                     UNITED STATES COURT OF APPEALS
                              FIFTH CIRCUIT

                              _______________

                                No. 95-50014

                            (Summary Calendar)
                              _______________


                  GLENN D. TROTTIE,

                                          Plaintiff-Appellant,

                  versus

                  SW BELL YELLOW PAGES,

                                          Defendant-Appellee.
                  and

                  LEROY ROSAS,

                                          Defendant.

           _______________________________________________

             Appeal from the United States District Court
                   For the Western District of Texas
                             (SA-91-CV-29)
           _______________________________________________
                            (July 24, 1995)

Before SMITH, EMILIO M. GARZA, and PARKER, Circuit Judges.

PER CURIAM:*

      Glenn D. Trottie sued Southwestern Bell Yellow Pages, Inc.

("SWBYP") under Title VII, 42 U.S.C. § 2000e (1988), and the Age

Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (1988),

alleging discriminatory and retaliatory discharge.              The district

court granted SWBYP's motion for summary judgment on all claims.


     *
            Local Rule 47.5.1 provides: "The publication of opinions that have
no precedential value and merely decide particular cases on the basis of well-
settled principles of law imposes needless expense on the public and burdens on
the legal profession." Pursuant to that Rule, the Court has determined that this
opinion should not be published.
Trottie appealed, and we remanded for reconsideration of his Title

VII retaliatory discharge claim.             The district court again granted

summary judgment against Trottie, and later denied Trottie's motion

for a new trial.      Trottie appeals the district court's denial; we

affirm.

                                         I

        Glenn D. Trottie filed a Title VII retaliatory discharge claim

against his employer, SWBYP, alleging that SWBYP fired him in

retaliation for his having filed a discrimination claim with the

EEOC.     At the close of the evidence at trial, the district court

granted summary judgment against Trottie, finding that Trottie

would have been fired even if he had not filed the EEOC claim.

Trottie filed a motion for a new trial, alleging that SWBYP's

attorneys had coerced a defense witness, Judy Moore, into giving

perjured testimony.      Trottie's support for this claim is a tape of

a   post-trial    conversation     he    had    with   Moore,   his   manager's

secretary, during which Moore states that she does not remember

when SWBYP's managers called a meeting to discuss terminating

Trottie's employment.1       Trottie alleges the meeting occurred in

January or February of 1990, immediately after he filed his EEOC

claim, but Moore testified at trial that the meeting occurred in

late May or early June of 1990.          In the taped conversation, Moore

discusses her discomfort with SWBYP's attorneys' efforts to prepare

her for trial and does not attempt to refute Trottie's statements

    1
            SWBYP does not dispute the accuracy of Trottie's transcription of the
conversation in his brief on appeal.


                                        -2-
that the attorneys had threatened that she would lose her job if

she did not testify favorably for SWBYP.                   Trottie also based his

motion    for   a   new     trial    on   the    grounds    that    the    tape,   EEOC

arbitration transcripts, and an affidavit from a SWBYP employee who

claims that he overheard Moore say before trial that the meeting

had   occurred      early    in     the   year   constituted       newly   discovered

evidence of retaliatory discharge warranting a new trial.                           The

district court denied his motion.                Trottie appeals, claiming that

in light of his newly discovered evidence supporting his Title VII

claim and proof that the defense relied on perjured testimony at

trial, the district court abused its discretion in denying him a

new trial.

                                           II

      Under Federal Rule of Civil Procedure 60(b), a court may grant

a new trial if the movant offers either newly discovered evidence

or evidence of misrepresentation on the part of an adverse party.

Fed. R. Civ. P. 60(b)(2), (3).2            We will reverse a district court's

denial of a Rule 60(b) motion only if it abused its discretion.

First Nationwide Bank v. Summer House Joint Venture, 902 F.2d 1197,


      2
            Rule 60(b) provides that a court may:
      relieve a party . . . from a final judgment . . . for the following
      reasons: (1) mistake, inadvertence, surprise, or excusable neglect;
      (2) newly discovered evidence which by due diligence could not have
      been discovered in time to move for a new trial under Rule 59(b);
      (3) fraud . . . , misrepresentation, or other misconduct of an
      adverse party; (4) the judgment is void; (5) the judgment has been
      satisfied, released, or discharged, or a prior judgment upon which
      it is based has been reversed or otherwise vacated, or it is no
      longer equitable that the judgment should have prospective
      application; or (6) any other reason justifying relief from the
      operation of the judgment.
Fed. R. Civ. P. 60(b).


