Kistner v. Permatile Concrete ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-1792
CARL KEITH KISTNER,
Plaintiff - Appellant,
versus
PERMATILE CONCRETE PRODUCTS, d/b/a Joe Joe
Rainero Tile Company, Incorporated, d/b/a Joe
Rainero,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. Glen M. Williams, Senior
District Judge. (CA-03-74-3)
Submitted: January 28, 2005 Decided: February 22, 2005
Before LUTTIG, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Hilary K. Johnson, Abingdon, Virginia, for Appellant. Christen W.
Burkholder, CHRISTEN W. BURKHOLDER, P.C., Bristol, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Carl Keith Kistner appeals the district court’s order
granting summary judgment in favor of the Defendant in his Title
VII action. We have reviewed the record and find no reversible
error. Accordingly, we affirm substantially on the reasoning of
the district court.* See Kistner v. Permatile Concrete Prods., No.
CA-03-74-3 (W.D. Va. May 26, 2004). 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
*
While we note the district court’s citation to the “pretext
plus” standard that has been overruled in Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 146-49 (2000), we find no
harmful error in this case as the evidence was insufficient to
establish pretext even under Reeves, and because the issue was not
raised on appeal and is therefore waived. See Canady v. Crestar
Mortgage Corp., 109 F.3d 969, 973-74 (4th Cir. 1997).
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