Lynne S. Taylor, and Keisha Johnson v. Virginia Union University, Keisha Johnson, and Lynne S. Taylor v. Virginia Union University

case, diversity in a we think that should we Lynne ruling TAYLOR, our on more

predicate Plaintiff-Appellant, conventional S. Leo v. Chem. principles. See Kerr-McGee (3d Cir.1994). 96, 101 Corp., 37 F.3d Johnson, Plaintiff, Keisha Pennsylvania that in

It is true right “[t]he of a client to terminate the v. attorney-client relationship implied is an UNIVERSITY, VIRGINIA UNION every employment term contract ” Defendant-Appellee. Robinson, counsel.... See Hiscott and Nevertheless, prin 626 A.2d at 1237. this Johnson, Plaintiff-Appellant, Keisha ciple jeopardy is not in here Beau- because sang does not that Raymark contend could event, discharge him. we are Lynne Taylor, Plaintiff, S. regardless chilling satisfied that ef a non-refundability provision

fect of in a retainer, general the client’s to ter right Virginia University, Union attorney minate an must accommodate Defendant-Appellee. attorney’s right to retain the non-refunda ble retainer. 97-1667, Nos. 97-1669. Finally, recognize that Raymark we ar- Appeals, United States Court “a

gues there exists substantial factu- Fourth Circuit. al issue as to whether to what extent Raymark’s right discharge counsel was Argued: June argument chilled.” But this does not re- Sept. Decided: quire we reverse the district court.

First, course, as is obvious as the found, Raymark court

district did not hesi- Second, Beausang. tate terminate argument too proves much it al- ways could paying be contended that after general nonrefundable a client retainer would be discharge reluctant an attor-

ney and thereby surrender the benefit it by payment of the

obtained retainer.

III. CONCLUSION In summary, carefully we have reviewed arguments Raymark all which for- put has ward, obligations mindful of the of attor-

neys to making their clients. After review, we reason find no to disturb the

conclusions of district court. Conse-

quently, the order December bewill affirmed. Roberts, Hunt Thomas

ARGUED: Associates, P.C., H. Roberts & Thomas Richmond, Virginia, Appellants. Hen- III, Marsh, Marsh, Hill, & ry L. Tucker Richmond, Virginia, Appellee. ON Dunnaville, Jr., M. Clarence BRIEF: III, Hill, Walker, Tucker & R. Ephfrom Richmond, Marsh, Appellee. Virginia, WILKINSON, Judge, and Chief Before MURNAGHAN, ERVIN,* WIDENER, LUTTIG, NIEMEYER, HAMILTON, WILLIAMS, MICHAEL, MOTZ, TRAXLER, KING, Judges. Circuit Judge by published opinion. Affirmed opinion, in which HAMILTON wrote the Judges Judge WILKINSON LUTTIG, WIDENER, NIEMEYER, joined. and TRAXLER WILLIAMS a dissenting MURNAGHAN wrote Judge MICHAEL, Judges in which opinion, joined. Judge MOTZ and KING MOTZ separate dissenting opinion. wrote also participate Judge did not WILKINS this case.

OPINION

HAMILTON, Judge: Circuit appeal involves vari This consolidated discrimination gender ous claims patrol two former female offi brought campus department police with the cers (VUU). See Virginia University Union 2000e-2(a)(1). officers, § The U.S.C. Taylor (Taylor) and Keisha Lynne Johnson (Johnson) Plaintiffs), (collectively the each delayed receiving was alleged she: firearm; promoted; was not was police academy not selected to attend the operated by Virginia Commonwealth (the Academy); and University is a woman.1 discharged, was because she * alleges Specifically, was Judge argument oral in this case Johnson Ervin heard prior constructively discharged. but died to the the decision time filed. alleged alone a sexual harassment Until supervision overall of the Department assigned claim. H. Walter Miller, VUU’s Vice President for Universi- Upon motion pretrial VUU’s for sum- ty (Department Supervisor Services Mil- mary district judgment, court dis- ler). thereafter, approximately year For Johnson’s harassment claim missed sexual overall supervision of the Department was failure to for exhaust administrative assigned Simmons, Dallas S. VUU’s remaining proceed- remedies. The claims (Department President Supervisor Sim- evidence, to trial. At of all ed the close mons). In August supervi- overall granted the district court VUU’s motion sion of Department Anthony shifted to judgment as a matter of law with re- E. Manning, Vice VUU’s President spect Taylor’s to all of claims. Johnson’s University (Department Relations Supervi- remaining jury. claims went sor Manning). supervision Overall fully returned a verdict favor of Department included making significant VUU, and the district court entered judg- personnel such firing, decisions as hiring, appeal thereon. ment This followed. both promoting, with formal infor- panel A divided this court affirmed input Department’s mal from the judgments in favor VUU re- However, Police. the decision to recom- claims spect alleging Plaintiffs’ dis- promotion mend an individual rank to a firearms, criminatory delay receiving corporal above panel was made reversed judgments but favor of individuals from both inside and outside VUU to the Plaintiffs’ failure panel VUU. This consisted of individuals promote, sent failure to be to the Police Virginia Commonwealth Univer- Academy, discharge claims and re- sity’s police department, City of Rich- manded for trial on those claims with in- police mond’s department, faculty VUU structions to allow the admission of certain members, and certain senior in the officers previously excluded evidence. The divided Department. Department’s While panel also instructed the district court to Chief of Police was not a member of this reinstate Johnson’s sexual harassment panel, he would receive and forward the Upon suggestion, claim. VUU’s we vacat- panel’s recommendation to Depart- panel ed and reheard decision the case Supervisor. ment banc. en judgments We now affirm the At appeal, all times relevant to this by entered court in district favor of Wells) (Chief Eugene as Wells served in respects all affirm VUU and its dismiss- Department’s Chief of In Police. of al Johnson’s sexual harassment claim. position, responsible this Wells was daily operation for the and administration

I. Department, including the individ- (the campus department police Department VUU’s ual assignment personnel of Furthermore, of Department) approximately consists and scheduling. previ- as twenty pólice ously mentioned, officers. After a ninety-day input Chief Wells had probationary period, respect hires with significant personnel new entered the to deci- sions, patrol of Department although at the rank officer. the ultimate decision subsequently pro- making Patrol officers could be authority Depart- rested with the corporal, However, sergeant, Supervisor. moted to the rank of ment Chief Wells promotion lieutenant. For to rank was authorized select who among to than higher corporal, Department’s oral and both written officers could attend the examinations are required. Academy.2 training pro- According VUU did Academy. poli- 2. not have a formal the Police to VUU However, gram cy, for its officers. VUU sent to the had the individuals were Police Acade- (2) (1) opportunity year my seniority; employment to send two officers each based on: Maryland preparation in in per- Fort Meade appeal, to this VUU’s Of relevance Opera- in with deployment for connection following of a required the manual sonnel Approximately two tion Desert Storm. promoted to in to be patrol officer order graduated military after from (1) days Taylor a minimum of six corporal: the rank of school, (2) giving conflict officer; police rise no patrol months a VUU as ended, Operation Desert Storm thus elimi- past offense in the arrests a criminal for necessity nating Taylor’s expected twenty-four guilty months unless found not deployment. (3) law; satisfactory ratings in a court of patrol officer’s in all areas on the or above longer duty on active sta- Apparently no evaluation; and performance most recent Army, Taylor tus in the United States as good service conduct evidenced with applied position patrol officer at previ- no action within the disciplinary Department, in De- August and manual personnel six

ous months. VUU’s hired Supervisor Taylor Miller partment pro- in order to be required following patrol upon rec- as a officer Chief Wells’ (1) a rank of lieutenant: moted to the Taylor her manda- ommendation. served year police one as VUU minimum of period tory ninety-day probationary with year sergeant at least one as officer with Department April incident. without (2) no ar- supervisory experience; or of Taylor’s Wells rated communication past in a criminal offense rests for “marginal” perfor- as a written skills guilty found not twenty-four months unless encouraged evaluation and her to mance law; satisfactory ratings in a court of improve Taylor’s area. rated Wells in all on the recent areas, initiative, or above areas most including in all skills other evaluation; performance service with dependability, leadership and as satisfacto- disciplin- good conduct as evidenced no ry.4 previous ary within the twelve action Despite Taylor “marginal” rat- giving

