Susan Keeshan v. Eau Claire Cooperative Health

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:05-cv-03601-MBS Copies to all parties and the district court/agency. [998424216] [08-1270]

Susan Keeshan v. Eau Claire Cooperative Health

Doc. 0

Case: 08-1270 Document: 54

Date Filed: 09/14/2010

Page: 1

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-1270 SUSAN J. KEESHAN, MD, Plaintiff - Appellant, v. EAU CLAIRE COOPERATIVE HEALTH HAMILTON, MD; DEBORAH DAVIS, MD, CENTERS, INC; STUART A.

Defendants - Appellees.

Appeal from the United States District Court for the District of South Carolina, at Columbia. Margaret B. Seymour, District Judge. (3:05-cv-03601-MBS) Argued: January 26, 2010 Decided: September 14, 2010

Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges. Affirmed by unpublished per curiam opinion. ARGUED: Aaron J. Kozloski, CAPITOL COUNSEL, LLC, Columbia, South Carolina, for Appellant. Kathryn Thomas, GIGNILLIAT, SAVITZ & BETTIS, Columbia, South Carolina, for Appellees. ON BRIEF: Christina M. Summer, GIGNILLIAT, SAVITZ & BETTIS, Columbia, South Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

Case: 08-1270 Document: 54

Date Filed: 09/14/2010

Page: 2

PER CURIAM: Dr. Susan Keeshan, a physician who is Jewish and of Hispanic descent, Health VII sued her former (the employer, Eau Claire alleging for

Cooperative under Title

Centers, she

Inc. was

Cooperative), in

that

terminated

retaliation

filing a complaint claiming that her supervisors discriminated against her because she is not black. Keeshan also brought

claims under state law for wrongful discharge and nonpayment of wages. The district court granted summary judgment to the

Cooperative on the wrongful discharge claim.

After a trial the

jury found for the Cooperative on the Title VII retaliation and South Carolina Payment of Wages Act claims. Keeshan appeals,

challenging the district court's (1) grant of summary judgment on the wrongful to discharge her claim, (2) ruling that on required cross-

Keeshan

disclose

post-termination

income

examination, (3) denial of Keeshan's motion for a new trial, and (4) imposition of costs on Keeshan as the losing party. affirm. I. A. Keeshan is an obstetrician/gynecologist (OB-GYN) who was employed by the Cooperative in Columbia, South Carolina, from July 2000 was until part July of a 2004. medical 2 Her employment with the she We

Cooperative

school

scholarship

Case: 08-1270 Document: 54

Date Filed: 09/14/2010

Page: 3

received from the National Health Service Corps (NHSC). scholarship residency services required at to an Keeshan to spend site four that years after

The her

NHSC-approved

provides

medical The NHSC

traditionally director, Dr.

underserved Stuart

populations. also an

Cooperative's

Hamilton,

scholar, started the Cooperative in 1981 to treat low-income residents Carolina. of the Eau Claire community in Columbia, South

With the help of charitable donations and federal

funding, the Cooperative expanded over the next twenty years to include nine facilities, including an OB-GYN practice that

opened in 1997.

Hamilton interviewed Keeshan in early 2000 and

hired her as a physician in the Cooperative's OB-GYN practice. The Cooperative was the only NHSC-approved site in Columbia, where Keeshan hoped to work so she could be with her husband. Although aware that Keeshan was at the Cooperative under her scholarship that she obligation, would remain Hamilton after considered it a possibility NHSC

completing

the

four-year

requirement. left the

Soon after Keeshan started, the only other OB-GYN making Keeshan the sole physician and

Cooperative,

leader of the OB-GYN practice. two other OB-GYNs during

The Cooperative eventually hired Keeshan's four-year period of

employment. While contract, negotiating informed the terms of her she employment was Jewish.

Keeshan

Hamilton 3

that

Case: 08-1270 Document: 54

Date Filed: 09/14/2010

Page: 4

Hamilton Kippur, holidays.

responded Rosh

that

the and

Cooperative the first

would day of

give

her

Yom as

Hashanah,

Passover

As for delineating the duration of her employment,

Keeshan's contract provided that the "term of this Agreement shall be for one year from the date [Keeshan] begins employment and shall be automatically renewed for successive one-year terms unless terminated that as hereinafter trigger provided." termination S.A. of the 97. The

occurrences

could

contract

included: (1) "By notice in writing to the other party given one hundred and twenty (120) days prior to the date of termination"; (2) "Material breach of contract by [Keeshan] or [the

Cooperative]"; (3) "Death or total disability of [Keeshan]"; (4) "[Keeshan] conducting [herself] in an unprofessional, unethical or fraudulent manner"; and (5) "Financial exigency as verified by an independent party or financial review." S.A. 98. If any

of these occurrences transpired, Keeshan was entitled to unpaid compensation and benefits accrued as of the termination date. Keeshan's annual salary started at $150,000 and increased to $160,000, $165,000, and $175,000 during her last three years at the Cooperative. Keeshan's fairly smoothly employment the with the Cooperative of years. proceeded Hamilton

for

first

couple

recalled at trial that conflict first arose between Keeshan and the Cooperative over her appointment 4 scheduling and billing

Case: 08-1270 Document: 54

Date Filed: 09/14/2010

Page: 5

documentation.

