UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LAVERA ELLISON,
Plaintiff-Appellant,

v.
                                                                       No. 97-1623
FIRST CITIZENS BANK & TRUST
COMPANY,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of North Carolina, at New Bern.
Malcolm J. Howard, District Judge.
(CA-96-58-4-H)

Submitted: April 14, 1998

Decided: May 29, 1998

Before HAMILTON and MOTZ, Circuit Judges, and
HALL, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Ralph T. Bryant, Jr., RICE, BRYANT & MACK, P.A., Havelock,
North Carolina, for Appellant. S. McKinley Gray, III, William Joseph
Austin, Jr., WARD & SMITH, P.A., New Bern, North Carolina, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Lavera Ellison appeals the district court's order granting summary
judgment in favor of her employer, First Citizens Bank and Trust
Company ("the Bank"). Ellison alleged employment discrimination
based upon her race1 and age.2 Finding no reversible error, weaffirm.

Ellison, a black female born in December 1947, has held a number
of positions with the Bank since her employment began in 1972. With
a high-school diploma, she started as a bookkeeper at the Beaufort
Main branch ("Main Branch"). In 1980, she became a part-time teller
at the East Beaufort branch ("East Branch"). By January 1991, Ellison
had been promoted to a full-time Teller I; by October 1992, she was
a Teller II. The Bank's area vice-president, Bruce Caldwell, acknowl-
edged that from 1992 to 1994, Ellison "essentially managed" the East
Branch. Throughout this period, Ellison consistently received positive
evaluations as she handled a variety of banking duties, which
included supervising tellers, opening new accounts, collecting delin-
quent accounts, and conducting staff meetings. As a result, in January
1994, Ellison was promoted to Customer Service Representative at
the Main Branch. In addition to her previous duties, Ellison also
began processing loan requests.

The position of Branch Manager II became open at the East Branch
when the Bank decided to make the East Branch a full-service facil-
ity, with the authority to make, underwrite and close loans. Caldwell
asserted that the preferred candidate would possess business develop-
ment skills along with an understanding of the lending process. Elli-
son was one of two applicants for the position. Caldwell chose the
other applicant, Kent Denton, who was a white male under the age of
_________________________________________________________________
1 See 42 U.S.C. § 1981 (1994).
2 See 29 U.S.C. §§ 621-634 (1994).

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forty, for the position. On appeal, Ellison asserts that because she was
equally qualified for the position and because the Bank has engaged
in a practice and pattern of hiring only white persons for managerial
positions, the Bank's failure to promote her was based on her age and
her race and amounted to disparate treatment that had a disparate
impact.

We review the district court's grant of summary judgment de novo.3
Summary judgment is appropriate when there are no genuine issues
of material fact and the moving party is entitled to a judgment as a
matter of law.4 We review the facts and all reasonable inferences
drawn therefrom in the light most favorable to the nonmoving party.5
If there is a complete failure of proof of an essential element of the
non-moving party's case, the remaining facts are rendered immaterial.6

To establish a claim of age discrimination, a plaintiff must prove,
with reasonable probability, that her age was a determining factor in
the adverse employment decision.7 The burden of proving an age or
race discrimination claim may be satisfied by direct evidence or by
circumstantial evidence. Without direct evidence, a plaintiff can
establish a prima facie case of unlawful discrimination with circum-
stantial evidence by showing that: (1) she was a member of a pro-
tected group; (2) she applied for the position in question; (3) she was
qualified for the position; and, (4) she was rejected for the position
in favor of someone not a member of the protected group under cir-
cumstances giving rise to an inference of unlawful discrimination.8
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3 See Henson v. Liggett Group, Inc., 61 F.3d 270, 274 (4th Cir. 1995).
4 See Fed. R. Civ. P. 56(c).

5 See Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th
Cir. 1985).

6 See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
7 See Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 238 (4th Cir.
1982).

8 See Alvarado v. Board of Trustees of Montgomery Community
College, 928 F.2d 118, 121 (4th Cir. 1991) (utilizing a modified version
of the test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973)).

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If the plaintiff is able to set forth a prima facie case of discrimina-
tion, the burden then shifts to the defendant to articulate a legitimate,
nondiscriminatory explanation for the adverse employment decision.9
If the defendant meets this burden, then the presumption of discrimi-
nation drops from the case, leaving the plaintiff with the ultimate bur-
den of proving that the defendant intentionally discriminated against
her.10 In meeting this burden, the plaintiff may offer proof that the
defendant's explanation of the adverse employment decision was a
mere pretext.11

Under these shifting burdens of proof and production, the district
court found that Ellison established a prima facie case of both race
and age discrimination. It also found that the Bank articulated reason-
able, non-discriminatory reasons for refusing to promote Ellison. The
court cited Denton's outside sales experience and his broader finan-
cial background, including his four-year business administration
degree with a concentration in banking and finance, as support for the
Bank's promotion decision. The court also concluded that Ellison
failed to demonstrate that the Bank's proffered reasons were pretex-
tual. We agree.

Ellison presented no evidence contradicting the Bank's legitimate,
non-discriminatory reason for its employment decision. Although
Ellison may have had more seniority as an employee of the Bank and
experience was not a requisite for the managerial position, Ellison
does not show a causal connection between the employment decision
and her race or age.12 Thus, she has not carried her ultimate burden
of persuasion as to her claims of age and race discrimination.
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9 See Mitchell v. Data Gen. Corp. , 12 F.3d 1310, 1314-15 (4th Cir.
1993) (acknowledging that the burden shifting scheme of McDonnell
Douglas applies equally to Title VII cases involving claims of age or
race discrimination).
10 See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993).
11 See Mitchell, 12 F.3d at 1315.
12 See Autry v. North Carolina Dep't of Human Resources, 820 F.2d
1384, 1386 (4th Cir. 1987) (holding that a claimant must show that he
was not promoted because of his race, not just that he was a member of
the black race and he was not promoted).

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Accordingly, we affirm the district court's grant of summary judg-
ment in favor of the Bank. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.

AFFIRMED

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