                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-2530


RALPH WILFRED ARTHUR,

                Plaintiff – Appellant,

           v.

PET DAIRY; LAND-O-SUN DAIRIES, LLC,

                Defendants - Appellees.



Appeal from the United States District Court for the Western
District of Virginia, at Lynchburg.     Norman K. Moon, Senior
District Judge. (6:11-cv-00042-NKM-RSB)


Argued:   December 9, 2014                 Decided:   February 9, 2015


Before WILKINSON, SHEDD, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Terry Neill Grimes, TERRY N. GRIMES, ESQ., P.C.,
Roanoke, Virginia, for Appellant. Victor O’Neil Cardwell, WOODS
ROGERS PLC, Roanoke, Virginia, for Appellees.   ON BRIEF: Frank
K. Friedman, J. Benjamin Rottenborn, WOODS ROGERS PLC, Roanoke,
Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.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

            Ralph    Arthur    (“Appellant”)           sued    his    employer,    Pet

Dairy (“Appellee”), alleging that he was terminated because of

his age in violation of the Age Discrimination in Employment Act

(“ADEA”).     He appeals from the district court’s order of summary

judgment in his employer’s favor.

            To lodge a claim of age discrimination, a plaintiff

may proceed through either of two avenues of proof: by raising a

presumption     of    discrimination,           or     by     offering   direct     or

circumstantial evidence of the employer’s discriminatory animus.

Regardless of the method employed, the burden remains the same:

plaintiff   must     prove    that   age       was    the   but-for   cause   of   his

termination.     In this case, Appellant’s evidence fails to raise

a genuine dispute as to whether he can satisfy this burden; he

offers nothing to cast doubt upon Appellee’s stated reasons for

terminating him, including numerous customer complaints and his

lengthy history of performance issues.                 Accordingly, we affirm.

                                       I.

                                       A.

            Appellant was a milk delivery driver and salesman for

Appellee,   a   corporation      serving         Lynchburg,      Virginia’s    dairy

needs.   Appellant initially worked for Pet Dairy in 1992 or 1993

for about six months, and was most recently rehired in January

2003 when he was 57 years old.                       Appellant was assigned Pet

                                           2
Dairy’s largest and most profitable sales route, which supplied

Barnes      &    Noble        and      the    Lynchburg       City    School       Division      (the

“School Division”), among others.

                 At    the        time   of   his     termination,          Appellant’s       direct

supervisor            was    Appellee’s         branch        manager       for    the    Lynchburg

office,         Mike    Reynolds         (“Reynolds”).              Appellant          testified   in

deposition            that        on     Reynolds’s       first        day        as     Appellant’s

supervisor, Reynolds told Appellant, “[Y]ou are too old to be

here and I’m going to get rid of you.”                                J.A. 363. 1          Appellant

also       offered          the     sworn     affidavit        of     his    coworker,       Judith

Hickman, who generally confirmed that “Reynolds told Arthur that

he was too old to be working.”                          Id. at 537.          Appellant further

testified that around Thanksgiving in November 2009, about three

weeks      before       Appellant’s           termination,          Reynolds      told    Appellant

that he “need[ed] to go ahead and hang it up because [he was]

just too old to do [his] job.”                      Id. at 983-84.

                 But        the    record      also      shows       Appellant         demonstrated

significant             work           performance        issues,           beginning        almost

immediately after he was hired in 2003.                                 For example, on May

16th,      2003,       Appellant         crashed        his    milk     truck      into     an   SUV,

striking it hard enough to send the SUV into a triple barrel


       1
       Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.



                                                    3
roll. 2   For this, Appellant was given a written warning.                  He was

also issued two formal, written reprimands in September 2003 for

consistently    failing      to     supply         customers      with     adequate

quantities of milk.

            Appellee hired Mike Reynolds in 2005.                 Reynolds often

communicated his dissatisfaction with Appellant’s performance,

threatening to fire him either verbally or in writing about once

every two weeks.      Appellant claimed Reynolds left him at least

17 sticky-notes threatening termination, but Appellant admitted

that none of them concerned his age; all criticized his job

performance.    In one sticky note, Reynolds threatened to fire

Appellant for damaging three truck bumpers by hitting objects

with his work truck.         In another, Reynolds demanded for the

“last time” that Appellant take inventory of his delivery load.

J.A. 464-65.    Reynolds also verbally reprimanded Appellant when

customers    complained     about   his       failure      to   deliver    adequate

quantities of milk, and threatened to terminate Appellant when

he refused to deliver the goods as requested.

            Reynolds said that he received more complaints about

Appellant    than   about    any    of       the   other    drivers,      and   that

Appellant had problems with customers “from day one.”                     J.A. 738.

      2
       In his deposition, Appellant attempted to understate his
blameworthiness for this accident, insisting that he merely
“tapped” the other driver’s vehicle. J.A. 447.



