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PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LYNNE S. TAYLOR,

Plaintiff-Appellant,

and

KEISHA JOHNSON,

No. 97-1667

Plaintiff,

v.

VIRGINIA UNION UNIVERSITY,

Defendant-Appellee.

KEISHA JOHNSON,

Plaintiff-Appellant,

and

LYNNE S. TAYLOR,

No. 97-1669

Plaintiff,

v.

VIRGINIA UNION UNIVERSITY,

Defendant-Appellee.

Appeals from the United States District Court

for the Eastern District of Virginia, at Richmond.

James R. Spencer, District Judge.

(CA-96-517)

Argued: June 9, 1999

Decided: September 27, 1999

Before WILKINSON, Chief Judge, and WIDENER,

MURNAGHAN, ERVIN,* NIEMEYER, HAMILTON, LUTTIG,

WILLIAMS, MICHAEL, MOTZ, TRAXLER, and KING,

Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Hamilton wrote the opinion, in

which Chief Judge Wilkinson and Judges Widener, Niemeyer, Luttig,

Williams and Traxler joined. Judge Murnaghan wrote a dissenting

opinion, in which Judges Michael, Motz and King joined. Judge Motz

also wrote a separate dissenting opinion. Judge Wilkins did not partic-

ipate in this case.

_________________________________________________________________

COUNSEL

ARGUED: Thomas Hunt Roberts, THOMAS H. ROBERTS &

ASSOCIATES, P.C., Richmond, Virginia, for Appellants. Henry L.

Marsh, III, HILL, TUCKER & MARSH, Richmond, Virginia, for

Appellee. ON BRIEF: Clarence M. Dunnaville, Jr., Ephfrom R.

Walker, III, HILL, TUCKER & MARSH, Richmond, Virginia, for

Appellee.

_________________________________________________________________

OPINION

HAMILTON, Circuit Judge:

This consolidated appeal involves various claims of gender dis-

crimination brought by two former female patrol officers with the

campus police department of Virginia Union University (VUU). See

42 U.S.C. § 2000e-2(a)(1). The officers, Lynne Taylor (Taylor) and

Keisha Johnson (Johnson) (collectively the Plaintiffs), each alleged

she: (1) was delayed in receiving a firearm; (2) was not promoted; (3)

was not selected to attend the police academy operated by the Vir-

_________________________________________________________________

*Judge Ervin heard oral argument in this case but died prior to the

time the decision was filed.

2

ginia Commonwealth University (the Police Academy); and (4) was

discharged, because she is a woman.1 Johnson alone alleged a sexual

harassment claim.

Upon VUU's pretrial motion for summary judgment, the district

court dismissed Johnson's sexual harassment claim for failure to

exhaust her administrative remedies. The remaining claims proceeded

to trial. At the close of all evidence, the district court granted VUU's

motion for judgment as a matter of law with respect to all of Taylor's

claims. Johnson's remaining claims went to the jury. The jury

returned a verdict fully in favor of VUU, and the district court entered

judgment thereon. This appeal followed.

A divided panel of this court affirmed the judgments in favor of

VUU with respect to the Plaintiffs' claims alleging discriminatory

delay in receiving firearms, but reversed the judgments in favor of

VUU with respect to the Plaintiffs' failure to promote, failure to be

sent to the Police Academy, and discharge claims and remanded for

trial on those claims with instructions to allow the admission of cer-

tain previously excluded evidence. The divided panel also instructed

the district court to reinstate Johnson's sexual harassment claim.

Upon VUU's suggestion, we vacated the panel decision and reheard

the case en banc. We now affirm the judgments entered by the district

court in favor of VUU in all respects and affirm its dismissal of John-

son's sexual harassment claim.

I.

VUU's campus police department (the Department) consists of

approximately twenty police officers. After a ninety-day probationary

period, new hires entered the Department at the rank of patrol officer.

Patrol officers could subsequently be promoted to the rank of corpo-

ral, sergeant, or lieutenant. For promotion to any rank higher than cor-

poral, both oral and written examinations are required.

Until 1993, overall supervision of the Department was assigned to

Walter H. Miller, VUU's Vice President for University Services

_________________________________________________________________

1 Specifically, Johnson alleges that she was constructively discharged.

3

(Department Supervisor Miller). For approximately a year thereafter,

overall supervision of the Department was assigned to S. Dallas Sim-

mons, VUU's President (Department Supervisor Simmons). In

August 1994, overall supervision of the Department shifted to

Anthony E. Manning, VUU's Vice President for University Relations

(Department Supervisor Manning). Overall supervision of the Depart-

ment included making significant personnel decisions such as hiring,

firing, and promoting, with both formal and informal input from the

Department's Chief of Police. However, the decision to recommend

an individual for promotion to a rank above corporal was made by a

panel of individuals from both inside and outside VUU. This panel

consisted of individuals from the Virginia Commonwealth Universi-

ty's police department, the City of Richmond's police department,

VUU faculty members, and certain senior officers in the Department.

While the Department's Chief of Police was not a member of this

panel, he would receive and forward the panel's recommendation to

the Department Supervisor.

At all times relevant to this appeal, Eugene Wells (Chief Wells)

served as the Department's Chief of Police. In this position, Chief

Wells was responsible for the daily operation and administration of

the Department, including the individual assignment of Department

personnel and scheduling. Furthermore, as previously mentioned,

Chief Wells had input with respect to significant personnel decisions,

although the ultimate decision making authority rested with the

Department Supervisor. However, Chief Wells was authorized to

select who among the Department's officers could attend the Police

Academy.2

Of relevance to this appeal, VUU's personnel manual required the

following of a patrol officer in order to be promoted to the rank of

_________________________________________________________________

2 VUU did not have a formal training program for its officers. How-

ever, VUU had the opportunity to send two officers each year to the

Police Academy. According to VUU policy, individuals were sent to the

Police Academy based on: (1) seniority; (2) employment with VUU for

more than ninety days; (3) experience; (4) interest; (5) desire to attend

the Police Academy; and (6) written evaluations. Attendance at the

Police Academy enhanced an officer's professional skills and had a posi-

tive impact on promotional opportunities above the rank of corporal.

4

corporal: (1) a minimum of six months as a VUU patrol officer; (2)

no arrests for a criminal offense in the past twenty-four months unless

found not guilty in a court of law; (3) ratings of satisfactory or above

in all areas on the patrol officer's most recent performance evaluation;

and (4) service with good conduct as evidenced by no disciplinary

action within the previous six months. VUU's personnel manual

required the following in order to be promoted to the rank of lieuten-

ant: (1) a minimum of one year as a VUU police officer with at least

one year as sergeant or of supervisory experience; (2) no arrests for

a criminal offense in the past twenty-four months unless found not

guilty in a court of law; (3) ratings of satisfactory or above in all areas

on the most recent performance evaluation; (4) service with good con-

duct as evidenced by no disciplinary action within the previous twelve

months; (5) submission of a letter of interest for promotion to the

Department's Chief of Police; and (6) passage of qualifying oral and

written examinations.

A. Taylor.

Taylor holds a bachelor of arts degree in journalism from Norfolk

State University. After receiving her degree, she served on active duty

status in the United States Army for an unspecified amount of time

in Germany.3 Upon returning from Germany, Taylor attended military

police school at Fort Meade in Maryland in preparation for deploy-

ment in connection with Operation Desert Storm. Approximately two

days after Taylor graduated from military police school, the conflict

giving rise to Operation Desert Storm ended, thus eliminating the

necessity for Taylor's expected deployment.

Apparently no longer on active duty status in the United States

Army, Taylor applied for the position of patrol officer at the Depart-

ment, and in August 1992, Department Supervisor Miller hired Taylor

as a patrol officer upon Chief Wells' recommendation. Taylor served

her mandatory ninety-day probationary period with the Department

without incident. In April 1993, Wells rated Taylor's communication

skills as "marginal" in a written performance evaluation and encour-

aged her to improve in that area. Wells rated Taylor's skills in all

_________________________________________________________________

3 In her brief, Taylor describes the amount of time she spent in Ger-

many as one tour, which is commonly known to last one to two years.

5

other areas, including initiative, dependability, and leadership as

satisfactory.4

Despite giving Taylor a "marginal" rating with respect to her com-

munication skills, Wells allowed Taylor to serve on a regular basis as

Acting Shift Supervisor starting in August 1994. In this position, Tay-

lor supervised all activities on the assigned shift, informed officers of

Department policies and procedures as they applied to the shift,

ensured compliance with Department policies and procedures, and

assigned officers to work details. After serving as Acting Shift Super-

visor on a number of occasions, Taylor unsuccessfully sought promo-

tion to the rank of corporal.5 According to VUU, Taylor's request for

promotion was denied because of the marginal rating she had received

in May 1993 with respect to her communication skills, and because

she was less qualified than the male patrol officer selected for promo-

tion. According to Taylor, most of the male officers who served as

Acting Shift Supervisor were promoted to the rank of corporal. The

record does not contain any evidence regarding the specific qualifica-

tions of the male officer who was promoted instead of Taylor.

Approximately two months after Taylor was denied promotion to

the rank of corporal, in October 1994, Lieutenant Yancey responded

to a complaint by a resident assistant that females were in the Omega

fraternity room of Storer Hall in violation of VUU policy. Upon arriv-

ing at the entrance to the room, Lieutenant Yancey discovered the

existence of a co-ed party. A member of the Omega fraternity then

informed Lieutenant Yancey that one of the Department's female

officers was in attendance as a guest. The officer was Taylor, who

was off-duty. She had attended the party for "a little over . . . an hour."6

_________________________________________________________________

4 At trial, Taylor's immediate supervisor during 1993 and 1994, Lieu-

tenant Henry Yancey (Lieutenant Yancey), testified that he had problems

with Taylor "getting the job done." (J.A. 213). In addition, Department

Supervisor Miller testified at trial that Taylor exhibited a "lackadaisical

attitude." (J.A. 198).

5 Taylor admitted at trial that she did not want to be promoted to any

rank above corporal. Indeed, Department Supervisor Manning testified

without contradiction that Taylor informed him that she "d[id]n't want

any responsibility," with respect to her employment at VUU. (J.A. 246).

6 Lieutenant Yancey filed an incident report stating that Taylor attended

the party and had been drinking. Taylor denies drinking any alcohol at

the party.

6

(J.A. 152). Her attendance was a direct violation of VUU policy

regarding fraternization with students. Based upon Lieutenant

Yancey's incident report and an investigation by Chief Wells, in

November 1994, Chief Wells recommended to Department Supervi-

sor Manning that Taylor be discharged. On November 7, 1994, Taylor

was discharged with the stated reason being her violation of VUU's

anti-fraternization policy.

In support of her discriminatory discharge claim, Taylor offered the

testimony of Corporal Tommy Harrell (Corporal Harrell) of the

Department that some male officers were not disciplined for having

"contact" with female students. (J.A. 85). Corporal Harrell did not

describe what type of contact was involved. Taylor also relied upon

her own testimony that "[t]here were several incidents where students

would say that there were male officers who were engaged in sexual

relationships with female students and bragging about it all over cam-

pus," and VUU officials did nothing. (J.A. 153).

One of the issues in this appeal stems from the fact that Taylor was

never selected to attend the Police Academy. At trial, Taylor testified

that Chief Wells assured her that she would be sent to the Police

Academy. Nevertheless, Taylor claims that she was not sent to the

Police Academy during her twenty-six month tenure with the Depart-

ment because of her gender. In support of her claim, Taylor put forth

the following testimony by Lieutenant Quinton Terry (Quinton Terry

or Lieutenant Terry) of the Department: "I asked[Chief Wells] one

day was he going to send Ms. Johnson to the Police Academy with

me because I knew I was getting ready to go to the Academy. He

stated to me he was never going to send a female to the Academy."

(J.A. 70). Furthermore, Corporal Harrell testified that Chief Wells had

once referred to Taylor as a "stupid bitch," and asked him if he was

sleeping with Johnson. (J.A. 82).

