PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

REGINA W. DEJARNETTE,

Plaintiff-Appellant,

v. No. 96-1897

CORNING INCORPORATED,

Defendant-Appellee.

REGINA W. DEJARNETTE,

Plaintiff-Appellee,

v. No. 96-1937

CORNING INCORPORATED,

Defendant-Appellant.

Appeals from the United States District Court

for the Western District of Virginia, at Danville.

Jackson L. Kiser, Senior District Judge.

(CA-94-34-D)

Argued: October 1, 1997

Decided: January 5, 1998

Before MURNAGHAN and NIEMEYER, Circuit Judges, and

MAGILL, Senior Circuit Judge of the United States Court of Appeals

for the Eighth Circuit, sitting by designation.

_________________________________________________________________

No. 96-1897 dismissed and No. 96-1937 reversed by published opinion. Senior Judge Magill wrote the majority opinion, in which Judge

Niemeyer joined. Judge Murnaghan wrote a dissenting opinion.
COUNSEL

ARGUED: Barbara Rubin Hudson, Danville, Virginia, for Appellant.

Scott F. Zimmerman, REED, SMITH, SHAW & MCCLAY, Pittsburgh, Pennsylvania, for Appellee. ON BRIEF: Carole S. Katz,

REED, SMITH, SHAW & MCCLAY, Pittsburgh, Pennsylvania, for

Appellee.

_________________________________________________________________

OPINION

MAGILL, Senior Circuit Judge:

Regina DeJarnette, a pregnant probationary employee of Corning

Inc. (Corning), was discharged during her probationary period after

Corning gave her several warnings and negative evaluations based on

her poor performance. DeJarnette brought this action of pregnancy

discrimination under the Pregnancy Discrimination Act, 42 U.S.C.

§ 2000e(k) (1994), against Corning. Following a jury trial, the district

court granted in part and denied in part Corning's motion for judgment as a matter of law (JAML). Both parties now appeal. Because

we find insufficient evidence to support a jury verdict of pregnancy

discrimination, we reverse the district court's denial in part of Corning's motion for JAML and we dismiss DeJarnette's appeal as moot.

I.

In November 1992 Corning offered to hire DeJarnette to inspect

and package glassware in its Danville, Virginia, facility. On November 5, 1992, Kathy Schrock, a personnel assistant for Corning, met

with DeJarnette and told her that an inspector-packer (IP) position

was available, and that DeJarnette could have the job if she passed a

physical examination and an investigation. DeJarnette understood that

Schrock, rather than extending a firm offer of employment, was

extending an offer of employment which was strictly conditional on

DeJarnette's passing both the examination and the investigation.

During this meeting, and before completing either the physical or

the investigation, DeJarnette told Schrock that DeJarnette was preg-

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nant. Schrock, who also was pregnant, told DeJarnette that DeJarnette's pregnancy was "`[n]o problem.'" I J.A. at 180 (trial testimony of

DeJarnette). Schrock also informed DeJarnette that"there was no

need" to inform other Corning employees about the pregnancy, id. at

217, because it was irrelevant to the IP position. 1 Id. at 251 (trial testimony of Schrock). That same day, Schrock informed Barbara Bardo,

the Danville facility's Equal Employment Opportunity officer and

personnel supervisor, about DeJarnette's pregnancy.

After DeJarnette passed both the physical examination and the

investigation, Corning called DeJarnette in to work as an IP. DeJarnette was specifically informed that she would be a probationary

employee for sixty days, and DeJarnette was aware that she was

required to pass this probationary period before she could become a

regular employee.

Corning watches its probationary employees closely and holds

them to higher standards than its regular employees. Corning evaluates its probationary employees on the basis of their overall job performance, including their attitude toward their job and their

coworkers.

As a probationary IP, DeJarnette worked alongside a conveyor belt

and inspected and packaged glassware traveling along the belt. DeJarnette's primary duties included ensuring that the conveyor belt did not

clog, inspecting the glassware for defects, discarding defective glassware, and packaging acceptable glassware in boxes. When not busy

inspecting and packaging glassware, DeJarnette was required to perform housekeeping duties such as making boxes, cleaning her work

area, and cleaning her coworkers' work areas.