                                         4
Reynolds    said    that   after    he    corrected    Appellant,      Appellant

“would get better for three or four months” before reverting to

his bad habits.       Id. at 739.            Reynolds was not alone in his

assessment of Appellant.           Both he and his assistant manager,

Steven Good (“Good”), told Appellant on several occasions that

his performance was lacking and he “would end up getting fired

because of his problems” if he did not improve.               Id. at 738.

            Appellant      also    generated       several    complaints     from

Appellee’s customers, and from the School Division especially.

Appellee disciplined Appellant in writing after a Barnes & Noble

store complained that Appellant failed to deliver enough milk.

Later, the Barnes & Noble store demanded Appellee assign its

account to another driver after Appellant spilled a gallon of

milk on the store’s carpet.             Additionally, the School Division,

the largest customer on Appellant’s route, repeatedly complained

that Appellant      left   milk    on    outdoor   loading    docks,   where   it

would be exposed to weather; delivered to the schools cartons of

milk covered in rust; failed to provide the schools with enough

milk; argued with school cafeteria managers; sped through school

parking lots; maneuvered his hand truck “at breakneck speed”

through    school   kitchens,      “to   the   point   it    created   a   safety

hazard”; failed to inventory his load of milk; and exhibited a

rude and hostile attitude.         J.A. 604.



                                         5
               The    School     Division          annually   hosted      an    in-service

meeting    where       school    staff    would        express       their     opinions   on

services provided by various contractors.                        By 2009, the School

Division had complained about Appellant for “several years,” and

it had “exhausted [its] patience.”                         J.A. 1021.          Meryl Smith

(“Smith”), the director of school nutrition, invited Reynolds to

the School Division’s August 2009 in-service meeting because she

received such a high number of complaints from school cafeteria

managers that she “wanted [Reynolds] to hear [these complaints]

directly from [the managers].”                     Id. at 630.        Reynolds attended

the meeting and heard these complaints in person.                            This was the

first time Smith had requested a representative of any of the

School Division’s “many” vendors to attend an in-service meeting

in     order    to     hear     complaints          from   school      staff     about    an

employee’s job performance.               Id. at 632.            But even after this

unprecedented in-service meeting, Smith still heard complaints

from     cafeteria       managers        and        contacted        Reynolds     “on     and

off . . . expressing [her] concern that things were not getting

better.”       Id. at 602-03.

               In her deposition, Smith said that Reynolds approached

her several months after the in-service meeting and asked her to

“put    [her]        concerns    [about     Appellant]          in     writing”    because

Reynolds was considering whether to “get[] rid of [Appellant] as

an employee,” and needed a written complaint “in order to make

                                               6
changes.”     J.A. 600, 602, 625.               In a memorandum dated December

4, 2009 (the “Smith Memorandum”), Smith documented the School

Division’s       complaints      about     Appellant.               Smith      wrote    that

although    she    was    sure   Appellant           was   “aware      that    [the    School

Division was] not happy with his work performance . . . he [did]

not make an effort to change those things that he [was] capable

of changing,” that she had “exhausted [her] patience in working

with [Appellant], and [that she] no longer want[ed] to deal with

the   problems     he    create[d]”        for       the   School       Division’s      food

service program.          Id. at 1021.                “With this in mind,” Smith

“stat[ed] that [she] no longer want[ed] [Appellant] to service

any   of   the    Lynchburg      City    School         accounts,”       and     she    asked

Appellee to “assign another route driver to cover the Lynchburg

School accounts as soon as possible.”                       Id.        Smith penned that

she believed the School Division’s “long term bid contracts with

[Appellee] . . . [gave her] the leverage to make this request.”

Id.    Good testified that when management for Appellee received

this memorandum, they believed the School Division “would pull

the   accounts     or    the    contract    if       [Appellant]        continued      to   be

their service person representing [Appellee].”                          Id. at 560.         The

School     Division      gave    Appellee        a    choice      of    either    removing

Appellant from the route or losing one of its most lucrative

contracts.



                                            7
             On   December    8,    2009,         Reynolds       forwarded      the       Smith

Memorandum to Anthony Heyward (“Heyward”) in Appellee’s human

resources     department,      stating,           “Ralph        Arthur    needs       to    be

terminated” because he “is an ongoing problem.”                           J.A. 724, 727.

Based   on   Reynolds’s      recommendation             and    the   Smith     Memorandum,

Heyward submitted to his superior, Marion Terrell (“Terrell”),

that    Appellant     should       be     terminated.                Heyward        did    not

independently      investigate          any       complaints         about     Appellant’s

performance       before     making       this         recommendation.               Terrell

concurred with the recommendation.                     Appellant was terminated on

December 17, 2009.