B. Johnson.

Johnson does not hold a college degree. She did serve two years,

however, in the United States Army prior to her employment at VUU.

Johnson held the rank of sergeant at the time she separated from the

Army. In July 1993, Department Supervisor Simmons hired Johnson

as a patrol officer upon Chief Wells' recommendation. She served the

7

mandatory ninety-day probationary period without incident. Like

Taylor, Johnson also served regularly as Acting Shift Supervisor.

Johnson began doing so in April 1994. Chief Wells rated Johnson as

satisfactory or above in all of the categories listed on her April 1994

performance evaluation, the only one prepared during Johnson's four-

teen month tenure with the Department.

In May 1994, Johnson sent a letter to Chief Wells expressing her

desire to apply for promotion to the rank of lieutenant. According to

Johnson, Chief Wells then told her, "I don't know why you can't be

the next lieutenant around here." (J.A. 136). To achieve that end,

Johnson took both the requisite written and oral examinations. The

examinations were conducted by a panel consisting of Lieutenant

Yancey of the Department, a police officer from Virginia Common-

wealth University's police department, and a police officer from the

City of Richmond's police department. In August 1994, after the

examination process was complete, VUU compiled the panel's results

in a final ranking. Quinton Terry finished three points higher than

Johnson and was promoted to the rank of lieutenant.

In September 1994, fourteen months after she was hired as a VUU

patrol officer, Johnson sent a letter to Chief Wells expressing how

much she had enjoyed working under him but was resigning to "fur-

ther develop [her] career in areas that [were] more in line with [her]

long term goals." (J.A. 370). Department Supervisor Manning, upon

receipt of Johnson's letter of resignation, attempted unsuccessfully to

persuade Johnson to remain with the Department. Department Super-

visor Manning then allowed and encouraged Johnson to adjust her ter-

mination date so that she could collect an extra four days of pay.

Also at issue in this appeal is the fact that Johnson, like Taylor, was

never selected to attend the Police Academy. In support of her claim

that her failure to be selected to attend the Police Academy was a

result of discriminatory animus held by Chief Wells toward women,

like Taylor, Johnson relies upon the exchange between Chief Wells

and Lieutenant Terry during which Chief Wells stated he was "never

going to send a female to the Academy." (J.A. 70). The jury heard

Taylor testify, however, that some of the male officers at VUU had

waited as long as three years before being selected to attend the Police

8

Academy, which was much longer than either Taylor or Johnson's

respective tenures with the Department.

Also in support of her claims, Johnson testified at trial that at times

during her tenure with the Department, Chief Wells: (1) talked to her

in his office with the door shut; (2) told her she would be promoted

if she "did the right thing"; (3) told her she looked good in her uni-

form; and (4) touched her on her arm or shoulder when he spoke to

her. (J.A. 107).

C. Equal Employment Opportunity Commission.

The Plaintiffs filed charges alleging gender discrimination against

VUU with the Equal Employment Opportunity Commission (EEOC).

At issue in the present appeal is the affidavit that Johnson attached to

her charge in which she attested to the following:

On several times [Chief Wells] called me at home on thing

[sic] that could wait until the next day. He has touched me

on the arm on several times while talking to me. He stated

he hire [sic] me because he liked me. He has called my Mili-

tary Reserve (Sgt. Dixon) Unit to discuss with my supervi-

sor that he was in the process of promoting. He has called

me in his office for hours at a time, away from job[sic] to

talked [sic] to me.

(J.A. 353). Johnson argued below and argues on appeal that these

statements in her affidavit are sufficient to conclude that she advanced

a sexual harassment claim before the EEOC even though her actual

charge form never explicitly alleged a sexual harassment claim. On

April 1, 1996, both Taylor and Johnson received a"right to sue" letter

from the EEOC.

D. The District Court.

On June 27 and 28, 1996, respectively, Taylor and Johnson filed

the present actions against VUU, which were later consolidated for

purposes of trial. As previously stated, the district court dismissed

Johnson's sexual harassment claim for failure to exhaust her adminis-

9

trative remedies and granted VUU's motion for judgment as a matter

of law with respect to all of Taylor's claims. Of relevance in the pres-

ent appeal, at the trial on Johnson's remaining claims, the district

court refused to admit evidence, over Johnson's objection, that Chief

Wells once stated that he bet a certain unidentified woman had "good

pussy" and called a female VUU employee named Angela Sheridan

at home on several occasions, touched her, and told her that he had

looked down her blouse once when standing behind her. (J.A. 187).

Also of relevance in the present appeal is the following note sent

by the jury to the district court during its deliberations:

How many women were hired, promoted, worked at VUU

Campus Police during Well's [sic] tenure? Also, how many

women from the VUU Campus Police went to the Police

Academy during the same time?

(J.A. 343). At a conference with all parties, and outside the presence

of the jury, the district court indicated how it planned to answer the

jury's questions. While the court engaged in a brief discussion with

the parties concerning its proposed answers to the jury's questions, no

party raised any objections thereto. The district court then informed

the jury in accordance with its proposed answers as follows:

All right, we had a note from the jury asking the follow-

ing questions: "How many women were hired, promoted or

worked at VUU Campus Police during Wells' tenure?"

My answer to that is that we have to be very careful.

These are factual matters that you are supposed to decipher.

But as I have indicated to counsel, and based on what I

recall in my notes in the matter, there was no evidence in

terms of what were the total number of women who worked

during Wells' tenure, and you are stuck with that. You can

only deal with what was presented to you.

And then on the second question, I'll answer it in two

ways. You want to know how many women on the campus

went to the Police Academy. If your indication from that is

10

during Wells' tenure, again, there is no evidence of the total-

ity of women, if any, who went during Wells' tenure. And

again, you are stuck with that. The only evidence that I

recall relating to any specific testimony about women going

to the Police Academy was Mr. Miller, who testified specifi-

cally about a Jean Robinson and a Corrinne Thomas, who

were both promoted to Sergeant and both attended the

Police Academy. This would have been prior to the time of

Mr. Wells, Chief Wells.

So that's the best I can do for you. If it is not there, it is

not there and we can't speculate. All right? Thank you.

(J.A. 335-36). No party raised any objection to these statements. The

jury continued its deliberations and ultimately returned a verdict in

favor of VUU on all of Johnson's remaining claims. Johnson then

moved for entry of judgment as a matter of law or in the alternative

for a new trial, see Fed. R. Civ. P. 50(b), which the district court

denied. The district court then entered judgment in favor of VUU

based upon the jury's verdict.

E. Arguments On Appeal.

The Plaintiffs noticed timely appeals. On appeal, Taylor contends

the district court erroneously granted VUU's motion for judgment as

a matter of law with respect to her claims alleging discriminatory: (1)

delay in receiving a firearm; (2) failure to be promoted; (3) failure to

be selected to attend the Police Academy; and (4) discharge. She

seeks a new trial on all of her claims.

Johnson contends the district court committed reversible error by

refusing to admit evidence, over her objection, that Chief Wells once

stated that he bet a certain unidentified woman had"good pussy" and

called a female VUU employee named Angela Sheridan at home on

several occasions, touched her, and told her that he had looked down

her blouse once when standing behind her. (J.A. 187). On this basis,

Johnson seeks a new trial on her claims alleging discriminatory: (1)

delay in receiving a firearm; (2) failure to be promoted; (3) failure to

be selected to attend the Police Academy; and (4) constructive dis-

charge. Johnson also contends the district court erroneously dismissed

11

her sexual harassment claim, and therefore, seeks to have the claim

reinstated. We address Taylor's contentions first and Johnson's con-

tentions second.

II.

As the moving party, VUU was entitled to prevail on its motion for

judgment as a matter of law with respect to Taylor's claims if during

the jury trial, after Taylor was fully heard, "there [was] no legally suf-

ficient evidentiary basis for a reasonable jury to find" in Taylor's

favor. Fed. R. Civ. P. 50(a)(1). We review the district court's grant

of VUU's motion for judgment as a matter of law with respect to Tay-

lor's claims de novo, viewing the evidence in the light most favorable

to Taylor. See Brown v. CSX Transp., Inc, 18 F.3d 245, 248 (4th Cir.

1994).

A. Failure to Promote Claim.

Section 703 of Title VII of the Civil Rights Act of 1964, inter alia,

makes it "an unlawful employment practice for an employer-- (1) to

fail or refuse to hire or to discharge any individual, or otherwise to

discriminate against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of such indi-

vidual's . . . sex . . . ." 42 U.S.C. § 2000e-2(a)(1). Taylor claims that

she successfully met her burden of proof under the McDonnell

Douglas burden-shifting proof scheme on her Title VII claim alleging

discriminatory failure to promote on account of her gender. See

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

McDonnell Douglas contains a familiar three-step burden-shifting

proof scheme. See Evans v. Technologies Applications & Serv. Co.,

80 F.3d 954, 959 (4th Cir. 1996).

Under that three-step framework, the plaintiff-employee

must first prove a prima-facie case of discrimination by a

preponderance of the evidence. If she succeeds, the

defendant-employer has an opportunity to present a legiti-

mate, non-discriminatory reason for its employment action.

If the employer does so, the presumption of unlawful dis-

crimination created by the prima facie case drops out of the

12

picture and the burden shifts back to the employee to show

that the given reason was just a pretext for discrimination.

Id. (internal quotation marks omitted). To meet her burden of proving

pretext, a plaintiff must prove both that the reason given for the

adverse action by the employer was false, and that discrimination was

the real reason. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515

(1993); Vaughan v. Metrahealth Cos., Inc., 145 F.3d 197, 201-02 (4th

Cir. 1998).

In order to establish a prima facie case, Taylor was required to

demonstrate by a preponderance of the evidence that: (1) she is a

member of a protected class; (2) her employer had an open position

for which she applied; (3) she was qualified for the position; and (4)

she was rejected for the position under circumstances giving rise to

an inference of unlawful discrimination. See Hughes v. Bedsole, 48

F.3d 1376, 1383 (4th Cir. 1995). The other two steps are not reached

unless and until Taylor satisfies her burden of establishing a prima

facie case. See Evans, 80 F.3d at 959.

At bottom, Taylor failed to offer sufficient evidence to establish the

third element of a prima facie case--that she was qualified for the

rank of corporal. The evidence at trial was undisputed that to qualify

for promotion to the rank of corporal, the candidate must possess: (1)

a minimum of six months as a VUU patrol officer; (2) no arrests for

a criminal offense in the past twenty-four months unless found not

guilty in a court of law; (3) ratings of satisfactory or above in all

areas on the patrol officer's most recent performance evaluation; and

(4) service with good conduct as evidenced by no disciplinary action

within the previous six months. Taylor was not qualified for promo-

tion to the rank of corporal because she had received a rating of "mar-

ginal" in the category of communication skills on her most recent

performance evaluation. Accordingly, Taylor cannot make out a

prima facie case, and therefore, rightly did not survive VUU's motion

for judgment as a matter of law.

Taylor urges this court to discount her marginal rating in the cate-

gory of communication skills on her performance evaluation because

Chief Wells, whom she alleges harbored discriminatory animus

13

toward women, performed the evaluation. Such a position overlooks

this court's holding that if:

the employee was hired and fired by the same person within

a relatively short time span . . . this fact creates a strong

inference that the employer's stated reason for acting against

the employee is not pretextual. . . . In short, employers who

knowingly hire workers within a protected group seldom

will be credible targets for charges of pretextual firing.

Jimenez v. Mary Washington College, 57 F.3d 369, 378 (4th Cir.

1995) (quoting Proud v. Stone, 945 F.2d 796, 798 (4th Cir. 1991)).

