for the Fourth Circuit for the Fourth Circuit for the Fourth Circuit Joyce K. Dennis v. Columbia Colleton Medical Center, Incorporated

Filed: June 25, 2002
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Nos. 01-1338(L)
(CA-98-2694-2-18)
Joyce K. Dennis,
Plaintiff - Appellee,
versus
Columbia Colleton Medical Center, Inc.,
Defendant - Appellant.
O R D E R
The court amends its opinion filed May 16, 2002, and reported
at 290 F.3d 639 as follows:
On page 3, first paragraph of text, line 6 -- the citation is
corrected to read “42 U.S.C. § 2000e.”
For the Court - By Direction
/s/ Patricia S. Connor
Clerk

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PUBLISHED PUBLISHED PUBLISHED PUBLISHED
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT FOR THE FOURTH CIRCUIT FOR THE FOURTH CIRCUIT FOR THE FOURTH CIRCUIT
JOYCE K. DENNIS,
Plaintiff-Appellee,
v.
COLUMBIA COLLETON MEDICAL
CENTER, INCORPORATED,
Defendant-Appellant,
and No. 01-1338
COLUMBIA HCA HEALTHCARE
CORPORATION, of South Carolina;
WALTERBORO COMMUNITY HOSPITAL,
Incorporated; COLLETON MEDICAL
CENTER; HEALTHTRUST,
INCORPORATED,
Defendants.

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JOYCE K. DENNIS,
Plaintiff-Appellant,
v.
COLUMBIA COLLETON MEDICAL
CENTER, INCORPORATED,
Defendant-Appellee,
and No. 01-1350
COLUMBIA HCA HEALTHCARE
CORPORATION, of South Carolina;
WALTERBORO COMMUNITY HOSPITAL,
Incorporated; COLLETON MEDICAL
CENTER; HEALTHTRUST,
INCORPORATED,
Defendants.
Appeals from the United States District Court
for the District of South Carolina, at Charleston.
David C. Norton, District Judge.
(CA-98-2694-2-18)
Argued: January 22, 2002
Decided: May 16, 2002
Before WILLIAMS and KING, Circuit Judges, and
Cynthia Holcomb HALL, Senior Circuit Judge of the
United States Court of Appeals for the Ninth Circuit,
sitting by designation.
____________________________________________________________
Affirmed by published opinion. Senior Judge Hall wrote the opinion.
Judge King wrote an opinion concurring in part and dissenting in part.
Judge Williams wrote an opinion dissenting in part and concurring in
part in the judgment.
____________________________________________________________
2

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COUNSEL COUNSEL COUNSEL COUNSEL
ARGUED: ARGUED: ARGUED: ARGUED: M. Dawes Cooke, BARNWELL, WHALEY, PATTER-
SON & HELMS, L.L.C., Charleston, South Carolina, for Appellant.
Margaret D. Fabri, Charleston, South Carolina, for Appellee. ON ON ON ON
BRIEF: BRIEF: BRIEF: BRIEF: Lucinda Gardner Wichmann, BARNWELL, WHALEY,
PATTERSON & HELMS, L.L.C., Charleston, South Carolina; Mark
E. Edwards, Jeanne Casstevens Thomas, Nashville, Tennessee, for
Appellant.
____________________________________________________________
OPINION OPINION OPINION OPINION
HALL, Senior Circuit Judge:
Appellant/Cross-Appellee Columbia Colleton Medical Center
("Colleton") employed Appellee/Cross-Appellant Joyce Dennis as an
emergency room registration clerk. In June 1997, Dennis was passed
over for promotion to the position of registration supervisor in favor
of an outside candidate, Johnny Bridge. Dennis brought suit pursuant
to Title VII, 42 U.S.C. § 2000e, alleging discrimination based on
gender. After a trial in which the jury found in favor of Dennis, Colle-
ton filed motions for judgment as a matter of law and a new trial,
which were denied. Colleton appeals the denial of its post-trial
motions, as well as the district court's award of back pay and assess-
ment of attorney's fees. Dennis cross-appeals the district court's post-
trial reduction of a $25,000 jury award for emotional distress. We
affirm.
I.
In May 1996, Dennis was employed by Colleton as a part-time
emergency room registration clerk. At the time she was hired, Dennis
was a 19-year-old high school graduate who had worked a number of
service jobs and was enrolled in an Emergency Medical Services
("EMS") training course. On January 20, 1997, Dennis transferred to
a full-time position as a technician in the Labor and Delivery Depart-
ment. On March 30, 1997, Dennis returned to the emergency room as
a full-time registration clerk. For the roughly 15 months that she
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worked at the hospital, Dennis was a diligent and hardworking
employee who generally earned positive assessments for her work.
At the time of Dennis' transfer back to the emergency room, man-
agement of the Registration Department was in a state of some disar-
ray. Either during or soon after her return, a new registration
supervisor was hired. The supervisor had difficulty coping with the
position and abruptly resigned on June 15, 1997, leaving the depart-
ment without a supervisor. During an approximately eight week
period when the department was without a formal supervisor, Dennis
would periodically carry out some supervisory duties, including train-
ing new employees and fielding operational questions.
Dennis applied for the position of registration supervisor once it
was formally opened. On June 20, 1997 she interviewed with Jennifer
Wray, the decision-maker normally responsible for filling this posi-
tion. During the interview, Wray made an inappropriate comment
suggesting that although she would personally like to promote her,
Dennis would not get the promotion due to an affair she was rumored
to be having with a doctor. Dennis denied the affair and complained
to Jimmy Hiott, Colleton's chief financial officer and Wray's direct
superior. After consulting with colleagues in senior management,
Hiott chose to reprimand Wray and take over the selection process
himself.
The process that Hiott applied was peculiarly informal. Hiott
reviewed Dennis' initial application to the hospital, but did not per-
sonally interview her. Nor did he inquire into her experience since
joining the hospital or check her references or evaluations. Hiott did
however interview Bridge, a 32-year-old who was at that time work-
ing full-time as a transportation and computer manager at Clean Man-
agement Environmental Group. Bridge's wife had worked at Colleton
in data processing and was acquainted with Hiott. Bridge himself also
had some extremely limited experience at Colleton working as a part-
time "PRN PBX operator," which entailed operating the PBX switch-
board system nights and weekends on an "as needed" basis. Because
the PBX was physically near Registration, he also received some reg-
istration training and worked a few shifts in Registration on an infor-
mal basis. The record is unclear as to whether Bridge formally applied
4

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for the supervisor's position and as to how Hiott became aware that
he would be interested in it.
In addition to Dennis and Bridge, the record also offers disputed
evidence of a third candidate, Tonya Williams, who was then working
at Colleton's business office. Williams, an African-American woman,
had roughly seven years experience working in Registration, a degree
in computer technology and, unlike either Dennis or Bridge, met the
formal requirements for the supervisory position. Hiott claimed that
he was never made aware of Williams' application, and Colleton
offered supporting evidence that it may have been submitted or at
least discovered by the head of human resources after the position
was already filled. However, the date on William's transfer request
form was timely, and the director of human resources testified at
deposition that she had forwarded the application to Wray. Although
she later claimed that this was after the position was already filled,
Wray did know about Williams' interest in the position before Hiott
took over the hiring process because she conducted an interview with
her on the same day that she interviewed Dennis.
In any event, Hiott awarded the position to Bridge. His proffered
explanation was that he selected Bridge for his management and com-
puter skills. Hiott claimed at trial that at the time of the decision he
was aware that Registration needed someone with such skills in order
to reform a badly disorganized department and oversee a planned
change in computer systems. He asserted that he had posed various
hypothetical problems to Bridge during his interview and had been
highly impressed by his answers. Based on this favorable impression
and his prior knowledge of Bridge's affinity for computers, he offered
him the job.
Dennis was not as impressed. After learning of the promotion deci-
sion, she quit her position at Colleton and filed an EEOC charge and
subsequent suit alleging discriminatory failure to promote as well as
defamation. Colleton moved for summary judgment on all causes of
action, and the motion was granted on April 6, 2000. However, Den-
nis filed a motion for reconsideration on June 23, 2000, based on the
Supreme Court holding in
Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133 (2000). On August 14, 2000, the district court
reversed its previous order except as to the defamation charge.
5