             Appellant testified that Appellee dissolved his route

the day after he was terminated.                       Appellee later divided this

route among seven other drivers who then supplied the customers

Appellant formerly serviced.                  Of these drivers, only one was

under 40 years old.        Appellee did not hire any new employees to

replace Appellant.

                                          B.

             Appellant     filed    suit          in    the     Western      District        of

Virginia alleging age discrimination in violation of the ADEA,

29 U.S.C. § 623(a)(1).         In addition to offering direct evidence

of   Reynolds’s     derogatory      statements,               Appellant      also    offered

circumstantial evidence that Reynolds intended to discriminate

against Appellant because of his age: deposition testimony in

                                              8
which Reynolds denied procuring the Smith Memorandum, disclaimed

any desire to fire Appellant before he received the memorandum,

and   disavowed        having    a   significant    role   in   the    termination.

This testimony was directly contradicted by Smith’s account of

events.

                  Appellant   also   claimed   he   performed    his    job   duties

adequately, and he contested the truth of most of the complaints

about       his    work   performance,    insisting    that     both    the   School

Division and Reynolds exaggerated or fabricated the basis for

their grievances. 3           Appellant provided uncontested testimony that

        3
       Appellant argues we cannot consider many of the School
Division’s complaints about his performance because they are
inadmissible hearsay.    See Appellant’s Br. 5-6, 29-36 (“‘[I]n
assessing a summary judgment motion, a court is entitled to
consider only the evidence that would be admissible at trial.’”
(quoting Kennedy v. Joy Technologies, Inc., 269 F. App’x 302,
308 (4th Cir. 2008))).     This argument misses the point.    The
issue in this case is whether Appellee fired Appellant because
complaints were made, not whether the School Division was
justified in complaining.      See Holland v. Washington Homes,
Inc., 487 F.3d 208, 217 (4th Cir. 2007) (upholding order of
summary judgment because “uncontested evidence” showed that
employer “honestly believed” that employee should be discharged
for threatening coworker, because “it is the perception of the
decisionmaker which is relevant,” not whether employee actually
made threats (internal quotation marks omitted)).      Therefore,
this evidence is admissible, not for the truth of the statement,
but to show Appellee’s state of mind.         See Fed. R. Evid.
801(c)(2); see also Arrington v. E.R. Williams, Inc., 490 F.
App’x 540, 543 (4th Cir. 2012) (“[T]hird party statements
concerning the plaintiff’s performance are offered not for the
truth of the matters asserted therein, but as an explanation of
why [the employer] believed that terminating the plaintiff’s
employment . . . was    necessary     and    appropriate . . . .”
(internal quotation marks omitted)).


                                           9
despite the complaints, Appellee did not remove him from the

top-selling sales route, and did not formally discipline him in

writing in the past six years.             Reynolds said in his deposition

that despite numerous complaints about Appellant’s performance,

he did not want to fire Appellant until he received the Smith

Memorandum.

            Appellant also opined that before he was terminated,

Reynolds received an email from upper management requiring the

Lynchburg branch to increase the sales of three delivery routes,

and that “[t]here was no other way [Reynolds] could do that” but

to shut down Appellant’s route and divide it among the other

drivers.       J.A.   417.      Reynolds      testified   that    a     “number   of

individuals” employed by Appellee or by its parent corporation

in   Chicago    periodically      evaluated      truck    route        patterns    to

determine whether routes could be consolidated or eliminated, in

order to save costs.          Id. at 681.      According to Reynolds, these

route “territory planner[s]” decided to eliminated Appellant’s

route.     Id. at 696.       Indeed, according to Appellant’s testimony,

his route was fragmented the day following his termination.                       But

in   his    deposition,      Appellant     maintained     he     did     not   think

business necessity was “the primary reason” Appellee fired him.

Id. at 981.

            After discovery, Appellee moved the district court for

summary judgment.        The district court granted the motion.                   See

                                         10
Arthur v. Pet Dairy, No. 6:11-cv-00042, 2013 WL 6073465 (W.D.

Va. Nov. 19, 2013).

                                         II.

                                          A.

               We review orders granting summary judgment de novo,

viewing the evidence in a light most favorable to the nonmoving

party.     See Educational Media Co. at Va. Tech, Inc. v. Insley,

731 F.3d 291, 297 (4th Cir. 2013).                   A party moving for summary

judgment must prove that no genuine dispute of material fact

exists, and that the moving party must prevail as a matter of

law.     See Fed. R. Civ. P. 56(a).             The nonmoving party may avoid

summary judgment by offering sufficient evidence to show the

existence of a genuine dispute.                See Anderson v. Liberty Lobby,

Inc.,    477    U.S.    242,    248   (1986).        Evidence      raises   a   genuine

dispute if it “is such that a reasonable jury could return a

verdict for the nonmoving party,” and not “so one-sided that one

party    must    prevail   as    a    matter    of   law.”      Id.    at   248,    252.