See also Tyndall v. National Education Centers, Inc. , 31 F.3d 209,

215 (4th Cir. 1994) (recognizing in context of the Americans with

Disabilities Act, 42 U.S.C. §§ 12101 - 12213, that "[a]n employer

who intends to discriminate against disabled individuals or holds

unfounded assumptions that such persons are not good employees

would not be apt to employ disabled persons in the first place"). Chief

Wells was instrumental in hiring Taylor in August 1992, and evalu-

ated her just eight months later in April 1993. While Taylor was not

fired at the time of her evaluation, the same hirer-same firer inference

applies here by analogy. It strains credulity to believe that Chief

Wells would have falsely rated Taylor as marginal in one category in

her performance evaluation only eight months after he recommended

that she be hired, so that he could prevent her from being promoted

to the rank of corporal because she was a woman. See id. at 215

(holding in ADA case that employer was entitled to same hirer-same

firer inference within eighteen month time span). Further, both

Department Supervisor Miller and Lieutenant Yancey corroborated

Chief Wells' assessment of Taylor's poor job performance. Lieuten-

ant Yancey testified at trial that Taylor had problems "getting the job

done," (J.A. 213), and Department Supervisor Miller testified that

Taylor exhibited a "lackadaisical attitude." (J.A. 198). Significantly,

Taylor offered no evidence even remotely suggesting that either of

these individuals held any discriminatory animus toward women.

Even in the face of Chief Wells' comment that he would never send

a woman to the Police Academy, these factors compel the conclusion

that a reasonable jury could not find Taylor's performance evaluation

to be anything other than an accurate assessment of her job perfor-

mance. Because there was no legally sufficient evidentiary basis for

14

a reasonable jury to find that Taylor was qualified for the rank of cor-

poral, the district court properly granted VUU's motion for judgment

as a matter of law on Taylor's failure to promote claim.

Additionally, even assuming arguendo that Taylor established a

prima facie case, she did not carry her ultimate burden of offering

sufficient evidence for a reasonable jury to find that VUU's reasons

for failing to promote her--her receipt of a "marginal" rating in the

category of communication skills on her most recent performance

evaluation and her inferior qualifications as compared to the male

patrol officer selected to be promoted--were a pretext for gender dis-

crimination. At this stage of the analysis, Taylor"must establish that

she was the better qualified candidate for the position sought." Evans,

80 F.3d at 960. This she has unquestionably not done. Indeed, Taylor

did not offer any evidence regarding the qualifications of the male

patrol officer selected for the promotion she sought. Thus, she cannot

even attempt to make the required comparison.

B. Police Academy Claim.

Taylor next contends the district court erred in granting VUU's

motion for judgment as a matter of law with respect to her Police

Academy claim. In this regard, Taylor believes that she is entitled to

enjoy the more advantageous standard of liability applicable in

mixed-motive cases. We disagree on all fronts.

A plaintiff qualifies for the more advantageous standard of liability

applicable in mixed-motive cases if the plaintiff presents "`direct evi-

dence that decision makers placed substantial negative reliance on an

illegitimate criterion.'" Fuller v. Phipps , 67 F.3d 1137, 1142 (4th Cir.

1995) (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 277

(1989) (O'Connor, J., concurring)). Such a showing requires "evi-

dence of conduct or statements that both reflect directly the alleged

discriminatory attitude and that bear directly on the contested employ-

ment decision." Id. If the plaintiff satisfies this evidentiary threshold,

the burden of persuasion shifts to the employer to prove that "it would

have reached the same determination without any discriminatory ani-

mus . . . ." Id. The determination of whether a plaintiff has satisfied

this evidentiary threshold is a decision for the district court after it has

15

reviewed the evidence, see id. at 1142, which "ultimately hinges on

the strength of the evidence establishing discrimination." Id. at 1143.

The bonus for plaintiffs able to invoke the standard of liability

applicable in mixed-motive cases is that proof by the employer that

it would have reached the same determination without any discrimi-

natory animus does not allow the employer to avoid liability alto-

gether. Rather, such proof only limits the remedies available to the

plaintiff. See id. at 1142. Absent the threshold showing necessary to

invoke the standard of liability applicable in mixed-motive cases,

however, a plaintiff must prevail under the less advantageous standard

of liability applicable in pretext cases. See id. at 1143.

According to Taylor, the following testimony by Lieutenant Terry

is sufficient to trigger the mixed-motive standard of liability with

respect to her claim alleging discriminatory failure to be selected to

attend the Police Academy: "I asked [Chief Wells] one day was he

going to send Ms. Johnson to the Police Academy with me because

I knew I was getting ready to go to the Academy. He stated to me he

was never going to send a female to the Academy." (J.A. 70). While

Chief Wells' statement reflects directly his alleged discriminatory

attitude toward women, because Chief Wells made the statement in

response to Lieutenant Terry's question as to whether Johnson would

be joining him in attending the Police Academy, the statement obvi-

ously does not "bear directly on the contested employment decision,"

i.e., Chief Wells' decision not to send Taylor to the Police Academy.

Fuller, 67 F.3d at 1142. Accordingly, under our circuit precedent, the

mixed-motive standard of liability is not triggered.

Taylor, therefore, bears the burden of establishing her Police Acad-

emy claim under the McDonnell Douglas burden-shifting proof

scheme applicable in pretext cases. See McDonnell Douglas, 411 U.S.

at 802. To establish a prima facie case of disparate treatment in a pre-

text case, Taylor must demonstrate that: (1) she is a member of a pro-

tected class; (2) she was qualified to attend the Police Academy; (3)

she was not selected to attend the Police Academy; and (4) other offi-

cers who are not members of the protected class were selected to

attend the Police Academy under similar circumstances. See Hughes,

48 F.3d at 1383.

16

At a minimum, Taylor cannot establish the fourth element of her

prima facie case--that other officers who are not members of the pro-

tected class were selected to attend the Police Academy under similar

circumstances. Critically, during Taylor's tenure at the Department,

Chief Wells never sent any VUU officer to the Police Academy with

less qualifications than or similar qualifications to Taylor. During

Taylor's two years of employment with the Department, there were

a total of six Police Academy slots available for VUU officers (two

slots each year). According to VUU policy, these slots were to be

filled with officers based on their: (1) seniority; (2) employment with

VUU for more than ninety days; (3) experience; (4) interest; (5)

desire to attend the Police Academy; and (6) written evaluations.

The evidence is overwhelming and uncontradicted that Taylor was

not as qualified as the male officers when these six criteria are consid-

ered as a whole. The evidence, viewed in the light most favorable to

Taylor, shows that she served in the Department approximately two

years, had a minimal amount of military experience during which she

completed military police school, and, by her own admission, was

only interested in being promoted to the rank of corporal, a position

for which Police Academy training was unnecessary. Of the six offi-

cers selected to attend the Police Academy during Taylor's time at the

Department, unlike Taylor, all expressed an interest in being pro-

moted to the rank of sergeant or lieutenant, which showed a high

degree of professional motivation. Additionally, as compared to Tay-

lor: (1) Vernon Dawson had more seniority and higher performance

evaluations; (2) Ralph Ortiz had more seniority (the record does not

disclose how his performance evaluations compared to Taylor); (3)

Lieutenant Terry had higher performance evaluations and a great deal

more military experience; (4) Wilfred Tegre had more seniority,

higher performance evaluations, and security guard experience; (5)

Troy Jones had experience as a firearms instructor, higher perfor-

mance evaluations, attended the United States Marine Security Force

School, and a great deal more military experience; and (6) Harper

Morrison had higher performance evaluations and also had military

experience, which included completion of the United States Army's

military police school. Further, Taylor conceded at trial that Officers

Alfred Pittman and James Anderson, both of whom are male and had

more seniority than Taylor, were also not selected to attend the Police

Academy during her tenure with the Department.

17

In sum, Taylor has not produced legally sufficient evidence for a

reasonable jury to find that male officers were selected to attend the

Police Academy ahead of her under similar circumstances. Indeed,

she has produced no such evidence. Furthermore, Taylor has pro-

duced no evidence to rebut VUU's proffered legitimate nondiscrimi-

natory reason for not selecting Taylor to attend the Police Academy--

considering the totality of the stated factors, all of the male officers

selected were more qualified. Accordingly, we affirm the district

court's grant of VUU's motion for judgment as a matter of law on

Taylor's Police Academy claim.

C. Discriminatory Discharge.

Taylor also contends that the district court erred in granting VUU's

motion for judgment as a matter of law with respect to her discrimina-

tory discharge claim. Again, we disagree.

Taylor premises her discriminatory discharge claim on her asser-

tion that male officers in the Department also fraternized with VUU

students but escaped discipline. For Taylor to avoid VUU's motion

for judgment as a matter of law, she must, at a minimum, demonstrate

a prima facie case of disparate treatment with respect to her being dis-

ciplined by being discharged. Thus, Taylor must demonstrate by a

preponderance of the evidence that: (1) she is a member of a protected

class under Title VII; (2) the prohibited conduct in which she engaged

was comparable in seriousness to misconduct of employees outside

the protected class; and (3) she suffered more severe discipline for her

misconduct as compared to those employees outside the protected

class. See Cook v. CSX Transp. Corp., 988 F.2d 507, 511 (4th Cir.

1993).

Fatal to Taylor's discriminatory discharge claim is her failure to

meet the second and third elements of a prima facie case. The only

evidence offered by Taylor in support of the second and third ele-

ments was: (1) her own testimony repeating statements by unidenti-

fied VUU students;7 and (2) Corporal Harrell's testimony that

_________________________________________________________________

7 We note this testimony is inadmissible hearsay under Federal Rule of

Evidence 802. However, VUU neither objected to its admission at trial

nor contends on appeal that its admission was erroneous.

18

unidentified male officers were not disciplined for having "contact"

with students. (J.A. 85). Taylor's testimony merely repeating hearsay

statements made by unidentified VUU students indicating that

unidentified male officers were engaged in sexual relationships with

unidentified female students without discipline by VUU and Corporal

Harrell's testimony that unidentified male officers were not disci-

plined for having undescribed "contact" with students is too vague for

a reasonable jury to find Taylor established elements two and three

of a prima facie case by a preponderance of the evidence. See Guthrie

v. Tifco Industries, 941 F.2d 374, 379 (5th Cir. 1991) (statements that

are "vague and remote in time . . . are insufficient to establish dis-

crimination"). Cf. Simpson v. Welch, 900 F.2d 33, 35 (4th Cir. 1990)

(holding mere allegations without descriptions of specific incidents

. . . insufficient to state a claim under Title VII). Taylor's failure to

establish a prima facie case is fatal to her discriminatory discharge

claim.8

Because there is no legally sufficient evidentiary basis for a reason-

able jury to find in Taylor's favor on any of her claims, we affirm the

district court's grant of judgment as a matter of law in favor of VUU

on all of Taylor's claims.

III.

According to Johnson, she is entitled to a new trial on all of her

claims that went to the jury because the district court abused its dis-

cretion in excluding evidence that Chief Wells once stated that he bet

a certain unidentified woman had "good pussy" and evidence that

Chief Wells called a female VUU employee named Angela Sheridan

at home on several occasions, touched her, and told her that he had

_________________________________________________________________

8 Taylor's contention that the district court erroneously granted VUU's

motion for judgment as a matter of law with respect to her claim alleging

discriminatory delay in receiving a firearm deserves only brief comment.

Taylor conceded at oral argument before the three-judge panel that the

delay she allegedly suffered in receiving her firearm did not constitute

a separate cognizable claim under Title VII. Furthermore, the record is

void of evidence that VUU caused the delay that Taylor allegedly suf-

fered in receiving a firearm. Accordingly, we affirm the grant of VUU's

motion for judgment as a matter of law with respect to this claim.

19

looked down her blouse once when standing behind her. (J.A. 187).

We review a district court's exclusion of proffered evidence for abuse

of discretion. See Persinger v. Norfolk & Western Ry. Co., 920 F.2d

1185, 1187 (4th Cir. 1990).

