UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JEANETTE E. BOYD,
Plaintiff-Appellant,

v.
                                                                         No. 96-2233
RUBBERMAID COMMERCIAL PRODUCTS,
INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, District Judge.
(CA-96-8-A)

Submitted: January 13, 1998

Decided: February 11, 1998

Before HALL, WILKINS, and HAMILTON, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Thomas A. Schultz, Jr., Winchester, Virginia, for Appellant. Christine
H. Perdue, Elizabeth C. Smith, HUNTON & WILLIAMS, McLean,
Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Jeanette Boyd appeals from the district court's order granting sum-
mary judgment in favor of Rubbermaid Commercial Products, Inc., in
her employment discrimination action. Boyd alleges that she received
less pay than a similarly situated male employee in violation of the
Equal Pay Act (EPA), 29 U.S.C. § 206(d) (1994). Boyd also asserts
that Rubbermaid retaliated against her in violation of the EPA. Find-
ing no error, we affirm.

First, we find that Boyd's claim of discrimination under the EPA
fails. To establish a prima facie case of discrimination under the EPA,
a female plaintiff "must demonstrate (1) that she is receiving lower
wages than a male co-worker (2) for equal work requiring equal skill,
effort, and responsibility." Keziah v. W.M. Brown & Son, Inc., 888
F.2d 322, 324 (4th Cir. 1989). Once a plaintiff has established a prima
facie case, the burden shifts to the defendant to prove that the differ-
ence in salary is justified by one or more of the four statutory exemp-
tions: "(i) a seniority system; (ii) a merit system; (iii) a system which
measures earnings by quantity or quality of production; or (iv) a dif-
ferential based on any other factor other than sex." 29 U.S.C.
§ 206(d)(1) (1994); Equal Employment Opportunity Comm'n v. Aetna
Ins. Co., 616 F.2d 719, 724 (4th Cir. 1980) (quoting § 206(d)(1)). If
the defendant successfully meets this burden, then the plaintiff's
claim fails "unless the plaintiff can satisfactorily rebut the defendant's
evidence." Strag v. Board of Trustees, 55 F.3d 943, 948 (4th Cir.
1995).

This court will assume, without deciding, that Boyd's claim that
Rubbermaid discriminated against her based on her gender because
she was paid less than a male traffic scheduler is sufficient to make
out a prima facie violation of the EPA. See Houk v. Virginia Polytech-
nic Inst. & State Univ., 10 F.3d 204, 206 (4th Cir. 1993). After a
review of the record, however, we find that Boyd's claim fails
because she does not sufficiently rebut Rubbermaid's evidence estab-
lishing that the pay differential is justified by its nondiscriminatory
merit system. See Strag, 55 F.3d at 948. Rubbermaid's merit system
takes into account the employee's performance rating and the

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employee's position within the applicable salary range. Longevity
also plays a role in an employee's progression through a particular
range. The record reveals that Boyd moved through the salary range
in accordance with the merit system. Furthermore, the record shows
that based on her male counterpart's performance ratings and longev-
ity, Rubbermaid's merit system justifies his higher salary. Thus,
because Boyd fails to sufficiently rebut Rubbermaid's claim that the
merit system exception applies and because she does not establish that
Rubbermaid's merit system discriminates against her based upon her
gender, we find her claim unavailing. See id.

Next, Boyd claims that Rubbermaid retaliated against her for filing
an earlier EPA claim by lowering her performance evaluation in 1992
and by terminating her employment in its 1995 corporate downsizing.
We find no merit in this claim either. To establish a prima facie case
of retaliation a plaintiff must show that (1) she engaged in a protected
activity, (2) her employer took adverse action against her, and (3) a
sufficient causal connection existed between her protected activity
and her employer's adverse action. See McNairn v. Sullivan, 929 F.2d
974, 980 (4th Cir. 1991). Once a plaintiff has established a prima
facie case, the burden shifts to the defendant to establish that the
adverse action was the result of a legitimate, nonretaliatory reason.
See Equal Employment Opportunity Comm'n v. Western Elec. Co.,
713 F.2d 1011, 1014 (4th Cir. 1983). The plaintiff, however, retains
the burden of proving intentional discrimination, which may be estab-
lished by showing that the defendant's proffered reason is pretextual.
See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993).

Boyd engaged in the protected activity of filing a lawsuit against
Rubbermaid, and Rubbermaid took adverse employment action when
it subsequently lowered her performance rating and terminated her
position. Boyd's claims, however, fail because she does not show a
causal connection between these events and because she fails to show
that Rubbermaid's legitimate nonretaliatory reasons are pretextual.
See St. Mary's Honor Ctr., 509 U.S. at 506-08. The unrebutted evi-
dence in the record reveals that, in compliance with company policy,
Rubbermaid lowered Boyd's performance rating as a result of her
poor attendance. Further, the record shows that Rubbermaid termi-
nated Boyd's position, along with eighteen other salaried positions,

                    3
during its downsizing and that because Boyd was the least senior load
planner, her position was the load planner position eliminated.

We therefore affirm the order of the district court granting sum-
mary judgment in favor of Rubbermaid. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.

AFFIRMED

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