UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ANDREA NELSON,

Plaintiff-Appellant,

v.

WATERGATE AT LANDMARK,

No. 95-2818

Defendant-Appellee.

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION,

Amicus Curiae.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Richard L. Williams, Senior District Judge.

(CA-95-72-A)

Argued: October 28, 1996

Decided: February 21, 1997

Before MURNAGHAN, WILLIAMS, and

MICHAEL, Circuit Judges.

_________________________________________________________________

Remanded by unpublished per curiam opinion. Judge Williams wrote

a dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Sol Zalel Rosen, Washington, D.C., for Appellant. Karen

Marie Moran, Office of General Counsel, EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION, Washington, D.C., for Amicus
Curiae. William Frederick Causey, JACKSON & CAMPBELL, P.C.,

Washington, D.C., for Appellee. ON BRIEF: C. Gregory Stewart,

General Counsel, Gwendolyn Young Reams, Associate General

Counsel, Vincent J. Blackwood, Assistant General Counsel, Office of

General Counsel, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Amicus Curiae.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Andrea Nelson, an African American, filed a complaint under Title

VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e

(1994 & Supp. 1996), and 42 U.S.C. § 1981 (1994 & Supp. 1996),

charging that her employer discriminated against her because of her

race, and that she was unlawfully terminated in retaliation for filing

a charge of discrimination with the Equal Employment Opportunity

Commission (EEOC). The jury returned a verdict of $4,000 in Nelson's favor on the Title VII and 1981 discrimination claims, but found

for the employer on the retaliation claim.

The district court set aside the jury verdict and entered a judgment

as a matter of law in favor of the defendant employer on the grounds

that Nelson had failed actually or constructively to notify her

employer regarding her racial discrimination claim as required by

Dennis v. County of Fairfax, 55 F.3d 151, 155 (4th Cir. 1995).1 Since

_________________________________________________________________

1 The district court did not question the sufficiency of the evidence

regarding discrimination, it only questioned whether her employer had

notice of the discrimination. The district court, having found that Nelson

had established a prima facie case of discrimination, properly sent the

case to the jury. If a plaintiff makes out a prima facie case, "rejection of

the defendant's proffered reasons, will permit the trier of fact to infer the

ultimate fact of intentional discrimination, and . .. [n]o additional proof

of discrimination is required." St. Mary's Honor Center v. Hicks, 509

U.S. 502 (1993) (emphasis in original). Thus, based on the evidence, the

jury was permitted to conclude that racial discrimination had taken place.

 2
we find that Nelson's EEOC complaint was sufficient to satisfy her

burden of notice under Dennis, we reverse the district court's grant

of a judgment as a matter of law and remand so that the verdict in

Nelson's favor may be reinstated.

Andrea Nelson was originally hired by Watergate at Landmark

(WAL) in December 1991 as a temporary switchboard operator. After

the temporary position ended in February 1992, Nelson was re-hired

as a customer service representative. In March 1992 she transferred

to be the assistant to the director of activities. In June 1992 Nelson

accepted her final position as administrative assistant to the director

of administration, Robert Swain. Nelson was the only African American employed in the front office at WAL, and she was the only African American administrative assistant.

Nelson claims that after accepting the position as an administrative

assistant she began to experience disparate treatment in her employment. She argues that the terms and conditions of her employment

were drastically different than that of the white person who previously

held her position, and were different than that of other white people

who were similarly situated.

Nelson alleges that (1) she was paid on an hourly basis while other

white employees similarly situated, and the white person previously

employed in her position were salaried employees; 2 (2) she was "written up" for being one minute tardy while a white employee similarly

situated was able to come and go as she pleased; (3) her name was

purposefully left off the company's organizational chart even though

her predecessor's name was on the chart, and even though all other

administrative assistants' names were on the chart; 3 (4) white employees who were given supervisory responsibility were given raises

while she was not;4 (5) she was required to speak directly with her

_________________________________________________________________

2 After Nelson complained, WAL agreed to make Nelson a salaried

employee.