While employed as a probationary employee, DeJarnette was

supervised and evaluated by Wayne Liggon. During DeJarnette's

sixty-day probationary period, Liggon gave DeJarnette two negative

evaluations.2 In each evaluation, Liggon criticized DeJarnette's poor

_________________________________________________________________

1 Contrary to DeJarnette's assertions in her brief and during oral argument, the record does not reflect that Schrock specifically told DeJarnette

not to tell anyone about her pregnancy.

2 While the first evaluation was given before Liggon was aware that

DeJarnette was pregnant, we will assume that Liggon knew about DeJarnette's pregnancy before the second evaluation.

 3
attitude, her poor use of slack time, her lack of enthusiasm, and her

poor inspecting and packing performance. The first evaluation also

noted that DeJarnette had overstayed some of her breaks. While

reviewing the evaluations with DeJarnette, Liggon specifically

warned DeJarnette that he was unsure that she should be retained as

an employee and that she needed to show dramatic improvement.

After these negative evaluations, Corning extended DeJarnette's

probationary period an additional thirty days. In a letter informing

DeJarnette about the extension, Liggon commented on DeJarnette's

lack of enthusiasm, poor attitude, poor use of slack time, and poor

inspecting and packaging performance, and warned her"that a dramatic improvement in her performance must occur or she [would] be

terminated with the company." II J.A. at 625.

During the extended probationary period, Liggon evaluated DeJarnette on three separate occasions. These evaluations noted that DeJarnette's inspecting and packaging performance was improving.

However, these evaluations continued to criticize DeJarnette's poor

use of slack time, her poor housekeeping habits, and her lack of

enthusiasm. These evaluations also explicitly warned DeJarnette that

dramatic improvement in these areas was required.

Despite Liggon's consistent warnings and negative evaluations,

DeJarnette failed to make the necessary improvement. Accordingly,

Liggon, Bardo, and Judith Breznay, Corning's plant manager, decided

to discharge DeJarnette near the end of the extended thirty-day probationary period.

While DeJarnette was employed as a probationary employee, forty

of Corning's forty-three IPs were female. In addition, nine of the

eleven IPs under Liggon's supervision were female. Furthermore,

between 1989 and 1993, twelve of Corning's female employees took

pregnancy-related leaves of absence, and each of these employees

was reinstated.

After being discharged, DeJarnette filed a complaint with the Equal

Employment Opportunity Commission (EEOC). The EEOC declined

to act on DeJarnette's complaint, and provided DeJarnette with a

right-to-sue letter.

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DeJarnette then sued Corning, claiming that its decision to discharge her constituted discrimination because of her pregnancy. The

suit first went to trial in March 1995. The first trial resulted in a hung

jury and was declared a mistrial. The suit was tried a second time in

October 1995. The second jury found discrimination and awarded

DeJarnette $51,451.48 in past wages, $57,334.87 in future wages,

$50,000.00 in compensatory damages, and $100,000.00 in punitive

damages. Corning then filed a motion for JAML or, in the alternative,

for a new trial or, in the alternative, for remittitur. The district court

denied Corning's motion for JAML as to liability, reasoning that Liggon's evaluations were subjective and easily fabricated, and asserting

that the jury could reasonably rely on DeJarnette's coworkers' testimony to refute Liggon's evaluations. However, the district court

granted Corning's motion for JAML with respect to DeJarnette's

awards of front pay, compensatory damages, and punitive damages.

The district court also conditionally granted Corning's motion for a

new trial with respect to front pay, compensatory damages, and punitive damages. DeJarnette now appeals the district court's grant of

Corning's motion for JAML as to front pay, compensatory damages,

and punitive damages, as well as the district court's conditional grant

of a new trial on these issues. Corning cross-appeals the district

court's refusal to grant Corning's motion for JAML as to liability.

II.

We review the district court's denial of JAML de novo and examine the evidence in the light most favorable to DeJarnette, the nonmoving party. See Brown v. CSX Transp., Inc., 18 F.3d 245, 248 (4th

Cir. 1994). A motion for JAML should be granted with respect to an

issue if "there is no legally sufficient evidentiary basis for a reasonable jury to find for [the nonmoving] party on that issue . . . ." Fed.

