*1 frоm the evidence may face rebuttal KING, Plaintiff-Appellant, Alfred G. from his own exami- taken
prosecution required to submit may be nation or v. prose- conducted to an evaluation RUMSFELD, Secretary, Donald United expert. That cution’s own defendant Defense, Department of States protection Amendment has no Fifth Defendant-Appellee. mental against the introduction essence, In in rebuttal. health evidence No. 02-1313. to remain right the defendant waives Appeals, United States Court of by indicating that he intends ... silent Fourth Circuit. psychiatric testimony. to introduce 24, Argued: 2003. Feb. (4th Murray, 82 F.3d Savino Cir.1996) (citations omitted) (emphasis 8,May 2003. Decided: added); Kentucky, Buchanan v. see also 422-24, 107 S.Ct.
483 U.S. if (noting that defen-
L.Ed.2d 336 evidence, psychiatric presents
dant may psychiatric introduce evi-
government rebuttal). Furthermore, Fed.
dence 12.2(c) clearly provides that the
R.Crim.P. expert testimo-
government may introduce issue of
ny defendant has raised the if Thus, condition. under Fed. his mental 12.2(c) principles and the set
R.Crim.P. Savino, the introduc-
forth this court experts’ government-retained
tion of the
testimony in did not constitute rebuttal initially raised the defense
error because mental
the issue of Curtis’s status sup-
introduced evidence tended
port the issue. judgment of the district
Accordingly, the
court
AFFIRMED. *2 joined.
Judge Judge WILKINS opinion concurring wrote an GREGORY part dissenting part.
OPINION LUTTIG, Judge: Circuit Appellant King appeаls Alfred G. granting summary district court’s order judgment employer, in favor of his former Defense, Secretary the United States on his race and sex discrimination and retalia- brought tion claims under Title VII amended, Rights Act of as Civil §§ 2000e to 2000e-17. Because U.S.C. presented King has not facie case as to his race and sex discrimination claims and because he has not overcome his em- ployer’s legitimate asserted motive in ter- minating respect him with his retaliation claims, we affirm.
I. The relevant facts of this case are straightforward. King, In a black man, by was hired as a teacher the De- (DOD) partment Dependent of Defense Schools, subject two-year probation- to a proba- ary period. During the time of his tionary employment, King reprimand- multiple by on occasions ed and counseled superiors using profanity for different Andorfer, M. Susan ARGUED: Susan belittling and for around students Belleville, Illinois, Andorfer, L.T.D., for M. King’s supervisor, them. first Thоmas Ballow, Appellant. Rachel Celia Assistant Whitaker, notice of was the first to take Alexandria, Virgi- Attorney, States United and to confront about this behavior. nia, Appellee. Carolyn BRIEF: for ON leave, medical Whitaker took When Firm, Carpenter, Carpenter P. Law Rich- Carlson, successor, Douglas heard similar mond, Appellant. Paul J. Virginia, for unsuitable conduct and reports McNulty, Attorney, States Alexan- United King. similarly reprimanded and counseled dria, Appellee. for Virginia, probationary was a teach- Because conduct concerned er and because his WILKINS, Judge, and Before Chief Carlson, began to review other Carlson GREGORY, Judges. Circuit LUTTIG work, including his lesson aspects King’s planning. Ultimately, concluded Carlson by published opinion. Judge job performance was inade- Affirmed planning, his lesson opinion, quate, in which as reflected LUTTIG wrote the Chief (3) him; picked factors.1 Carlson shared his that Carlson amоng other counseled him as pressured conclusion teacher had been substitute performance. might improve his to how he providing Carlson into a critical review of performance re- Following subsequent (4) him; substituting this time culminated with view—which upon learning complaint EEO telling King he could be terminat- Carlson “[tjhat’s him, you what Carlson said upon his ed based —Carlson people always say you up;” when screw from the DOD Office of received notice importantly, quickly will most be- Investigations King had Complaint evident, come that other teachers at the Opportunity Equal Employment filed plans not school considered *4 (EEO) complaint against him. substantially to be different from their any took definitive action Before Carlson plans. own respect King’s employment, Whit- with Upon summary motion for judgment, returned from his medical leave. aker granted judgment ap- the district court met with Carl- Upon returning, Whitaker pellee. King’s The cоurt determined that King’s performance. Whit- son discuss proffer prima failed to a facie establish many *5 Hawkins’ quality co-workers as to the of performing appellee’s at a level that met (cita her work are close to [] irrelevant.” legitimate expectations. omitted)); tion Tinsley v. First Union Appellee offered substantial evi Bank, (4th Nat’l 155 F.3d Cir. King meeting dence that was not in fact 1998) (“[Although the put affidavits forth legitimate job performance expectations, by Tinsley document the that certain fact chronicling King’s poor perfor in detail co-workers, customers, Bank and attor supervisors’ mance and his numerous neys Tinsley believed doing good was a King’s appellee’s concerns. to response job, they fail to manage address whether evidence is limited to his own claim of honestly ment Tinsley believed that was satisfactory job performance and to testi added)). doing good job.” (еmphasis a mony he elicited his fellow teachers King’s irrelevance of co-workers as plans to the effect that his lesson were not, contends, King witnesses does as fact substantially comparable to their own. him employees foreclose like from ever testimony can a challenge Neither sustain proving prima a facie case of race and sex appellee’s proffer to not in was King argues discrimination. that our rule meeting appellee’s legitimate perfor only employees satisfy prima allows expectations. mance unique, employ- facie standard in the course, er-controlled,
King’s
testimony,
own
cannot
circumstance where the em-
(1)
a
ployer
employ-
establish
issue as
whether
either
concedes that the
meeting appellee’s expectations.
