Martin v. Mecklenburg County

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1044
PATRICK M. MARTIN,
Plaintiff - Appellee,
versus
MECKLENBURG COUNTY, Jointly and Severally,
Defendant - Appellant,
and
HARRY JONES, SR.; RICHARD JACOBSEN; JOHN
SKIDMORE; SUSAN HUTCHINS; JAMES O. COBB,
Defendants.
No. 05-1065
PATRICK M. MARTIN,
Plaintiff - Appellant,
versus
MECKLENBURG COUNTY, Jointly and Severally,
Defendant - Appellee,
and
HARRY JONES, SR.; RICHARD JACOBSEN; JOHN
SKIDMORE; SUSAN HUTCHINS; JAMES O. COBB,
Defendants.
Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte. Carl Horn, III,
Magistrate Judge. (CA-02-466-3-H)
Argued: September 20, 2005 Decided: October 26, 2005
Before MICHAEL, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis L. Lesesne, Jr., LESESNE & CONNETTE, Charlotte, North
Carolina, for Appellant/Cross-Appellee. Jenny Lu Sharpe,
Charlotte, North Carolina, for Appellee/Cross-Appellant.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
In this Title VII retaliation case, Mecklenburg County appeals
the district court’s order denying the County’s motions for
judgment as a matter of law and for a new trial following an
adverse jury verdict. Patrick M. Martin, a County employee, cross-
appeals the district court’s rulings as to back pay, front pay,
attorneys’ fees, and costs. For the following reasons, we affirm.
I.
Mecklenburg County employed Martin for twenty-seven years--
from 1974 until his discharge in 2001. Since 1985, he served as the
Director of the Department of Social Services’ Youth and Family
Services Division.
In 1997, an employee in his Division, Ruth Annette Harris,
complained to County officials that she had been sexually harassed
by her supervisor, Glenn Holland. An internal County investigation
so found, and the County disciplined but did not discharge Holland.
In May 1997, after Harris filed an EEOC charge of sexual
harassment against the County on the basis of Holland’s harassment,
the Department of Justice brought a Title VII lawsuit against the
County on Harris’s behalf, and Harris intervened in that suit. An
article in the local newspaper about the Harris suit prompted a
September 1999 conversation between Martin and John Skidmore, his
immediate supervisor, in which Skidmore told Martin that Harris’s
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supervisor, Holland, “was up to his old tricks,” that “Glenn
[Holland] had been caught screwing in the building” in the past,
and that Holland’s boss at the time had failed to do anything about
Holland’s misbehavior.
On February 4, 2000, Martin telephoned Harris’s private
attorney, Thomas Roberts, to tell him about Martin’s September
conversation with Skidmore. Although Martin never reached Roberts,
he left two phone messages that indicated he had information
relating to the Harris suit. Roberts notified the DOJ’s lead
attorney about Martin’s calls; the DOJ attorney then related this
information to James O. Cobb, the County’s lead counsel in the
Harris suit.
On February 8, 2000, Cobb and Sandra Bisanar, the Deputy
County Attorney, called Martin into Bisanar’s office to determine
what he knew about the Harris suit. Martin told Cobb and Bisanar
that he had called Roberts and that he intended to tell Roberts
about the substance of his September 1999 conversation with
Skidmore. However, Martin lied in one respect--he said that Roberts
had initially called him. Martin later testified that he found this
meeting intimidating, and that he lied because he had “panicked.”
On May 16, 2000, Cobb and Bisanar again confronted Martin regarding
his attempt to contact Roberts. Martin repeated the same
information he had told them in the February meeting; he again lied
about Roberts initiating contact.
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In the days that followed, various County officials met
repeatedly to discuss their concern about Martin. In one meeting on
May 31, 2000, Skidmore’s notes relate that the County planned to
obtain the actual tape-recordings of Martin’s telephone messages,
and that there was a “need to get [Martin] on a conduct issue.”
