Calloway v. Food Chief Conv

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MATTILYN S. CALLOWAY,
Plaintiff-Appellant,

v.

FOOD CHIEF CONVENIENCE STORE #38,
a subsidiary of Dilmar Oil
Company, Incorporated,
No. 96-1892
Defendant-Appellee,

and

BRENDA STRICKLAND, Manager of
Food Chief Convenience Store #38;
DILMAR OIL COMPANY,
Defendants.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
C. Weston Houck, Chief District Judge.
(CA-95-1426-4-2JI)

Submitted: May 1, 1997

Decided: May 12, 1997

Before WIDENER and MURNAGHAN, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

John A. Gaines, Sr., Florence, South Carolina, for Appellant.
B. Kendall Hiller, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Mattilyn Calloway appeals from the district court's orders (1)
adopting the magistrate judge's recommendation to grant summary
judgment to the Defendants on her Title VII discrimination claims
based on race, 42 U.S.C. § 2000e (1994); and (2) denying her motion
for reconsideration. We affirm.

Calloway, a black female, was hired by Food Chief Convenience
Store on March 31, 1993, as a part-time cashier earning $4.25 per
hour. Approximately two weeks later, Calloway was reassigned from
cashier to cleaning and stocking duties.* In July 1994, Food Chief
reduced Calloway's hours. On August 31, 1994, Calloway contacted
the South Carolina Human Affairs Commission (SCHAC) to report
that she was being paid less than Food Chief's white employees and
that her hours had been reduced in a discriminatory fashion. Calloway
was discharged on October 7, 1994. Calloway filed this action alleg-
ing that Food Chief discriminated against her on the basis of her race
by paying her less than similarly situated white employees and by
reducing her hours and ultimately terminating her employment in
retaliation for complaining to the SCHAC and the EEOC. The district
court adopted the magistrate judge's recommendation to award sum-
mary judgment to Food Chief and denied Calloway's motion for
reconsideration. Calloway appeals.

This court reviews de novo district court orders granting or denying
summary judgment. Carbon Fuel Co. v. USX Corp. , 100 F.3d 1124,
1132 (4th Cir. 1996). District courts may enter summary judgment
only when there is no genuine issue of material fact and the movant
is entitled to judgment as a matter of law. Miller v. Leathers, 913 F.2d
_________________________________________________________________
*Calloway's reassignment was by mutual agreement after she was
$11.63 short in her cash register.

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1085, 1087 (4th Cir. 1990) (en banc). The facts and inferences to be
drawn from the pleadings must be viewed in the light most favorable
to the nonmoving party. Nguyen v. CNA Corp., 44 F.3d 234, 237 (4th
Cir. 1995). Summary judgment is appropriate when the record taken
as a whole could not lead a rational trier of fact to find for the non-
moving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-49
(1986).

Plaintiffs in employment discrimination cases may avoid summary
judgment by satisfying the burden-shifting method of proof estab-
lished in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
The plaintiff-employee must first prove a prima facie case of discrim-
ination. If successful, the defendant-employer has an opportunity to
present a legitimate, non-discriminatory reason for its employment
action. If successful, the burden shifts back to the employee to show
that the defendant's proffered nondiscriminatory reason for its
employment action was, in reality, a pretext for a discriminatory
motive. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993). At
all times, the ultimate burden of persuasion lies with the employee.
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981).

Calloway's disparate treatment claim was based on her allegation
that she was paid less than white employees with less seniority. Food
Chief submitted an affidavit from O.C. Lane, Jr., Vice President of
Food Chief's parent company (Dilmar Oil Co. Inc.), which explains
that all part-time employees were hired at the rate of $4.25 per hour
and that wages were not based on seniority, nor were increases guar-
anteed. In an effort to demonstrate that this proffered reason for salary
differential was a pretext for discrimination, Calloway submitted an
affidavit from a former Food Chief employee, Valerie Hodges. In this
affidavit, Hodges stated that Food Chief discriminated against her by
promoting a white employee with less experience and seniority than
Hodges. The only other evidence submitted by Calloway consisted of
a copy of a sworn complaint which Calloway filed with the SCHAC
containing the same allegations contained in this complaint, and her
attorney's unsworn allegations. We agree with the district court's
finding that Calloway failed to rebut Food Chief's legitimate nondis-
criminatory reasons for any pay differential between Calloway and
other employees with less seniority. Accordingly, we affirm the dis-
trict court's grant of summary judgment as to this claim.

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Calloway's retaliatory discharge claim failed as well. To establish
a prima facie case of retaliatory discharge, a plaintiff must show that
(1) she engaged in protected activity, (2) the employer took adverse
employment action against her, and (3) there was a causal connection
between the protected activity and the adverse action. Williams v.
Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989). Once this prima
facie case is established, it may be rebutted by the employer's legiti-
mate nondiscriminatory reason for the adverse action. Id. The burden
then shifts back to the plaintiff to prove, by a preponderance of the
evidence, that the proffered reasons are pretextual. Id.

Lane's affidavit stated that Calloway was one of seven individuals
who were discharged by Food Chief between mid-September and
early October of 1994. Of those seven, three were black and four were
white. According to Jones, Calloway's discharge, and that of the other
six employees, was the direct result of a company-wide reduction in
its labor force. Food Chief's policy was to release its part-time
employees first before discharging any full-time employees. Calloway
failed to offer any evidence that Food Chief's reasons were pretex-
tual.

Calloway filed a motion for reconsideration in which she included
pay records of other Food Chief employees to substantiate her claim
of discrimination in pay. However, she offered no explanation as to
why these documents had not been submitted to the district court
before. Rule 60(b), Fed. R. Civ. P., authorizes relief from judgment
if an aggrieved party can properly present "newly discovered evi-
dence which by due diligence could not have been discovered in time
to move for a new trial under Rule 59(b)." Because Calloway failed
to offer any explanation for her failure to present this evidence prior
to the hearing on Food Chief's motion for summary judgment--
which took place five months prior to her motion for reconsideration
--the district court did not abuse its discretion by denying her motion.
Werner v. Carbo, 731 F.2d 204, 206 (4th Cir. 1984).

Accordingly, we affirm the district court's orders adopting the
magistrate judge's recommendation to grant summary judgment in
favor of Food Chief and denying Calloway's motion for reconsidera-
tion. We dispense with oral argument because the facts and legal con-

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tentions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

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