                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-1757


MIKE DUFFY,

                Plaintiff - Appellant,

           v.

BELK, INC.,

                Defendant - Appellee.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Graham C. Mullen,
Senior District Judge. (3:10-cv-00021-GCM)


Argued:   March 23, 2012                  Decided:   April 23, 2012


Before GREGORY, KEENAN, and FLOYD, Circuit Judges.


Affirmed by unpublished opinion.       Judge Gregory wrote      the
opinion, in which Judge Keenan and Judge Floyd joined.


ARGUED: Carol Nelkin, NELKIN & NELKIN, PC, Houston, Texas, for
Appellant.   James Bernard Spears, Jr., OGLETREE, DEAKINS, NASH,
SMOAK & STEWART, PC, Charlotte,    North Carolina, for Appellee.
ON BRIEF:     Stuart M. Nelkin, NELKIN & NELKIN, PC, Houston,
Texas, for Appellant.


Unpublished opinions are not binding precedent in this circuit.
GREGORY, Circuit Judge:

       Appellant Mike Duffy appeals the district court’s grant of

summary judgment in favor of Appellee Belk, Inc.                               Duffy claims

that   the     district       court   erred       in   finding     that    he     failed      to

establish a prima facie case of age discrimination under the Age

Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623(a)

(1999).        Duffy    contends      that    Belk        discriminated         against    him

twice.       First, it eliminated Duffy’s position as director of

customer       relationship         management           (“Director       of     CRM”)     and

consolidated his duties with those of Lis Cravens, then vice

president of marketing and customer research.                         Having eliminated

both Duffy’s and Cravens’s positions, Belk selected Cravens, who

is   twenty     years    Duffy’s      junior,       to    assume   the     new    position.

Second, Duffy claims that Belk discriminated against him when it

failed to assign him to one of two positions after his job was

eliminated.

       Belk contends that Duffy has not established a prima facie

case     for    age     discrimination            and,     in   any    event,       it     had

legitimate,          non-discriminatory            business        reasons        for      its

decision:      the     elimination      of    Duffy’s       position      was     due    to    a

reduction in force, and the selection of Cravens for the new

position       was    based    on     her    prior       experience       and    education.

Further, Belk argues that it had legitimate reasons to select

other individuals to fill the two positions.                       The district court

                                              2
granted summary judgment in favor of Belk and held that Duffy

neither established a prima facie case for age discrimination

nor offered sufficient evidence to show that Belk’s business

reasons for its decision were pretexts for age discrimination.

Duffy timely appealed this decision.                 For the following reasons,

we   affirm,    holding   that   while       Duffy    has    established     a   prima

facie case of age discrimination, he has failed to show that

Belk’s     legitimate     business       reasons       for       its   actions     are

pretextual.



                                       I.

      We review de novo the district court’s grant of summary

judgment.      Med. Waste Assocs. Ltd. P’ship v. Baltimore, 966 F.2d

148, 150 (4th Cir. 1992).            To survive summary judgment, Duffy

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

Belk discriminated against him due to his age.                         See Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986).                      Under the ADEA, a

plaintiff “must prove, by a preponderance of the evidence, that

age was the ‘but for’ cause of the challenged adverse employment

action.”    Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2352

(2009).     A plaintiff can prove the claim either through direct

or   circumstantial       evidence,      see     Hill       v.    Lockheed       Martin

Logistics Mgmt., Inc., 354 F.3d 277, 284 (4th Cir. 2004), or by



                                         3
the     McDonnell    Douglas       burden-shifting           framework,       McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973).

      Both   parties       agree   that   the       McDonnell       Douglas    framework

applies in this case.          Under this framework, the plaintiff must

first    satisfy     the    elements      of    a    prima     facie    case    of    age

discrimination.        411 U.S. at 802.              If the plaintiff satisfies

this initial burden, then the burden of production shifts to the

employer to show that its decision to terminate the plaintiff is

based on a legitimate, non-discriminatory reason.                             Hill, 354

F.3d at 285.        The burden then shifts back to the plaintiff who

must prove by a preponderance of the evidence that the reason

given is a pretext for age discrimination.                    Id.