The

Cooperative

could

not

discern

which

appointments and bills were Keeshan's.

Additionally, Hamilton

learned that Keeshan was performing artificial inseminations for homosexual couples, which Hamilton considered inappropriate in light of the Cooperative's federal funding. Nonetheless,

Hamilton gave Keeshan favorable evaluations from 2000 to 2003. Keeshan's tension with Hamilton escalated in 2003. May 2003 Keeshan a requested in time off for elective asked In

surgery. to

Following reschedule

meeting surgery

which to

Hamilton another

Keeshan

her

due

physician's

absence,

Keeshan sent Hamilton an email saying that she found his request insensitive staff. due to and inappropriately presented in front of other

Hamilton found Keeshan's email inappropriate, primarily Keeshan's use of the phrase "rip me a new one" to

describe Hamilton's behavior during the meeting. 101.

J.A. 136, S.A.

Hamilton deemed the email "sexually explicit," sarcastic, J.A. 136. He testified that he decided at that

and insulting.

moment that he would allow Keeshan to serve the time remaining on the four years required by her scholarship, but that he would not keep her on after July 2004. email and thought that her Keeshan apologized for the relationship with

professional

Hamilton was partially restored.

Hamilton, however, filed a

corrective action form regarding the email.

5

Case: 08-1270 Document: 54

Date Filed: 09/14/2010

Page: 6

Conflict

resumed

when

the

Cooperative

hired

another

OB-GYN, Dr. Deborah Davis, with whom Keeshan did not get along. Davis, who is African American, became the Interim Director of Women's Health and This assumed did not Keeshan's cause felt administrative salary took or

responsibilities. benefits to

Keeshan's Davis

decrease.

Keeshan

that

every

opportunity to blame and demean her. took offense to Davis's omission of

In particular, Keeshan the title "Doctor" when

referring to Keeshan and to Davis's practice of calling other African Americans "brothers" and "sisters." In warnings February three 2004 days Hamilton of each gave J.A. 40. Keeshan One two was written for an

within

other.

unauthorized on-call arrangement that Keeshan entered into with another physician without Davis's approval. The other was for

Keeshan's name appearing at the bottom of an open letter to patients urging them to contact their legislators to support tort reform. The letter appeared in South Carolina's State

newspaper and declared that OB-GYNs were faced with the prospect of being unable "to continue to deliver babies" due to increased liability premiums. S.A. 104. The Cooperative's written

warning to Keeshan called the letter "needlessly misleading," alarming to patients, and "in stark contrast to the

Cooperative's stated mission of providing care to all patients, regardless of their economic 6 status." S.A. 108. The

Case: 08-1270 Document: 54

Date Filed: 09/14/2010

Page: 7

Cooperative

reprimanded

its

other

OB-GYNs

who

signed

this

letter, including Davis.

Before issuing the warning to Keeshan,

Hamilton tried to call her at home to persuade her to call the newspaper and request removal of her name. to reach Keeshan, but he received an Hamilton was unable email containing

unsolicited legal advice from Keeshan's husband, Aaron Kozloski, a lawyer. Hamilton testified that Kozloski sent him unsolicited

legal advice on multiple occasions. Keeshan filed formal grievances with the Cooperative after receiving these two warnings. The grievances protested The

the warnings and Davis's unprofessional conduct generally.

Cooperative's grievance committee set a grievance hearing for February 20, 2004, but Keeshan did not receive notice of the hearing because it was placed in her mailbox on her day off. She received a call from a committee member on the day of the hearing, but she was in a meeting that she could not leave. No

mention was made of rescheduling the hearing, which took place without Keeshan's merit. Keeshan. complaints The grievance her committee written concluded warnings that lacked

regarding

The committee did, however, in response to Keeshan's about Davis, decide that the Cooperative should

complaints

circulate a memorandum to its employees on professional conduct and courtesy.

7

Case: 08-1270 Document: 54

Date Filed: 09/14/2010

Page: 8

On

February

23,

2004,

Keeshan

wrote

Hamilton

a

memorandum requesting

$127,500 in productivity bonuses that she On the same day, Keeshan with the Cooperative's

claimed to be owed under her contract. also filed a discrimination complaint

human resources department, alleging that the Cooperative and Davis subjected her to a hostile work environment on account of her religion and race. Although she mentioned both racial and

religious discrimination, the bulk of her complaint alleged that Davis, with Hamilton's consent, subjected Keeshan to unfair

treatment solely because Keeshan is not black. 1

Her complaint

requested that Davis be immediately terminated and that Keeshan be restored to her original position as Director of Women's

Health.

