UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 00-31304

ERICA COOK BUNTYN,

Plaintiff-Appellant,

VERSUS

HORSESHOE ENTERTAINMENT, doing business as Horseshoe Casino & Hotel,

Defendant-Appellee.

Appeal from the United States District Court For the Western District of Louisiana (98-CV-2239) December 21, 2001 Before JONES and DeMOSS, Circuit Judges, and LIMBAUGH,1 District Judge.

PER CURIAM:2

The case before us concerns a claim made by plaintiff-

appellant, Erica Cook-Buntyn (Buntyn), against defendant-appellee,

Horseshoe Entertainment (Horseshoe), alleging that she was the

1 District Judge of the Eastern District of Missouri, sitting by designation. 2 Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. victim of racial discrimination when Horseshoe

discharged her and failed to pay her equal wages in violation of

Title VII,

et seq. Before Buntyn's case went to

trial, she moved to have Robert Piper, Jr. (Piper), disqualified as

trial attorney for Horseshoe based on communications between Piper

and Horseshoe officials in which Piper allegedly complained of

Horseshoe's discriminatory treatment of African-Americans. The

district court found that the communications in question concerned

matters that would not be admissible at trial and, therefore, the

motion was not justified.

Buntyn's case was tried before a jury in September 2000. At

the close of Buntyn's case, Horseshoe moved for judgment as a

matter of law. The district court granted the motion after an oral

colloquy with counsel. The court followed the framework set forth

in McDonnell-Douglas Corp. v. Green,

(1973),

in which: (1) the plaintiff must prove a prima facie case by a

preponderance of the evidence; (2) the defendant then must rebut

the presumption of intentional discrimination by articulating

legitimate, non-discriminatory reasons for the challenged actions;

and (3) the plaintiff must counter by offering evidence that the

legitimate, non-discriminatory reasons are really a pretext for

discrimination.

The district court found that Buntyn was able to prove her

prima facie case of discrimination. However, the court also found

2 that Horseshoe had presented evidence indicating that there existed

legitimate, non-discriminatory reasons for firing Buntyn. As a

result, the district court properly directed Buntyn to adduce

evidence of a pretext.

After Buntyn presented additional evidence in support of her

claim, the district court concluded that she had not met her burden

of showing a pretext. As a result, the court granted Horseshoe's

motion for a judgment as a matter of law under Rule 50 of the

Federal Rules of Civil Procedure. The district court relied on

Casarez v. Burlington Northern/Santa Fe Co.,

(5th Cir.

1999), in reaching its decision. In Casarez, this Court applied a

two-part test to determine whether evidence was sufficient for the

purpose of showing a pretext.

. Under this test, the

court must consider “whether 'the evidence taken as a whole (1)

creates a fact issue as to whether each of the employer's stated

reasons was what actually motivated the employer and (2) creates a

reasonable inference that [race] was a [motivating] factor in the

actions of which the plaintiff complains.'”

(quoting Rhodes v.

Guiberson Oil Tools,

(5th Cir. 1996) (en banc)).

The district court, after considering this test, concluded that

there was no evidence of racial animus on the part of Horseshoe.

Rather, the court concluded that Buntyn had violated the terms of

her employment. We must note that the Supreme Court's decision in

Reeves v. Sanderson Plumbing Products, Inc.,

(2000),

3 which was not mentioned by the district court, does not affect the

law applicable to the present case. In fact, Reeves affirmed our

en banc precedent established in Rhodes. See Vadie v. Mississippi

State Univ.,

, 373 n. 23 (5th Cir. 2000), cert. denied,

(2001) (holding that “Rhodes is consistent with

Reeves and continues to be the governing standard” in the Fifth

Circuit).

Buntyn now raises three issues on appeal: (1) whether the

district court erred by failing to disqualify Robert E. Piper, Jr.,

as trial attorney for Horseshoe and to allow discovery on the

issues underlying his potential disqualification; (2) whether the

district court abused its discretion when it granted Horseshoe's

motion for judgment as a matter of law at the close of Buntyn's

evidence as to her racial discrimination discharge claim under

Title VII of the Civil Rights Act of 1964; and (3) whether the

district court abused its discretion when it granted Horseshoe's

motion for judgment as a matter of law at the close of Buntyn's

evidence as to her unequal wage claim under 42 U.S.C. § 2000e-

2(a)(1), which is part of Title VII of the Civil Rights Act of

1964. We have fully considered the respective parties' briefing on

these issues, carefully reviewed the entire record of this case,

and heard oral arguments. As to the first two issues on appeal, we

AFFIRM the judgment of the district court for the same reasons

given by the district court.

4 As to the third issue, we also Affirm the district court's

decision to dismiss the case. However, the district court did not

provide specific reasons for dismissing this particular claim. We

believe it is sufficient to note that there is no evidence in the

record to support a claim that Buntyn was being paid less than

other employees because of her race. Specifically, Buntyn argues

that a white employee in the same shift supervisor position, named

Vera Parker (Parker), earned more than she did. While the record

reflects that Buntyn was initially being paid lower wages than

Parker because she had substantially less experience and

qualifications regarding employment in the food industry, it also

reflects that in less than two years she was earning the same

amount as all employees hired as shift supervisors. It is well

settled that an employee's qualifications and experience are

legitimate non-discriminatory reasons for paying one employee more

than another. See, e.g., Messer v. Meno,

(5th

Cir. 1997).

AFFIRMED.

5