was
ee
performing satisfactorily
was
at
(2)
Technologiеs Applications
discharge,
previously
See Evans v.
& time of
or
(4th
Co.,
given
employee positive
performance
Serv.
F.3d
960-61
Cir.
1996) (“It
perception
is the
third
decision reviews
establish this
element.
relevant,
maker
which is
not the self-as But such is not the case. For
(citations
plaintiff.”
appellee’s
sessment of the
omit
establish that his
met
le-
work
ted)).
job performance expectations
can the fact
gitimate
Nor
King's
thought
example,
testimony,
3. That.
his work
the co-worker's
taken
co-workers
accurate,
substantially
fully
might
simply
simply
similar to their own is
as
reflect that
smoking gun King
By way
job performance
lacking.
not the
believes.
their
too was
case,
allegations—
facie
his other
expert opinion
prima
qualified
only
to offer
white,
(1)
probation-
legitimate
similarly situated
appellee’s
that a
testimony as to
complaints
anal-
expectations and
not fired after
job performance
ary teacher was
King’s performance
him,
ysis and evaluation
raised
Carlson
were
about
expectations.
light
him,
of those
to cri-
picked on
asked a substitute
“[tjhat’s
him,
ultimately told him
tique
plaintiffs
It
not inconceivable
is
you
you
always say when
people
what
expert wit-
qualify as
co-workers could
inquiry.
to the
up”
screw
irrelevant
employer’s
to their
testify
as
—are
nesses
go
allegations,
King recognizes,
These
job
expectations
legitimate
performance
explana-
appellee’s
issue of whether
to the
analysis and evaluation
to their own
and as
King’s discharge
pretextual.
tion of
light
plaintiffs
But,
since
never established
prof-
But
never
expectations.
those
claims,
case as to his discrimination
And,
facie
capacity.
in this
fered his co-workers
duty
supply
under no
appellee is
proffered,
been so
even had the co-workers
discharge.
explanation
See
testimony never touched on either
their
(“Once
Brinkley,
pri-
co-
unidentified indeed make King conclude that did We expectations of ing to what address How- prima out a facie case of retaliation. legitimately maintain and appellee could ever, legitimate, non- appellee offered light work in failing analyze termination, retaliatory for motive the co-workers’ expectations, opined such proffer King has not offered as to which prima facie cannot build pretext. evidence King.4 case for prima To make out a facie case that his King cannot establish Becausе (1) retaliation, King must show that he appellee’s legiti- job performance satisfied (2) protected activity; in a that engaged cannot expectations, mate and so establish implicit assumption that the co- argument really no lies on the King's 4. is more than (i.e., admissibility expert opin- workers' have reliable and admissible argument for the ap- expert) opinions expectations to what unqualified, non-expert ion For, legitimately as to King's pellee could maintain and conclusion'—that the witnesses. analysis King’s thought work shows satis- appel- he met whether fact that his co-workers factory performance expecta- those under expectations probative lee's of whether he expectations necessarily re- tions. did meet those — employment prove employer’s took an adverse employer pre his reason is retaliation). him; text, that a cаusal against cover-up action protected connection existed between the allega None of various activity and the asserted adverse action. white, similarly tions—that a situated pro Cerberonics, Inc., See Williams bationary teacher was not fired after com (4th Cir.1989). Here, King’s F.2d plaints him, were raised about and that filing complaint protected of the EEO was him, picked Carlson asked a substitute activity, indisputably and his termination critique' him, and ultimately told him employment constituted adverse action. you what people, always say “[t]hat’s when Moreover, that his termination came so you up” appellee’s prof screw —contradict filing complaint gives close discharge fered motive. to a sufficient inference of causation to rise they probative Nor are in the manner satisfy prima requirement. facie See dissents, that the suggests. example, For (“Appеllant’s proof id. of a causal connec- says: the dissent protected activity tion and her between discharge was fired after her was she reports [T]hat Whitaker was aware of employer became aware she filed ongoing post misconduct Moore— proof charge. a discrimination While this reprimand ... establishes a solid basis conclusively requi- far from establishes the permissible for the inference ... (cid:127) connection, certainly site causal satisfies the administrators knew that Moore’s making prima the less onerous burden of beyond repri- misconduct continued causality.”).5 facie case of mand[.] however, But,