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The case was then tried to a jury except the issues of compensatory
front pay and back pay, which the parties agreed to have tried sepa-
rately before the district court judge. After Colleton's motion for
judgment as a matter of law was denied, the jury found in favor of
Dennis on the discrimination claim and awarded $25,000 in compen-
satory damages for emotional distress. After a separate hearing, the
district court awarded $31,302 in back pay. It also granted
$104,765.80 in attorney's fees and costs.
Following the trial, Colleton filed a renewed motion for judgment
as a matter of law and a motion for a new trial. The district court
denied both motions, but granted a request to nullify the jury's
$25,000 award for emotional distress.
II.
A.
MOTION FOR JUDGMENT AS A MATTER OF LAW
Colleton appeals the district court's denial of its motion for judg-
ment as a matter of law. A Rule 50(b) motion for judgment as a mat-
ter of law follows the same standard as a Rule 56 motion for summary
judgment. When reviewing a district court's ruling, we apply the
same standards
de novo.
Brown v. CSX Transportation, Inc., 18 F.3d
245, 248 (4th Cir. 1994);
Taylor v. Virginia Union University, 193
F.3d 219, 230 (4th Cir. 1999). In doing so, we must view the evidence
in the light most favorable to Dennis, the nonmovant, and draw all
reasonable inferences in her favor without weighing the evidence or
assessing the witnesses' credibility.
See Baynard v. Malone, 268 F.3d
228, 234 (4th Cir. 2001). "The question is whether a jury, viewing the
evidence in the light most favorable to [Dennis], could have properly
reached the conclusion reached by this jury."
Benesh v. Amphenol
Corp., 52 F.3d 499, 502 (4th Cir. 1995). We must reverse if a reason-
able jury could only rule in favor of Colleton; if reasonable minds
could differ, we must affirm.
Sales v. Grant, 158 F.3d 768,775 (4th
Cir. 1998);
see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250 (1986) (explaining that judgment as a matter of law is proper if
"there can be but one reasonable conclusion as to the verdict.").
1.
Qualifications
Colleton first argues that Dennis failed to offer sufficient evidence
to make out a prima facie case of gender discrimination. We begin by
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noting that while this argument is couched in terms of the burden
shifting framework of
McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973), that approach is inapposite when a trial has proceeded to
completion.
Gibson v. Old Town Trolley Tours of Washington D.C.,
160 F.3d 177, 180 (4th Cir. 1998). At trial, Dennis shed the interme-
diate burdens of
McDonnell Douglas, and faced the ultimate burden
of proving her case. Thus, we treat Colleton's claim on appeal as
alleging that no reasonable jury could have found discrimination in
failing to promote Dennis for the reason that she was plainly unquali-
fied for the job.
We disagree. It is true that Dennis did not satisfy all of the criteria
in the written job description for the registration supervisor's position.
But, like Dennis, Bridge also lacked certain formal qualifications.
Colleton listed the education and experience requirements for the
position as follows:
A. Education
1. High School graduate.
2. Preferably courses in medical terminology
management, or comparable experience.
3. College business courses and/or courses in a
medically related field preferred.
B. Experience
1. Minimum three years experience in a hospital
business office setting.
2. Management experience preferred.
3. Minimum three years experience in third party
reimbursement requirements (i.e., Medicare,
Medicaid, Champus, HMO's, PPO's, and
Commercial).
4. Excellent communication skills.
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5. Basic knowledge of computers required.
6. Prefer ICD-9 coding knowledge.
7. H-BOSS experience highly desirable.
It is undisputed that neither candidate satisfied all of these require-
ments. Neither had three years experience in a hospital business office
or in third party reimbursement requirements. Neither had college
business courses or courses in medical terminology management,
although Dennis did have EMS training.
At the same time, Dennis arguably satisfied the written require-
ments as a whole better than Bridge, who had some limited manage-
ment experience elsewhere, but who had less hospital experience and
lacked familiarity with ICD-9 coding (a system for coding diagnoses
for insurance purposes) and H-BOSS (Registration's computer data
base). Except for three years' job experience, Dennis also met all of
the criteria listed as mandatory.
The fact that Bridge was hired despite himself lacking several for-
mal qualifications listed as required demonstrates that they were not
mandatory in the actual case. Rather, the job description was at most
treated as a list of desirable qualifications. Because Dennis demon-
strated that she satisfied this aspirational list at least as well as Bridge,
she produced sufficient evidence for a reasonable jury to conclude
that she was qualified for the job.
2.
Pretext
Colleton's primary argument is that the case presented by Dennis
was based solely on prima facie evidence of the candidates' qualifica-
tions and evidence tending to disprove Hiott's claimed reasons for
hiring Bridge. Colleton claims that this was insufficient evidence for
a reasonable jury to find discrimination. Again, we disagree.
Under the
McDonnell Douglas framework, once an employer has
met its burden of producing a legitimate nondiscriminatory explana-
tion for its decision, the plaintiff is afforded the "opportunity to prove
8

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by a preponderance of the evidence that the legitimate reasons offered
by the defendant were not its true reasons, but were pretext for dis-
crimination."
Texas Dept. of Community Affairs v. Burdine, 450 U.S.
248, 253 (1981). That is, Dennis could attempt to establish that she
was the victim of intentional discrimination by "showing that the
employer's proffered explanation is unworthy of credence."
Id. at
256. The first thrust of Colleton's argument is that Dennis failed to
make a sufficient showing that Colleton's proffered reason for hiring
Bridge was false.
Dennis did provide sufficient evidence of falsity. First, she pro-
vided evidence that Hiott offered inconsistent justifications for his
promotion of Bridge. At deposition, Hiott claimed that it was only
Bridge's managerial experience that made him a superior candidate. 1111
At that time, he was unable to recall many details about the hiring
process. However, when testifying at trial over a year and a half later
(and after Bridge had moved to a position in information technologies
within the hospital), Hiott's memory of the details of the hiring pro-
cess seemed to dramatically improve, and he asserted that it was both
managerial experience and computer knowledge that set Bridge apart.
Both of these explanations, of course, differed from the written job
qualifications, giving them the flavor of post-hoc rationalizations. 2222
____________________________________________________________
1111 When asked if there were "any other qualities that you thought that
he had that were superior to Ms. Dennis?" Hiott answered "no." (Tr. of
Trial Vol. I. at 253).
2222 Contra the dissent, we do not say that Hiott's emphasis on manage-
ment experience to the exclusion of other job criteria listed in the posted
job description was alone probative of pretext. It is the fact that Colle-
ton's proferred explanation for promoting Bridge over Dennis exhibited
inconsistencies is probative. We agree that the business world is a "dy-
namic" one in which the relative importance of various job qualifications
may change over time. However, we also recognize the reality that an
employer asked to justify its actions after the fact has an incentive to
claim that the "real" criteria were those on which the chosen employee
happens to perform best relative to the plaintiff. When an employer picks
one of a list of posted job qualifications and claims that it was actually
decisive without regard to the others, the jury is certainly permitted to
conclude, in light of the totality of the evidence, that this may have been
done as a post hoc justification of a decision made on other grounds.
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The fact that an employer has offered inconsistent post-hoc explana-
tions for its employment decisions is probative of pretext,
EEOC v.
Sears Roebuck, 243 F.3d 846, 852-53 (4th Cir. 2001), and indeed the
district court reports that the jury did appear to take note of these
inconsistencies, asking to rehear relevant portions of Hiott's trial testi-
mony and deposition.
Equally importantly, Dennis' evidence of the unequal way in which
Hiott conducted the promotion process could have persuaded the jury
that Bridge did not give Dennis fair consideration but rather discrimi-
nated against her. While Hiott appeared to take the initiative with
Bridge, seeking out his candidacy and intensively interviewing him,
he did not even look into Dennis' in-house work experience, training
or evaluations. Hiott claimed to dismiss Dennis' application for lack
of management experience without knowing the full extent of that
experience. Dennis also presented evidence tending to suggest that the
other female applicant, Williams, may have been denied fair consider-
ation despite the fact that she was the only candidate possessing all
of the written job qualifications. In light of this evidence, the jury
could reasonably have concluded that Hiott never gave Dennis fair
consideration because he had already decided for other reasons not to
promote her, and that his proffered explanations for his choices were
merely post-hoc pretexts covering a predisposition favoring Bridge as
a male.
Finally, Dennis also presented sufficient evidence for the jury to
have concluded that Bridge's management and computer skills were
overplayed by Hiott. Bridge's only verified management experience
consisted of managing a small Family Dollar store for eleven months
more than four years earlier. He received an "F" in the only computer
____________________________________________________________
In this case there was sufficient evidence for the jury to reach this con-
clusion. In addition to the inconsistent justifications noted above, the jury
was entitled to find Hiott's proffered explanation that he deviated from
the formal job requirements due to a special concern for the need for a
strong manager inconsistent with evidence produced by Dennis that Hiott
exhibited little concern for or knowledge of how the department was
being managed either before or after the hiring decision. (Tr. of Trial
Vol. II 477-478, 485-488).
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course he ever took. While it is certainly possible, as Colleton argued,
that this grade was not reflective of his computer knowledge at the
time he was hired, this was an issue for the trier of fact. On review,
we are limited to concluding that the jury could have determined
based on the facts at trial that Hiott did not hire Bridge due to his
allegedly superior skills. 3333
____________________________________________________________
3333 The dissent asserts that Hiott's determination that Bridge possessed
superior management experience as compared to Dennis is unassailable.
Not so. At a minimum, the jury could reasonably have concluded that
any superiority was marginal and viewed this fact as probative of the
veracity of Hiott's claim that he was looking for a strong manager to
stem a state of chaos in the registration department or of his explanation
for his decision to interview Bridge but not Dennis.
Viewing the evidence in the light most favorable to Dennis, Hiott
knew only that Bridge had managed a small Family Dollar store in
Hampton, South Carolina for less than a year. This was the only manage-
ment experience that Hiott recalled in his deposition or at trial. The dis-
sent would make much of the fact that Bridge listed "transportation
manager" and "marketing coordinator" in the employment section of his
application to work as a PBX operator. However, the full record indi-
cates that neither of these were management jobs and there is no indica-
tion that Hiott understood them as such. Under the line on which Bridge
described his then current position at Clean Management Environment as
"transportation manager" he was instructed to describe his principle
responsibilities in that position. Bridge listed these as "upkeep of com-
puter systems and truck dispatch." (J.A. at 364). No managerial duties
were listed, and Dennis provided independent testimony from a former
co-worker at Clean Management that Bridge had no supervisory duties
in that position. Similarly, the responsibilities Bridge listed as a "market-
ing coordinator" at Coastal Electric Coop were "upkeep of computers
and program development," which do not indicate any management role.
(J.A. at 364).
The dissent also cites the testimony of Dr. Ann Jonason, a director at
Colleton, as independent evidence of Bridge's superior management
skills. Dr. Jonason testified that she interviewed Bridge prior to his pro-
motion. However, Dr. Jonason's testimony about her impression of
Bridge is irrelevant because she was not the decision maker. Hiott testi-
fied that he did not recall asking Jonason to interview Bridge or consider
any input from her in making his decision. (Tr. of Trial Vol. II at 457-
459).
11