months; (5) of a letter of inter- submission ing to her communication Department’s promotion est for skills, allowed on a Wells serve Police; passage qualify- Chief of Supervisor regular Acting basis as Shift oral ing and written examinations. position, starting August In this supervised all on activities the as- Taylor. A. shift, Depart- signed informed officers degree policies procedures they ap- ment as holds bachelor arts shift, University. compliance journalism plied Norfolk State ensured from on receiving degree, Department policies procedures, After she served assigned details. After duty active status the United States officers work serving Acting Supervisor Army unspecified amount of time Shift occasions, Upon returning Taylor unsuccessfully number of Germany.3 Germa- ny, Taylor military police sought promotion to rank of corporal.5 attended school Taylor "getting ninety days; problems job with with VUU for more than done.” interest; addition, (J.A. 213). experience; desire to attend Department Supervi- In Academy; evalua- Police written Taylor Miller at sor testified trial that exhibit- Academy tions. Attendance at the Police en- (J.A. 198). ed a "lackadaisical attitude.” professional and had hanced an officer’s skills positive impact promotional opportuni- 5.Taylor at that she admitted trial did corporal. ties above the rank of promoted any to want to be rank above cor- Indeed, poral. Department Supervisor Man- brief, Taylor In of her describes the amount ning Tay- testified without contradiction tour, spent Germany time as one which she any "d[id]n't lor informed him that she want commonly years. one two known to last to responsibility,” employ- her respect with to trial, supervisor Taylor's 4. At dur- immediate 246). at ment VUU. (J.^V. ing Yancey Henry Lieutenant (Lieutenant Yancey), had testified that he VUU, Taylor’s According request to were several incidents “[t]here where stu- promotion was denied because of the mar- say that dents would there were male offi- May ginal rating she had received in engaged cers who were in sexual relation- skills, with her to communication ships with female students and bragging qualified and because was less than she it all campus,” about over and VUU offi- pro- patrol male officer selected for (J.A. 153). nothing. cials did According Taylor, motion. to most of appeal One the issues in this stems Acting male officers served as Shift who from the fact that was Taylor never select- Supervisor promoted rank to the of trial, ed to attend the Academy. At corporal. The record does not contain Taylor testified that Wells assured specific regarding qualifica- her that she would be sent to the Police promoted tions of the male officer who was Nevertheless, Academy. Taylor claims instead of Taylor. was not sent Police Acade- two Approximately Taylor months after my during her month twenty-six tenure promotion corpo- was denied the rank of Department with the gen- ral, Yancey October Lieutenant claim, support der. In Taylor put of her responded complaint by to a a resident forth following testimony by Lieuten- assistant that Omega females were Quinton (Quinton ant Terry Terry or Lieu- fraternity room of Storer inHall violation Terry) of Department: tenant “I asked policy. Upon VUU the en- arriving at day [Chief Wells] one he going to send room, Yancey trance to the Lieutenant Ms. Johnson the Police with party. discovered the existence of a coed me because I I getting ready knew was A Omega fraternity member of the then go Academy. stated He to me he informed Yancey Lieutenant that one of going was never send female to the the Department’s female officers was (J.A. 70). Academy.” Furthermore, Cor- guest. attendance as a The officer was poral Harrell testified that Chief Wells had Taylor, off-duty. who was She attend- had bitch,” Taylor “stupid once referred to aas ed party for “a little ... over him if sleeping asked he was (J.A. 152). hour.”6 Her was a attendance (J.A. 82). Johnson. policy regarding direct violation VUU upon fraternization with students. Based B. Johnson. Yancey’s Lieutenant incident report Wells, an investigation by Chief in Novem- a college degree. Johnson does not hold ber Chief Wells recommended De- however, serve years, She did two in the partment Supervisor Manning that States to her Army prior employ- United 7, 1994, be discharged. On November ment VUU. held the rank of discharged rea- the stated sergeant separated at the time she son being her violation of anti- VUU’s In Army. July Department Su- policy. fraternization pervisor pa- Simmons hired Johnson as a discriminatory support upon dis- trol officer Chief Wells’ recommenda- claim, charge testimony mandatory ninety- offered the tion. served She Corporal Tommy (Corporal period day probationary Harrell without incident. Harrell) Department Taylor, some regularly Like Johnson also served disciplined Acting male for hav- Supervisor. officers were as Shift Johnson be- (J.A. ing “contact” in gan doing April with female students. so 1994. Chief Wells 85). Corporal satisfactory Harrell did not describe rated Johnson as above in type Taylor what was all on categories April contact involved. of the listed her testimony evaluation, also upon relied her own that performance only one Yancey report drinking. Taylor drinking any 6. Lieutenant filed an incident been denies stating party party. that attended at had alcohol however, at that of the male officers fourteen month some during Johnson’s prepared years long as three Department. VUU had waited tenure with to the Police before selected attend being sent a letter to May In Johnson longer was much than Academy, which apply desire expressing her to Chief Wells ten- respective either or Johnson’s rank of lieutenant. to the promotion Department. ures with the Johnson, then to Chief Wells According her, why you claims, “I can’t be don’t know told of her support Also in Johnson (J.A. here.” lieutenant around the next her during that at times testified at trial 136). end, achieve that Johnson took To Department, Chief Wells: tenure with the and oral requisite written exami- both the her in his with the door talked to office The examinations conduct- nations. shut; if promoted her she would told be consisting of Lieutenant panel a ed she thing”; “did told her right police Yancey Department, officer uniform; in her good looked University’s Virginia Commonwealth from touched on her arm or when her shoulder police department, and a officer police (J.A. 107). spoke he to her. police depart- City of Richmond’s from the . Equal Employment Opportunity C August In after examina- ment. complete, compiled VUU process Commission. tion ranking. a final panel’s results in gen- filed charges alleging Plaintiffs Quinton Terry points higher three finished against with the der discrimination VUU promoted than and was to the Johnson Equal Opportunity Commis- Employment lieutenant. rank of (EEOC). present sion At issue in the September In fourteen months af- at- appeal the affidavit that is Johnson officer, patrol hired as a ter she was VUU attested charge tached to her which she ex- sent letter to Chief Wells Johnson following: to the enjoyed had pressing how much she work- times called me [Chief Wells] On several him “fur- ing resigning under but was to thing could wait [sic] home on that develop career in [her] ther areas day. until next He touched me has long [her] more line term [were] talk- on arm on several times while (J.A. 370). Department goals.” Supervi- me ing to me. He stated he hire [sic] upon Manning, receipt of Johnson’s sor my me. called because he liked He has resignation, attempted letter of unsuccess- Military (SgLDixon) Reserve Unit fully persuade to remain with Johnson supervisor my that he was discuss with Department. Department Supervisor has process promoting. He encouraged then allowed and Manning office at a called me his for hours adjust her termination Johnson date so time, job away [sic] [sic] to talked days could an extra four that she collect me. pay. (J.A. 353). argued and ar- Johnson below appeal fact Also at issue this gues appeal these statements Johnson, Taylor, was se- like never her are sufficient conclude that affidavit Academy. lected to attend the Police claim she advanced sexual harassment support of claim that failure to be though before even her actual the EEOC selected to attend the Police charge explicitly alleged never a sex- form discriminatory animus a result of held 1, 1996, April ual claim. On harassment women, Taylor, like Chief Wells toward “right both and Johnson received a upon exchange relies between to sue” letter from EEOC. Terry during Chief Wells Lieutenant D. The District Court. he was which Chief Wells stated “never 28, 1996, respectively, 27 and Academy.” On June going send female (J.A. 70). ac- present filed the Taylor testify, Taylor The and Johnson jury heard VUU, against tenure, which later con- during tions were who worked Wells’ purposes previ- for As of trial. you solidated stuck with only are that. You can stated, ously district court dismissed what presented you. deal with to Johnson’s sexual harassment claim fail- And then on the I’ll question, second her ure to exhaust administrative remedies answer it two ways. You want to judgment VUU’s motion granted many know how campus women on the of to as a matter law with all of went to Police If Academy. your pres- claims. in the Taylor’s Of relevance from indication that is during Wells’ ten- appeal, ent at the trial on re- Johnson’s ure, again, there is no of claims, maining the district court refused women, totality any, if who went dur- evidence, objec- to admit over Johnson’s ing you again, Wells’ tenure. And are tion, that Chief Wells once that he stated stuck with that. only The evidence that a certain unidentified had bet woman relating I recall to specific testimo- pussy” and “good called a female VUU ny going about women to the Police named at employee Angela Sheridan home Miller, was Mr. testified who occasions, her, touched and told several specifically about a Jean and a Robinson that he had looked down blouse Thomas, pro- Corrinne who were both (J.A. standing when her. once behind to Sergeant moted and both attended 187). Academy. Police This would have present appeal Also relevance in the Wells, to prior been the time of Mr. following jury is the note sent Chief Wells. court during district its deliberations: you. So the best I can If that’s do for hired, many promot- How women were there, it is not it is not there and we ed, at Campus worked VUU Police dur- speculate. can’t All right? you. Thank Also, ing many Well’s tenure? how [sic] (J.A. 335-36). party any objec- No raised Campus women the VUU Police tion to jury these statements. The contin- Academy during went the Police ued ultimately its deliberations and re- time? same turned a in favor of on all verdict VUU (J.A. 343). At a par- all conference with remaining Johnson’s claims. then ties, presence jury, and outside the entry of judgment moved for a matter planned court it the district indicated how trial, law or in alternative for a new jury’s questions. answer While the 50(b), see Fed.R.Civ.P. which the district engaged court in a brief discussion with court denied. district court then en- parties concerning proposed its an- judgment tered in favor of VUU based jury’s questions, party swers no upon jury’s verdict. any objections raised thereto. The district jury court then informed the in accordance Arguments Appeal. E. On proposed with its answers as follows: appeals. timely The Plaintiffs noticed right, All we had a note from the appeal, On contends district asking the following questions: “How erroneously granted court motion VUU’s hired, many women promoted as a with re- judgment matter of law Campus during worked VUU spect discriminatory: to her claims alleging tenure?” Wells’ firearm; delay receiving failure My answer to that is we have to promoted; to be failure selected to be very be careful. mat- These are factual Academy; the Police attend you supposed decipher. ters are She seeks a new trial on all of discharge. counsel, But as I have indicated to her claims. on what I recall in my 230 discriminatory claim failure to evidence, objection, alleging her that Chief over

mit gender. a promote that he bet certain on account of her See once stated Wells Green, pussy” had and 411 “good Douglas Corp. v. unidentified woman McDonnell 1817, employee 792, 802, named a female VUU 93 L.Ed.2d called U.S. S.Ct. 36 several occa- (1973). home on Angela Douglas Sheridan 668 McDonnell contains sions, her, and told her that he touched three-step burden-shifting proof a familiar her once when looked blouse had down Technologies Appli- Evans v. scheme. See (J.A. 187). her. On this standing behind Co., 954, F.3d cations & Serv. 959 80 basis, a trial on new her Johnson seeks Cir.1996). (1). discriminatory: delay in alleging claims framework, three-step the Under (2) firearm; pro- a failure to be receiving plaintiff-employee prove must first a (3) moted; to be to failure selected attend by a prima-facie case of discrimination Academy; and constructive the Police If she preponderance the evidence. also the discharge. contends dis- succeeds, defendant-employer the has an erroneously dismissed her sexu- trict court opportunity present legitimate, a non- claim, therefore, and seeks al harassment discriminatory employ- for its reason to have the claim reinstated. We address so, If employer ment action. does first and Johnson’s Taylor’s contentions unlawful presumption of discrimina- contentions second. by prima tion case created facie drops picture out of the burden

II. employee shifts back show moving party, VUU was As just pretext a for given reason was on its motion for prevail judg entitled discrimination. respect ment as a matter of law with trial, jury if Taylor’s during claims (internal omitted). quotation Id. marks To heard, fully after was “there [was] proving meet a pretext, her burden of evidentiary basis legally no sufficient for prove plaintiff must both the reason Taylor’s to find” in favor. reasonable action em given for adverse 50(a)(1). Fed.R.Civ.P. We review dis false, ployer that discrimination was grant trict court’s VUU’s motion for Mary’s was real reason. See St. Hon judgment respect as a matter of law with Hicks, 502, 515, or Ctr. v. 509 U.S. 113 novo, Taylor’s viewing claims de 2742, (1993); 125 S.Ct. L.Ed.2d 407 light evidence in the most favorable to Cos., Inc., Vaughan 145 v. Metrahealth Inc., Taylor. Transp., See Brown CSX (4th Cir.1998). F.3d 201-02 (4th Cir.1994).