Appellee, proffered a le Post at 156. parent evidence that a gitimate, non-retaliatory discharge complain mo wrote the school about this meeting appellee’s repri- tive—that other teacher after that teacher wаs job performance expectations manded cannot establish that —after by establishing to it similarly shifted burden teacher were situated. To (“Once facie case. See id. establish that and that teacher were *7 situated, retaliatory similarly proffer facie evidence [of dis must evi- established, it charge] is' must be rebutted dence that school administrators believed reasons[J”). had, by legitimate nonretaliatory King, that the other teacher con- like Appellee beyond reprimand. thus shifted the burden back to tinued his misconduct this, proffer. prove directly with his See Womack v. To either must (8th Munson, proffer 619 F.2d Cir. evidence of the administrators’ be- 1980) liefs, (following employer’s proffer proffer the of a or that he must evidence the legitimate, non-retaliatory reason for an other in fact con- teacher’s misconduct did course, employment beyond reprimand. adverse action thе burden of tinue Of the persuasion plaintiff proof only remains with the to latter form is relevant insofar as situation, King’s firing employment 5. particular came two months and two this following receipt length weeks Carlson’s of notice time not undercut inference does the complaint enough King’s prima that had filed an EEO with of causation to render Here, Complaint Investigations. DOD’s Office of facie claim unsuccessful. Carlson and length ongoing This of time between Carlson's notice Whitaker committed to reviews of King's complaint employment and the adverse that end of set the the sufficiently long year action is so as to weaken academic school as the natural decision significantly making likely any discharge, point, the inference of causation be- thus that Yet, unlawful, tween the at that time. two events. in the context of lawful or would come parent of a child who not been the inference that he is possible might make fol- by touched the teacher protestations inappropriately the administrators’ despite at 333-34. lowing reprimand. in know about See J.A. they did fact contrary, the aspect the of the letter Consequently, the misconduct. dissent, cling and the is the King, which the first form present King does that an- hearsay parent assertion that testimony that the administra- proof here — inappropri- child had been parent’s other teachers were simi- the two tors believed repri- teacher’s ately touched after the respect. The in the relevant larly situated claimed to have mand. The letter writer they believed testified administrators (and alleged of that instance “learned” misconduct. had ceased his teacher other occurred) the time it importantly most contradict evidence to King proffered no He did hearsay report from his son. via directly. The letter from thеir (and again, of the incident most not learn cites that the dissent parent the vexed occurred) of the time it importantly, cannot, directly not, establish does inappropriately allegedly either thought par- as the that the administrators that parent child or from the touched only that the It thought. ent establishes Indeed, letter-writer notes that child. informed as to administrators were hearsay conversation with the another Indeed, very let- thoughts. parent’s child, parent allegedly touched while administrators disa- reports that ter his child parent of that child confirmed and believed the greed its author “poked,” he could not confirm had been misconduct. other teacher had ceased such had occurred the teacher proof proving form of The second — J.A. at 333. reprimanded. had been See the other inference from the Furthermore, import, King greatest and of had continued be- misconduct teacher’s from the stu- proffered no evidence either the administrators yond reprimand that allegedly poked after the dent who was not met here to be the case—is knew such or from that stu- reprimand, teacher’s King proffers only either. The evidence And, well, note as parent. dent’s nei- the same letter as dis- on this score is parents ther that student nor his filed essence, argues, cussed above. that the complaint alleging with the school different facts: proves two the letter fol- inappropriately student was touched (1) in fact continue his that the teacher did reprimand. There is thus lowing Moore’s beyond reprimand; misconduct reliable, proffered basis on no given knowl- were that the administrators the teacher’s misconduct conclude readily be fact. It should edge of this past reprimand. continued that can es- that until evidence apparent *8 continuing misconduct is fact of tablish the the fact Since the letter cannot establish cannot establish the proffered, letter misconduct, and since no oth- continuing proof if there is no second fact. For presented was to establish this er evidence continued, cannot the letter the misconduct fact, gave it the letter cannot establish that giv- the administrators were establish that knowledge the administrators of such a since the knowledge that continued en evidentiary fact. no valid basis With knowledge is the any such foundation to infer the administrators which that the misconduct continued. actual fact knew, denial, despite their that the other continued, King can- letter, however, teacher’s misconduct cannot establish inferentially he simi- that was continued. As