NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                _______________

                      10-2513
                  _______________

                CHARLES GEORGE,

                               Appellant

                          v.

          WILBUR CHOCOLATE CO. INC.,
          TDBA Cargil Cocoa and Chocolate

                  _______________

    On Appeal from the United States District Court
       for the Eastern District of Pennsylvania
           (D.C. Civil No. 5-08-cv-03893)
       District Judge: Hon. Thomas M. Golden
                  _______________

    Submitted Pursuant to Third Circuit LAR 34.1(a)
                    April 15, 2011

BEFORE: FISHER, JORDAN and COWEN , Circuit Judges

                 (Filed April 27, 2011)

                  _______________

                     OPINION
                  _______________
COWEN, Circuit Judge.

       Charles George appeals from an order of the United States District Court for the

Eastern District of Pennsylvania granting summary judgment in favor of his former

employer, Wilbur Chocolate Co., Inc. (“Wilbur”), on his age discrimination claim. For

the following reasons, we will affirm.

                                             I.

       Wilbur hired George in September 2007. At that time, George was fifty-nine

years old. As a new employee, George was hired on a probationary basis and was

assigned to work in a variety of temporary positions until the company found a

permanent placement for him.

       When George began work on October 1, 2007, he was assigned to a packing

position. Unhappy as a packer, he asked to be reassigned. Several weeks later, he began

training as a dry ingredient handler, but soon discovered that he could not meet the

demands of that position due to his fear of heights. As a result, he was reassigned back to

the packing unit, where he worked for another month. He then filled in temporarily as a

lab assistant until the employee who was awarded the position on a permanent basis

arrived.

       On January 17, 2008, after he had been with the company for approximately three

and a half months, George was terminated. Although he had been given a satisfactory

evaluation for his work in the lab, the company indicated that it did not believe that he

would succeed in other positions at the plant.


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                                             II.

       On August 15, 2008, George commenced this action against Wilbur in the United

States District Court for the Eastern District of Pennsylvania. In the complaint, George

claimed that Wilbur had unlawfully terminated him because of his age, in violation of the

Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq. Wilbur

moved for summary judgment, and, by order entered April 28, 2010, the District Court

granted its motion. George now appeals from the District Court’s order.1

                                             III.

       We will affirm the District Court’s entry of summary judgment against George.

As the District Court correctly noted, George’s claim under the ADEA is governed by the

burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 

(1973). Under McDonnell Douglas, the plaintiff bears the burden of proof and

production to make out a prima facie case, which means that he must show that: (1) he is

forty years of age or older; (2) the defendant took an adverse employment action against

him; (3) he was qualified for the position in question; and (4) he was ultimately replaced

by another employee who was sufficiently younger to support an inference of

discriminatory animus. Smith v. City of Allentown, 

, 689 (3d Cir. 2009).

“Once the plaintiff satisfies these elements, the burden of production shifts to the

employer to identify a legitimate nondiscriminatory reason for the adverse employment


       1
         We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise
plenary review over an appeal from a grant of summary judgment. Jacobs Constructors,
Inc. v. NPS Energy Servs., Inc., 

, 369 (3d Cir. 2001).

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action.” 

If the employer does so, the burden of production returns to the

plaintiff, who must demonstrate that the employer’s proffered rationale was a pretext for

age discrimination. 

       Applying this analytical framework to George’s claim, the District Court first

found that he had failed to make out a prima facie case of age discrimination because he

had failed to show that similarly situated individuals outside the protected category were

treated more favorably than he. We agree. As the District Court explained, the two

younger employees whom George claims were unfairly awarded permanent positions

were not similarly situated to him: they worked on top of the tanker truck at a height

George refused to work; they never expressed displeasure with any position; and they

ascended into permanent placements through use of the bidding process, which George

did not use. Furthermore, even assuming that George had been able to establish a prima

facie case, we agree with the District Court that his claim would nonetheless fail because

Wilbur offered a legitimate, nondiscriminatory reason for terminating him—namely, his

poor overall job performance and his unwillingness to fulfill multiple roles—and George

did not provide any evidence giving rise to a reasonable inference of pretext.

                                            IV.

       For these reasons, we will affirm the judgment of the District Court.




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