Jacque Johnson, Jr. v. Mechanics & Farmers Bank

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1725
JACQUE JOHNSON, JR.,
Plaintiff - Appellant,
v.
MECHANICS & FARMERS BANK,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:05-cv-00258-FDW)
Argued: October 30, 2008 Decided: January 23, 2009
Before WILKINSON, Circuit Judge, Samuel G. WILSON, United States
District Judge for the Western District of Virginia, sitting by
designation, and Henry E. HUDSON, United States District Judge
for the Eastern District of Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Humphrey S. Cummings, CUMMINGS LAW FIRM, P.A.,
Charlotte, North Carolina, for Appellant. Sheri Lea Roberson,
WOMBLE, CARLYLE, SANDRIDGE & RICE, P.L.L.C., Raleigh, North
Carolina, for Appellee. ON BRIEF: Richard L. Rainey, WOMBLE,
CARLYLE, SANDRIDGE & RICE, P.L.L.C., Charlotte, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.

-- 1 of 26 --

PER CURIAM:
Jacque Johnson (“Johnson”) appeals the district court’s
order granting his former employer, Mechanics & Farmers Bank
(“the Bank”), summary judgment on his discrimination and
retaliation claims under the Age Discrimination in Employment
Act of 1967, 29 U.S.C. §§ 621-34 (2000) (“ADEA”) that arise out
of the Bank’s decisions to place him on probation, deny him
incentive pay, and ultimately terminate his employment. We
affirm.
I.
From 1998 to 2005, Johnson worked in the Bank’s Charlotte
branches as City Executive, the senior officer and manager
responsible for all Charlotte operations.1 In 2004, when Johnson
was 56 years old, the Bank’s Charlotte operations were well
below budget expectations for both loans and deposits,
negatively affecting the Bank’s budget as a whole. In May 2004,
the Bank’s Charlotte operations had a shortfall of approximately
$4.5 million in loan production, an amount that erased budget
surpluses in other cities and was principally responsible for
the Bank’s total shortfall of $1.4 million in budgeted loans.
1 In 2004, the Bank’s other City Executives were Stanley
Green, Jr., age 65 (Raleigh), Evelyn Acree, age 42 (Winston-
Salem), and Queron Smith, age 29 (Durham).
2

-- 2 of 26 --

(J.A. 523.)2 Although branches in other cities failed to meet
their production goals each month for loans and deposits in
2004, the Charlotte operations frequently missed the mark by the
widest margin. (J.A. 523-30.)3
With the Charlotte operations’ poor performance as a
backdrop, in the late summer and early fall of 2004, Wesley
Christopher, Johnson’s supervisor and the Bank’s Senior Vice
President and Banking Group Executive, offered Johnson two
alternative jobs that he and others believed would better suit
Johnson’s skills. It is clear that Christopher intended to hire
38-year-old Kevin Price (“Price”) to eventually fill the
Charlotte City Executive position he expected Johnson to
relinquish.
Christopher first offered Johnson the position of the
Bank’s Commercial Lending Manager, the supervisor of all four
City Executives. After discussing the offer and demanding
changes in the position, Johnson refused it twice because he
2 In the same month, the Bank’s Durham operations had a
surplus of approximately $3.1 million in loans, the Raleigh
operations had a deficit of $143,000, and the Winston-Salem
operations had a surplus of $121,000. (J.A. 523.)
3 At the end of 2004, the Bank’s Charlotte branches were
approximately $5.6 million (14.09%) below budget expectations in
loans, and $3.2 million (9.94%) below budget expectations in
deposits. Overall, the Bank finished about $14.3 million
(7.63%) below budget in loans and about $740,000 (0.39%) above
budget expectations in deposits. (J.A. 530.)
3

