UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LOUGENA STALEY COCKERHAM,
Plaintiff-Appellant,

v.

BUTTKE DAIRY, INCORPORATED; JEFF
KIMBALL, Individually, and as an
                                                                     No. 96-1520
agent of Buttke Dairy, Incorporated;
GEORGE MORGAN, individually, and
as an agent of Buttke Dairy,
Incorporated,
Defendants-Appellees.

Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
William L. Osteen, Sr., District Judge.
(CA-95-78-2)

Submitted: May 29, 1997

Decided: June 11, 1997

Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Angela Newell Gray, GRAY, NEWELL & JONSON, L.L.P., Greens-
boro, North Carolina, for Appellant. Julie C. Theall, Alexander L.
Maultsby, SMITH, HELMS, MULLIS & MOORE, L.L.P., Greens-
boro, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Lougena Staley Cockerham appeals the district court's order grant-
ing summary judgment in favor of the Defendants in this civil rights
action alleging, among other claims, a violation of the Pregnancy Dis-
crimination Act of 1978, 42 U.S.C. § 2000e(k) (1994). On appeal,
Cockerham asks this court to review only whether the district court
erred in concluding that she had failed to present sufficient evidence
of pretext in the Defendants' articulated reason for her termination.
Because we find no error in the district court's determination, we
affirm.

Buttke Dairy employed Cockerham as a first-shift milker intermit-
tently over a period of years. Shortly after Cockerham learned she
was pregnant she informed her supervisor. That week, she left early
complaining of sickness associated with her pregnancy. The next
week, when Cockerham failed to report for work as scheduled with-
out notice, she was contacted and informed that she was no longer
employed and would need to re-apply in order to continue employ-
ment with the dairy. Cockerham did not respond for nine days. By
that time, the dairy had filled her position and was unwilling to rehire
her. This suit followed.

The district court concluded that Cockerham presented sufficient
evidence to establish a prima facie case of discrimination, see
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), but also
held that the Defendants had produced a legitimate, nondiscrimina-
tory reason for the actions they took relative to her employment. Id.
at 802. Once the defendant has articulated a legitimate non-
discriminatory explanation for the adverse action, the plaintiff must
show by a preponderance of the evidence that the employer's asserted
justification for taking adverse employment action was merely pretex-
tual, and "that discrimination was the real reason" behind the adverse

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employment action. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,
515 (1993); see also Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981). It is at this stage of the analysis Cockerham
assigns error to the district court's reasoning. She contends that genu-
ine issues of material fact remain regarding whether she established
that the proffered reason for the Defendants' actions relative to her
employment was merely pretextual.

Cockerham claims that the district court overlooked the dispute
with regard to whether she voluntarily left the employ of the Defen-
dants, and whether they acquiesced in her failure to report to work.
However, neither of these claims relate to whether the Defendants
proved that they had a legitimate, nondiscriminatory reason for the
actions they took concerning Cockerham's position. Burdine, 450
U.S. at 256. Moreover, we find the record to be devoid of evidence
establishing that the reason proffered by the employer for failing to
retain Cockerham's job when she failed to report for work and/or in
refusing to rehire Cockerham after her position had been filled by
another individual were merely pretextual.

Accordingly, we affirm the district court's grant of summary judg-
ment in favor of the Defendants. 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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