                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-1944


OTIS E. HILL,

                Plaintiff – Appellant,

          v.

SOUTHEASTERN FREIGHT LINES, INC.,

                Defendant – Appellee,



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
District Judge. (1:11-cv-00462-JAB)


Argued:   March 28, 2013                  Decided:   April 15, 2013


Before GREGORY, DUNCAN, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Norman B. Smith, SMITH, JAMES, ROWLETT & COHEN, LLP,
Greensboro, North Carolina, for Appellant.     William Lee Duda,
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, PC, Columbia, South
Carolina, for Appellee.       ON BRIEF: L. Bakari Middleton,
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, PC, Columbia, South
Carolina; Sarah H. Roane, OGLETREE, DEAKINS, NASH, SMOAK &
STEWART, PC, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Otis Hill (“Hill”) appeals the district court’s dismissal

with prejudice of his employment discrimination claims against

Southeastern     Freight   Lines   (“SEFL”).     As   relevant    here,   the

district court granted SEFL’s motion for summary judgment after

finding that Hill failed to present a prima facie case of age

discrimination. 1      For the reasons that follow, we affirm.



                                     I.

      Hill was a full-time pick-up and delivery driver for SEFL.

As the title suggests, in that capacity Hill was expected to

pick up and deliver freight.          Such drivers were graded on the

basis of the so-called “Tommy Thompson System,” which took into

consideration such factors as cargo loads, distance driven and

stops made.      Apparently some routes yielded lower numbers for

their drivers than others.

      Although Hill maintains that he was an excellent employee,

the   evidence    of    record   documents   a   history   of    performance




      1
         Hill   also   brought   claims   based   on   disability
discrimination and retaliation, but he conceded below that he
could not prove the retaliation claim, and has not challenged
the district court’s dismissal with prejudice of his disability
discrimination claim on appeal.      Consequently, only the age
discrimination claim is at issue.



                                      2
issues. 2   Specifically, Hill acknowledges signing a notice on

March 3, 2010, informing him that “this is a final communication

concerning your performance.       Any future violation of company

policy, practices, safety rules or guidelines will result in

additional disciplinary action, which will include termination

of your employment.”    J.A. 82; 53-54. 3   On May 21, 2010, after a

customer complained of Hill’s tardiness, and after Hill took an

excessive amount of time to complete his runs, SEFL’s Terminal

Manager gave Hill a choice: accept a line haul driver position

which would require driving trailers between two points at night

with no pickups or deliveries, or resign.

     Hill   produced   medical   documentation   of   vision   problems

caused by glaucoma, which would make it difficult for him to

drive at night.    He was subsequently terminated, and filed the

employment discrimination claims below.



     2
       We feel compelled to note that our consideration of this
appeal has not been aided by the fact that Hill’s citations to
the record are consistently inaccurate, and referenced documents
are therefore difficult, if not impossible, to find.         For
example, Hill asserts that “[t]he only comprehensive employment
evaluation done by defendant showed that plaintiff was excellent
and without criticism in all graded categories of performance.”
Appellant’s Br. at 5 (citing A. 126).    However, we were unable
to locate such a document in the record.
     3
       References to “J.A.” indicate the joint appendix filed by
the parties in this case. Hill uses the shorthand “A.” to refer
to the record; where relevant we include these, although, as
noted, they do not correspond to pages in the J.A.



                                   3
       The district court found that Hill failed to meet what it

identified     as       the    third     and       fourth    prongs       of    the       test       for

establishing        a    prima       facie   case       of   age    discrimination:              Hill

could not show that he was performing his job at a satisfactory

level, or, even if he were, that his position either remained

open     or   that       he    was     replaced         by   a     substantially            younger

individual.      This appeal followed.



                                               II.