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In disputing this conclusion, Colleton would have us apply a test
allegedly derived from
Deines v. Texas Dept. of Protective Services,
164 F.3d 277, 280-81 (5th Cir. 1999), requiring a plaintiff to make an
evidentiary showing that the superiority of her qualifications are so
substantial as to "jump off the page and slap [you] in the face" before
a jury may find pretext.
See also Lee v. GTE Florida, Inc., 226 F.3d
1249, 1254 (11 Cir. 2000). This argument misapprehends either the
holdings of
Deines and
Lee or Dennis' evidence of pretext.
Deines
and
Lee require judges and juries in those Circuits to be "slapped in
the face" only when the
sole evidence of pretext is the superior quali-
fications of the plaintiff. While Dennis, like most Title VII plaintiffs,
argues that her qualifications were superior or at least equal to those
of the person given preference over her, the jury's finding of pretext
does not stand or fall on this claim.
The second thrust of Colleton's argument is that even if the jury
could disbelieve Hiott's explanations, Dennis' evidence—limited as
it was to her prima facie case and facts tending to discredit those
explanations—was still insufficient to support her ultimate burden of
demonstrating discrimination.
In analyzing this issue, we are guided by the Supreme Court's deci-
sion in
Reeves, which holds that "[i]n appropriate circumstances, the
trier of fact can reasonably infer from the falsity of the explanation
that the employer is dissembling to cover up a discriminatory pur-
pose." 530 U.S. at 147.
See also St. Mary's Honor Center v. Hicks,
509 U.S. 502, 511 (1993). The
Reeves court noted that "the fact-
finder's rejection of the employer's legitimate, nondiscriminatory rea-
son for its action does not compel judgment for the plaintiff." 530
U.S. at 146. However, "[t]he factfinder's disbelief of the reasons put
forward by the defendant (particularly if disbelief is accompanied by
a suspicion of mendacity) may, together with the elements of the
prima facie case, suffice to show intentional discrimination."
Id. at
147. This follows both from the strength of the prima facie evidence
in creating an inference of discrimination, and "the general principle
of evidence law that the factfinder is entitled to consider a party's dis-
honesty about a material fact as affirmative evidence of guilt."
Id.
(internal quotations omitted). 4444
____________________________________________________________
4444 While claiming to adhere to the framework mandated in
Reeves, the
dissent would require more of plaintiffs by requiring them to meet the
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In fleshing out how to apply this rule,
Reeves also provides two
examples of situations when a plaintiff's showing may not be enough
to support a jury verdict in its favor: "[A]n employer would be enti-
tled to a judgment as a matter of law if the record
conclusively
____________________________________________________________
test specified in the pre-
Reeves case of
Evans v. Techs. App. Serv. Co.,
80 F.3d 954, 960 (4th Cir. 1996). In
Evans, this circuit held that plaintiffs
such as Dennis are required to establish that they are better qualified for
the position sought than those to whom the position is actually given.
Reeves plainly instructs us to apply a contrary approach by affirming that
it is permissible for the trier of fact to infer the ultimate fact of discrimi-
nation from the falsity of the employer's explanation. 530 U.S. at 147.
While the dissent argues that
Evans is consistent with
Reeves, we frankly
do not see how its argument that "the relative qualifications of competing
employees are part of the analytical framework relevant to proving pre-
text" advances its argument. If, by this, the dissent means that an
employee is required as a matter of logic to show that she was the supe-
rior candidate in order to refute an employer's claim that it hired some-
body else for their superior qualifications, we respectfully disagree. One
way to prove the plaintiff's case would certainly be to show that her
qualifications were so plainly superior that the employer could not have
preferred another candidate. But an equally valid way to prove pretext is
to provide evidence that the employer's proffered reason was not the
actual reason relied on, but was rather a false description of its reasoning
—albeit one based on a real difference in qualifications—manufactured
after the fact.
Indeed, this is often the only way a plaintiff can reasonably be
expected to show pretext. Employers are free within certain bounds to
choose the criteria by which they may legitimately assess employees. In
comparing any two employees, it is often the case that each is superior
on at least a few of the possible criteria that could be used in assessing
their qualifications. Given these facts, it is not farfetched to suppose that
discriminatory employers might be likely to choose to emphasize at trial
those characteristics on which their chosen candidates were superior in
order to construct pretextual explanations that are as plausible as possi-
ble. If plaintiffs were required to show they were superior on the criteria
chosen at trial by their employers, rather than being free to show that the
criteria were not the ones actually used, the
McDonnell Douglas frame-
work would become a shield for employers rather than a tool to frame
the factual issue with sufficient clarity so that the plaintiff will have a full
and fair opportunity to demonstrate pretext. See
Burdine 450 U.S. at 255.
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revealed some other, non-discriminatory reason for the employer's
decision, or if the plaintiff created only a weak issue of fact as to
whether the employer's reason was untrue and there was
abundant
and uncontroverted independent evidence that no discrimination had
occurred."
Id. at 148 (underlining added). We note that these exam-
ples are not meant to be exhaustive.
Reeves specifically leaves open
the possibility that other circumstances could entitle an employer to
judgment as a matter of law. Thus, it instructs more broadly that fac-
tors on which the appropriateness of a judgment as a matter of law
will depend in any case will include "the strength of the plaintiff's
prima facie case, the probative value of the proof that the employer's
explanation is false, and any other evidence that supports the employ-
er's case and that properly may be considered on a motion for judg-
ment as a matter of law."
Id. at 148-49.
At the same time, while not exhaustive, the examples provided in
Reeves do preclude us from ordering judgment as a matter of law
when a defendant has merely made a lesser evidentiary showing of
the very same factors they include. That is, such a judgment requires
a more conclusive evidentiary showing by Colleton than the mere pre-
sentation of circumstances suggesting
possible alternatives to both
discrimination and its proffered nondiscriminatory reason for prefer-
ring Bridge. They also require more than the mere presentation of less
than "abundant" and "uncontroverted" evidence that discrimination
did not occur in combination with a weak showing of pretext by Den-
nis. To grant judgment as a matter of law under such circumstances
would be to intrude on the jury function by substituting our own judg-
ment for that of the finder of fact.
In light of this guidance, we conclude that Colleton does not satisfy
the threshold for judgment as a matter of law. The circumstances of
Dennis' case suggest some possible alternatives to both Hiott's expla-
nation and gender discrimination; namely that Dennis' reputed affair
actually did block her promotion as Wray warned it would, or that
Hiott's relation to Bridge's wife played a prominent role in his decision. 5555
____________________________________________________________
5555 We note that a decision not to promote Dennis because of an allega-
tion that she was involved in an extramarital affair might, but need not,
itself reflect gender bias depending on how a man would be treated in the
same circumstances. However, this was not an issue developed in the
record and we do not consider it here.
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However, the evidence of a possible third explanation was far from
"conclusive." Nor do we find the testimony that a number of senior
managers elsewhere at the hospital were women and that Hiott did
once hire a woman as registration supervisor so substantial as to con-
stitute "abundant and uncontroverted" evidence that Hiott acted law-
fully in this case. Even together, these showings were not sufficient
to compel a rational jury weighing the credibility of testamentary evi-
dence to find that there was no discrimination against Dennis. We
therefore find no sufficient basis to order judgment as a matter of law.
B.
MOTION FOR A NEW TRIAL
Colleton next appeals the district court's denial of its motion for a
new trial. Unlike the procedure under Rule 50(b), on a motion for a
new trial under Rule 59(e) a district court is permitted to weigh the
evidence.
Bristol Steel & Iron Works, Inc. v. Bethlehem Steel Corp.,
41 F.3d 182, 186 (4th Cir. 1994). The court should grant a new trial
only if 1) the verdict is against the clear weight of the evidence, 2)
is based on evidence which is false, or 3) will result in a miscarriage
of justice, even though there may be substantial evidence which
would prevent the direction of a verdict.
Knussman v. Maryland, 272
F.3d 625, 639 (4th Cir. 2001) (quoting
Atlas Food Sys. & Servs., Inc.
v. Crane Nat'l Vendors, Inc., 99 F.3d 587, 594 (4th Cir. 1996)). We
review the district court's decision not to order a new trial for clear
abuse of discretion and will not reverse absent exceptional circum-
stances.
Bristol Steel, 41 F.3d at 186.
Colleton's argument on appeal for a new trial largely mirrors that
of its appeal for a judgment as a matter of law. In addition to repeat-
ing its arguments about the insufficiency of the evidence, it also
attacks the district court's instructions to the jury. Specifically, it
would have us find the instructions on pretext, which included lan-
guage taken directly from
Reeves, insufficient because they did not
include: 1) an instruction that Dennis was required to establish her
superiority as a candidate and including the "slap in the face" test, and
2) a "counterbalancing" instruction emphasizing that the jury was not
required to conclude Colleton had discriminated when other alterna-
tives to its proffered explanation were available.
The instructions stated:
15

