UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1786
SHUN-LUNG CHAO,
Plaintiff - Appellant,
v.
INTERNATIONAL BUSINESS MACHINES CORPORATION, d/b/a IBM, a
New York Corporation; DONNA HARDEE,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:09-cv-00077-BO)
Submitted: March 21, 2011 Decided: April 22, 2011
Before SHEDD, DAVIS, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Joshua N. Levy, LEVY LAW OFFICES, Raleigh, North Carolina, for
Appellant. C. Matthew Keen, Michael D. McKnight, OGLETREE,
DEAKINS, NASH, SMOAK & STEWART, P.C., Raleigh, North Carolina,
for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shun-Lung Chao appeals the district court’s judgment
granting summary judgment to International Business Machines
Corp. (“IBM”) and dismissing Chao’s discrimination and
retaliation claims. We affirm.
Chao raised claims under Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C.A. §§ 2000e - 2000e-17 (West
2003 & Supp. 2010); 42 U.S.C. § 1981 (2006), the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C.A. § 621-634
(West 2008 & Supp. 2010), and North Carolina state law. He does
not appeal the district court’s judgment with respect to his age
discrimination claims, and they are accordingly abandoned. Chao
argues on appeal that the court erred in granting summary
judgment to IBM on his discrimination and retaliation claims.
I. Discrimination
This court reviews a district court’s order granting
summary judgment de novo. Jennings v. Univ. of N.C., 482 F.3d
686, 694 (4th Cir. 2007) (en banc). “At the summary judgment
stage, facts must be viewed in the light most favorable to the
nonmoving party only if there is a ‘genuine’ dispute as to those
facts.” Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Fed.
R. Civ. P. 56(c)). Summary judgment “should be rendered if the
pleadings, the discovery and disclosure materials on file, and
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any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(c). “[T]here is no issue
for trial unless there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986);
see also Scott, 550 U.S. at 380 (“Where the record taken as a
whole could not lead a rational trier of fact to find for the
nonmoving party, there is no ‘genuine issue for trial.’”)
Absent direct evidence of intentional discrimination,
Title VII and § 1981 claims are analyzed under the burden-
shifting framework established in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 793 (1973). See Bryant v. Bell Atl. Md.,
Inc., 288 F.3d 124, 133 n.7 (4th Cir. 2002) (recognizing that
the elements of a discrimination claim are the same under both
Title VII and § 1981). Under McDonnell Douglas, once a
plaintiff establishes a prima facie case of discrimination, the
burden shifts to the defendant to come forward with a
legitimate, nondiscriminatory reason for the employment
decision. If the defendant meets this burden, the onus returns
to the plaintiff to demonstrate that the reason is pretextual
and that discrimination was the motivating force behind the
decision. McDonnell Douglas, 411 U.S. at 802-04.
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To establish a prima facie case of discrimination,
Chao had to prove:
(1) [he] is a member of a protected class; (2) [he]
suffered adverse employment action; (3) [he] was
performing [his] job duties at a level that met [his]
employer’s legitimate expectations at the time of the
adverse employment action; and (4) the position
remained open or was filled by similarly qualified
applicants outside the protected class.
Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285
(4th Cir. 2004) (en banc).
We have reviewed the record, and while Chao is a
member of a protected class and was terminated, we conclude that
he was not performing his job duties at a level that met his
employer’s legitimate expectations. The record is replete with
examples of Chao’s documented insubordination, costly technical
errors, and poor performance reviews. Thus, we agree with the
district court’s conclusion that Chao has not made out a prima
facie case. Accordingly, summary judgment was proper.
II. Retaliation
Retaliation claims are similarly analyzed under the
McDonnell Douglas framework. A plaintiff in a retaliation case
must show that: (i) he engaged in protected activity; (ii) his
employer took an adverse action against him; and (iii) there is
a causal connection between the protected activity and the
adverse action. Ziskie v. Mineta, 547 F.3d 220, 229
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(4th Cir. 2008). To satisfy the second element, a plaintiff
must show that a reasonable employee would have found the
challenged action “materially adverse, which . . . means it well
might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). If the plaintiff
makes a prima facie showing, the burden shifts to the employer
to articulate a legitimate, non-retaliatory reason for the
adverse action. Baquir v. Principi, 434 F.3d 733, 747
(4th Cir. 2006). If the employer makes such a showing, the
burden returns to the plaintiff to establish that this reason is
a pretext for retaliation. Id.
Here, we similarly find that Chao has not made out a
prima facie case. There is nothing in the record to suggest
that Chao’s manager, Donna Hardee, who ultimately made the
decision to terminate him after he failed to complete his
performance improvement plan in a satisfactory manner, actually
knew of Chao’s protected activities at the time she made her
decision. Absent such a showing, we cannot say that he has made
out a prima facie case. Moreover, the record is clear that Chao
was terminated because of his poor performance, rather than
because he complained of discrimination. Accordingly, we
conclude that the district court did not err in granting summary
judgment to IBM on Chao’s retaliation claim.
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III. Conclusion
For the reasons set forth, we affirm the judgment of
the district court. 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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