       The    Age       Discrimination         in       Employment       Act     (“ADEA”),            29

U.S.C. § 621 et seq., forbids an employer from taking an adverse

employment      action             against     an       employee        “because          of”        the

employee’s age.              29 U.S.C. § 623(a)(1); Hill v. Lockheed Martin

Logistics Mgmt., Inc., 354 F.3d 277, 283 (4th Cir. 2004) (en

banc).        Under          the     ADEA,     a       plaintiff        “must       prove       by     a

preponderance           of     the     evidence          (which     may        be     direct          or

circumstantial),             that     age    was       the   ‘but-for’          cause       of       the

challenged employer decision.”                      Gross v. FBL Fin. Servs., Inc.,

557 U.S. 167, 177-78 (2009).                   Thus, to survive summary judgment,

Hill must show that there is a genuine issue of material fact

that SEFL dismissed him from his job as a pick-up and delivery

(“P&D”) driver due to his age.                         See Celotex Corp. v. Catrett,

477    U.S.   317,       322       (1986).     We       review     de    novo       the   district



                                                   4
court’s      grant       of     summary    judgment.          Med.       Waste    Assocs.      Ltd.

P’ship v. Baltimore, 966 F.2d 148, 150 (4th Cir. 1992).

       Because           Hill     presents       no        direct           evidence      of    an

impermissible            discriminatory      motive          based     on    age,    we   proceed

under        the         familiar         McDonnell           Douglas           burden-shifting

framework.           McDonnell       Douglas         Corp.    v.     Green,      411    U.S.    792

(1973); Stokes v. Westinghouse Savannah River Co., 206 F.3d 420

(4th Cir. 2000) (applying the McDonnell Douglas framework in the

context of age discrimination).                        Hill must first establish a

prima facie case, the elements of which vary depending on the

nature of the claim.                 Dugan v. Albemarle Cnty. Sch. Bd., 293

F.3d       716,    720    n.1    (4th     Cir.   2002).          In    the      firing    context

relevant here, Hill must show that: (1) he was a member of the

protected class--that is, older than 40; (2) he was discharged;

(3)    he    was    qualified       for    the       job   and     met      SEFL’s     legitimate

expectations; and (4) his position remained open or was filled

by     a    similarly         qualified     individual           who      was    substantially

younger.          See Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 513

(4th Cir. 2006). 4


       4
       If Hill were to succeed in making out a prima facie case,
that would create a “presumption of discrimination,” and the
burden of production would then shift to SEFL to set forth “a
legitimate, non-discriminatory reason for its adverse employment
decision.” Laber v. Harvey, 438 F.3d 404, 430 (4th Cir. 2006).
If SEFL carried that burden, the presumption would disappear and
Hill would have to show that SEFL’s articulated reason was a
(Continued)
                                                 5
     The district court premised its grant of summary judgment

in SEFL’s favor on Hill’s failure to establish a prima facie

case of age discrimination.           It is undisputed that, at 60 years

of age, Hill was a member of the protected class, and that he

was discharged from employment.              Thus, only the third and fourth

elements are presently contested.

                                         A.

     As   to    the    third    prong,     “a    plaintiff        must   show   by    a

preponderance     of    the     evidence      that   he     met    the   employer’s

legitimate job expectations in order to prove his prima facie

case, [and] the employer may counter with evidence defining the

expectations    as     well    as   evidence     that     the   employee    was      not

meeting those expectations.”             Warch, 435 F.3d at 516.            We have

qualified this requirement by clarifying that the plaintiff’s

burden in this regard is not an onerous one.                       The third prong

requires only that the plaintiff present evidence to create a

question of fact that the employer’s “proffered ‘expectation’ is

not, in fact, legitimate at all.”               Id. at 517.

     Hill asserts that the record is replete with evidence that

he “was qualified for the position of local truck driver, and




pretext for age discrimination.  Id.  Because we find Hill has
failed to establish a prima facie case, we need not reach the
issue of pretext.



                                         6
that       he     was        performing     his    duties         at   a       level    that       met

defendant’s           legitimate      expectations.”                Appellant’s        Br.    at    15

(citing A. 126).                As we have noted, however, we are unable to

find in the record the evaluation that supports Hill’s claim.

