Lester R. EVANS, Appellant, v. DAVIE TRUCKERS, INC., Appellee; Lester R. EVANS, Appellee, v. DAVIE TRUCKERS, INC., Appellant

K.K. HALL, Circuit Judge:

Lester R. Evans, a black male, appeals from an order of the district court dismissing his action- against his former employer, Davie Truckers, Inc. (“Davie Truckers”), brought pursuant to Title VII of the Civil Rights Act of 1964 (the “Act”), 42 U.S.C. § 2000e et seq. Davie Truckers cross-appeals from the district court’s finding that Davie Truckers is an employer within the meaning of § 701(b) of the Act and from the district court’s failure to award Davie Truckers attorneys’ fees. We affirm.

I.

Evans was employed by Davie Truckers as a truck driver in April 1975. He was hired by Wayne Smith, Davie Truckers’ president and principal owner. Evans was primarily responsible for hauling maltage from a Winston-Salem, North Carolina, company to dairy farmers in North Carolina, South Carolina, and Virginia. At the time of his employment, Evans was informed by Wayne Smith that Evans would be compensated at the rate of twenty-two and one-half percent of the gross profit of each trip.

Elaine Smith, Wayne Smith’s wife, co-owns Davie Truckers with her husband. She serves as secretary-treasurer, dispatcher, and payroll clerk. Wayne Smith han-, dies the daily management of the company, including hiring and firing of all the employees.

At trial, Evans stated that a number of times during the course of his employment he questioned Wayne Smith concerning his compensation. Evans sought to determine whether he was, in fact, being paid twenty-two and one-half percent of the gross profit for each trip and whether he was being compensated at the same rate as white truck drivers. Evans’ inquiries went unanswered by Smith.

On September 4, 1978, Elaine Smith telephoned Evans at home. Mrs. Smith told Evans that “if we need you, we’ll call you.” Evans testified that he did not speak further with Mrs. Smith but interpreted the telephone call to mean that he was fired.

The next day, Evans went to the Davie Truckers’ premises, removed his personal belongings from the truck he had been driving, and left without speaking to either of the Smiths. Subsequently, a separation notice which stated that Evans voluntarily quit was given to Evans when he picked up his final paycheck. According to Evans, he objected to the secretary who presented him the notice that he did not voluntarily quit, but he did not speak with the Smiths about the separation notice and had no other contact with them.

Thereafter, Evans filed a charge of racial discrimination in employment with the Equal Employment Opportunity Commission (the “EEOC”). The EEOC determined that there was no reasonable cause to believe that discrimination occurred and issued Evans a right to sue letter. Evans *1014then filed this civil rights action, alleging that Davie Truckers discriminated against him on account of his race by paying him less than it paid to whites, and that Davie Truckers unlawfully discharged him for complaining about that discrimination. Evans dropped his claim of disparate pay and proceeded at trial on his claim of retaliatory discharge.

The case was tried without a jury. Following the introduction of Evans’ evidence, Davie Truckers moved for dismissal pursuant to Fed.R.Civ.P. 41(b). The trial court found that Davie Truckers did not terminate Evans in retaliation for his complaints about his compensation but that Evans had voluntarily resigned his employment, and it dismissed the action with prejudice. This appeal and cross-appeal followed.

II.

On appeal, Evans contends that the district court erred in finding that he was not discriminatorily discharged in retaliation for his complaints that he was being compensated at a lower rate than white employees. We disagree.

In ruling on Davie Truckers’ motion for dismissal, the district court found that Evans had failed to establish a prima facie case of retaliation. The district court stated that “[although the plaintiff established that he engaged in statutorily protected activity, the plaintiff failed to show that he suffered adverse employment action by the defendant.” The district court concluded that Evans’ evidence “clearly established that he voluntarily resigned his employment with the defendant, and, therefore, suffered no adverse employment action at the hand of the defendant.”

Rule 52(a) of the Federal Rules of Civil Procedure provides that a trial court’s “[fjindings of fact shall not be set aside unless clearly erroneous.” The district court’s findings in this case are not clearly erroneous. The evidence adduced at trial was that Davie Truckers dispatched its trucks by telephone calls to the drivers’ homes. The dispatcher commonly called drivers to put them “on call,” i.e., the driver would be called when needed. Mrs. Smith was the dispatcher and was the person who placed Evans on call on September 4, 1978. Additionally, only Wayne Smith hired and fired the truck drivers. Evans did not question the Smiths about the fact that his separation notice stated that he voluntarily quit. All of this evidence supports the district court’s finding that Mrs. Smith’s telephone call to Evans was not a notice of termination but merely informed Evans of his standby status.

Under these circumstances, we cannot conclude that the district court’s finding that Evans voluntarily quit was clearly erroneous. See Anderson v. City of Bessemer City, N.C, — U.S.-, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). Consequently, Evans is unable to demonstrate that Elaine Smith’s telephone call constituted an adverse employment action — a necessary element to establish a prima facie case of retaliation. Ross v. Communications Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985). We, therefore, conclude that the district court did not err in dismissing Evans’ action.

Upon consideration of the record, briefs, and oral argument, we also reject Davie Truckers’ contentions on cross-appeal as meritless for the reasons stated by the district court. Evans v. Davie Truckers, Inc., C/A No. 82-1023-WS (M.D.N.C. August 27, 1984).*

III.

On the basis of the foregoing, the judgment below is affirmed.

AFFIRMED

The district court’s final order held that each party was to bear its own costs. We find no abuse of discretion on the part of the district court in not awarding attorneys’ fees to Davie Truckers.