Hamilton testified that this complaint was the first

time he learned of Keeshan's Hispanic descent. Two days after receiving Keeshan's request for

productivity bonuses and her discrimination complaint, Hamilton During a colloquy with court at the close of trial, Keeshan's counsel maintained that Keeshan never pursued a religious discrimination complaint in her pleadings and that the issue of her religion was "water under the bridge." J.A. 303. The Title VII heading of Keeshan's supplemental complaint refers only to racial discrimination. But in the factual allegations she refers to the "racial and religious discrimination grievance" that she submitted to the Cooperative. J.A. 29. Because her Title VII retaliation claim was based on this grievance that alleged discrimination on both grounds, the court instructed the jury that it could find unlawful retaliation based on Keeshan's complaint of "race and/or religious discrimination." J.A. 363. 8
1

Case: 08-1270 Document: 54

Date Filed: 09/14/2010

Page: 9

talked with her at a board meeting.

He inquired about her plans

to attend law school and discussed whether they could agree on some changes that would make her happy. gave Keeshan a proposed agreement. The next day Hamilton Noting that Keeshan's

"service obligation to [NHSC] ends in four short months" and that it "is important to finish any task well," Hamilton offered to (1) "reduce meet personally with the staff in the OB-GYN division to the level of tension that has arisen there;" (2)

reassign Keeshan to a different Cooperative office as the sole OB-GYN warning for the remainder regarding of her NHSC term; (3) remove the

letter

Keeshan's

unauthorized

on-call

arrangement from her personnel file; (4) allow a family practice resident to rotate through Keeshan's new office; and (5)

"discuss[] in good faith" the prospect of Keeshan's employment with the Cooperative beyond her NHSC obligation, "assuming all aspects Hamilton of this agreement that, are in in effect." Keeshan S.A. 167-68. her

proposed

return,

rescind

grievances against the Cooperative, demonstrate a willingness to engage in "constructive personal dialogue" on her various areas of conflict with the Cooperative, and that Keeshan's husband cease communication with the Cooperative. objected to the proposed relocation and S.A. 168. did not Keeshan the

accept

agreement. Hamilton gave Keeshan a revised agreement without the relocation proposal. Unsatisfied with the proposed term that 9

Case: 08-1270 Document: 54

Date Filed: 09/14/2010

Page: 10

her husband cease communication with the Cooperative, Keeshan rejected the revised agreement. The Cooperative then gave

Keeshan 120 days' notice that her contract would not be renewed after July 2004. In retaliation May 2004 Keeshan with the filed EEOC. a discrimination The complaint and was

complaint

transferred to the South Carolina Human Affairs Commission, and Keeshan received a right to sue letter in October 2004. sued the Cooperative in South Carolina state court. Keeshan

After she

amended her complaint to include federal claims, the case was removed to federal court in the District of South Carolina.

Keeshan's claims included a racial discrimination claim under Title VI and Title VII, a retaliation claim under Title VI and VII, and claims under state law for wrongful discharge and

unpaid wages. the Cooperative

The district court granted summary judgment to on Keeshan's Title VI claims, Title VII

discrimination claim, and wrongful discharge claim.

Keeshan's

Title VII retaliation claim and her unpaid wages claim proceeded to a jury trial in February 2008. B. Over objection from Keeshan's counsel, the jury heard Keeshan testify on cross-examination about her income after

leaving the Cooperative. 2007 was $300,000.

Keeshan said that her yearly income in

Keeshan's counsel argued that her income 10

Case: 08-1270 Document: 54

Date Filed: 09/14/2010

Page: 11

after 2005 was irrelevant because she was not seeking back pay for any period that after her that year. income The was Cooperative's relevant in counsel that it

responded

current

"show[ed] that she is much better off today than if she had stayed where she was." J.A. 276. Moreover, the Cooperative's

counsel maintained that Keeshan's current salary was relevant to her request for punitive damages. The court was persuaded by

the last point and ruled that the 2007 salary testimony was admissible if Keeshan sought punitive damages. trial, the court ultimately found At the close of evidence of

insufficient

malicious or reckless conduct by the Cooperative to warrant a punitive damages instruction to the jury. The jury found for

the Cooperative on both the retaliation and unpaid wages claims. Keeshan moved for a new trial on the grounds that the jury was unduly prejudiced after learning of her $300,000

salary.