In order prima to establish a A. Failure to Promote Claim. case, Taylor required to demon facie preponderance of strate the evidence 703 of Section Title VII Civil that: of a protected she is member alia, Act inter Rights makes it “an class; (2) posi an employer open had practice employment unlawful em applied; tion which she she hire ployer (1) to fail refuse to or to — position; qualified for the she was individual, discharge any or otherwise to rejected position under circum against any discriminate individual with rise un giving stances to an inference of terms, compensation, his condi Hughes lawful v. Bed discrimination. See tions, or privileges employment, because ” (4th Cir.1995). sole, ... of such individual’s sex.... 2000e-2(a)(1). steps The other two are not reached unless § Taylor claims that U.S.C. proof until satisfies burden successfully met her burden of case. Ev establishing prima See Douglas under McDonnell burden- facie ans, shifting proof her Title 80 F.3d at 959. scheme on VII bottom, Taylor ployer At failed to offer who intends to against discriminate evidence to establish third sufficient individuals or disabled unfounded holds as- , prima of a element case—that she sumptions that persons such good are not fade qualified corporal. of for the rank was employees apt would not be employ to undisputed at trial The evidence was in persons place”). disabled the first promotion for the rank of qualify to to in Taylor Wells was instrumental hiring corporal, possess: the candidate must 1992, August and evaluated just eight her of patrol minimum six months as a VUU in April later Taylor months 1993. While officer; no a' criminal of arrests for evaluation, was not fired at the time of her past twenty-four fense months un applies same hirer-same firer inference law; (3) guilty less found not in a court by analogy. here It credulity strains ratings satisfactory or above all ar believe that Chief Wells falsely would have patrol per eas on most recent Taylor marginal rated category one officer’s evaluation; service with in performance her only eight formance evaluation conduct as no good disciplin evidenced by months after he recommended that she be within six ary previous action months. hired, that he prevent so could her from was Taylor qualified promotion not for being promoted to corporal the rank of corporal the rank because she had re because she was woman. at See id. 215 a rating of in the “marginal” catego ceived ADA (holding in case that employer was ry of communication her skills on most entitled same hirer-same firer inference performance recent Accord evaluation. within month eighteen span). time Fur- ingly, Taylor cannot a prima make out ther, Department Supervisor both Miller case, therefore, rightly did not facie Yancey Lieutenant corroborated Chief judgment survive VUU’s motion for as a Taylor’s per- Wells’ assessment of poor job of law. matter Yancey formance. Lieutenant testified Taylor trial that problems “getting had Taylor urges this court discount (J.A. 213), job done,” and Department Su- marginal rating category pervisor Miller testified exhib- performance communication skills on her (J.A. 198). ited a “lackadaisical attitude.” Wells, evaluation because Chief whom she Significantly, Taylor offered no evidence alleges discriminatory harbored animus to remotely even suggesting that either of women, performed ward the evaluation. any discriminatory these held individuals position Such court’s overlooks this hold animus toward women. Even in the face if: ing that of Chief Wells’ comment that he would employee was fired hired and a woman never send to the Police Acade- person relatively same within a short my, compel these factors the conclusion span ... time this fact a strong creates jury Tay- that a reasonable could not find inference that the rea- employer’s stated performance any- lor’s evaluation to be for acting against employee son than an thing other accurate assessment of short, pretextual.... employers job performance. Because there knowingly within who hire workers legally no sufficient for a evidentiary basis protected group seldom be credible will to find that reasonable targets pretextual for charges firing. qualified corporal, rank of the dis- v. Mary Washington College, Jiminez 57 properly granted trict motion court VUU’s (4th Cir.1995) 369, (quoting F.3d 378 Tay- as a judgment matter of law on Stone, v. 798 Proud F.2d promote lor’s failure claim. Cir.1991)). Tyndall See also National Centers, Inc., Additionally, assuming Education ar even (4th Cir.1994) prima context of (recognizing-in guendo that established a Act, case, the Americans carry with Disabilities did not her ultimate facie §§ offering U.S.C. em- burden sufficient for a “[a]n evidence 12101 — evidence, see id. at reviewed the jury to find that VUU’s reasons reasonable strength receipt “ultimately hinges on the of a which promote her —her failing establishing discrimina- category of com- of rating “marginal” tion.” at 1143. per- on her most recent Id. skills munication quali- her inferior formance evaluation plaintiffs The bonus for able to compared patrol to the male as fications liability applicable invoke standard of the promoted a to be officer selected —were proof in cases is that the mixed-motive At pretext gender- discrimination. this employer it would have reached that the “must analysis, Taylor estab- stage the of any same without discrimi determination qualified the candi- lish better that she natory employer does not the animus allow Evans, 80 position sought.” the date for Rather, altogether. liability to avoid such unquestionably This she has F.3d at 960. proof the remedies available to only limits Indeed, did not offer Taylor not done. plaintiff. id. at 1142. Absent the See the the qualifications of regarding invoke showing necessary threshold to pro- for the patrol male officer selected in liability applicable mixed- standard Thus, sought. she cannot even motion she cases, however, plaintiff motive a must comparison. required make attempt to prevail advantageous the less stan under liability applicable pretext dard of cases. Academy Claim. B. Police id. See at 1143. the district court Taylor next contends According Taylor, to the following judg- motion granting erred VUU’s testimony by Terry Lieutenant is sufficient respect to ment a matter of law with as to trigger the mixed-motive standard of this Academy regard, Police claim. liability to alleging her claim enjoy that to she is entitled believes discriminatory failure to selected to be at advantageous liabili- more standard tend Police “I asked Academy: [Chief ty cases. We applicable mixed-motive day going was he to send Wells] one Ms. on all disagree fronts. Academy Police Johnson to the me plaintiff qualifies A getting ready because I knew I was to go liability advantageous more standard Academy. He stated to me he was applicable in mixed-motive cases if the never a going to send female to Acade plaintiff presents “‘direct evidence (J.A. 70). my.” While Wells’ state Chief placed nega decision makers substantial directly alleged ment discrimi reflects his ” tive criterion.’ illegitimate reliance on women, natory attitude toward 1137, 1142 Phipps, 67 F.3d Fuller v. Chief Wells made statement re Cir.1995) (quoting Price Waterhouse v. sponse Terry’s question to Lieutenant as 277, 109 Hopkins, S.Ct. 490 U.S. joining to whether Johnson would be him (1989) (O’Connor, J., 104 L.Ed.2d 268 con Academy, Police attending the state requires curring)). showing Such “evi directly obviously ment does not “bear on dence of conduct statements both decision,” ie., employment the contested directly discriminatory the alleged reflect not send Wells’ decision to to directly and that con attitude bear Fuller, Academy. 67 F.3d at Police Id. If the employment tested decision.” pre Accordingly, our circuit under plaintiff evidentiary satisfies this thresh cedent, the mixed-motive standard of lia old, persuasion the burden of shifts to the bility is triggered. not “it employer prove would have therefore, the bur Taylor, reached the same determination without bears ” any discriminatory establishing Academy animus.... Id. den Police plaintiff Douglas determination of claim bur whether has under McDonnell proof applicable scheme evidentiary den-shifting satisfied this threshold is Douglas, pretext after it See McDonnell decision for district court has cases. a high degree professional 93 S.Ct. 1817. To estab- showed U.S. moti- case of treat- -prima disparate Additionally, compared Tay- lish a vation. facie case, (1) pretext in a dem- ment must lor: Vernon had Dawson more seniori- (1) (2) onstrate that: she is a member ty higher performance evaluations; (2) class; protected (the qualified she was Ortiz Ralph seniority had more record Academy; attend the she was Police performance does disclose his how Academy; not selected attend the Police compared Taylor); evaluations Lieu- other officers who are not mem- Terry higher performance tenant had eval- bers of protected class were selected uations and a great military deal more attend the similar under experience; Tegre Wilfred had more Hughes, circumstances. See 48 F.3d at seniority, evaluations, higher performance (5) security guard experience; and Troy experience had as a Jones in- firearms minimum, Taylor At a es cannot structor, evaluations, higher performance prima tablish the element of fourth her attended the United States Marine Securi- are case—’that other officers who not facie School, ty great Force a and deal more protected se members of the class were (6) military experience; Harper Mor- Academy lected to attend Police under rison had higher performance evaluations Critically, during similar circumstances. had military experience, and also which Taylor’s Department, tenure at completion included of the United States any Wells never sent VUU officer Further, Army’s military police school. Academy qualifications Police with less Taylor conceded at trial Officers than qualifications Taylor. or similar to Anderson, Alfred Pittman and James both During Taylor’s years employment two seniority of whom are male had more Department, with the there a total of were Taylor, than were also selected to at- Academy six Police slots available for Academy tend the Police during her ten- (two year). VUU officers slots each Ac Department. ure with the cording policy, to VUU these slots were to (1) filled sum, be with officers based on their: Taylor produced legally has not (2) seniority; employment with VUU for sufficient evidence for reasonable to jury a (3) (4) days; more than ninety experience; find that male to officers selected (5) interest; desire to attend the Police Academy attend the Police her ahead of Academy; and written evaluations. Indeed, under similar circumstances. she produced no has such evidence. Further- and un- overwhelming evidence more, Taylor produced no to has Taylor quali- contradicted that was not as proffered legitimate rebut VUU’s nondis- fied as the male officers when these six eriminatory not selecting Taylor reason for criteria are considered as a whole. The Academy considering to attend the Police evidence, — light viewed favor- most factors, totality of the stated all of the able to Taylor, shows that she served more qualified. male officers selected were Department years, approximately two Accordingly, we affirm the district court’s had a military experi- minimal amount of grant judgment for a VUU’s motion during completed military ence she which of law Taylor’s matter on Police and, school, admission, police by her own claim. only promoted was in being interested corporal, position the rank of a which for Discriminatory Discharge. C. Academy training unnecessary. Police Of the six officers selected to attend the also the district contends Academy during Taylor’s time at erred in VUU’s granting court motion Department, unlike all ex- as a law with Taylor, judgment matter of pressed promoted discharge claim. being discriminatory interest to her lieutenant, disagree. the rank of which we sergeant Again, jury to find established her discriminato reasonable Taylor premises prima a on assertion that two and three of discharge claim her elements ry facie Department also fra in the preponderance male officers case a of the evidence. escaped Industries, students but ternized VUU v. See Guthrie Tifco (5th Cir.1991) (statements mo avoid VUU’s discipline. For law, as matter judgment tion for are are time ... “vague remote minimum, must, prima discrimination”). aat demonstrate to establish insufficient disparate case of treatment re Welch, Simpson facie Cf. being disciplined being spect to her Cir.1990) (holding allegations mere without Thus, Taylor must demon discharged. insuf descriptions specific incidents ... by a of the evidence preponderance VII). strate under ficient to state claim Title protected of a she is a member that: prima Taylor’s failure establish facie VII; prohibited under Title class discriminatory case dis is fatal engaged compa in which she conduct charge claim.8 to misconduct em rable seriousness legally Because there is no sufficient class; protected

ployees outside the basis a reasonable evidentiary discipline she suffered more severe claims, Taylor’s find in of her favor compared misconduct as to those em grant judg- we affirm the district court’s protected class. See ployees outside in ment as a matter of law favor of VUU 507, Transp. F.2d Corp., v. CSX 988 Cook Taylor’s all on claims. Cir.1993). (4th 511 Taylor’s Fatal to discriminato III. discharge is her failure to meet ry claim Johnson, According to she is enti prima a the second and third elements of that tled a new trial all of claims only by case. The evidence offered

facie went court because district support in of the and third second excluding in abused its discretion testimony re elements was: own Wells once stated that he bet by peating statements unidentified VUU pus “good certain woman had unidentified students;7 (2) Corporal Harrell’s testi sy” and evidence that Chief Wells called mony that unidentified male officers were Angela employee female VUU named disciplined not “contact” with having for occasions, at Sheridan home on several 85). (J.A. testimony Taylor’s students. her, and told her that he had touched merely repeating hearsay statements down her blouse once when stand looked made students indi VUU unidentified (J.A. 187). ing her. behind We review cating that male officers were unidentified proffered court’s exclusion of evi district relationships in engaged sexual un Per dence for abuse of discretion. See without disci female students identified Co., singer Ry. v. 920 & Western Norfolk Corporal pline by Harrell’s testi VUU (4th Cir.1990). 1185, 1187 F.2d mony that male officers were unidentified Here, we need not decide disciplined having undescribed dis- vague “contact” with students too for a whether the district court its is abused testimony argument 7. We note inadmissible hear- conceded at oral before this is say delay allegedly under Rule of Evidence 802. three-judge panel Federal that the However, objected to its VUU neither admis- receiving con- suffered in her firearm did not appeal sion trial nor contends on that its separate cognizable Title stitute a claim under admission was erroneous. Furthermore, VII. of evi- the record void delay VUU dence that caused the Taylor's contention that the district court receiving a allegedly suffered Ac- in firearm. erroneously granted judg- VUU’s motion grant cordingly, we of VUU’s mo- affirm respect ment as a matter of law with to her judgment tion for as a matter of law alleging discriminatory delay claim in receiv- this claim. ing only deserves brief comment. firearm

