UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______________________

No. 95-60184 Summary Calendar _______________________

MARTHA BRADDY,

Plaintiff-Appellant,

versus

BEVERLY ENTERPRISES, INC. d/b/a Albermarle Health Care Center,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas (3 94 CV 298 LN) _________________________________________________________________ (October 20, 1995)

Before JOLLY, JONES and STEWART, Circuit Judges.

PER CURIAM:*

Martha Braddy filed suit against Beverly Enterprises,

Inc., alleging violations of the Civil Rights Acts of 1964 and 1991

(collectively, the plaintiff’s “Title VII claims”). 42 U.S.C. §§

2000e & 1981A. The district court granted summary judgment to the

defendant and then denied the plaintiff’s request for post-judgment

relief. This court affirms the judgment.

* Local Rule 47.5 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 Pursuant to that Rule, the Court has determined that this opinion should not be published. I. BACKGROUND

In May 1994, the plaintiff filed a complaint alleging

that, because of her race, the defendant a) issued her an

“unwarranted” poor performance review; b) withheld her pay

increase for thirty days and then reduced her raise by one

percent; and c) harassed her in retaliation for her opposition to

its allegedly discriminatory practices.

In August 1994, the defendant served interrogatories,

requests for admissions, and requests for production of

documents, materials and things on the plaintiff. Braddy did not

respond to the interrogatories and requests. The defendant thus

moved for summary judgment in October 1994. The plaintiff also

did not respond to the defendant’s motion. The district court

granted summary judgment on January 5, 1995, dismissing the case

with prejudice.

On January 21, 1995, --eleven business days after the

district court’s final judgment-- the plaintiff mailed a “Motion

to Alter or Amend Judgment Pursuant to Rule 59 and Motion for

Relief from Judgment and Motion to Alter or Amend Admissions”

(the plaintiff’s “motion for post-judgment relief”) to the

defendant. This motion was not filed in the district court. On

February 11, 1995, the district court denied the motion.

Braddy now appeals the district court’s grant of

summary judgment and the denial of her motion for post-judgment

relief.

2 II. DISCUSSION

A. District Court’s Grant of Summary Judgment

The district court correctly granted summary judgment

based on the plaintiff’s failure to respond to the defendant's

requests for admissions. These admission requests were properly

admitted as evidence. Federal Rule of Civil Procedure 36

provides that a requested admission “is admitted unless, within

30 days after service of the request . . . the party to whom the

request is directed serves upon the party requesting the

admission a written answer or objection . . . .” FED. RULE CIV.

P. 36(a).

Given this evidence, summary judgment against the

Braddy's Title VII claims was appropriate;1 she could not set

forth a prima facie case and could not demonstrate that the

defendant’s proffered reason for its allegedly discriminatory

action was a pretext for discrimination.2 By failing to respond

to the defendant’s admission requests, Braddy admitted that:

1. Her poor performance evaluation caused the delay in, and reduced amount of, her pay increase;

2. The defendant made no untruthful statements in the plaintiff’s performance evaluations because of her race;

3. The unflattering aspects of the plaintiff’s performance review were not due to her race;

1 See Dukes v. South Carolina Ins. Co.,

(5th Cir. 1985) (“When [appellants] failed to file a timely response to [appellee’s] request for admissions, no genuine issue of material fact remained and summary judgment was appropriate.”).

2 See St. Mary’s Honor Center v. Hicks, __ U.S. __,

(1993) (setting forth elements of Title VII claim).

3 4. Most of the employees who received larger percentage pay raises than the plaintiff were African- American; and

5. The defendant had not harassed or intimidated the plaintiff for her opposition to its allegedly discriminatory employment practices.

The plaintiff thus conceded her Title VII claims.

B. District Court’s Denial of Plaintiff’s Post-Judgment

Motion

The district court did not abuse its discretion in

denying the plaintiff’s “Motion to Alter or Amend Judgment

Pursuant to Rule 59, and Motion for Relief from Judgment and

Motion to Alter or Amend Admission.”3 First, Braddy's motion to

alter or amend the district court's judgment could not be

considered under Federal Rule of Civil Procedure 59; her motion

was untimely served for this purpose. FED. RULE CIV. P. 59(e)

(stating that motion to alter or amend judgment must be served no

later than ten days after judgment). Second, Braddy's motion for

relief from the judgment does not fall under Federal Rule of

Civil Procedure 60 because the motion does not request relief on

any of the bases listed in that rule. FED. RULE CIV. P. 60(b).

Further, the district court did not abuse its

discretion in denying the plaintiff’s argument to alter or amend

her admissions because “the defendant has at all times known that

3 See Southern Constructors Group, Inc. v. Dynalectric Co.,

(5th Cir. 1993) (stating that denial of Rule 59 motions reviewed for abuse of discretion); Lancaster v. Presley,

(5th Cir. 1994), reh’g and sugg. for reh’g en banc denied,

(1994), cert. denied, __ U.S. __,

(1995) (stating that denial of Rule 60 motions reviewed for abuse of discretion); Scroggins v. Air Cargo, Inc.,

(5th Cir. 1976), reh’g denied,

(1976) (stating that rulings on discovery motions reviewed for abuse of discretion).

4 the requested admissions were inconsistent with the [p]laintiff’s

true position in the matter.” Rule 36 does not allow a party to

alter or amend admissions on that ground, and Braddy has not

demonstrated that the district court’s grant of the motion would

“subserv[e] . . . the presentation of the merits of the action.”

FED. RULE CIV. P. 36(b).

III. CONCLUSION

Based on the foregoing reasons, the judgment of the

district court is AFFIRMED.

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