In support of her motion, she submitted an affidavit

swearing that she heard "gasps from the jury box" and that she could tell from the astonished looks on jurors' faces that they had already decided against her. Keeshan's party. motion and taxed J.A. 373-74. with The court denied as the losing

Keeshan

costs

Keeshan appeals, asking this court to (1) reverse the

grant of summary judgment to the Cooperative on her wrongful discharge claim, (2) hold that she is entitled to a new trial on the grounds that her post-termination 11 income was erroneously

Case: 08-1270 Document: 54

Date Filed: 09/14/2010

Page: 12

admitted into evidence, and (3) hold that even if she remains the losing party, she should not be taxed with the Cooperative's costs. II. A. We first address the district court's grant of summary judgment discharge discharged wages to the Cooperative Keeshan on Keeshan's that state she her of law wrongful

claim. in

maintains for

was right

wrongfully to unpaid for the This

retaliation South civil of

asserting Payment and for

under

Carolina's rights,

Wages to

Act, aid

exercising unlicensed

her

refusing

practice

medicine

and

insurance

fraud.

wrongful discharge claim is based on South Carolina's public policy exception permits of an to a the cause employment of action at-will "where doctrine. the The

exception discharge

retaliatory of a

at-will

employee

constitutes

violation

clear mandate of public policy."

Ludwick v. This Minute of The exception

Carolina, Inc., 337 S.E.2d 213, 225 (S.C. 1985).

applies to at-will employees' claims of retaliatory termination for invoking their rights under the Payment of Wages Act. Evans

v. Taylor Made Sandwich Co., 522 S.E.2d 350, 354 (S.C. Ct. App. 1999). The district court held that Keeshan could not avail herself of the public policy exception because she was not an 12

Case: 08-1270 Document: 54

Date Filed: 09/14/2010

Page: 13

at-will Keeshan's

employee

of

the of

Cooperative. her contract to

The that

court in

rejected Stiles v.

comparison

American General Life Insurance Co., 516 S.E.2d 449, 451 (S.C. 1999), in which the South Carolina Supreme Court found the

durational terms of an employment contract so indefinite that the employee was essentially at-will. The contract allowed

either party to terminate the employment relationship "for any reason" upon thirty days' written notice. supreme court reasoned that the notice Id. at 450. provision was The so

unrestricted that it left the employee "in the same position as an at-will is employee required with to the give only the difference employee being notice that prior the to

employer

terminating employment."

Id. at 451.

We agree with the district court that Keeshan failed to raise a material factual dispute over whether she was an atwill employee. The automatic renewal provision indicates that

the contract would continue from year to year absent one of the specified termination-triggering occurrences. The notice

provision, if invoked, had to be invoked at least 120 days prior to the end of a one-year term. This durational restriction

distinguishes Keeshan's contract from the completely unfettered contract definite in Stiles. The term, contract in Stiles contained no

durational

whereas

Keeshan's

contract

provided

that it would remain in effect "for one year from the date 13

Case: 08-1270 Document: 54

Date Filed: 09/14/2010

Page: 14

[Keeshan] begins employment and shall be automatically renewed for successive one year terms." S.A. 97 (emphases added).

Although Keeshan's contract contained a 120-day notice provision that could be invoked by either party, her contract had more constraints than the contract in Stiles. Because

Keeshan started at the Cooperative on July 17, 2000, the oneyear terms ran from July 17 of one year to July 17 of the next. When Keeshan refused to accept Hamilton's revised agreement by March 5, 2004, the Cooperative gave her 120 days' notice that her employment would not continue after she completed the last one-year term of her four-year scholarship requirement. was the first day of the 120-day notice period. March 5 Keeshan's

employment with the Cooperative ended on July 17, 2004, 132 days later. If the Cooperative had tried to give Keeshan 120 days'

notice on, say, March 30 instead of March 5, this would have violated the contract because there would be fewer than 120 days remaining on the term. Keeshan's contract was therefore unlike

the contract in Stiles, which did not have a durational term constraining provision. the parties' Keeshan ability herself to invoke the the notice notice She his

Indeed,

interpreted

provision as protecting her from having at-will status. testified that during her discussion with Hamilton over

proposed resolution of her complaints, she explained that she

14

Case: 08-1270 Document: 54

Date Filed: 09/14/2010

Page: 15

was "not going to waive [her] 120 day notification. [she] would be an at-will employee." Further, listed in the the other S.A. 74.

Otherwise

termination-triggering total disability,

events material

contract

(death,

breach, unprofessional conduct, and financial exigency) suggest that unlike the had parties unbounded in Stiles, neither to end Keeshan the nor the

Cooperative relationship.

discretion

employment

Keeshan was not an "otherwise at-will employee,"

with the "only difference" being that the Cooperative had to give her 120 days' notice of termination. Stiles, 516 S.E.2d at 450-51 (emphasis added). Her contract contained a durational

term of one year and limited the time period during which the parties could invoke the notice provision. B. We now turn to Keeshan's argument that her compelled cross-examination testimony on her income after leaving the

Cooperative was irrelevant and prejudiced the jury to decide against ruling her. on the "A trial court possesses of broad and discretion we will in not

admissibility

evidence,

overturn an evidentiary ruling absent an abuse of discretion." United 2005). has States v. Hedgepeth, 418 F.3d 411, 418-19 (4th Cir.