      This framework is not altered in the context of summary

judgment.     See Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1317

(4th Cir. 1993).           Further, while summary judgment favors the

nonmoving    party    in    its    interpretation        of     the    facts,    in   the

context of employment discrimination cases “[i]t is not for this

court . . . to direct the business practices of any company,”

EEOC v. Clay Printing Co., 955 F.2d 936, 946 (4th Cir. 1992),

nor “sit as a super-personnel department weighing the prudence

of employment decisions made by the defendants.”                          Anderson v.

Westinghouse Savannah River Co., 406 F.3d 248, 272 (4th Cir.

2005) (internal quotation marks and citations omitted).



                                           4
                                               II.

                                               A.

       Duffy contends that he has established a prima facie case

for age discrimination arising out of the elimination of his

position        and    the    selection     of       Cravens   for   the    consolidated

position.        The elements of a prima facie case vary depending on

the nature of the claim.               Dugan v. Albermarle Cnty. Sch. Bd.,

293    F.3d     716,    721    n.1   (4th      Cir.     2002).       Generally   in   the

reduction-in-force context, a prima facie case is met if the

plaintiff establishes that (1) he qualifies as a member of the

protected class; (2) he was demoted or terminated; (3) at the

time       of   his    termination,       he     met    his    employer’s    legitimate

expectations; and (4) he was replaced by a substantially younger

individual.           See id. at 720-21; see also Reeves v. Sanderson

Plumbing Prods., 530 U.S. 133, 142 (2000).

       The district court found that Duffy failed to establish a

prima facie case because he did not meet the fourth element. 1

However, the district court did not apply the proper standard

for the fourth element in the reduction-in-force context for age

discrimination.          See J.A. 932 (finding that the fourth element

       1
        It is undisputed that at the time of his termination,
Duffy was 61 years old and thus qualified as a member of the
protected class. It is also undisputed that at the time of his
termination, he met Belk’s legitimate expectations as Director
of CRM.



                                                5
requires a showing that the employer did not treat the protected

status neutrally or there were circumstances giving rise to an

inference    of    discrimination).           The      proper     standard      here    is

whether     the    plaintiff       was    “replaced”         by    a    “substantially

younger” worker.           See Strokes v. Westinghouse Savannah River

Co., 206 F.3d 420, 429-30 (4th Cir. 2000).

        Twenty years his junior, Cravens is “substantially younger”

than Duffy.        A closer call is whether Cravens’s assumption of

the consolidated position is a “replacement” of Duffy.                             Duffy

claims    that    it   was    Cravens’s    and    not    his      position      that   was

eliminated       because     she   received      all    of   his       duties   and    the

employees who reported to him.             Belk contends that Duffy ignores

the fact that the new position was a consolidation of the two

prior positions and that Cravens’s primary responsibilities in

this new position continue to be customer research and analysis

work.     We have determined before that a transfer of some of a

terminated plaintiff’s duties to younger workers is sufficient

to satisfy the fourth element of a prima facie case of age

discrimination.        Reed v. Buckeye Fire Equip., 241 F. App’x 917,

927 (4th Cir. 2007) (finding that the terminated plaintiff was

replaced by a younger employee when the employer transferred

some of his job duties to a 45-year-old employee and then gave

the plaintiff’s other duties to a 40-year-old employee hired

after     plaintiff’s        termination).          Here,     Belk’s      decision      to

                                          6
terminate Duffy by consolidating his position with Cravens was

in fact a transfer of Duffy’s duties to the new position.                 Duffy

has proven the fourth element and thus established a prima facie

case for age discrimination. 2

                                         B.