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If you find that the defendant has stated a valid reason, then
you must decide in favor of the defendant unless the plain-
tiff proves by a preponderance of evidence that the stated
reason was not the true reason but it is only a pretext or
excuse for discriminating against the plaintiff because of her
sex.
A pretextual reason could be a "sham" reason; a reason that
is false or a reason that is true, but not the real reason.
While the jury's rejection of defendant's legitimate, nondis-
criminatory reason for its action does not compel judgment
for the plaintiff, in appropriate circumstances, the jury can
reasonably infer from the falsity of explanation that the
employer is hiding the truth in order to cover up intentional
discrimination. The plaintiff's
prima facie case combined
with sufficient evidence to find that the employer's asserted
justification is false, may permit the jury to conclude that
the defendant unlawfully discriminated.
The fact that you might think that the employer misjudged
the qualifications of the applicants does not in and of itself
expose the defendant to Title VII liability, although this may
be probative of whether the employer's reasons are pretext
for discrimination.
As we found no basis in the evidence for ruling that the jury's find-
ings were unreasonable, we also find that the district court did not
abuse its discretion in preserving that ruling and denying Colleton's
motion for a new trial. The jury instructions were not improper
because they clearly and correctly stated the law and made clear that
the jury could, but did not have to, infer discrimination if it disbe-
lieved Colleton's explanation for Hiott's decision.
C.
BACK PAY
Colleton also claims that the district court's award of back pay
should be reversed because Dennis voluntarily quit her job immedi-
ately after being denied promotion. In the alternative, Colleton argues
16

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that the amount of back pay awarded should have been calculated
from the day Dennis left Colleton to January 1, 1998, when Bridge
was transferred and the supervisor position again became open. The
award granted by the district court calculated back pay from the day
Dennis was denied promotion to roughly the date of the final judg-
ment. We review the decision to award back pay for abuse of discre-
tion.
Maksymchuk v. Frank, 987 F.2d 1072, 1077 (4th Cir. 1993);
see
also Abemarle Paper Co. v. Moody, 422 U.S. 405, 414-19, 424
(1975).
As a general rule, back pay is to be awarded to successful Title VII
plaintiffs.
See Abemarle, 422 U.S. at 421-22. Back pay is awarded in
furtherance of the objectives of Congress in enacting Title VII to
create employer incentives to ensure equality of employment opportu-
nities and to make persons whole for injuries suffered on account of
unlawful discrimination.
Id. at 418-19. Back pay "should be denied
only for reasons which, if applied generally, would not frustrate the
central statutory purposes of eradicating discrimination throughout
the economy and making persons whole for injuries suffered through
past discrimination."
Id. at 421.
In reviewing awards of back pay, the Fourth Circuit does not apply
the "constructive discharge rule" denying such pay to persons who
leave an employer who has committed intentional discrimination
unless it is under conditions of a constructive discharge.
See Spagnu-
olo v. Whirlpool Corporation 641 F.2d 1109, 1114 (4th Cir. 1981).
Instead, we simply apply the general statutory duty located at 42
U.S.C. § 2000e-5(g) to mitigate employer damages.
Id.
In this case, Dennis reasonably mitigated Colleton's damages even
though she left its employ. Because she was at a low paying job, she
could be reasonably certain of finding equivalent pay elsewhere. After
leaving Colleton, Dennis actively applied for other work and quickly
did find comparable alternative employment in a doctor's office, and
later as an emergency medical technician. Dennis' expert testified that
she made substantially more money over the three year period
between leaving Colleton and trial than she would have made had she
stayed at the hospital after being denied promotion. Dennis' case is
thus parallel to the facts in
Spagnuolo, where the court refused to
overturn an award of back pay to an employee who voluntarily left
17

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his employer to work for a higher paying competitor.
Id. The district
court did not abuse its discretion.
As to Colleton's claim that the back pay period should have been
tolled when the supervisor's position once again became open, there
is no compelling reason to assume that Dennis would have received
the job. There is no precedent suggesting that the reopening of a posi-
tion that was the subject of a discrimination case would toll a back
pay period, and we decline to establish such a rule here.
D.
ATTORNEY'S FEES
42 U.S.C. § 2000e-5(k) permits a court to award attorney's fees to
the prevailing party in a Title VII suit. The purpose of awarding fees
is to encourage attorneys to prosecute cases that vindicate the objec-
tives of Title VII though they might be economically unattractive
under a contingency fee arrangement.
See Daly v. Hill, 790 F.2d
1071, 1076-77 (4th Cir. 1986) (analyzing 42 U.S.C. § 1988);
Hensley
v. Eckerhart, 461 U.S. 424, 433 n.7 (1983) (stating that the standard
under 42 U.S.C. § 1988 is identical to that of 42 U.S.C. § 2000e-5(k)).
Fees should be high enough to encourage attorneys to take cases with-
out awarding windfalls.
Martin v. Cavalier Hotel Corp. 48 F.3d 1343,
1359 (4th Cir. 1995).
In calculating attorney's fees, the Fourth Circuit employs the "lode-
star" formula, multiplying the number of hours reasonably expended
by counsel by a reasonable hourly rate. In making the reasonableness
determinations, a court is to use the twelve factor test articulated in
Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.
1974);
Daly, 790 F.2d at 1077-1078. We review the district court's
award for abuse of discretion.
Brodziak v. Runyon, 145 F.3d 194, 196
(4th Cir. 1998).
In its order, the district court correctly applied the lodestar method-
ology and explicitly documented its consideration of each of the
Johnson factors in determining reasonable hours and fees. While Col-
leton disputes the district court's judgment in applying several of the
Johnson factors, none of the court's assessments were outrageous or
provide a basis for a finding of abuse of discretion.
18