Therefore, when judging whether a “genuine” dispute exists, the

court    must,     to    some     extent,      evaluate      the    evidence       as   a

reasonable juror would.           See id. at 248.         But we may not “weigh

the evidence and determine the truth of the matter,” because

genuine disputes as to the truth of material facts should be

submitted to the jury.            Tolan v. Cotton, 134 S. Ct. 1861, 1866

(2014) (internal quotation marks omitted) (reversing order of

                                          11
summary      judgment        because       “the        court      improperly       weighed      the

evidence and resolved disputed issues in favor of the moving

party”      (internal      quotation         marks         omitted)).         However,     “[t]he

mere existence of a scintilla of evidence in support of the

plaintiff’s position will be insufficient [to create a genuine

dispute];          there   must       be    evidence         on    which     the    jury     could

reasonably find for the plaintiff.”                          Liberty Lobby, 477 U.S. at

252.

                                                  B.

              The ADEA makes it “unlawful for an employer . . . to

fail    or    refuse       to    hire      or     to       discharge    any       individual     or

otherwise discriminate against any individual with respect to

his     compensation,            terms,          conditions,           or      privileges        of

employment,         because      of     such      individual’s          age.”        29    U.S.C.

§ 623(a)(1).          The ADEA plaintiff may prove age discrimination in

one    of    two     ways:      by    proving          a    “prima     facie      case”    of   age

discrimination, which establishes a rebuttable presumption that

the    employer       violated        the       ADEA;       or    by   offering      direct      or

circumstantial evidence of an employer’s discriminatory animus.

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

284 (4th Cir. 2004) (en banc), abrogated in part by Gross v. FBL

Fin. Servs., Inc., 129 S. Ct. 2343 (2009).                                  Regardless of the

method chosen, it remains the plaintiff’s ultimate burden to

prove       that    his    age       was    the    but-for         cause     of    the    adverse

                                                  12
employment action.           See Gross, 129 S. Ct. at 2351.                 The district

court held Appellant’s evidence does not raise a genuine dispute

sufficient      to    meet    his    burden     on    either      ground.         Appellant

claims    the     district      court    erred;           he   contends     he    provided

evidence establishing a genuine dispute as to whether he can

make out a prima facie case of discrimination, and that he also

offered sufficient direct or circumstantial evidence to prove

his age was the but-for cause of his termination.                          Therefore, we

must evaluate the evidence on both grounds.

                                           1.

                                    Prima Facie Case

                                           a.

            An       ADEA    plaintiff    may        establish     a     presumption      of

discrimination         by    making     out     a     prima      facie     case    of   age

discrimination according to McDonnell Douglas Corp. v. Green and

its descendants.            See 411 U.S. 792, 802 (1973); see also Reeves

v. Sanderson Plumbing Prods., Inc., 530 U.S 133, 142-43 (2000);

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993).

Though     “the      plaintiff’s       burden        is    not    onerous,”       he    must

nevertheless prove his prima facie case by a preponderance of

the evidence.          Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 515

(4th     Cir.     2006)      (internal    quotation            marks     omitted).        To

establish a prima facie case, the plaintiff must show (1) he was

a member of the protected class, namely, “individuals who are at

                                           13
least     40    years     of      age,”    29    U.S.C.          §     631(a);      (2)     he    was

performing       his      job      duties       to         his       employer’s       legitimate

expectations at the time of termination; (3) he was terminated;

and (4) he was replaced by a substantially younger individual.

Hill, 354 F.3d at 285.             Appellant cannot get beyond step two. 4

               Whether       an   employee        met       his      employer’s       legitimate

expectations         at   the       time    of        termination             depends       on    the

“perception       of      the      decision          maker . . . ,            not     the        self-

assessment      of     the     plaintiff,”           and    not        the    opinions      of    the

plaintiff’s coworkers.              Hawkins v. PepsiCo, Inc., 203 F.3d 274,

280 (4th Cir. 2000).               And because it is the plaintiff’s burden

to   persuade     the     trier      of    fact       that        he    met    his    employer’s

legitimate       subjective        employment           expectations,            at   the        prima

facie stage we must consider the employer’s “evidence that the

employee was not meeting those expectations.”                                  Warch, 435 F.3d

at 515-16.       Otherwise, it would be “difficult to imagine a case

where     an     employee         could     not       satisfy           the . . . legitimate


      4
       Because Appellant has failed to make out a McDonnell
Douglas prima facie case, we do not opine on whether Appellant
could have satisfied the ultimate burden of proof applicable to
his pretext case: that his age was the but-for cause of his
termination.   See Reeves, 530 U.S. at 142-43 (explaining that
the core issue of “discrimination vel non” in an ADEA pretext
case is not reached unless the employee proves a prima facie
case and the employer meets its burden to produce “legitimate,
nondiscriminatory reason[s]” for the adverse employment action
(internal quotation marks omitted)).