3 Nelson's supervisor allegedly refused to place her name on the chart

even after Nelson informed him of the discrepancy.

4 In December 1992 Nelson became a supervisor of several employees.

Nelson did not receive a pay raise for the added responsibility. In March

 3
supervisor whenever she needed time off, while other white employees were able to leave voice mail messages or speak with the supervisor's secretary; and (6) she was required to bring in a physician's note

to justify her taking two sick days leave while other white employees

were only required to bring in a physician's note if their illness

exceeded three days.

In April 1993 Nelson wrote a memorandum to James Cisco, the

president of WAL's Board of Directors, complaining about Swain's

treatment of her. In October 1993 Nelson filed a complaint with the

EEOC alleging that she had received disparate wages and that she

was harassed and disciplined more harshly in retaliation for her complaints and because of her race.5 Nelson also asserted constant harassment and subjection to disparate discipline and wages.

After filing the complaint, Nelson wrote another memorandum, this

time to Swain, complaining that he ridiculed her in a meeting with the

general manager, that he commented as he was passing her desk that

she was "bout [sic] to break" and that he spent numerous hours typing

memos against her. She also claimed that she had been "informed

that, because of [her] charges, there would be numerous attempts to

frustrate [her]. . . ."

In February 1994 Nelson wrote a memorandum to the general manger, Petrine Squires, complaining that, during her tenure at WAL,

Swain would not approve requests for changes in her work schedule

to accommodate doctor's appointments, he applied sick leave policies

differently to her than to others, he purposely made her job more difficult to do, he caused upper management to hold her in low esteem,

he engaged in sexual harassment of other employees, he yelled at her,

_________________________________________________________________

1993, WAL authorized a raise for a white employee because the white

employee had been given extra responsibility as a supervisor. Nelson

wrote to the general manager and asked why she did not receive a wage

increase when she received added responsibility. In this memorandum,

Nelson also asked why she was being treated differently.

5 Nelson's EEOC complaint stated:"I [Andrea Nelson] believe I have

been discriminated against because of my race (black). . . ."

 4
and he appeared to have a difficult time working with men, older

women and minorities.6

In response to this memorandum, WAL hired a law firm to investigate Nelson's allegations of sexual harassment. 7 The firm concluded

that there was no evidence to substantiate these allegations. In April

1994 Nelson was terminated.

Five months elapsed between the time Nelson filed her EEOC

complaint and the time she was fired. WAL took no corrective action

_________________________________________________________________

6 In addition to the EEOC complaint, Nelson's memo to Squires also

provides notice of racial discrimination. In her memo she states:

 Someone may think that [Swain] has something against working with men, older women, and race minorities. His record

speaks for itself. Since he has been director over the management office, he has hired no one except, young, white, females

for his department. Yet, he has been responsible for ruining the

reputation and firing two males, now the attempt on a black

female, all who worked under him. . . .

 . . .

 The [NAACP counselors] advised me that leaving WAL was

not the answer and provided me with material to study to better

my working relationship. . . . The representative explained to me

about the lack of understanding that whites have when it comes

to some of the problems of blacks in management and how

blacks in management have a lack of understanding about what

whites in management go through. They recommended the book

The Black Manager. . . .

 . . .

 . . . It was often repeated to me by these organizations of

reform, that if I left, I would be cutting off a pathway for another

race minority. They instilled in me that, I should seek employment elsewhere only if my reasons were genuine and wanting to

move on to greater opportunities, but to leave any place of

employment because of indifferent treatment was wrong for

everyone concerned (emphasis added).

7 WAL investigated the sexual harassment allegation, but it did not

investigate either Nelson's EEOC complaint or the complaint in her

memo to Squire.