-- 3 of 26 --

would not receive an “immediate salary adjustment” but instead
would have to wait until March 2005 to gauge the adequacy of his
performance in the new position. (J.A. 301.) According to
Johnson, after his second refusal Christopher responded:
“Jacque, let me be straight with you, we’re concerned about your
Charlotte operation and you have a Bull’s Eye on your Chest.”
(J.A. 301.) Christopher then demanded an update by the
following morning as to what Johnson was doing “to get Charlotte
loans back on budget and timing.” (J.A. 301.) Finally, on
October 1, 2004 Christopher offered Johnson another job, a
lateral position as Senior Underwriter, which Johnson also
refused on that date.
Immediately after Johnson refused the Senior Underwriter
position, Christopher placed Johnson on probation, citing the
poor performance of the Bank’s Charlotte branches in “key areas”
including loans and deposits. (J.A. 297.)4 Johnson responded by
4 These events moved quickly. At 4:32 p.m. Christopher sent
Johnson a job description for the Senior Underwriter position
and required him to respond at once. (J.A. 739.) Johnson
called and rejected the position, and at 5:44 p.m. Christopher
placed him on probation, informing him that he was subject to
termination if Charlotte’s performance did not improve. (J.A.
749, 750-51.) Then, at 6:37 p.m., Christopher wrote Lee Johnson
asking for permission to extend an offer to Kevin Price who
Christopher intended to “eventually be the Charlotte City Exec.”
(J.A. 766.) He also recommended that the Bank “actively and
vigorously pursue a quick and reasonable settlement” and began
planning an “exit package” for Johnson. (J.A. 766-67.)
4

-- 4 of 26 --

filing a grievance challenging Christopher’s decision, calling
his superior’s conduct unprofessional, vindictive, and
duplicitous, and adding that Christopher’s own performance
“should be called into question.” (J.A. 299, 303.)
Nevertheless, Christopher held open the Senior Underwriter
position for Johnson. But despite further entreaties from
Christopher, Johnson refused to speak with Christopher about the
position and in a variety of correspondence with senior officers
and directors characterized Christopher’s entreaties as
“harassing.” (J.A. 343-45.)5 As a result, Lee Johnson, the
Bank’s President and Chief Executive Officer, wrote Johnson on
October 22, 2004 that many of Johnson’s communications within
the Bank, separate and apart from his grievance concerning his
probation, were “insubordinate and unprofessional” and that “any
further deviations . . . [would] result in immediate
termination.” (J.A. 384.) However, Lee Johnson also struck a
conciliatory chord, noting his belief that Johnson was “fully
capable of continuing to be a productive employee.” (J.A. 384.)
As anticipated, the Bank hired Price to serve as
Charlotte’s Vice President and Senior Business Development
5 Johnson also filed a grievance complaining that
Christopher had directed him to apply “inconsistent, illogical,
and wrongful disciplinary action to subordinates . . . .” (J.A.
392.)
5

-- 5 of 26 --

Officer, a new position. Price coordinated with Johnson to
support the Bank’s sales and production, but reported directly
to the Bank’s corporate office.
On November 1, 2004 Lee Johnson wrote Johnson that he was
setting aside Johnson’s probation, although the gist of the
letter mirrored his October 22 letter, warning that Johnson was
expected “to fully execute [his] responsibilities as the City
Executive of Charlotte” and that “any further deviations . . .
[would] result in immediate termination.” (J.A. 385.) Again,
Lee Johnson noted his belief that Johnson was “fully capable of
continuing to be a productive employee.” (J.A. 385.)
Johnson filed an age discrimination charge with the Equal
Employment and Opportunity Commission (“EEOC”) claiming that the
Bank had not disciplined others who had not met their production
goals and had hired a younger person who was “slated to replace
[Johnson] as City Executive.” (J.A. 387.)6 He also claimed that
during the discussions concerning the new positions, his
superiors made two statements revealing their aged-based animus:
first, Christopher allegedly told him the Bank was looking for
“young blood,” and second, Lee Johnson called Johnson “the ‘God
Father’ of the City Executives.” (J.A. 387.)
6 Johnson filed the charge on October 27, 2004 after Lee
Johnson chastised him for his insubordinate tone but several
days before Lee Johnson set aside his probation.
6

