.              In conducting a performance review of

Inman in December 2003, Tubridy expressed concern with Inman’s

group    and     team    leadership       abilities.             He    described       Inman’s

allocation       of     staff   responsibilities            as    “dysfunctional”            and

stated    that    there     was    room    for     improvement         in     the    areas     of

personnel      development        and     succession           planning.            J.A.    674.

Tubridy explained that he wanted Inman to create a commercial

development      plan     for   his     department,        a    plan    which       would     set

goals    and     metrics    that      would       allow    the    department’s             actual

performance to be measured against the goals.

      Inman resisted these requests, however, believing they were

not necessary in light of certain historical information kept on

the   technical       department’s        computer        system.        In    early        2004,

after Mike Yeatts, director of KPA’s human resources department,

emailed Inman a draft of the plan Tubridy sought, Inman informed

Yeatts that he rejected the plan “in its entirety.”                                 J.A. 613.

Inman explained in his deposition that the proposal was “very

minimal in value, very sophomoric in its content, nothing of

value” and that Inman “did not understand why someone without

the     training,       apparent      training       in     such       issues       would     be

                                              4
attempting     to     provide    the       information.”              J.A.    679.       Tubridy

raised      this     request     again      during        Inman’s          2004     performance

review, this time even sketching out the form that he wanted the

plan to take.          Inman still never developed the plan, however,

and   by    August     2005,    Tubridy       had       concluded          that    Inman      never

would.

       Although      Tubridy     was    frustrated            with    Inman’s       refusal      to

develop a plan to set measurable goals for his department, it

was a culmination of events over the course of several months in

2005 that Tubridy claims led to his decision to terminate Inman.

First,      Inman    balked     at     signing      a    non-compete          agreement         and

attempted to renegotiate some of its terms.                               Tubridy apparently

found that response unprofessional, particularly since Inman was

at    the    same    time     requiring       each       of     the       employees      in     his

department      to    sign     the     agreement.             Then     Inman       objected      to

attending      a     mandatory       training       session          on     how     to   conduct

employment         interviews,       sending        sarcastic             emails     about      the

subject to the human resources department.

      In    September       2005,    Tubridy        decided      that        because       of   the

company’s      financial         condition          (which       had         worsened         after

Hurricanes Katrina and Rita disrupted their supplies and greatly

increased their costs), KPA needed to implement a wage freeze.

Tubridy      presented       that    idea     to        the    Steering           Team   on     the

afternoon      of    September       14,    2005,       before        a    scheduled       dinner

                                              5
meeting for KPA supervisors.         The Steering Team members present

unanimously   agreed   to   the    freeze,   but   Inman    was   not   present

then--he was on his way to the dinner meeting from a KPA site in

West Virginia.    Tubridy says he pulled Inman aside during pre-

dinner cocktails and told him about the salary freeze, and he

formally announced the freeze during dinner later that night.

The next day, another member of the Steering Team told Tubridy

that he had heard that Inman was complaining about the salary

freeze.   Tubridy claims that he brought Inman in for a meeting,

to give Inman a chance to talk about the salary freeze again,

since the idea had been sprung on him the night before with

little notice.    Tubridy testified that Inman told him that he

understood why the freeze was necessary and that he supported

the company’s decision.           Tubridy testified that he then told

Inman that he had heard that Inman had complained about the

decision and that Inman’s immediate response was, “I guess I

need to be careful what I share with Charlie Abbey.”                J.A. 742.

Tubridy claims he understood that to be a confession of sorts

and therefore that Inman had just lied to him when he had said

he understood and supported the freeze.

     Inman’s version of events is different.               He maintains that

Tubridy did not tell him about the freeze ahead of time, and

that he learned about it when everyone else did, when Tubridy

announced it at the dinner.          Inman says that the day after the

                                      6
announcement, he was in Charlie Abbey’s office and listened to

Abbey   complain         about    the    freeze,   but    Inman     did   not   himself

express disappointment concerning the freeze.                       As to the meeting

with Tubridy, Inman claims that Tubridy said he had heard that

Inman had some concerns about the freeze, and Inman told him

that he did have questions.                  Inman said he mentioned Abbey only

because Abbey was “known as a gossip within the company, he’s

known to . . . tell whoppers, to sensationalize stories.”                          J.A.

883.    Inman insists that he never complained about the salary

freeze to anyone in the company.

       According to Tubridy, the salary-freeze issue was the last

straw for him.            He believed that as a member of the Steering

Team, Inman should support the decisions made by the team, and

he also believed that Inman had lied to him about supporting the

freeze.      Tubridy claims he lost confidence in Inman at that

point, and essentially decided then that Inman had to be fired.

