UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

VELMA PRIDEMORE,

Plaintiff-Appellant,

v. No. 95-2839

USAIR, INCORPORATED,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Albert V. Bryan, Jr., Senior District Judge.

(CA-95-26-A)

Submitted: September 10, 1996

Decided: October 8, 1996

Before WILKINS, HAMILTON, and WILLIAMS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

John W. Davis, Washington, D.C., for Appellant. Marni E. Byrum,

Arlington, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Velma Pridemore, an employee of USAir, filed suit against USAir

alleging discrimination based upon race, age, and retaliation. After

completion of discovery, USAir moved for summary judgment. The

district court granted the motion, and this appeal followed. We affirm.

Pridemore began work in USAir's finance department in 1989.

USAir hired her to work in payroll on garnishment and direct deposit

systems. Pridemore's position required substantial phone contact and

communication skills. Pridemore's first two performance evaluations

reflected that she exhibited poor judgment, a rude and abrupt manner,

and a need for better cooperation, attitude, and patience. She was

eventually transferred to a position in the payroll department. Her

supervisors, Thomas Stiles and John Reece, counseled Pridemore that

she continued to need improvement in the same areas.

During this time, from 1990 to 1993, USAir had a company-wide

salary freeze in effect. When the freeze was lifted, not every

employee received a pay increase, and the amounts of pay increases

among employees were not equal. Pridemore received a lower percentage increase than some other employees in the finance department, and received the lowest increase of any employee in payroll.

Pridemore asked Stiles why she received a lower rate of increase.

Stiles responded that an evaluation had been conducted on Pridemore's work. Pridemore stated that she did not receive a copy of the

evaluation. Twice Stiles said that he would discuss it with her, but she

refused. After Stiles's second offer, Pridemore loudly stated, "[i]t's

not going to change the color of my skin." Soon after, Stiles met with

Pridemore regarding her raise and the comment Pridemore made

alleging discrimination. Stiles encouraged Pridemore to speak with

the employee relations office if she thought that she had been discriminated against. Pridemore decided not to file a discrimination claim

and to "leave things the way they were."

Stiles wrote Pridemore a formal memorandum stating that he felt

it was poor judgment to suggest racial discrimination and not follow

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up on the claim. He related that such behavior could negatively

impact morale. Pridemore responded to the memorandum and Reece

replied to Pridemore's response. Stiles continued to counsel Pridemore that she had a recurring problem in her attitude and that it was

limiting her employment opportunities at USAir. No other action was

taken.

In April 1994, Pridemore, a United States Naval reservist, was

called up for active duty. Immediately before her departure, a Senior

Tax Accountant submitted his resignation. While Pridemore was on

military leave, USAir posted a Career Opportunity Bulletin (COB) for

the Senior Tax Accountant position. The COB closed before Pridemore returned. Upon her return, Pridemore asked to be considered for

the position. Stiles encouraged Pridemore to apply and, although

under company policy she should not have been considered for the

position because the COB had closed, Pridemore was interviewed for

the position. USAir hired another candidate.

In June 1994, Pridemore received a performance evaluation covering 1992 to 1994. The overall rating was again fully competent, a

middle-range rating. The evaluation noted improvement in relating to

peers, average job performance, and continuing problems in the areas

of judgment and attitude. Pridemore expressed concern regarding the

evaluation and met with Ann Greer-Rector, vice-president and controller of finance, and Carter Hagen, manager of EEO, regarding

problems with her job. Greer-Rector asked Pridemore if she thought

she was being discriminated against. She said no. Greer-Rector undertook her own investigation of Pridemore's situation and found that the

June 1994 evaluation was justified.

Pridemore discussed her claims with the Arlington (Virginia)

Human Rights Commission in August 1994. She eventually filed a

complaint with the EEOC in January 1995. She filed an amended

complaint in the district court in February 1995 alleging violations of

42 U.S.C.A. § 1981 (West 1994), 42 U.S.C.A.§ 2000e-2 (West

1994), and 29 U.S.C. § 621 (1988). USAir moved for summary judgment, and the district court granted the motion.

I

Pridemore alleges that the district court erred by failing to accept

and consider all of the evidence proffered by her as true, by refusing

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to draw all reasonable inferences in her favor, and by resolving factual disputes without conducting a trial. The facts Pridemore claims

are in dispute are the accuracy of performance appraisals, whether she

made out a prima facie case of race and age discrimination, and

whether there is a nexus between a protected activity and an act of

reprisal.

This court reviews a grant of summary judgment de novo. Farwell

v. Un, 902 F.2d 282, 287 (4th Cir. 1990). Summary judgment is

proper "`if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there

is no genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). Conclusory

statements of injury are not enough to survive summary judgment.

The nonmoving party must rebut affidavits and like factual proof with

evidentiary materials as permitted by Fed. R. Civ. P. 56(c). Id. at 324.

In determining whether the movant has established that no genuine

issues of material fact exist, a court must assess the factual evidence

and all inferences to be drawn in a light most favorable to the party

opposing the motion. Ross v. Communications Satellite Corp., 759

F.2d 355, 364 (4th Cir. 1985). If there is a complete failure of proof

of an essential element of the non-moving party's case, the remaining

facts are rendered immaterial. Celotex, 477 U.S. at 323.

