                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-1206



DENNIS TAYLOR,

                                              Plaintiff - Appellant,

          versus


AMERISTEEL CORPORATION,

                                              Defendant - Appellee.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (CA-03-43)


Submitted:   October 24, 2005          Decided:     November 18, 2005


Before WILKINSON, MICHAEL, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


John J. Korzen, Kernersville, North Carolina, for Appellant. Gavin
S. Appleby, Jacqueline E. Kalk, R. Bradley Adams, LITTLER
MENDELSON, P.C., Atlanta, Georgia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Dennis       Taylor    appeals       the    district        court’s        order

dismissing his civil action alleging employment discrimination due

to   age   and    perceived       disability,      in        violation    of     the    Age

Discrimination       in     Employment      Act        and     the     Americans       with

Disabilities      Act.      We    have   reviewed       the    record     and    find    no

reversible error.          Accordingly, we affirm substantially for the

reasons stated by the district court.                   See Taylor v. Ameristeel

Corp., No. CA-03-43 (W.D.N.C. Sept. 20, 2005).

            In September 2001, Taylor was hired by Ameristeel as a

cutter/stacker in the caster section of the melt shop.                           At that

time, Taylor was forty-seven years old.                  Soon after being hired,

Taylor applied for and received a transfer to a vacant maintenance

mechanic position.          While at this position, Taylor’s chain of

command included his direct supervisor, Joe Wright, and the general

supervisor of the maintenance department, Charlie Blubaugh.

            Prior to his first performance evaluation, Taylor stated

that his employment at Ameristeel was relatively problem free.                           On

February    12,    2002,      Taylor      received       his     first     performance

evaluation.      His overall performance was rated “fair,” and it was

determined that “significant improvement” was needed in such areas

as “mechanical skills” and “problem identification.”                      Dissatisfied

with his rating, Taylor initiated grievance procedures in which he

alleged    that      his    performance      evaluation              contained     false,


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undocumented information.         After review, it was concluded that the

performance evaluation was “a fair and accurate assessment” which

would not be overturned.

            After Taylor’s first performance evaluation, Blubaugh

informed Taylor that he would no longer be assigned tasks involving

elevated heights due to the unsafe manner in which he walked.

Though    Taylor   was    told   that     this   restriction        was   for    safety

concerns,    Taylor      believed    it     to   be   a    result    of   his     first

performance    evaluation.          Next,    Taylor       alleged   that,   at     some

unidentified point in time, Wright and Blubaugh began harassing

him. Taylor stated that his supervisors frequently referred to him

as “old and slow” and stated that he “couldn’t do the job very

well” and could not “keep up with the[] other new employees.”

            On April 26, 2002, Taylor received his second performance

evaluation, in which he was once again given an overall rating of

“fair.”    The evaluation stated that Taylor needed to “continue to

work on speed and efficiency[, as well as,] increas[ing] knowledge

of equipment and overall operations.”                 It also noted that Taylor

had shown improvement since his prior evaluation. During a meeting

to discuss the second performance evaluation, Wright informed

Taylor that unless he improved, his employment could be terminated.

            On May 24, 2002, Taylor filed his first complaint with

the Equal Employment Opportunity Commission (“EEOC”).                           In this

complaint, Taylor alleged that he was discriminated against because


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of his age and perceived disability.             Specifically, he stated that

he was “told [he] could no longer perform a function of [his] job”

because he “walked funny.”            Taylor further alleged that he was

given     two   poor    work      evaluations     “allegedly   due       to    work

performance.”       However, Taylor categorically denied that his work

performance was poor.

            On May 31, 2002, Taylor received his third performance

evaluation.        In this evaluation, Taylor once again received an

overall    “fair”    rating.       This   evaluation   contained     a   list    of

specific examples used in the determination of his performance

characteristics.           Furthermore,    the    evaluation   contained        the

following statement:

     This review will allow Dennis [Taylor] 30 days to bring
     his performance up to a satisfactory level. If it is
     concluded anytime within the next 30 days that he is not
     making satisfactory efforts for improvement or if he is
     unable to meet expectations, it will most likely result
     in his termination with Ameristeel.

Subsequently, Taylor filed his second grievance, in which he once

again     stated    that    his    performance      review   contained        false

statements.     After review, it was once again recommended that the

evaluation stand “as is.”

