Feacher Mccarthy, Appellant, v. Amerada Hess Corporation, Appellee, 813 F.2d 401 (4th Cir. 1987)

Feacher McCarthy filed this suit alleging that he was discriminated against on the basis of race, 42 U.S.C. § 1981, 42 U.S.C. § 2000e; age, 29 U.S.C. § 621; and handicap, 29 U.S.C. § 794, when Amerada Hess Corporation (Amerada) closed the laboratory where he worked. McCarthy, a black man, was the only employee at the lab. He injured his back several months before he was terminated.

After the presentation of McCarthy's evidence, the district court granted the defendant's motion for involuntary dismissal pursuant to Fed. R. Civ. P. 41(b). The district court stated that under Sec. 504 of the Rehabilitation Act, 29 U.S.C. § 794, McCarthy failed to establish that Amerada received federal funding, an essential element of his proof. Consolidated Rail Corp. v. Darrone, 465 U.S. 624 (1984). As for the age discrimination claim, 29 U.S.C. § 621, the district court found that McCarthy failed to show that he was capable of performing the job when he was terminated. EEOC v. Western Electric Co., 713 F.2d 1011, 1015 (4th Cir. 1983); Lovelace v. Sherwin-Williams Co., 681 F.2d 230 (4th Cir. 1982).

In pursuing his race discrimination claims, 42 U.S.C. § 1981 and 42 U.S.C. § 2000e, McCarthy must, to prove a prima facie case, show that:

(1) he is a member of a protected class;

(2) he was discharged;

(3) at the time of his termination, he was performing at a level meeting the employer's expectation; and

(4) following the termination, he was replaced by a person of comparable qualifications outside the protected class.

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). This Court, recognizing that in reduction-in-force cases the fourth factor cannot be shown, has stated that the purpose of that fourth requirement is to present additional evidence to "demonstrate unequal treatment." EEOC v. Western Electric, supra, at 1015.

As the district court noted for the age discrimination claim, the evidence showed that McCarthy was given light duty for the last month of his employment due to his back problem. We conclude, therefore, that McCarthy has not established the third element of the prima facie case. Nor has he provided sufficient additional evidence to satisfy the fourth element of the proof scheme.

We affirm the judgment below. McCarthy's application for in forma pauperis status and for preparation of a transcript at government expense is denied. Because the dispositive issues recently have been decided authoritatively, we dispense with oral argument.

AFFIRMED.