PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JAMES O'CONNOR,
Plaintiff-Appellant,

v.

CONSOLIDATED COIN CATERERS
                                                                      No. 94-1214
CORPORATION,
Defendant-Appellee.

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Amicus Curiae.

On Remand from the United States Supreme Court.
(S. Ct. No. 95-354)

Decided on Remand: June 5, 1996

Before HAMILTON and LUTTIG, Circuit Judges, and BUTZNER,
Senior Circuit Judge.

_________________________________________________________________

Affirmed by published opinion. Judge Hamilton wrote the majority
opinion, in which Judge Luttig joined. Senior Judge Butzner wrote a
dissenting opinion.

_________________________________________________________________

COUNSEL

George Daly, Sharon Samek, GEORGE DALY, P.A., Charlotte,
North Carolina, for Appellant. James Bernard Spears, Jr., Jacob J.
Modla, HAYNSWORTH, BALDWIN, JOHNSON & GREAVES,
P.A., Charlotte, North Carolina, for Appellee. James R. Neely, Jr.,
Deputy General Counsel, Gwendolyn Young Reams, Associate Gen-
eral Counsel, Lorraine C. Davis, Assistant General Counsel, Barba-
ra L. Sloan, EQUAL EMPLOYMENT OPPORTUNITY COMMIS-
SION, Washington, D.C., for Amicus Curiae.

_________________________________________________________________

OPINION

HAMILTON, Circuit Judge:

This age discrimination in employment case is before us on remand
from the United States Supreme Court. See O'Connor v. Consolidated
Coin Caterers Corp., No. 95-354, 1996 WL 142564 (U.S. Apr. 1,
1996). The Court granted certiorari in part in O'Connor v. Consoli-
dated Coin Caterers Corp., 56 F.3d 542 (4th Cir. 1995) (O'Connor
I), see O'Connor v. Consolidated Coin Caterers Corp., 116 S. Ct. 472
(1995), to decide the following question: whether, assuming Title
VII's McDonnell Douglas framework is applicable to claims under
the Age Discrimination in Employment Act (ADEA), 29 U.S.C.A.
§§ 621-634 (West 1985 & Supp. 1994), an ADEA plaintiff need show
that he was replaced by someone outside the age group protected by
the ADEA in order to establish a prima facie case in a non-reduction-
in-force context. Concluding that a plaintiff need not, the Court
reversed our holding to the contrary. The Court then remanded the
case to us for further proceedings consistent with its opinion. On
remand, we have considered whether James O'Connor (O'Connor),
now relieved of the burden of establishing that he was replaced by
someone outside the protected class (i.e. under forty years of age) in
order to establish a prima facie case under the McDonnell Douglas
burden-shifting proof scheme, has proffered sufficient evidence to
withstand Consolidated Coin Caterers Corporation's (Consolidated
Coin) motion for summary judgment. We conclude that he has not.
Accordingly, we affirm.

I.

The facts of this case and our standard of review are ably set forth
in O'Connor I and, therefore, do not warrant repeating here. See
O'Connor I, 56 F.3d at 543-545. We, thus, move directly to analyzing
whether, in light of the Court's opinion, O'Connor's proffered evi-

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dence of age discrimination can withstand Consolidated Coin's
motion for summary judgment. Our analysis considers this question
under the burden-shifting proof scheme articulated in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), in the non-reduction-
in-force context and the reduction-in-force context, and under ordi-
nary standards of proof by direct and indirect evidence.

Under the burden-shifting proof scheme, once a plaintiff estab-
lishes a prima facie case of discrimination, a presumption of discrimi-
nation arises and the burden of production shifts to the employer to
articulate a legitimate, nondiscriminatory reason for the challenged
employment decision. See St. Mary's Honor Center v. Hicks, 113 S.
Ct. 2742, 2747 (1993). If the employer carries this burden of produc-
tion, the presumption "drops out of the picture," id. at 2749, and the
plaintiff bears the ultimate burden of proving both that the employer's
asserted reason was pretextual and that the plaintiff's age was the true
reason for the challenged employment decision. Id. at 2752.

We first hold that O'Connor cannot prevail on his ADEA claim in
the non-reduction-in-force context under the burden-shifting proof
scheme articulated for Title VII cases in McDonnell Douglas.
O'Connor fails to meet the third element of the prima facie case--at
the time of discharge, the plaintiff was performing his job at a level
that met his employer's legitimate expectations. See Mitchell v. Data
General Corp., 12 F.3d 1310, 1315 (4th Cir. 1993). In reaching this
conclusion, we rely on our express reasoning in O'Connor I for our
conclusion there that O'Connor failed to meet the nearly identical ele-
ment in the reduction-in-force context. In O'Connor I, after discus-
sion of the evidence, we concluded that O'Connor failed to meet the
third element of the prima facie case under the McDonnell Douglas
proof scheme in the reduction-in-force context--the plaintiff was per-
forming at a level substantially equivalent to the lowest level of those
of the group retained. O'Connor I, 56 F.3d at 547. There, we recog-
nized that the third element in the reduction-in-force context
demanded that O'Connor proffer essentially the same evidence neces-
sary to satisfy the third element of the prima face case in the non-
reduction-in-force context. See id.

Next, we hold that O'Connor cannot prevail on his ADEA claim
in the reduction-in-force context under the burden-shifting proof

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scheme articulated for Title VII cases in McDonnell Douglas because,
for the reasons stated in O'Connor I, he fails to meet the third element
necessary to establish a prima facie case. See Mitchell, 12 F.3d at
1315.

Even assuming arguendo that O'Connor established a prima facie
case of age discrimination, after reviewing the evidence, we conclude
that he did not meet his ultimate burden of proving that Consolidated
Coin's asserted reason was pretextual and that his age was the true
reason for its challenged employment decision. In O'Connor I, we
explained the infirmities with respect to O'Connor's direct evidence
in section III.A. and his indirect evidence in section II.B. See id at
546-50. The same reasoning applies here with equal force.

Finally, for the reasons stated in O'Connor I , we hold that
O'Connor cannot survive Consolidated Coin's motion for summary
judgment under his proffer of direct and indirect evidence. See id.

II.

In conclusion, we affirm the district court's grant of summary judg-
ment in favor of Consolidated Coin.

AFFIRMED

BUTZNER, Senior Circuit Judge, dissenting:

After the Supreme Court reversed and remanded this case, both
parties requested leave to file supplemental briefs and to present oral
argument. Their requests, I believe, are reasonable. For reasons stated
in Part II of my separate opinion, see O'Connor v. Consolidated Coin
Caterers Corp., 56 F.3d 543, 551 (Butzner, J., concurring in part and
dissenting in part), I dissent from the disposition of this case by sum-
mary judgment. The evidence recounted in Part II of my separate
opinion creates a genuine issue of material fact that should be decided
by trial.

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