UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ETHLYN RICHARDSON,
Plaintiff-Appellant,

v.
                                                                   No. 97-1242
FIRST CITIZENS BANK & TRUST
COMPANY,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Greenville.
Malcolm J. Howard, District Judge.
(CA-95-124-4-H)

Argued: March 4, 1998

Decided: June 3, 1998

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

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: David Peter Voerman, DAVID P. VOERMAN, New
Bern, North Carolina, for Appellant. Samuel McKinley Gray, III,
WARD & SMITH, P.A., New Bern, North Carolina, for Appellee.
ON BRIEF: Buren R. Shields, III, DAVID P. VOERMAN, New
Bern, North Carolina, for Appellant. William Joseph Austin, Jr.,
WARD & SMITH, P.A., New Bern, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

The United States District Court for the Eastern District of North
Carolina found that Ethlyn Richardson ("Richardson") failed to timely
file her charge of discrimination with the Equal Employment Oppor-
tunity Commission ("EEOC") and dismissed Richardson's case. In
her appeal, Richardson contends that the Court used the wrong date
to determine the timeliness of her charge. This Court finds that Rich-
ardson failed to establish a prima facie case as to her claims under the
Age Discrimination in Employment Act ("ADEA") and Americans
with Disabilities Act ("ADA"), and cannot demonstrate that the
employer's legitimate, non-discriminatory reason for her transfer was
pretextual, we do not reach the issue of the timeliness of Richardson's
charge and we affirm the ruling of the District Court on alternative
grounds.

Richardson began work for First Citizens Bank & Trust Co. ("First
Citizens") at its Grifton, North Carolina branch in 1952. In the fall of
1991, after the arrival of a new Branch Manager, Jerry Hannah
("Hannah"), Richardson's work was found inadequate. In November
1992, Hannah issued Richardson a reprimand for falling behind her
duties and for deficient performance. In the spring of 1993, Richard-
son received a warning for failing to collect an acceptable percentage
of past due accounts and for poor customer service. In addition, Rich-
ardson's overall performance was rated "below expected" in her 1993
annual review. Hannah sought help from his supervisor, Peter Darst
("Darst"), for ways to improve Richardson's production. Darst
advised Hannah to set and track specific goals for Richardson.

However, Richardson fell short of her goals during the first quarter
of 1994 and in her 1994 annual review, she was rated"below
expected." Richardson submitted a written rebuttal to her 1994 evalu-
ation. Connie Fitzgerald ("Fitzgerald"), First Citizens' Regional

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Human Resources Manager, then intervened and met with Richardson
but was unable to resolve the problem. Richardson filed a formal
appeal. James M. Parker ("Parker"), First Citizens' Executive Vice
President, met with Richardson on November 18, 1994. During the
meeting, Richardson remarked she could not work with Hannah. Par-
ker informed Richardson, by letter dated November 23, 1994, that his
solution was to transfer Richardson to First Citizens' Bayboro, North
Carolina branch.

Richardson did not report to work after the New Year holiday.
Instead, First Citizens received a letter from Richardson, dated Janu-
ary 6, 1995, in which Richardson asserted that she intended "to pro-
ceed through appropriate channels to contest the bank's attitude and
decisions [with] respect to [her] transfer and this resultant forced res-
ignation and retirement." Richardson requested in her resignation let-
ter that First Citizens waive its notice requirements for resignation
and retirement and make her retirement status effective as of January
15, 1995.

First Citizens informed Richardson by January 23, 1995 letter that
they would not relent in their transfer directive but would waive the
ninety-day notice period for retirement and would place Richardson
into a retired status effective January 15, 1995. Richardson filed a
Charge of Discrimination with the EEOC on July 12, 1995 and
amended her charge on August 4, 1995.

The District Court ruled that the period that Richardson had to file
her charge of discrimination with the EEOC under the ADEA and the
ADA began on January 6, 1995 and that, therefore, Richardson failed
to timely file her charge. This court does not reach the issue of the
timeliness of Richardson's complaint as Richardson has failed to
show a genuine issue of material fact as to her claims under the
ADEA.

A plaintiff may establish a prima facie case under the ADEA by
offering direct evidence that a decision to terminate was motivated by
age. Alternatively, a plaintiff may rely upon the indirect, burden-
shifting method of proof developed in McDonnell Douglas Corp. v.
Green, 

(1973). To demonstrate a prima facie case of
discrimination under the ADEA using the McDonnell Douglas proof

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scheme, a plaintiff must show by a preponderance of the evidence
that: (1) she is a member of a protected class; (2) she was subject to
some adverse job action; (3) at the time of the job action she was per-
forming at a satisfactory level, meeting her employer's legitimate
expectations; and (4) following the job action she was replaced by
someone of comparable qualifications substantially younger than her-
self. See Blistein v. St. John's College, 

, 1467-68 (3d Cir.
1996). If a plaintiff can meet her burden of proving each element, an
inference of discrimination arises. See Henson v. Liggett Group, Inc.,

, 274 (4th Cir. 1995).

The employer can then rebut the inference of discrimination by
producing evidence of legitimate, nondiscriminatory reasons for the
job action. See 

is able to do so, the presumption
of discrimination disappears, and the plaintiff, in order to survive a
motion for summary judgment, must present evidence creating a gen-
uine issue of material fact that the employer's proffered reasons are
a pretext for intentional discrimination. See id . at 275.