            A fourth performance evaluation was prepared by Wright on

June 19, 2002.      In this evaluation, Wright recommended that Taylor

be “terminated from Ameristeel for poor performance.”                Though the

evaluation was prepared, it was not given to Taylor due to the

pending resolution of his second grievance.             In early July 2002, a

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meeting was held in which Wright’s recommendation that Taylor’s

employment be terminated was agreed upon.            As a result, on July 16,

2002, Taylor’s employment was terminated. On July 24, 2002, Taylor

filed his second EEOC complaint. In this complaint, Taylor alleged

that   Ameristeel     denied   him    incentive      pay,    gave    him     a    poor

evaluation,   and    ultimately      discharged     him     in    retaliation      for

engaging in a protected activity in violation of Title VII.

            On January 31, 2003, Taylor initiated litigation by

filing a complaint alleging employment discrimination.                 Ameristeel

filed a motion for summary judgment on January 16, 2004.                    Pursuant

to 28 U.S.C. § 636(b)(1)(B) (2000), the case was referred to a

magistrate judge for review and recommendation (“R&R”). Though the

magistrate recommended that summary judgment be granted on the

retaliatory discharge claim, he recommended that it be denied on

the ADEA and ADA claims.       Ameristeel filed objections to the R&R.

Taylor, who was represented by counsel, did not file any objections

regarding   the     recommended   grant       of   summary       judgment    on   his

retaliatory discharge claim.          On January 18, 2005, the district

court adopted the magistrate judge’s recommendation as to the

retaliatory discharge claim, but disagreed with the recommendation

on the ADEA and ADA claims.          Accordingly, judgment was entered on

January 20, 2005, granting summary judgment for Ameristeel on all

claims, and Taylor timely appealed.




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              On appeal, Taylor alleges the following: (1) that the

district court erred in its conclusion that the testimony of Morris

VanVleet was hearsay; (2) that the district court improperly

concluded that Taylor was not discriminated against on the basis of

age; (3) that the district court improperly concluded that Taylor

was not discriminated against on the basis of perceived disability;

and     (4)   that   the    magistrate   judge   plainly    erred   in    its

recommendation that summary judgment be granted for Ameristeel on

Taylor’s retaliation claim.

              We review a district court’s grant of summary judgment de

novo.    Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1167

(4th Cir. 1988).       Summary judgment is proper “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law.”          Fed. R. Civ. P. 56(c); see

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).              We construe

the evidence and draw all reasonable inferences in the light most

favorable to the non-movant.       See Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255 (1986).

              In his first claim, Taylor alleges that the district

court erred in its determination that the deposition testimony of

Morris    VanVleet,    an   individual   with    whom   Taylor   worked   for

approximately three weeks, was inadmissible hearsay.                VanVleet


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recounted that several co-workers made fun of the way Taylor

walked.     He     also   testified     that    Wright   and   Blubaugh   were

occasionally present while Taylor’s co-workers made fun of him and

did nothing to stop them.             VanVleet recalls that Wright and

Blubaugh had grins on their faces during these incidents.                  The

district   court    determined   that    VanVleet’s      testimony   consisted

primarily of inadmissible hearsay.            As “[e]vidence of this type is

neither admissible at trial nor supportive of an opposition to a

motion for summary judgment,” Greensboro Prof’l Fire Fighters

Ass’n v. Greensboro, 64 F.3d 962, 967 (4th Cir. 1995), see also

Fed. R. Civ. P. 56(e), the district court excluded the testimony.

           Taylor argues that VanVleet’s testimony was not hearsay

as it related to nonverbal conduct and was not offered to prove the

truth of the matter asserted.           Taylor states the testimony was

offered “to show that the grins were made by [Taylor’s] supervisors

in the first place, not that there was any true reason for making

fun of [Taylor].”

           We review a district court’s application of evidentiary

rulings to the facts of a case for abuse of discretion.              Precision

Piping & Instruments, Inc. v. E.I. du Pont de Nemours & Co., 951

F.2d 613, 619 (4th Cir. 1991).         Because the supervisors’ grins are

irrelevant unless offered to prove they condoned the comments made

by employees, the district court did not abuse its discretion in

excluding the evidence.