Here, we need not decide whether the district court abused its dis-

cretion in excluding the evidence identified by Johnson, because

assuming arguendo it did, the abuse constitutes harmless error. Title

28, United States Code § 2111 provides: "On the hearing of any

appeal or writ of certiorari in any case, the court shall give judgment

after an examination of the record without regard to errors or defects

which do not affect the substantial rights of the parties." Id. The

Supreme Court has characterized this statute as the harmless error

statute, "which applies directly to appellate courts and which incorpo-

rates the same principle as that found in [Federal] Rule [of Civil Pro-

cedure] 61."9 McDonough Power Equipment, Inc. v. Greenwood, 464

U.S. 548, 554 (1984). In order to conclude the district court's

assumed evidentiary errors did not affect Johnson's substantial rights,

and therefore were harmless, "we need only be able to say `with fair

assurance, after pondering all that happened without stripping the

erroneous action from the whole, that the judgment was not substan-

tially swayed by the error[s].'" United States v. Heater, 63 F.3d 311,

325 (4th Cir. 1995) (quoting United States v. Nyman, 649 F.2d 208,

211-12 (4th Cir. 1980), which in turn was quoting Kotteakos v. United

States, 328 U.S. 750, 765 (1946)). This test appropriately focuses

upon "whether the error itself had substantial influence." Kotteakos,

328 U.S. at 765.

We note that we have never before expressly used this particular

test for determining whether an error or assumed error for the sake of

argument affected an appellant's substantial rights in a civil case. Jus-

tice Rutledge first expressed this test in Kotteakos, a criminal case,

and since then, the majority of our sister circuits have applied it in the

civil context. See Williams v. United States Elevator Co., 920 F.2d

1019, 1022-23 (D.C. Cir. 1990); Schrand v. Federal Pac. Elec. Co.,

851 F.2d 152, 157 (6th Cir. 1988); Aetna Casualty & Sur. Co. v.

_________________________________________________________________

9 Federal Rule of Civil Procedure 61 commands district courts "at every

stage of the proceeding [to] disregard any error or defect in the proceed-

ing which does not affect the substantial rights of the parties." Id.

20

Gosdin, 803 F.2d 1153, 1159 (11th Cir. 1986); Lataille v. Ponte, 754

F.2d 33, 37 (1st Cir. 1985); Howard v. Gonzales , 658 F.2d 352, 357

(5th Cir. 1981); Cohen v. Franchard Corp., 478 F.2d 115, 125 (2d

Cir. 1973). We now join these circuits, because we can fathom no

sound justification for using a different test for determining whether

a lower court's error affected an appellant's substantial rights in the

civil context as compared to the criminal context. Indeed, by its own

terms, § 2111 makes no distinction between civil and criminal cases,

thereby implying that Congress intended uniform treatment of the

statute's language in the civil and criminal contexts.10

Applying this test to each of Johnson's claims reveals that she is

not entitled to a new trial on those claims.

A. Failure to Promote Claim.

Johnson alleged that VUU denied her promotion to the rank of cor-

poral and lieutenant because of her gender. At trial, VUU attributed

Johnson's failure to be promoted to the rank of corporal or lieutenant

to her not being the most qualified candidate for the positions at the

_________________________________________________________________

10 We recognize that three circuits have refused to apply the Kotteakos

standard in the civil context primarily on the basis that proving harmless

error in the criminal context as opposed to the civil context should be

more difficult given the differing burdens of proof. See United States

Industries, Inc. v. Touche Ross & Co., 854 F.2d 1223, 1252-53 (10th Cir.

1988), impliedly overruled on other grounds ; McIlroy v. Dittmer, 732

F.2d 98, 105 (8th Cir. 1984); Haddad v. Lockheed California Corp., 720

F.2d 1454, 1459 (9th Cir. 1983). As we have said, the statutory language

of § 2111 implies that Congress intended uniform treatment of the harm-

less error statute in the civil and criminal contexts. Cf. Owens-Illinois,

Inc. v. Rapid Am. Corp. (In re Celotex), 124 F.3d 619, 630 (4th Cir.

1997) (holding that requirements for obtaining relief on appeal for plain

error in a criminal case under Federal Rule of Criminal Procedure 52(b),

one of which is that a plain error affected an appellant's substantial

rights, at a minimum, must be satisfied before we would exercise our dis-

cretion to correct an error not raised below in a civil case, because the

court could not conceive of any "reason why an appellant in a civil case

should bear a lesser burden for obtaining correction of a forfeited error

than an appellant in a criminal case . . . ."). Accordingly, we reject the

holdings and rationale of these circuits.

21

time she applied for the promotions. Given that this matter proceeded

through a jury trial on the merits, "we no longer concern ourselves

with the vagaries of the prima facie case because subsequent to a trial

in a Title VII action, the ultimate issue is one of discrimination vel

non." Jimenez, 57 F.3d at 377. In this "posture, the McDonnell

Douglas paradigm of presumption created by establishing a prima

facie case drops from the case, and the factual inquiry proceeds to a

new level of specificity." Id. (internal quotation marks and citations

omitted). This factual inquiry is whether VUU intentionally discrimi-

nated against Johnson. See id. Johnson bore the burden of persuasion

on this issue. See id. To meet her burden, Johnson had to prove both

that the reason given by VUU for failing to promote her was false,

and that discrimination was the real reason. See St. Mary's Honor

Ctr., 509 U.S. at 515; Vaughan, 145 F.3d at 201-02.

With respect to the rank of corporal, Johnson relied at trial on her

own testimony and that of Taylor that all of the male officers who

served as Acting Shift Supervisor were promoted to the rank of cor-

poral. She also relied on the testimony of Lieutenant Terry that Chief

Wells commented that he would never send a woman to the Police

Academy in response to his (Lieutenant Terry's) query as to whether

Johnson would be joining him at the Police Academy. Finally, she

relied upon Corporal Harrell's testimony that Chief Wells referred to

Taylor as a "stupid bitch," (J.A. 82), and queried whether Corporal

Harrell had slept with Johnson. With respect to the rank of lieutenant,

Johnson relied upon all of this same evidence, except for her own tes-

timony and that of Taylor that all of the male officers who served as

Acting Shift Supervisor were promoted to the rank of corporal.

Additionally, the jury had before it evidence that a number of male

officers, some with more seniority and experience than Johnson,

served regularly as Acting Shift Supervisor without receiving promo-

tion to the rank of corporal until they had been with the Department

for several years. For example, Alfred Pittman was with the Depart-

ment for four and one half years and regularly served as Acting Shift

Supervisor prior to being promoted to the rank of corporal. This is a

significantly longer period of time than Johnson's fourteen month ten-

ure with the Department. Moreover, with respect to Johnson's failure

to be promoted to lieutenant, the jury considered evidence that a panel

consisting of three individuals with no history of discriminatory ani-

22

mus toward women (Lieutenant Yancey of the Department, a police

officer from Virginia Commonwealth University's police department,

and a police officer from the City of Richmond's police department)

ranked Johnson lower than Quinton Terry, the male officer who was

promoted over Johnson, after comparing their performances on writ-

ten and oral examinations. Finally, the jury considered evidence that

Lieutenant Terry had previously received higher performance evalua-

tions than Johnson and had more military experience than Johnson.

The jury considered all of this evidence and concluded that John-

son had not carried her burden of persuasion: (1) that the reason given

by VUU for failing to promote her to the rank of corporal or

lieutenant--that she was not the most qualified candidate for either

position--was false, and (2) that discrimination was the real reason.

See St. Mary's Honor Ctr., 509 U.S. at 515. Considering the above

outlined evidence, we are able to say with fair assurance, after pon-

dering all that happened, that the absence of the alleged erroneously

excluded evidence did not substantially sway the jury's decision.

Johnson offered the evidence of Chief Wells' alleged"good pussy"

comment and the evidence of his alleged conduct toward VUU

employee Angela Sheridan in support of her ultimate burden of prov-

ing that Chief Wells failed to recommend her for promotion to the

rank of corporal or lieutenant because of her gender. If this evidence,

assuming arguendo it suggests a discriminatory attitude toward

women on the part of Chief Wells, had been thrown into the mix of

evidence that was already before the jury on the issue of Chief Wells'

discriminatory animus toward women, for example, Chief Wells'

comment about never sending a woman to the Police Academy, we

can say with fair assurance the outcome would have been the same.

In summary, we are firmly convinced the allegedly erroneously

excluded evidence, assuming arguendo it was admissible, was simply

too weak to have made a difference in the jury's decision.

B. Police Academy

Johnson also alleges that VUU prevented her from attending the

Police Academy because of her gender. After a full trial, the jury

returned a verdict in favor of VUU on Johnson's Police Academy

claim. Thus, after considering the evidence presented by both sides,

the jury was not ultimately persuaded that Johnson should prevail.

23

Common sense compels the conclusion that if the jury rejected her

Police Academy claim in the face of Lieutenant Terry's testimony

that Chief Wells stated he would never send a woman to the Police

Academy in response to his (Lieutenant Terry's) query as to whether

Johnson would be joining him at the Police Academy, throwing the

alleged erroneously excluded evidence into the mix would not have

changed the outcome. In short, we say with more than fair assurance

that the jury was not substantially swayed by the alleged errors. Thus,

any possible error committed by the district court in excluding the

evidence at issue was at most harmless.11

C. Constructive Discharge

Johnson also claims that she was constructively discharged because

of her gender. As a threshold matter, Johnson was required to prove

that VUU deliberately made her working conditions"`intolerable' in

an effort to induce [her] to quit." Martin v. Cavalier Hotel Corp., 48

F.3d 1343, 1353-54 (4th Cir. 1995) (quoting Bristow v. The Daily

Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985)). In order to meet

this burden, Johnson had to prove: (1) VUU's actions of which she

complains were deliberately done; and (2) her working conditions

were intolerable. See id. at 1354. Deliberateness exists only if the

actions complained of were intended by the employer as an effort to

force the plaintiff to quit. See id. Whether a plaintiff's working condi-

tions were intolerable is assessed by the objective standard of whether

a reasonable person in the plaintiff's position would have felt com-

pelled to resign. See Bristow, 770 F.2d at 1255. We have previously

_________________________________________________________________

11 Johnson also complains that the district court erred in refusing to

submit a more favorable mixed-motive instruction to the jury with

respect to her claim alleging discriminatory failure to be selected to

attend the Police Academy. The record shows that the district court

issued the very instructions Johnson tendered with respect to her burden

of proof on this claim. Because Johnson invited any error committed by

the district court in failing to give a mixed-motive instruction, she is pro-

hibited by the invited error doctrine from obtaining any relief on appeal

for any such error. See United States v. Jackson, 124 F.3d 607, 617 (4th

Cir. 1997) ("The invited error doctrine recognizes that a court cannot be

asked by counsel to take a step in a case and later be convicted of error,

because it has complied with such a request.") (internal quotation marks

omitted).

24

held that "[d]issatisfaction with work assignments, a feeling of being

unfairly criticized, or difficult or unpleasant working conditions are

not so intolerable as to compel a reasonable person to resign." Carter

v. Ball, 33 F.3d 450, 459 (4th Cir. 1994). Moreover, the denial of a

single promotional opportunity is insufficient to create an intolerable

working environment. See Breeding v. Arthur J. Gallagher & Co.,

164 F.3d 1151, 1160 (8th Cir. 1999). If Johnson met her burden of

showing that she was constructively discharged, she then bore the

burden of showing the complained of conduct was motivated by dis-

criminatory animus toward women. See Vitug v. Multistate Tax

Com'n, 88 F.3d 506, 517 (7th Cir. 1996).

In attempting to prove that her working conditions were intolera-

ble, Johnson relied on her own testimony that Chief Wells touched

her on the arm, called her at home on numerous occasions, talked to

her in his office with the door shut, told her that she looked good in

her uniform, and told her that she would be promoted if she did the

right thing. She also relied on the fact that during her fourteen month

tenure at VUU, she was neither selected to attend the Police Academy

nor promoted. In contrast, VUU offered evidence that Johnson parted

from VUU, including Chief Wells' supervision, upon extremely

pleasant terms. For example, in her letter of resignation addressed to

Chief Wells, she stated that she "enjoyed very much working under

[his] direction . . . ." (J.A. 370). The jury considered all of this evi-

dence and found in favor of VUU.