                                           -3-
1200-01 (5th Cir. 1990).      We apply this deferential standard "to

ensure that 60(b) motions do not undermine the requirement of a

timely appeal." Id. "[T]o overturn the district court's denial of

[a] Rule 60(b) motion, it is not enough that a grant of the motion

might have been permissible or warranted; rather, the decision to

deny the motion must have been sufficiently unwarranted as to

amount to an abuse of discretion."            Fackelman v. Bell, 564 F.2d

734, 736 (5th Cir. 1977), quoted in Lancaster v. Presley, 35 F.3d

229, 231 (5th Cir. 1994), cert. denied, ___ U.S. ___, 115 S. Ct.

1380, 131 L. Ed. 2d 233 (1995).

                                       A

     Trottie claims that the district court abused its discretion

in denying his motion for a new trial after he presented newly

discovered evidence, namely the taped conversation with Moore, EEOC

arbitration transcripts, and a co-worker's affidavit as to Moore's

alleged statement     that   SWBYP's       managers    discussed   terminating

Trottie early in 1990.        "In deciding whether newly discovered

evidence is sufficient to warrant a new trial, the district court

should consider whether the evidence: (1) would probably have

changed the outcome of the trial; (2) could have been discovered

earlier with    due   diligence;   and      (3)   is   merely   cumulative   or

impeaching."    Diaz v. Methodist Hospital, 46 F.3d 492, 495 (5th

Cir. 1995).    "The burden is on Appellant to demonstrate that the

new evidence clearly weighs in favor of a new trial." Id.

        The evidence contained in the taped conversation, EEOC

transcripts, and co-worker's affidavit is not sufficient newly


                                   -4-
discovered evidence to warrant a new trial.            Trottie has not shown

that, even with due diligence on his part, this evidence could not

have been obtained prior to or during trial.            See Diaz, 46 F.3d at

496 (refusing to grant new trial on the basis of an affidavit

obtained after trial where movant failed to convince court that a

truly diligent litigant would have been "powerless" to unearth the

evidence during discovery); Washington v. Patlis, 916 F.2d 1036,

1039 (5th Cir. 1990) (refusing to grant new trial on the basis of

new evidence where movant did not show that she had demonstrated

due diligence in attempting to locate the evidence during trial,

which would have included a request for a continuance).                 Such an

argument would be difficult for Trottie to make, particularly with

respect to Moore's pre-trial statement and the EEOC arbitration.3

Also, Trottie has failed to demonstrate that any of his offered

evidence would probably have changed the outcome of the case.

Trottie claims only that the district court "relied heavily" on

Moore's trial testimony that the meeting was held in late May or

early    June   in   granting    summary    judgment    in   SWBYP's    favor.4

However, in its Order Granting Motion For Summary Judgment, the


      3
             Trottie was a participant in the EEOC proceedings of which he has
obtained transcripts, and was also the person to whom Moore was speaking when she
was overheard before trial to say that SWBYP's managers met to discuss
terminating Trottie early in 1990, suggesting that these pieces of evidence are
not so much newly discovered as newly produced. See Washington, 916 F.2d at 1038
(holding that evidence cannot be newly discovered if appellant had knowledge of
its existence but did not attempt to acquire it); Johnson Waste Materials v.
Marshall, 611 F.2d 593, 598 (5th Cir. 1980) (distinguishing between newly
discovered evidence and newly produced evidence), cited in Longden v. Sunderman,
979 F.2d 1095, 1103 (5th Cir. 1992).
     4
            Trottie offers no explanation as to how the arbitration transcripts
might have changed the outcome of the case.


                                      -5-
court stated that even if the meeting had occurred as Trottie

alleged, unrebutted evidence still showed that SWBYP had legitimate

nondiscriminatory reasons for discharging Trottie.       The court

granted summary judgment for SWBYP because Trottie had not produced

evidence showing a causal connection between his EEOC claim and his

discharge.   Because Trottie either knew about or should have

discovered the evidence that he claims is newly discovered, and

because it is very unlikely that the evidence would have changed

the outcome of the trial, the district court's refusal to grant

Trottie's 60(b) motion on the grounds of newly discovered evidence

was not so unwarranted as to amount to an abuse of discretion.