Shortly after this meeting, Martin began to suffer a series of
disciplinary actions at work. He received two “written reminders”
in June and August 2000. He also received a mediocre job rating for
1999, and the County’s lowest job rating for 2000. These setbacks
were unprecedented: Martin had never before been the subject of any
formal disciplinary action, and his job performance had been rated
exceptional for several years.
On January 3, 2001, Harris settled her suit with the County
for $66,000. As part of the settlement, Harris gave the County
Roberts’s tape recordings of Martin’s telephone messages. Roberts
later testified that in the months leading up to the settlement,
Cobb had persistently badgered Roberts for the tapes. Roberts
further testified that by October 2000, Cobb had said that Martin
would be discharged for disloyalty.
On January 11, 2001, after reviewing the tape recordings,
Bisanar and Cobb confronted Martin for the last time. The day
afterward, Martin was discharged by Richard Jacobsen, his
supervisor, assertedly for having lied to Bisanar and Cobb about
whether he had initiated contact with Roberts.
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Pursuant to County policy, Martin appealed his termination to
an Employee Review Panel, alleging that he was the victim of
discriminatory retaliation. After a hearing in which several
witnesses testified, the panel concluded on February 22, 2001, that
Martin’s termination should be reversed.
Harry Jones, the Mecklenburg County manager, reviewed the
panel’s ruling. Prior to making his decision, Jones had read
Martin’s grievance statement, a memo between Cobb and Bisanar,
Martin’s statement to the panel, and the panel’s written ruling. On
March 9, Jones reversed the panel’s February 22 ruling and instead
upheld Martin’s discharge, even though County policy treated panel
decisions on discrimination matters as “final and binding.”
Martin then brought this action against the County and various
officials. The County moved for summary judgment on all counts. The
district court granted the motion with respect to Martin’s state
law conspiracy and wrongful discharge claims and his 42 U.S.C. §
1985 conspiracy claims against the individual defendants, but
denied the County summary judgment as to Martin’s First Amendment
and Title VII claims against the County itself.
After trial, the jury rejected all of Martin’s First Amendment
claims, as well as his claim that the County disciplined him in
retaliation for protected activity. The jury, however, found for
Martin on his Title VII claim that the County discharged him in
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retaliation for protected activity. The jury awarded Martin
$300,000 in compensatory damages.
Martin then moved for back pay, front pay, attorneys’ fees,
and pre-judgment interest. Simultaneously, the County moved for
judgment as a matter of law or a new trial, and challenged the
$300,000 compensatory award as excessive. The district court
granted, but reduced, Martin’s request for back pay; denied
Martin’s request for front pay; granted Martin’s request for
prejudgment interest; and granted, but reduced, Martin’s request
for attorneys’ fees. The court also denied the County’s motions for
judgment as a matter of law and a new trial, but agreed that the
$300,000 compensatory award was excessive. Instead, it offered
Martin a remittitur of $100,000, which Martin accepted.
The County appeals, and Martin cross-appeals.
II.
A.
The County first and principally argues that the district
court erred in denying its motion for judgment as a matter of law
on Martin’s Title VII retaliation claim. We review the denial of a
motion for judgment as a matter of law de novo, viewing the
evidence in the light most favorable to Martin, the nonmoving
party, Babcock v. BellSouth Adver. & Publ’g Corp., 348 F.3d 73, 76
(4th Cir. 2003), and drawing all reasonable inferences in his
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favor. Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639,
645 (4th Cir. 2002). Judgment as a matter of law is appropriate
only when “a party has been fully heard on an issue and there is no
legally sufficient evidentiary basis for a reasonable jury to find
for that party on that issue.” Fed. R. Civ. P. 50(a)(1). Review of
a denial of judgment as a matter of law “is based on the complete
trial record.” Chesapeake Paper Prods. Co. v. Stone & Webster Eng’g
Corp., 51 F.3d 1229, 1236 (4th Cir. 1995).
In support of this argument, the County initially contends
that Martin did not engage in conduct that Title VII protects.
