UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 per-
centage increase than some other employees in the finance depart-
ment, 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 Pride-
more'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 discrim-
inated 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 Pride-
more 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 Pride-
more 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 cover-
ing 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 con-
troller 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 under-
took 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 judg-
ment, 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 fac-
tual 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 plead-
ings the issue of whether she carried her burden of proof on her dis-
crimination 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 mak-
ing 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. Pride-
more'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 ren-
ders 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 produc-
tion under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
the plaintiff-employee must first prove a prima facie case of discrimi-
nation. 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 with-
out deciding that Pridemore made out a prima facie case of both race
and age discrimination. It also found that USAir articulated reason-
able, 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 legiti-
mate, 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 discrimi-
natory 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 sum-
mary judgment. Pridemore has presented no sworn evidence contest-
ing 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 depart-
ment, 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 circum-
stances 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. How-
ever, 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 genu-
ine 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 voic-
ing her concern that her limited pay increase was due to racial dis-
crimination. 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) (cit-
ing 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 evi-
dence 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 ade-
quately 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, non-
discriminatory reason for its action, i.e. that the statement showed poor
judgment and was detrimental to morale.




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