235 Kotteakos, excluding 765, identified cretion the evidence influence.” 328 U.S. at 66 S.Ct. 1239. Johnson, arguendo it assuming because did, the abuse constitutes harmless error. that we We note have ex- never before 28, pro § 2111 Title United States Code pressly particular used this test for deter- any appeal “On the hearing vides: or mining whether an error or assumed error case, argument for the ap- writ certiorari the court sake affected pellant’s rights in substantial a civil case. give judgment after an examination shall Rutledge expressed Justice first this test of the record without to errors regard Kotteakos, case, a criminal since defects which do not affect the substantial then, majority of our sister circuits parties.’.’ Supreme rights Id. applied have it the civil context. See has characterized as the Court this statute v. Corp., Williams United States Elevator statute, applies error harmless “which di 1019, (D.C.Cir.1990); 920 F.2d 1022-23 appellate rectly to courts which incor Co., Schrand v. Federal Pac. Elec. 851 porates principle same as that found (6th 152, Cir.1988); 157 Aetna Casu- Rule Civil 61.”9 [Federal] [of Procedure] Gosdin, 1153, v. alty & Sur. Co. 803 F.2d McDonough Power Inc. Equipment, v. (11th Cir.1986); Ponte, 1159 Lataille v. Greenwood, 554, 104 U.S. S.Ct. (1st Cir.1985); 754 F.2d Howard (1984). 845, 78 L.Ed.2d In order to Gonzales, Cir.1981); 658 F.2d conclude the district court’s assumed evi Corp., Cohen v. Franchard dentiary errors did not affect Johnson’s (2d Cir.1973). join We now these cir- rights, substantial and therefore were cuits, we can fathom sound no harmless, “we able only say need be justification using a different test for assurance, fair ‘with all pondering after determining whether a lower court’s error happened stripping without erro appellant’s rights affected an substantial whole, judg neous action from the that the compared the civil context as crimi- to the swayed by was not substantially ment the Indeed, terms, nal context. its own Heater, error[s].’” United States v. 63 § 2111 no makes distinction civil between (4th 311, Cir.1995) cases, F.3d 325 Unit (quoting thereby and criminal that implying 208, Congress intended uniform of Nyman, ed v. 211-12 treatment States 649 F.2d (4th language the statute’s in the civil crim- Cir.1980), quoting which in turn was inal contexts.10 States, 750, Kotteakos v. United U.S. 328 (1946)). 765, 1239, 66 S.Ct. 90 L.Ed. 1557 Applying this test to each of Johnson’s appropriately upon This test focuses that to claims reveals she is not entitled a the “whether error itself had substantial new trial those claims. on 9. Rule 61 Federal of Civil Procedure com- of the statute form treatment harmless error stage every mands district courts "at of the in the and criminal contexts. Owens- civil Cf. proceeding disregard any [to] error or defect Illinois, (In Rapid Corp. v. Inc. Am. re Celo proceeding in the which does not affect the Cir.1997) tex), (4th (hold F.3d 124 630 rights parlies.” Id. substantial of the requirements ing obtaining for that relief on plain appeal in a for error criminal case un recognize We that three circuits have re 52(b), Rule der Federal of Criminal Procedure apply fused the Kotteakos standard in the plain one of is that a an which error affected primarily prov context civil on the basis minimum, rights, appellant's substantial at a ing harmless error in the context criminal as satisfied we exercise must be before would opposed to the civil be context should more our discretion correct an error not raised given differing proof. the difficult burdens of case, a civil below in because the court could Industries, See United States v. Inc. Touche Co., why appellant of conceive "reason an (10th &Ross 1252-53 Cir.1988), a case should in civil bear a lesser burden impliedly overruled on other Dittmer, obtaining a than grounds; McIlroy correction of forfeited error F.2d 732 105 Cir.1984); case....”). appellant Haddad in a Ac v. Lockheed criminal California (9th Cir.1983). Corp., 720 F.2d As cordingly, reject holdings we the and ratio said, statutory language have we of nale of these circuits. implies § Congress intended uni Acting male officers who served as Promote of the

A. Failure to Claim. Supervisor promoted to Shift de alleged that VUU Johnson corporal. of rank corporal rank promotion her nied Additionally, jury At had it evi- of her before gender. and lieutenant because officers, that a number of male some trial, failure to dence Johnson’s VUU attributed than corporal seniority experience more to the rank with promoted be Johnson, Acting Shift regularly served as being quali to her not most lieutenant receiving promotion to positions Supervisor time without for the at the fied candidate they rank of until had been promotions. corporal applied Given Department jury years. a for several proceeded through matter with that this example, Pittman with the merits, no concern For Alfred longer on the “we trial years and one half vagaries prima Department with of the for four ourselves Su- subsequent regularly Acting to a trial served Shift case because facie promoted action, prior being pervisor a the ultimate issue is one Title VII Jiminez, corporal. significantly This is a non.” rank of discrimination vel period time than four- “posture, longer Johnson’s F.3d at 377. this McDon Department. cre presumption teen month tenure Douglas paradigm nell Moreover, fail- prima case Johnson’s by establishing ated facie lieutenant, ease, jury inqui promoted and the factual to be drops from ure panel consisting ry proceeds specificity.” to a new level considered evidence that (internal history with no of dis- quotation marks and citations of three individuals Id. (Lieu- omitted). animus criminatory toward inquiry This factual is whether women Yancey Department, police against tenant intentionally discriminated VUU Virginia the bur officer from Commonwealth Uni- Johnson. See id. Johnson bore police police versity’s department, this issue. See id. persuasion den of burden, prove police City had to officer from the of Richmond’s To meet given than department) the reason VUU ranked Johnson lower both false, promote Quinton Terry, and that the male officer who was failing to Johnson, comparing real See over after promoted discrimination was the reason. Ctr., 515, 113 performances Honor 509 U.S. at their on written and oral Mary’s St. 2742; Finally, at 201-02. examinations. considered Vaughan, S.Ct. Terry previ- evidence that Lieutenant had respect corporal, the rank With to of ously performance higher received evalua- relied at trial on her own testimo- Johnson military tions than Johnson and had more all ny of that the male and that of experience than Johnson. Acting Super- who served as officers Shift promoted corpo- jury of all of were rank considered this evidence visor testimony the of and concluded that not car ral. also relied on Johnson had She persuasion: that Chief com- her of that the Terry Lieutenant Wells ried burden given by failing pro that he never send a woman to mented would reason VUU to her to of lieu Academy response corporal the Police to his mote the rank (Lieutenant query quali not most Terry’s) to whether tenant —that she was him joining position- would the Police for either Johnson be at fied candidate —was false, Academy. upon Corpo- relied that discrimination was the Finally, she Ctr., Mary’s testimony ral Harrell’s that reason. Honor Chief Wells real See St. (J.A. bitch,” “stupid referred to as a 509 U.S. at 113 S.Ct. 2742. Consider evidence, 82), Corporal we are queried ing whether Harrell the above outlined assurance, say pon to fair after slept had With able Johnson. lieutenant, all upon dering happened, the rank of Johnson relied that that the absence evidence, alleged erroneously evi except all of this same for her excluded of jury’s not testimony substantially sway that of all did own dence evidence of eluded into the mix Johnson offered the evidence would not decision. short, “good changed com- have In alleged pussy” Wells’ outcome. we alleged say and the of con- with more than fair evidence his assurance that the ment Angela by not employee jury substantially swayed toward VUU Sheri- was duct Thus, burden of support alleged any possible of her ultimate errors. error dan by to recom- the district proving Chief Wells failed committed court exclud- promotion ing her for to the rank the evidence at issue was most mend gen- of her or lieutenant because harmless.11 corporal evidence, assuming arguendo If der. this Discharge C. Constructive suggests a attitude to- discriminatory

it Wells, part women on the of Chief ward Johnson also that she claims thrown into the mix evidence had been constructively discharged was because already on the jury that was before the matter, As a gender. her threshold John discriminatory animus Chief Wells’ issue required prove son delib VUU “ women, example, Chief toward Wells’ erately working made her ‘in conditions sending comment about never woman to in an tolerable’ effort to induce [her] say with fair Academy, the Police we can quit.” Corp., Martin Cavalier Hotel the outcome have been assurance would (4th Cir.1995) 1353-54 (quoting In are summary, firmly the same. we Press, Inc., The Daily Bristow v. erroneously allegedly convinced the ex- (4th Cir.1985)). order evidence, assuming it was arguendo cluded burden, prove: meet this Johnson had to admissible, simply too to have weak actions of complains VUU’s which she a difference in the decision. jury’s made done; deliberately were work id. at ing conditions intolerable. See

B. Academy Police if only 1354. Deliberateness exists prevent- complained by alleges also that VUU actions of were intended Johnson Academy employer as an attending ed her the Police effort to force trial, a full gender. plaintiff quit. plain of her See id. After Whether a working jury returned a verdict favor of tiffs conditions were intolerable is Academy objective on Johnson’s Police claim. VUU assessed standard Thus, plain considering pre- person after whether a reasonable sides, position compelled both was not tiffs would have felt sented Bristow, ultimately persuaded that should 770 F.2d at 1255. resign. See the con- prevail. compels previously Common sense We have held that “[dissatis feeing that if jury rejected assignments, clusion faction with work criticized, unfairly or un being claim the face of Lieutenant or difficult in testimony pleasant working stated are so Terry’s that Chief Wells conditions compel person never send a to the Police as to a he would woman tolerable reasonable (Lieutenant Ball, Academy in response resign.” to to Carter v. 33 his F.3d (4th Cir.1994). Moreover, Terry’s) query as to Johnson 459 the denial whether promotional be him at Police Acade- is in joining single opportunity would of a erroneously working my, throwing alleged ex- sufficient to create intolerable instruction, complains ing give a mixed-motive she is 11. Johnson also that district to refusing prohibited by from erred in a more the invited error doctrine court to submit any any jury obtaining appeal relief such favorable mixed-motive instruction to the on Jackson, respect F.3d alleging with to her claim discrimina error. See United States 124 (4th 1997) ("The error tory failure to be selected to the Police 617 Cir. invited attend recognizes Academy. that a be The record shows that the district doctrine court cannot very step issued the Johnson to take a in a case and court instructions asked counsel error, it respect proof has tendered with to burden later be convicted her (internal request.”) quo any complied claim. invited with such a on this Because Johnson omitted). committed court in fail tation error district marks Breeding support v. Arthur J. do not an inference that Johnson environment. See Co., resign. F.3d was forced to The bulk Gallagher & Wells, Cir.1999). part her actions on the of Chief If Johnson met burden of home, constructively example, calling Johnson at are showing that she was dis- best, annoying at moderately she burden of and would charged, then bore person resign. showing complained of conduct was not force a reasonable Carter, by discriminatory animus to- See 459. Even when motivated coupled Vitug v. Multistate Tax these are with her failure ward women. See actions (7th Cir.1996). Com’n, Police and her Academy to be sent to the promoted during failure to be her fourteen her attempting prove working In that our Department, month tenure with intolerable, were conditions Johnson relied change. Critically, conclusion does not testimony her own that Chief Wells on such sent to the Acade- failure be arm, her her on the called at home touched my promoted during to be such brief occasions, on numerous talked her in his employment hardly tenure of is unreason- shut, office with the door told her that she Breeding, 164 able. See F.3d at 1160. uniform, good in her looked her told this, Finally, beyond all of cer- Johnson if she promoted that she would be did the tainly cir- part did not VUU under right thing. She also relied the fact jury cumstances which a reasonable could her during fourteen month tenure at resign. find that was forced to Her she VUU, she was selected to attend neither resignation letter belies contention to promoted. the Police nor In contrary. contrast, VUU offered evidence that John- VUU, parted from including son “good pussy” The coupled comment supervision, upon extremely pleas- Wells’ Angela Sheridan evidence add abso- example, ant terms. For in her letter of lutely proof nothing to Johnson’s offer of Wells, resignation addressed to Chief proving to her burden of “enjoyed very stated that she much work- were working conditions so intolerable ” (J.A. 370). ing [his] under direction.... person that a reasonable would have felt jury all this considered Indeed, forced to resign. the record and found in favor of VUU. void evidence that even had knowledge employed by while VUU Considering proof the elements of pussy” or of “good Chief Wells’ comment discharge of a constructive claim and the alleged Angela his conduct directed toward mix jury, of relevant evidence before the Sheridan. say we can with fair assurance that throw ing alleged erroneously summary, evi we hold assuming excluded ar- guendo dence into the mix have changed would not the district court abused its discre- in excluding outcome. Johnson’s evidence at trial tion evidence that Chief Wells fell far short of the evidence needed for once stated that he bet certain unidenti- (J.A. 187), find that working “good reasonable fied pussy,” woman had conditions at in excluding VUU intolerable. Cer evidence that Chief Wells tainly single employee no incident stands out called female VUU named sufficiently Angela record as insufferable in and of Sheridan at home on occa- several sions, her, compel person’s itself a reasonable de touched her that he told indeed, parture; herself Johnson relies on had looked down her blouse once when her, standing cumulative effect of the acts she has behind the errors were at totality But cited. even the these acts best harmless.12 12. district abuse Johnson also contends district court did not its discretion in evidence, excluding excluding court erred in evidence that Chief this because the evidence prostitute Wells year solicited a issue in the case. See one irrelevant disagree. Johnson after VUU. We left The Fed.R.Evid. time, away job[sic]