Title VII’s participation clause prohibits employers from
retaliating against employees who “participate[] in any manner in
an investigation, proceeding, or hearing under [Title VII].” 42
U.S.C. § 2000e-3(a) (2000).1
The parties do not agree on the exact “participating” conduct
at issue here. There are three possible candidates: (1) Martin’s
phone calls to Roberts in February; (2) Martin’s statements to
Bisanar and Cobb in February and May about his conversation with
Skidmore and his willingness to testify about the conversation in
the Harris suit; and (3) in the same February and May
1
Martin invokes the protection of Title VII’s participation
clause, not its opposition clause, which protects an employee’s
opposition to “any practice made an unlawful employment practice”
by Title VII. 42 U.S.C. § 2000e-3(a) (2000). The County’s reliance
on opposition-clause cases, like Laughlin v. Metropolitan
Washington Airports Auth., 149 F.3d 253 (4th Cir. 1998), is
therefore misplaced.
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conversations, Martin’s lie that he had not initiated contact with
Roberts.
Clearly, Title VII protects from retaliation Martin’s phone
calls to Roberts since they were made for the purpose of providing
information in a pending Title VII proceeding--the Harris suit.
“Title VII combats unlawful employment practices . . . principally
through reliance on employee initiative.” Jute v. Hamilton
Sundstrand Corp., 420 F.3d 166, 174-75 (2d Cir. 2005). Permitting
retaliation based on an employee’s sua sponte offer of information
would impede voluntary participation by the most effective
witnesses in Title VII actions, frustrating the statute’s purpose
to “ensure . . . that investigators will have access to the
unchilled testimony of witnesses.” Glover v. S.C. Law Enforcement
Div., 170 F.3d 411, 414 (4th Cir. 1999).
Similarly, Title VII protects Martin’s truthful statements to
Bisanar and Cobb in February and May because Martin made those
statements during the County’s internal investigation in
preparation for its defense in the Harris suit. See Clover v. Total
Systems Servs., Inc., 176 F.3d 1346, 1353 (11th Cir. 1999). It is
of no moment that the content of Martin’s statements--i.e., his
recounting of his conversation with Skidmore--arguably neither
described an incident of sexual harassment nor bore any relevance
to the Harris suit. In Glover, we held that the phrase “in any
manner” in the participation clause is “a clear signal that the
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provision is meant to sweep broadly” to include even unreasonable
and irrelevant activity. 170 F.3d at 414; see also Deravin v.
Kerik, 335 F.3d 195, 203 (2d Cir. 2003) (“[T]he explicit language
of [the] participation clause is expansive and seemingly contains
no limitations.”); Clover, 176 F.3d at 1353 (“The words
‘participate in any manner’ express Congress’ intent to confer
exceptionally broad protection upon employees covered by Title
VII.” (internal quotation marks omitted)). Title VII protects
Martin’s truthful statements, regardless of their content, because
they took place during a meeting that was directly related to a
Title VII proceeding.2
Martin’s lie to Bisanar and Cobb is, however, more
troublesome. Although Glover can be read to protect all dishonest
conduct, we recognize that Title VII is not meant to “arm employees
with a tactical coercive weapon that may be turned against the
employer as a means for the asserted victims to advance their own
2
Notwithstanding the County’s suggestion, Crowley v. Prince
George’s County, 890 F.2d 683 (4th Cir. 1989), and Balazs v.
Liebenthal, 32 F.3d 151 (4th Cir. 1994), do not support its
contrary argument. In neither Crowley nor Balazs did the underlying
case (the equivalent of the Harris suit here) involve an actual
Title VII investigation, proceeding, or hearing in which the
retaliation-plaintiff could participate. In Crowley, 890 F.2d at
687, the underlying matter involved racial discrimination outside
of the employment context and thus not covered by Title VII. In
Balazs, 32 F.3d at 158-59, the underlying matter involved a charge
of discrimination that we held did not state a Title VII claim.
Here, by contrast, Martin’s truthful statements to Bisanar and Cobb
were made in the context of an underlying matter--the Harris suit--
that indisputably stated a Title VII discrimination charge.