-- 6 of 26 --

More than two months later, Christopher sought advice from
a management consultant concerning a plan to terminate Johnson
on January 7, 2005 “due to performance issues.” (J.A. 859.) On
January 5, 2005, the consultant wrote Christopher concerning
“the process of removing a key executive.” (J.A. 860-62.) Lee
Johnson raised questions, however, and wanted to speak with the
Bank’s attorney since the Bank had been responding to Johnson’s
EEOC charge. Lee Johnson thought it was “important” that he
“understand the overall evaluation of comparable individuals”
and asked whether the Bank had “completed a review of other city
executives, executives that may not have met their goals.”
(J.A. 878.) He stated that, although he did not want to “delay
unnecessarily,” he believed the Bank “need not rush to judgment”
given its “prior start.” (J.A. 878.)
On March 25, 2005, Steven Savia, an outside consultant who
frequently worked on the Bank’s personnel matters, issued a
report on each City Executive’s eligibility for incentive pay
for 2004. According to the Bank’s formula, if the Bank as a
whole reached a given threshold net income for the year,
individual employees could qualify for incentive pay based on
their performance in certain criteria. For City Executives, the
incentive pay criteria included growth in loans, deposits, other
objective measures, and a partially-subjective, overall
performance evaluation. Based on Savia’s report, all City
7

-- 7 of 26 --

Executives except Johnson received incentive pay for 2004. On
March 28, 2005, Johnson filed a second EEOC charge, alleging
that the Bank had denied him incentive pay on account of his age
or in retaliation for his previously-filed EEOC charge.
On April 26, 2005, an altercation occurred at one of the
Bank’s Charlotte branches between two employees, Leslie Cato and
Lori Corpening. Christopher hired Savia to investigate the
incident. Savia interviewed Cato, Corpening, and others
involved in the incident and viewed a security camera recording
before reaching the following conclusions:
Based on these [third-party] accounts, it appears
clear that Ms. Cato was in fact the aggressor. There
is also a reasonably consistent account of the
language and intensity of Ms. Cato’s actions. There
is agreement that Ms. Cato had to be restrained and
required a strong effort to calm her. Ms. Corpening
had a colleague stand with her on the lobby side of
the breezeway door with Ms. Cato being restrained on
the other side continuing to curse and threaten Ms.
Corpening.
(J.A. 1565.) Based on this report, on May 3, 2005 Christopher
directed Johnson to fire Cato and transfer Corpening. Rather
than follow this directive, however, on May 6, 2005 Johnson
requested a copy of Savia’s report for his own review, stating
that he did not wish to expose the Bank to an “unfounded
lawsuit” by firing Cato. (J.A. 1568.) In an email to
Christopher on May 9, 2005, Johnson wrote,
I am deeply disappointed with your entire memo dated
May 3, 2005, concerning the incident between Lori
8

-- 8 of 26 --

[Corpening] and Leslie [Cato] on April 26, 2005. Your
memo is vague, and there is a lot to be desired in the
area of clarity, truth, and understanding. . . .
Steve Savia, your paid consultant, was very
transparent in his interviews, and I’m sure his
analysis of the incident is tainted as well. . . .
[D]ue to his [Savia’s] bias perpetrated by your
direction and his desire for commissions, you and he
continue to spin results which creates a diametrically
opposite analysis of the incident.
(J.A. 1569.) Despite the insubordinate tone of Johnson’s email,
Christopher complied with Johnson’s request and sent him Savia’s
report. Johnson reviewed the report, and wrote Christopher that
he had reached the opposite conclusion, that Corpening was the
aggressor in the incident, and further that
Steve [Savia] should be criticized for his unreliable
and unprofessional report. His extremely negligent
investigative process was lacking in proper due
diligence. . . . My recommendation is that Mr. Savia,
your paid consultant, obtain proper training in his
fact gathering techniques and the logical analysis of
data required to complete a competent and unbiased
investigation prior to his next assignment, if any.
(J.A. 1575.) Johnson never fired Cato. On May 23, 2005,
Christopher and Lee Johnson fired Johnson, citing his
insubordination and previous poor performance. Price and Tanya
Dial-Bethune, age 42, performed Johnson’s duties until the Bank
hired Johnson’s 57-year-old replacement on June 26, 2006.
Johnson filed a third EEOC charge, alleging that the Bank
had terminated him on account of his age and in retaliation for
his previously-filed EEOC charges, and he ultimately filed suit
in district court. In an oral opinion delivered at the
9