IV. to talked [sic] me. Next, appeal of we consider Johnson’s (J.A. 353). This passage extremely is the district court’s dismissal of sexual vague. It never raises even the inference harassment claim. The district court dis- that these actions were done in a manner missed Johnson’s sexual harassment claim that had the intent or effect of sexually because she had not exhausted her admin- fact, harassing Johnson. the actions istrative remedies. We review the district about which Johnson complains normally court’s de dismissal novo. See Edwards v. within employer-employee occur rela- Goldsboro, City 243-44 tionship. Employers normally: contact (4th Cir.1999). home; employees at people hire they like; and talk to employees their In order to a Title assert VII periods extended time necessary. when court, plaintiff claim in federal have must Furthermore, it commonplace for an exhausted her administrative remedies individual to touch the arm of someone respect “Only to the claim. those they talking, with whom are example, [admin-- discrimination claims stated emphasize point. Accordingly, even reasonably charge, istrative] those related construing Johnson’s charge EEOC lib- the original complaint, and those devel erally, she did not exhaust her administra- oped by investigation reasonable of the tive remedies with to her sexual complaint original may be maintained in a Therefore, harassment claim. we affirm Evans, subsequent Title VII lawsuit.” See the district court’s dismissal of Johnson’s 80 F.3d at 963. This require exhaustion sexual harassment claim. preserve judicial ment is meant to econo my by barring claims that have not been V. sufficiently investigated following reject we Finally, Johnson’s contention complaint. EEOC McCarthy See v. Madi that the district in response court’s answer 140, 144-45, gan, 503 U.S. 112 S.Ct. the jury’s question during second asked (1992). L.Ed.2d deliberations amounted to reversible error. Johnson, According to the district court’s complaint,

Johnson’s EEOC did jury’s question answer second sufficiently allege a claim of sexual highlighted stressed and evidence about portion harassment. relevant (that inquire which the did not two affidavit Johnson filed with her Department woman from the had been complaint EEOC reads as follows: Academy pri selected attend the Police several times called me [Chief Wells] On tenure) minimized or to Chief Wells’ thing home on that could wait [sic] accurately the facts would have an until day. the next He has touched me posed. question swered the arm on several times while talk- ing to me. He stated he hire me object [sic] Johnson failed to Because my answer, because he liked me. He only has called to the district court’s we re Military (Sgt.Dixon) allegation Reserve Unit to view Johnson’s for plain error Owens-Illinois, my supervisor Inc., discuss with that he was error. See process promoting. He has at 630-31. we can Before exercise our called inme his office for hours at a discretion to correct an error not raised Furthermore, receiving give Johnson’s that we a firearm did not rise to a contention grant should her a new trial on her claim separate cognizable claim under Title VII. alleging discriminatory delay receiving Second, the uncontradicted evidence at trial completely firearm is without merit and war- nothing that VUU had to do with the showed First, only rants brief discussion. Johnson experienced receiving delay during argument conceded oral before the firearm. panel three-judge alleged delay that the in her 240 case, minimum, you. If the that’s the best I can do for civil at a So in a

below Olano, there, v. it there and we States it is not is not United requirements L.Ed.2d All speculate. right? you. Thank S.Ct. can’t 507 U.S. (1993), See Owens- must be satisfied. (J.A. 336). was We conclude this answer Illinois, Inc., 124 at 631. Under F.3d second reasonably responsive jury’s to the Olano, may ex- appellate court “a federal Indeed, court cor- the district question. an error not its discretion correct ercise rectly reported the state of the evidence error; ... if: there is an raised below Fur- jury’s inquiry. to the plain; the affects the error is error thermore, contrary to conten- Johnson’s rights; the court deter- and substantial tion, improperly high- it without did so mines, particulars the examining after evidence unfavorable to Johnson. lighting case, seriously the error affects the an- considering the court’s Finally, district fairness, integrity public reputation the in- just quoted original the swer as and Owens-Illinois, judicial proceedings.” whole, as a structions we are convinced Inc., 124 F.3d at 630-31. before it. Ac- jury understood issues to demon- cordingly, Johnson has failed satisfy Johnson has failed to i.e., that strate the first element of Olano — first element When of Olano. even jury’s to the the district court’s answer evaluating adequacy supplemental Thus, question constituted error. second given response to a jury instructions end, analysis plain our error is and jury during asked deliber question challenge the district court’s Johnson’s ations, “we ask whether the court’s answer jury’s question answer to the second asked reasonably responsive jury’s during deliberations fails. sup whether question original plemental instructions as a whole allowed VI. presented to understand the issue herein, For the reasons set forth we Stevens, to it.” United See States judgments the dis- affirm entered (5th Cir.1994). Here, 167, 170 respects in favor of in all trict court VUU question many jury’s second asked how and affirm its dis-missal of sexu- Johnson’s Department women from the attended the al claim. harassment Wells’ ten during Chief responded ure. The district court AFFIRMED jury as follows: MURNAGHAN, Judge, Circuit dissent- question, And then on the I’ll second ing: ways. answer it two You want to Johnson, Lynne Taylor and both Keisha many campus know how on the women at the formerly employed police officers If Academy. your went to the Police Virginia University (“Virginia Union Un- from that Wells’ during indication ten- “University”), separate ion” or commenced ure, again, there is no evidence against University actions in which women, totality any, if who went dur- they sought relief under Title VII of you tenure. ing again, Wells’ And are Rights Act of CM U.S.C.A. that. only stuck with (“Title VII”). 2000e, seq. § et relating I to any specific recall testimo- allege employment discrimination ny going about women to the Police on sex. claims that based Johnson also Miller, Mr. Academy who testified sexually working while she was harassed specifically about a and a Jean Robinson University. at the The cases were consoli- Thomas, pro- both Corrinne who were dated for trial. Sergeant moted to attended both Academy. the Police This would have The court dismissed sexual Johnson’s Wells, prior summary judgment, been time of Mr. claim on harassment determining allegations Chief Wells. had not original charge supervisor, in her filed as shift on a regular included basis with- been Corporal out the rank of Equal Employment Opportunity higher. with the or (“EEOC”) pro- and were thus Commission undisputed It Academy Police Taylor’s cedurally barred. With attendance, decisive, while positively complaint, granted the court the Universi- impacted promotion opportunities. With 50(a) ty’s motion under Rule of the Feder- mind, that in according to a police former judgment al Rules of Civil Procedure for trial, officer who testified at Chief Wells Finally, as a matter of law. the court stated that “he going was never to send a submitted Johnson’s Title VII claim to the Academy.” female to the Of the six male jury which rendered its for verdict were officers who selected for the Acade- University. my Taylor while employed by was police department, only three of them appeal Both Plaintiffs now the district Taylor; hired before three were se- Because, contrary court’s determination. lected for the Academy within twelve I majority, believe the court erred hire; months their date of and one was in I judgment, its dissent. selected within four months of his date of

hire. While other officers who were senior I. to Taylor Academy, were never sent to the the reason for their non-selection is un- I in agreement am substantial with the clear. At least one such officer testified presentation of the facts as outlined gone he could not have to the Acade- panel decision for the case at bar and refer selected, if my even he did not portions the reader to those of the deci high have a diploma, required school as is Taylor Virginia Union Universi sion. Academy. 97-1667(L), ty, slip No. 1999 WL disputed The record reflects testimony 1999). op. at I February 3-6 Cir. as to Chief of Eugene whether Police pertinent reiterate a points few below. alone Wells could determine who would n Academy. University attend the One Lynne Taylor A. Vice-President testified that the Chief of supervisor had to concur with his Taylor began employment campus aas rendering response before In decision. police University August officer at the however, interrogatory, to an the Universi- 17,1992. During twenty-seven months ty stated “the Chief Police had sole employed by University, that she was which discretion as to individuals were se- Taylor promoted Corporal was not or Academy.” lected attend the Virginia sent to the Police (“Police University two discovered Commonwealth Acade- October officers Taylor during off-duty her hours at a fra- my” “Academy”) training. pro- For ternity party dormitory. in an all-male Corporal, University motion to re- subsequently discharged by She was quired that the officer under consideration satisfactory University fraternizing rate or above in all with male stu- areas dents, performance apparent University recent violation of most evaluation. satisfactory policy. scored below category perfor- “Communications” of her B. Keisha Johnson presum- mance a rating evaluation. Such ably unqualified University indicated that was hired campus promotion, yet Taylor, part July police at least 1993 as a officer. performance, “satisfactory” av- good ap- because of Johnson rated or “above pointed acting supervisor regu- erage” performance shift on a -all areas of her and, Taylor, ap- lar basis. that she and evaluation was often asserts like only persons pointed acting supervisor. Johnson were the two to act shift Also like filed motions for sum- .University selected for was never Taylor, Johnson Concluding in both cases. mary judgment Academy attendance. allega- harassment that sexual Johnson’s Wells, 5,1994, wrote to May Johnson On charge in her had not been included tions in participate that she desired indicating reason- with the and were not filed EEOC that process and she was promotion the allegations contained ably related to the Lieutenant. position the applying for granted complaint, the court the EEOC process, promotion in the participated She judgment mo- University’s summary the examination, and oral a written and took sexual respect with to Johnson’s tion for male candidates competed with several only. claim harassment Quinton a male candi- Terry, position. the addition, University the filed a motion In scores exceeded whose examination date limine, pre- that the court requesting by points, three was se- scores Johnson’s that offering Plaintiffs from clude employ- Terry, who commenced lected. for had been arrested Chief Wells University on the same date at the ment prostitute. of a The court solicitation Johnson, Acad- attending the Police as was motion, determin- University’s the granted promotion process. emy during evidence of that the admission of ing in unfair 5,1994, resigned would result September Johnson Wells’ solicitation On University. prejudice University. from the case, At the end of Plaintiffs’ the Uni- 50(a) versity under Rule moved History Procedural C. judg- Rules of Procedure for Federal Civil sepa- Taylor and commenced respect ment as a matter of law with University, alleg- against rate actions Taylor’s complaint. The court denied the of Title discrimination in violation ing sex motion, University called wit- and the its that she was denied Taylor alleges