Considering the elements of proof of a constructive discharge

claim and the mix of relevant evidence before the jury, we can say

with fair assurance that throwing the alleged erroneously excluded

evidence into the mix would not have changed the outcome. John-

son's evidence at trial fell far short of the evidence needed for a rea-

sonable jury to find that her working conditions at VUU were

intolerable. Certainly no single incident stands out in the record as

sufficiently insufferable in and of itself to compel a reasonable per-

son's departure; indeed, Johnson herself relies on the cumulative

effect of the acts she has cited. But even the totality of these acts do

not support an inference that Johnson was forced to resign. The bulk

of the actions on the part of Chief Wells, for example, calling Johnson

at home, are moderately annoying at best, and would not force a rea-

sonable person to resign. See Carter, 33 F.3d at 459. Even when these

25

actions are coupled with her failure to be sent to the Police Academy

and her failure to be promoted during her fourteen month tenure with

the Department, our conclusion does not change. Critically, such fail-

ure to be sent to the Police Academy and to be promoted during such

a brief tenure of employment is hardly unreasonable. See Breeding,

164 F.3d at 1160. Finally, beyond all of this, Johnson certainly did not

part from VUU under circumstances which a reasonable jury could

find that she was forced to resign. Her resignation letter belies any

contention to the contrary.

The "good pussy" comment coupled with the Angela Sheridan evi-

dence add absolutely nothing to Johnson's offer of proof with respect

to her burden of proving that her working conditions were so intolera-

ble that a reasonable person would have felt forced to resign. Indeed,

the record is void of evidence that Johnson even had knowledge while

employed by VUU of Chief Wells' "good pussy" comment or of his

alleged conduct directed toward Angela Sheridan.

In summary, we hold that assuming arguendo the district court

abused its discretion in excluding evidence that Chief Wells once

stated that he bet a certain unidentified woman had"good pussy,"

(J.A. 187), and in excluding evidence that Chief Wells called a female

VUU employee named Angela Sheridan at home on several occa-

sions, touched her, and told her that he had looked down her blouse

once when standing behind her, the errors were at best harmless.12

_________________________________________________________________

12 Johnson also contends that the district court erred in excluding evi-

dence that Chief Wells solicited a prostitute in 1995, one year after John-

son left VUU. We disagree. The district court did not abuse its discretion

in excluding this evidence, because the evidence was irrelevant to any

issue in the case. See Fed. R. Evid. 401.

Furthermore, Johnson's contention that we should grant her a new trial

on her claim alleging discriminatory delay in receiving a firearm is com-

pletely without merit and warrants only brief discussion. First, Johnson

conceded during oral argument before the three-judge panel that the

alleged delay in her receiving a firearm did not give rise to a separate

cognizable claim under Title VII. Second, the uncontradicted evidence at

trial showed that VUU had nothing to do with the delay Johnson experi-

enced in receiving her firearm.

26

IV.

Next, we consider Johnson's appeal of the district court's dismissal

of her sexual harassment claim. The district court dismissed John-

son's sexual harassment claim because she had not exhausted her

administrative remedies. We review the district court's dismissal de

novo. See Edwards v. City of Goldsboro, No. 97-2609, 1999 WL

305001, *7 (4th Cir. May 14, 1999).

In order to assert a Title VII claim in federal court, a plaintiff must

have exhausted her administrative remedies with respect to the claim.

"Only those discrimination claims stated in the[administrative]

charge, those reasonably related to the original complaint, and those

developed by reasonable investigation of the original complaint may

be maintained in a subsequent Title VII lawsuit." See Evans, 80 F.3d

at 963. This exhaustion requirement is meant to preserve judicial

economy by barring claims that have not been sufficiently investi-

gated following an EEOC complaint. See McCarthy v. Madigan, 503

U.S. 140, 144-45 (1992).

Johnson's EEOC complaint did not sufficiently allege a claim of

sexual harassment. The relevant portion of the affidavit that Johnson

filed with her EEOC complaint reads as follows:

On several times [Chief Wells] called me at home on thing

[sic] that could wait until the next day. He has touched me

on the arm on several times while talking to me. He stated

he hire [sic] me because he liked me. He has called my Mili-

tary Reserve (Sgt. Dixon) Unit to discuss with my supervi-

sor that he was in the process of promoting. He has called

me in his office for hours at a time, away from job[sic] to

talked [sic] to me.

(J.A. 353). This passage is extremely vague. It never raises even the

inference that these actions were done in a manner that had the intent

or effect of sexually harassing Johnson. In fact, the actions about

which Johnson complains normally occur within the employer-

employee relationship. Employers normally: (1) contact employees at

home; (2) hire people they like; and (3) talk to their employees for

extended time periods when necessary. Furthermore, it is common-

27

place for an individual to touch the arm of someone with whom they

are talking, for example, to emphasize a point. Accordingly, even

construing Johnson's EEOC charge liberally, she did not exhaust her

administrative remedies with respect to her sexual harassment claim.

Therefore, we affirm the district court's dismissal of Johnson's sexual

harassment claim.

V.

Finally, we reject Johnson's contention that the district court's

answer in response to the jury's second question asked during deliber-

ations amounted to reversible error. According to Johnson, the district

court's answer to the jury's second question stressed and highlighted

evidence about which the jury did not inquire (that two woman from

the Department had been selected to attend the Police Academy prior

to Chief Wells' tenure) and minimized the facts that would have accu-

rately answered the question posed.

Because Johnson failed to object to the district court's answer, we

only review Johnson's allegation of error for plain error. See Owens-

Illinois, Inc., 124 F.3d at 630-31. Before we can exercise our discre-

tion to correct an error not raised below in a civil case, at a minimum,

the requirements of United States v. Olano, 507 U.S. 725 (1993),

must be satisfied. See Owens-Illinois, Inc., 124 F.3d at 631. Under

Olano, "a federal appellate court may exercise its discretion to correct

an error not raised below . . . if: (1) there is an error; (2) the error is

plain; (3) the error affects substantial rights; and (4) the court deter-

mines, after examining the particulars of the case, that the error seri-

ously affects the fairness, integrity or public reputation of judicial

proceedings." Owens-Illinois, Inc., 124 F.3d at 630-31.

Johnson has failed to satisfy even the first element of Olano. When

evaluating the adequacy of supplemental jury instructions given in

response to a question asked by the jury during deliberations, "we ask

whether the court's answer was reasonably responsive to the jury's

question and whether the original and supplemental instructions as a

whole allowed the jury to understand the issue presented to it." See

United States v. Stevens, 38 F.3d 167, 170 (5th Cir. 1994). Here, the

jury's second question asked how many women from the Department

28

attended the Police Academy during Chief Wells' tenure. The district

court responded to the jury as follows:

And then on the second question, I'll answer it in two

ways. You want to know how many women on the campus

went to the Police Academy. If your indication from that is

during Wells' tenure, again, there is no evidence of the total-

ity of women, if any, who went during Wells' tenure. And

again, you are stuck with that. The only evidence that I

recall relating to any specific testimony about women going

to the Police Academy was Mr. Miller, who testified specifi-

cally about a Jean Robinson and a Corrinne Thomas, who

were both promoted to Sergeant and both attended the

Police Academy. This would have been prior to the time of

Mr. Wells, Chief Wells.

So that's the best I can do for you. If it is not there, it is

not there and we can't speculate. All right? Thank you.

(J.A. 336). We conclude this answer was reasonably responsive to the

jury's second question. Indeed, the district court correctly reported the

state of the evidence with respect to the jury's inquiry. Furthermore,

contrary to Johnson's contention, it did so without improperly high-

lighting evidence unfavorable to Johnson. Finally, considering the

district court's answer as just quoted and the original instructions as

a whole, we are convinced the jury understood the issues before it.

Accordingly, Johnson has failed to demonstrate the first element of

Olano--i.e., that the district court's answer to the jury's second ques-

tion constituted error. Thus, our plain error analysis is at an end, and

Johnson's challenge to the district court's answer to the jury's second

question asked during deliberations fails.

VI.

For the reasons set forth herein, we affirm the judgments entered

by the district court in favor of VUU in all respects and affirm its dis-

missal of Johnson's sexual harassment claim.

AFFIRMED

29

MURNAGHAN, Circuit Judge, dissenting:

Lynne Taylor and Keisha Johnson, both formerly employed as

police officers at the Virginia Union University ("Virginia Union" or

"University"), commenced separate actions against the University in

which they sought relief under Title VII of the Civil Rights Act of

1964, 42 U.S.C.A. § 2000e, et seq. ("Title VII"). Taylor and Johnson

allege employment discrimination based on sex. Johnson also claims

that she was sexually harassed while working at the University. The

cases were consolidated for trial.

The court dismissed Johnson's sexual harassment claim on sum-

mary judgment, determining that the allegations had not been

included in her original charge filed with the Equal Employment

Opportunity Commission ("EEOC") and were thus procedurally

barred. With respect to Taylor's complaint, the court granted the Uni-

versity's motion under Rule 50(a) of the Federal Rules of Civil Proce-

dure for judgment as a matter of law. Finally, the court submitted

Johnson's Title VII claim to the jury which rendered its verdict for

the University.

Both Plaintiffs now appeal the district court's determination.

Because, contrary to the majority, I believe the court erred in its judg-

ment, I dissent.

I.

I am in substantial agreement with the presentation of the facts as

outlined in the panel decision for the case at bar and refer the reader

to those portions of the decision. Taylor v. Virginia Union University,

No. 97-1667(L), slip op. at 3-6 (4th Cir. February 19, 1999). I reiter-

ate a few pertinent points below.

A. Lynne Taylor

Taylor began employment as a campus police officer at the Univer-

sity on August 17, 1992. During the twenty-seven months that she

was employed by the University, Taylor was not promoted to Corpo-

ral or sent to the Police Academy of the Virginia Commonwealth

30

University ("Police Academy" or "Academy") for training. For pro-

motion to Corporal, the University required that the officer under con-

sideration rate satisfactory or above in all areas of her most recent

performance evaluation. Taylor scored below satisfactory in the

"Communications" category of her performance evaluation. Such a

rating presumably indicated that Taylor was unqualified for promo-

tion, yet Taylor, at least in part because of her good performance, was

appointed acting shift supervisor on a regular basis. Taylor asserts

that she and Johnson were the only two persons to act as shift supervi-

sor on a regular basis without the rank of Corporal or higher.

It is undisputed that Police Academy attendance, while not deci-

sive, positively impacted promotion opportunities. With that in mind,

according to a former police officer who testified at trial, Chief Wells

stated that "he was never going to send a female to the Academy." Of

the six male officers who were selected for the Academy while Taylor

was employed by the police department, only three of them were

hired before Taylor; three were selected for the Academy within

twelve months of their date of hire; and one was selected within four

months of his date of hire. While other officers who were senior to

Taylor were never sent to the Academy, the reason for their non-

selection is unclear. At least one such officer testified that he could

not have gone to the Academy even if selected, because he did not

have a high school diploma, as is required by the Academy.

The record reflects disputed testimony as to whether Chief of

Police Eugene Wells alone could determine who would attend the

Academy. One University Vice-President testified that the Chief of

Police had to concur with his supervisor before rendering a decision.

In response to an interrogatory, however, the University stated that

"the Chief of Police had sole discretion as to which individuals were

selected to attend the Academy."

In October 1994, two officers discovered Taylor during her off-

duty hours at a fraternity party in an all-male dormitory. She was sub-

sequently discharged by the University for fraternizing with male stu-

dents, in apparent violation of University policy.

B. Keisha Johnson

Johnson was hired by the University in July 1993 as a campus

police officer. Johnson rated "satisfactory" or "above average" in all

31

areas of her performance evaluation and, like Taylor, was often

appointed acting shift supervisor. Also like Taylor, Johnson was

never selected for Police Academy attendance.

On May 5, 1994, Johnson wrote to Wells, indicating that she

desired to participate in the promotion process and that she was

applying for the position of Lieutenant. She participated in the promo-

tion process, took a written and oral examination, and competed with

several male candidates for the position. Quinton Terry, a male candi-

date whose examination scores exceeded Johnson's scores by three

points, was selected. Terry, who commenced employment at the Uni-

versity on the same date as Johnson, was attending the Police Acad-

emy during the promotion process.

