Thomas v. Technical Resources ( 1998 )


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  • UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    MARILYN D. THOMAS,
    Plaintiff-Appellant,
    v.
    No. 96-2733
    TECHNICAL RESOURCES,
    INCORPORATED,
    Defendant-Appellee.
    Appeal from the United States District Court
    for the District of Maryland, at Baltimore.
    J. Frederick Motz, Chief District Judge.
    (CA-95-769-JFM)
    Submitted: October 31, 1997
    Decided: April 20, 1998
    Before MURNAGHAN and WILKINS, Circuit Judges, and
    PHILLIPS, Senior Circuit Judge.
    _________________________________________________________________
    Affirmed by unpublished per curiam opinion.
    _________________________________________________________________
    COUNSEL
    Abbey G. Hairston, Adrian V. Nelson, II, ALEXANDER, BEAR-
    DEN, HAIRSTON & MARKS, L.L.P., Silver Spring, Maryland, for
    Appellant. William J. Carter, Thomas L. McCally, CARR, GOOD-
    SON, LEE & WARNER, P.C., Rockville, Maryland, for Appellee.
    _________________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    _________________________________________________________________
    OPINION
    PER CURIAM:
    Marilyn D. Thomas appeals from the district court orders granting
    summary judgment to her former employer, Technical Resources, Inc.
    (TRI), on her action alleging violations of Title VII of the Civil
    Rights Act of 1964, 42 U.S.C.A. §§ 2000e to 2000e-16 (West 1994
    & Supp. 1997), and denying her motion for reconsideration. We
    affirm.
    Thomas's complaint alleged discriminatory discharge based on her
    race, wrongful breach of an implied employment contract, and inten-
    tional infliction of emotional distress. The district court granted sum-
    mary judgment in favor of TRI on September 10, 1996. On
    September 26, 1996, Thomas filed a motion to extend time to file a
    motion for reconsideration under Fed. R. Civ. P. 59(e) and a Rule
    59(e) motion. On October 4, 1996, the district court granted Thomas's
    motion to extend time. The district court denied Thomas's motion for
    reconsideration on October 23, 1996, and on November 25, 1996,
    Thomas appealed the district court's order granting summary judg-
    ment and denying her motion for reconsideration.
    To the extent that Thomas appeals the district court's order entered
    on September 10, 1996, her appeal is untimely. Thomas's Rule 59(e)
    motion for reconsideration was not timely filed. A motion for recon-
    sideration must be "filed no later than 10 days after entry of judg-
    ment," and a district court judge may not extend the time to file a
    Rule 59(e) motion. See Fed. R. Civ. P. 59; Fed. R. Civ. P. 6(b). There-
    fore, the appeal period from the September 10 order was not tolled by
    the filing of the motion for reconsideration. See Fed. R. App. P.
    4(a)(4); Dove v. CODESCO, 
    569 F.2d 807
    , 809 (4th Cir. 1978).
    To the extent that Thomas appeals the district court's order denying
    her Rule 59(e) motion, we affirm the district court's order because the
    motion was not timely filed. Even if we were to construe the motion
    as a reconsideration motion under Fed. R. Civ. P. 60(b), we find that
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    the district court did not abuse its discretion in denying the motion.
    Thomas failed to establish mistake, newly discovered evidence, or
    fraud. Further, to prevail on a claim of discriminatory discharge,
    Thomas must show that: (1) she is a member of a protected class; (2)
    she was qualified for the job and that her job performance was satis-
    factory; (3) in spite of her qualifications, she was fired; and (4) the
    position remained open to similarly qualified applicants after her dis-
    missal. See Williams v. Cerberonics, Inc., 
    871 F.2d 452
    , 455 (4th Cir.
    1989). Once a prima facie case is established, the burden shifts to the
    defendants to produce evidence that shows some legitimate, nondis-
    criminatory reason for their actions. See Texas Dep't of Community
    Affairs v. Burdine, 
    450 U.S. 248
    , 253 (1981). If the defendants meet
    this burden, the burden then shifts back to the plaintiff to show that
    the reason proffered by the defendants was false and that race was the
    real reason for the adverse action. St. Mary's Honor Ctr. v. Hicks, 
    509 U.S. 502
    , 514-15 (1993).
    Our review of the record and the district court's opinion discloses
    that Thomas failed to establish a prima facie case of discrimination.
    Thomas failed to establish that her job performance was satisfactory.
    TRI received complaints about Thomas, investigated them, and deter-
    mined that Thomas's conduct was unacceptable. Thomas claims that
    she received several satisfactory job performance evaluations prior to
    the investigation. However, "[p]revious satisfactory job performance
    cannot be used by an employee to insulate [herself] from dismissal
    once performance becomes unacceptable." See Ransome v. Bowling,
    
    851 F. Supp. 204
    , 208 (D. Md. 1993), aff'd, 
    21 F.3d 423
     (4th Cir.
    1994). Thus, Thomas fails to establish that she was discharged
    because of her race.
    Accordingly, we affirm the district court's order. We grant
    Thomas's unopposed motion to amend or supplement requested
    relief. Because we affirm the district court's orders, the relief
    requested is not warranted. We dispense with oral argument because
    the facts and legal contentions are adequately presented in the materi-
    als before the court and argument would not aid the decisional pro-
    cess.
    AFFIRMED
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