-- 9 of 26 --

conclusion of the summary judgment hearing, the district court
granted the Bank summary judgment as to all claims.
II.
Summary judgment is proper “if the pleadings, the discovery
and disclosure materials on file, and 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). We review a district court’s grant of summary
judgment de novo, viewing the evidence and making all reasonable
inferences in the light most favorable to the nonmoving party.
Sempione v. Provident Bank of Md., 75 F.3d 951, 954 (4th Cir.
1996).
III.
Johnson maintains his evidence, viewed either through a
mixed-motive framework or through a modified paradigm of
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973),
raises a triable issue of fact that the Bank placed him on
probation on account of his age. The Bank maintains that
Johnson’s probation, which it set aside within 30 days, was not
an adverse employment action, and that Johnson has otherwise
failed to create a triable issue of fact. We conclude under a
mixed-motive analysis that Johnson has failed to marshal
10

-- 10 of 26 --

sufficient evidence for a reasonable jury to conclude that his
age was a determinative influence on the Bank’s decision to
place him on probation. We also agree with the district court,
that Johnson failed to establish a prima facie case under
McDonnell Douglas because he failed to demonstrate that he was
meeting the Bank’s legitimate expectations (based upon the
Bank’s relatively poor performance in the Charlotte area as
measured by a shortfall in budget expectations for both loans
and deposits). Essentially for the same reason, we also
conclude that the Bank has articulated a legitimate, non-
discriminatory reason for placing Johnson on probation which
Johnson has not shown to be a pretext for discrimination.
Accordingly, the district court properly entered summary
judgment for the Bank on that claim.
A.
“The ultimate question in every employment discrimination
case involving a claim of disparate treatment is whether the
plaintiff was the victim of intentional discrimination.” Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 153 (2000).
Under the “mixed motive” proof scheme, an employee may
demonstrate that permissible and forbidden reasons motivated his
employer to take adverse employment action. Hill v. Lockheed
Martin Logistics Mgmt., Inc., 354 F.3d 277, 284 (4th Cir. 2004)
(en banc). Mixed-motive cases require the employee to prove
11

-- 11 of 26 --

that the protected trait “‘actually played a role in the
employer’s decisionmaking process and had a determinative
influence on the outcome.’” Id. at 286 (quoting Reeves, 530
U.S. at 141); cf. Price Waterhouse v. Hopkins, 490 U.S. 228,
276-77 (1989) (O’Connor, J., concurring). Under a mixed-motive
analysis, the question distills to whether Johnson has marshaled
sufficient evidence for a reasonable jury to conclude that age
was a determinative influence on the Bank’s decision to place
him on probation. We conclude that he has not.
We have previously assumed without deciding that Price
Waterhouse continues to govern the ADEA mixed-motive framework.
Under that framework, an employee must marshal direct evidence
of discrimination to satisfy his burden of proof. E.E.O.C. v.
Warfield-Rohr Casket Co., Inc., 364 F.3d 160, 163 n.1 (4th Cir.
2004). This is because the Civil Rights Act of 1991, Pub. L.
No. 102-166, 105 Stat. 1071 (codified as amended in scattered
sections of 42 U.S.C.) (2000), amended Title VII without
similarly amending the ADEA, and in any event, “maintaining the
higher evidentiary burden in Price Waterhouse for ADEA claims is
not implausible, given that age is often correlated with
perfectly legitimate, non-discriminatory employment decisions.”
Mereish v. Walker, 359 F.3d 330, 340 (4th Cir. 2004). In the
employment context, direct evidence of discrimination is
“evidence of conduct or statements that both reflect directly on
12

