                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 10-1786


SHUN-LUNG CHAO,

                  Plaintiff - Appellant,

          v.

INTERNATIONAL BUSINESS MACHINES CORPORATION, d/b/a IBM, a
New York Corporation; DONNA HARDEE,

                  Defendants - Appellees.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:09-cv-00077-BO)


Submitted:   March 21, 2011                 Decided:   April 22, 2011


Before SHEDD, DAVIS, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Joshua N. Levy, LEVY LAW OFFICES, Raleigh, North Carolina, for
Appellant.    C. Matthew Keen, Michael D. McKnight, OGLETREE,
DEAKINS, NASH, SMOAK & STEWART, P.C., Raleigh, North Carolina,
for Appellees.


Unpublished opinions are not binding precedent in this circuit.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

                  Shun-Lung Chao appeals the district court’s judgment

granting       summary      judgment        to   International       Business   Machines

Corp.        (“IBM”)      and      dismissing          Chao’s     discrimination       and

retaliation claims.             We affirm.

                  Chao raised claims under Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C.A. §§ 2000e - 2000e-17 (West

2003     &        Supp.   2010);       42     U.S.C.     § 1981      (2006),    the    Age

Discrimination in Employment Act (“ADEA”), 29 U.S.C.A. § 621-634

(West 2008 & Supp. 2010), and North Carolina state law.                          He does

not appeal the district court’s judgment with respect to his age

discrimination claims, and they are accordingly abandoned.                            Chao

argues       on    appeal    that      the    court     erred   in   granting    summary

judgment to IBM on his discrimination and retaliation claims.



                                  I.        Discrimination

                  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

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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).               “[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

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 Douglas, 411 U.S. at 802-04.



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             To   establish    a   prima        facie   case    of   discrimination,

Chao 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).

             We   have    reviewed    the       record,   and    while      Chao    is   a

member of a protected class and was terminated, we conclude that

he was not performing his job duties at a level that met his

employer’s legitimate expectations.                 The record is replete with

examples of Chao’s documented insubordination, costly technical

errors, and poor performance reviews.                   Thus, we agree with the

district court’s conclusion that Chao has not made out a prima

facie case.       Accordingly, summary judgment was proper.



                               II.    Retaliation

             Retaliation     claims    are       similarly     analyzed     under    the

McDonnell Douglas framework.            A plaintiff in a retaliation case

must show that:          (i) he engaged in protected activity; (ii) his

employer took an adverse action against him; and (iii) there is

a   causal    connection     between    the       protected      activity     and    the

adverse      action.        Ziskie     v.       Mineta,    547       F.3d    220,    229

                                            4
(4th Cir. 2008).                To satisfy the second element, a plaintiff

must    show     that       a    reasonable        employee        would     have    found    the

challenged action “materially adverse, which . . . means it well

might     have      dissuaded         a     reasonable         worker       from     making    or

supporting a charge of discrimination.”                              Burlington N. & Santa

Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).                                If the plaintiff

makes a prima facie showing, the burden shifts to the employer

to    articulate        a       legitimate,       non-retaliatory           reason     for    the

adverse     action.              Baquir      v.        Principi,      434    F.3d     733,    747

(4th Cir. 2006).                If   the    employer       makes     such    a   showing,     the

burden returns to the plaintiff to establish that this reason is

a pretext for retaliation.                  Id.

               Here, we similarly find that Chao has not made out a

prima facie case.                There is nothing in the record to suggest

that    Chao’s      manager,         Donna    Hardee,          who    ultimately      made    the

decision       to   terminate         him    after        he   failed       to   complete     his

performance improvement plan in a satisfactory manner, actually

knew of Chao’s protected activities at the time she made her

decision.        Absent such a showing, we cannot say that he has made

out a prima facie case.                Moreover, the record is clear that Chao

was    terminated       because        of    his       poor    performance,         rather    than

because     he      complained         of    discrimination.                Accordingly,        we

conclude that the district court did not err in granting summary

judgment to IBM on Chao’s retaliation claim.

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                                III. Conclusion

              For the reasons set forth, we affirm the judgment of

the district court.          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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