                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 14-1955


BOBBY J. KINSER,

                Plaintiff - Appellant,

          v.

UNITED METHODIST AGENCY FOR THE RETARDED - WESTERN NORTH
CAROLINA, INC., d/b/a UMAR,

                Defendant - Appellee.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.    Robert J. Conrad,
Jr., District Judge. (3:13-cv-00175-RJC-DCK)


Submitted:   April 28, 2015                   Decided:   May 27, 2015


Before SHEDD, DIAZ, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Todd J. Combs, COMBS LAW, PLLC, Mooresville, North Carolina, for
Appellant. John D. Cole, Sr., Jonathan E. Schulz, NEXSEN PRUET,
PLLC, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Bobby J. Kinser appeals the district court’s order granting

summary judgment to his former employer, United Methodist Agency

for the Retarded—Western North Carolina, Inc. (“UMAR”), as well

as granting UMAR’s motion to strike, in his suit alleging sex

and age discrimination, in violation of, respectively, Title VII

of   the    Civil   Rights   Act   of   1964   (“Title   VII”) 1 and    the   Age

Discrimination in Employment Act of 1967 (“ADEA”). 2            We affirm. 3

      Kinser challenges the district court’s decision to strike

three affidavits.          We review for abuse of discretion a district

court’s decision to strike an affidavit submitted in support of

a party’s opposition to summary judgment; however, we review the

factual determinations underlying that decision for clear error.

Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 962 (4th

Cir. 1996).

      Parties       must    disclose,    “without   awaiting    a      discovery

request, . . . the name . . . of each individual likely to have

discoverable information . . . that the disclosing party may use
      1
           42 U.S.C. §§ 2000e to 2000e-17 (2012).
      2
           29 U.S.C. §§ 621 to 634 (2012).
      3
       The district court also granted summary judgment to UMAR
on Kinser’s claim for wrongful discharge under North Carolina
employment law. Because Kinser does not challenge on appeal the
grant of summary judgment on his state-law claim, we do not
review it.   See In re Under Seal, 749 F.3d 276, 292 (4th Cir.
2014).



                                         2
to support its claims.”       Fed. R. Civ. P. 26(a)(1)(A)(i), (C),

(e)(1)(A).     “If a party fails to . . . identify a witness as

required by Rule 26(a) or (e), the party is not allowed to use

that . . . witness to supply evidence on a motion, . . . unless

the failure was substantially justified or is harmless.”               Fed.

R. Civ. P. 37(c)(1).        We have stated that, “[i]n determining

whether a party’s non-disclosure is substantially justified or

harmless, thereby excusing a disclosure violation, a district

court is guided by the . . . factors . . . [set forth in S.

States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d

592 (4th Cir. 2003)].”       Russell v. Absolute Collection Servs.,

Inc., 763 F.3d 385, 396-97 (4th Cir. 2014).

      Our review of the record demonstrates that the district

court correctly determined that Kinser failed to timely disclose

one affiant’s identity.      See 6 James Wm. Moore et al., Moore’s

Federal Practice § 26.22(4)(a)(i) (3d ed. 2015).              We conclude,

as did the district court, that Kinser’s attempts to distinguish

the circumstances of his case from those in which an affidavit

has   been   properly   disregarded       are   unavailing.   See   Carr   v.

Deeds, 453 F.3d 593, 604 (4th Cir. 2006), abrogated on other

grounds by Wilkins v. Gaddy, 559 U.S. 34 (2010); Rambus, Inc. v.

Infineon Techs. AG, 145 F. Supp. 2d 721, 734-35 (E.D. Va. 2001),

cited with approval in S. States Rack & Fixture, Inc., 318 F.3d

at 596-97.

                                      3
       The district court also struck two other affidavits offered

by Kinser because it determined that the affiants’ averments

were inconsistent with their prior deposition testimony.                   At the

summary judgment stage, if an affidavit is inconsistent with the

affiant’s prior deposition testimony, courts may disregard the

affidavit pursuant to the sham-affidavit rule.                See Cleveland v.

Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999); In re Family

Dollar    FLSA      Litig.,      637   F.3d    508,   512   (4th    Cir.   2011);

Rohrbough v. Wyeth Labs., Inc., 916 F.2d 970, 975-76 (4th Cir.