not establish that the misconduct fact matter, larly to that other teacher. an concedes situated initial the letter-writer Likewise, places еquivalent the dissent too work was to It his. is not testimony by on the Donna weight probative much actually whether work (a Fontenot substitute teacher at theirs, equivalent was to and thus of school) that asked her to be “criti Carlson King actually whether similarly was situ- of, “derogatory comments” cal” or make ated King prove to them. For to that he about, King’s plans post- in her similarly situated to colleagues his at substituting evaluation forms. See J.A. job performance would, terms of his in the matter, employ 381. As an initial that an absence of evidence to that effect from the coerces, asks, er or a subordinate to even employer job reviews, or its critically evaluate another’s work is not require expert opinion an to form an based sufficient on its to establish own evidence on analysis reasoned as to how pretext. Employers are de entitled to performing other teachers were and as provide mand that subordinates critical re performances how their measured employees views of their when such are against one another. Such is not the stuff And, justified if by sub-par work. even lay, testimony. Compare Fed. demand of Fontenot is the least Carlson’s (opinion testimony by lay R.Evid. wit- probative that he bit harbored an unlawful only opinion nesses allowed where that is firing King motive for and so desired that “rationally perception based on the provide pretext she under could witness,” and not where opinion him, fire the fact is that did not Carlson “specialized knowledge”), based on King. fire fired Whitaker con (Testimony by Experts). Fed.R.Evid. 702 ducting independent investigation own Thus, just expert as it would an take wit- matter, and after Carlson had left provide opinion ness to an as to whether the school. No evidence links to Whitaker any given job teacher had met legitimate the motive uses Fontenot’s pеrformance expectations, as the dissent ascribe Carlson. Since Carlson did 154, 157, agrees, post see at so too it would any King, not fire and since motive Carl expert provide opinion take an as to pressuring son had for Fontenot is not any given whether teacher’s work was Whitaker, attributable Fontenot’s testi equivalent to that of another teacher’s. mony if only could be relevant the record provided contained evidence that Fontenot Though rely upon would dissent falsely reviews of work that attrib Conkwright Westinghouse Electric sub-par performance uted to him (4th Cir.1991), Corp., F.2d to reach partially was fired at least on that conclusion, contrary that case does not But, sugges basis. the record contains no In support Conkwright, the dissent. tion at all that pro the reviews Fontenot employment considered the discrimination any way vided were in inaccurate reviews claims of а worker who was laid off after work. employer firm-wide enacted cutbacks rating employees, first all its and then points The dissent also co- discharging those on the bottom of the worker as evidence that ratings Conkwright’s list. tes- co-workers differently similarly was treated than situ- job, they thought good tified that he did a colleagues. again, ated But for similar *9 ratings, that he did not deserve his and governed reasons as our discussion in sec- H.A., 148-151, gét not to off. pp. opinion tion the he did deserve laid We cf. infra King’s colleagues of concluded that this co-worker that his work was irrelevant, equivalent probative only is in dicta in a theirs of the was close but fact that those co-workers that: believed their footnote observed GREGORY, concurring Judge, if Circuit to irrelevant because only close
It is out line with wildly of ratings the were dissenting part: in part employee’s perfor- an of other indicia join majority’s opinion respeсt I the whether may question then one mance prima failure to establish a facie imple- a bias its rating system has discriminatory discharge. As the case of is not the case But mentation. finds, King not adduced suffi- majority has here. satisfactory performance of cient evidence 235 n. 4. Id. at legitimate expecta- employer’s vis-a-vis his from the lan- readily apparent isAs summary judgment. Ad- tions to survive footnote, were there con- we guage of ditionally, majority’s I concur in the rever- of an of “indicia the relevance cerned with inquiry in an as performance” employee’s of the district court’s conclusion sal not there address the did pretext. We prima out a facie case King failed to make testimony as a reliability of co-worker However, for the retaliatory discharge. of employee’s that an work proving means of follow, I dissent from the reasons that it adequate or that performance was either King’s allega- conclusion that majority’s to that of other workers. equivalent in- discriminatory treatment are tions of Here, accept that indicia of to create a issue ma- sufficient pre- to the might be relevant respect pretext. terial fact with above, But, explained as inquiry. text