UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROBERT G. WALSH,
Plaintiff-Appellant,

v.                                                                    No. 96-1528

CIBA-GEIGY CORPORATION,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, Chief District Judge.
(CA-94-634-5-F)

Submitted: August 12, 1997

Decided: September 2, 1997

Before WILKINSON, Chief Judge, and HALL and
MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Marvin Schiller, Raleigh, North Carolina, for Appellant. Martin N.
Erwin, SMITH, HELMS, MULLISS & MOORE, L.L.P., Greensboro,
North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Robert Walsh appeals from the district court's grant of a Motion
for Judgment as a Matter of Law pursuant to Fed. R. Civ. P. 50(a).
Walsh's action alleged that the Appellee CIBA-GEIGY Corporation,
his former employer ("employer"), terminated him based on his age
in violation of the Age Discrimination in Employment Act
("ADEA"), 29 U.S.C. § 621 et seq. He also brought claims of wrong-
ful discharge and breach of contract under North Carolina law.

Walsh began working for employer as a draftsman at its New York
facility in 1969. He left New York in October 1989 to take a new
position as Manager of Engineering and Maintenance at the compa-
ny's facility in North Carolina. Walsh alleges that prior to accepting
the job, he sought and received assurances from Phil Young, the Site
Director at the North Carolina facility, that if he transferred he would
be permitted to keep his position until his planned retirement at age
65. Young left the company in May 1991, and was replaced by Dan
Lehman.

In May 1993, Lehman asked Walsh to add the duties of Safety
Manager to his existing responsibilities. Walsh responded that he was
unqualified for the position. Although Lehman responded that the
company would send him to school for any necessary training, Walsh
still expressed no interest in the position. Around the end of June
1993, the company held two meetings at which it solicited volunteers
from among Walsh and certain co-workers to assume the responsibili-
ties of Site Safety Manager. By this time, the employee who formerly
held the Safety Manager position had left the company.

On July 12, 1993, Lehman gave Walsh a memo from another com-
pany official which recommended that the duties of Safety Manager
be assigned to Walsh. Walsh responded with a letter the next day stat-
ing again that he was unqualified for the position, and that the training
he needed "would take too much time to accomplish and not be in the
best interest of this unit." A couple of weeks later, Lehman told
Walsh that the site safety position had been consolidated with another
engineering position requiring a greater level of engineering expertise

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than Walsh possessed, effectively eliminating Walsh's position. The
new position was awarded to a forty-year old male who, unlike
Walsh, was an engineer. At the time of his discharge, Walsh was 59
years of age.

On appeal, Walsh first alleges that the district court erred by rely-
ing on our decision in O'Connor v. Consolidated Coin Caterers
Corp., 56 F.3d 542 (4th Cir. 1995) (O'Connor I), in finding that his
ADEA claim could not succeed as a matter of law. In O'Connor, we
held that if the individual selected to replace a plaintiff was a member
of the class protected by the statute, i.e., 40 or over, then the plaintiff
could not establish a prima facie case of discrimination under
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Id. at 546.
Walsh correctly contends that the Supreme Court subsequently
reversed this holding, finding that whether "one member of the pro-
tected class lost out to another member is irrelevant, so long as he lost
out because of his age." O'Connor v. Consolidated Coin Caterers
Corp., ___ U.S. ___, 116 S.Ct. 1307, 1310 (1996).

Our review, however, of the grant of a Rule 50 motion is de novo.
Malone v. Microdyne Corp., 26 F.3d 471, 475 (4th Cir. 1994). Hence,
we may properly assess in this case whether, even absent our holding
in O'Connor I, the jury could have reached only one conclusion
regarding Walsh's ADEA claim. See Gairola v. Virginia Dep't of
Gen. Servs., 753 F.2d 1281, 1285 (4th Cir. 1985). We agree with the
employer that a reasonable jury could not have found establishment
of age discrimination in this case.

A plaintiff can prove an ADEA violation either (1) by direct or
indirect evidence relevant and probative to the issue, or (2) by means
of the proof scheme used in McDonnell Douglas , as adapted to
ADEA claims. See O'Connor I, 56 F.3d at 545-46. To establish a
prima facie case of age discrimination under the McDonnell Douglas
scheme, Walsh needed to prove that (1) he was a member of the pro-
tected age group (40 or over), (2) he was discharged or demoted, (3)
at the time of his discharge or demotion, he was performing his job
at a level that met his employer's legitimate expectations, and (4)
after his discharge or demotion, he was replaced by someone of com-
parable qualifications, who was substantially younger than himself.

