UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOHN J. DEVAN,
Plaintiff-Appellant,

v.                                                                    No. 97-1023

BARTON-COTTON, INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Walter E. Black, Jr., Senior District Judge.
(CA-95-3132-B)

Submitted: October 31, 1997

Decided: April 20, 1998

Before WILKINS and MICHAEL, Circuit Judges, and
HALL, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

W. Michel Pierson, Baltimore, Maryland, for Appellant. John Henry
Lewin, Jr., Jeffrey P. Ayres, VENABLE, BAETJER, AND HOW-
ARD, L.L.P., Baltimore, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

John J. Devan appeals the award of summary judgment to his for-
mer employer Barton-Cotton, Inc., on his claims under the Age Dis-
crimination in Employment Act ("ADEA"), 29 U.S.C. § 623(a)
(1994), and for breach of contract. Finding no error, we affirm the
district court.

I.

In 1963, when he was eighteen, Devan was hired by Barton-Cotton
as a "floor boy." He was regularly promoted and, subsequently, held
the positions of Pressman, Estimator, Assistant to the President, and
Plant Manager. In 1984, at the age of thirty-nine, he was promoted to
Executive Vice President of Manufacturing, the job he held until he
was terminated on March 23, 1994.

In 1985, Devan negotiated a lucrative compensation package with
Richard C. Riggs, Jr., president and majority owner of Barton-Cotton,
who had joined the company in 1974. The agreement provided that
in future years Devan would receive one and one-half percent of all
sales in excess of ten million dollars (the company's gross sales at the
time). A memorandum was prepared memorializing the new arrange-
ment, which provided that the additional compensation would be paid
as soon as sales figures were available in January and that Devan
would have the option of taking partial bonuses before January.

Sometime in 1990, Devan approached Don Tyrie, Barton-Cotton's
Director of Finance, to request a withdrawal from his commission
account. At around the same time, Barton-Cotton was in the process
of changing its fiscal year from a June to a September fiscal year end.
Tyrie requested that Devan withdraw substantially more than sales to
date warranted, so that the commissions could be declared as
expenses for that fiscal year. According to Devan, Tyrie essentially
requested that Devan accept a payment in September 1990 reflecting
one-half of the year's projected sales, even though the total sales
through September did not support the sum. Also according to Devan,

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he accepted Tyrie's offer and asserted that this payment effectively
modified his salary agreement, such that should he ever leave Barton-
Cotton early in a year, he would expect a pro rata portion of the com-
missions for that year. Devan admits that Tyrie's response was "I'm
not authorized to change your contract. You should talk to Mr. Riggs
about that." Devan never spoke to Riggs.

In 1993, relations between Riggs and Devan became strained.
Devan began feeling that he was being excluded from meetings relat-
ing to production, planning, and forecasting and that he was being
isolated in other ways. At around this same time, outside consultants
were brought in to aid Barton-Cotton in expanding its business to
focus more on marketing and sales, rather than production. Based
partly on the consultants' conclusions, Barton-Cotton was reconfig-
ured, and these changes resulted in substantial growth.

On March 22, 1994, Riggs advised Devan that he had hired a new
employee, John Patterson, to oversee the operations of the company
because Riggs was planning to expand the company exponentially.
The following day, Riggs, who was fifty-four years old at the time,
discharged Devan, who was forty-nine. Riggs informed Devan that
the reason for the discharge was that Riggs had lost confidence in
Devan's ability to lead the company into the future. Because Barton-
Cotton's sales in March 1994 were less than $3.7 million, Devan was
not paid a bonus for the 1994 year when he was terminated.

In April of 1994, Patterson, who was then forty-one, began work-
ing at Barton-Cotton in the position of Chief Operating Officer. This
position included most of Devan's responsibilities, as well as duties
in several additional areas, including purchasing, customer service,
and information systems.

Devan sued Barton-Cotton in district court, claiming that Barton-
Cotton had discharged him because of his age in violation of the
ADEA and that Barton-Cotton had breached his compensation agree-
ment by not paying him a pro rata share of commissions for the par-
tial year he worked in 1994. The district court granted Barton-
Cotton's motion for summary judgment, concluding that Devan had
failed to establish a prima facie case of age discrimination and had

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failed to establish that the original compensation agreement was mod-
ified. Devan appeals.