     Because Duffy has established a prima facie case for age

discrimination,    we   must   consider   whether    Belk    has   put    forth

legitimate,     non-discriminatory       reasons    for     its    employment

decisions.     Belk has offered two: the consolidation of the two

positions and the termination of Duffy were part of a reduction

in force, and Cravens was better suited for the consolidated

position.     Kathy Bufano, then president of merchandising and

marketing and charged by Belk’s executive management to advise

of   any    necessary   job    consolidations,      determined     that    the

Director of CRM and vice president of marketing and customer


     2
       Because Duffy has established the fourth element, this
Court need not address whether the district court erred in
rejecting Duffy’s statistical evidence to support a prima facie
case.    Duffy argued that out of the 72 employees in the
marketing department, the 2 other employees besides himself
whose jobs were eliminated were between the ages of 52 and 62.
The district court concluded that this evidence was unpersuasive
because “Duffy does not satisfactorily compare the ages of the
employees that were fired with other employees in the department
to create any reasonable inference of discrimination.”       J.A.
932.   It further noted that one of the fired employees, Paul
Michelle, was replaced by an older employee, Jon Pollack.     Id.
At oral arguments, Duffy’s attorney conceded that this court
could not infer age discrimination from Michelle’s termination.



                                     7
research    possessed        “like    functions.”              Using   as    guidance     the

Sears    Brand       model   for    management,          she    recommended        that   the

positions be consolidated.                As part of the consolidation, Bufano

proposed that the employees who report to the Director of CRM be

placed under the consolidated position.                        She also suggested that

Cravens’s responsibility over “special events” –- many of which

were fashion-related –- should be transferred to another vice

president who already managed the company’s fashion shows and

trends.     Both moves, Bufano reasoned, improved the alignment of

“like tasks” under her supervision.

      Bufano also recommended that the consolidated position be

assigned       to     Cravens    because         her     experience        with    marketing

strategies would enhance Belk’s direct mailing marketing.                                 She

also found Cravens’s experience as a “brand manager” valuable to

the   combined        functions      of    the    new     position.          Additionally,

Bufano took into consideration Cravens’s attainment of an MBA

degree     and       her   significant       contributions            to    the    company’s

“Private       Brands”     merchandise,          which    the    executive        management

viewed    as     a    critical     growth    brand       for    the    company’s     future

success.         Bufano thus based her recommendation on “strategic

business decision[s]” that are “legally sufficient” to support

Duffy’s termination.             Mereish v. Walker, 359 F.3d 330, 335 (4th

Cir. 2004).           For these reasons, Belk has offered legitimate,

non-discriminatory reasons for its decisions.

                                             8
                                            C.

        Because     Belk     put    forth         legitimate,         non-discriminatory

reasons       for   its    decision,      Duffy     bears       the     final    burden    of

showing that the reasons presented by Belk are merely pretexts

for     age    discrimination.            Duffy      can        establish       pretext    by

establishing that the reasons given are “unworthy of credence”

or by presenting other evidence “sufficiently probative of age

discrimination.”            Mereish,    359       F.3d    at    336.      Duffy    presents

several arguments in an attempt to show that age discrimination

was the basis of Belk’s decisions, including (1) Belk knew that

he was substantially older than Cravens; (2) his position had

never     been      consolidated       with       another       position        before    the

reduction in force; (3) Belk recognized him as a good employee;

and    (4)    the   consolidated       position’s         most    important       duty    was

direct mailing, a duty that he was more qualified to manage than

Cravens.

        As evidence, Duffy points to several items in the record.

Neither party disputes that Duffy’s position as Director of CRM

had never been consolidated with another prior to 2008, and the

record indicates that Belk’s executive management believed Duffy

to be a good employee.              And a reasonable jury could infer that

Belk    at    least   had    constructive          knowledge      that     Duffy,    twenty

years    Cravens’s        senior,   was    older         than    her.      However,       this

evidence is insufficient under our precedent to show that Belk’s

                                              9
business       reasons     for    the      consolidation       of     the   positions,

termination of Duffy, and selection of Cravens were pretexts for

age    discrimination.           See,     e.g.,     Birkbeck    v.    Marvel    Lighting

Corp., 30 F.3d 507, 512 (4th Cir. 1994) (“In a reduction of work

force case, the fact that the duties were assumed by a younger

individual is not conclusive of age bias.”); Mereish, 359 F.3d

at 338-39 (rejecting plaintiffs’ argument of pretext that their

positions were important to the employer’s mission: “The very

nature of a [reduction in force] is that some workers must be

let go, and difficult decisions have to be made.”); Anderson,

406 F.3d at 270 (rejecting plaintiff’s argument to show pretext

that    she    was     better    educated       and    more   experienced       than    the

younger employee when the employer based its decision to promote

the younger employee on other legitimate criteria).