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See Burns v. AAF-McQuay, Inc., 96 F.3d 728, 731 (4th Cir. 1996).*
In this case, Walsh effectively concedes that he could not establish the
third or fourth elements. There is no dispute that he was not qualified
to perform the safety or engineering aspects of the new position.
Moreover, the fourth element of the McDonnell Douglas scheme sur-
vives at least to the extent that the plaintiff must show that he was
replaced by someone of comparable qualifications. In this case, there
is no dispute that Walsh lacked the engineering qualifications of his
replacement. Accordingly, the record cannot support a finding of a
prima facie case of age discrimination under the McDonnell Douglas
scheme.

Nor does the record contain evidence, either direct or indirect,
which could establish age discrimination under ordinary principles of
proof. To establish an ADEA violation under the direct standard of
proof scheme, Walsh had to show that (1) he was an employee cov-
ered by the statute, (2) an employer covered by the statute took action
unfavorable to him, and (3) age was a determining factor in the action
in the sense that but for the employer's intent to discriminate on the
basis of age, he would not have suffered the adverse employment
action. See O'Connor I, 56 F.3d at 548. Where the relevant decision-
maker has hired or offered the plaintiff a promotion shortly before his
termination, a strong inference arises that discrimination was not a
factor motivating the discharge. See Mitchell v. Data Gen. Corp., 12
F.3d 1310, 1318 (4th Cir. 1993). The only evidence supportive of
Walsh's position is his testimony that during the last few months pre-
ceding his termination, Lehman asked him on several occasions when
he was planning to retire. As Walsh presented this evidence in isola-
tion, without demonstrating any nexus to his termination, we find that
the statements do not evince discriminatory intent. Id. at 549. More-
over, we note that Walsh's superiors offered him the training neces-
sary to retain his position before offering it to another. Accordingly,
we find that the district court properly granted judgment as a matter
of law on Walsh's ADEA claim.
_________________________________________________________________
*Prior to the Supreme Court's decision in O'Connor, a plaintiff also
had to establish that following his discharge or demotion, he was
replaced by someone of comparable qualifications outside the protected
class. The Supreme Court's decision somewhat modifies this last require-
ment. See Burns, 96 F.3d at 731 n.1.

                    4
Walsh next challenges the district court's decision to grant
employer judgment on his wrongful discharge claim. Walsh contends
that his termination fits within the class of cases recognizing an
exception to North Carolina's employment at-will doctrine in situa-
tions where an employee's termination is in contravention of an
expressed public policy of the State. See Amos v. Oakdale Knitting
Co., 416 S.E.2d 166, 167 (N.C. 1992). Specifically, Walsh asserts that
his termination is inconsistent with the policy of State Occupational
Safety and Health laws intended to promote workplace safety,
because had he attempted to perform the job offered to him he would
have endangered the safety of his co-workers and the public.

We need not address employer's argument that Walsh has reframed
his public policy argument before this court to the point that it consti-
tutes an argument initially raised on appeal. Instead, we find that the
district court correctly determined that employer did not ask Walsh to
do anything which would violate North Carolina's policies favoring
workplace safety. The obvious purpose of the position the employer
offered was to promote workplace safety. Moreover, Walsh admitted
in his testimony that he could have performed the duties requested
with training, and that such training was offered. The district court
therefore properly granted judgment on the wrongful discharge claim.

Finally, we reject Walsh's position that Mr. Young's promise of a
job until Walsh reached age 65 created an oral contract for a term of
definite duration. First, under North Carolina law, promises of a per-
manent job do not create a contract for a definite period of time. See
Nantz v. Employment Security Comm'n, 226 S.E.2d 340, 343 (N.C.
1976). Second, even if such a promise could otherwise create a con-
tract, in this case there is insufficient consideration to support a con-
tract. In North Carolina, where an employee forfeits his position in
one city and moves to another city in order accept a job within the
same company, the employee's actions provide insufficient consider-
ation for a contract, and the employee remains an at-will employee.
See Buffaloe v. United Carolina Bank, 366 S.E.2d 918, 920-21 (N.C.
App. 1988). As no contract for a definite duration existed in this case,
Walsh's claim of breach must fail.

Accordingly, the judgment order of the district court is affirmed.
We dispense with oral argument because the facts and legal conten-

                     5
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

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