An "abuse of discretion occurs only when a trial court arbitrarily or irrationally in admitting evidence,

acted

when a court has failed to consider judicially recognized facts 15

Case: 08-1270 Document: 54

Date Filed: 09/14/2010

Page: 16

constraining its exercise of discretion, or when it has relied on erroneous factual or legal premises." citations and quotations omitted). found to be erroneous, we Id. at 419 (internal

"If an evidentiary ruling is review the error for

then

harmlessness."

Id. (internal citations and quotations omitted).

To conclude that the district court's evidentiary errors were harmless, "we need only be able to say with fair assurance, after pondering action all from that the happened whole, that without the stripping was the not

erroneous

judgment

substantially swayed by the error."

United States v. Heater, 63

F.3d 311, 325 (4th Cir. 1995) (internal citations and quotations omitted). We agree with Keeshan that the district court's

admission of her testimony on her post-termination income was based on an erroneous legal premise and was therefore an abuse of discretion. The court found the testimony relevant to

Keeshan's request for punitive damages, which she sought under her Title VII retaliation claim. punitive party damages from private that the Title VII permits employers "if the recovery of complaining in a

demonstrates

respondent

engaged

discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved requires individual." the 42 U.S.C. to show 1981a(b)(1). that the This

standard

plaintiff 16

employer

Case: 08-1270 Document: 54

Date Filed: 09/14/2010

Page: 17

"discriminate[d]

in

the

face

of

a

perceived

risk

that

its

actions will violate federal law." 527 U.S. 526, 536 (1999).

Kolstad v. Am. Dental Ass'n,

It is axiomatic that the purpose of "Most often

punitive damages is to punish and deter defendants.

. . . eligibility for punitive awards is characterized in terms of a defendant's motive or intent." Id. at 538 (emphasis

added).

That Keeshan's salary nearly doubled after leaving the

Cooperative may indicate that Keeshan was better off in another job. But her improved financial status is irrelevant to her

contention that the Cooperative terminated her with malice or reckless indifference to her right under Title VII to bring a racial and religious discrimination complaint. Yet we are satisfied that this error was harmless. After reviewing the record, we can say with more than "fair assurance" that the jury was not "substantially swayed" by the revelation of Keeshan's higher salary to render a verdict for the Cooperative. Heater, 63 F.3d at 325. After the court

declined to send a punitive damages instruction to the jury, Keeshan's counsel did not proffer a limiting instruction that Keeshan's subsequent income was irrelevant to her claims. The

district court correctly instructed the jury on what Keeshan had to show to prevail on her Title VII retaliation claim, and her Wages Act claim. The court also instructed the jury to follow

17

Case: 08-1270 Document: 54

Date Filed: 09/14/2010

Page: 18

the

law

as

stated

by

the

court

and

not

to

decide

based

on

personal dislikes or prejudices. Without "stripping the erroneous action from the

whole," Heater, 63 F.3d at 325, the record supports the jury's findings for the Cooperative. A Title VII retaliation claim

requires a plaintiff to prove that (1) she engaged in protected activity, (2) an adverse employment action was taken against her, and (3) a causal connection between the protected activity and the adverse action. Holland v. Wash. Homes, Inc., 487 F.3d Keeshan would have to show that the

208, 218 (4th Cir. 2007).

Cooperative did not renew her contract "because [she] engaged in a protected activity" by complaining about discrimination. (emphasis omitted). burden in original) (internal citations and Id.

quotations

If a plaintiff establishes a prima facie case, the to the defendant to articulate a "legitimate

shifts

nonretaliatory reason for its actions." and quotations omitted).

Id. (internal citations

The record comes up far short for Keeshan on the third element of a prima facie retaliation action claim: and the the causal

connection activity. before she

between

the

adverse

protected

Keeshan's problems at the Cooperative started long filed her discrimination complaint. Hamilton

testified that problems started as early as 2002 over Keeshan's billing and appointment scheduling discrepancies. 18 And Keeshan

Case: 08-1270 Document: 54

Date Filed: 09/14/2010

Page: 19

sent

the

email

to

which

Hamilton

took

offense

in

May

2003,

nearly a year before she filed her discrimination complaint. Keeshan even referred to her "widening rift" with Hamilton in the email. S.A. 102. The jury could therefore find that

Keeshan showed no causal connection between the complaint and the nonrenewal of her contract. Even if Keeshan could establish a prima facie case, the record supports her for a the conclusion that the Cooperative reason: and her her

terminated

legitimate, with

nonretaliatory and

interpersonal contribution

conflicts to a

Davis

Hamilton in

friction-laden

atmosphere

the

OB-GYN

division starting in 2003.