1990).        “[F]or the [sham-affidavit] rule . . . to apply, there

must     be    a   bona    fide     inconsistency”     between     an   affiant’s

averments and his deposition testimony.               Spriggs v. Diamond Auto

Glass, 242 F.3d 179, 185 n.7 (4th Cir. 2001).                 We conclude that

the district court did not clearly err in finding that the two

affidavits at issue were inconsistent with the testimony of the

affiants.       See id.; Rohrbough, 916 F.2d at 975-76.             Also without

merit     are      Kinser’s       challenges    to    the   district       court’s

determination       that   the     inconsistencies    warranted     disregarding

the two affidavits.         See Stevenson v. City of Seat Pleasant, 743

F.3d 411, 422 (4th Cir. 2014); Malbon v. Pa. Millers Mut. Ins.

Co., 636 F.2d 936, 939 n.8 (4th Cir. 1980).                   Accordingly, the




                                          4
district       court     did    not      abuse      its    discretion      by    striking     the

three affidavits. 4

       Turning to Kinser’s Title VII and ADEA claims, we review de

novo       a   district        court’s         order       granting   summary       judgment.

Jacobs v. N.C. Admin. Office of the Cts., 780 F.3d 562, 565 n.1

(4th       Cir.    2015).          “A    district         court   ‘shall        grant    summary

judgment if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a

matter of law.’”             Id. at 568 (quoting Fed. R. Civ. P. 56(a)).

In determining whether a genuine issue of material fact exists,

“we    view       the    facts     and        all    justifiable      inferences          arising

therefrom in the light most favorable to . . . the nonmoving

party.”           Id.   at   565    n.1       (internal      quotation     marks        omitted).

However,          “[c]onclusory          or     speculative        allegations           do   not

suffice, nor does a mere scintilla of evidence in support of

[the nonmoving party’s] case.”                          Thompson v. Potomac Elec. Power

Co., 312 F.3d 645, 649 (4th Cir. 2002) (internal quotation marks

omitted).

       Kinser       presented           no    direct      evidence    of    age     or     gender

discrimination; we therefore analyze his claim under the burden-


       4
       The district court’s order also appears to have struck any
reference to an arrest of one of UMAR’s employees. Even if the
district court may have erred by striking these references, any
such error is harmless.



                                                    5
shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802-05 (1973). 5          See Reeves v. Sanderson Plumbing Prods.,

Inc., 530 U.S. 133, 142 (2000); Mereish v. Walker, 359 F.3d 330,

334 (4th Cir. 2004).            To prevail under the McDonnell Douglas

framework, Kinser first must establish a prima facie case.                      See

Gerner v. Cnty. of Chesterfield, 674 F.3d 264, 266 (4th Cir.

2012)     (Title   VII);    Hill v.    Lockheed     Martin     Logistics   Mgmt.,

Inc., 354 F.3d 277, 285 (4th Cir. 2004) (en banc) (ADEA).                        If

Kinser establishes a prima facie case, the burden of production

shifts    to   UMAR    to   articulate    a     legitimate,    nondiscriminatory

reason for its actions.          Hill, 354 F.3d at 285.            Once UMAR has

met its burden, Kinser must demonstrate that UMAR’s proffered

reason is a mere pretext for discrimination.               Id.

      The district court correctly determined that Kinser failed

to   establish     a   prima   facie     case    under   the   ADEA   because   he

offered no evidence demonstrating that he had been replaced by a

substantially younger person.            See Hill, 354 F.3d at 285.          Nor,

with regard to his Title VII claim, did he demonstrate that a

similarly situated female employee was treated more favorably

than he was.       See Gerner, 674 F.3d at 266.               Even if Kinser had


      5
       On appeal, Kinser states that he presented direct evidence
of sex discrimination; however, he does not identify this
evidence, and he analyzes his claim, as do we, only under the
McDonnell Douglas framework.



                                          6
established     a    prima      facie    case,       the    district      court    properly

found   that        he     failed       to     demonstrate            UMAR’s    legitimate,

nondiscriminatory          reasons      for    his    discharge         were    pretextual.

See   Reeves,       530    U.S.    at    143       (providing     that     plaintiff      may

establish    pretext        “by    showing         that    the   employer’s       proffered

explanation is unworthy of credence” (internal quotation marks

omitted)).

      Accordingly,         we   affirm       the    district      court’s       order.      We

dispense     with        oral     argument      because         the     facts    and     legal

contentions     are       adequately     presented         in    the    materials      before

this court and argument would not aid the decisional process.



                                                                                   AFFIRMED




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