       A couple of other events occurred after the salary-freeze

meeting that Tubridy contends reinforced his belief that Inman

needed to be replaced.              Sometime before the fall of 2005, the

Steering     Team    decided        to    reduce    costs     by     changing    health

insurance providers.             The new policy went into effect in October

2005, and as it turned out, led to an increase in the co-payment

for a medicine Inman was taking.                   This angered Inman greatly,

and    he   sent    an    email    to    a    staffer    in   the    human   resources

                                              7
department stating that he would hold KPA “responsible for any

and all harm that is done to my health and/or any increase in my

out of pocket expenses as a result of our new insurance company

playing the role of dictating which medications I should and

should     not   use.”        J.A.    618.       Additionally,     in   response     to

inquiries        from        the     human       resources      department         about

participation      in    a    retirement      program,     Inman   sent    emails    to

another human resources staffer complaining that he could not

afford     to    participate         in    light     of   the   wage      freeze    and

denigrating      the     company’s        decision   to   implement     the   freeze.

Mike Yeatts, KPA’s human resources director, told Tubridy about

these emails, and Tubridy told Yeatts to inform Inman that such

behavior would not be tolerated.

     On December 15, 2005, Tubridy called Inman into his office

and fired him.          Inman claims that in that meeting, Tubridy said

that Inman “did not fit the ‘profile’ or ‘model’ of what is

needed in a technical leader in terms of KPA’s presentation to

potential buyers of the company.”                  J.A. 824.     Inman claims that

Tubridy said that KPA needed a “more energetic person” as leader

of   the     technical        department,        “for     the   appearance     of     a

revitalized company.”              J.A. 824.       Tubridy told Inman “that he

wanted KPA work to be more oriented around financial results and

budgets tied to compensation, rather than the ‘same old things’

that [Inman] had provided.”                 J.A. 824.      Inman was replaced by

                                             8
45-year-old       David       Veasey,     who        had     been    Vice-President           of

Operations.           When Veasey took over, KPA changed the position

somewhat,        eliminating         some       of     what         had     been       Inman’s

responsibilities.

     In 2003, Inman had been one of a small group of executives

permitted to buy KPA stock, and the expectation was that the

stock    would    become      very     valuable       once    the    company       was   sold.

Inman paid $32,700 when he bought the stock in 2003.                                After he

was fired, KPA tendered a check for $41,000 to buy back the

stock, in accordance with the terms of the program under which

Inman    bought       the   stock.      Inman        has   never     cashed      the     check,

claiming       that    he    was   wrongfully         terminated          and   that     he   is

entitled to keep the stock, which, since the KPA sale, is worth

substantially more than the $41,000 that KPA tendered.

     Inman eventually filed this action against KPA, 1 asserting

various claims under state and federal law, including a claim of

age discrimination.           Inman also sought a declaration that he was

entitled to keep the stock.                   The district court granted KPA’s

motion    to    dismiss       several    of     the    claims.            The   court    later

granted     summary         judgment    against        Inman’s       age-discrimination


     1
        Inman also named as a defendant Klöckner Pentaplast
Participations, a Luxembourgian entity formed to allow certain
of KPA’s managers and officers to acquire an ownership interest
in KPA’s parent company, Klöckner Pentaplast Group.



                                              9
claim.    Finding no other basis for Inman’s wrongful termination

claim, the district court also granted summary judgment in KPA’s

favor on Inman’s request for a declaratory judgment that he was

entitled to retain the stock.



                                      II.

      On appeal, Inman contends that the district court erred in

granting summary judgment against him in light of the evidence

he presented.   We agree. 2

      We review a grant of summary judgment de novo, viewing the

evidence in the light most favorable to the nonmovant, Inman.

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

283 (4th Cir. 2004) (en banc).         To make a prima facie showing of

age   discrimination   under    the   pretext   framework,   a     plaintiff-

employee must show that (1) he is a member of a protected class;

(2) he suffered an adverse employment action; (3) he was at the

relevant time performing his duties at a level that met his

employer’s   legitimate       expectations;     and   (4)    his     position

remained open or was filled by someone substantially younger.


      2
       Inman also raises a procedural claim, arguing that the
district court improperly looked to KPA’s evidence on an issue
that the magistrate judge had refused to let Inman pursue during
discovery, and that this error warrants reversal.     Because of
our disposition of Inman’s substantive argument, we do not
address this procedural claim.



                                      10
See id. at 285.            If the plaintiff makes that showing, it is

incumbent      on    the      employer     to      articulate       a      legitimate,

nondiscriminatory reason for the adverse employment action.                          See

id.    To    avoid    summary       judgment,   the     plaintiff       must     present

evidence showing that the employer’s stated reasons were not its

true reasons, but were a pretext for discrimination.                       See id.

      There is no question that Inman is a member of a protected

class, that he suffered an adverse employment action, and that

he was replaced by someone substantially younger.                         The critical

questions before us are whether Inman’s evidence showed that he

was meeting KPA’s legitimate expectations and whether Inman has

established    that    KPA’s      proffered     reasons     for    his     termination

were pretextual.

      KPA   argues     that    Inman’s     claim    fails    at    the     legitimate-

expectation    step.        KPA   argues    that    because       Inman    refused   to

develop the performance metrics Tubridy wanted for the technical

department, refused to support the salary freeze (and lied to

Tubridy     about    it),     and     belittled     and     harassed       the     human

resources staff, there was no genuine issue of material fact

regarding      whether        Inman      was    meeting        KPA’s        legitimate

expectations.       We are not persuaded.