It is clear that there was seldom a

meeting of the minds between Keeshan, Hamilton, and Davis when it came to professional matters. determine whether the It was up to the jury to terminated Keeshan in

Cooperative

retaliation for her discrimination complaint. us "fair assurance" that the disclosure of

The record gives Keeshan's higher

salary upon leaving the Cooperative did not prejudice the jury to ignore or discount complaint a and causal the connection or between to the a

discrimination

termination,

find

legitimate nonretaliatory reason where none existed. F.3d at 325.

Heater, 63

The abundant evidence of Keeshan's tension-fraught

relationship with Hamilton and Davis persuades us that the jury decided against her based on the law, not her subsequent higher 19

Case: 08-1270 Document: 54

Date Filed: 09/14/2010

Page: 20

salary.

We note that Keeshan's salary at the Cooperative was

not paltry, so we are not convinced that after learning that she continued to earn more than most Americans, 2 the jury decided to ignore Title VII law. There is more room for prejudicial effect on Keeshan's Payment of Wages Act claim. contention that the This claim was based on Keeshan's Cooperative unlawfully withheld

"productivity bonuses" that she was owed under her contract. Her contract provided that if her base salary was less than forty percent of her "net production (collected fees)" she would "receive a settlement in an amount equal to the difference Keeshan's

between the base salary and such sum."

S.A. 95.

testimony on her subsequent salary put her in the position of arguing that although she enjoyed a considerable income, she was entitled to an additional $127,500 in productivity bonuses.

However, we are satisfied that the jury based its finding for the Cooperative on both sides' presentation of the numbers

during the period of Keeshan's employment with the Cooperative, not on her later income.

The medium household income for the United States in 20022004 was $44,473. The medium household income for South Carolinians during this period was $39,326. U.S. Census Bureau, Three-Year Medium Household Income by State, 2002-2004, available at http://www.census.gov/hhes/www/income/income04/statemhi.html. 20

2

Case: 08-1270 Document: 54

Date Filed: 09/14/2010

Page: 21

Keeshan testified to her base salary during each year of her employment with the Cooperative. At the request of the

Cooperative's counsel during cross-examination and with the aid of a calculator, Keeshan multiplied her collected fees by 0.4. The numbers that Keeshan plugged in for her collected fees came from the Cooperative's answers to her interrogatory requests for the "sum of all amounts actually paid to [the Cooperative] by any person or payor for care or services rendered by Dr. When

Keeshan" for each year from 2000 to 2004.

S.A. 200-01.

Keeshan multiplied these yearly fees by 0.4 and then compared the result to her corresponding base salary for those years, it was clear that her base salary always exceeded 40 percent of these collected fees. Keeshan calculation anything jury's of disputed her the accuracy fees, which we but can was of the Cooperative's not offer the to

collected from

she

did

more verdict

accurate for the

conclude so

that as

Cooperative

off-base

indicate that it was "substantially swayed" by some resentment towards Keeshan's financial status at the time of trial.

Heater, 63 F.3d at 325. collected sums were

Hamilton testified to how Keeshan's and explained how insurance

calculated

adjustments factored in.

He said that part of the difficulty in

calculating Keeshan's collected sums, at least for the years 2000-2002, was because Keeshan 21 billed nurse practitioner

Case: 08-1270 Document: 54

Date Filed: 09/14/2010

Page: 22

services under Keeshan's provider number and Keeshan "set the appointment schedule such that it looked like she was seeing a large number of patients . . . but in reality, the nurse

practitioner was hidden in the appointment schedule under Dr. Keeshan's name." J.A. 108. He explained that the Cooperative

then had to "go and do a manual count by hand employing extra people to go through 13,000 records to sort out who was actually doing what." requesting J.A. 109. After receiving Keeshan's memorandum bonuses, the Cooperative rehired a

productivity

previous employee from the billing office who had assisted in separating nothing in Keeshan's the billings to from 2000 that to 2002. jury We find

record

indicate

the

accepted

calculations so blatantly inaccurate that we can infer that its Wages Act verdict was tainted by Keeshan's subsequent income. Keeshan's testimony on the numbers was not overflowing with

conviction.

She explained that some of her figures came from

"extrapolation" based on "other physicians in the community who had a similar pay mix and [were] doing similar work." J.A. 200.

She kept "handwritten post-its" of the procedures she performed, which she later threw out. J.A. 266-67. The record leaves us

more than fairly assured that the jury's verdict on the Wages Act claim was not substantially swayed by the erroneously

admitted testimony on Keeshan's subsequent income.

