UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LUERETTA P. SHOOK,
Plaintiff-Appellant,

v.                                                                No. 94-2460

UNIMIN CORPORATION,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Richard L. Voorhees, Chief District Judge.
(CR-93-80)

Argued: January 29, 1996

Decided: April 22, 1996

Before MURNAGHAN, ERVIN, and WILKINS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: John West Gresham, FERGUSON, STEIN, WALLACE,
ADKINS, GRESHAM & SUMTER, P.A., Charlotte, North Carolina,
for Appellant. P. Michelle Rippon, VAN WINKLE, BUCK, WALL,
STARNES & DAVIS, P.A., Asheville, North Carolina, for Appellee.
ON BRIEF: C. Margaret Errington, Rebecca A. Thorne, FERGU-
SON, STEIN, WALLACE, ADKINS, GRESHAM & SUMTER,
P.A., Charlotte, North Carolina, for Appellant.

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Unpublished opinions are not binding precedent in this circuit.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:

Appellant Lueretta P. Shook sued her former employer, Appellee
Unimin Corporation, claiming that the company had violated the Age
Discrimination in Employment Act (ADEA), 29 U.S.C.§§ 621-34,
when it terminated her employment. The jury returned a verdict in
favor of Unimin. Shook requests a new trial, contending that the dis-
trict court improperly instructed the jury, erred when it ruled that
Unimin had not willfully violated the ADEA, and abused its discre-
tion when it excluded evidence concerning the behavior of her super-
visor. We are unpersuaded by Shook's arguments and affirm the
decision below.

I.

Prior to July 1992, Unimin Corporation operated three plants in the
area of Spruce Pine, North Carolina: a clay- and mica-mining plant,
a quartz-mining plant, and a crystal-mining plant. Lueretta Shook,
who in July 1992 was fifty-five years old, worked for Unimin as an
office administrator, performing payroll functions for the clay- and
mica-mining employees, handling shipping orders for clay, and carry-
ing out secretarial duties for the plant manager at the clay- and mica-
mining facility. That month, Unimin initiated a reduction in force
(RIF) by terminating its clay-mining activities, eliminating the posi-
tion of plant manager at the clay- and mica-mining plant, and dis-
charging approximately twenty employees.1 Shook was among the
employees discharged.

Shook filed suit in the United States District Court for the Western
District of North Carolina, alleging that Unimin had discriminated
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1 In December 1992, Unimin ceased its mica-mining activities as well,
and discharged most of the remaining employees at the plant.

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against her because of her age in violation of the ADEA. She did not
contest the legitimacy of the RIF; instead, she argued that she should
have been assigned new responsibilities at one of Unimin's other
plants. After Shook had presented her case, the district court ruled
that she had not submitted sufficient evidence of willful discrimina-
tion to warrant an award of liquidated damages pursuant to 29 U.S.C.
§ 626(b) ("[L]iquidated damages shall be payable only in cases of
willful violations of this chapter."). The remainder of Shook's case
was submitted to the jury. The jury subsequently found that age was
not a determining factor in Unimin's decision to terminate Shook's
employment; the district court entered judgment in favor of Unimin
accordingly.

II.

A.

Shook makes numerous complaints with respect to the jury instruc-
tions provided by the trial judge and argues that we must remand the
case for a new trial. She contends that the trial judge improperly
(1) failed to instruct the jury to consider whether Unimin officials dis-
criminated against her by refusing to transfer her to another position;
(2) told the jury that Shook was required to prove that the RIF was
a pretextual explanation for Unimin's decision to terminate her
employment, even if it, the jury, believed that age was a determining
factor in that decision;2 and (3) indicated that Shook was required to
prove that age was the sole determining factor in Unimin's decision
to terminate her employment. She also stated a belief that the trial
judge substantially deviated from the instructions he told the parties,
prior to closing arguments, that he would give, thereby depriving her
of the opportunity to make a closing argument consistent with the
instructions actually given.