allega- majority identifies any' reliable and proffered not indicia, regarding differential and discrimina- tions testimony as to such admissible testimony of qualify tory employ- cannot at the hands of his treatment a assessment of his reliable co-workers majority posits that er. The then him and his co- competence the relative true, treatment, if assumed to be fails even to backdoor The dissent’s effort workers. Secretary’s proffered dis- to contradict the un- testimony into case co-worker summary judg- charge motive. To survive King may Conkwright thus fails and der ment, however, King squarely need not on such ground proof Instead, explanation. employer’s rebut his testimony. King must cast sufficient doubt above, given none For all the reasons genuineness explanation warrant proffers sufficiently the evidence possible alterna- jury’s a consideration retaliatory intent to es- demonstrative discriminatory motivations for the tive and poor perfor- the unrebutted tablish firing. proposition, As a it is not basic pretext. discharge motive is As mance workplace terribly imagine difficult to result, proffer is insufficient for where, group of under- confronted with appellee’s motion for action to survive is' performing employees, employer who And while the dis- summary judgment. n by discriminatory improperly motivated found not to improperly trict court animus, retaliatory singles out the mi- case, prop- facie prima out a have made nority employee firing for files summary judgment appel- erly granted сomplaint. Because he has made out a lee. ease, if cast facie also has CONCLUSION upon the real motivations behind his doubt herein, judg- stated For the reasons treatment, suffi- unique he has adduced court is affirmed. ment of the district summary judg- to survive cient evidence ment. AFFIRMED.
155 Inc., PepsiCo, F.3d In Hawkins 203 laissezfaire and differential treatment (4th Cir.2000), panel a of this by Specifically, the school. I am disturbed the exact nature of the Court addressed by the differential treatment of King’s necessary pretext. evidence to establish co-worker, Moore, white Richard who vio- Court, Writing Judge for the Wilkinson policies by lated the school’s inappropriate- noted, producing “[I]nstead evidence ly students, poking tickling -and yet was employer’s] that shows [][the assessment terminated, formally nor even written- employee’s] performance [ ][the up for the incident. dishonest or not the real reason for her The Secrеtary claims that Moore requires the ][the termination —as law [— stopped objectionable conduct once employee] disputes the merits of [][the] warned, yet' King proffers evidence that added). (emphasis evaluations.” Id. In wit, undermines this To defense. Hawkins, employee simply the took issue Inaba, offers the of Robert employer’s with the assessment of her whose son Keith had inappropriately been performance deficiencies. The re- Court touched throughout year. Moore the quired employee actually that the offer J.A. brought See at 333-334. Inaba this suggesting some evidence that an alterna- conduct, along complaints with other re- tive reason existed for the termination. Moore, garding to the attention of Whit- Hawkins, beyond employee’s In the self- during aker meeting. June Id. serving conclusory allegations of rac- acknowledged par- Whitaker that another ism, Hence, there was no such evidence. misconduct, ent had him of notified similar reviewing summary in at the already indicated he had coun- judgment stage, should assess whether regarding seled-Moore inappropriate plaintiff has adduced evidence suffi- touching. During the meeting, same once genuine cient to create doubt room, Moore had left the Whitáker as- jury regarding mind of a reasonable that, veracity justification. sured Inaba proffered “[Moore] should not analysis any must Our be limited to whether have touched students within the last competent the evidence is and sufficient to days.” seven Id. Inaba When returned create a issue of material for home and related Whitaker’s assurance jury opposed to resolve—as to wheth- inappropriate touching would er the evidence will overcome cross-exami- stop, his son informed him that Moore had rigors nation and the carry of trial to student, Dukes, touched another Damon jury. King maintains that he was treated very day. morning earlier that On the differently similarly than his situated co- 3, 1997, telephoned June Inaba Whitaker employees. support proposition, To this report ongoing and related his son’s illustrations, he offers several factual touching, clearly undermined his as- genuinely which I find troubling and de- surances. Id. that he Whitaker stated serving jury’s of a consideration. investigate would the matter. fol- After low-up conversations with In Whitaker age acutely in which schools are reported June and June Inaba consequences may aware the dire investigation Whitaker’s of the matter was allegations follow from of inappropriate touching teachers, asking .third-party limited to whether he of students one expect touching. would school too had observed the June Id. administrators to re- spond rapidly decisively any alleged Whitaker did not ask the victim of such Yet, allegation. precisely high-, Moore’s conduct about the incident. Fi- ly charged nally, apparent context we observe a case frustrated with Whitaker’s *11 af- touching occurred sometime on or seriously, the his concern to take