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Colleton also appears to dispute the finding that Dennis satisfied
the requirement that she be a "prevailing party," arguing "Dennis'
extremely limited success on her Title VII claim should be tempered
by her lack of success on her defamation and constructive discharge
claims as well as her lack of success against named defendants other
that Colleton." However, Dennis was clearly a "prevailing party"
under controlling Court precedent.
See Farrar v. Hobby 506 U.S. 103,
109 (1992) ("plaintiffs may be considered `prevailing parties' for
attorney's fees purposes if they succeed on any significant issue in lit-
igation which achieves some of the benefit the parties sought in bring-
ing suit);
Buckhannon Board and Care Home, Inc. v. West Virginia
Dept. of Health and Human Resources, 532 U.S. 598, 603 (2001)
(adopting the Black's Law Dictionary definition of "prevailing party"
as "[a] party in whose favor a judgment is rendered, regardless of the
amount of damages awarded.").
Colleton's appeal may alternatively be read to imply that the dis-
trict court's calculation of what constituted reasonable hours should
have been reduced in recognition that Dennis did not win on all her
claims. It is true that "when successful claims are unrelated to unsuc-
cessful claims, it is not appropriate to award fees for the latter."
Brodziak, 145 F.3d at 197. However, this rule is of no use to Colleton
because the district court did explicitly exclude hours worked on Den-
nis' losing claims from its lodestar calculation.
E.
EMOTIONAL DISTRESS
Lastly, we address Dennis' cross-appeal contesting the district
court's grant of Colleton's Rule 59(e) motion to alter the judgment by
nullifying the jury award for emotional distress. The court nullified
the damage award on the basis that Dennis had provided no evidence
of emotional distress other than conclusory statements that she was
"devastated" and "humiliated" by the events that transpired against
her. Dennis claims that she produced adequate evidence with testi-
mony describing the circumstances at Colleton that she found to be
distressful and humiliating, the degree of her anticipatory reliance on
getting the pay raise associated with the promotion, the added strain
felt by her and her family after she left Colleton, and the fact that she
was less able to spend time with her child after leaving Colleton due
to the fact that she had to take multiple jobs. We review the district
19

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court's ruling granting Colleton's Rule 59 motion for abuse of discre-
tion.
EEOC v. Lockheed Martin Corp., Aero & Naval Sys., 116 F.3d
110, 112 (4th Cir. 1997);
Collison v. Int'l Chem. Workers Union, 34
F.3d 233, 236 (4th Cir. 1994).
We find that the district court has not abused its discretion. In
Price
v. City of Charlotte, 93 F.3d 1241 (4th Cir. 1996), this court estab-
lished on the basis of federal importation of tort principles into civil
rights claims that "a plaintiff's testimony, standing alone, may support
a claim of emotional distress. . . ." 93 F.3d at 1251. However, in such
a case, "courts scrupulously analyze an award of compensatory dam-
ages."
Id. The injured party must "reasonably and sufficiently explain
the circumstances of [her] injury and not resort to mere conclusory
statements."
Id. (internal quotations omitted). The court further
explained that these principles established that the injury must be "de-
monstrable" and that the plaintiff must show a causal connection
between the violation and her emotional distress.
Id. Moreover, the
connection must be between the distress and the violation itself, not
the benefit denied.
Id.
Though Dennis explained the circumstances of her injury in the
sense that she described the reasons she felt upset and humiliated, she
provided no demonstrable evidence of distress such as testimony of
a physical symptom or a doctor's diagnosis. Moreover, most of the
distress to which she testified related to the consequences of her deci-
sion to leave Colleton and her probably exaggerated expectation of
receiving promotion rather than discrimination itself. The district
court was thus correct in finding that Dennis did not meet the legally
necessary requirements set out in
Price.
III.
For the foregoing reasons, the district court's denial of Colleton's
renewed motion for judgment as a matter of law and motion for a new
trial, as well as its grant of Colleton's motion to amend or alter the
Judgment as to compensatory damages for emotional distress are
affirmed. The district court's grant of Dennis' motion for back pay
and her counsel's motion for attorney's fees are also affirmed.
AFFIRMED
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KING, Circuit Judge, concurring in part and dissenting in part:
I agree entirely with my distinguished colleague that we should
affirm the denial of Colleton's motion for judgment as a matter of
law, as well as its motion for a new trial. I also agree that the district
court's award of front and back pay to Dennis was appropriate, as was
its grant of attorney's fees. I part company with Judge Hall's excellent
opinion solely with respect to Colleton's Rule 59(e) motion attacking
the award of $25,000 for compensatory damages, and the district
court's reduction of this sum to zero.
I.
A jury award of compensatory damages is only to be set aside
when it is "against the clear weight of the evidence, or based upon
evidence which is false, or will result in a miscarriage of justice."
Hetzel v. County of Prince William, 89 F.3d 169, 171 (4th Cir. 1996)
(quoting
Johnson v. Hugo's Skateway, 974 F.2d 1408, 1414 (4th Cir.
1992) (en banc)). After examining the evidence supporting the jury's
compensatory damages award to Dennis for emotional distress, the
district court determined the evidence to be insufficient, and it
reduced the jury's award to nothing. We review such a decision, made
under the provisions of Rule 59(e), for abuse of discretion.
EEOC v.
Lockheed Martin Corp., Aero & Naval Sys., 116 F.3d 110, 112 (4th
Cir. 1997).
In assessing whether sufficient evidence supports the compensatory
damages award, the court was constrained from substituting its judg-
ment for that of the jury or from making credibility determinations.
Price v. City of Charlotte, 93 F.3d 1241, 1250 (4th Cir. 1996). It was
also bound to view the evidence in the light most favorable to Dennis
and to draw all reasonable inferences therefrom in her favor.
Id.
When considered in this light, there is ample evidence to support the
jury's award. As such, I am left with the "definite and firm convic-
tion" that the court, by substituting its judgment for that of the jury,
committed a "clear error of judgment," and thereby abused its discre-
tion.
See United States v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th
Cir. 1999) (observing that abuse of discretion occurs when reviewing
court possesses "definite and firm conviction that . . . a clear error of
judgment" has occurred).
21

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II.
This is not a case in which the only evidence of demonstratable
emotional distress came from Dennis's own testimony. Corroborating
evidence exists, namely the testimony of Terry Lance Dennis, Den-
nis's ex-husband. At trial, Mr. Dennis testified that his ex-wife "was
devastated" and that she "was very upset" at not receiving the position
of Registration Supervisor at Colleton Medical Center. He further
related that Dennis "couldn't believe" that Bridge had been awarded
the position, especially because Colleton expected her to train Bridge
for the position that she had sought.
Terry Dennis's testimony not only establishes that Dennis experi-
enced emotional distress because of Colleton's discriminatory con-
duct, but it also is entirely consistent with Dennis's own account of
the emotional toll that Colleton's unlawful gender discrimination had
upon her. In that connection, Dennis testified that she "was very irri-
tated" and "was angry" at being denied the promotion to Registration
Supervisor. She also explained to the jury that she "got frustrated" at
having to train Bridge, that she just "couldn't do it anymore," and that
because of these feelings she resigned her position at Colleton,
despite her economic need for full-time employment.
In
Price, we recognized that "a plaintiff's testimony, standing
alone, may support a claim of emotional distress." 93 F.3d at 1251.
And, while we must "scrupulously analyze" such awards, we only
require a reasonable explanation of the emotional distress.
Id. Accord-
ingly, when I view the evidence in the light most favorable to Dennis
and draw all reasonable inferences in her favor therefrom, I see suffi-
cient evidence substantiating the jury's determination that Dennis suf-
fered emotional injuries due to Colleton's illegal gender
discrimination. As such, the only remaining questions are whether the
jury's award is excessive and whether it is "proportional to the actual
injury incurred."*
See Knussman, 272 F.3d at 640.
____________________________________________________________
*In addressing the question of excessiveness, we are obliged to look
to a number of factors, including: any medical attention sought; the
degree of mental distress experienced; the factual circumstances that
emotional distress developed under; any corroborating testimony; any
mitigating circumstances; any physical injuries caused by the emotional
distress; and any economic loss.
Knussman v. State of Maryland, 272
F.3d 625, 640 (4th Cir. 2001).
22

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In this situation, the jury award to Dennis constituted an entirely
modest sum, given this evidence and the serious emotional distress
she suffered because of Colleton's illegal conduct. As such, I find
nothing in the record to suggest that this aspect of the verdict is exces-
sive or otherwise not proportional to the injury incurred. I would
therefore reverse the district court on this point.
WILLIAMS, Circuit Judge, dissenting in part and concurring in part
in the judgment:
For the reasons set forth below, I respectfully disagree with the
conclusion that there is sufficient evidence demonstrating that Colum-
bia Colleton Medical Center's legitimate, non-discriminatory justifi-
cation for promoting Johnny Bridge instead of Joyce Dennis was
pretext for gender-based discrimination. Because Dennis failed to
produce sufficient evidence of pretext to sustain the jury's verdict
and, therefore, failed to meet her burden of establishing the ultimate
issue of discrimination vel non, Colleton was entitled to judgment as
a matter of law. Moreover, insofar as Dennis failed to establish the
prerequisites for Title VII liability, she did not introduce sufficient
evidence to support the jury's award of emotional distress damages.
Accordingly, I dissent from Parts A. through D. of Section II. of the
majority opinion and concur in the judgment of Part E. of Section II.
I.
We review de novo the district court's denial of judgment as a mat-
ter of law, viewing the evidence in the light most favorable to Dennis,
as the non-moving party.
Lytle v. Household Mfg., Inc., 494 U.S. 545,
554-555 (1990). Under Rule 50, a court should render judgment as a
matter of law 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. Proc. 50(a);
see also Weis-
gram v. Marley Co., 528 U.S. 440, 447 (2000). "While we are com-
pelled to accord the utmost respect to jury verdicts and tread gingerly
in reviewing them, we are not a rubber stamp convened merely to
endorse the conclusions of the jury, but rather have a duty to reverse
the jury verdict[ ] if the evidence cannot support it."
Price v. City of
Charlotte, North Carolina, 93 F.3d 1241, 1250 (4th Cir. 1996) (inter-
nal citations omitted).
23