      First,    some       evidence     tends      to   show      that     Inman     was

adequately performing--he received bonuses every year, and he

was singled out for praise by Tubridy at a company gathering

                                          11
just a couple of weeks before he was fired.                  Moreover, if Inman

has evidence from which a jury could conclude that the real

reason he was fired was his age, the jury could also conclude

that the deficiencies that KPA claimed existed in Inman’s work

were exaggerated to cover up the age-based motivation for the

termination and that any such deficiencies were not sufficient

to prevent his performance from being adequate.

       We conclude that Inman has in fact presented sufficient

evidence that KPA’s proffered reasons for terminating Inman were

mere   pretext.       First,      the    summary     judgment   record    contains

evidence that if accepted by the jury would contradict KPA’s

position      about   the    salary-freeze       issue--the     issue    that   KPA

maintains was the main reason that Inman was fired.                      According

to   Inman,    Tubridy      did   not   tell   him   about   the   salary   freeze

before it was announced, and when Tubridy asked him the next day

if he had concerns about the salary freeze, Inman said that he

did.    This is directly contrary to Tubridy’s claim that Inman

told   him    he   supported      the   wage   freeze,   and    would   completely

undercut the claim that Tubridy wanted to fire Inman because he

lied about supporting the wage freeze.

       Other evidence supports the conclusion that Inman’s age was

the actual reason for his termination.                   First, there are the

statements that Inman says Tubridy made when he fired him--that

Inman did not fit the “model” or “profile” of the “energetic”

                                          12
person needed to project KPA as the “revitalized” company that

KPA wanted to present to potential buyers.                    J.A.    824.          There

was   also      evidence       concerning    KPA’s     dealings      with    Proudfoot

Consulting.       In October 2005, just a few months before Inman was

fired, KPA hired Proudfoot to review its operations and help

devise    a     plan    to     increase     its    efficiency      and   reduce      its

operating expenses.            Tubridy and Veasey (who ultimately replaced

Inman,    but    then    was     Vice   President     of     Operations)     met    with

Andreas Paetz of Proudfoot on October 27, 2005, to talk about

the project.          Paetz wanted four KPA employees to be assigned to

a task force that would conduct this review and said that they

should    be    “young,”       “energetic,”       “future    people.”       J.A.     970.

Tubridy made notes on a napkin during the Proudfoot meeting.

Tubridy’s napkin-notes included the phrase “young, energ[etic].”

J.A. 976.        Veasey had a follow-up meeting with Paetz the next

day, and Veasey’s handwritten notes from that meeting stated

“KPA team – young – energetic, future people.”                     J.A. 970.

      KPA insists that these notations are meaningless because

Tubridy and Veasey were merely writing down what Paetz said, and

Paetz was not a decisionmaker with regard to Inman’s employment.

See, e.g., Brinkley v. Harbour Recreation Club, 180 F.3d 598,

608   (4th     Cir.    1999)     (“[T]o   prove     discriminatory       animus,      the

derogatory remark cannot be stray or isolated, and unless the

remarks       upon     which    plaintiff        relies     were   related     to    the

                                            13
employment   decision   in   question,     they    cannot   be    evidence      of

discrimination.”     (internal      quotation      marks    and        alteration

omitted)), overruled on other grounds by Desert Palace, Inc. v.

Costa, 539 U.S. 90 (2003).          KPA also notes that Paetz, who is

German, explained in his deposition that when he said “young,”

he meant employees who were “young” with the company—who had not

worked for KPA long enough to develop political alliances, etc.

We conclude, however, that these arguments miss the mark.

     First of all, even though Paetz was not a decisionmaker,

Tubridy was, and he found Paetz’s reference to “young” employees

sufficiently significant to write it down.                 Moreover, Paetz’s

explanation of what he meant by “young” is not as clear as KPA

claims.   While Paetz did say that “young” referred to length of

employment, at another point in his testimony, he also seemed to

say that it meant chronological age.              In any event, given the

usual understanding of the word “young,” it is for a jury to

decide what Paetz meant, and, more importantly, what Tubridy

understood   the   reference   to   mean   when    he   wrote     it    down   and

whether Tubridy adopted the goal of having “young, energetic”

workers as his own. 3

     3
       KPA emphasizes that the selection of the task force is not
the adverse employment action of which Inman complains.     While
that is true, the evidence in question still tends to show that
Tubridy was thinking about the need for youth in the company in
the weeks before the alleged age discrimination occurred.


                                     14
                                    III.

      In sum, we hold that the district court erred by granting

summary judgment against Inman on his age discrimination claim

and   therefore   also   on   his   request   for   declaratory   relief.

Accordingly, we vacate the judgment against Inman and remand to

the district court for further proceedings.



                                                    REVERSED AND REMANDED




                                     15