Pridemore claimed that the court improperly resolved on the pleadings the issue of whether she carried her burden of proof on her discrimination claims. The district court assumed without deciding that

she had made out a prima facie cases of race and age discrimination.

The determination of whether a plaintiff has met her burden in making out a prima facie case is a legal question that the district court

may assess prior to trial. See Fed. R. Civ. P. 56(c).

Pridemore's second argument regarding resolution of disputed

facts involves whether performance evaluations executed by her

supervisors were accurate reflections of her job performance. Pridemore's brief does not cite to any admissible evidence on the record

to put the accuracy of evaluations in dispute. Conclusory statements

by counsel, without supporting admissible evidence, are not enough

to survive summary judgment. Pridemore did not counter the Defen-

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dant's assertions with evidentiary materials as permitted by Fed. R.

Civ. P. 56(c). See Celotex, 477 U.S. at 324. In addition, Pridemore

failed to put forth evidence of pretext, as further discussed below.

Failure to prove an essential element of the non-movant's case renders the remaining facts non-material. Id. at 323. We therefore find

that the district court properly applied summary judgment law in

reaching its decision.

II

Pridemore bases her race and age discrimination claims upon her

failure to receive the promotion to Senior Tax Accountant in 1994

and her comparatively low pay increase after the salary freeze was

lifted in 1993. Under the allocations of burdens of proof and production under 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 non-discriminatory 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).

Following that three-step framework, the district court assumed without deciding that Pridemore made out a prima facie case of both race

and age discrimination. It also found that USAir articulated reasonable, non-discriminatory reasons for refusing to promote Pridemore

and granting her a limited pay increase. The court held, however, that

Pridemore did not meet her burden of demonstrating that USAir's

proffered reasons were pretextual.

Because the district assumed without deciding that Pridemore made

out a prima facie case of discrimination, USAir must present a legitimate, non-discriminatory reason for its decisions. The district court

cited Pridemore's performance evaluations as support for USAir's

decisions. We agree; job performance is widely recognized as a valid,

non-discriminatory base for any adverse employment decision. See

Evans v. Technologies Applications & Service Co., 80 F.3d 954, 960

(4th Cir. 1996). Because USAir presented a legitimate, non discriminatory reason for its employment actions, the burden shifted back to

Pridemore to show that the defendant's proffered non-discriminatory

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reason for the adverse employment action was, in reality, a pretext for

a discriminatory motive. St. Mary's Honor Ctr. , 509 U.S. at 507-08.

Pridemore's evidence falls short of that needed to overcome summary judgment. Pridemore has presented no sworn evidence contesting the Defendant's legitimate, non-discriminatory reason for its

employment decisions. While Pridemore alleges that she was the only

black person and the only person over the age of forty in her department, she does not allege that the pay increases implemented after the

salary freeze were granted in a discriminatory manner. Therefore, this

claim lacks merit.

"In a failure to promote case, the plaintiff must establish that she

was the better qualified candidate for the position sought." Evans, 80

F.3d at 960. During Pridemore's deposition she spoke of the circumstances surrounding her interview for the Senior Tax Accountant

position. She admitted that the problems and complaints about her

attitude and communication skills were raised and discussed. However, she did not allege that she was more qualified than the person

who received the job offer. In addition, although Stiles encouraged

her to apply for the position and arranged for the interview, under

USAir policy Pridemore was not eligible for the position because the

COB closed before her return from active duty with the Naval

Reserves. Accordingly, we find that Pridemore has not shown a genuine issue of race or age discrimination and affirm the district court's

grant of summary judgment on this issue.

III

Finally, Pridemore claimed that she was retaliated against for voicing her concern that her limited pay increase was due to racial discrimination. Pridemore alleges that Stiles's memo reprimanding her

for making accusations of discrimination without following up on

them and the negative performance evaluation in 1994 were acts of

retaliation for engaging in a protected activity.

To prevail on her retaliation claim, Pridemore must show "(1) that

she engaged in protected activity, (2) that [USAir] took adverse

employment action against her, and (3) that a causal connection

existed between the protected activity and the adverse action."

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Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989) (citing Ross, 759 F.2d at 365). Once Pridemore establishes her prima

facie case, the Defendant can rebut it with proof of some legitimate,

non-retaliatory reason for the adverse action. Id. The burden of proof

then shifts to Pridemore to establish by a preponderance of the evidence that the proffered reasons are pretextual. Id.

During the two-year time span at issue, there was no EEO activity

described in the record.1 The only protected activity was Pridemore's

remark after she received a limited pay increase. Because this activity

occurred after the alleged discriminatory act, it cannot serve as the

nexus required to demonstrate retaliation. Dwyer v. Smith, 867 F.2d

184, 190-91 (4th Cir. 1989) (providing elements for retaliation claim).

Because Pridemore has not established the requisite nexus, she did

not make a prima facie case of retaliation.2 Therefore, the district

court properly granted summary judgment to USAir on this claim.

IV

Accordingly, we affirm the order of the district court. We dispense

with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument

would not aid the decisional process.

AFFIRMED

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1 Pridemore did not file a complaint with the EEOC until January 1995,

after all claimed acts of retaliation occurred.

2 To the extent that Pridemore's performance evaluation included her

reference to employment discrimination, and that the evaluation was an

adverse employment action, USAir provided a legitimate, nondiscriminatory reason for its action, i.e. that the statement showed poor

judgment and was detrimental to morale.

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