22

Case: 08-1270 Document: 54

Date Filed: 09/14/2010

Page: 23

Because there was ample evidence indicating that the verdicts were not substantially swayed by the erroneously

admitted testimony, we readily conclude that the district court did not abuse its discretion by denying Keeshan's motion for a new trial. "In considering a motion for a new trial, a trial

judge may weigh the evidence and consider the credibility of witnesses, and if he finds the verdict is against the clear weight result of in the a evidence, miscarriage is of based on false he evidence set or will the

justice,

must

aside

verdict, even if supported by substantial evidence, and grant a new trial." Eng'g Corp., Chesapeake Paper Prods. Co. v. Stone & Webster 51 F.3d 1229, 1237 (4th Cir. 1995) (internal

citations and quotations omitted). the decision "save in the most

This court will not reverse exceptional circumstances"

evincing a "clear abuse of discretion."

Bristol Steel & Iron

Works v. Bethlehem Steel Corp., 41 F.3d 182, 186 (4th Cir. 1994) (internal citations and quotations omitted). In support of her motion for a new trial, Keeshan

submitted an affidavit swearing that she heard "gasps from the jury box" when she revealed her subsequent income, and that some jurors looked at her with open mouths and astonished eyes. 373. The Cooperative contends that this affidavit J.A. is

inadmissible under Fed. R. Evid. 606(b), which provides that "evidence of any statement by the juror may not be received on a 23

Case: 08-1270 Document: 54

Date Filed: 09/14/2010

Page: 24

matter

about

which including

the

juror

would

be the

precluded juror's Id. as the

from mental

testifying," processes affidavit impression in

matters with"

"concerning the

connection more the

verdict.

Keeshan's Keeshan's jury, not

is of

accurately of her

characterized testimony on

effect

evidence of a juror statement.

Regardless, even if the district

court credited Keeshan's recollection, the court did not abuse its discretion in concluding any that the clear weight from of the

evidence testimony.

outweighed

possible

prejudice

Keeshan's

As explained above, the record leaves us assured

that the jury correctly applied the law. C. Finally, district court we take not up have Keeshan's imposed argument on that as the the

should

costs

her

losing party. As an initial matter, we reject the Cooperative's contention that this argument was not preserved for appeal

because Keeshan's notice of appeal did not explicitly indicate that she was challenging the district court's imposition of

costs.

Federal Rule of Appellate Procedure 3(c)(1)(B) requires

appellants to "designate the judgment, order, or part thereof being appealed." "We liberally construe Rule 3(c)'s

requirements concerning the sufficiency of the notice of appeal to avoid technical impediments to appellate review." Spence v.

Educ. Credit Mgmt. Corp. (In re Spence), 541 F.3d 538, 543 (4th 24

Case: 08-1270 Document: 54

Date Filed: 09/14/2010

Page: 25

Cir. 2008).

"[E]ven when a party files a notice of appeal that

is technically at variance with the letter of a procedural rule, a court may nonetheless find that a litigant has complied with the rule if the litigant's action is the functional equivalent of what the rule requires." United States v. Little, 392 F.3d "[A]n

671, 681 (4th Cir. 2004) (internal quotations omitted).

error in designating the issue appealed will not result in a loss of appeal can as long fairly as the intent and to the appeal a specific is not

judgment

be

inferred

appellee

prejudiced by the mistake."

Bogart v. Chapell, 396 F.3d 548,

555 (4th Cir. 2005) (internal citations and quotations omitted). "The appellant simply needs to address the merits of a

particular issue in her opening brief in order to demonstrate that she had intent to appeal that issue and the appellees were not prejudiced by her mistake, inasmuch as they had notice of the issue and the opportunity to fully brief it." Id.

Keeshan's notice of appeal says that she appeals "from the final judgments and orders granting summary judgment and denying Plaintiff's Motion for New Trial." J.A. 378. The

district court's imposition of costs is a final judgment and although Keeshan did not specifically designate the cost issue in her notice of appeal, she addressed the merits in her opening brief and the has Cooperative not shown responded prejudice 25 in from its brief. lack The of

Cooperative

Keeshan's

Case: 08-1270 Document: 54

Date Filed: 09/14/2010

Page: 26

specificity

in

the

notice.

Keeshan's

costs

challenge

is

therefore properly before this court. As Keeshan acknowledges, her contention that costs

should be awarded to prevailing Title VII defendants only in rare circumstances is contrary to the plain language of Federal Rule of Civil Procedure 54(d)(1) and the law of this circuit. Rule 54(d)(1) presumes that costs are awarded to the prevailing party: "Unless a federal statute, these rules, or a court order provides otherwise, costs ­ other than attorney's fees ­ should be allowed to the prevailing party." of costs is reviewed Corp., for 186 abuse F.3d of 442, A district court's award discretion. 446 (4th Cherry Cir. v.

Champion

Int'l

1999).