On September 5, 1994, Johnson resigned from the University.

C. Procedural History

Taylor and Johnson commenced separate actions against the Uni-

versity, alleging sex discrimination in violation of Title VII.1 Taylor

alleges that she was denied the opportunity for training at the Police

Academy, while male officers with less experience and/or seniority

were chosen to attend the Academy; that she was denied promotional

opportunities in favor of similarly situated male officers; and that she

was wrongfully discharged for violating a University policy against

fraternizing with students, whereas male officers violated the policy

with impunity. Johnson similarly claims that she was wrongfully

denied the opportunity to attend the Police Academy and, as a result,

was improperly denied promotion. In addition, both Plaintiffs allege

disparate treatment by the University in the issuance of their firearm.

_________________________________________________________________

1 Under Title VII, it is an unlawful employment practice for an

employer "to fail or refuse to hire or to discharge any individual, or oth-

erwise to discriminate against any individual with respect to his compen-

sation, terms, conditions, or privileges of employment" or "to limit,

segregate, or classify his employees or applicants for employment in any

way which would deprive or tend to deprive any individual of employ-

ment opportunities or otherwise adversely affect his status as an

employee, because of such individual's ... sex ...." 42 U.S.C.A. §§ 2000e-

2a(1), (2).

32

Johnson also claims that she was sexually harassed while working at

the University.

The University filed motions for summary judgment in both cases.

Concluding that Johnson's sexual harassment allegations had not been

included in her charge filed with the EEOC and were not reasonably

related to the allegations contained in the EEOC complaint, the court

granted the University's summary judgment motion with respect to

Johnson's sexual harassment claim only.

In addition, the University filed a motion in limine, requesting that

the court preclude Plaintiffs from offering evidence that Chief Wells

had been arrested in 1995 for solicitation of a prostitute. The court

granted the University's motion, determining that the admission of

evidence of Wells' solicitation would result in unfair prejudice to the

University.

At the end of Plaintiffs' case, the University moved under Rule

50(a) of the Federal Rules of Civil Procedure for judgment as a matter

of law with respect to Taylor's complaint. The court denied the

motion, and the University called its witnesses. At the conclusion of

Defendant's case, the University renewed its Rule 50(a) motion

against Taylor's claims, which the court then granted. Taylor now

appeals that judgment.

The court submitted Johnson's case to the jury which rendered its

verdict for the University. Johnson moved to set aside the jury's ver-

dict or, in the alternative, for a new trial, which the court denied. She

appeals from the judgment entered on the jury's verdict.

II.

Taylor argues that the district court erred by granting Virginia

Union's Rule 50(a) motion for judgment as a matter of law against

her claims. We review a district court's grant of judgment as a matter

of law de novo. See Brown v. CSX Transportation, Inc., 18 F.3d 245,

248 (4th Cir. 1994). A district court may grant a Rule 50(a) motion

if "there is no legally sufficient evidentiary basis" for a reasonable

jury to find for the non-moving party. Fed. R. Civ. P. 50(a)(1). Judg-

33

ment as a matter of law is only appropriate if, viewing the evidence

in the light most favorable to the non-moving party, the court con-

cludes that "`a reasonable trier of fact could draw only one conclusion

from the evidence.'" Brown, 18 F.3d at 248.

A. Direct Evidence of Sex Discrimination

If a plaintiff can present sufficiently direct evidence of discrimina-

tion, she qualifies for the more advantageous standard of liability

applicable in mixed-motive cases. See Fuller v. Phipps, 67 F.3d 1137,

1141 (4th Cir. 1995). The contours of the mixed-motive inquiry were

originally outlined in Price Waterhouse v. Hopkins, 490 U.S. 228

(1989). In Price Waterhouse, the Supreme Court determined that if a

plaintiff showed by direct evidence that gender played a motivating

part in an adverse employment decision, she became entitled to a shift

in the burden of persuasion. 490 U.S. at 250. Upon such a showing,

the defendant-employer could then avoid liability only by demonstrat-

ing by a preponderance of the evidence that it would have reached the

same decision absent any discrimination. Id. at 258.

The Civil Rights Act of 1991 modified the Supreme Court's hold-

ing in Price Waterhouse. 42 U.S.C.A. § 2000e-2(m). Under the Act,

an employer can no longer avoid liability simply by proving that it

would have made the same decision for nondiscriminatory reasons.

Instead, liability attaches whenever sex "was a motivating factor for

any employment practice, even though other factors also motivated

the practice." 42 U.S.C.A. § 2000e-2(m); see also Fuller, 67 F.3d at

1142. Proof by the employer that it would have reached the same

determination in the absence of discriminatory animus only limits the

remedies available to the plaintiff.2 See Fuller, 67 F.3d at 1142.

_________________________________________________________________

2 Under 42 U.S.C.A. § 2000e-5(g)(2)(B), if an employer demonstrates

that it "would have taken the same action in the absence of the impermis-

sible motivating factor, the court -- (i) may grant declaratory relief,

injunctive relief (except as provided in clause (ii)), and attorney's fees

and costs demonstrated to be directly attributable only to the pursuit of

a claim under section 2000e-2(m) of this title; and (ii) shall not award

damages or issue an order requiring any admission, reinstatement, hiring,

promotion, or payment, described in subparagraph (A)."

34

In order to recover under the mixed-motive inquiry, the plaintiff

must present "`direct evidence that decisionmakers placed a substan-

tial negative reliance on an illegitimate criterion.'" Id. Such a showing

requires "evidence of conduct or statements that both reflect directly

the alleged discriminatory attitude and bear directly on the contested

employment decision." Id.

With this standard in mind, Taylor should receive the benefit of the

mixed-motive inquiry with respect to Virginia Union's failure to

afford her an opportunity to attend the Police Academy. Chief Wells

reportedly told Officer Terry that "he was never going to send a

female to the Academy." Despite the majority's assertion to the con-

trary, Wells' statement directly relates to his refusal to send Taylor to

the Academy. The command that the evidence in question "bear

directly on the contested employment decision" merely requires that

there be some direct link between the challenged decision and the

alleged discriminatory attitude; it does not bar the use of inferential

deductions altogether. It is difficult to imagine more direct evidence

than an unequivocal statement by Chief Wells that he would never

send a woman to the Police Academy. Sure enough, consistent with

his promise, Wells did not select Taylor to attend the Academy; nor

did he select any woman to attend the Academy during his tenure as

Chief of Police. Wells' statement both reflects his alleged discrimina-

tory attitude, as the majority acknowledges, and bears directly on his

decision not to send Taylor to the Police Academy. Such direct evi-

dence of discriminatory intent justifies application of the mixed-

motive analysis.

The University first argues that Appellant is not entitled to the

mixed-motive analysis because Wells alone could not make decisions

regarding Academy attendance. In response to an interrogatory, how-

ever, the University stated: "Prior to March, 1995, the Chief of Police

had sole discretion as to which individuals were selected to attend the

Academy." In testimony, Walter Miller, Vice-president for University

Services, contradicted the interrogatory response, insisting that "[t]he

Chief of Police has never had sole discretion as to who attended the

Police Academy. That was also put before the supervisor of the Chief

of Police and they both concurred unanimously or together." When

considering a Rule 50(a) motion, the court must view the evidence in

a light most favorable to the non-movant. Here, viewing the evidence

35

in a light most favorable to Taylor, a jury could reasonably conclude

that Chief Wells was primarily, if not solely, responsible for selecting

officers to attend the Academy. Since such a jury conclusion is plausi-

ble and would not be an unreasonable interpretation of the record evi-

dence, it was improper for the district court to grant the Rule 50(a)

motion for judgment as a matter of law.

Even assuming the veracity of the University's claim, its reliance

on the fact that Wells made decisions regarding Academy attendance

in concert with other officials is misplaced. One need look no further

than Price Waterhouse, where the employer's decision to deny the

plaintiff partnership was made by a policy board, for evidence that

cooperative decision-making does not immunize an employer from

liability. The board in Price Waterhouse received a recommendation

regarding the plaintiff's promotion to partner from a committee that

had, in turn, received comments from other partners in the firm. 490

U.S. at 232-233. The fact that the employment decision was made in

concert with others who may not have shared the discriminatory moti-

vations did not matter. See id. at 256, 257. Similarly, the fact that

Chief Wells alone may not have made Academy decisions does not

necessarily negate the substantiality of the University's reliance on an

illegitimate criterion, i.e., gender. Where, as here, Wells' recommen-

dation contributed significantly to the ultimate determination regard-

ing Academy attendance and the University does not disclaim

reliance on Wells' recommendation, it is inconsequential that he did

not make the decision alone.

Second, the University argues that there is a legitimate, non-

discriminatory reason that explains why Taylor had not yet been

selected for the Academy: namely, Academy openings were few, and

male officers more senior than Taylor had not yet been selected for

the Academy. Under the modification to Price Waterhouse made by

the Civil Rights Act of 1991, it does not matter that other legitimate

reasons exist for not sending Taylor to the Academy. An employer

cannot avoid liability by proving that it would have made the same

decision for nondiscriminatory reasons. 42 U.S.C.A.§ 2000e-2(m);

see also Fuller, 67 F.3d at 1142. Therefore, the University's question-

able explanation that Taylor had not amassed enough seniority3 does

not absolve the institution of liability.

_________________________________________________________________

3 As I explain below, the University's suggestion that Taylor simply did

not have sufficiently senior status to attend the Academy is not supported

by the facts.

36

Finally, Defendant hints that an isolated comment like the one

made by Chief Wells is excluded from coverage under the mixed-

motive analysis. To the contrary, there is no such requirement that a

pattern of such discriminatory comments must be demonstrated

before a claim is actionable. In fact, the Supreme Court in Price

Waterhouse specifically refrained from deciding which specific facts

would or would not establish a plaintiff's case. 490 U.S. at 251-252.

Under the circumstances, Taylor is entitled to application of the

mixed-motive analysis.4 Examining the evidence in a light most

favorable to Taylor, a reasonable jury could find in her favor. The dis-

trict court's grant of the University's Rule 50(a) motion was, there-

fore, improper.

B. Circumstantial Evidence of Sex Discrimination

Under McDonnell Douglas, a plaintiff can establish a presumption

_________________________________________________________________

4 Even if we were to find the Price Waterhouse mixed-motive inquiry

to be inapplicable to the instant case, I would reach the same result under

the more rigorous test set out by the Supreme Court in McDonnell Doug-

las Corp. v. Green, 411 U.S. 792 (1973). As the majority explains, to

establish a prima facie case of disparate treatment under the McDonnell

Douglas scheme, Taylor must demonstrate that (1) she is a member of

a protected class; (2) she was qualified to attend the Police Academy; (3)

she was not selected to attend the Police Academy; and (4) other officers

who are not members of the protected class were selected to attend the

Police Academy under similar circumstances. See Hughes v. Bedsole, 48

F.3d 1376, 1383 (4th Cir. 1995). The majority argues that Taylor cannot

satisfy the fourth element of the prima facie test, since "[t]he evidence

is overwhelming and uncontradicted that Taylor was not as qualified as

the male officers" who were selected. I do not share the majority's enthu-

siasm regarding the strength of the evidence. Taylor completed two years

of college at the University of Oklahoma and ultimately received a Bach-

elor of Arts degree in journalism from Norfolk State University. She then

went on active duty in the military and, after a tour in Germany, com-

pleted the U.S. Army military police school at Fort Meade. The record

evidence indicates that Taylor was, at least, as qualified as her male

counterparts. Given Taylor's credentials, the majority's suggestion that

the evidence of Taylor's lack of qualification is"overwhelming and

uncontradicted" is confusing, at best.