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"To defeat an employer's motion for [judgment as a matter of law]
as to liability in a discrimination suit, the plaintiff must present sub-
stantial evidence to support as a reasonable probability, rather than as
a mere possibility, that her employer discriminated against her
because of a protected characteristic."
DeJarnette v. Corning, Inc.,
133 F.3d 293, 298 (4th Cir. 1998). "This standard simply bespeaks the
special danger that in a matter so generally incapable of certain proof
[a] jury decision will be on the basis of sheer speculation, ultimately
tipped, in view of the impossibility of choosing rationally between
mere possibilities, by impermissible but understandable resort to such
factors as sympathy and the like."
Id. (internal quotation marks omit-
ted) (alteration in original).
A.
As the majority notes, Colleton's primary argument on appeal is
that Dennis failed to introduce sufficient evidence of pretext to sustain
the jury's finding on the ultimate issue of discrimination vel non. Col-
leton presented evidence that Bridge was promoted instead of Dennis
because Colleton perceived Bridge as having been more qualified
than Dennis for the registration supervisor position. Where an
employer has asserted that relative employee qualifications consti-
tuted the non-discriminatory justification for the promotion decision,
"the plaintiff must establish that she was the better qualified candidate
for the position sought" to meet her burden of proving that the compa-
ny's explanation is pretextual and that she was the victim of inten-
tional discrimination.
Evans v. Techs. App. & Serv. Co., 80 F.3d 954,
960 (4th Cir. 1996). In analyzing whether the plaintiff has met her
burden of proving that she was a better qualified candidate, "[i]t is the
perception of the decision maker which is relevant."
Id. at 960-61
(internal quotation marks omitted).
Dennis concedes that at the time of the promotion decision, she did
not meet all of the posted qualifications for the position. She had
worked in a hospital business office setting for fourteen months, 1111 as
____________________________________________________________
1111 Dennis began working at Colleton on May 1, 1996 as a part-time
emergency room registration clerk. Dennis's resignation letter, which
was dated July 9, 1997, stated:
24

-- 25 of 36 --

opposed to three years, and had only worked on a full-time basis for
six months. Likewise, Bridge did not meet all of the posted job quali-
fications, in that he had worked in a hospital setting for approximately
ten weeks as a part-time switchboard operator at the time he was
offered the registration supervisor position. Both Dennis and Bridge
were high school graduates, but neither had taken business courses,
courses in a medically related field, or courses in medical terminology
or management.
It being established that neither candidate fully met the posted job
qualifications, the evidence regarding the relative qualifications of
Bridge and Dennis consisted primarily of the testimony of Jimmy
Hiott, who was in charge of the promotion decision. Hiott testified
that he promoted Bridge instead of Dennis because, in his judgment,
Bridge had more extensive and valuable managerial experience than
Dennis, which Hiott testified he believed to be a particularly impor-
tant qualification for the registration supervisor position because of
ongoing management problems in the Registration Department. Dr.
Ann Jonason, who also interviewed Bridge and recommended him for
the supervisor position, testified that she believed Bridge had "a lot
of strengths in management," (Tr. of Trial Vol. II at 437), and that the
Registration Department "desperately needed a manager . . . a leader
. . . someone who could help [the department] become a cohesive
whole . . . ." (J.A. at 227; Tr. of Trial Vol. II at 438.)
Dennis did not introduce any evidence discrediting Hiott's percep-
tion that Bridge had more management experience than Dennis.
____________________________________________________________
To Whom It May Concern:
I would like to notify you of my resignation of my full-time pos-
tion [sic] here at Colleton Reigonal [sic] Hospital. Although I am
requesting to stay as PRN help. I feel as though this was war-
rented [sic] due to the internal conflicts that closely effects [sic]
my job. I have enjoyed working here full-time, and have made
many new friends. I am gratefull [sic] for the experience I have
gained, and hope in the future if needed I will have employment
oppertunities [sic] here at CCMC.
(J.A. at 353.)
25

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Bridge's employment application, which the undisputed evidence
established that Hiott consulted prior to interviewing Bridge, indi-
cated that the vast majority of Bridge's employment history involved
managerial positions. Bridge's employment application states that he
served as a transportation manager at Clean Management Environ-
mental from January 1994 until July 1997, when he was awarded the
registration supervisor position, served as the store manager for the
Family Dollar from February 1993 until January 1994, and served as
a marketing coordinator at Coastal Electric Coop from January 1988
until February 1993. The only nonmanagement-related job in
Bridge's employment history was his earliest job, which was selling
insurance. 2222
Dennis's employment application, on the other hand, established
that she had been out of high school for two years, had been
employed in various cashier and secretarial positions, and had one
year of experience as an assistant manager of Showtime Video &
Music. Dennis also had acted as de facto manager of the Registration
Department during the eight weeks in which the Department was
without a manager. Based upon this evidence, and even viewing the
record in the light most favorable to Dennis, Hiott's determination
that Bridge possessed superior managerial experience as compared to
Dennis is unassailable.
Indeed, at the summary judgment stage, the district court granted
summary judgment in favor of Colleton because the uncontradicted
evidence demonstrated that Dennis was not more qualified for the
promotion than Bridge, (J.A. at 44-53), but the district court later
____________________________________________________________
2222 In suggesting that Bridge's superior managerial experience was "over-
played" by Hiott, the majority states that Bridge's "only verified manage-
ment experience consisted of managing a small Family Dollar store more
than four years earlier," but it makes no reference to Bridge's employ-
ment application.
Ante at 10. Instead, the majority would have us review
evidence regarding the nature of Bridge's past employment that was not
known to Hiott at the time he made the promotion decision and ignore
Bridge's employment application itself, which was indisputably
reviewed by Hiott prior to the promotion decision, and further ignore the
corroborating testimony of the other person who participated in the
decision-making process, Dr. Jonason.
26

-- 27 of 36 --

reversed this ruling after the Supreme Court's subsequently-issued
decision in
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133
(2000). In reversing its previous ruling, the district court indicated
that it believed that
Reeves overruled
Evans, wherein we held that
when an employer has asserted that relative employee qualifications
constituted the non-discriminatory justification for the promotion
decision, "the plaintiff must establish that she was the better qualified
candidate for the position sought" to meet her burden of proving that
the company's explanation was pretextual.
Evans, 80 F.3d at 960; (Tr.
of Trial Vol. III at 677.) As we made clear in
Evans itself, however,
the relative qualifications of competing employees are part of the ana-
lytical framework relevant to proving pretext, and
Reeves did not dis-
rupt that framework.
Id. (describing the employee's burden of
production
at the pretext stage as requiring the employee to prove
"that she was the better qualified candidate for the position sought");
Reeves, 530 U.S. at 148 ("[A] plaintiff's prima facie case,
combined
with sufficient evidence to find that the employer's asserted justifica-
tion is false, may permit the trier of fact to conclude that the employer
unlawfully discriminated." (emphasis added));
Rowe v. Marley Co.,
233 F.3d 825, 830 (4th Cir. 2000) ("Put another way, in
Reeves the
Supreme Court held that when a plaintiff establishes a prima facie
employment discrimination case
and that his employer's explanation
is pretextual, this does not automatically create a jury question, but
it
may do so." (first emphasis added)). Accordingly,
Reeves did not
overrule
Evans, and the district court committed an error of law inso-
far as it reversed its grant of summary judgment on this basis.3333
Because the district court's initial grant of summary judgment in
favor of Colleton was proper, and neither
Reeves nor the evidence
introduced at trial regarding the relative qualifications of Bridge and
____________________________________________________________
3333 In suggesting that
Reeves overruled
Evans,
ante at 12-13 n.4, the
majority misapprehends the nature of the
Reeves holding and fails to rec-
oncile its position with that of the Eleventh Circuit, which has continued,
post-
Reeves, to hold that the employee has an obligation, at the pretext
stage, to make an evidentiary showing that her qualifications are superior
to those of the person selected for the promotion.
Lee v. GTE Fla., Inc.,
226 F.3d 1249, 1254 (11th Cir. 2000). Similarly, the Fifth Circuit has
described this obligation as part of the plaintiff's burden of persuasion
in establishing pretext.
Deines v. Texas Dept. of Protective & Reg.
Servs., 164 F.3d 277, 280-81 (5th Cir. 1999).
27

