UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JAMES L. McDONALD,
Plaintiff-Appellant,

v.
                                                               No. 96-1308
CABOT CORPORATION, a foreign
corporation,
Defendant-Appellee.

JAMES L. McDONALD,
Plaintiff-Appellant,

v.
                                                               No. 96-1512
CABOT CORPORATION, a foreign
corporation,
Defendant-Appellee.

Appeals from the United States District Court
for the Southern District of West Virginia, at Parkersburg.
Charles Haden II, Chief District Judge.
(CA-95-277-6)

Argued: January 27, 1997

Decided: August 15, 1997

Before ERVIN and LUTTIG, Circuit Judges, and
HILTON, United States District Judge for the
Eastern District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

ARGUED: William L. Jacobs, Parkersburg, West Virginia, for
Appellant. David Steven Russo, ROBINSON & MCELWEE,
Charleston, West Virginia, for Appellee. ON BRIEF: Joseph M.
Price, C. Scott Masel, ROBINSON & MCELWEE, Charleston, West
Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

James McDonald sued Cabot Corporation for terminating his
employment in 1994, when he was 43. McDonald alleges that Cabot's
actions violated the Age Discrimination in Employment Act (ADEA),
29 U.S.C. §§ 621-34, and The West Virginia Human Rights Act
(Human Rights Act), W. Va. Code §§ 5-1-11 et seq.* The district
court granted Cabot's motion for summary judgment and McDonald
now appeals. With the following brief discussion, we affirm.

Where no genuine dispute exists as to a material fact, summary
judgment is appropriate if the moving party is entitled to prevail as
a matter of law. See Fed. R. Civ. P. 56(c); Henson v. Liggett Group,
Inc., 61 F.3d 270, 274 (4th Cir. 1995). In the instant case, McDonald
must show sufficient evidence to allow a reasonable jury to conclude
that his termination was due to illegal age animus in order to survive
Cabot's motion for summary judgment. See Henson , 61 F.3d at 275.
At this stage, McDonald is entitled to have all evidence taken in the
light most favorable to him and all possible inferences drawn in his
_________________________________________________________________
*McDonald originally sued Cabot in West Virginia state court, but
Cabot removed to federal district court, which had diversity jurisdiction
to hear the case, pursuant to 28 U.S.C. §§ 1332, 1441.

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favor. See Conkwright v. Westinghouse Elec. Corp., 933 F.2d 231,
233 (4th Cir. 1991). However, a mere scintilla of evidence in support
of McDonald's position is inadequate to avert summary judgment.
See Henson, 61 F.3d at 274.

In cases brought pursuant to both the Human Rights Act and the
ADEA a plaintiff may rely on a burden shifting scheme like that set
forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to
prove his or her case. See Burns v. AAF-McQuay, Inc., 96 F.3d 728,
731 (4th Cir. 1996) (employing burden-shifting framework for analy-
sis of ADEA cases), cert. denied, 117 S. Ct. 1247 (1997); Henson, 61
F.3d at 274 (same); McCauley v. Merrimac, Inc. , 460 S.E.2d 484, 487
(W. Va. 1995) (employing the same analysis for cases brought under
the Human Rights Act); Barefoot v. Sundale Nursing Home, 457
S.E.2d 152, 159-60 (W. Va. 1995) (same). Under this scheme a plain-
tiff must first prove a prima facie case of discrimination before any
burden is placed on the defendant. See Conkwright, 933 F.2d at 234;
Barefoot, 457 S.E.2d at 160.

In the instant case, McDonald readily proves two elements of the
prima facie case for violations of both the ADEA and the Human
Rights Act: he is over forty and, therefore, a member of a protected
class, and he was fired by Cabot. Conkwright, 933 F.2d at 234;
McCauley, 460 S.E.2d at 487. In addition, Cabot does not contest that
McDonald was performing his job satisfactorily, which we have iden-
tified as an element of a prima facie case under the ADEA, see
Conkwright, 933 F.2d at 234, although it is not an explicit require-
ment under West Virginia law. Therefore we need not further con-
sider these three factors.

The final element which McDonald must prove under federal and
state law is that he was replaced by someone younger than himself,
giving rise to an inference of discrimination. O'Connor v. Consoli-
dated Coin Caterers Corp., 116 S. Ct. 1307, 1310 (1996). This
requirement has alternatively been articulated in the state law context
as requiring some evidence linking the employment decision to the
employee's protected status. Barefoot, 457 S.E.2d at 161. It is this
final prong that McDonald is simply unable to prove, regardless of
how broadly we articulate the requirement.

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McDonald argues that he was replaced by persons younger than
himself, but he offers only his own, unsubstantiated affidavit that two
young employees at Cabot, Richard Hyde and Melanie Collins,
assumed his duties after his termination. However, McDonald's affi-
davit is entirely unpersuasive. First, it is merely conclusory, offering
no evidence to support his assertion that the two younger employees
are doing his former job. McDonald fails to explain how he knows
who assumed his duties or what occurred at Cabot after he left. The
district court was correct to reject the affidavit because McDonald has
not shown that he is competent to testify about its contents. More
importantly, McDonald's affidavit is contradicted by his earlier depo-
sition testimony. When asked at his deposition, he said he had never
met either Collins or Hyde and did not know their ages or their duties
at Cabot. We have made clear that an unsubstantiated affidavit by the
plaintiff, in contradiction to his own previous deposition testimony,
is simply inadequate to create a genuine issue of material fact and
avert summary judgment. See Barwick v. Celotex Corp., 736 F.2d
946, 960 (4th Cir. 1984).

In contrast to McDonald's utter paucity of evidence, Cabot has
presented affidavits and deposition testimony that McDonald's former
position at Cabot was eliminated. To the extent that other employees
assumed any of McDonald's duties after his departure, Cabot has
shown that those employees were older than McDonald, not younger.

We conclude that McDonald has been unable to make out an essen-
tial element of his prima facie case because he has offered no evi-
dence that he was terminated under circumstances which give rise to
an inference of impermissible discrimination. Therefore we

AFFIRM.

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