       Duffy’s final contention does not create an inference of

pretext       either.      It    is     true    that   Duffy   possesses        years    of

experience in direct mailing while Cravens possesses none.                              See

J.A. 631.         However, Duffy has not established a record that

could support a finding by a preponderance of the evidence that,

in    his     words,    “the     most    important       aspect      of   the   combined

position involved direct mail.”                     When an employer consolidates

two positions it is expected that each position’s duties will

share a significant part of the consolidated position.                             Here,

the consolidated position comprises duties from both Cravens’s

                                               10
and   Duffy’s     former       positions,     and   as   Cravens      testified,      she

retained    the    functions       of    developing      and    executing       research

initiatives,       overseeing       customer        research         data,     providing

strategic       direction,         developing        organizational            direction

regarding customer research strategies, and participating on the

market research committee.              J.A 646, 632-42.             Duffy makes much

of the fact that Belk spends significantly more of its marketing

budget on direct mailing than on customer research.                             However,

the amount of money spent on direct mailing is not evidence that

the most important of Cravens’s duties involves direct mailing.

      A   plaintiff      alleging       an   ADEA   claim      must    show    that   the

adverse employment action was motivated by age.                        See Tex. Dep’t

of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Mereish,

359 F.3d at 336 (holding that plaintiffs failed to show pretext

despite documented evidence of the employer’s desire to protect

the   “young,      bright,       junior”      employees        and    the     employer’s

expressed concern with the aging workforce); Dugan, 293 F.3d at

722 (holding      that     a    plaintiff     failed     to    show   her     employer’s

reason for demoting her was pretextual for discrimination when

the employer did not abide by its own mandatory seniority policy

when allocating full-time status between the older, and more

senior plaintiff and the younger, more junior employee).                               In

this case, Duffy cannot point to a single reference by Bufano or

any other Belk employee that would allow this Court to infer

                                             11
that   age     played    any,     let   alone     a     dispositive,      role    in     his

termination.          Further,        because     Cravens       was    assigned     to     a

consolidated position, this is a decidedly different case than

if she had assumed the Director of CRM position.                         And Duffy has

failed to show that the consolidation is a sham because the

consolidated position’s duties are substantially similar to his

terminated position.             For these reasons, Duffy’s evidence is

insufficient to permit an inference that Belk’s business reasons

for    its    decisions        were   pretexts        for     age    discrimination       or

unworthy of credence.             See Holland v. Washington Homes, Inc.,

487 F.3d 208, 215 (4th Cir. 2007).



                                          III.

       Finally, we address Duffy’s challenge that Belk failed to

assign him to one of two positions after his own position was

consolidated: director of email content or vice president of

advertising planning and analysis.                      The district court found

that Duffy was unable to establish a prima facie case of age

discrimination for either position and even if Duffy did present

such    a     showing,    he     failed     to        rebut    the    legitimate       non-

discriminatory reasons given for hiring other candidates.

       The first position, director of email content, was assigned

to Carolyn Hartman in December of 2008.                        Hartman, who at that

time    was     the     vice    president        of     advertising      planning        and

                                           12
analysis, was having a serious romantic relationship with Jon

Pollack.       Due to Pollack’s transfer to a consolidated position,

he    became    a     direct   supervisor          of    Hartman     in   violation       of

personnel policy.          To prevent this conflict of interest, the

company assigned Hartman to the director of email content, a

position not overseen by Pollack.                  As a result, Hartman accepted

a    $30,000    pay    cut,    as     well    as     a    title     reduction.        This

assignment was not a part of Belk’s reduction-in-force measures.

