UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOHN O. BRICE,
Plaintiff-Appellant,

v.                                                                    No. 00-1068

JOULE INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, Chief District Judge.
(CA-98-3247-JFM)

Submitted: July 31, 2000

Decided: August 29, 2000

Before WIDENER and WILLIAMS, Circuit Judges,
and HAMILTON, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Lawrence E. Dube, Jr., DUBE & GOODGAL, P.C., Baltimore, Mary-
land, for Appellant. James V. McFaul, LAW OFFICE OF JAMES V.
MCFAUL, P.A., Towson, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM

John O. Brice appeals the district court's order granting summary
judgment to his former employer and dismissing his employment dis-
crimination action. We affirm.

Brice was hired by Joule, Inc., a temporary staffing agency, on
November 27, 1995. On December 11, 1995, Brice was laid off, as
the temporary job for which he was hired was completed. There was
no further contact between Joule and Brice until Joule contacted Brice
in September of 1996, and brought him back to work as a spray
painter. Joule thereafter laid Brice off for unsatisfactory performance.

A short time later, Joule recalled Brice to work as a trade assistant
at a job site for Chesco Company. On November 20, 1996, Jere Hunt,
the site foreman, complained that it took Brice too long to complete
some work and asked, "John, how old are you?" After this incident,
Hunt reported to Kim Street, Joule's senior manager in Baltimore,
that Brice was not working up to speed and had been disrespectful
and insubordinate.

As a result of the dispute between Brice and Hunt, Street trans-
ferred Brice to another Chesco site. Brice spoke to Street, protesting
the transfer and complaining that he was being discriminated against
on the bases of his race and age.* A few days later, Brice complained
to Street again, via telephone. However, Street refused to transfer
Brice back to the original Chesco site. Brice continued to work at the
second Chesco site until he was laid off on December 9, 1996, at
Chesco's request.

On December 10, 1996, Street telephoned Brice and offered him
a one- or two-day job as a trade assistant at a bakery. Brice declined
the job in hopes of returning to Chesco. During the conversation,
Brice reasserted his allegations of discrimination. Brice called Street
for a final time on December 16, 1996, to obtain the contact number
_________________________________________________________________

*At the time, Brice, an African American, was 59 years old.

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for his labor union and to again discuss his allegations of discrimina-
tion. Since this final conversation, Joule has never offered Brice any
employment opportunities.

Brice filed the instant suit in district court, alleging that Joule dis-
criminated against him based on his race and age when Street trans-
ferred him to a different job site and when Joule failed to rehire him.
Brice's complaint also alleged that Joule retaliated against him for his
complaints of discrimination by refusing to rehire him. The district
court entered summary judgment for Joule, finding no evidence of
discrimination based on race, Brice's transfer was not an adverse
employment action, and Brice's series of telephone calls to Street
were not protected activities.

This Court reviews de novo a district court's order granting sum-
mary judgment and views the facts in the light most favorable to the
nonmoving party. See Scheduled Airlines Traffic Offices, Inc. v.
Objective Inc., 180 F.3d 583, 590-91 (4th Cir. 1999). Summary judg-
ment is appropriate where no genuine issue of material fact exists and
the moving party is entitled to judgment as a matter of law. See Fed.
R. Civ. P. 56(c). Once the moving party discharges its burden by
showing that there is an absence of evidence to support the nonmov-
ing party's case, see Celotex Corp. v. Catrett , 477 U.S. 317, 325
(1986), the nonmoving party must come forward with specific facts
showing that there is a genuine issue for trial. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). Sum-
mary judgment will be granted unless a reasonable jury could return
a verdict for the nonmoving party on the evidence presented. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

In the absence of direct evidence of discrimination, a plaintiff must
rely on the indirect, burden-shifting method of proof established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under
McDonnell Douglas, the plaintiff has the initial burden of establishing
a prima facie case of discrimination. See id. at 802. Establishing a
prima facie case gives rise to an inference of discrimination, and the
burden then shifts to the defendant to provide a legitimate, non-
discriminatory reason for its action. See id. at 802-04. The defen-
dant's burden is one of production, not persuasion. See Henson v. Lig-
gett Group, Inc., 61 F.3d 270, 274-75 (4th Cir. 1995). If the defendant

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provides evidence of a non-discriminatory reason for its action, the
plaintiff, who bears the ultimate burden of persuasion, must show, by
a preponderance of the evidence, that the proffered reason was a pre-
text for discrimination. See Reeves v. Sanderson Plumbing Prods.
Inc., ___ U.S. ___, 120 S. Ct. 2097, 2108 (2000); Henson, 61 F.3d at
275.

Brice's first claim is that Joule discriminated against him based on
his age when it transferred him to a different job site. To establish a
prima facie case of age discrimination, a plaintiff must establish that:
(1) he was a member of the protected class; (2) he suffered an adverse
employment action; (3) at the time of the adverse employment action,
he was performing his job at a level that met his employer's legiti-
mate expectations; and (4) that he was replaced by a substantially
younger individual. See O'Connor v. Consolidated Coin Caterers
Corp., 517 U.S. 308, 310-11 (1996). Brice fails to show that he was
meeting his employer's legitimate expectations before he was trans-
ferred. Although Brice argues that his performance was satisfactory
and offers the testimony of a co-worker as proof, it is the perception
of the decision-maker, not the opinions of co-workers, that is relevant.
See Tinsley v. First Union Nat'l Bank, 155 F.3d 435, 444 (4th Cir.
1998).