-- 12 of 26 --

the alleged discriminatory attitude and that bear directly on
the contested employment decision.” Taylor v. Va. Union Univ.,
193 F.3d 219, 232 (4th Cir. 1999) (en banc), abrogated on other
grounds, Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003).
Johnson contends that two statements made in the context of
offering him alternative positions are direct evidence of the
Bank’s discriminatory animus: Christopher told Johnson that the
Bank wanted to bring in “young blood,” and Lee Johnson referred
to him as “the Godfather.” Despite considerable
underperformance by the Bank’s Charlotte operations, Johnson
contends these statements, coupled with the timing of his
probation, create a triable issue of fact under a mixed-motive
analysis that age was a determinative influence on the Bank’s
decision to place him on probation. We disagree.
Viewed in its totality, without regard to its direct or
circumstantial nature, we find the evidence insufficient for a
reasonable jury to conclude that Johnson’s age was a
determinative influence on the Bank’s decision to place him on
probation. From May through September 2004, the Bank’s
uncontradicted evidence reveals Charlotte’s chronic failure to
meet its loan production budget. During this time, the
Charlotte branches were on average about 10% behind their loan
budget, each month lagging behind to the tune of several million
dollars. (J.A. 523-27.) Operations in other cities, in
13

-- 13 of 26 --

contrast, either met their loan production budget or only
slightly underperformed. Charlotte’s consistent shortfall was
primarily responsible for the Bank’s inability to meet its
overall loan budget: in September 2004, for example, when the
Bank was about $5.6 million behind its loan budget, about $4.3
million of that deficit belonged to Charlotte. (J.A. 527.) The
same pattern appears with deposits: Charlotte never met its
deposit production goals during this time period; in September
2004, for example, while the Bank exceeded its overall deposit
goal by $4.7 million, Charlotte was more than $4.2 million
behind its deposit goal. (J.A. 523-27.)
Given the consistently poor financial performance of the
Charlotte operations, two ambiguous, stray comments in the
course of offering Johnson lateral positions his supervisors
have described as a “better fit” for his abilities are not
sufficient to create a triable issue of fact that the Bank
placed Johnson on probation on account of his age. Nor do we
find the timing of the decision probative of age discrimination.
Johnson’s superiors believed Johnson was impeding their efforts
to turn around the Bank’s Charlotte operations. As they viewed
it, he was in the way and would not move. Although Johnson
contends that his probation was discriminatory because other
City Executives had also failed to meet their budget
expectations, the uncontradicted evidence supports the
14

-- 14 of 26 --

conclusion that the Charlotte office frequently missed the mark
by the widest margin. Under the circumstances, the Bank was
free to place Johnson on notice that it would penalize or
replace him if its Charlotte operations did not improve.
Accordingly, we find insufficient evidence under a mixed-motive
framework for a reasonable jury to conclude that age was a
determinative influence on the Bank’s decision to place Johnson
on probation.7
B.
Johnson maintains that his placement on probation raises a
triable issue of age discrimination under the second proof
scheme available to him – the McDonnell Douglas scheme. The
district court found that Johnson failed to establish a prima
facie case under McDonnell Douglas for several reasons,
including Johnson’s inability to show that his performance met
his employer’s legitimate expectations concerning the
performance of the Bank’s Charlotte operations. It also found
that even if Johnson had established a prima facie case, the
7 We have previously held that ADEA mixed-motive cases
remain subject to the Price Waterhouse analysis, which allows an
employer to avoid liability with proof that “it would have taken
the same adverse employment action absent a discriminatory
motive.” See Baqir v. Principi, 434 F.3d 733, 745 n.13 (4th
Cir. 2006). Because we find insufficient evidence of age-based
animus, we have no reason to decide whether the Bank would have
placed Johnson on probation absent any age-based animus.
15