 5
regarding the discrimination claim.8 Therefore, during the five

months, adequate notice had been given to the employer regarding

Nelson's racial discrimination claim, yet no timely and adequate corrective action concerning racial harassment or discrimination had

been taken. "The employer is liable where it had actual or constructive knowledge of the existence of a sexually hostile working environment and took no prompt and adequate remedial action." Dennis, 55

F.3d at 155 (internal quotations omitted). "The above reasoning

applies as well to claims of racial discrimination in the workplace

under § 1981." Id. WAL had such notice; accordingly, we remand so

that the verdict in Nelson's favor may be reinstated.

REMANDED

WILLIAMS, Circuit Judge, dissenting:

For the reasons stated in the district court's memorandum opinion

in this case, see Nelson v. Watergate at Landmark, 898 F. Supp. 346

(E.D. Va. 1995), I do not believe that Nelson's employer, WAL,

failed to respond to sufficient notice of a racially hostile environment.

I would affirm the district court's grant of judgment as a matter of law

for WAL on Nelson's claims under Title VII and 42 U.S.C. § 1981.1

Accordingly, I dissent.

_________________________________________________________________

8 WAL argues that they did not investigate the racial discrimination

allegation since they thought Nelson's complaints involved sexual

harassment. However, at the time Nelson wrote the memorandum claiming that she was treated differently, Nelson had already filed EEOC

charges based on race. The EEOC complaint and the memorandum complaining of "different treatment" were sufficient to put WAL on notice

that Nelson believed she was discriminated against because of her race.

WAL may have dismissed the EEOC complaint as frivolous, but the

jury found otherwise. WAL cannot now claim that the EEOC complaint

was not notice simply because WAL did not believe it.

1 Prior to sending the case to the jury, the district court strongly considered granting WAL's motion for judgment as a matter of law because of

the lack of evidence of notice to WAL but decided to submit the entire

case because notice was not an element of the retaliation claim. The jury

found that WAL had not retaliated against Nelson for complaining about

any discriminatory conduct. On the issue of whether racial discrimination

 6
This court has on numerous occasions held that an employer is liable for impermissibly harassing behavior only if it had actual or constructive knowledge of the illegal conduct and took no prompt and

adequate remedial action. See Andrade v. Mayfair Management, Inc.,

88 F.3d 258, 261 (4th Cir. 1996) (collecting cases). In Dennis v.

County of Fairfax, 55 F.3d 151 (4th Cir. 1995), we applied this rule

to claims of racial discrimination in the workplace under Title VII and

§ 1981 and held "that where an employer implements timely and adequate corrective measures after harassing conduct has come to its

attention, vicarious liability should be barred regardless of the specific

motivation for the wrongdoing or the particular cause of action." Id.

at 156. Implicit in this rule is that the employer must have adequate

notice of the wrongdoing that it is charged with remedying.

The majority finds WAL liable because "[f]ive months elapsed

between the time Nelson filed her EEOC complaint and the time she

was fired [and because] WAL took no corrective action regarding the

discrimination claim." Majority Op. at 5-6. Because the record does

not disclose when WAL received notice of Nelson's EEOC claim, we

can assume only that notice was sent within ten days as required. Nelson admits that, after investigating, "[t]he Alexandria Office of

Human Rights found no probable cause and dismissed the complaint."2

(Appellant's Br. at 5.) It would be curious indeed to require WAL to

implement remedial measures to correct an allegedly racially-hostile

work environment when the investigatory agency made a finding of

"no probable cause" and when Nelson, an individual admittedly

_________________________________________________________________

had occurred, the jury found in favor of Nelson and awarded $4,000

actual damages. Upon WAL's post-verdict motion, the district court

revisited the issue of notice, required supplemental briefing, and entered

judgment for WAL on the Title VII and § 1981 claims for the reasons

stated in its memorandum opinion.

2 Given the lack of credence accorded Nelson's complaint by the investigating agency, the majority has no more basis to chastise WAL for dismissing the EEO complaint as frivolous than it does the Alexandria

Office of Human Rights or the EEOC. See Majority Op. at 6 n.8. Perhaps

had Nelson not moved in limine to preclude WAL from mentioning the

investigating agency's findings the jury's verdict would have been different.