37

of unlawful discrimination through circumstantial evidence by dem-

onstrating a prima facie case of discrimination. 411 U.S. at 802. If the

plaintiff establishes a prima facie case, the court must rule in favor

of the plaintiff unless the defendant-employer provides a legitimate,

nondiscriminatory reason for the adverse employment action. See id.

at 802-805; see also St. Mary's Honor Center v. Hicks, 509 U.S. 502,

507 (1993). If the employer meets its burden, the presumption of dis-

crimination dissolves, and the burden shifts back to the plaintiff to

show that the proffered reason is a pretext to mask unlawful discrimi-

nation. See McDonnell Douglas, 411 U.S. at 802-805.

1. Failure to Promote

Taylor alleges that she was denied promotion to the rank of Corpo-

ral because of her sex. Taylor insists that she was required to assume

the duties of the position, but without the rank or usual pay increase.

To establish a prima facie case for failure to promote, the plaintiff

must show that: (1) she is a member of a protected group; (2) she

sought the position in question; (3) she was qualified; and (4) she was

rejected under circumstances giving rise to an inference of unlawful

discrimination. See Carter v. Ball, 33 F.3d 450, 458 (4th Cir. 1994);

McNairn v. Sullivan, 929 F.2d 974, 977 (4th Cir. 1991).

Elements (1) and (2) of the prima facie test are undisputed. Ele-

ments (3) and (4), however, are the subject of disagreement. With

respect to the third element, Virginia Union argues that Taylor was

not qualified for promotion to the rank of Corporal because, accord-

ing to the police department's promotion policy, no officer can be

promoted if she does not rate satisfactory or above in all areas of her

most recent performance evaluation. Taylor's performance evaluation

in April 1993 indicated that she received an unsatisfactory rating in

the area of "Communications," so, the University asserts, she was not

eligible for consideration for promotion to Corporal.

Taylor, on the other hand, argues that the fact that she was required

to perform many of the functions and responsibilities of Corporal and

to supervise male officers who were arguably "more qualified" than

her evidences that she was, in fact, qualified for the promotion. Taylor

suggests that Chief Wells gave her an "unsatisfactory" rating "because

of his animus towards women." The evidence, particularly when con-

38

sidering the improperly excluded evidence of Wells' derogatory com-

ments about women and prior harassment of a female employee (see

below), tends to suggest that Chief Wells may have had a discrimina-

tory motive for giving her a negative evaluation. Moreover, the con-

tinuous appointment of Taylor as acting shift supervisor suggests that

Chief Wells was satisfied with Taylor's performance, notwithstanding

his evaluation to the contrary. Indeed, most male officers who were

consistently appointed as acting shift supervisor were promoted to

Corporal. Viewing the evidence in the light most favorable to Taylor,

a reasonable jury might conclude that Taylor was qualified despite her

"unsatisfactory" rating given the increased responsibility assigned to

her.

To satisfy the fourth element of the prima facie test, Taylor must

show that she was rejected for promotion under circumstances that

raise an inference of unlawful sex discrimination. Toward that end,

Taylor argues that she was denied opportunities for training by Chief

Wells' unwillingness to select a female for the Police Academy,5

which limited any possible promotion opportunities. In addition, Cor-

poral Tommy Harrell testified that Chief Wells called Taylor "a stu-

pid bitch" and asked him if he was sleeping with Taylor. While the

evidence does not prove discriminatory conduct with respect to the

promotion decision, it is strongly suggestive of discriminatory intent.

See, e.g., Carter v. Chrysler Corp., 173 F.3d 693, 700 (8th Cir. 1999)

(noting that "gender-based insults, including the term `bitch,' may

give rise to an inference of discrimination based on sex"); Walsdorf

v. Board of Commissioners for the East Jefferson Levee District, 857

F.2d 1047, 1052 (5th Cir. 1988) (granting Title VII relief to female

employee based upon evidence which included statement by supervi-

sor that "ain't no bitch gonna get this job"). Keeping in mind that the

test to establish a prima facie case is not intended to be onerous, see

Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253

(1981), the facts as presented by Taylor sufficiently demonstrate that

she was denied promotion under circumstances giving rise to an infer-

ence of unlawful discrimination.

_________________________________________________________________

5 As stated above, Wells proclaimed to another officer that he would

never send a female officer to the Academy.

39

The majority maintains that because Chief Wells played a role in

hiring Taylor, he could not have acted discriminatorily when consid-

ering her for promotion. Under the cases cited by the majority, when

the plaintiff is hired and fired by the same individual and the termina-

tion of employment occurs within a relatively short time span follow-

ing the hiring, "a strong inference exists that discrimination was not

a determining factor for the adverse action taken by the employer."

Proud v. Stone, 945 F.2d 796, 797 (4th Cir. 1991) (age discrimination

case); see also Evans v. Technologies Applications & Serv. Co., 80

F.3d 954, 959 (4th Cir. 1996) (extending "same actor inference" to

Title VII gender discrimination). The majority insists that the "same

actor inference" applies by analogy to the failure to promote at issue

here. First, notwithstanding this Court's suggestions in earlier cases,

I am not convinced that the "same actor inference," which is typically

applied in the termination context, is equally powerful when applied

to a charge of discrimination with respect to a decision not to promote

an employee. But see Evans, 80 F.3d at 959 (noting, in panel decision,

that because the person accused of discrimination was also the person

who hired plaintiff, "there is a `powerful inference' that the failure to

promote her was not motivated by discriminatory animus"). The

thought of an employer hiring an individual in a protected class and,

for discriminatory reasons, keeping that person in an entry-level sta-

tion, i.e., hindering the employee from advancing to the ranks of man-

agement or into a higher paying position, is not nearly as incredulous

as the majority urges. It does not require a stretch of the imagination

to discern such a possibility. Consequently, the fact that Wells hired

Taylor does not necessarily mean that he did not act with discrimina-

tion in evaluating her or in considering her for promotion.

Second, even assuming the existence of a "strong inference" that

discrimination did not motivate Wells, Taylor "still has the opportu-

nity to present countervailing evidence of pretext." Proud, 945 F.2d

at 798. The inference is rebutted when the plaintiff presents suffi-

ciently compelling evidence of discrimination. See id. For example,

the inference does not apply when plaintiff presents evidence of overt

discrimination in the form of derogatory comments about women. See

Madel v. FCI Marketing, Inc., 116 F.3d 1247, 1253 (8th Cir. 1997)

(declining to apply inference where plaintiff presented evidence of

overt discrimination in form of derogatory comments about age). Evi-

dence of such comments by Wells and his outright refusal to send a

40

woman to the Academy weaken the presumption of nondiscrimina-

tion.

Since Taylor demonstrated that she was denied promotion under

circumstances giving rise to an inference of unlawful discrimination,

Virginia Union must provide a legitimate, nondiscriminatory reason

for its action. By way of explanation, the University submits that Tay-

lor was indeed unqualified, as evidenced by her evaluation. It further

maintains that the number of available Police Academy positions is

limited to two officers each year. Many male officers with more

seniority than Taylor, the University explains, also were denied an

opportunity to attend the Academy, while other officers were required

to wait a period of three years. The record suggests otherwise, how-

ever. During Taylor's employment with the police department

(August 17, 1992 through November 7, 1994), six male officers were

selected to attend the Academy -- thus, contradicting the University's

declaration that only two officers per year were selected for atten-

dance. Only three of the six officers were hired before Taylor; three

were selected for the Academy within twelve months of their date of

hire; one officer was selected within four months of his hire date. As

to the officers senior to Taylor who were never sent to the Academy,

the reason for their non-selection is unclear. At least one of these offi-

cers testified that he could not have gone to the Academy even if

selected because he did not have a high school diploma, which the

Academy requires for participation.

On these facts, a trier of fact could reasonably conclude that Vir-

ginia Union's explanation is a mere pretext for unlawful discrimina-

tion and that Taylor was, in fact, denied training opportunities and

promotion because of her sex. It was, therefore, inappropriate for the

district court to grant the University's motion for judgment as a mat-

ter of law.

2. Discriminatory Disciplinary Measures

In October 1994, Taylor was discovered in attendance at an on-

campus fraternity party by two other officers. The University dis-

charged Taylor in November 1994 for allegedly violating Virginia

Union's policy that prohibits fraternization between campus police

41

officers and students. Taylor argues that she was wrongfully dis-

charged based upon a disparate application of the policy.

To establish a prima facie case of sex discrimination in the

enforcement of employee disciplinary measures, Plaintiff must show

that (1) she is a member of the class protected by Title VII; (2) the

prohibited conduct in which she engaged was comparable in serious-

ness to misconduct of employees outside the protected class; and (3)

the disciplinary measures enforced against her were more severe than

those enforced against those other employees. See Cook v. CSX

Transportation Corp., 988 F.2d 507, 511 (4th Cir. 1993); Moore v.

City of Charlotte, 754 F.2d 1100, 1105-1106 (4th Cir.), cert. denied,

472 U.S. 1021 (1985). Taylor obviously satisfies prong (1) of the test,

but prongs (2) and (3) are in dispute.

Taylor maintains that male officers fraternized with female stu-

dents, sometimes even engaging in sexual relations, but were not dis-

ciplined for their misconduct. Taylor's contention that male officers

engaged in more egregious violations of the policy in question is sup-

ported by Corporal Harrell's testimony that male officers had contact

with female students and were not disciplined. Contrary to the majori-

ty's assertions, the testimonies of both Taylor and Harrell were suffi-

ciently certain in their content that a reasonable jury could find that

Taylor established a prima facie case. Harrell's testimony was in

direct response to a query from Taylor's counsel regarding male offi-

cers' fraternization with female students. Harrell testified unmistak-

ably that such contact between male officers and female students had,

in fact, occurred and that the male officers were not disciplined. I,

perhaps, cannot conclude from Harrell's testimony that these officers

engaged in sexual relations with students, but I do find in his testi-

mony indisputable support for Taylor's contention that male officers

engaged in misconduct for which there was no punishment. How that

testimony is weighed is a jury decision that should not be resolved on

a motion for judgment as a matter of law.

Viewing the evidence in a light most favorable to Taylor, her

alleged violation of the non-fraternization policy was, at minimum,

comparable in seriousness to misconduct by male officers. Yet, the

disciplinary action enforced against her was more severe. On these

42

facts, Taylor's claim should have survived a Rule 50(a) motion. The

district court erred in deciding otherwise.

III.

Johnson argues that the district court erred in refusing to admit cer-

tain evidence. The trial judge excluded evidence of Wells' arrest for

solicitation of a prostitute on the ground that it would be unduly prej-

udicial to Defendant. In chambers, the judge also declined to admit

evidence of Wells' alleged harassment of another female employee.

Finally, during the trial, the judge sustained the University's objection

to questions from Johnson's counsel regarding demeaning statements

Chief Wells allegedly made regarding other female employees.6 We

review the trial court's decision to exclude evidence for abuse of dis-

cretion. See Persinger v. Norfolk & Western Ry. Co., 920 F.2d 1185,

1187 (4th Cir. 1990). Where an evidentiary ruling affects the substan-

tial rights of the parties, appellate intervention may be necessary. See

Mullen v. Princess Anne Volunteer Fire Co., Inc., 853 F.2d 1130,

1131, 1135 (4th Cir. 1988).

I find no error in the trial judge's decision to exclude evidence of

Wells' arrest for soliciting a prostitute. Given the fact that the arrest

occurred a year after Johnson's resignation, its relevance is suspect.

Since the arrest does not, in any way, make it more or less likely that

Wells was influenced by discriminatory motivations in the workplace,

its exclusion was appropriate.

However, the judge's failure to admit evidence regarding Wells'

derogatory comments about women is erroneous. In order to demon-

strate employment discrimination on the basis of sex, Johnson must

show that illegitimate gender considerations were a motivating factor

in the employment decision. Wells' use of degrading language in ref-

erence to women is relevant in determining whether sex stereotyping

supported the decision. See id. at 1133 (determining that "use of

racially offensive language by the decision-maker is relevant as to

whether racial animus was behind the [employment] decision, and

was proper evidence for the jury to consider"). His statements reveal

_________________________________________________________________

6 The evidence suggests that Chief Wells often referred to women in

derogatory terms, once stating that a certain woman"ha[d] good pussy."