-- 15 of 26 --

Bank offered un-rebutted evidence that it placed him on
probation for a legitimate, non-discriminatory reason –
underperformance in Charlotte’s operations as measured by loans
and deposits. We agree.
To establish a prima facie case under the McDonnell Douglas
framework, the employee must prove that (1) he is a member of a
protected class; (2) who suffers an adverse employment action;
(3) at the time of the action, his performance was satisfactory
to meet his employer’s legitimate expectations, and (4) he was
treated less favorably than persons who are not members of the
protected class. See E.E.O.C. v. Clay Printing Co., 955 F.2d
936, 941 (4th Cir. 1992). If he does so, the burden shifts to
the employer to proffer a legitimate, non-discriminatory reason
for the adverse employment action. Hill, 354 F.3d at 285. When
the employer meets its burden, the McDonnell Douglas framework
“disappear[s] and the sole remaining issue [is] discrimination
vel non.” Id. (quoting Reeves, 530 U.S. at 142-43). The
employee then has the ultimate burden to prove that the
employer’s proffered reasons were but a pretext for
discrimination. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
515 (1993); see also Hill, 354 F.3d at 285.
The Bank argues that Johnson has not established a prima
facie case because a one-month probationary period that is set
aside is not an adverse employment action (element two under
16

-- 16 of 26 --

McDonnell Douglas) and because he failed to prove he was meeting
his employer’s legitimate expectations (element three).
Alternatively, the Bank argues that it placed Johnson on
probation for a legitimate and non-discriminatory reason, namely
its Charlotte operations were significantly underperforming in
both loans and deposits. In attacking this reason as
pretextual, Johnson marshals essentially the same evidence he
offered in his mixed-motive analysis.
We agree with the district court that Johnson has failed to
establish a prima facie case under McDonnell Douglas because he
has failed to show that he was meeting the Bank’s legitimate
expectations for its Charlotte operations.8 However, whether
considered at the prima facie case stage or at the pretext
stage, his claim collapses for the same reason: Charlotte
operations were substantially underperforming in loans and
8 “Job performance and relative employee qualifications are
widely recognized as valid, non-discriminatory bases for any
adverse employment decision.” Evans v. Tech. Applications &
Serv. Co., 80 F.3d 954, 960 (4th Cir. 1996). When the
legitimate expectations of an employer are at issue on summary
judgment, both the employer and the employee may present
evidence of the expectations themselves and their legitimacy.
Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 515-17 (4th Cir.
2006). In evaluating performance, “[i]t is the perception of
the decision maker which is relevant.” Smith v. Flax, 618 F.2d
1062, 1067 (4th Cir. 1980). Though Johnson claims that
Christopher’s budget expectations for Charlotte were higher than
those for other cities, nothing he has marshaled demonstrates
they were not legitimate.
17

-- 17 of 26 --

deposits. Accordingly, we agree with the district court that
Johnson has not raised a triable issue of fact under the
McDonnell Douglas proof scheme.
IV.
Johnson maintains that the Bank denied him incentive pay in
March of 2005, for his 2004 performance, based on age and in
retaliation for filing his initial EEOC charge. The Bank
maintains it denied him incentive pay because he did not qualify
for it under the Bank’s incentive pay formula, as applied by its
consultant, which in large measure factored in loans and
deposits. For essentially the same reasons we concluded earlier
that Johnson failed to raise a triable issue of fact either
under a mixed-motive or McDonnell Douglas proof scheme
concerning his probation, we conclude that the district court
properly entered summary judgment on Johnson’s age
discrimination claim for the Bank’s denial of incentive pay.
For similar reasons, we also conclude that the district court
properly entered summary judgment as to his retaliation claim.
A.
We see no necessity in repeating the Bank’s
“underperformance in loans and deposits” refrain here, which we
again conclude sufficiently supports the Bank’s decision. We
note, however, that from the Bank’s perspective, in addition to
18