 7
familiar with EEOC requirements, never alleged that the offensive

conduct was due to her race, despite numerous correspondence with

management complaining about unfair treatment.

I agree with the district court that the record reflects no complaints

of discrimination by Nelson between the EEOC charge and the

exchange of memos between Nelson and WAL's general manager,

Petrine Squires, during February 1994. Within one week of Nelson's

statements, Squires acknowledged Nelson's "first time allegations of

sexual harassment and other discriminatory conduct." (J.A. at 90k.)

Squires noted that Nelson's allegations covered an extended period of

time. In addition, she criticized Nelson, particularly due to her supervisory status and familiarity with EEOC requirements, for not

promptly bringing matters to Squires's attention and for refusing to

disclose the victims of the alleged discrimination. Nevertheless, WAL

immediately hired a law firm to investigate Nelson's claims of harassment. Based on Squires's reasonable reading of Nelson's memo, the

two-day on-site investigation focused on sexual harassment and a sexually hostile work environment. Moreover, although Nelson was

interviewed by the attorney at length, she made no claim of harassment of any kind. Accordingly, the law firm's final report in March

1994 concluded that there was no evidence of sexual harassment.

Thus, when confronted by Nelson's allegation of misconduct,

WAL took immediate and decisive action. If racial discrimination

existed at WAL, then it was Nelson's failure to particularize her concerns that prevented its discovery and correction. As the district court

stated, "Nelson did not merely fail to inform Watergate of the problem, but she also actively, if inadvertently, prevented management

from discovering it." Nelson, 898 F. Supp. at 350.

I therefore agree with the district court that the testimony and

exhibits at trial do not support a finding of actual or constructive

notice to WAL of a racially-hostile environment. This conclusion is

consistent with Nelson's own testimony at trial, in which she conceded that she "never used the word race," (J.A. at 172), because she

"was trying to be very diplomatic" and did not want "to just come out

and say, you-all are treating me bad because I am black" (J.A. at 171).

Nelson admitted that she never reported that Miss Green directed

racial slurs towards her. Furthermore, Nelson herself contradicts the

 8
majority's conclusion that the February 1994 memo to Petrine Squires

gave WAL notice of the alleged racial discrimination:

 Q: In this memo to Miss Squires, anywhere in here do

you make a charge of racial discrimination?

 A: No, I didn't come out in those words, no, I did not.

(J.A. at 177.) If Nelson recognized that her memo did not convey a

complaint of racial discrimination, how can the majority hold WAL

accountable for not taking remedial action to cure such discrimination?

Squires testified that in the two-and-one-half years Nelson was

employed at WAL, she complained neither orally nor in writing that

she was subjected to discrimination because of her race, and that no

employee ever reported that Nelson had made such a claim. Further,

Squires did not interpret Nelson's letter complaining about being

treated indifferently as a complaint of racial discrimination. Moreover, Squires's assistant, Ms. Reynolds, testified that in four interviews with Nelson in response to various complaints about

management, Nelson never said she felt discriminated against because

of her race. In fact, the issue of racial discrimination was never raised.

In sum, not a single witness at trial heard Nelson complain to a supervisor or to anyone else that she was discriminated against because of

her race. (J.A. at 162 (M. Gomez), 163 (T.L. Bower), 164-65 (P.M.

Squires, 167 (J.W. Cisco), 197 (K.M. Green), 198 (P.A. Warters), 199

(L.A. Speakmon).)

All the evidence presented suggests that had Nelson raised the

issue of racial discrimination, WAL would have investigated the

charges immediately, as it did in response to Nelson's charges of sexual harassment. I find no legally sufficient evidentiary basis upon

which a jury could find that WAL failed to take prompt action to correct any racially-hostile environment of which it had actual or constructive notice. Because I would affirm the district court, I dissent

from the opinion of the majority.

 9