                                                14
expectation       element.”      Id.       at    516       (internal     quotation       marks

omitted).

                                            b.

            The district court found Appellant failed to create a

genuine     dispute     about    whether             he     satisfied    the      legitimate

expectations of his employer at the time of termination for two

reasons.     First, Appellant’s work performance generated numerous

customer    complaints     long      before          he     was    terminated.      Second,

nearer to his termination, Appellee’s largest customer refused

Appellant’s       services.          Both       of        these    reasons     support    the

district court’s decision to grant summary judgment to Appellee.

             To     attempt     to     show          he     fulfilled    his      employer’s

legitimate       expectations,       Appellant             highlights    the     fact    that

Appellee, despite its claims regarding Appellant’s performance

record, did not formally discipline him during the six years

prior to his termination and did not reassign him to a less

economically important route.               In fact, Appellee took no formal

action against Appellant until approximately four months after

it received the Smith Memorandum.                     However, Appellant’s evidence

as to his work performance is “simply not enough to genuinely

dispute     the    considerable       evidence             of     [Appellant’s]    repeated

failures and negative performance.”                          Warch, 435 F.3d at 518.

Compared    to    the   mountain      of    evidence            demonstrating      Appellant

consistently failed to meet Appellee’s expectations, Appellant’s

                                            15
evidence      is       a     mere       a    molehill;       it     is    either     very     weakly

probative,        or       not    probative         at    all,     of    the     material    issue. 5

Indeed, the evidence of Appellant’s lacking job performance “is

so one-sided” that as a matter of law he cannot establish a

prima facie case.                 Garofolo v. Donald Heslep Assocs., Inc., 405

F.3d       194,    199       (4th          Cir.     2005)       (internal        quotation     marks

omitted).              Although            Appellee       did     not     formally     discipline

Appellant         in       writing,          this       carries     little        weight     because

Appellant         admitted            he    was     informally          counselled     about     his

performance            on        several          occasions         over         several      years.

Furthermore,           one       of    Appellee’s         largest       customers,    the     School

Division, devoted an in-service meeting to airing its complaints

about       Appellant’s               performance.           The        School     Division     also

threatened to terminate its contract with Appellee because of

these complaints.                Of note, Appellant does not dispute that this

meeting      occurred,            or    that      the     School    Division       threatened     to

terminate its contract because of him.

              Taking Appellant’s allegations as true, the fact that

Reynolds stated he did not want to fire Appellant before he

received the Smith Memorandum, and that Appellant was permitted

to keep his route as long as he did despite numerous complaints

       5
        Appellant   has  never   claimed  that   his  employer’s
expectations were illegitimate, and we therefore deem this point
conceded.



                                                     16
about his performance, does not help Appellant’s case.                                     Nor does

the bare fact that Appellant was not formally disciplined for

generating          these    complaints.              Where        there       is     evidence        an

employee       has        repeatedly          failed        to      meet        his       employer’s

expectations, and yet the employer has refrained from taking

certain       disciplinary           actions,       the     absence        of       discipline        is

weakly probative of adequate performance.                                See Smith v. Flax,

618    F.2d    1062,        1067      (4th    Cir.       1980)     (concluding            “the    fact

[employee] was kept on for many months after it was determined

that     he     could        not       perform        at     an     acceptable            level       of

competence . . . shows                  a     high         degree        of         patience       and

consideration” on the employer’s part, not that the employee was

performing adequately).                 Furthermore, Appellant’s interpretation

of     the    law    is     actually         against       his     own     interest        and     the

interests of others similarly situated; he is suggesting that in

order for an employer to be free of potential ADEA claims, it

should       terminate       an       employee        at     the     first       sign      of     poor

performance,         else        a    court    will        find    the     employee         met    his

employer’s      legitimate            expectations.               This    view       is    not    only

unsupportable as a matter of law, it is also bad policy.

              Appellant’s             evidence      is      simply       insufficient           for    a

reasonable      jury        to       find    that     Appellant          met    his       employer’s

legitimate employment expectations.                           Therefore, we affirm the

district court’s order of summary judgment as to Appellant’s

                                                 17
inability to prevail on his ADEA claim by proving a prima facie

case of age discrimination.

                                          2.

                    Direct or Circumstantial Evidence

                                          a.

                                          i.

            We now turn to the question of whether Appellant has

established a genuine dispute of material fact as to his ability

to prove with direct or circumstantial evidence that Appellee

terminated him because of his age.                 We conclude that Appellant

cannot   meet   this      burden,   and    therefore        affirm   the     district

court’s order of summary judgment, because Appellant has not

proffered   evidence      tending   to     show     that    there    was   no     other

explainable basis for Appellee’s decision to fire him.