-- 18 of 26 --

missing his budget for loans and deposits more often by the
widest margin of any of the four City Executives, by the time of
Johnson’s performance review, the Bank’s CEO had warned Johnson
(before he complained of age discrimination) about the
disrespectful and insubordinate tone of his correspondence
within the company. Under the circumstances, Johnson is unable
to show either under a mixed-motive proof scheme that age was a
determinative influence on the Bank’s decision to deny him
incentive pay or under the McDonnell Douglas proof scheme that
his performance was meeting his employer’s legitimate
expectations.9
B.
Johnson claims the Bank denied him incentive pay in
retaliation for his EEOC charge. He argues that the January
2005 email exchange discussing Christopher’s plan to terminate
him reveals retaliatory animus. The Bank counters that nothing
in those emails remotely suggests retaliation. It argues that
9 In calculating incentive pay the Bank rounded upward the
overall performance evaluation scores of the two City Executives
who performed better overall on the objective measures of loan
and deposit growth and rounded downward the overall performance
evaluation scores of the other two. Johnson claims that this
practice is evidence of disparate treatment because it worked to
the advantage of two younger City Executives and to the
disadvantage of Johnson and the other older City Executive.
Johnson, however, offered nothing to suggest that the rounding
was not performance-based or was anything other than a
coincidental correlation with age.
19

-- 19 of 26 --

the evidence is insufficient to establish a prima facie case of
retaliation and, alternatively, that even if Johnson established
a prima facie case of retaliation, he did not receive incentive
pay because of his performance. We assume without deciding that
Johnson’s evidence establishes a prima facie case of
retaliation, but we find that Johnson has not created a triable
issue of fact that the Bank’s proffered reasons for denying him
incentive pay were pretextual.
An employer violates the ADEA by retaliating against an
employee for engaging in a protected activity. 29 U.S.C. §
623(d) (2000). The elements of a prima facie case of
retaliation are (1) the plaintiff engaged in a protected
activity, (2) the employer took an adverse employment action
against the plaintiff, and (3) a causal connection existed
between the protected activity and the adverse employment
action. Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th
Cir. 1989). If the employee establishes a prima facie case, the
employer may rebut it by presenting evidence of a legitimate,
non-retaliatory reason for the adverse action. Id. After the
employer presents evidence of its legitimate, non-retaliatory
reason, the burden shifts back to the employee to show that the
employer’s proffered reason is pretextual. Id.
Applying these standards, even assuming Johnson has
established a prima facie case, we find that Johnson’s evidence
20

-- 20 of 26 --

does not demonstrate that the Bank’s legitimate, non-retaliatory
reason for denying him incentive pay – underperformance — was
pretextual. We agree with the Bank that the January 2005 email
exchanges support no inference that the Bank’s proffered reason
for denying Johnson incentive pay was pretextual. If anything,
Lee Johnson’s correspondence shows restraint. He thought it
important not to “rush to judgment” and to “understand the
overall evaluation of comparable individuals.” (J.A. 878.)
Accordingly, the district court properly granted summary
judgment as to Johnson’s retaliation claim arising from his
denial of incentive pay.
V.
Johnson maintains that the Bank terminated him on account
of his age and retaliated against him for filing EEOC charges
and for opposing Christopher’s directive to terminate Cato
following her conflict with her co-employee. The Bank counters
that it terminated Johnson because Johnson added insubordination
to the Bank’s original concerns about his performance. The
court concludes that Johnson has offered nothing new to support
his age discrimination claim, whether considered under a mixed-
motive or McDonnell Douglas framework, that he has not shown
that the Bank’s proffered reasons are a pretext for retaliation,
or that his refusal to fire Cato was protected opposition
21

-- 21 of 26 --

activity. Accordingly, the district court properly granted the
Bank’s motion for summary judgment as to Johnson’s termination
claims.
A.
Other than the fact of termination and the assignment of
his duties to two other existing employees, Johnson offers
nothing new to support his age discrimination claim. However,
these facts lend no support to his claim that his age played a
role in his termination. Indeed, Johnson had clearly become
insubordinate and insolent in dealing with his superiors.
Rather than obey Christopher’s orders to fire Cato and transfer
Corpening, Johnson demanded to see a copy of Savia’s report,
then called that report and Christopher’s analysis of it
tainted, unclear, and untruthful. Under the circumstances, no
reasonable jury could conclude that the Bank terminated him on
account of his age or, for essentially the same reason, because
he filed a charge of discrimination with the EEOC. Therefore,
the district court properly granted summary judgment on these
claims.
B.
Johnson offered nothing in the district court that
positioned his refusal to fire Cato as legitimate, protected
“opposition activity.” Accordingly, we find no fault in the
22

