                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-1625



GEORGE HOLTZ,

                                              Plaintiff - Appellant,

          versus


JEFFERSON SMURFIT CORPORATION, d/b/a Stone
Container Corporation, d/b/a Smurfit-Stone
Container Corporation,

                                              Defendant - Appellee.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Senior
District Judge. (1:04-cv-00827-WLO)


Submitted:   May 16, 2007                  Decided:   July 12, 2007


Before TRAXLER and DUNCAN, Circuit Judges, and Frank D. WHITNEY,
United States District Judge for the Western District of North
Carolina, sitting by designation.


Affirmed by unpublished per curiam opinion.


Joshua N. Levy, LEVY LAW OFFICES, Raleigh, North Carolina; W. Eric
Medlin, ROBERTSON & MEDLIN, P.L.L.C., Greensboro, North Carolina,
for Appellant. Fred T. Hamlet, Greensboro, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     George Holtz (“Holtz”) appeals from the district court’s

granting of summary judgment in favor of his former employer,

Jefferson Smurfit Corporation (“Smurfit”), on Holtz’s claims of

violations of the Age Discrimination in Employment Act of 1967

(“ADEA”), as amended, 29 U.S.C. § 621 et seq.; the Employee

Retirement Income Security Act of 1974 (“ERISA”), as amended, 29

U.S.C. § 1001 et seq.; and the public policy of North Carolina.          We

affirm.

     We review de novo the district court’s grant of summary

judgment in favor of Smurfit.    See LeBlanc v. Cahill, 153 F.3d 134,

148 (4th Cir. 1998).     In so doing, we view the facts in the light

most favorable to the nonmovant, here Holtz.             See Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

     Smurfit   is   a   manufacturer   of   paperboard   and    paper-based

packaging, including, for example, tissue boxes.               Beginning in

1995, Holtz worked as a manager in Smurfit’s Greensboro, North

Carolina plant.     By mid-1999, Holtz became plant manager and as

such was responsible for the overall performance of the plant. The

record reflects that in late 2002, Holtz’s job performance began to

decline and that Smurfit began receiving complaints from its

clients about quality issues, including one serious incident in

2003 in which at least 250,000 cartons of material had to be

reprocessed at Smurfit’s expense. In 2003, Holtz, then sixty-seven


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years old, was removed as plant manager and placed in a different

role as a process improvement technician.    About six weeks later,

Holtz was terminated.

     In its memorandum opinion and order regarding Smurfit’s motion

for summary judgment, the district court addressed the evidence

proffered by Holtz in support of his claims that Smurfit violated

the ADEA and ERISA.   See Holtz v. Jefferson Smurfit Corp., 408 F.

Supp. 2d 193, 202-08 (M.D.N.C. 2006).    This evidence consisted of

several age-related comments made by the Greensboro plant’s general

manager and others to Holtz. Holtz also noted that younger workers

were not fired, but Holtz was.    The district court found that the

age-related comments were “innocuous statements with no disparaging

overtones,” id. at 205, and that although younger workers were not

fired, Holtz failed to show that the younger workers who were not

fired "were similarly situated in all material respects to [him],"

id. at 207.

     In particular, the district court noted that the unfired

workers were not all plant managers, nor did they have the series

of performance deficiencies that Holtz did.       “[T]he undisputed

facts show nothing more than an employer making a business judgment

to fire the head person, instead of lower managers, when a series

of failings occurred.”   Id.     Such exercise of business judgment

does not violate the ADEA.     See id.




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     Having reviewed the parties’ submissions and the record in this

case, we affirm for the reasons stated by the district court.   See

Holtz v. Jefferson Smurfit Corp., No. 1:04-CV-827 (M.D.N.C. Apr. 24,

2006) (order denying Holtz's motion to reconsider); Holtz, 408 F.

Supp. 2d 193. We dispense with 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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