unwillingness However, 2, 2, 1997. on June on ter June Dukes’ father Damon contacted Inaba that he conversation, had assured Inaba Mr. Whitaker During this June 9. spoken regarding to already Moore touching had had that the confirmed Dukes that not have touching, the he should during previous the occurred sometime the last seven any touched student within specify pre- not week, although he could hardly great leap a to infer days. It is it occurred. Id. cisely when on notice this that Whitaker prove that that to majority argues The touching by reported the Moore regarding similarly situated King and Moore were Therefore, during May 1997. Inaba’s late King would have discipline, рurposes for regarding report to June Whitaker misconduct continued that Moore’s to show alleged to have occurred on an incident permit the which would beyond reprimand, 2, 1997, establishes that Whitaker June administration did that the inference ongoing miscon- reports was aware misconduct. continuing fact know of the duct n post-reprimand. by Moore— majority turns to the Supra, at 152. The a con- This fact establishes solid basis above and incident discussed Inaba inference, adopt the permissible the it does not demonstrate cludes that the ad- majority’s logical approach, beyond rep- continued the the misconduct However, that Moore’s miscon- conclu- ministrators knew Id. at 152. rimand. reprimand, yet beyond duct continued from the rele- simply does not follow sion discipline they him as would ulti- majority notes that failed The Inaba vant facts. Hence, mately discipline King. through of the incident on Junе learned issue of material son, Damon Dukes or established rather than from warranting jury’s consideration majority then acknowl- his father. The Dukes, majority The val- differential treatment. edges spoke Inaba to Mr. in- idly that Inaba’s touched. observes confirmed that Damon been direct, Damon Dukes nor his emphasis upon that neither majority places great complaint, might filed a and we Dukes did not father its that Mr. observation just expect Secretary present the touching 'had “occurred well indicate that the challenge evidence at reprimanded.” such the teacher had been However, limit inquiry trial. must our majority notes that neither we Finally, Id. complaint present King may at survive parent filed a whether the victim nor his Hence, summary judgment, prognosticate touching. according to alleging the ultimately sway evidence will is no basis which whether his majority, there jury. King’s evidence of the differential knowledge of continued the inference colleague treatment vis-a-vis his white touching may rest. alone constitutes sufficient evidence Indeed, reports express no letter Inaba’s summary judgment. deny that his son by confirmation Mr. Dukes However, King significant proof offers reprimand. had been touched after However, report beyond the Moore incident from which we does not Inaba’s letter differently may that he was treated a confirmation. In- infer requested that he such instance, deed, employer. For of- Mr. Dukes indi- Inaba relates that Fontenot, a of Donna touched some- fers cated that his son had been school, testi- substitute teacher at the who during previous time week. See J.A. coerced Carlson to occurred on fied she was at 333. This conversation quality of Hence, prepare denigrating reviews can June 1997. assume *12 plans. See J.A. at 381-83. conduct—evidence of which abounds. The pressured, testified that she felt Fontenot testimony Fontenot reveals differential losing teaching assign- treatment, at the risk of future whereupon a jury may legiti- ments, produce negative to evaluation of mately discount pretext the reviews as a majority Id. The work. dismisses employer’s for the true unlawful motive. Whitaker, testimony because it was Finally, majority the dismisses Carlson, rather than who made the ulti- proffer of testimony co-worker regarding Thus, discharge King. mate decision to similarity the of his work to their own. according majority, any to the unlawful Court, According to the King may only legitimately that could motive be inferred equivalence establish the of his work by from campaign “pa- Carlson’s coercive introducing expert testimony to this effect. reviews, per” negative the record with can- Supra agree at 153. I majority with the not as serve a basis for unless expert require testimony would King proffers evidence that Fоnteno’s re- establish his work met the legiti- fired, and views were false that he was at expectations supervisor; mate of his how- in part, Supra least on that basis. at 153. ever, hardly follows that he fortiori majority seems to assume that Fon- expert must adduce testimony 