-- 22 of 26 --

district court’s decision granting the Bank summary judgment on
that claim.
The ADEA, like Title VII, prohibits an employer from
retaliating against an employee who has opposed unlawful
discrimination. Compare 29 U.S.C. § 623(d) (2000) (stating it
is unlawful for “an employer to discriminate against any of his
employees . . . because such individual . . . has opposed any
practice made unlawful” under the ADEA) with 42 U.S.C. §2000e-
3(a) (stating it is “an unlawful employment practice for an
employer to discriminate against any of his employees because he
has opposed any practice made an unlawful employment practice”
under Title VII).
“Opposition activity encompasses utilizing informal
grievance procedures as well as staging informal protests and
voicing one’s opinions in order to bring attention to an
employer’s discriminatory activities.” Laughlin v. Metro. Wash.
Airports Auth., 149 F.3d 253, 259 (4th Cir. 1998). As we have
said in the closely analogous Title VII context, in determining
whether an employee engages in legitimate opposition activity,
“we balance the purpose of the Act to protect persons engaging
reasonably in activities opposing . . . discrimination against
Congress’ equally manifest desire not to tie the hands of
employers in the objective selection and control of personnel.”
Id. (internal citations and quotations omitted and emphasis
23

-- 23 of 26 --

added). Although the retaliation claimant does not have to show
that the underlying discrimination claim was meritorious to
prevail on a related retaliation claim, he must show that he
“subjectively (that is, in good faith) believed” that his
employer violated the ADEA, and that his belief “was objectively
reasonable in light of the facts.” See Peters v. Jenney, 327
F.3d 307, 321 (4th Cir. 2003) (applying Title VII retaliation
standard in Title VI context) (internal citations and quotations
omitted). “Because the analysis for determining whether an
employee reasonably believes a practice is unlawful is an
objective one, the issue may be resolved as a matter of law.”
Jordan v. Alternative Res. Corp., 458 F.3d 332, 339 (4th Cir.
2006). With these precepts in mind we turn to Johnson’s claim
that he engaged in protected opposition activity when he refused
to terminate Cato.
Johnson argues that he reasonably believed he was free to
disregard his superior’s directives to fire Cato because it was
retaliatory. We assume that Johnson in fact believed what he
says he believed. However, we find that belief to be
objectively unreasonable. We also find under a balancing test
that Johnson did not engage reasonably in activities opposing
discrimination. Johnson’s superior hired a consultant to
investigate the incident between Cato and Corpening. After an
investigation, that consultant prepared a reasoned report
24

-- 24 of 26 --

concluding that Cato was the aggressor, that she continued to
curse and threaten Corpening, and another Bank employee had to
restrain her. Right or wrong, that was his conclusion, and he
passed it along to Johnson’s superiors, and they directed
Johnson to terminate Cato. Johnson had no liberty to disregard
that directive based on his own machinations and unsupported
speculation about Savia’s and the Bank’s motivations.
We also find that Johnson’s opposition activities are not
protected because the manner of his communications with
Christopher was unreasonable. Again, it is fundamental that to
receive protection Johnson must be “engaging reasonably in
activities opposing . . . discrimination.” Laughlin, 149 F.3d
at 259. Recognizing this fact, Johnson attempts to characterize
his May 6, 2005 email to Christopher as an effort “to seek
guidance from Christopher.” (Appellant’s Reply Br. 24.) It is
clearly no such thing when considered together with his follow-
up May 9 email which could not reasonably be considered
earnestly and respectfully seeking new information. The tone of
the May 9 email is unmistakably insubordinate and insolent, the
very things Lee Johnson had warned him about before. Therefore,
the district court properly entered summary judgment for the
Bank as to Johnson’s retaliatory discharge claim.
25

-- 25 of 26 --

26
VI.
For the foregoing reasons, we affirm the district court’s
decision to grant summary judgment for the Bank.
AFFIRMED

-- 26 of 26 --