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retaliatory motives and strategies.” Spadola v. N.Y. City Transit
Auth., 242 F.Supp.2d 284, 292 (S.D.N.Y. 2003). For this reason, we
would be reluctant to conclude that an employer can never dismiss
an employee for lying during a Title VII investigation, proceeding,
or hearing. Cf. Mattson v. Caterpillar, Inc., 359 F.3d 885, 892
(7th Cir. 2004). Martin’s lie, however, may have resulted from
intimidation by his employer and be so trivial in context as to be
protected by Title VII. We need not resolve this difficult issue
because even assuming that Title VII does not protect this lie, the
County cannot prevail. Martin presented at trial evidence
sufficient to demonstrate that his protected conduct (namely, his
calls to Roberts and his truthful statements to Bisanar and Cobb),
not his lie, caused the County to discharge him--even if we assume
that Jones, not other County officials, was the ultimate
decisionmaker here.3
We note that both parties phrase their arguments on this point
as a question of whether Martin presented a prima facie case under
the pretext test of McDonnell Douglas Corp. v. Green, 411 U.S. 7923
An employer will not be liable under Title VII for the
decisions of just any employee with supervisory or managerial
powers. Rather, Title VII only imposes liability if the retaliatory
animus of an actual decisionmaker--i.e., “the person who in reality
makes the decision”--motivated the contested employment action.
Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 290-
291 (4th Cir. 2004) (en banc). Martin claims that several County
employees--including Skidmore, Jacobsen, and Cobb--“in reality”
made the decision to fire him. The County insists that only Jones
was the actual decisionmaker. For purposes of this appeal, we
assume that the County is correct.
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(1973), or the mixed motive test of Price Waterhouse v. Hopkins,
490 U.S. 228 (1989). In fact, such an “approach is inapposite when
a trial has proceeded to completion” and the appeal is based on a
denial of a motion for judgment as a matter of law. Dennis v.
Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir.
2002). In this latter situation, the question on appeal is simply
“whether the plaintiff was the victim of intentional
discrimination.” Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 153 (2000).
In this case, a reasonable jury could have concluded from the
evidence presented at trial that an impermissible retaliatory
animus at least partially motivated Jones to terminate Martin’s
employment. Jones testified that he reviewed a number of documents
prior to deciding to discharge Martin. From reading these
documents, Jones certainly knew about Martin’s protected conduct,
and Jones made his decision to discharge Martin “at the first
opportunity” after learning about this protected conduct. Price v.
Thompson, 380 F.3d 209, 213 (4th Cir. 2004). In doing so, Jones
overturned the Employee Review Panel’s decision, an action that a
jury could find was at odds with the County’s policy of treating
decisions on discrimination matters as “final and binding.”
Furthermore, a jury could conclude that Jones acted inconsistently
by retaining Holland (the defendant in the Harris suit), who had
lied about attending a mandatory assistance program, while firing
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Martin.4 A decisionmaker’s inconsistent action in violation of
well-established policy, rendered at the first opportunity after
becoming aware of protected conduct, provides sufficient evidence
for a reasonable jury to conclude at the very least that some
consideration of this protected conduct played a role in the
contested employment decision.
Under the Price Waterhouse framework, the County could still
avoid liability by showing that Jones would have terminated Martin
even without the improper retaliatory motivation. Jones ostensibly
fired Martin because Martin had admitted lying to Bisanar and Cobb
about whether he had initiated contact with Roberts. However, the
record reveals evidence from which a reasonable jury could
certainly conclude that Martin’s dishonesty, standing alone, would
not have led to his termination. Viewing the evidence in the light
most favorable to Martin, County policy did not require immediate
dismissal for lying, and the County’s examples of other employees
who had been terminated due to dishonesty were not analogous,
primarily because none of them had had their terminations reversed
by an Employee Review Panel. A jury could also have turned again to
the County’s more lenient treatment of Holland’s lies. Finally, a
jury could determine that given Jones’s responses on cross-
4
We also note that during the County’s initial investigation
into Harris’s sexual harassment claim, it concluded that Holland
had lied about whether he had mistreated Harris. Notwithstanding
this dishonesty, counsel for the County informed us at oral
argument that Holland continues to be employed by the County today.