VII.1 the conclusion of Defendant’s nesses. At training at the Police opportunity for 50(a) case, Rule University renewed its with less ex- Academy, while male officers claims, which the against Taylor’s motion seniority perience were chosen and/or granted. Taylor appeals now court then Academy; that she was denied attend judgment. of simi- promotional opportunities favor case to The court submitted Johnson’s officers; larly male situated verdict for the which rendered its violating a wrongfully discharged was for to set aside University. Johnson moved University policy against fraternizing or, alternative, jury’s verdict students, whereas male officers violated trial, court a new denied. She which policy impunity. Johnson similar- entered on the appeals judgment from the wrongfully denied ly claims that she jury’s verdict. Acad- opportunity to attend the Police and, result, improperly de- emy II. addition, Plain- promotion. both nied the district court Taylor argues allege disparate tiffs treatment Virginia Union’s Rule by granting of their firearm. erred University in the issuance 50(a) judgment motion for as a matter sexually claims that she was Johnson also a dis- University. against law her claims. We review working at the harassed while VII, applicants employment employ employees or it is an unlawful 1. Under Title any way deprive or tend to de practice employer or which would ment for an "to fail individual, employment opportu prive any individual of discharge refuse to hire or adversely against any nities or affect his status to discriminate indi otherwise or otherwise compensation, employee, because of such individual’s as an vidual with his 2000e-2a(1), terms, conditions, §§ employ privileges ... sex....” U.S.C.A. limit, classify segregate, or his ment” or "to (2). as a matter would have made the same decision grant judgment trict court’s Instead, nondiscriminatory Brown v. CSX reasons. liabil- of law de novo. See Trans Inc., ity attaches Cir. sex “was a motivat- portation, whenever 1994). ing any employment factor for may grant practice, A court Rule district 50(a) legally though if “there is no suffi even other factors also motivated motion practice.” 2000e-2(m); § evidentiary for a reasonable 42 U.S.C.A. basis” cient Fuller, non-moving party. see also 67 F.3d at 1142. Proof jury to find for the 50(a)(1). employer a mat the that it would Judgment Fed.R.Civ.P. as have reached if, only appropriate viewing the same determination in the ter of law absence discriminatory light only in the most favorable to animus limits the rem- the evidence plaintiff.2 the concludes edies available to the non-moving party, the court See Full- “ er, ‘a trier of fact could draw 67 F.3d at 1142. that reasonable ” only one conclusion from the evidence.’ (cid:127)In order to recover under the mixed- Brown, 18 F.3d at plaintiff present the inquiry, motive must “ ‘direct evidence that decisionmakers Evidence Se A. Direct placed negative a substantial reliance on xDiscrimination ” an illegitimate criterion.’ Id. Such a plaintiff present sufficiently If a can di- showing requires “evidence of conduct or discrimination, quali- she rect evidence directly statements that both reflect advantageous more standard of fies for the alleged discriminatory attitude and bear liability applicable in mixed-motive cases. directly employment on the contested deci- 1137, 1141 Phipps, Fuller v. See sion.” Id. (4th Cir.1995). The contours of the mixed- mind, With this standard originally outlined in inquiry motive should receive benefit of the mixed- Hopkins, 490 Price Waterhouse v. U.S. inquiry motive to Virginia 1775, 104 109 S.Ct. L.Ed.2d opportuni- Union’s failure to afford her an (1989). Waterhouse, In Price Su- ty Academy. to attend the Police if preme -plaintiff determined that a Court reportedly Terry told Wells Officer that gender direct evidence that showed going “he was never to send a female to in an played motivating part adverse Academy.” Despite majority’s as- decision, employment became entitled contrary, Wells’ statement sertion persuasion. in the to a shift burden directly Tay- relates to his refusal to send Upon at 109 S.Ct. 1775. such U.S. that Academy. lor to the The command showing, defendant-employer could directly “bear question the evidence liability only by demonstrating then avoid mere- employment the contested decision” by preponderance of the evidence that it link ly requires that there be some direct would have reached the same decision ab- challenged between the decision and any sent Id. at discrimination. attitude; alleged discriminatory it does not S.Ct. 1775. the use of inferential deductions alto- bar gether. imagine Act It is difficult to more Rights

The Civil of 1991 modified unequivocal than an state- Supreme holding Price Wa direct evidence Court’s 2000e-2(m). § that he would never terhouse. 42 U.S.C.A. Un ment Chief Wells Act, Academy. woman to the Police employer longer der the an can no send a promise, liability simply by proving enough, that it Sure consistent his avoid only pursuit 2000e-5(g)(2)(B), directly § if an to the 2. Under 42 U.S.C.A. attributable title; 2000e-2(m) employer that it "would have demonstrates claim under section of this action in the absence of the taken same (ii) damages shall not award or issue factor, motivating impermissible (i) the court— admission, reinstatement, requiring any order relief, declaratory injunctive may grant re- payment, hiring, promotion, or described (ii)), (except provided lief as in clause (A).” subparagraph attorney’s and costs demonstrated to be fees not cooperative decision-making that does Taylor to attend Wells did not select The employer liability. immunize an he woman to Academy; nor did select in Price Waterhouse received a rec- Academy during his tenure board attend the regarding plaintiffs pro- statement' both ommendation Wells’ Chief of Police. attitude, discriminatory partner motion to from a committee alleged reflects his had, turn, oth- received comments from majority acknowledges, and bears as the partners er the firm. 490 U.S. 232- directly on his decision not to send 1775. The fact Academy. Such direct evi- S.Ct. employment was made in concert discriminatory justifies ap- intent decision dence of not analysis. may with others who have shared plication of the mixed-motive discriminatory not matter. motivations did Appel- University argues first 256, 257, See id. at 109 S.Ct. 1775. Simi- lant is not entitled to the mixed-motive may the fact that Chief Wells alone larly, analysis Wells alone could not not have made decisions does Academy attend- regarding make decisions substantiality necessarily negate the of the response interrogatory, ance. In to an University’s illegitimate reliance on an cri- however, University the stated: “Prior to terion, i.e., Where, here, gender. Wells’ March, 1995, had the Chief of Police sole significantly recommendation contributed se- discretion as to which individuals were regarding to the ultimate determination Academy.” lected to attend the In testi- Academy University attendance and the Miller, Vice-president mony, Walter does not disclaim reliance on Wells’ recom- Services, University contradicted the inter- mendation, it that he did inconsequential is rogatory response, insisting that “[t]he not make the decision alone. Chief of Police has never had sole discre- Second, University argues tion as to who attended the Police Acade- the that there my. put non-discriminatory a supervi- legitimate, That was also the is reason before yet they explains why Taylor sor of the of Police and both that had not been namely, the unanimously together.” Academy: concurred selected for Acade- 50(a) motion, few, considering my openings When a Rule and male officers light yet court must view the a more senior than had not been evidence Here, Academy. most favorable selected for the Under non-movant. viewing light by in a favor- modification to Price made evidence most Waterhouse Taylor, not jury reasonably Rights able to a could the Civil Act it does primarily, legitimate conclude if matter that exist that Chief Wells was other reasons solely, responsible selecting sending Taylor Academy. for not officers Academy. employer liability by prov- to attend such a An cannot avoid Since plausible it have ing conclusion is and would not be an would made the same interpretation nondiscriminatory 42 unreasonable of the record decision for reasons. Fuller, evidence, 2000e-2(m); § it also improper was for the district U.S.C.A. see 67 50(a) Therefore, grant University’s court to the Rule at 1142. motion for F.3d judgment questionable explanation as a matter of law. had enough seniority3 not amassed does not assuming veracity Even of the Uni- liability. absolve the institution of versity’s claim, its reliance on the fact that regarding Academy Finally, Wells made decisions Defendant hints that isolated attendance in concert with other comment like the one made officials is Chief Wells misplaced. look than is excluded from under coverage One need no further Waterhouse, employer’s analysis. contrary, Price where the mixed-motive To the pat- deny plaintiff partnership requirement decision to there is no such that a board, policy discriminatory a of such comments made tern below, explain University's sugges- ly 3. As I status to attend the is not senior Taylor simply supported by tion that did not have sufficient- the facts. is mask unlawful discrimination. before a claim See demonstrated must be fact, 802-805, Supreme Court at Douglas, McDonnell U.S. actionable. refrained specifically Price Waterhouse 1817 . 93 S.Ct. would or specific facts deciding which plaintiffs case. 490 not establish

