                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-2167


CHRISTOPHER L. BODKIN,

                Plaintiff - Appellant,

          v.

TOWN OF STRASBURG, VIRGINIA; TIM SUTHERLY, Individually and
in his Official Capacity as Chief of Police, Town of
Strasburg,

                Defendants - Appellees.



Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg.     Samuel G. Wilson,
District Judge. (5:08-cv-00083-sgw-mfu)


Submitted:   June 4, 2010                 Decided:   June 29, 2010


Before WILKINSON, DUNCAN, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Annette K. Rubin, Leesburg, Virginia, for Appellant. Rosalie
Pemberton Fessier, TIMBERLAKE, SMITH, THOMAS & MOSES, P.C.,
Staunton, Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.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

            Christopher       L.     Bodkin      appeals       the   district         court’s

order     granting    summary      judgment         in       favor   of      the    Town     of

Strasburg    (“the     Town”)      and    its      police      chief,     Tim       Sutherly.

Bodkin    claimed     that    Sutherly       and    the       Town   violated        his    due

process rights and terminated him on the basis of his age in

violation of the Age Discrimination in Employment Act of 1967,

as amended, 29 U.S.C. §§ 621 to 634 (2006) (“ADEA”).                               On appeal,

Bodkin argues that the district court erred in granting summary

judgment as to the ADEA claim because the court (1) relied upon

incorrect    facts    as     the   basis     for       its    ruling;     (2)      failed    to

consider     Bodkin’s        direct      and       circumstantial            evidence        of

discrimination;       and    (3)   accepted        as    true    Sutherly’s          and    the

Town’s     evidence        despite       inconsistencies             with       documentary

evidence    and   witness      testimony.              Bodkin    challenges          the    due

process     ruling,    alleging       that       the     district       court       erred    in

treating    Bodkin’s       “separation       from      employment       as    a     voluntary

resignation,” rather than a termination.                      We affirm.

            This court reviews de novo a district court’s grant of

summary judgment.       Universal Concrete Prods. v. Turner, 595 F.3d

527, 529 (4th Cir. 2010).             Summary judgment is appropriate when

the “pleadings, the discovery and disclosure material on file,

and any affidavits show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment

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as   a   matter    of    law.”       Fed.     R.    Civ.    P.     56(c)(2).      Summary

judgment will be granted unless a reasonable jury could return a

verdict    for    the    nonmoving         party    on     the    evidence     presented.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

            To establish his due process claim, Bodkin must show

that he was deprived of a constitutionally protected property or

liberty interest by state action.                    Stone v. Univ. of Maryland

Med. Sys. Corp., 855 F.2d 167, 172 (4th Cir. 1988).                               Because

Bodkin resigned, state action did not cause his job loss.                                See

id. at 173 (holding that a voluntary resignation relinquishes a

property     interest         and     is     not      subject        to   due     process

protections).           If,    however,          Bodkin’s        resignation     was     “so

involuntary that it amounted to a constructive discharge, it

must be considered a deprivation by state action triggering the

protections       of    the   due    process        clause.”        Id.   at    173.       A

resignation is involuntary when it is obtained either through

material misrepresentation, or by duress or coercion.                             Id. at

174.     “Under the misrepresentation theory, a resignation may be

found to be involuntary if induced by an employee’s reasonable

reliance upon an employer’s misrepresentation of a material fact

concerning the resignation.                 A misrepresentation is material if

it concerns either the consequences of the resignation or the

alternative to resignation.”                Id.     (internal quotation marks and

citations     omitted).             Under     the    duress/coercion           theory,    a

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resignation      is    involuntary        if,       based    on    the        totality      of    the

circumstances, the employer’s conduct deprived the employee of

free choice in the matter.                Id.        Circumstances to be considered

are: “(1) whether the employee was given some alternative to

resignation; (2) whether the employee understood the nature of

the choice he was given; (3) whether the employee was given a

reasonable      time    in    which      to   choose;        and       (4)     whether      he    was

permitted to select the effective date of his resignation.”                                      Id.

            We have reviewed the record and conclude that Bodkin’s

resignation was voluntary.                The resignation was neither induced

by his employer’s alleged misrepresentations, nor the product of

coercion or duress.           Accordingly, we affirm the district court’s

entry of summary judgment on this claim.

            To succeed on an ADEA claim, Bodkin “must prove, by a

preponderance         of     the     evidence            (which        may     be    direct        or

circumstantial),           that    age    was        the    ‘but-for’           cause      of     the

challenged employer decision.”                  Gross v. FBL Fin. Servs., Inc.,

129 S. Ct. 2343, 2351 (2009).                   ADEA claims sought to be proven

using    circumstantial           evidence      are      analyzed        under      the    burden-

shifting    framework        established            in   McDonnell           Douglas      Corp.    v.

Green,    411    U.S.      792     (1973).           Reeves       v.    Sanderson         Plumbing

Prods.,    Inc.,       530   U.S.     133,      142       (2000)       (assuming        that      the

McDonnell       Douglas      burden-shifting              framework          applies      to     ADEA

claims); Mereish v. Walker, 359 F.3d 330, 334 (4th Cir. 2004)

                                                4
(applying       McDonnell       Douglas     framework         to   ADEA    claims).       To

prevail under the burden-shifting framework, Bodkin must show:

(1) he is “a member of a protected class” — that is, 40 years or

older; (2) he “suffered an 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 he was

replaced by a substantially younger person.                            Hill v. Lockheed

Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th Cir. 2004).

               We have reviewed the record and conclude that Bodkin

failed     to     make      a     prima     facie    showing        of     unlawful       age

discrimination in the district court.                     Accordingly, the district

court    did    not   err       in   granting     summary      judgment     in    favor    of

Sutherly on Bodkin’s ADEA claim.

               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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