The trial judge told the jurors that the "only issue" for their consid-
eration was this: Was Shook's age a determining factor in Unimin's
decision to terminate her employment? When contemplating the
answer to that ultimate question, jurors were told that they could con-
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2 Shook articulated this concern in the form of two separate allegations
of error.

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sider both direct and circumstantial evidence. The judge further stated
that, if Shook proved by a preponderance of the evidence "that age
was a determining factor with respect to [her] termination of employ-
ment," then the jury had a "duty to find in[her] favor." The jury was
also told that, if Unimin presented evidence suggesting that the deci-
sion to eliminate Shook's position and to terminate her employment
was based, not upon age, but instead upon other, legitimate, non-
discriminatory factors, then Shook would be required to prove by a
preponderance of the evidence that Unimin's proffered explanation
was merely pretextual.

When reviewing the adequacy of a trial court's instructions, we
must review those instructions "as a whole," and uphold them if they
"properly present the issues and the law as applicable." Smith v. Uni-
versity of North Carolina, 632 F.2d 316, 332 (4th Cir. 1980) (quota-
tion omitted). Applying those principles to the case at bar, we find
that the instructions provided by the district court were indeed ade-
quate.

Contrary to Shook's contention, the district court repeatedly stated
that the jury's task was to determine whether age was a determining
factor--not the determining factor--in Unimin's decision to termi-
nate Shook's employment. The jury was also told--seven times, by
our count--to consider whether Unimin's explanation for its actions
was the true reason both for eliminating Shook's position and for dis-
charging her. The jury was therefore directed with sufficient clarity
to consider the possibility that, while the RIF may very well have
been the true reason for the company's decision to eliminate Shook's
position at the clay- and mica-mining plant, it was not the true reason
for its decision to discharge her, rather than to transfer her to another
position. We also believe that, when read as a whole, the district
court's instructions made clear that, regardless of whether Unimin
articulated a non-discriminatory reason for its actions, Shook was to
prevail if the jury believed that age was a determining factor in the
company's decision to discharge her. Finally, Shook has not per-
suaded us that the district court substantially deviated from the
instructions he told the parties he would give or that, if the district
court did so deviate, she was prejudiced by that deviation to such an
extent that a new trial is warranted.

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B.

Shook argues that the district court erred when it granted Unimin's
motion for judgment as a matter of law on the issue of whether the
company had willfully violated the ADEA3 and that the district court
abused its discretion when it excluded, as irrelevant, testimony con-
cerning the behavior of Shook's supervisor, John Edney.4

We review the district court's grant of Unimin's motion for judg-
ment as a matter of law de novo, and must determine whether, view-
ing the evidence in the light most favorable to Shook, "`there [could
have] been but one reasonable conclusion as to the verdict.'"
Alevromagiros v. Hechinger Co., 993 F.2d 417, 420 (4th Cir. 1993)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)).
We review the district court's evidentiary rulings only for an abuse
of discretion. Herold v. Hajoca Corp., 864 F.2d 317, 321 (4th Cir.
1988), cert. denied, 490 U.S. 1107 (1989).

We have carefully considered Shook's arguments and have con-
cluded that the district court neither erred nor abused its discretion.

The decision of the district court is accordingly

AFFIRMED.
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3 Shook had sought liquidated damages. The ADEA provides that "liq-
uidated damages shall be payable only in cases of willful violations of
this chapter." 29 U.S.C. § 626(b).

4 Shook wanted to present testimony suggesting that Edney sometimes
engaged in bizarre behavior and that, on two occasions, he tried to per-
suade her to violate company policy in order to give the company a legit-
imate reason to fire her. Shook contends that the evidence of bizarre
behavior was relevant because it indicated that Edney was under stress
and might therefore carelessly have made statements that others later
attributed to him concerning company plans to terminate Shook because
of her age.



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