      The second position was a result of this reassignment.                              To

replace Hartman in her vice president position, Belk executive

management promoted Sue Curley.                   Curley was selected due to her

merchant experience, gained during her time at Belk and at her

prior job.          She was promoted to this position several weeks

before    Belk’s      human    resources          department       offered   Duffy    the

choice of assuming two lower-level positions.                         Duffy declined,

however, because neither position met his salary expectation of

$160,000.

      Duffy argues that Belk should have offered him the position

of director of email content instead of Hartman.                          Neither party

addresses      whether    this      challenge       should    be    analyzed      under    a

reduction-in-force         framework         or     the      traditional       McDonnell

Douglas discrimination-in-hiring framework.                         Regardless, under

either framework Duffy does not make out a prima facie case.

Duffy    has   not     shown   that    Belk’s       reassignment      was    an   adverse

                                             13
employment action against him as required in the reduction-in-

force    context.            Duffy    has    not       presented     any      evidence          that

indicates Hartman’s reassignment was actually connected to the

reduction       in     force     and       not        solely   due       to   her        romantic

involvement with Pollack.                  Nor has he shown, as required in the

discrimination-in-hiring context, that he ever applied for the

position and was qualified, other than offering his own opinion

of his experience relative to Hartman.                         See McDonnell Douglas,

411 U.S. at 802.             Hartman, unlike Duffy, was identified by Belk

as    someone     of    “High       Potential”         whose   experience           and    talent

qualified       her    for    two     upward      promotions       if     such      a    position

became available.             In light of the evidence, Duffy has not made

a prima facie case for age discrimination with respect to the

director of email content position.

       Even if Duffy had established a prima facie case, Belk has

offered a legitimate, non-discriminatory reason for transferring

Hartman    to     the    position:         to    avoid     a   conflict        of       interest.

Duffy’s support for a finding of pretext is the fact that Belk

was willing to create a new position for Hartman who is younger

but was unwilling to create a new position for him.                                 This point

overlooks       the    fact    that    Human      Resources        did    offer         Duffy   two

positions that he rejected and also ignores that our analysis is

not     about    unfairness          but    about        whether     age      discrimination

occurred.        As the district court properly found, Belk has no

                                                 14
duty or personnel policy that requires it to assign Duffy to an

alternate    job    after       it    eliminated         his    position.           For   these

reasons, Duffy has not shown that the decision to assign Hartman

to be the director of email content instead of him was due to

his age.

     Finally,      Duffy        argues   that       he    was    discriminated           against

based on his age in Belk’s failure to promote him to the vice

president position.              In a failure-to-promote claim, Belk must

establish that he (1) is a member of a protected class; (2)

applied for the position; (3) was qualified for the position;

and (4) was rejected for the position under circumstances that

give rise to an inference of unlawful discrimination.                               Anderson,

406 F.3d at 268.          The district court found that Duffy could only

satisfy the first element.

     Duffy admits that he did not apply for the position but

states     that    he     was     not    allowed         to     because      the    executive

management       sought    out       Curley     and      offered      her    the    position.

Duffy    cites    no    case      law    that       supports      this      Court    excusing

element    two    of    the     standard       when      the    job    was    not    open    to

applicants in the first place.                      However, even if we were to

agree with Duffy on this point, Belk has offered legitimate,

non-discriminatory         reasons       for    seeking         out   Curley       and    hiring

her: she possessed extensive merchant experience, and she had

been identified as a “High Potential” employee by Belk.                                   Duffy

                                               15
responds that he is qualified for the position; however, “[i]t

is the perception of the decision maker which is relevant, not

the   self-assessment   of   the     plaintiff.”   Evans   v.    Techs.

Applications & Serv. Co., 80 F.3d 954, 960-61 (4th Cir. 1996).

Other than his assertions, Duffy has not offered evidence to

reject Belk’s non-discriminatory reasons and thus fails to meet

his burden of showing that these reasons were pretexts for age

discrimination.



                                   IV.

      For the foregoing reasons, we affirm the district court’s

grant of summary judgment in favor of Belk.

                                                                AFFIRMED




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