                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


JACKSON LEE MARTIN,                   
                Plaintiff-Appellee,
                 v.                               No. 01-1105
MANNA PRO CORPORATION,
            Defendant-Appellant.
                                      
            Appeal from the United States District Court
     for the Southern District of West Virginia, at Charleston.
             Charles H. Haden II, Chief District Judge.
                          (CA-00-292-2)

                      Argued: September 25, 2001

                      Decided: October 16, 2001

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



Affirmed by unpublished per curiam opinion.


                             COUNSEL

ARGUED: Christie Sue Utt, RANSON LAW OFFICES, Charleston,
West Virginia, for Appellant. Erin Magee Condaras, JACKSON &
KELLY, P.L.L.C., Charleston, West Virginia, for Appellee. ON
BRIEF: J. Michael Ranson, RANSON LAW OFFICES, Charleston,
West Virginia, for Appellant. Charles M. Surber, Jr., JACKSON &
KELLY, P.L.L.C., Charleston, West Virginia, for Appellee.
2                   MARTIN v. MANNA PRO CORP.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

PER CURIAM:

   In this diversity action, Jackson Lee Martin alleges employment
discrimination on the basis of age in violation of the West Virginia
Human Rights Act, W. Va. Code § 5-11-1 (1999). The district court
granted summary judgment to his former employer. We affirm.

                                  I.

   Martin began his employment with Manna Pro Corporation or one
of its predecessors (collectively, "Manna Pro") in 1979 and, over
time, advanced to the position of territory sales manager. Manna Pro,
which manufactures agricultural products, employs several hundred
persons. Martin serviced accounts for feed dealer clients located
throughout West Virginia, southern Virginia, eastern Kentucky, and
parts of Ohio.

   In October 1998, when Martin was 55 years old, his supervisor
informed him that he was being laid off because Manna Pro had
decided to close Martin’s sales territory and rely instead on telemar-
keting to serve its clients within that territory. Manna Pro presented
Martin with a "Layoff and General Release Agreement," which pro-
vided that, effective November 15, 1998, Martin would "be laid off
from his current position and as an employee of Manna Pro in any
other capacity." The agreement also provided that Martin would
receive four months’ severance pay and would waive and release all
age discrimination claims against Manna Pro, arising on or before the
date of execution of the agreement. The company advised Martin to
consult with an attorney before entering into the agreement.

   Two weeks later, after consulting with an attorney, Martin
informed the company that he "ha[d] been told" that the agreement
did not comply with state or federal law and that his age and nineteen
                     MARTIN v. MANNA PRO CORP.                         3
years of service to the company were "strong indicators of possible
age discrimination." Nonetheless, Martin stated that he "would like to
sign" the agreement if "we can agree on an acceptable severance pay-
ment"; he asked for one year’s severance pay. After negotiations,
Martin and Manna Pro compromised on six months’ severance pay,
and Martin signed the agreement, as so revised, on January 14, 1999.
In compliance with the agreement, Manna Pro paid Martin severance
of approximately $11,500, less necessary withholdings. After leaving
Manna Pro, Martin never again spoke to his supervisor or contacted
anyone at Manna Pro about returning to work.

   In April 1999, Manna Pro hired 34-year-old Scott Trimble as a ter-
ritory sales manager in Ohio; included within Trimble’s territory was
much of Martin’s former territory — the West Virginia and Ohio
regions and part of Martin’s Kentucky region. Manna Pro assigned a
territory manager in Pennsylvania to Martin’s Virginia region.

   When Martin learned that Trimble had been hired and was serving
clients in his former territory, Martin filed this action alleging unlaw-
ful age discrimination under the West Virginia Human Rights Act. W.
Va. Code Ann. § 5-11-9 (Michie 2000). The district court granted
summary judgment to Manna Pro, holding that Martin could not
prove the second element of his prima facie case, namely that he
applied for the position at issue.

                                   II.