43

his state of mind, even if they do not relate to the specific employ-

ment decision at issue, and are admissible on that basis. See id. at

1134; see also Fed. R. Evid. 404(b) (noting that evidence of prior acts

which would otherwise be inadmissible may be introduced to show

motive, intent, or knowledge).

The University argues that the evidence was properly excluded

since Federal Rule of Evidence 403 allows the district court to

exclude evidence "if its probative value is substantially outweighed

by the danger of unfair prejudice." Fed. R. Evid. 403. I disagree.

Johnson attempts to prove Chief Wells' discriminatory intent, so the

probative value of statements revealing Wells' stereotypical view of

women significantly outweighs any risk of prejudice against the Uni-

versity. See Mullen, 853 F.2d at 1133 ("Where a plaintiff seeks to

prove discriminatory intent, the probative value of statements reveal-

ing the racial attitudes of the decision-maker is great. This is so

because of the inherent difficulty of proving state of mind."). Indeed,

the Fourth Circuit has correctly noted that "Rule 403 simply erects no

per se barrier to the introduction of customary mannerisms of speech

that may shed light on the motives of a contested decision. Such evi-

dence may be the only way in which discriminatory attitudes are

revealed ...." Id. at 1134. Here, since the evidence in question is cen-

tral to a key element of Johnson's case, we can only conclude that the

probative value of the evidence outweighs any danger of unfair preju-

dice.

Similarly, evidence that Wells sexually harassed another female

employee7 is also relevant to a determination of discriminatory intent.

Contrary to the University's assertions, it does not matter that sexual

harassment was not an issue before the court. Evidence of prior sexual

harassment, although not the subject of a distinct claim, may consti-

tute relevant background evidence in a proceeding in which sex dis-

crimination is at issue. See Evans, 80 F.3d at 963 (noting that while

untimely filed "allegations [of sexual harassment] cannot stand as

separate charges of discrimination for which [the employer] may be

_________________________________________________________________

7 The evidence indicates that Wells had frequently called a former

female employee at home, touched her, and told her that he had looked

down her blouse once when standing behind her -- conduct strikingly

similar to that charged by Johnson.

44

liable, they might be admissible as evidence at trial to support [plain-

tiff's] properly asserted sex discrimination claim"). Consequently, it

was improper for the trial judge to exclude outright such evidence.

I am persuaded that the exclusion of Wells' derogatory statements

and prior harassment of a female employee "`affect[ed] the substantial

rights of the parties.'" Mullen, 853 F.2d at 1135. Admission of the

evidence may have yielded a different result, since the jury had before

it very limited corroborating evidence from which it could gauge

Wells' motivation in making certain employment decisions and the

working conditions that led to Johnson's departure. I, therefore, can-

not say that the error was harmless. Reversal of the district court's

evidentiary decision is appropriate, and a new trial is warranted.8

IV.

Finally, Johnson asserts that she raised the issue of sexual harass-

ment in her EEOC Charge of Discrimination, so the district court's

dismissal of her claim for failure to exhaust administrative remedies

was erroneous. A review of the record reveals that Johnson did not

mention her claim of sexual harassment in her initial administrative

charge, but she did make the following statement in her affidavit filed

in support of her charge:

On several times [Chief Wells] called me at home on thing

that could wait until the next day. He has touched me on the

arm on several times while talking to me. He stated he hire

[sic] me because he liked me .... He has called me in his

office for hours at a time, away from job to talked[sic] to

me.

The district court found that "the affidavit accompanying the EEOC

complaint is not sufficient to put the EEOC or Defendant on notice

regarding Ms. Johnson's sexual harassment claims. Her sexual harass-

ment allegations in her Complaint are not reasonably related to her

allegations in the EEOC Complaint." I disagree.

_________________________________________________________________

8 I need not address Johnson's contention that the district court's

answers to certain jury questions constituted reversible error, since I

already have suggested that we remand the case for a new trial.

45

The allegations contained in the administrative charge of discrimi-

nation dictate the scope of any subsequent judicial complaint. See

Evans, 80 F.3d at 962-963. "Only those discrimination claims stated

in the initial charge, those reasonably related to the original com-

plaint, and those developed by reasonable investigation of the original

complaint may be maintained in a subsequent Title VII lawsuit." Id.

at 963. Any "reasonable investigation" of an EEOC complaint would

surely include an investigation of facts alleged in an affidavit filed in

support of the complaint. It is, therefore, appropriate to consider John-

son's statements in her sworn affidavit. See Emmons v. Rose's Stores,

Inc., 5 F.Supp.2d 358, 363 (E.D.N.C. 1997) (looking to both EEOC

Charge and affidavit to determine whether sexual harassment claim

filed with EEOC), aff'd, 141 F.3d 1158 (4th Cir. 1998); see also

Gipson v. KAS Snacktime Co., 83 F.3d 225, 229 (8th Cir. 1996) (con-

sidering both EEOC Charge and supporting affidavit to determine

whether racial harassment claim sufficiently stated); Cheek v. Western

and Southern Life Ins. Co., 31 F.3d 497, 502 (7th Cir. 1994) (deter-

mining that in assessing scope of EEOC Charge, court may consider

statements in sworn affidavit); Clark v. Kraft Foods, Inc., 18 F.3d

1278, 1280 (5th Cir. 1994) (considering affidavit in determining

whether EEOC reasonably could be expected to investigate disparate

treatment claim).

Construing Johnson's EEOC Charge and affidavit "with utmost lib-

erality," Alvarado v. Board of Trustees of Montgomery Community

College, 848 F.2d 457, 460 (4th Cir. 1988), we believe that Johnson

alleges conduct sufficient to state a claim for sexual harassment. The

EEOC defines sexual harassment as "[u]nwelcome sexual advances,

requests for sexual favors, and other verbal or physical conduct of a

sexual nature ... when ... such conduct has the purpose or effect of

unreasonably interfering with an individual's work performance or

creating an intimidating, hostile, or offensive working environment."

29 C.F.R. § 1604.11(a) (1998). When construed liberally, the allega-

tions that Wells told Johnson that he liked her, touched her, sum-

moned her into his office for hours at a time, and called her at home

may be considered to be of a sexual nature. Title VII does not require

that lay complainants outline their charges with any greater precision.

Alvarado, 848 F.2d at 460 ("`EEOC charges must be construed with

utmost liberality since they are made by those unschooled in the tech-

nicalities of formal pleading.'"). I, therefore, find that the district

46

court erred in dismissing Johnson's claim for failure to exhaust

administrative remedies.

V.

For the reasons stated above, I conclude that the district court

granted the University's Rule 50(a) motion for judgment as a matter

of law against Taylor's claims, excluded certain relevant evidence

during Johnson's trial, and dismissed Johnson's sexual harassment

claim in error. On these grounds, I believe the district court decision

should be vacated.

Judges Michael, Motz and King join in this dissent.

DIANA GRIBBON MOTZ, dissenting:

I join Judge Murnaghan's compelling dissent. It persuasively dem-

onstrates why the judgment of the district court should be reversed.

I write separately to address a single point. Although the subject is

distasteful, I feel compelled to voice my strong objection to an argu-

ment vigorously pressed by VUU.

The evidence of Chief Wells' animus toward women went unrebut-

ted at trial, but the district court excluded what I believe was the most

powerful evidence of this animus. Specifically, the district court

excluded testimony that Chief Wells commented that he "bet" a

woman "ha[d] good pussy." The majority holds exclusion of this evi-

dence was harmless, a conclusion with which I do not agree but

which I understand.

VUU, however, pressed a very different contention. Although at

oral argument (but not in its appellate brief) the university fleetingly

asserted harmlessness, its principal contention was that exclusion of

this statement was proper because the statement was purportedly irrel-

evant. The remark was irrelevant, VUU maintained, because Chief

Wells made it "to another male employee without a female being in

the presence." The university explained that"this is [a] kind of man

talk situation. When men get together and talk they say certain things.

Certainly the plaintiff had no way of knowing this comment was ever

made."

47

If a supervisor's own words reflect the illegal bias he is accused of

harboring, those words generally constitute strong, direct evidence of

that animus, admissible in an employment discrimination action

brought against him. See Mullen v. Princess Anne Volunteer Fire Co.

853 F.2d 1130, 1133 (4th Cir. 1988). Such evidence does not become

irrelevant just because the supervisor did not make the offensive

remarks in front of those he is accused of victimizing, or because the

plaintiff did not know of the remarks. See e.g. Hurley v. Atlanta

Police Dept., 174 F.3d 95, 108-111 (3d Cir. 1999) (finding admissible

in sex-discrimination suit testimony "about `locker-room conversa-

tions between men outside the presence of women'" even though

plaintiff had no knowledge of the conversations until after she filed

suit). Rather, a trial court abuses its discretion when it excludes evi-

dence demonstrating racial or gender animus solely because the state-

ments were made between members of the same race or gender. See,

e.g., Talley v. Bravo Pitino Restaurant, 61 F.3d 1241, 1249 (6th Cir.

1995) (exclusion of evidence of racial slurs made in private by white

supervisors to white employees is abuse of discretion requiring rever-

sal); Miles v. M.N.C. Corp., 750 F.2d 867, 873 (11th Cir. 1985)

(same).

Racial slurs like those at issue in Talley and Miles and sexist deni-

gration like that at issue here and in Hurley are profoundly offensive

to most of us. But a supervisor's use of such language is admissible

in an employment discrimination action not because the language is

so offensive but because of what it may suggest to the factfinder

about the defendant's employment decisions. As we explained in

Mullen:

The use of racially offensive language by the decision

maker is relevant as to whether racial animus was behind

[his decision] . . . and was proper evidence for the jury to

consider. . . . Use of racial aspersions obviously provides an

indication that the speaker might be more likely to take race

into account in making a hiring . . . decision.

853 F.2d at 1133. Sexually offensive language is no different. See e.g.

Kolstad v. American Dental Ass'n, 119 S. Ct. 2118, 2121 (1999)

(finding admissible testimony regarding supervisor's sexually offen-

sive jokes at staff meetings and references to several women as

48

"bitches" and "battleaxes" as evidence of his bias in sex discrimina-

tion case).

Finally, contrary to VUU's suggestion, the demeaning, lewd

remark assertedly made by Chief Wells is not "like" the age-related

comments we have previously considered. No great mental gymnas-

tics are necessary to understand that supervisors' statements that an

employer needs to "attract newer, younger people" and "young

blood," see EEOC v. Clay Printing Co., 955 F.2d 936, 942 (4th Cir.

1992), or that "there comes a time when we have to make way for

younger people," see Birkbeck v. Marvel Lighting Corp., 30 F.3d 507,

511-12 (4th Cir. 1994), are simply not the same as remarking on a

woman's "good pussy." Indeed, as Chief Judge Wilkinson explained

in Birkbeck itself, "statements about age may well not carry the same

animus as those about race or gender," because"[u]nlike race or gen-

der differences, age does not create a true we/they situation -- barring

unfortunate events, every one will enter the protected age group at

some point in their lives." Id. at 512. The remark at issue here differs

not just in degree but also in kind from those complained of in our

age discrimination cases.

Perhaps appellants' counsel best explained the fundamental distinc-

tion:

It wouldn't surprise any of us if one of us went out, slapped

somebody on the back and said you're too damn old to play

this game of golf anymore. We're all aging. One thing that

would shock us is if anybody on the bench or any one in this

courtroom turned around and said about a woman, I think

she's got good pussy. You don't kid around like that. I

mean, we know that. And this stray, isolated comment of

you're too damn old for this job is a decision by the Fourth

Circuit that fits with human experience. Saying about a

woman, I think that she's got good pussy is not a joke, it's

something that says that you're treating this person as a sex

object, you're not treating her as an equal in the work force.

It's not a stray comment, or isolated comment, it goes

directly to the issue of how you perceive women in the work

force. . . . it's a big, wide viewfinder into the soul of the

49

individual who is making it, and it demonstrates that he has

a tremendous animus towards women.

I agree and am deeply disappointed that a respected institution of

higher learning would suggest otherwise.

50

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