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Dennis undermined this initial ruling, I believe that judgment as a
matter of law in favor of Colleton is required.
B.
The majority asserts that "the jury's finding of pretext does not
stand or fall" on the relative qualifications of Bridge and Dennis but
instead rests upon other types of circumstantial evidence.
Ante at 12.
In detailing this alleged circumstantial evidence, the majority catego-
rizes Colleton's explanation of the importance placed upon prior man-
agerial experience as a "post-hoc rationalization [ ]" that is probative
of pretext because managerial experience was listed in the posted job
description as being a "preferred" qualification, as opposed to a "re-
quired" qualification. 4444
Ante at 7. Assuming that there is any signifi-
____________________________________________________________
4444 The majority asserts that because computer expertise deviates from
the posted job qualifications, it also has the "flavor of [a] post-hoc ratio-
nalization[ ]."
Ante at 9. I do not find support in the record for the majori-
ty's characterization of the evidence presented to the jury regarding the
role of computer expertise in the promotion decision. Hiott testified that
he was impressed with Bridge's computer expertise, which Hiott
believed would be helpful in light of the hospital's upcoming computer
systems upgrade. Additionally, Jonason testified that she considered
computer qualifications an important criteria for the promotion decision.
She testified that during the interview, she "asked [Bridge] rather
intensely about his information system background, his computer exper-
tise, because at that particular time we were getting ready to initiate a
new computer system." (J.A. at 224.) She further testified that she was
"very impressed with . . . his knowledge of computer systems" and his
computer background. (J.A. at 225.) Neither Hiott nor Jonason, however,
testified in any manner regarding Bridge's computer experience vis-a-vis
Dennis's; instead, the undisputed evidence demonstrated that Dennis was
eliminated from the selection process solely because of her lack of man-
agement experience. (Tr. of Trial Vol. II at 452-53) ("I reviewed [Den-
nis's] application . . . and at that point made a determination . . . that
[Dennis] did not have the management skills necessary for that position.
. . . [S]o I did not feel comfortable at all with moving forward with her
as an applicant."). Accordingly, although the evidence established that
computer expertise was a positive qualification possessed by Bridge, no
evidence suggests that Colleton determined that Bridge's computer expe-
rience "set Bridge apart" from Dennis,
ante at 9. Because computer
28

