UNPUBLISHED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Affirmed by unpublished per curiam opinion.

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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Unpublished opinions are not binding precedent in this circuit.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 alleging 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 summary 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 nonmoving 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 established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

The plaintiff-employee must first prove a prima facie case of discrimination. 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 guaranteed. 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 nondiscriminatory reasons for any pay differential between Calloway and

other employees with less seniority. Accordingly, we affirm the district 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 legitimate 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 pretextual.

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 evidence 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 reconsideration. 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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