However, Rule 54(d)(1) places some restraint on this discretion by indicating when costs should not be awarded to prevailing parties as a matter of course, such as when a statute or a court order provides otherwise. In Cherry we held that when a statute

or federal rule of civil procedure does not shift costs to the prevailing party, a court may not do by so the except in rare party

circumstances

including:

"misconduct

prevailing

worthy of a penalty"; "the losing party's inability to pay"; the "excessiveness "limited value [of of the the costs] in a particular case"; or "the "the

prevailing

party's

victory";

closeness and difficulty of the issues decided." Id.

26

Case: 08-1270 Document: 54

Date Filed: 09/14/2010

Page: 27

The courts'

Supreme to

Court award

has

held

that

Title to

VII

cabins

discretion

attorneys'

fees

prevailing

defendants, but the Court has not held the same with regard to costs. A prevailing Title VII defendant should not be awarded

attorneys' fees from the losing plaintiff unless the court finds that the plaintiff's claim was "frivolous, unreasonable, or

groundless, or that the plaintiff continued to litigate it after it clearly became so." Christiansburg Garment Co. v. Equal

Employment Opportunity Comm'n, 434 U.S. 412, 422 (1978). Most circuits, including this one, have rejected the argument that an unsuccessful Title VII plaintiff's good faith in bringing the suit will likewise shield her from being taxed with her opponent's costs. "[G]ood faith, standing alone, is an

insufficient basis for refusing to assess costs against [the losing] party." Cherry, 186 F.3d at 446; see also Pacheco v.

Mineta, 448 F.3d 783, 794 (5th Cir. 2006) ("Every circuit to expressly address the question in a published opinion ­ the

Fourth, Sixth, Seventh, Ninth and Tenth ­ has ruled that good faith, by itself, cannot defeat the operation of Rule

54(d)(1)."); Cosgrove v. Sears, Roebuck, & Co., 191 F.3d 98, 101 (2d Cir. 1999) ("We see no reason . . . to apply the same type of heightened [Christiansburg] standard to the assessment of

costs.").

27

Case: 08-1270 Document: 54

Date Filed: 09/14/2010

Page: 28

Keeshan

contends

that

there

is

no

reason

to

distinguish between costs and attorneys' fees under Title VII. She therefore urges us to reverse Cherry and extend

Christiansburg's bad faith standard to costs. overrule Collins, the 415 decision F.3d 304, of a prior (4th panel. Cir.

This panel cannot United States v. we

311

2005).

Moreover,

disagree that there is no reason to distinguish between costs and attorneys' fees for unsuccessful Title VII plaintiffs who litigated in good faith. Christiansburg's bad-faith standard

was grounded in the rationale that if unsuccessful Title VII plaintiffs were taxed with defendants' attorneys' fees, this

"would undercut the efforts of Congress to promote the vigorous enforcement of the provisions of Title VII." 434 U.S. at 422.

The same deterrent rationale does not necessarily hold true for costs, which are typically much less than attorneys' fees. 3 See

Poe v. John Deere Co., 695 F.2d 1103, 1108 (8th Cir. 1982) ("Congress has not . . . carved out an exception to Rule 54(d) relieving bearing a the losing costs is of civil of rights litigant The of the burden for of

litigation. Whereas fees

rationale the

this and with

distinction

clear. attorney's

magnitude parties

unpredictability
3

would

deter

The district court taxed Keeshan with costs in the amount of $ 2823.05. It is safe to assume that this sum is far less than the Cooperative's attorneys' fees. 28

Case: 08-1270 Document: 54

Date Filed: 09/14/2010

Page: 29

meritorious claims from litigation, the costs of suit in the traditional sense are predictable and, compared to the costs of attorneys' fees, small."). And, as the Seventh Circuit has

observed, "[i]f the awarding of costs could be thwarted every time the unsuccessful party is a normal, average party and not a knave, Rule 54(d) would have little substance remaining."

Popeil Bros. v. Schick Elec., Inc., 516 F.2d 772, 776 (7th Cir. 1975). The district court thus acted well within its discretion

by taxing Keeshan with the Cooperative's costs. The district court also properly taxed Keeshan with costs on her Payment of Wages Act claim because the Cooperative was the prevailing party. If an employer is found liable under

the Wages Act, "the employee may recover in a civil action an amount equal to three times the full amount of the unpaid wages, plus costs and reasonable The attorney's allows fees." prevailing S.C. Code Ann. to

§ 41-10-80(C).

statute

plaintiffs

recover treble damages, costs, and attorneys fees, but it is silent on when losing plaintiffs may avoid the attorneys' fees and costs of their successful opponents. Therefore, Rule

54(d)(1)'s presumption of awarding costs to the prevailing party applies.

29

Case: 08-1270 Document: 54

Date Filed: 09/14/2010

Page: 30

III. For the foregoing reasons, the judgment of the

district court is AFFIRMED.

30