-- 29 of 36 --

cant difference between Colleton's proffered emphasis on
management experience and the emphasis placed on management
experience in the posted job description, 5555 I disagree that the difference
is of any probative value. Faced with no candidate who fits the job
description perfectly, an employer must choose from among the appli-
cants the most acceptable candidate. By characterizing a shift in
emphasis regarding the posted job qualifications as a "post-hoc ratio-
nalization[ ]," the majority fails to perceive the limited practical utility
of a posted job description, as well as the realities of promotion deci-
sions, which often, as in this case, are "inherent[ly] dynamic" deci-
sions.
Lee v. GTE Florida, Inc., 226 F.3d 1249, 1255 n.2 (11th Cir.
2000),
cert. denied, ___ U.S. ___ (2001) (noting that a shift in empha-
sis among or away from qualifications listed in a posted job descrip-
tion is not probative of pretext because the promotion process is
____________________________________________________________
expertise was not offered as a reason for promoting Bridge instead of
Dennis, the majority's reliance upon Bridge's computer expertise in its
pretext analysis is improper. Additionally, as with management experi-
ence, Colleton's alleged emphasis on computer expertise in selecting
Bridge for the promotion is not a significant departure from its posted
qualifications, in which it stated that basic knowledge of computers was
required.
5555 Logically, if a qualification is "preferred," it can be decisive when
choosing between two candidates. Consequently, I do not perceive any
inconsistency between the emphasis placed upon management experi-
ence in the job description and Colleton's proffered emphasis on man-
agement experience in making its promotion decision. Indeed, if a
qualification in the posted job description could never support a decision
between two candidates, one wonders why it is included in the posted job
description at all. By suggesting that a jury is entitled to find the ultimate
issue of discrimination any time an employer "picks one of a list of
posted job qualifications and claims that it was actually decisive without
regard to the others,"
ante at 9 n.2, and by further suggesting that the
employee no longer bears the burden of proving that she possessed supe-
rior qualifications as compared to the person selected for the promotion,
ante at 13 n.4, the majority thrusts this court and juries into the role of
super-personnel officers and permits juries to simply second-guess an
employer's hiring and promotion decisions. This approach relieves the
plaintiff of her burden of proving the ultimate issue of discrimination vel
non, a result that is not mandated by
Reeves and constitutes a significant
departure from this circuit's Title VII jurisprudence.
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dynamic);
Nichols v. Lewis Grocer, 138 F.3d 563, 568 (5th Cir. 1998)
(finding unpersuasive plaintiff's argument that the fact that the
employer had changed the importance of the criteria used in the selec-
tion process established pretext, because "[t]he promotion decision is
a dynamic one, and the relative importance placed on various selec-
tion criteria cannot be expected to remain fixed and unyielding").
Jonason emphasized that based upon her experience at the hospital
and ongoing problems in the Registration Department, management
experience had become the "overriding concern" in choosing the reg-
istration supervisor. (Tr. of Trial Vol. II at 438.) Hiott similarly testi-
fied at both his deposition and at trial that management experience
became a top priority in the promotion decision because of an escalat-
ing crisis in the management of the Registration Department, exacer-
bated by the sudden departure of the previous registration supervisor.
Dennis did not present any evidence demonstrating that a heightened
emphasis on management experience was unjustified or otherwise
inappropriate in light of the hospital's situation at the time of the pro-
motion decision. In light of the undisputed realities of Colleton's
changing needs and the dynamic nature of the promotion process, I
fear that the majority's approach unduly constrains employers such as
Colleton to abide woodenly by posted job criteria or face Title VII lia-
bility. Thus, I respectfully disagree that Colleton's emphasis on man-
agement experience in making its promotion decision constituted a
"post-hoc rationalization[ ]" or was in any manner probative of pre-
text.
The majority next contends that alleged inconsistencies between
Hiott's trial and deposition testimony regarding his reason for pro-
moting Bridge instead of Dennis are probative of pretext. I do not find
that the record reveals any of the alleged inconsistencies. When asked
at trial why he did not feel Dennis was qualified for the promotion,
Hiott stated that he had reviewed her application and determined that
she lacked "the management skills necessary for the position,"
whereas Bridge's application indicated that he possessed the requisite
management experience. (J.A. at 244-45.) The majority asserts that
Hiott testified at trial that computer experience was one of the deci-
sive factors weighing in favor of Bridge in making the promotion
decision, but, as noted in note 3,
supra, Hiott's testimony does not
appear to support this characterization. At best, Hiott's testimony
could be read as indicating that he believed that Bridge's computer
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experience was a factor weighing in favor of Bridge in the promotion
decision, but not that he believed Bridge to be more qualified than
Dennis with respect to computer experience. Such testimony is
entirely consistent with his deposition testimony, where he testified
that Bridge possessed the requisite degree of computer knowledge for
purposes of the promotion. (Deposition of James O. Hiott at 97, lines
16-23; J.A. at 183). Contrary to the majority's assertion, Hiott never
testified that managerial experience was the "only" reason for the pro-
motion decision. Instead, Hiott testified that "management experience
was the
biggest quality that I was looking for in the — in the individ-
ual and what the hospital needed . . . ." (Deposition of James O. Hiott
at 85, lines 19-25; J.A. at 177 (emphasis added).) At trial, Hiott took
precisely the same position, testifying again that management experi-
ence was the most important factor weighing in favor of Bridge in the
promotion decision. Accordingly, the record does not reveal any
inconsistency between Hiott's trial and deposition testimony that is
probative of pretext. 6666
The majority next identifies the "unequal way" in which Hiott con-
ducted the promotion process as evidence of pretext, deeming it "pe-
culiarly informal,"
ante at 4, and emphasizing the fact that Bridge was
given an interview, whereas Dennis was not,
ante at 10. The undis-
puted evidence demonstrated that Dennis originally was interviewed
by Jennifer Wray for the registration supervisor position, that Hiott
reviewed Dennis's initial application prior to making the promotion
____________________________________________________________
6666 To the extent the majority suggests that Hiott's failure to recall certain
aspects of the interviewing process during the deposition, compared with
his greater recall at trial, is probative of pretext, this does not meet the
requisite level of proof necessary to defeat Colleton's motion for judg-
ment as a matter of law.
DeJarnette v. Corning, Inc., 133 F.3d 293, 298
(4th Cir. 1998) (requiring a "reasonable probability, rather than . . . a
mere possibility," that the employer discriminated against an employee
because of a protected characteristic). Even assuming that Hiott exhibited
a greater level of clarity with respect to the content of Bridge's interview
at trial than he exhibited at his deposition, any inconsistency is irrelevant
because it is uncontroverted that Dennis was eliminated from the selec-
tion process prior to Bridge's interview, in that Hiott determined from
reviewing Dennis's initial application that she lacked the management
experience necessary for the promotion.
See note 3,
supra; (Tr. of Trial
Vol. II at 452-53.)
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decision, and that Hiott felt Dennis's application did not warrant
granting her an interview because it demonstrated that she lacked the
requisite degree of management experience. 7777 Dennis and the majority
have taken pains to criticize Hiott's failure to follow-up on Dennis's
in-house work experience, training, and evaluations, but an employer
is uniquely situated to evaluate the benefit of interviewing an appli-
cant or delving further into the applicant's abilities, and Title VII does
not require that all applicants be treated "equally"; it requires only that
the applicant not be discriminated against on the basis of a protected
characteristic. Indeed, I cannot see anything in Title VII that requires
an employer to grant an interview to every applicant instead of selec-
tively interviewing candidates based upon a paper record. I fear that
the majority's holding regarding the probative value of the "unequal"
nature of the promotion process thrusts the court and the jury into the
role of super-personnel officer, a role that we have emphasized is out-
side the province of the appropriate Title VII inquiry.
See DeJarnette,
133 F.3d at 299 ("[T]his Court does not sit as a kind of super-
personnel department weighing the prudence of employment deci-
sions made by firms charged with employment discrimination . . . ."
(internal quotation marks omitted));
Henson v. Liggett Group, Inc., 61
F.3d 270, 277 (4th Cir. 1995) ("We have recognized the importance
of giving an employer the latitude and autonomy to make business
decisions, including workplace reorganization, as long as the
employer does not violate the ADEA.");
Jiminez v. Mary Washington
College, 57 F.3d 369, 377 (4th Cir. 1995) ("Title VII is not a vehicle
for substituting the judgment of a court for that of the employer");
Brill v. Lante Corp., 119 F.3d 1266, 1272 (7th Cir. 1997) ("Courts
refuse to sit in judgment as super-personnel departments overseeing
____________________________________________________________
7777 At trial, Dennis argued that Hiott eliminated her from the selection
process prematurely, in that Hiott reviewed the application that she sub-
mitted when she first began working at Colleton fourteen months earlier
but did not review her most recent application, which reflected the expe-
rience she gained while employed at Colleton. If Hiott had reviewed her
most recent application, he would have discovered that Dennis had
worked as a de facto manager in the Registration Department for several
weeks. Even considering her work as a de facto manager, however, Den-
nis did not establish that she had more managerial experience than
Bridge. Thus, Hiott's failure to consider her most recent application,
while possibly a poor management decision, is not probative of pretext
or gender discrimination.
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corporate decisions . . . .").
Reeves and its progeny hold that duplicity,
not informality, supports an inference of discrimination. Accordingly,
I respectfully disagree that the "unequal" or "informal" nature of the
selection process is probative of pretext.
Finally, the majority notes that another female applicant, Tonya
Williams, was not interviewed for the promotion, which it suggests
is probative of pretext. Hiott testified that he was unaware that Wil-
liams had applied for the promotion until after the promotion had
been given to Bridge. Williams's application for the promotion was
dated June 19, 1997, and she testified that she turned her application
in to the Human Resources Department and subsequently interviewed
for the position with Wray. Bridge received the promotion on or about
July 9, 1997. Patty Hendricks, the Human Resource Director, testified
that she received Williams's application on July 14, 1997, and that
prior to that date, she had not been made aware that Williams had
applied for the promotion. She testified that she therefore had not
given Williams's application to Hiott prior to the promotion being
filled because she was unaware that Williams was interested in the
position until after the position had been filled. Dennis speculates that
because Wray interviewed Williams for the position before Bridge
was offered the promotion and because Williams testified that she
originally turned her application in to Human Resources, Hiott's and
Hendrick's testimony, in which each stated that they were not aware
that Williams had applied for the position prior to Bridge receiving
the promotion, could have been found by the jury to have been
incredible. There is no evidence, however, demonstrating that Wray,
or anyone else, informed Hiott of Williams's interest in the position
prior to the position being filled, nor is there any evidence that Wray
interviewed Williams after having received the application from
Human Resources, as opposed to learning of Williams's interest in
the position in some other way. Dennis, therefore, failed to put forth
any evidence demonstrating that Hiott actually received Williams's
application or possessed any knowledge that Williams had applied for
the promotion before filling the position, and the speculation relied
upon by Dennis and the majority with respect to Williams's applica-
tion is insufficient to overcome Colleton's motion for judgment as a
matter of law. 8888
DeJarnette, 133 F.3d at 298 (admonishing that a court
____________________________________________________________
8888 The majority also speculates that the true reason for Colleton's pro-
motion decision was because of Dennis's reputed affair with one of the
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reviewing a district court's denial of judgment as a matter of law must
be careful not to affirm on the basis of "sheer speculation").
Even assuming the evidence regarding Williams could be viewed
as probative of pretext, Dennis presented, at best, extremely weak evi-
dence that Colleton intentionally discriminated against her because of
her gender, and statistical evidence provides independent support for
Colleton's proposition that it was not engaging in gender discrimina-
tion by failing to promote her.
See, e.g.,
Reeves, 530 U.S. at 148
("[A]n employer would be entitled to judgment as a matter of law . . .
if the plaintiff created only a weak issue of fact as to whether the
employer's reason was untrue and there was abundant and uncontro-
verted independent evidence that no discrimination had occurred.");
Schnabel v. Abramson, 232 F.3d 83, 91 (2d Cir. 2000) (holding that,
while plaintiff had presented sufficient evidence of prima facie case
and pretext, evidence of discrimination was too weak to be submitted
to the jury). The undisputed evidence established that approximately
65% of Colleton's supervisory positions are held by females, and one
of the top management positions in the hospital, that of Chief Execu-
tive Officer, has been held by a woman since 1995. Hiott hired a
female, Peggy Cribb, for the registration supervisor position prior to
hiring Bridge. Following Bridge's second promotion to the Informa-
tion Services Department at Colleton in 1998, the registration supervi-
sor position was filled by a female, Marsha Grimsley. A female,
Jennifer Pinckney, currently holds the position. Further, Dennis had
been promoted and transferred according to her wishes repeatedly
during her employment with Colleton.
II.
After reviewing all of the evidence in the light most favorable to
Dennis, I am convinced that there was insufficient evidence to sup-
port the jury's finding that Colleton's legitimate, non-discriminatory
____________________________________________________________
doctors or because of Hiott's friendship with Bridge's wife.
Ante at 14.
Colleton has never asserted either of these theories as a justification for
its promotion decision, and, as the majority concedes, neither justifica-
tion, had it been asserted, would have been probative of gender discrimi-
nation.
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reason for promoting Bridge instead of Dennis was false. Without
sufficient evidence of pretext, no rational juror could have determined
that Dennis met her burden of establishing the ultimate issue of dis-
crimination vel non. 9999 Title VII is a tool to vindicate the important con-
gressional policy against discriminatory employment practices. It is
not to be invoked lightly whenever a promotion decision is made by
means of a process of less than total precision and determinacy, yet
it is precisely this consequence that I fear will follow from the majori-
ty's approach. Moreover, because I do not believe Dennis established
the prerequisites of Title VII liability, I similarly do not believe she
is entitled to recover emotional distress damages. Thus, I concur in
the judgment of Section II. Part E. 10101010
____________________________________________________________
9999 Because I believe Colleton was entitled to judgment as a matter of
law, I do not address its alternative argument that it was entitled to a new
trial. Moreover, insofar as I would not have found Dennis to have been
the prevailing party, I do not join in the majority's affirmance of the
attorney's fee award or back pay award in her favor.
10101010 I note that, even if I were to conclude that Dennis met the prerequi-
sites for Title VII liability, I would hold that the district court did not
abuse its discretion in setting aside the jury verdict in favor of Dennis for
emotional distress damages because Dennis failed to put forth sufficient
evidence of emotional distress to support the jury's verdict pursuant to
the standard set forth in
Price v. City of Charlotte, 93 F.3d 1241 (4th Cir.
1996).
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