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examination, his testimony that Martin’s lie alone led to the
discharge was simply not credible. All of this evidence could lead
a reasonable jury to find that the County did not have a strong
policy of dismissal for dishonesty, and that Jones fired Martin
only because Martin had also engaged in protected conduct.5
B.
In addition to its Title VII claims, the County makes two
evidentiary objections, which it maintains require us to vacate the
judgment against it. We review a district court’s evidentiary
rulings for abuse of discretion. United States v. Leftenant, 341
F.3d 338, 342 (4th Cir. 2003).
First, the County objects on relevance grounds to the
admission of the Employee Review Panel’s decision and the
transcript of its proceedings. “[R]elevance typically presents a
low barrier to admissibility.” Leftenant, 341 F.3d at 346. Here,
Jones admitted reading and relying on the Panel’s decision before
he decided to terminate Martin. The decision is thus probative as
5
The County also argues that Martin cannot show causation
because he has failed to meet his employer’s legitimate
expectations and because he has failed to show disparate treatment.
However, these arguments conflate elements from different prima
facie cases. “[T]he elements of a prima facie case differ depending
on the statute and the nature of the claim.” Rowe v. Marley Co.,
233 F.3d 825, 829 (4th Cir. 2000). An employer’s legitimate
expectations and disparate treatment are relevant for
discriminatory discharge, not retaliation. See King v. Rumsfeld,
328 F.3d 145, 149-50 (4th Cir. 2003); Taylor v. Va. Union Univ.,
193 F.3d 219, 234 (4th Cir. 1999) (en banc).
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to Jones’s motivation for terminating Martin. Furthermore, the
Panel’s decision was necessary for Martin to demonstrate that Jones
had violated County policy by overruling the decision. As for the
transcript of the Panel’s proceedings, although Jones did not read
the transcript, it confirms the factual basis behind the Panel’s
decision. We thus find no error in the district court’s admission.
Second, the County objects on hearsay grounds to the admission
of Roberts’s testimony about Cobb’s statement in October 2000 that
the County would terminate Martin. Even if Roberts’s testimony is
hearsay, we find its admission harmless. The description of Cobb’s
statement occupied only a few minutes of testimony among several
days of witnesses, and counsel for the County engaged in an able
cross-examination on Roberts’s recollection and characterization of
Cobb’s statement. In addition, Martin presented substantial
additional evidence concerning Jones’s improper motivation. The
district court did not abuse its discretion here.
C.
Finally, the County argues that the award of damages to
Martin--$100,000 after the remittitur--was excessive. The County
“bears a hefty burden in establishing that the evidence is not
sufficient to support the award[]. . . . [I]f there is evidence on
which a reasonable jury may return verdicts in favor of [Martin],
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we must affirm.” Price v. City of Charlotte, 93 F.3d 1241, 1249-50
(4th Cir. 1996).
We find sufficient evidence to support the damage award. Both
Martin and his wife specifically described the emotional distress
and concrete physical symptoms he suffered in response to his
termination. Furthermore, although Martin did not seek counseling
or request medication, he did present evidence that he had adjusted
his lifestyle in an attempt to alleviate his distress. See Bryant
v. Aiken Reg’l Med. Ctrs. Inc., 333 F.3d 536, 547 (4th Cir. 2003).
Martin’s physical and emotional distress was reasonable considering
his sudden and ignominious dismissal after nearly three decades of
continuous employment with the County. See id. (noting that
Bryant’s “emotional distress was a reasonable reaction to this
mystifying frustration of her professional career”). We find no
error in his reduced damage award.
III.
A.
On cross-appeal, Martin first argues that the district court
acted improperly by reducing his request for back pay and denying
his request for front pay. We review the district court’s rulings
regarding back pay and front pay for abuse of discretion. Dennis v.
Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 651 (4th Cir.
2002). The district court based its rulings primarily on its
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finding that Martin had failed to mitigate his damages, and that
with reasonable diligence he could have found comparable work of
roughly equal pay within three years after his termination. The
record reveals that Martin applied to a very limited number of jobs
and ended up working for only brief periods of time in the years
following his termination.