would 1. Failure Promote 251-252, 109 S.Ct. U.S. Taylor alleges pro that she was denied circumstances, Taylor is enti- Under Corporal to the rank of motion mixed-motive application tled to re her sex. insists she was in a Examining the evidence analysis.4 position, quired to assume the duties of the Taylor, a reason- most favorable light pay but without the rank or usual increase. favor. The jury could find able prima To establish a case for failure facie University’s grant of the district court’s promote, plaintiff must show that: 50(a) was, therefore, improp- Rule motion protected group; she a member of a er. position question; she sought rejected qualified; she was B. Circumstantial Evidence to an in giving under circumstances rise Sex Discrimination ference of unlawful discrimination. See Douglas, plaintiff McDonnell Under Cir.1994); (4th Ball, v. Carter unlawful presumption can establish Sullivan, airn McN discrimination evi- through circumstantial Cir.1991). case by demonstrating prima dence facie (2) (1) prima and Elements facie 802, 93 411 U.S. at of discrimination. (4), undisputed. are Elements test a plaintiff If the establishes S.Ct. 1817. however, subject disagreement. are the of case, in rule the court must prima facie element, Virginia to the third With plaintiff the unless the defendant- favor of argues Taylor qualified that was not Union provides legitimate, nondis- employer Corporal rank of be- promotion for to the reason for the adverse em- criminatory cause, department’s according police 802-805, id. at 93 ployment action. See promot- promotion policy, no officer can be 1817; Mary’s see also St. Honor S.Ct. satisfactory if does not rate ed she 502, 507, Hicks, 509 U.S. 113 Center v. per- in her most recent above all areas of (1993). 2742, If the 125 L.Ed.2d 407 S.Ct. Taylor’s perfor- formance evaluation. burden, presump- its employer meets the dissolves, April 1993 indicated mance evaluation and the of discrimination tion unsatisfactory rating received an that she plaintiff back to the show burden shifts “Communications,” so, the area pretext is a the of proffered that the reason test, prima "[t]he since Waterhouse element of 4. Even if we were to find Price facie overwhelming and uncontradicted inquiry inapplicable evidence is to be mixed-motive case, Taylor qualified the male that was not as as I would reach same result instant who were selected. I do not share rigorous set out officers” under the more test regarding Douglas Corp. majority's enthusiasm Supreme Court in McDonnell Green, 792, 1817, completed strength Taylor 36 of the evidence. 411 U.S. 93 S.Ct. v. (1973). University explains, years college at the of Okla- majority two L.Ed.2d 668 As the ultimately Bachelor of prima disparate homa and received a case of to establish facie degree journalism from Norfolk State Douglas Arts under the McDonnell treatment scheme, duty in University. She then went on active Taylor that she must demonstrate and, class; (2) Germany, military after tour protected is member of a military police completed Army Academy; the U.S. qualified to attend the Police at Fort Meade. The record evidence the Police school she was not selected to attend least, was, qualified that as Academy; who are not indicates other officers counterparts. Taylor’s cre- Given protected were as her male dentials, members class selected majority's suggestion that under similar to attend the Police Bedsole, qualification Taylor's lack of is Hughes evidence of v. circumstances. See (4th Cir.1995). con- "overwhelming uncontradicted” is majority The fusing, satisfy at best. argues that cannot the fourth decision, asserts, eligible promotion strongly for it University sugges- she was not See, Corporal. promotion discriminatory e.g., for tive of intent. consideration Chrysler Corp., Carter v. 173 F.Sd hand, argues other Taylor, on the (8th Cir.1999) (noting “gender-based required perform the fact that she insults, ‘bitch,’ including may give the term responsibilities many of the functions rise to an inference of discrimination based supervise and to male officers Corporal sex”); v. Board Commis- Walsdorf arguably qualified” “more than who were sioners the East Levee Dis- fact, Jefferson was, quali- her evidences that she (5th Cir.1988) trict, promotion. Taylor suggests fied (granting Title relief to em- VII female gave her an “unsatisfacto- that Chief Wells ployee upon based evidence which included ry” rating “because of his animus towards by supervisor statement that “ain’t no evidence, particularly The when women.” gonna get job”). Keeping bitch this improperly considering excluded evi- mind that prima the test to establish a derogatory comments dence of Wells’ onerous, ease is not intended to be prior about women and harassment of a facie Dep’t Community see Texas (see below), employee sug- female tends to Affairs Burdine, 248, 253, 450 U.S. 101 S.Ct. may had a gest that Chief Wells have (1981), pre- 67 L.Ed.2d 207 the facts as giving neg- her a discriminatory motive by Taylor sufficiently sented demonstrate Moreover, ative evaluation. the continu- promotion that she was denied under cir- acting as appointment ous shift giving cumstances rise to an inference of supervisor suggests that Chief Wells was unlawful discrimination. performance, Taylor’s satisfied with not- withstanding his evaluation to the con- majority maintains Indeed, trary. most male officers who played hiring Taylor, Chief Wells a role in consistently appointed acting were shift discriminatorily he could not have acted supervisor promoted Corporal. considering promotion. when her for Un- Viewing light the evidence in the most majority, der the cases cited when Taylor, favorable to a reasonable plaintiff the is hired and fired the same might Taylor that qualified conclude employ- individual and the termination of despite “unsatisfactory” rating given her relatively ment occurs within a short time responsibility assigned increased span following hiring, strong “a infer- her. ence that exists discrimination was not a satisfy

To fourth determining element of the factor for adverse action test, prima Stone, Taylor employer.” must show that taken Proud v. facie (4th Cir.1991) rejected promotion she was for under cir- 945 F.2d 797 (age dis- case); that raise an cumstances inference of un- crimination see also v. Tech- Evans Co., lawful sex discrimination. that nologies Applications Toward & Serv.

end, (4th Cir.1996) Taylor that argues she was denied (extending “same opportunities training for by Chief Wells’ actor gender inference” to Title VII dis- crimination). unwillingness to select a female for the majority The insists that the Academy,5 Police which any possi- limited “same actor applies by analogy inference” promotion addition, opportunities. promote ble to the failure to at issue here. Corporal Tommy First, Harrell testified that notwithstanding sugges- this Court’s stupid cases, called Wells “a bitch” tions earlier I am not convinced inference,” him if sleeping asked he was that the “same actor which is Taylor. prove While the evidence does not typically applied the termination con- text, discriminatory respect powerful conduct with to the equally applied is when to a above, proclaimed 5. Academy. As stated Wells to anoth- officer to the er officer that he would never send a female to a It further that the number tion. maintains of discrimination with charge Academy positions But is promote employee. an of available not to decision Evans, panel Many (noting, year. limited two officers each at 959 see than decision, person seniority accused male officers with more that because the person Taylor, University explains, also were was also the who of discrimination infer- an to attend the Acade- plaintiff, ‘powerful opportunity “there is a denied hired required her was while other promote my, that the failure to officers were ence’ animus”). period a by discriminatory years. wait three The record not motivated otherwise, hiring suggests During an an indi- however. thought employer and, employment police in a for discrim- de- protected Taylor’s class vidual reasons, person (August through No- inatory keeping partment 1994), station, i.e., the em- six were hindering vember male officers entry-level , Academy thus, attend advancing to the ranks selected to ployee — posi- paying contradicting University’s a declaration management higher into tion, two nearly only per year incredulous as officers were select- is not of the six urges. require Only not ed for attendance. three majority It does Taylor; such hired imagination to discern officers were before three stretch Academy the fact that selected for within possibility. Consequently, hire; one necessarily months of their date of hired not twelve Wells does selected four months that he did act with discrimina- officer was within mean not date. As officers senior evaluating considering or in his hire to the tion Acade- Taylor who were sent to the never promotion. the reason for their non-selection my, Second, existence of assuming even officers At least of these unclear. one that discrimination “strong inference” gone that he could not have testified Wells, Taylor “still has not motivate did if did Academy even because he selected countervailing opportunity present diploma, which the high not have school Proud, F.2d at pretext.” evidence e requires participation. Th is rebutted when inference compelling plaintiff presents sufficiently facts, fact could these a trier of On id. For of discrimination. See reasonably Virginia conclude that Union’s apply example, the inference does unlawful pretext is a explanation mere plaintiff presents evidence of overt when was, fact, discrimination derogatory in the form of discrimination pro- training opportunities denied about Model v. comments women. See was, It there- her sex. motion 1247, Inc., 1253 Marketing, 116 F.3d FCI fore, the district court inappropriate for (8th Cir.1997) apply inference (declining to judg- motion for grant University’s presented of overt plaintiff where a matter of ment as law. derogatory com form of discrimination com age). about Evidence of such ments Discriminatory Measures Disciplinary by refusal to outright ments Wells and his weaken the a woman send 1994, Taylor In was discovered October presumption nondiscrimination. fraternity on-campus in attendance at an other The Universi- Taylor party by that she was two officers. Since demonstrated Taylor 1994 for giv- discharged November promotion ty circumstances denied under policy violating Virginia dis- Union’s allegedly to an of unlawful ing rise inference cam- crimination, between provide prohibits fraternization Virginia must Union Taylor nondiscriminatory pus police reason for officers and students. legitimate, discharged wrongfully that she was By way explanation, argues action. its disparate application of upon a Taylor was indeed based University submits that by policy. her evalua- unqualified, as evidenced

248

To a prima establish case of sex decision that should not be resolved aon facie discrimination in judgment the enforcement of em motion for as a matter of law. measures, ployee disciplinary Plaintiff Viewing light the evidence in a most (1) must show that is a member of the Taylor, favorable alleged violation of (2) VII; protected class pro Title was, policy the non-fraternization at mini- hibited conduct in engaged which she was mum, comparable in seriousness to mis- comparable in seriousness to misconduct of Yet, conduct male officers. the disci- class; employees protected outside the and plinary against action enforced her was disciplinary measures enforced facts, more severe. Taylor’s On these against her were than more severe those 50(a) claim should have survived a Rule against employees. enforced those other motion. The district court erred in decid- See Cook v. Transportation Corp., CSX ing otherwise. 507, Cir.1993); 988 F.2d Moore v. Charlotte, 1100, 1105-1106 City 754 F.2d III. (4th Cir.), denied, 1021, cert. U.S. argues the district court (1985). S.Ct. 87 L.Ed.2d 623 in refusing erred to admit certain evi- obviously test, prong satisfies but dence. judge The trial excluded evidence prongs dispute. are in of Wells’ arrest for prosti- solicitation of a Taylor maintains that male officers fra- tute on ground that it unduly would be students, ternized with female sometimes prejudicial chambers, to Defendant. relations, even engaging in sexual but were judge also declined to admit evidence disciplined for their Tay- misconduct. alleged Wells’ harassment of another lor’s contention employee. trial, that male female engaged Finally, officers during the judge egregious more sustained the policy University’s objec- violations of the questions tion to question supported from by Corporal Har- Johnson’s counsel regarding demeaning testimony rell’s statements Chief male officers had con- allegedly Wells made regarding tact with other fe- female students and were not male employees.6 We review the trial disciplined. Contrary majority’s as- court’s decision to exclude evidence for sertions, the testimonies of both abuse of discretion. Persinger See v. Nor- and Harrell sufficiently certain in Co., Ry. & Western 920 F.2d their content that a reasonable could folk (4th Cir.1990). Where an evidentiary find that prima established a facie ruling affects the substantial rights of the case. testimony Harrell’s was in direct parties, appellate may intervention be nec- response query to a Taylor’s counsel essary. See Mullen v. Princess Anne Vol- regarding male officers’ fraternization with Co., Inc., unteer Fire female students. Harrell testified unmis- (4th Cir.1988). takably that such contact between male had, fact, officers and female students I find no error in judge’s the trial deci- occurred and that the male officers were sion to exclude evidence of Wells’ arrest I, not disciplined. perhaps, cannot con- prostitute. soliciting Given the fact clude from testimony Harrell’s that these that the year arrest occurred a after John- engaged officers sexual relations with resignation, son’s its suspect. relevance is students, but I do find in his testimony not, the Since arrest does in any way, indisputable support for Taylor’s conten- make it likely more or less that Wells was tion that male engaged officers in miscon- influenced discriminatory motivations duct for which punishment. there was no workplace, the its appropri- exclusion was testimony How that weighed is jury is a ate. suggests