II.

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
nonmoving party. See 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 a district court's decision to grant sum-
mary judgment de novo. See Foster v. American Home Prods. Corp.,
29 F.3d 165, 168 (4th Cir. 1994).

On his ADEA claim, Devan relies upon the indirect, burden-
shifting method of proof developed in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). See Lovelace v. Sherwin-Williams Co.,
681 F.2d 230, 239 (4th Cir. 1982) (adopting McDonnell Douglas pre-
sumption framework in ADEA cases). If a plaintiff proceeds under
the McDonnell Douglas framework, the case essentially breaks into
three steps. First, the plaintiff must establish a prima facie case of dis-
crimination. McDonnell Douglas, 411 U.S. at 802. Second, the defen-
dant must respond with a nondiscriminatory reason for the
termination. Id. Third, if the defendant responds with a legitimate
nondiscriminatory reason, the "plaintiff must then bear the `ultimate
burden of persuasion' and show by a preponderance of the evidence
that the defendant's explanations are pretextual or otherwise unwor-
thy of credence." Henson v. Liggett Group, Inc., 61 F.3d 270, 275
(4th Cir. 1995) (citations omitted).

To establish a prima facie case of discrimination, Devan must show
that he (1) was a member of the protected group of persons within the
ages of forty and seventy, (2) was subject to an adverse employment
action, (3) that he was performing his job at a level that met his
employer's legitimate expectations, and (4) that he was replaced by
someone substantially younger and of comparable qualifications. See
O'Connor v. Consolidated Coin Caterers Corp., ___ U.S. ___, 64
U.S.L.W. 4243, 4244 (U.S. Apr. 1, 1996) (No. 95-354). Here, we

                     4
agree with the district court that Devan made out the first three factors
of a prima facie case.

III.

Regarding the fourth factor, Devan contends that he is not required
to show that he possessed comparable qualifications to Patterson to
make out a prima facie case. Devan asserts that the comparable quali-
fications requirement does not demand extensive comparison of quali-
fications, but rather one can satisfy this element with objective
evidence of replacement by a younger person. Second, Devan argues
that, even if there were a general requirement of comparable qualifi-
cations, it is inapplicable in this case where the decision to hire Patter-
son was made after the decision to terminate Devan. Finally, Devan
asserts that the district court's determination that his qualifications
were not comparable to Patterson's ignored undisputed facts of
record.

Because Devan failed to offer any direct evidence of age discrimi-
nation, he is required to satisfy each and every prong of the
McDonnell Douglas analysis.1 We have recently reaffirmed the neces-
sity of requiring a plaintiff to show, as part of the fourth prong of his
prima facie case, that he was replaced by someone of comparable
qualifications. See Blistein v. St. John's College, 74 F.3d 1459, 1467
n.7 (4th Cir. 1996) (specifically noting that previous opinion omitting
this requirement was in error). While Devan asserts that this is a
minor issue not justifying dismissal of his claim, we have previously
and unambiguously found that "[w]hen the replacement employee has
greater qualifications, an inference that the discharge was motivated
by discrimination is simply not warranted." Id. (emphasis in the origi-
nal).

Turning to Devan's claim that Patterson's qualifications are irrele-
vant because Patterson was hired after the decision was made to ter-
minate Devan, we find this claim equally unavailing. Devan provides
no support for the contention that the timing of the termination and
_________________________________________________________________
1 Direct evidence would generally consist of statements made by Riggs
regarding Devan's age in connection with Devan's termination. See
Moore v. City of Charlotte, 754 F.2d 1100, 1105 (4th Cir. 1985).