   We analyze an age discrimination claim premised on the West Vir-
ginia Human Rights Act in the same manner as that set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its
progeny. See Barefoot v. Sundale Nursing Home, 457 S.E.2d 152,
159-60 (W. Va. 1995).

   Thus, to establish a prima facie case, Martin must prove: (1) that
he is in the protected class, i.e., over 40 years of age; (2) that he
applied for the position in question; (3) that he was qualified for the
position; and (4) that he was rejected for the position under circum-
stances giving rise to an inference of discrimination. Brown v.
McLean, 159 F.3d 898, 902 (4th Cir. 1998); accord McDonnell Doug-
las, 411 U.S. at 802. The district court held that Martin failed to
4                     MARTIN v. MANNA PRO CORP.
establish the second element — that he applied for the position — and
for this reason failed to prove a prima facie case.* We note at the out-
set that no collective bargaining agreement governed Martin’s
employment, let alone provided recall rights to him, nor does the Jan-
uary release-severance agreement, or any written company policy, or
any company handbook provide such rights. Moreover, Martin admit-
ted that no one at Manna Pro "actually ever told" him that he would
be recalled or that he had a right to be recalled; he "just assumed" it.
J.A. 59.

   Nevertheless, Martin maintains that the "futile gesture" doctrine
excuses him from applying for the position filled by Trimble. Under
this doctrine, a plaintiff need not show he applied for a position if he
can demonstrate that "he would have applied but for accurate knowl-
edge of an employer’s discrimination and that he would have been
discriminatorily rejected had he actually applied." Brown, 159 F.3d at
902 (quoting Pinchback v. Armistead Homes Corp., 907 F.2d 1447,
1451 (4th Cir. 1990)); cf. Int’l Bhd. of Teamsters v. United States, 431
U.S. 324, 365-66 (1977) ("When a person’s desire for a job is not
translated into a formal application solely because of his unwilling-
ness to engage in a futile gesture, he is as much a victim of discrimi-
nation as is he who goes through the motions of submitting an
application."). As the district court held, however, Martin cannot avail
himself of the futile gesture doctrine because he does not allege that
he had any reason to believe that, had he applied, he would have been
rejected. Therefore, no discrimination prevented him from applying
for the position in question with Manna Pro.

   Alternatively, Martin contends that he did not need to prove that
he applied for this position because "Manna Pro had a practice of . . .
seeking out former employees and calling them back to work." Brief
of Appellant at 21. See Box v. A & P Tea Co., 772 F.2d 1372, 1376-

  *Martin’s failure to recall claim is not barred by his release and waiver
under the agreement because a failure to recall can be an adverse
employment action that accrues separate from the initial adverse employ-
ment action, the layoff. See Lawson v. Burlington Indus., Inc., 683 F.2d
862 (4th Cir. 1982) (claim alleging discriminatory layoff did not include
and was distinguishable from claim of discriminatory "failure to recall or
rehire").
                     MARTIN v. MANNA PRO CORP.                       5
77 (7th Cir. 1985) ("When an employer uses a promotion system in
which employees do not apply for promotions but rather are sought
out by managers, the application requirement of the prima facie case
is loosened somewhat" and an employee can establish a prima facie
case "by showing that, had she known of an . . . opening, she would
have applied."). The record, however, does not bear out this conten-
tion. The only evidence that Martin offers demonstrating such a prac-
tice is his supervisor’s decision to rehire a single former employee,
upon recommendation of a company customer, and another supervi-
sor’s decision to rehire another former employee in a different part of
the country. Two examples in a company that employs hundreds of
people hardly demonstrate a company practice. Moreover, neither of
these rehired employees had signed a release and received severance
pay. Indeed, the record contains uncontroverted evidence that Manna
Pro had never recalled employees who had signed such "lay off
releases."

  For these reasons, the district court’s order granting summary judg-
ment to Manna Pro is

                                                         AFFIRMED.