                                B

     Trottie also claims that the district court should have

granted him a new trial based on evidence that he believes shows

that Moore perjured herself in testifying that the meeting was held

in late May or early June of 1990.   "An allegation of fraud urged

by a party as a basis for new trial under Rule 60(b)(3) must be

established by clear and convincing evidence, [and] [t]he conduct

complained of must have prevented the moving party from fully and

fairly presenting his case or defense."       Johnson v. Offshore

Express, Inc., 845 F.2d 1347, 1358 (5th Cir. 1988); accord Longden

v. Sunderman, 979 F.2d 1095, 1103 (5th Cir. 1992) (citing Rozier v.

Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir. 1978)).

     Thus, even if we assume that Trottie's allegations of perjury

are true, we will reverse the district court's decision only if

Trottie can show that the perjury prevented him from fully and


                               -6-
fairly presenting his claim of retaliatory discharge. See Diaz, 46

F.3d at 497 (stating that "[e]ven if we accept as true Appellant's

assertions of perjury, we would only set aside the decision of the

trial court if we found that Appellee's actions foreclosed the

possibility that Appellant could `fully and fairly present [his]

case.'" (quoting Longden, 979 F.2d at 1103)).           We have held that if

a trial court did not rely on allegedly perjured testimony in

reaching its decision, it does not abuse its discretion in refusing

to grant a new trial on the basis of evidence of the perjury.

Johnson, 845 F.2d at 1359.5        Because the district court expressly

stated that it found that Trottie would have been fired whether or

not he filed his EEOC complaint, and that its judgment was based on

Trottie's failure to rebut SWBYP's evidence that it had fired

Trottie for nonretaliatory reasons, we conclude that the district

court did not base its decision on Moore's statements at trial

about the timing of the meeting. Therefore, the district court did

not abuse its discretion in refusing to grant Trottie's 60(b)




      5
            See also In re Ginther, 791 F.2d 1151, 1153-54 (5th Cir. 1986)
(holding that appellant was not prevented from fully and fairly presenting case
where district court did not base its decision on allegedly perjured affidavit
or use affidavit in determining its final settlement order); Carson v. Polley,
689 F.2d 562, 585-86 (5th Cir. 1982) (holding that district court did not abuse
its discretion in refusing to grant new trial after appellee wrongfully withheld
evidence because evidence was not relevant to case or legal issues and its
nonavailability did not prejudice appellant). In McLawhorn v. John W. Daniel &
Co., Inc., the Fourth Circuit held that a trial court did not abuse its
discretion in refusing to grant a new trial based on evidence of fraud where, as
here, the evidence was irrelevant to the court's grant of summary judgment in
employment discrimination suit in which the plaintiff failed to rebut employer's
legitimate reasons for termination. McLawhorn, 924 F.2d 535, 538 (4th Cir.
1991).

                                      -7-
motion on the grounds that Moore's testimony was perjured.6

                                      III

      For the foregoing reasons, we AFFIRM the district court's

denial of Trottie's motion for a new trial.




      6
            See Johnson, 845 F.2d at 1359 (finding no abuse of discretion in
trial court's refusal to grant new trial on evidence of perjury where trial court
stated when it denied the motion that it had not relied on the allegedly perjured
testimony in reaching its decision).
      Trottie also claims that the district court abused its discretion in
denying his motion for a new trial because he was unfairly surprised by SWBYP's
refusal to release EEOC arbitration transcripts until the court ordered their
release on the first day of trial.      For authority, Trottie cites Conway v.
Chemical Leaman Tank Lines, Inc., 687 F.2d 108 (5th Cir. 1982), in which we held
that a district court may grant a new trial if the movant's case is prejudiced
by unfair surprise. Conway, 687 at 111-12. However, Conway also provides that
"[appellate courts have] limited reversible error from unfair surprise to
situations where a completely new issue is suddenly raised or a previously
unidentified expert witness is suddenly called to testify" Id. at 112; accord
Genmoora Corp. v. Moore Business Forms, Inc., 939 F.2d 1149, 1156 (5th Cir.
1991).   Trottie fails to allege, much less establish, that SWBYP's belated
release of the transcript is tantamount to SWBYP raising a new issue at trial.


                                      -8-