'to demon- indepen- tenot’s reviews should be read similarity strate the product of his work dently of the circumstances under which to that of his co-workers. they produced. By insisting were recognized, lay As we have “[A] witness demonstrate Fontenot’s reviews in a federal court proceeding permitted “falsely subpar performance attributed under opinion Fed.R.Evid. 701 to offer an him,” 153, supra majority at the returns on the basis of relevant historical or narra again to its insistence that demon- perceived.” tive that the facts witness performance. strate the merits of his Corp. MCI v. Telecommunications Wan However, above, as noted King need not (4th zer, 703, 897 F.2d Cir.1990)(quot-ing squarely employer’s perfor- rebut his een-Ed, Inc. v. Kimball Internation T Instead, explanation. mance-based al, Inc., (3d Cir.1980)). 620 F.2d casting must introduce evidence doubt Although lay opinion testimony was once upon proffered explanation. the It is to excludable, presumed disfavored and “The testimony this end that Fontenot’s should modern trend of opin favors admission be That a directed. teacher was coerced testimony, provided ion it is well- denigrate colleague, the work of her personal knowledge founded on [as distin contrary impressions to her true and be- guished hypothetical facts] sus liefs, must at least raise issues ceptible specific cross-examination.” Id. concerning credibility pu- of Carlson’s (alteration original) (quoting 3 J. Wein- meritocractic Although tative zeal. Carl- stein, EvidenceH at 701[02] and 701- son did not make the ultimate decision to 7.01-9 (1978)). However, King, part fire these coerced reviews were opinions such a witness is limited to course, those King’s teaching record. Of as 1) or inferences majority rationally which are: emphasizes, Whitaker asserts witness; upon based discharged perception that he conducting 2) helpful to a clear independent investigation understanding own However, case. or the jury blindly need not determination of 3) events, issue; accept upon this version of may knowledge based rightfully scope infer that decision within the Whitaker’s Rule 702. Fed.R.Evid. may have been tainted Additionally, guard Carlson’s mis- 701. we must be on Westbrook, v. opinion); United States ing it in- testimony when opinion lay
prevent (8th Cir.1990) (per- which 896 F.2d 335-336 assertions “meaningless volves choosing up testify to the identi- mitting than ex-users to more little amount .to Corp., Carrier substance based ty Mattison Dallas of a controlled sides.” (4th Cir.1991) same). (quoting experience 110-11 What past 947 F.2d their 701, Advisory Committee is that the may Fed.R.Evid. from these cases derive *13 Note). due to testimony is not admitted opinion knowledge,” which should “specialized might 701 of Rule Although the contours 702, experts under Rule reserved for be straight-for- appear inspection upon first knowl- particularized of the but because subtlety is often re- ward, considerable personal virtue of his edge of a witness of mischaraeterization quired to avoid not). (legal in a or experience field See, e.g., MCI lay opinion. competent (cit- Telecommunications, at 706 897 F.2d majority’s of the distinc- The treatment proper in treating error court’s ing district expert opinion does lay tion between expert testimony where wit- lay as opinion prob- justice not do to the subtleties upon projections based profit ness offered this evi- majority oversimplifies The lem. company’s knowledge of personal her dentiary issue when it asserts Bostic, books); v. 5 F.3d 772 Winant “form expert witness to require an would Cir.1993) (4th (noting that sometimes the analysis as on reasoned opinion an based opinion as characterization King and the other teachers were to how fo- misleading when the may be evidence perfor- their performing and as to how upon rational inferences be cus should one another.” against measured mances the witness has from facts which drawn King has adduced substan- Supra at 153. courts knowledge). Accordingly, personal from his fellow teachers tial evidence testimony under lay opinion admitted have plans were effect that their lesson beyond the classic goes well Rule 701 teachers and sub- similar. Each of these . ,and physical perception, confines of ample personal knowl- stitute teachers judgment solidly the exercise of requires To one subject matter. allow edge See, knowledge. personal in grounded opinion that his or to introduсe the teacher Fowler, 932 F.2d e.g., States v. United similar,” “looks colleague’s plan her Cir.1991) (4th (admitting lay opinion 312 have tes- many King’s co-workers as so treatment knew rules about that defendant tified, setting Rule hardly would hazard documents, upon foundation of classified moorings. If prudential adrift from its 701 familiar with the docu- that witnesses were bookkeeper, testifying or a business owner ments, classification and reasons their may seemingly offer such lay opinant, as a therefor, nature of the defendant’s and the insights profit projections “specialized” Tele-communications, work); MCI