            Derogatory      comments     about     an   employee’s     age      may    be

direct evidence of age discrimination, provided they concern the

employee’s age and sufficiently demonstrate that the employer’s

age-related animus affected the employment decision at issue.

See Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289,

300 (4th Cir. 2010) (noting that “in the absence of a clear

nexus    [between    an    employer’s          derogatory    comments      and]       the

employment decision in question, the materiality of stray or

isolated remarks is substantially reduced”); Hill, 354 F.3d at

288-89 (requiring that ADEA plaintiffs prove the person acting

                                          18
pursuant    to    discriminatory         animus       was     “the    one      principally

responsible for, or the actual decisionmaker behind, the action”

(internal    quotation         marks        omitted));      Dockins       v.     Benchmark

Commc’ns,   176    F.3d       745,    751     (4th     Cir.    1999)      (finding         ADEA

plaintiff met burden to “present affirmative evidence of age-

based animus” by offering “his testimony regarding the comments

relating    to    his    age”        made     by     decisionmaker        for      employer

(internal quotation marks omitted)). 6

            We have not expressly adopted an analytical framework

for determining if derogatory comments are direct evidence of

actionable age discrimination, but the Fifth Circuit has created

a   four-part    test    for    this        purpose.        See   Jackson       v.    Cal-W.

Packaging Corp., 602 F.3d 374, 380 (5th Cir. 2010).                                Comments

must be “1) related to the protected class of persons of which

the   plaintiff     is    a    member;        2)     proximate       in   time       to     the

complained-of      adverse      employment           decision;       3)     made      by    an

individual with authority over the employment decision at issue;

and 4) related to the employment decision at issue.”                            Id.        This

test is consistent with our precedent, and we are content to

adopt it here.


      6
       See also McCray v. Pee Dee Reg’l Transp. Auth., 263 F.
App’x 301, 306 (4th Cir. 2008) (“While isolated statements can
constitute direct evidence of discrimination, the statements
must be contemporaneous to the adverse employment action.”).



                                             19
            As      for     circumstantial         evidence       of    intentional

discrimination,       the     Supreme    Court      has     concluded         that   an

employer’s    false       explanation   about      the     circumstances       of    the

plaintiff’s       termination,     accompanied        by     evidence     that       the

employer    acted    with    an   illicit     motive,      may    circumstantially

prove    discriminatory       intent.        See   Reeves,       530   U.S.    at    147

(discussing the probative value of evidence that an employer’s

stated reason is pretext).

                                        ii.

            ADEA plaintiffs face a high causation burden: in order

to prevail, an ADEA plaintiff must prove that discrimination was

“the but-for cause” of the adverse employment action. 7                         Gross,

129 S. Ct. at 2351 (emphasis supplied) (internal quotation marks

omitted).        “[T]he ordinary meaning of the ADEA’s requirement

that an employer took adverse action because of age is that age

was the reason that the employer decided to act.”                       Id. at 2350



     7
       This burden differs greatly from that applied to so-called
mixed-motive claims pursuant to Title VII, which allow a
plaintiff to avoid summary judgment “when [the] employee alleges
that he suffered an adverse employment action because of both
permissible and impermissible considerations.”   Gross, 557 U.S.
at 171; see 42 U.S.C. § 2000e-2(m); see, e.g., Pitrolo v. Cnty.
of Buncombe, N.C., No. 12-2375, 2014 WL 5315362, at *6 (4th Cir.
Oct. 20, 2014) (holding that plaintiffs who prevail on mixed-
motive Title VII claims are entitled to seek declaratory
relief).




                                        20
(emphasis          supplied)          (internal           quotation       marks      omitted).

According to Gross v. FBL Financial Services, to show “a but-for

causal    relationship”               for    ADEA      purposes     the     plaintiff           must

present      evidence      that        discriminatory        animus       was   a   “necessary

logical condition” for the adverse employment action and that

the   employer        did        not        act   “because”        of     other     legitimate

motivations        for     the    action.           Id.     (internal      quotation          marks

omitted).

              We    agree       with        the   majority     of       circuits    that       have

considered      the       issue       and     concluded      that       Gross   elevated        the

burden of proof many courts applied to ADEA claims.                                 See, e.g.,

Leal v. McHugh, 731 F.3d 405, 411 (5th Cir. 2013) (noting “the

‘but-for’      standard          of     proof       [developed      in     Gross]        is    more

demanding      than       the     ‘motivating            factor’    standard        of        proof”

applied to Title VII cases); Sims v. MVM, Inc., 704 F.3d 1327,

1336 (11th Cir. 2013) (“[T]he ADEA requires more than what must

ordinarily           be         proven            under       an         analogous            Title

VII . . . action.”).              But cf. Jones v. Okla. City Pub. Schs.,

617   F.3d    1273,       1277-78       (10th      Cir.    2010)    (recalling       that       the

“Tenth Circuit has long held that a plaintiff must prove but-for

causation”     to     prevail         on     an   ADEA    claim,    and     concluding         that

“Gross does not disturb [this] precedent by placing a heightened

evidentiary requirement on ADEA plaintiffs to prove that age was

the sole cause of the adverse employment action”).

