Spencer v. Ashcroft , 147 F. App'x 373 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-1955
VIENNA D. SPENCER,
Plaintiff - Appellant,
versus
JOHN ASHCROFT, Attorney General,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonard D. Wexler, Senior
District Judge, sitting by designation. (CA-03-515-1)
Submitted: August 26, 2005 Decided: September 21, 2005
Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Donna W. Rucker, DUBOFF & ASSOCIATES, Silver Spring, Maryland, for
Appellant. Paul J. McNulty, United States Attorney, Rachel C.
Ballow, Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
After twenty years of employment at the Drug Enforcement
Agency (“DEA”), Vienna D. Spencer left her position as an employee
relations specialist in the DEA’s Office of Personnel in 1998.
Although Spencer applied for disability retirement, she claimed
that she did so because the DEA failed to provide her with
reasonable accommodations that would have enabled her to continue
to perform her job. Accordingly, Spencer filed suit against
Appellee John Ashcroft, Attorney General (the “Attorney General”),
alleging: (1) a violation of the Rehabilitation Act of 1973, 29
U.S.C. §§ 701-797 (2000) (the “Rehabilitation Act”), based on her
employer’s failure to provide reasonable accommodations; (2) a
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e to 2000e-17 (2000) (“Title VII”), based on her race
(African-American); and (3) that she had been constructively
discharged from the DEA because she was forced to work without
reasonable accommodations.
On June 22, 2004, a jury trial was held and on June 24,
2004, the jury returned a defense verdict on the two counts
submitted to it for decision. First, the jury found that Spencer
was unable to perform the essential functions of her job, with or
without reasonable accommodations. Second, the jury found that
Spencer was not intentionally discriminated against on the basis of
her race. Spencer’s final claim, constructive discharge, was not
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before the jury because the district court had previously dismissed
that charge because Spencer failed to exhaust available
administrative remedies. We affirm.
Spencer’s first issue on appeal is that the jury’s
verdict was against the weight of the evidence. Spencer, however,
failed to move for judgment as a matter of law at the close of the
evidence. Thus, this court’s review is limited to “whether there
was any evidence to support the jury’s verdict, irrespective of its
sufficiency, or whether plain error was committed which, if not
noticed, would result in a ‘manifest miscarriage of justice.’”
Bristol Steel & Iron Works, Inc. v. Bethlehem Steel Corp., 41 F.3d
182, 187 (4th Cir. 1994).
Moreover, the Rehabilitation Act provides that “[n]o
otherwise qualified individual with a disability in the United
States . . . shall, solely by reason of her or his disability, be
excluded from the participation in, be denied the benefits of, or
be subjected to discrimination . . . under any program or activity
conducted by any Executive agency.” § 794(a). The Rehabilitation
Act imposes on agencies a duty to provide “reasonable
accommodations” to a disabled employee who could perform a job's
essential functions with such accommodations, unless the provision
of accommodations would place an “undue hardship” on the agency.
42 U.S.C. § 12112(b)(5)(A) (2000). Based on a careful review of
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this record, we find that ample evidence supports the jury’s
verdict.
Spencer next argues that certain comments of the district
court prevented her from receiving a fair and impartial trial.
Because “[i]t was the jury, not the trial judge, that found” for
Spencer, “to argue that she was deprived of a fair trial,” Spencer
must show that the judge's comments “somehow affected the outlook
or deliberations of the jurors.” Rowsey v. Lee, 327 F.3d 335, 342
(4th Cir. 2003). Although Spencer did not object at trial to the
court's comments, “where a trial judge’s comments were so
prejudicial as to deny a party an opportunity for a fair and
impartial trial, the absence of objections will not preclude this
Court’s review since counsel will be loathe to challenge the
propriety of a trial judge’s utterances for fear of antagonizing
him and thereby prejudicing a client's case.” Stillman v. Norfolk
& W. Ry. Co., 811 F.2d 834, 839 (4th Cir. 1987). The Supreme
Court, however, has ruled that “expressions of impatience,
dissatisfaction, annoyance, and even anger”--an accurate
description of all of the comments to which Spencer now objects--do
“[not] establish[ ] bias or partiality” on the part of a judge.
Liteky v. United States, 510 U.S. 540, 555-56 (1994). Against this
background, and again, a comprehensive review of this record, we
find that Spencer did not demonstrate that she was prejudiced by
the trial judge’s comments. Moreover, the judge’s lengthy
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instructions, both at the beginning and end of the trial, that
“[n]othing the Court may say or do during the course of the trial
is intended to indicate nor should be taken by you as an indication
of what your verdict should be” cured any prejudice that might have
arisen from these comments. See, e.g., United States v. Villarini,
238 F.3d 530, 537 (4th Cir. 2001) (citations omitted).
Finally, Spencer contends that the district court
improperly dismissed her claim for constructive discharge. The
Rehabilitation Act expressly incorporates the standards of the
Americans with Disabilities Act (ADA). § 794(d). The ADA, in
turn, follows the “powers, remedies and procedures” set forth in
Title VII of the Civil Rights Act of 1964, as amended. See 42
U.S.C. § 12117(a) (2000). Thus, like a Title VII plaintiff,
Spencer was required to exhaust her administrative remedies before
instituting a lawsuit. See Brown v. Gen. Servs. Admin., 425 U.S.
820, 829-32 (1976).
Exhaustion of administrative remedies may be satisfied
where the claim in question is sufficiently related to properly
exhausted claims to be within the scope of a reasonable
investigation. See, e.g., Ong v. Cleland, 642 F.2d 316, 319 (9th
Cir. 1981) (absence of perfect "fit" between administrative
complaint and Title VII charge not necessarily fatal, especially
since Title VII's procedural requirements are not to be interpreted
too technically or applied too mechanically). Nevertheless, the
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Supreme Court has made clear that a claim for constructive
discharge is not necessarily saved by the “continuing violations”
doctrine. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
114 (2002) (termination and failure to promote acts are discrete
acts requiring exhaustion); see also Young v. Nat’l Ctr. for Health
Serv. Research, 828 F.2d 235, 237-38 (4th Cir. 1987) (citations
omitted) (constructive discharge is a discrete discriminatory act
requiring administrative exhaustion). We find that Spencer failed
to demonstrate that her claim for constructive discharge was
“imbedded” within her EEO complaint. As a result, this claim is
without merit.
Accordingly, we affirm the judgment in favor of the
Attorney General, in addition to the dismissal of Spencer’s claim
for constructive discharge. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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