Hill further contends that in relying on personnel assessments

going back some period, “the defendant violated its own policy

of     clearing         an      employee     of        all    write-ups        over     one    year

old.”           Id.     at    17   (citing    A.       21).       We   have      likewise      been

unsuccessful            in     locating    evidence          of   such     a    policy.        Hill

contends that the “Tommy Thompson system,” which SEFL uses to

measure          productivity,        has     become          “largely         discredited         and

discarded by major motor carriers,” id. at 16 (citing A. 117),

but the only evidence in the record we could find to support

this is the same bald assertion in his own affidavit.

       Although Hill is correct that his burden with respect to

the third prong is not onerous, we still require evidence other

than his own self-serving conclusions and the impressions of one

of         his        coworkers       that         he         met      SEFL’s          legitimate

expectations. 5              See Smith v. Flax, 618 F.2d 1062, 1067 (4th Cir.


       5
       Hill proffers the affidavit of Michael Brooks, a 38-year-
old P&D driver for SEFL who attests that Hill “always got the
job done” and was “written up by the employer unfairly and
inconsistently” in comparison to several other younger drivers,
including Brooks himself. J.A. 167-68. Notably, these portions
of Brooks’s affidavit were stricken by the district court
because they were not based on the affiant’s personal knowledge
(Continued)
                                                   7
1980) (explaining that because it is solely the perception of

the decision maker with which we are concerned, the plaintiff’s

“perception of himself . . . is not relevant”); Conkwright v.

Westinghouse      Elec.    Corp.,        933    F.2d     231,    235   (4th   Cir.    1991)

(explaining       that    whether        a    plaintiff’s       coworkers,      or    other

individuals who were not the decision maker, “may have thought

[the plaintiff] did a good job, or that he did not ‘deserve’ [to

be discharged], is close to irrelevant”).

                                               B.

       Despite Hill’s reliance on evidence that the record does

not    appear    to    contain      to   establish       prong    three--that        he   was

qualified       and    meeting      SEFL’s      legitimate       expectations--in         an

abundance of caution we ground our decision to affirm in Hill’s

acknowledged failure to produce evidence as to prong four--that

his position remained open or was filled by someone younger.

       In lieu of evidence, Hill argues that the fact that his

position    was       filled   by    a       similarly    qualified,      substantially

younger individual is a matter of common sense.                               Hill argues

that    “[i]t    is    inconceivable          that   after      plaintiff’s     discharge

defendant simply abandoned his route and the customers served by




as required for consideration under Fed. R. Civ. P. 56(c). See
Hill v. Se. Freight Lines, 877 F. Supp. 2d 375, 382 (M.D.N.C.
2012). Hill does not protest that ruling on appeal.



                                               8
him in light of their importance to defendant’s business.                            By

necessity,    plaintiff’s      position     had      to    be    filled    by   someone

else, thereby satisfying the fourth prima facie case component.”

Appellant’s Br. at 20.         We must decline to take such a leap of

faith.     Even if we could assume, and we cannot, that SEFL has

filled Hill’s position, he offers no evidence whatsoever to even

suggest that his replacement is substantially younger.

     Hill also asserts that there were several open dock worker

positions at the time of his discharge, and that he “easily

could have filled any of these, which would likely have taken

him out to time for retirement.”             Appellant’s Br. at 20 (citing

A. 125).     However, the only indication in the record of any open

positions    is   found   in   Hill’s     own     testimony,       which     does   not

appear to be grounded in personal knowledge.                       Hill simply has

offered     no    evidence      relevant        to        this    fourth        element,

underscoring      the   lack   of   connection         between      SEFL’s      adverse

employment decision and any implication, however remote, of age

discrimination.



                                     III.

     For the foregoing reasons, the judgment of the district

court is

                                                                             AFFIRMED.



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