6. The evidence that stating Chief Wells often that a good certain woman "ha[d] terms, referred to derogatory women in pussy.” once However, speech may light on judge’s failure to admit that shed the motives the derogatory com- regarding Wells’ of a evidence contested decision. Such evidence about women is erroneous. or- may only ments inway be the which discrimina- ” discrimi- employment der to demonstrate tory attitudes Id. at are revealed.... sex, of must nation the basis Johnson Here, in question 1134. since the evidence that illegitimate gender consider- show is to a key central element of Johnson’s motivating ations were a factor the em- case, only can proba- we conclude that the of degrad- Wells’ use ployment decision. any outweighs tive value of evidence in reference to women is ing language unfair danger prejudice. of determining whether sex relevant ster- Similarly, sexually evidence Wells eotyping supported decision. See id. another employee7 harassed female is also of (determining racially at 1133 that “use relevant to determination of discrimina- decision-maker language offensive tory Contrary University’s intent. to the racial is relevant as to whether animus was assertions, it matter does not that sexual decision, the [employment] and was behind was harassment issue before consider”). for the proper jury evidence Evidence prior court. of sexual harass- mind, of His statements reveal his state ment, subject although not the of a distinct they specific if do not relate to the even claim, may background constitute relevant issue, employment decision are ad- proceeding in a dis- evidence which sex 1134; missible on that basis. id. at see See Evans, crimination is at issue. See 404(b) (noting also Fed.R.Evid. that evi- untimely F.3d (noting at 963 while prior of would dence acts which otherwise “allegations filed sexual [of harassment] may be be inadmissible introduced show of dis- separate charges cannot stand motive, intent, knowledge). may employer] [the crimination which University argues that the evidence liable, they might be be as evi- admissible- Federal Rule properly excluded since [plaintiffs] prop- support dence at trial to of 403 allows the district court to Evidence claim”). erly asserted sex discrimination probative exclude “if its value is it the trial Consequently, improper by the of substantially outweighed danger evidence. judge outright to exclude such prejudice.” 403. I unfair Fed.R.Evid. dis- I of persuaded am exclusion prove agree. attempts prior derogatory Wells’ statements and intent, discriminatory proba- Wells’ so employee of female “‘af- harassment revealing tive value of statements Wells’ par- rights substantial fected] stereotypical significantly view women ” Mullen, F.2d at 1135. Admis- ties.’ outweighs prejudice against risk of may yielded sion have of the evidence Mullen, University. See at 1133 result, before had different since (“Where a plaintiff prove seeks to discrimi- corroborating it limited evidence from very intent, probative natory value state- it could Wells’ motivation gauge which attitudes revealing ments racial employment certain decisions making great. This is be- decision-maker so working that led to John- conditions difficulty proving of the inherent cause I, therefore, say mind.”). Indeed, departure. cannot son’s the Fourth Cir- state Reversal of that the error was harmless. correctly cuit has that “Rule 403 noted evidentiary court’s decision is simply per no barrier district erects se customary appropriate, and a new trial is warranted.8 introduction of mannerisms Johnson’s contention Wells fre- I need not address 7. The evidence indicates that had quently home, employee at called a former female to certain that the district court's answers her, error, touched and told her that he had jury questions constituted reversible standing looked down her blouse once when already suggested re- that we I have since strikingly behind her —conduct similar to trial. the case for a new mand charged by Johnson. 250 (8th Co., 225,

IV. 83 KAS Snacktime F.3d 229 Cir.1996) (considering Charge both EEOC that she raised Finally, Johnson asserts supporting affidavit to determine sexual harassment in her issue of racial whether harassment claim sufficient Discrimination, Charge of EEOC so stated); ly Cheek v. Western Southern of her claim for district court’s dismissal (7th Co., Ins. 31 F.3d 502 Cir. Life failure to exhaust administrative remedies 1994) that in (determining assessing scope was erroneous. A review of the record Charge, may of EEOC court consider reveals that Johnson did not mention her affidavit); in statements sworn Clark v. in claim of harassment her initial sexual Foods, Inc., 18 F.3d 1280 charge, administrative but she did make Kraft Cir.1994) in (considering affidavit deter in following statement her affidavit mining reasonably whether EEOC could support charge: filed in of her expected investigate disparate be treat [Chief On several times called me Wells] claim). ment thing at home on that could until wait day. the next He has on touched me Construing Charge Johnson’s EEOC talking the arm on several while times liberality,” and affidavit “with utmost Al- me. He he me [sic] stated hire varado v. Montgom- Board Trustees he liked me.... He has me in called ery Community College, time, his for hours at away office from (4th Cir.1988), we believe that Johnson job to talked[sic] to me. claim alleges conduct sufficient to state The court district found that “the affidavit for sexual harassment. The EEOC de- accompanying complaint EEOC sexual fines harassment as “[u]nwelcome put sufficient to or EEOC Defendant advances, requests sexual sexual fa- regarding notice Ms. Johnson’s sexual vors, physical and other verbal or conduct harassment claims. Her sexual harass- of a sexual ... nature ... such when Complaint ment allegations her are not purpose conduct has the or effect unrea- reasonably allegations related in the sonably interfering an individual’s Complaint.” disagree. EEOC I performance work an creating intimi- allegations contained hostile, admin dating, working or offensive envi- charge 1604.11(a) istrative (1998). discrimination dictate § ronment.” 29 C.F.R. scope any judicial subsequent com When liberally, allegations construed Evans, plaint. F.3d at See 962-963. her, told Wells Johnson that he liked “Only those discrimination her, claims stated touched summoned her his into office the initial charge, reasonably those time, related for hours at a and called her at home complaint, original those devel may be considered be of a na- sexual oped by investigation reasonable of the ture. Title require lay VII does not original complaint may be maintained in complainants charges outline their subsequent Title VII lawsuit.” Id. at 963. precision. Alvarado, greater 848 F.2d Any (“ investigation” “reasonable an at 460 charges ‘EEOC be con- must complaint surely EEOC would include liberality strued with they utmost since are investigation of alleged facts an affidavit by those made unschooled the technical- is, filed in support complaint. It I, therefore, formal pleading.’”). ities of therefore, appropriate to consider John find that district court erred dis- son’s statements in sworn affidavit. missing claim for Johnson’s failure ex- Stores, Inc., See v. Emmons Rose’s 5 haust administrative remedies. (E.D.N.C.1997) (look F.Supp.2d

ing to both EEOC Charge affidavit to V. determine whether sexual harassment EEOC), claim aff'd, above, filed with For the reasons stated I conclude (4th Cir.1998); Gipson granted see also that the district court the Univer-

251 50(a) animus, judgment motion as a direct evidence of that sity’s Rule admissible claims, Taylor’s employment ex- in an discrimination action against matter of law during brought against certain relevant evidence him. cluded See Mullen v. trial, and dismissed Johnson’s Johnson’s Princess Anne Fire Co. Volunteer Cir.1988). in error. On (4th sexual harassment claim F.2d Such evi- I the district court grounds, these believe just not dence does become irrelevant be- be vacated. decision should supervisor did not cause make the offensive in front of those is remarks he Michael, King join Motz and Judges victimizing, accused of or because this dissent. plaintiff did know of the remarks. See e.g. Hurley City Police Dept., Atlantic MOTZ, dissenting: DIANA GRIBBON (3d Cir.1999) (finding 108-111 Judge Murnaghan’s compelling I join admissible sex-discrimination suit testi- why It demonstrates persuasively dissent. mony “about ‘locker-room conversations court should judgment district presence between men outside the of wom- separately I write to address be reversed. ” though even had no plaintiff en’ knowl- subject point. a single Although edge of the conversations until after she distasteful, my I to voice compelled feel suit). Rather, trial court filed abuses its vigorously to an objection argument strong when excludes evidence discretion it dem- pressed by VUU. onstrating solely racial animus gender to- of Chief animus The evidence Wells’ because the statements were made be- trial, but went unrebutted at ward women members the same race or gen- tween I court what believe district excluded See, e.g., v. Bravo Talley der. Pitino Res- powerful of this was the most evidence taurant, Cir.1995) F.3d court ex- Specifically, animus. the district (exclusion made, racial slurs evidence of testimony that com- cluded Chief Wells private supervisors white white good “ha[d] that he “bet” woman mented employees requiring is abuse of discretion majority exclusion of pussy.” The holds reversal); Corp., Miles v. M.N.C. harmless, this a conclusion evidence was (11th Cir.1985) (same). 867, 873 I agree I do not but which which Talley understand. at issue in Racial slurs like those denigration and Miles sexist like that however, VUU, pressed very different profound- Hurley here and in are issue Although argument contention. at oral supervi- of us. But a ly offensive most (but brief) appellate not in its the universi- language use of such is admissible sor’s harmlessness, its ty fleetingly asserted employment an action not discrimination principal contention was that exclusion offensive but language is so proper this because the statement suggest may because of what it irrelevant. purportedly statement was employ- factfinder about the defendant’s irrelevant, The main- remark was VUU explained we in Mul- ment decisions. As tained, made it “to because Chief Wells len: employee a female another male without university presence.” in the The being racially use of offensive language explained man that “this is kind of talk [a] relevant the decision maker is men get together situation. When racial behind [his whether animus was Certainly talk certain they say things. proper ... decision] plaintiff way knowing no this com- had for the to consider.... Use made.” ment was ever provides aspersions obviously racial speaker might be indication that supervisor’s If a own words reflect likely to race into account in harboring, more take bias he is accused of illegal ... decision. strong, making hiring generally those words constitute Sexually stray, 853 F.2d 1133. offensive lan you’re at isolated comment of too guage e.g. is no different. See Kolstad v. damn job old for this is a decision , —U.S.—, American Dental Fourth Circuit that fits with human ex- Ass’n 2118, 2121, S.Ct. 144 L.Ed.2d 494 perience. woman, Saying about I (finding testimony regarding admissible think got good pussy that she’s is not a supervisor’s sexually jokes joke, offensive something says it’s you’re meetings staff and references to several treating person object, this as sex women as “bitches” and “battleaxes” as you’re treating not equal evidence of his bias sex discrimination the work force. It’s not a stray com- case). ment, comment, goes isolated it di- rectly you to the issue of perceive how

Finally, contrary to suggestion, VUU’s women in the work force .... it’s a big, demeaning, lewd remark assertedly wide viewfinder into the soul of the indi- age- made Chief Wells is not “like” the it, vidual making who is it demon- related we have previously comments con that he strates has a tremendous animus great gymnastics sidered. No mental are towards women. necessary supervisors’ to understand that employer statements that an needs to “at agree I deeply am disappointed that a newer, tract younger people” and “young respected institution of higher learning blood,” Co., see v. Clay Printing EEOC would suggest otherwise. (4th Cir.1992), or that “there comes a time when we have to way younger people,”

make see Birk beck Lighting v. Marvel Corp., 30 F.3d Cir.1994), 511-12 simply are remarking same .as aon woman’s Indeed, “good pussy.” Judge as Chief explained itself, Wilkinson Birkbeck age may “statements about carry well not America, UNITED STATES of the same animus as those about race or Plaintiff-Appellee, “[ujnlike gender,” because gender race or differences, age does not create a true Anthony MORGAN, Richard Za a/k/a we/they barring unfortunate situation' — Lewis, heer Lyttle, Paul S. a/k/a a/k/a events, every one protected will enter the Lewis, Lewis, Lawrence S. Zarie a/k/a age group point at some in their lives.” Joey Lewis, Stone, Paul a/k/a a/k/a Id. at 512. The remark at issue here Lewis, Scott Lewis Law a/k/a a/k/a just degree differs not but also in kind rence, Lawrence, Scott a/k/a a/k/a complained those of in age our dis Larece, Defendant-Appellant. Scott crimination cases. No. Perhaps appellants’ 99-6245. counsel best ex- plained the fundamental distinction: Appeals, United States Court of It surprise any wouldn’t of us if one of Fourth Circuit. out, us went slapped somebody on the

back you’re and said damn too old to May Argued 1999.

play game golf anymore. this We’re Sept. Decided all aging. thing One that would shock us is if anybody on the bench or one

in this courtroom turned around and woman,

said about a I think got she’s good pussy. You don’t kid around like mean, that. I we know that. And this based notes matter, there was no evidence terms Johnson contends the district court com- refusing what were the total number women mitted reversible error to ad-

Case Details

Case Name: Lynne S. Taylor, and Keisha Johnson v. Virginia Union University, Keisha Johnson, and Lynne S. Taylor v. Virginia Union University

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Sep 27, 1999

Citation: 193 F.3d 219

Docket Number: 97-1667, 97-1669

Court Abbreviation: 4th Cir.