UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

EUGENE CURRENCE,
Plaintiff-Appellant,

v.
                                                                No. 95-2932
BIGGERS BROTHERS, INC., a wholly
owned subsidiary of U. S. Food
Service, Inc.,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Carl Horn, III, Chief Magistrate Judge.
(CA-94-373-3-H)

Submitted: July 23, 1996

Decided: August 1, 1996

Before WIDENER, NIEMEYER, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Michael A. Sheely, SHEELY & YOUNG, Charlotte, North Carolina,
for Appellant. Richard F. Kane, Kevin V. Parsons, BLAKENEY &
ALEXANDER, Charlotte, 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Unpublished opinions are not binding precedent in this circuit.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:

Eugene Currence sued his employer alleging that he was construc-
tively discharged1 because of his age in violation of the Age Discrimi-
nation in Employment Act ("ADEA"), 29 U.S.C.A.§§ 621-634 (West
1985 & Supp. 1996). The district court granted summary judgment
for the employer, finding that Currence failed to establish a prima
facie case of discrimination because he did not show he was perform-
ing his job at a level that met his employer's legitimate expectations.
In the alternative, the district court found that Currence's employer
established legitimate nondiscriminatory reasons for its action, which
Currence failed to show were pretextual. Currence appeals.

Summary judgment is appropriate when there is no genuine issue
of material fact that could lead a rational trier of fact to find for the
non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-49 (1986). "In determining whether to grant summary judgment,
all justifiable inferences must be drawn in favor of the non-movant."
Miltier v. Beorn, 896 F.2d 848, 852 (4th Cir. 1990) (citing Anderson,
477 U.S. at 255). We review the grant of a motion for summary judg-
ment de novo. Henson v. Liggett Group Inc., 61 F.3d 270, 274 (4th
Cir. 1995).

The ADEA prohibits adverse employment actions taken against an
employee on the basis of age. 29 U.S.C. § 623(a)(1) (1988). To estab-
lish a claim under this Act a plaintiff must show: (1) that he is an
employee covered by the Act; (2) that has suffered an unfavorable
employment action by an employer covered under the Act; and (3)
that absent the employer's age-based discriminatory intent, the
adverse employment action would not have occurred. Fink v. Western
Elec. Co., 708 F.2d 909, 914 (4th Cir. 1983). An employee can prove
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1 Currence was demoted and thereafter resigned.

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this third requirement of discriminatory intent in one of two ways: (1)
he may offer direct or indirect evidence both relevant to and suffi-
ciently probative of the intent, or (2) he may proceed under the
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), system of
proof as adapted for ADEA cases. Lovelace v. Sherwin-Williams Co.,
681 F.2d 230, 239 (4th Cir. 1982). To establish a prima facie case
with circumstantial evidence, a demoted employee must show that (1)
he was in the protected age group; (2) he was demoted or discharged;
and (3) at the time of the demotion or discharge, he was performing
his job at a level that met his employer's legitimate expectations.
O'Conner v. Consolidated Coin Caterers Corp., ___ F.3d ___, No.
94-1214, slip op. at 3 (4th Cir. June 5, 1996) (an ADEA plaintiff need
not show that he was replaced by someone outside the protected class
to establish a prima facie case) (citing Mitchell v. Data General
Corp., 12 F.3d 1310, 1315 (4th Cir. 1993)); Lovelace, 681 F.2d at
239.

The record overwhelmingly reveals that Currence failed to ade-
quately perform the duties of his previous position and was therefore
demoted. Currence nonetheless contends that because during the rele-
vant period of his alleged poor performance he did not receive an
unfavorable performance review and because he received perfor-
mance bonuses, his employer's assertion that he was demoted because
of poor performance is pretextual and creates a material factual dis-
pute inappropriate for dismissal by summary judgment. The record,
however, is uncontroverted that Currence's superior was terminated
because he failed to properly supervise and manage Currence.2 The
record also reveals that the performance bonuses Currence received
were based on the department's performance, and not Currence's per-
sonal job performance. There was no direct evidence of discrimina-
tion.

We affirm the order of the district court because Currence failed to
show that he was meeting his employer's legitimate expectations, a
necessary element of a prima facie ADEA case. O'Conner v. Consoli-
dated Coin Caterers Corp., ___ F.3d #6D 6D6D#, No. 94-1214, slip op. at 3
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2 The record is also clear that management communicated its dissatis-
faction with Currence's job performance and that Currence was aware
that he was doing poorly.

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(4th Cir. June 5, 1996). 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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