Richardson has no direct evidence that First Citizens discriminated
against her on the basis of her age. Richardson's case also fails under
the indirect, McDonnell Douglas proof scheme because she cannot
establish her prima facie case.

Richardson cannot prove that she was performing her job responsi-
bilities at a satisfactory level and, therefore, cannot meet the third ele-
ment of the prima facie case under the McDonnell Douglas proof
scheme. In the spring of 1993, Richardson received a written warning
for failing to collect an acceptable percentage of past due accounts
and for giving poor customer service. In her 1994 annual review,
Richardson's performance was again rated "below expected." The
Branch Manger, Hannah, noted that Richardson, on three occasions,
failed to process cashier's checks properly and left a customer waiting
for her in the lobby while she left the building through the back door
to go to lunch. In addition, Richardson cashed a Certificate of Deposit
for $50,000 when it was only worth $30,000. These factors indicate
that at the time of her transfer, Richardson's performance was unsatis-
factory.

Further, Richardson cannot establish the fourth element of her
prima facie case -- that following her "discharge" she was replaced

                     4
by someone substantially younger than herself. After Richardson
retired, the position of Retail Banker I at the Grifton office was filled
by Charles E. Branch. Branch was 54 years old when he filled the
position of Retail Banker I at the Grifton Branch.

Finally, First Citizens presented evidence of a legitimate, nondis-
criminatory reason for transferring Richardson. On November 18,
1994, Richardson told First Citizens' Executive Vice President, Par-
ker, that she could not work with her Branch Manager, Hannah. Par-
ker had no problem with Hannah's performance and did not wish to
transfer his Branch Manager. Therefore, Parker decided to transfer
Richardson.

Richardson also failed to establish a prima facie case as to her
claims under the ADA. A plaintiff may establish a prima facie case
under the ADA by offering direct evidence that the employment
action was motivated as a result of her medical conditions. See Wil-
liams v. Avnet, Inc., 

(E.D.N.C. 1995). Alterna-
tively, as with an ADEA claim, a plaintiff may rely upon the
McDonnell Douglas proof scheme. See Ennis v. Natl Assn. of Busi-
ness and Educ. Radio, Inc., 

(4th Cir. 1995).

Richardson has no direct evidence that First Citizens discriminated
against her on the basis of her medical conditions. Thus, she cannot
establish her prima facie case by using direct evidence. In order to
meet the first element of the McDonnell Douglas indirect proof test,
Richardson must establish that she is disabled within the meaning of
the ADA. Under the ADA, a disability is defined in pertinent part as:
(a) a physical or mental impairment that substantially limits one or
more of the major life activities of such individual; (b) a record of
such an impairment; or (c) being regarded as having such an impair-
ment. See 42 U.S.C. § 12102(2)(a)(b).

Major life activities include caring for oneself, performing manual
tasks, walking, seeing, hearing, speaking, breathing, learning, and
working. See McKay v. Toyota Motor Mfg., USA, Inc., 

, 1014 (E.D. Ky. 1995), citing 29 C.F.R.§ 1630.2(i). When
determining whether an impairment substantially limits a major life
activity, courts consider the following factors: (1) the nature and
severity of the impairment; (2) the duration or expected duration of

                     5
the impairment; and (3) the permanent or life-term impact or expected
impact of or resulting from the impairment. See McKay, citing 29
C.F.R. § 1630.2(j)(2).

A plaintiff claiming that her medical conditions substantially limit
the major life activity of work must demonstrate not only the severity
of her conditions, but also that she is significantly restricted in her
ability to perform a class of jobs or a broad range of jobs in various
classes. See 29 C.F.R. § 1630.2(j)(3)(i). Moreover, the inability to
perform one aspect of a job while retaining the ability to perform the
work in general does not amount to a disability under the ADA. See
Dutcher v. Ingalls Shipbuilding, 

, 727 (5th Cir. 1995).

None of the conditions with which Richardson has been diagnosed
substantially limited her ability to perform her job during the time she
began having performance problems at work. Moreover, even if Rich-
ardson's brief leave of absence due to her arthritis was sufficient to
constitute a disability under the ADA, she cannot prove the other ele-
ments of her prima facie case because she cannot establish that she
was constructively discharged or that she was performing at a satis-
factory level when she was allegedly forced to retire.

Richardson cannot establish that her alleged discharge occurred
under circumstances that raise a reasonable inference of unlawful dis-
crimination. The record demonstrates that Parker was the individual
who made the decision to transfer Richardson. Because Parker was
unaware of Richardson's medical conditions when he decided to
transfer her, his decision could not have been motivated by her
alleged disability. See Dutson v. Farmers Ins. Exch., 

(D. Or. 1993). Furthermore, First Citizens had legitimate, nondiscrim-
inatory reasons for transferring Richardson, including her admitted
inability to work with the Grifton Branch Manager. Richardson pre-
sented no evidence that First Citizens' proffered reasons are pretex-
tual.

Accordingly, because we find Richardson failed to establish a
prima facie case as to her claims under the ADEA and ADA and can-
not demonstrate that her employer's legitimate, non-discriminatory
reason for her transfer was pretextual, the decision of the district court
is,

AFFIRMED.

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