                                                  21
              But, pursuant to Gross, for an event to be the “but-

for    cause,”      it     need   not   be   the    sole     cause    of    the    adverse

employment action.            See Leal, 731 F.3d at 415 (concluding “the

district court misread Gross, since but-for cause does not mean

sole       cause”     (internal         quotation     marks        omitted)).             Age

discrimination cases often present more than one reason for an

employer     to     take    adverse     action     against    an     employee,      but   an

employee need not refute each negative mark on his record or

every possible legitimate ground for the employment decision to

avoid summary judgment.             Rather, according to Gross, to prevail

on summary judgment the employee must only demonstrate, age-

related considerations aside, that under the circumstances these

other nondisciminatory grounds did not animate the employer to

take the adverse employment action.                   See Gross, 129 S. Ct. at

2350 (indicating that an employer acts “because of” age when

“the employee’s protected trait actually played a role in the

employer’s        decisionmaking         process     and     had     a     determinative

influence      on    the     outcome”     (emphasis    omitted)          (quoting    Hazen

Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)). 8                                In other


       8
       We join at least five circuits that have adopted this view
of Gross. See Scheick v. Tecumseh, 766 F.3d 523, 532 (6th Cir.
2014)   (holding    that   “notwithstanding   the   evidence   of
dissatisfaction with [Appellant’s job] performance and the
concurrent need to respond to the budget crisis” a reasonable
juror could find that Appellant’s “age was the but-for cause of
[his employer’s] decision not to renew the contract for his
(Continued)
                                             22
words, if there existed other legitimate motivations for the

decision, the employee must offer sufficient evidence to show

these factors were not “the reason” for the employer’s decision. 9

Id.   at   176   (internal   quotation    marks   omitted).    So    “direct

evidence    of   age   discrimination[,   such    as   derogatory   comments

alone,] may not always be sufficient to create a question of

fact for trial in the ADEA context.”          Scheick, 766 F.3d at 532.

When evaluating cases like this on summary judgment, our focus


services”); Leal, 731 F.3d at 414 (concluding that a “but-for
cause” for ADEA purposes is one “without which the event could
not have occurred,” and that even despite employer’s proffer of
multiple alleged bases for the adverse employment action,
Appellant   adequately   pleaded  but-for    causation   (internal
quotations marks omitted)); Sims, 704 F.3d at 1332; Shelly v.
Green, 666 F.3d 599, 622 (9th Cir. 2012) (affirming order of
summary judgment on ADEA claim because, in light of Gross,
Appellant’s evidence could not “show that the [employer’s]
decision   is  unexplainable   on  any   basis   other  than   age
discrimination”); Jones, 617 F.3d at 1277-78 (“[A]n employer may
be held liable under the ADEA if other factors contributed to
its taking an adverse action, as long as age was the factor that
made a difference.” (internal quotation marks omitted)).

      9
        Appellant argues he only need prove “‘ that age was
[a] “but for” cause of the employer’s adverse decision,’” because
in its recent discussion of Gross, the Supreme Court “submitted a
bracketed ‘[a]’ for the word ‘the’ preceding the expression ‘but
for cause.’” Appellant’s Br. 48 (alteration in original)
(quoting Burrage v. United States, 134 S. Ct. 881, 889 (2014)).
Burrage v. United States had nothing to do with the ADEA.    That
case interpreted the term “results from” as it appears in the
Controlled Substances Act.    See Burrage, 134 S. Ct. at 885.
Although we are unsure how to regard the Supreme Court’s
alteration of this excerpt from Gross, we suspect that if the
Court desired to make a radical change to recent precedent, it
would not do so quietly in a case having nothing to do with
employment discrimination.


                                    23
is on whether the plaintiff has provided sufficient evidence to

cast doubt upon the employer’s stated reasons for the employment

action,   such    that      a    reasonable     juror   may    find      age   was    the

determinative factor in that decision.

                                           b.

            Here,     the       district   court   concluded       that    Reynolds’s

comments, as alleged by Appellant, “do appear to be reflecting a

discriminatory        attitude,       and . . . appear        to      bear       on   the

decision to terminate [Appellant].”                 Arthur v. Pet Dairy, No.

6:11-cv-00042, 2013 WL 6073465, at *3 (W.D. Va. Nov. 19, 2013).

