Melanie Pitrolo v. County of Buncombe, Nc

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-2051
MELANIE PITROLO,
Plaintiff – Appellant,
v.
COUNTY OF BUNCOMBE, NC; BRITT LOVIN; DEAN KAHL; LOYD KIRK;
VONNA CLONINGER; WESTERN NORTH CAROLINA REGIONAL AIR QUALITY
AGENCY BOARD OF DIRECTORS; WESTERN NORTH CAROLINA REGIONAL
AIR QUALITY AGENCY,
Defendants – Appellees.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:06-cv-00199-MR-DLH)
Submitted: November 24, 2010 Decided: January 11, 2011
Before TRAXLER, Chief Judge, and WILKINSON and SHEDD, Circuit
Judges.
Vacated and remanded by unpublished opinion. Judge Shedd wrote
the opinion, in which Chief Judge Traxler and Judge Wilkinson
joined.
Michael G. Wimer, WIMER & JOBE, Asheville, North Carolina, for
Appellant. Thomas J. Doughton, Amy L. Rich, DOUGHTON & HART,
PLLC, Winston-Salem, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.

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SHEDD, Circuit Judge:
Melanie Pitrolo filed this action under Title VII claiming
that the County of Buncombe, the Western North Carolina Regional
Air Quality Agency, the Agency Board of Directors, Britt Lovin,
Dean Kahl, Loyd Kirk, and Vonna Cloninger (collectively
“Buncombe County”) failed to promote her to the position of
Interim Director because of her gender. After a jury decided in
Pitrolo’s favor, the district court granted Buncombe County’s
renewed motion for judgment as a matter of law and entered an
amended judgment in favor of Buncombe County and ordering
Pitrolo to pay Buncombe County’s costs. Pitrolo now appeals.
For the following reasons, we vacate the district court’s
amended judgment, reinstate the jury verdict, and remand the
case.
I.
This is Pitrolo’s second appeal in this case. In the first
appeal, we vacated the grant of summary judgment in favor of
Buncombe County on Pitrolo’s Title VII gender discrimination
claim and remanded that claim for further proceedings. Pitrolo
v. County of Buncombe, No. 07-2145, 2009 WL 1010634 (4th Cir.
Mar. 11, 2009). In the summary judgment record, Pitrolo had
testified that, shortly after an Agency Board of Directors
meeting regarding the Interim Director position, Agency Director
Bob Camby reported to her that there was opposition to her

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becoming the future leader of the Agency because of her age and
gender. We held that Camby’s statement to Pitrolo was
admissible evidence as a “party-opponent admission” under
Federal Rule of Evidence 801(d)(2). Importantly, we found the
statement constitutes direct evidence of gender discrimination
sufficient to defeat summary judgment.
On remand, a jury found that gender was a motivating factor
in Buncombe County’s decision not to promote Pitrolo but also
found that Buncombe County would have denied her the promotion
in the absence of consideration of her gender. Accordingly, the
jury did not award Pitrolo damages. The district court denied
Pitrolo’s post-trial motion for declaratory relief, attorney
fees and costs, and granted Buncombe County’s renewed motion for
judgment as a matter of law.*
* Buncombe County moved for judgment as a matter of law at
the end of the trial, arguing that Camby’s statement was not
sufficient evidence to support a jury verdict in favor of
Pitrolo. In denying that motion, the district court stated:
“[Y]ou’re fully aware . . . two judges previously were of the
opinion that that was not an adequate basis to keep the case
alive, but three judges disagreed, so I’m going to keep it alive
for them to review again if the jury verdict is adverse to the
position of the plaintiff in this case and give them an
opportunity to review it. So I’m going to let the jury decide
that tomorrow, and we’ll all see at that time what they come up
with.” J.A. 544.
The district court entered an
amended judgment dismissing Pitrolo’s action with prejudice and
ordering that Buncombe County recover costs from Pitrolo.

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II.
We review de novo a district court's ruling on a motion for
judgment as a matter of law. Dennis v. Columbia Colleton Med.
Ctr., 290 F.3d 639, 644-45 (4th Cir. 2002). Importantly, a
“Rule 50(b) motion for judgment as a matter of law follows the
same standard as a Rule 56 motion for summary judgment.” Id. at
644. Thus, when a jury has returned a verdict, the district
court may grant a Rule 50(b) motion for judgment as a matter of
law only if, “viewing the evidence in a light most favorable to
the non-moving party (and in support of the jury's verdict) and
drawing every legitimate inference in that party's favor, the
only conclusion a reasonable jury could have reached is one in
favor of the moving party.” Int’l Ground Transp., v. Mayor &
City Council of Ocean City, 475 F.3d 214, 218-19 (4th Cir.
2007). If reasonable minds could differ, we must affirm the
jury’s verdict. Dennis, 290 F.3d at 645. In drawing all
reasonable inferences in favor of the non-movant, a court may
not weigh the evidence or assess the credibility of the
witnesses. Id.
We find that Camby’s statement is sufficient evidence to
support the jury’s verdict. The law of this case is that
Camby’s statement constitutes direct evidence of gender
discrimination sufficient to defeat summary judgment. Thus, at
a minimum, the jury could reasonably conclude from Camby’s

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statement that Pitrolo’s gender was a motivating factor in
Buncombe County’s decision not to hire her. Although the
district court may differ with the jury’s conclusions, Rule
50(b) does not permit the court to weigh the evidence or assess
the credibility of the witnesses –- to do so is to usurp the
fact-finding role of the jury. Therefore, the district court
erred in finding that Pitrolo had not presented sufficient
evidence to support the jury’s finding and that a reasonable
jury could not have inferred from Camby’s statement that gender
was a motivating factor in Buncombe County’s decision not to
promote Pitrolo.
We note that the district court denied Pitrolo’s post-trial
motion for attorney fees and costs because, under the amended
judgment, she did not prevail on her “mixed-motive” claim.
However, with the reinstatement of the jury’s verdict, Pitrolo
is now the prevailing party. See Hill v. Lockheed Martin
Logistics Mgmt., 354 F.3d 277, 284 (4th Cir. 2004) (en banc),
cert. dismissed, 543 U.S. 1132 (2005) (citing 42 U.S.C. § 2000e-
2(m)). As such, she is entitled to seek “declaratory relief,
injunctive relief, and attorney's fees and costs demonstrated to
be directly attributable” to her mixed-motive claim. Id.

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III.
For the foregoing reasons, we vacate the district court’s
amended judgment and order granting Buncombe County’s motion for
judgment as a matter of law, ordering that Buncombe County
recover costs from Pitrolo, and denying Pitrolo’s motion for
declaratory relief, attorney fees and costs. We reinstate the
jury verdict and judgment in favor of Pitrolo, and we remand the
matter for reconsideration of Pitrolo’s post-trial motion for
declaratory relief and attorney fees and costs in light of our
holding. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
VACATED AND REMANDED

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