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             Next, Taylor claims that the district court improperly

concluded that he was not discriminated against based on age.                   We

have determined that “a plaintiff may avert summary judgment and

establish a claim for intentional . . . age discrimination through

two avenues of proof.”            Hill v. Lockheed Martin Logistics Mgmt.,

Inc., 354 F.3d 277, 284 (4th Cir. 2004), cert. dismissed, 125 S.

Ct.   1115   (2005).        These    avenues    include:   (1)   a   mixed-motive

framework, in which “it is sufficient for the [plaintiff] to

demonstrate that the employer was motivated to take the adverse

employment action by both permissible and forbidden reasons”; and

(2) a pretext framework, in which a plaintiff, “after establishing

a   prima    facie   case    of     discrimination,   demonstrates      that   the

employer’s proffered permissible reason for taking an adverse

employment action is actually a pretext for discrimination.”                   Id.

at 284-85.      We agree with the district court’s conclusion that

Taylor’s ADEA claim does not avert summary judgment under either

framework.

             In his third claim, Taylor alleges that the district

court improperly concluded that he was not discriminated against on

the basis of perceived disability. To establish wrongful discharge

under the ADA, a plaintiff must show that: “(1) he is within the

protected class; (2) he was discharged; (3) at the time of his

discharge, he was performing the job at a level that met his

employer’s legitimate expectations; and (4) his discharge occurred


                                        - 8 -
under circumstances that raise a reasonable inference of unlawful

discrimination.” Haulbrook v. Michelin N. Am., Inc., 252 F.3d 696,

702 (4th Cir. 2001).      Taylor, however, does not contend that he was

disabled under the ADA, but rather alleges that he was regarded as

being so.     Specifically, Taylor contends that Ameristeel regarded

him as substantially limited in the major life activity of walking

because he was excluded from work assignments involving higher

elevations. See id. We agree with the district court’s conclusion

that Taylor failed to establish Ameristeel regarded him as being

substantially limited in the major life activity of walking because

his other job responsibilities required walking.

            Taylor’s final claim is that the magistrate judge plainly

erred in his recommendation that summary judgment be granted for

Ameristeel on Taylor’s retaliatory discharge claim.                Though he

admits he failed to file objections to the magistrate judge’s

report and recommendation, Taylor argues that this court should

“review his retaliation claim in the interests of justice.”               In

support, Taylor points to a single error in the R&R and asserts

that it “was the basis for the magistrate’s conclusion that Taylor

could   not    satisfy    the   ‘causal      connection’   element   of   his

retaliatory discharge claim . . . .”

            As a general rule, we have recognized that “a party who

fails to object to a magistrate’s report is barred from appealing

the   judgment   of   a   district    court    adopting    the   magistrate’s


                                     - 9 -
findings.”    Wright v. Collins, 766 F.2d 841, 845 (4th Cir. 1985);

see also Thomas v. Arn, 474 U.S. 140 (1985).            Furthermore, this

Court has determined that

     [b]efore [it] can exercise [its] discretion to correct an
     error not raised below in a civil case, at a minimum,
     . . . [it must be established that] (1) there is an
     error; (2) the error is plain; (3) the error affects
     substantial rights; and (4) the court determines, after
     examining the particulars of the case, that the error
     seriously affects the fairness, integrity or public
     reputation of the judicial proceedings.

Taylor v. Virginia Union Univ., 193 F.3d 219, 239-40 (4th Cir.

1999) (en banc).

             Here,   the   magistrate   judge   undeniably   erred   in   his

conclusion regarding who was aware of Taylor’s EEOC charge.               The

deposition testimony of Blubaugh indicates that Marie Gilmore,

human resources manager, informed him of the EEOC charge at some

unknown time prior to Taylor’s filing suit. However, this does not

establish that the error affected Taylor’s substantial rights as

Blubaugh was not determined to be the decisionmaker responsible for

Taylor’s termination.        In spite of this, Taylor speculates that

Wright also knew about the EEOC charge.               These speculations,

however, fail to recognize that there is nothing in the record to

indicate that Wright had knowledge of the EEOC charge.               Since a

genuine issue of material fact cannot be created through mere

speculation    or    compilation   of   inferences,    see   Runnebaum     v.

NationsBank, 123 F.3d 156, 164 (4th Cir. 1997) (en banc), Taylor

has not met the requirements of Taylor and has therefore waived

                                   - 10 -
review of the magistrate judge’s recommendation regarding his

retaliation claim.   Accordingly, we affirm the judgment 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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