The district court nonetheless held that Appellant’s direct and

circumstantial evidence could not save his claim from summary

judgment because Reynolds’s disparaging comments “were not made

contemporaneous to the adverse employment action.”                       Id.     This is

incorrect.       In   his       deposition,     Appellant     stated      that    around

Thanksgiving in November 2009, Reynolds repeated his view that

Appellant was “too old to do [his] job” and “need[ed] to go

ahead and hang it up . . . .”                   J.A. at 983-84.           Appellant’s

coworker,    Judith      Hickman      also      corroborated       his    claim       that

Reynolds had made ageist comments of this sort in the past. 10


     10
        The district court dismissed Hickman’s testimony as a
coworker’s opinion “‘as to the quality of plaintiff’s work [that
is] . . . close to irrelevant.’”   J.A. 1098 (quoting DeJarnette
v. Corning, Inc., 133 F.3d 293, 299 (4th Cir. 1998)).        The
district court misapplied this case. In DeJarnette v. Corning,
(Continued)
                                           24
Appellant     offers       garden       variety     direct      evidence         of     age

discrimination          that     sufficiently       ties       Reynolds’s        alleged

discriminatory intent to the relevant time period.

             Although we depart from the district court on this

point, we nonetheless affirm its conclusion because Appellant

does not contest record evidence demonstrating that his employer

terminated him for other lawful reasons.                       Appellee argues it

terminated        Appellant      because     he     had    a      long     history      of

performance issues and because its largest customer threatened

to leave unless Appellant was removed from the route.                            Indeed,

the record demonstrates Appellee believed the School Division

would “pull . . . the contract if [Appellant] continued to be

their service person representing [Appellee].”                     J.A. 560.          While

“the perception of the decisionmaker” is the relevant issue in

determining       whether       an    employee    was     terminated       for    lawful

reasons    other    than       age,   the   Smith   Memorandum       and    Appellee’s

reaction     to    it    are    powerful     evidence      that    Appellee       had    a




Inc., the appellant attempted to show her employer’s reasons for
terminating her were pretext by offering her coworkers’
testimony   that  she   “was  an   average   or  good  employee.”
DeJarnette, 133 F.3d at 299.         We rejected the coworkers’
opinions about DeJarnette’s performance, because “it is the
perception of the decision maker which is relevant.”          Id.
(internal quotation marks omitted).    But Hickman’s testimony is
indeed relevant because it corroborates Appellant’s claim that
Reynolds made derogatory statements about his age.



                                            25
legitimate       motive      in       terminating            Appellant.               Holland        v.

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

              Further, even assuming that Reynolds’s alleged attempt

to    cover   his     role      in    Appellant’s        termination            by     denying       he

procured      the    Smith      Memorandum         is    circumstantial              evidence        of

discriminatory intent, see Reeves, 530 U.S. at 147, Appellee

still must prevail as a matter of law.                              Faced with Appellee’s

evidence,      Appellant        offered       nothing         to    show       that     the       Smith

Memorandum,         and   his     past      work     performance              issues,       did     not

independently form an animating reason for Appellee’s decision

to    terminate      him.        Indeed,      Appellant            admitted          that    he    was

criticized both verbally and in writing on numerous occasions

over    his    seven-year            tenure     at      Pet    Dairy          because       of     his

substandard performance.                Consequently, viewing the evidence in

a    light    most    favorable        to     Appellant,           the    evidence          at    best

demonstrates that his “age was simply a motivating factor” in

Appellee’s      decision,        not     “the      but-for         cause”       of    Appellant’s

termination.         Gross, 129 S. Ct. at 2349, 2351.

              Appellant      also       provides        us    with       another        reason      to

affirm summary judgment in this case: he testified that Appellee

had    another       legitimate         business         reason          to    terminate          him.

According to Appellant, upper management instructed Reynolds to

increase the sales of three other sales routes, and “[t]here was

no other way he could do that” but to eliminate his position and

                                               26
distribute his route among others.                J.A. 417.         He also admitted

that    this     business    decision      was    “one    of   the        reasons      why”

Appellee    terminated       him,    although     he   insists      it    was    not    the

“primary reason.”           Id. at 981, 982.           But whether a legitimate

business decision was the “primary” reason for his termination

is not material; Appellant’s burden is to show his age was the

but-for cause of the adverse employment action -- a necessary

logical condition for his termination.                 See Gross, 192 S. Ct. at

2351.      And    here,   Appellant’s       own    testimony     demonstrates           his

employer had other legitimate business motives to terminate him.

            Therefore,       viewing      the     evidence     in     a    light       most

favorable to Appellant, we hold that no reasonable jury could

find    that      Appellant         has   offered        sufficient         direct       or

circumstantial evidence that his age was the but-for cause of

this adverse employment action.

                                          III.

            For the foregoing reasons, the district court’s order

of summary judgment is

                                                                                AFFIRMED.




                                           27