Martin maintains that the district court improperly placed
upon him the burden of showing mitigation. It is well established
that the employer bears the burden of proving the employee’s
failure to mitigate. Martin v. Cavalier Hotel Corp., 48 F.3d 1343,
1358 (4th Cir. 1995). “[T]he duty to mitigate damages requires that
the claimant be reasonably diligent in seeking and accepting new
employment substantially equivalent to that from which he was
discharged.” Brady v. Thurston Motor Lines, Inc., 753 F.2d 1269,
1273 (4th Cir. 1985). The question here is whether an employer
bears the burden of showing the existence of comparable work if it
meets its burden of showing lack of reasonable diligence. Although
we have not yet ruled on this issue, “[o]ther courts of appeals .
. . uniformly have relieved the defendant-employer of the burden to
prove the availability of substantially equivalent jobs in the
relevant geographic area once it has been shown that the former
employee made no effort to secure suitable employment.” Quint v.
A.E. Staley Mfg. Co., 172 F.3d 1, 16 (1st Cir. 1999) (citing
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cases). We see no reason to modify this rule under the
circumstances of this case.
B.
Martin argues next that the district court improperly reduced
his request for attorneys’ fees and costs. A district court’s award
of attorneys’ fees is “reversed on appeal only if under all the
facts and circumstances [the award] is clearly wrong.” Martin v.
Cavalier Hotel Corp., 48 F.3d 1343, 1359 (4th Cir. 1995) (quoting
Johnson v. Hugo’s Skateway, 974 F.2d 1408, 1418 (4th Cir. 1992) (en
banc)).
Martin makes three arguments on this point. Martin primarily
faults the district court for not calculating a “lodestar” amount.
We find no merit to this claim. A court calculates a lodestar
figure “by multiplying the number of reasonable hours expended
times a reasonable rate.” Brodziak v. Runyon, 145 F.3d 194, 196
(4th Cir. 1998) (quoting Daly v. Hill, 790 F.2d 1071, 1077 (4th
Cir. 1986)). The district court’s post-trial memorandum opinion
demonstrates that it performed this exact calculation.
Second, Martin contends that the district court erred by not
expressly relying on the twelve-factor test in Johnson v. Ga.
Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). However, the
district court’s analysis was consistent with several Johnson
factors; we do not believe that the district court must invoke
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Johnson by name. Furthermore, although the district court did not
consider all twelve Johnson factors, we do not believe that the
twelve factors must all be considered in each and every case. See
Hensley v. Eckerhart, 461 U.S. 424, 434 n.9 (1983) (“The district
court also may consider other factors identified in Johnson . . .
.” (emphasis added)); Trimper v. City of Norfolk, 58 F.3d 68, 74
(4th Cir. 1995) (describing factors as “general standards” (quoting
Daly v. Hill, 790 F.2d 1071, 1079 (4th Cir. 1986))).
Finally, Martin argues that the district court’s award
improperly relied on the fact that Martin did not prevail on all of
his original claims. But the district court here did not improperly
base its award of fees and costs “simply on the ratio of claims
raised to claims prevailed upon.” Brodziak, 145 F.3d at 197.6
Rather, the court properly recognized that “[w]hen successful
claims are unrelated to unsuccessful claims, it is not appropriate
to award fees for the latter.” Id. at 197. Martin’s unsuccessful
claims were not based on the same “core of facts” as his successful
claims. Johnson, 974 F.2d at 1419. We thus find no error in the
district court’s award of attorney’s fees and costs.
6
Indeed, although Martin prevailed on only one-fourth of his
trial claims (and an even smaller proportion of his original
claims), the district court still compensated his counsel for two-
thirds of her work.
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IV.
For the foregoing reasons, we affirm the district court’s
denial of the County’s motions for judgment as a matter of law and
for a new trial. We also affirm the district court’s rulings as to
back pay, front pay, and attorneys’ fees and costs. In sum, the
judgment of the district court is affirmed in all respects.
AFFIRMED
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