Furthermore, Joule presents legitimate, non-discriminatory reasons
for Brice's transfer, including the prevention of further confrontations
between Hunt and Brice and filling Chesco's request for another
worker at the second job site. Brice offers no evidence that these rea-
sons were pretextual. Because Brice fails to show that he was meeting
his employer's legitimate expectations or that his employer's legiti-
mate reasons for the transfer were pretextual, we decline to decide
whether Brice's transfer to an employment site with potentially fewer
overtime opportunities was an adverse employment action.

Brice's second claim is that Joule discriminated against him based
on his age when it failed to recall him from lay-off status. Assuming
without deciding that the failure of a temporary staffing agency to
recall an employee from lay-off is an adverse employment action,
Joule offers several reasons for its failure to recall Brice, including his
prior unsatisfactory performance as spray painter and at the first
Chesco site.

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Upon the presentation of legitimate non-discriminatory reasons, the
burden shifts back to Brice to show that the reasons are pretextual.
We held in Proud v. Stone, 945 F.2d 796 (4th Cir. 1991), that "where
the hirer and the firer are the same individual and the termination of
employment occurs within a relatively short time span following the
hiring, a strong inference exists that discrimination was not a deter-
mining factor for the adverse action." Id. at 797. In this case, the
allegedly adverse action occurred within a few months of Brice's hir-
ing. Brice argues that Proud does not apply because there is a factual
dispute as to whether it was Street or another Joule representative
who re-hired him in September of 1996.

Brice testified at his deposition that Street recalled him from lay-
off to work as a spray painter and that Street also hired him for the
Chesco job. His later affidavit states that it was actually another Joule
representative, Tom Major, who hired him for the spray painting job.
The affidavit did not, however, contradict his deposition testimony
that Street recalled him from lay-off after the spray painting job to
take the Chesco job. A plaintiff may not create an issue of fact by
submitting an affidavit that is inconsistent with prior deposition testi-
mony. See Rohrbough v. Wyeth Labs., Inc., 916 F.2d 970, 975 (4th
Cir. 1990). Furthermore, because Street took Brice off lay-off status
and hired him for the Chesco job, she was the hirer within the mean-
ing of Proud. See Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1318
(4th Cir. 1993) (holding that Proud inference applies where supervi-
sor does not initially hire employee but laterally transfers employee
to new position and shortly thereafter terminates employee). Brice
offers no "egregious facts" as required by Proud that could otherwise
demonstrate age discrimination or pretext. See Proud, 945 F.2d at
798.

Brice's final claim is that Joule failed to recall him from lay-off
status in retaliation for his complaints of discrimination. To establish
a prima facie case of retaliation, Brice must show that: (1) he engaged
in protected activity; (2) his employer took adverse action against
him; and (3) a sufficient causal connection existed between his pro-
tected activity and his employer's adverse action. See McNairn v. Sul-
livan, 929 F.2d 974, 980 (4th Cir. 1991). The ADEA provides that an
employer may not discriminate against an employee who has opposed
unlawful discrimination or who has made a charge, testified, assisted,

                     5
or participated in any manner in an investigation, proceeding, or hear-
ing under the ADEA. See 29 U.S.C.A. § 623(d) (West 1994 & Supp.
2000). "Opposition activity encompasses utilizing informal grievance
procedures as well as staging informal protests and voicing one's
opinions in order to bring attention to an employer's discriminatory
activities." Laughlin v. Metropolitan Wash. Airports Auth., 149 F.3d
253, 259 (4th Cir. 1998) (interpreting identical clause in Title VII
actions). As long as an employee complains to his employer in an
orderly and nondisruptive manner, the employee's activities are enti-
tled to protection under § 704's opposition clause. See id. at 260.

Brice asserts that his conversations with Street were protected
activity because he complained about perceived discrimination in an
orderly and nondisruptive fashion. Joule disputes this, stating that
Brice's telephone calls were abusive and harassing. The tone and con-
tent of these phone calls are material facts in determining whether
Brice engaged in protected opposition activity. Because the facts are
in dispute, the district court erred in granting summary judgment on
the retaliation claims on this basis.

However, Joule offered several legitimate non-discriminatory rea-
sons for failing to recall Brice, including his prior unsatisfactory per-
formance as a spray painter and at the first Chesco site. Because this
reason, if believed by a jury, would justify Joule's failure to recall
Brice, Joule satisfied its burden, shifting the full burden of proof to
Brice to demonstrate, by a preponderance of the evidence, that this
proffered justification was in fact pretext for unlawful retaliation.

Although Brice contends that his work was satisfactory and offers
a co-worker's affidavit stating the same, Brice's perceptions and the
opinion of a co-worker are irrelevant. See Tinsley, 155 F.3d at 444.
Brice also fails to establish pretext by arguing that Street's records of
their conversations about the allegations of discrimination indicate
animosity toward Brice. Street's notes certainly reveal that she was
frustrated with Brice's continuing allegations. But despite four or five
such conversations, Street still offered Brice a job at Schmidt Baking
Company on December 10, 1996. Accordingly, we find that Brice
failed to carry his burden and this claim was properly dismissed on
summary judgment. See Cochran v. Morris, 73 F.3d 1310, 1315 (4th

                     6
Cir. 1996) (reviewing court may affirm for any reason appearing on
the record).

We find no reversible error and affirm the order 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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