                     5
subsequent hiring are crucial, and we find that, in this case, the timing
is not probative of discrimination. Riggs alleges that he decided to ter-
minate Devan because Riggs felt Devan could not lead the company
into the future. The fact that a replacement had not yet been found is
irrelevant and, if anything, only undercuts Devan's claim that he was
discriminated against. In any event, Devan is attempting to use this
argument to deflect the real issue of whether he has submitted suffi-
cient evidence to make a prima facie case. Because the fourth prong
does not require that the decision to terminate and the hiring of a
younger person with comparable qualifications be simultaneous or
even close in time, the fact that no replacement was found immedi-
ately in time is not indicative of discrimination. 2

Finally, Devan contends that the district court incorrectly found
that his qualifications were not comparable to Patterson's. We dis-
agree. Patterson has an undergraduate degree from Marquette Univer-
sity and a Masters in Business Administration from the University of
Delaware. Devan was a high school graduate, without a college
degree. In addition, Patterson was a former partner at Andersen Con-
sulting, the largest consulting firm in the world, where he had signifi-
cant experience in the design and implementation of large corporate
restructuring projects. His previous work experience also included
substantial customer service, sales and marketing, and integration of
computer systems. In contrast, Devan worked exclusively at Barton-
Cotton from his high school graduation, and his career focused on
developing, cost-justifying, and enacting the latest technologies and
methodologies in the manufacturing process, as well as overseeing the
overall operation of the factory.

On this record, we find that Devan failed to present sufficient
evidence to create a jury question as to whether he was comparably
qualified to Patterson.3 Because Devan cannot show that he has com-
_________________________________________________________________

2 In any event, contrary to Devan's assertions, Devan's termination and
Patterson's hiring were completed at approximately the same time.
3 Moreover, the undisputed evidence of record shows that Patterson's
position is different from Devan's old position and that Devan was not
qualified to occupy the newly reconfigured Chief Operating Officer posi-
tion. On this point alone, Devan's attempt to satisfy the final element of

                    6
parable qualifications to Patterson, the district court properly found
that he failed to present sufficient evidence to establish a prima facie
case of age discrimination. Because Devan has failed to present a
prima facie case, we do not address the district court's conclusions
that Devan also failed to show that Barton-Cotton's proffered legiti-
mate, nondiscriminatory reasons for its employment action were pre-
textual.

IV.

Devan's contract claim is premised upon a purported amendment
to his written bonus agreement. Devan bases his modification argu-
ment upon a conversation with Tyrie, the financial and payroll man-
ager. However, even accepting Devan's description of the
conversation, Devan and Tyrie did not agree in that conversation to
any pro rata bonus due to Devan, should he leave Barton-Cotton
early in the year. Viewing the facts in the light most favorable to
Devan, he and Tyrie at most agreed that, in 1990, Devan would be
payed a pro rata bonus early in the year (to be corrected at a later
time should sales not support this bonus), in order to implement a
one-time accounting change.

Devan was expressly advised that Tyrie did not have the authority
to alter Devan's contract. Nevertheless, Devan did not discuss the
_________________________________________________________________
McDonnell Douglas's prima facie case of discrimination must fail. See
Pace v. Southern Ry. Sys., 701 F.2d 1383, 1388 (11th Cir. 1983) (in
absence of direct evidence or evidence that plaintiff was replaced, plain-
tiff must otherwise establish a nexus between age discrimination and the
adverse employment action). Devan attempts to otherwise satisfy his bur-
den by submitting evidence allegedly showing a pattern of discrimina-
tion. Having failed to place any of the statistical data within a relevant
framework or to present evidence allowing this court to construct the
framework in which the evidence proffered by Devan would be relevant,
we affirm the district court's holding that the statistical data failed to
show a pattern of discrimination. We also hold that the age-related state-
ments attributed to Riggs by Devan are neither numerous nor egregious
enough to be probative of age discrimination. See Henson, 61 F.3d at
276. ("isolated remote statements are not probative of age discrimina-
tion").

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proposed modification with Riggs. Moreover, it is undisputed that,
after 1990, Devan's bonus was administered according to the express
terms of the written contract. We, therefore, find that Devan produced
no evidence that Barton-Cotton intended to modify his contract and
that the isolated conduct that Devan relies on is insufficient to raise
an inference of acquiescence.

V.

The district court's award of summary judgment to Barton-Cotton
is, therefore, affirmed. 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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