surely elementary damage reports, (profit projections based F.2d at 706 compare can two lesson school teacher knowledge company’s finances personal personal he or she has plans, of which 701); Lightning under Rule admissible as an ex- (3d knowledge, qualifying without Lube, Corp., Inc. v. F.3d Witco Likewise, amphetamine if аn aficion- pert. Cir.1993) opin- lay admission of (upholding lay opinion comparing pow- may ado offer damages, plaintiffs owner as ion from provenance, I dery of unknown substances upon personal knowledge which was based business, why a teacher must be treated do not see in affairs of participation appearance of expert compare report as an part upon if relied even witness Ultimately, King’s plans. prepar- similar lesson prepared by outside accountant comparative testimony goes not proffer objectively designed wise review scheme. subject work-product, to the merits of the See Conkwright Westinghouse Electric legitimate expectations (4th nor to the of an Corp., 933 F.2d 235 n. 4 Cir. 1991). elementary supervisor, simply school but Conkwright, In we acknowledged similarity of “objective” seeks to establish the two that an employee rating sys evidence, tem, per- items of both of which are might manipulated be generate sonally proposed opinant. familiar to the neutral looking discharge. basis for In Therefore, analysis our scenario, should such a where co-workers testified proceed upon premise employee did not deserve the question demonstrated a factual received, ratings he we observed that their work-product compa- as whether testimony could argu be relevant to an colleagues. rable that of his The ulti- pretext. ment of majority concedes *14 equivalence, mate determination of that such King’s performance “indicia of course, jury. should be for the might reserved be relevant to the inquiry,” supra goes at but on to conclude that I Finally, opportunity would take this proffer failed to testimony admissible precedent, comment this Circuit’s as to such indicia.' in Obviously, light of by majority beеn cited has my discussion of I disagree Rule emphasize our traditional reluctance to assessment. co-workers’ testi employ testimony of co-workers to es- mony equivalence is an indicator of the in tablish merit unlawful dis- performance, lays the foundation Indeed, charge Supra cases. at 149. for the inference that being singled out majority correctly explained, an em- discharge, differently was treated ployee may not introduce the race, oh perfor the basis of than rather his co-workers to establish his satisfaction mance. supervisor’s legitimate performance of his Hawkins, expectations. See 203 F.3d at Ultimately, we must recall that we are 280; Tinsley, joined 155 F.3d at I 444. asked to assess whether raised a majority’s opinion regarding King’s genuine issue of material ques- fact on the discriminatory discharge precisely claims pretext. my tion of On review However, light precedеnt. of such evidence, I escape cannot the conclusion separate ques- are now forced to resolve a respect- that he has done so. I therefore altogether: tion does evidence of fully majori- the-part dissent from comparable product work demonstrate dif- ty’s opinion affirming the district court’s ferential treatment employers? summary judgment King’s .retaliatory opinion testimony King’s peers discharge claim. genuine question establishes a of fact re-
garding equivalence prod- of his work peers.
uct to that of his This evidence
does not establish that his work was meri-
torious, nor could it under precedent. our occasion, in noting
We have had the nar-
row relevance of re- co-worker
garding quality plaintiffs of a work
product, to allow for the admission of such
opinion in order to possi- demonstrate the
bility
implementation
bias
an other-
notes
aker reviewed
Carlson
case of race or sex discrimination because
King
kept of his conferences with
and of
job
King’s
it did not contain evidence that
job
then
performance. Whitaker
satisfactory
was
at the time
King
met
on
occasions and asked
two
discharge.
of his
The court also deter-
King
explain
his side of the events that
prima
mined that
failed to
a
establish
away.
while
Fol-
occurred
Whitaker
retaliatory discharge
facie
claim.
lowing
meetings,
decided
these
Whitaker
making
before
a
evaluate
himself
regarding his termination.
decision
Whit-
II.
King’s classes on several
aker observed
occasions and talked
several
summary
review an
We
award
review,
Following
students.
his own
Whit-
judgment de
E.I.
Higgins
novo.
v.
Du
King prior to
aker decided to terminate
Co.,
1162,
Pont de Nemours &
863 F.2d
two-year probationary peri-
the end of his
(4th Cir.1988). Summary judgment
1167
od.
appropriate only
is
if there are no material
dispute
moving party
facts in
and the
alleging
brought
then
this action
judgment
entitled to
as a matter of law.
discriminatory
that he was terminated
56(c);
Corp.
See Fed.R.Civ.P.
Celotex
a
motives and that his termination was
Catrett,
317, 322,
2548,
477
106
U.S.
S.Ct.
retaliatory
against
filing
him for
action
(1986).