R. Civ. P. 50(a). Accordingly, this Court must determine whether

"there is substantial evidence in the record to support the jury's findings." Wilhelm v. Blue Bell, Inc., 773 F.2d 1429, 1433 (4th Cir. 1985).

When determining whether substantial evidence exists supporting the

jury's verdict, this Court

may not weigh the evidence, pass on the credibility of the

witnesses, or substitute our judgment of the facts for that of

the jury. That deference to the jury's findings is not, how-

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ever, absolute: A mere scintilla of evidence is insufficient to

sustain the verdict, and the inferences a jury draws to establish causation must be reasonably probable.

Charleston Area Med. Ctr., Inc. v. Blue Cross and Blue Shield, 6 F.3d

243, 248 (4th Cir. 1993) (quotations and citations omitted).

"[A] claim of discrimination on the basis of pregnancy must be

analyzed in the same manner as any other sex discrimination claim

brought pursuant to Title VII." Boyd v. Harding Academy, 88 F.3d

410, 413 (6th Cir. 1996). In a Title VII discrimination case, the plaintiff bears "the ultimate burden of persuading the court that she has

been the victim of intentional discrimination." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). In a pregnancy

discrimination case, the plaintiff thus bears the ultimate burden of

establishing that the defendant discriminated against her "because of"

her pregnancy. See 42 U.S.C. §§ 2000e-2(a)(1) & (2) (1994). Because

this appeal follows a trial on the merits, this Court only addresses the

issue of whether the plaintiff established discrimination vel non. See

Jiminez v. Mary Washington College, 57 F.3d 369, 377 (4th Cir.) (citing to United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S.

711, 714-16 (1983)), cert. denied, 116 S. Ct. 380 (1995). Accordingly, we address only the factual inquiry of "whether `the defendant

intentionally discriminated against the plaintiff.'" Id. (quoting

Burdine, 450 U.S. at 253).

To defeat an employer's motion for JAML as to liability in a discrimination suit, the plaintiff must present substantial evidence to support as a reasonable probability, rather than as a mere possibility, that

her employer discriminated against her because of a protected characteristic. See Lovelace v. Sherwin-Williams Co. , 681 F.2d 230, 243 (4th

Cir. 1980). 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. It is of course precisely to guard against this danger that the burden of produc-

 6
ing rationally probative evidence--and the corresponding

risk of nonproduction--is placed upon claimants and subjected to the ultimate jury control devices of directed verdict

and judgment n. o. v.

Id. at 242. The controlling issue in this case, therefore, is whether

DeJarnette presented sufficient evidence to support as a reasonable

probability the jury's finding that Corning intentionally discriminated

against her because of her pregnancy. Cf. Jiminez, 57 F.3d at 377-78.

After reviewing the evidence in the light most favorable to DeJarnette, we conclude that DeJarnette did not meet this burden.

DeJarnette failed to identify any similarly situated employees who

were treated differently. While she identified nonpregnant probationary employees who became permanent employees despite being

slower than DeJarnette on the line, DeJarnette failed to demonstrate

that any of these employees shared her poor attitude, lack of enthusiasm, and poor use of slack time. In addition, the evidence clearly

established that from 1989 through 1993, twelve of Corning's female

employees took pregnancy-related leaves of absence and each of

these employees was reinstated.

To prove discrimination, DeJarnette relies only on Corning's

knowledge of her pregnancy when she was hired and her contention

that Corning's articulated nondiscriminatory reasons for discharge --

DeJarnette's poor attitude, poor use of slack time, and lack of

enthusiasm--are false. Rather than suggesting discrimination, Corning's knowledge of DeJarnette's pregnancy while hiring her creates

an inference that Corning's reasons for discharging DeJarnette are not

pretextual. See Proud v. Stone, 945 F.2d 796, 797 (4th Cir. 1991).

"From the standpoint of the putative discriminator, it hardly makes

sense to hire workers from a group one dislikes . . . only to fire them

once they are on the job." Id. (quotations, citation, and alteration

omitted). Both Schrock and Bardo knew that DeJarnette was pregnant

before DeJarnette even started working for Corning, and Bardo was

involved in the ultimate decision to discharge DeJarnette. In addition,

Schrock's and Bardo's salaries were at least indirectly tied to Corning's ability to hire and retain employees from protected classes.

Corning specifically charged Bardo, as its Equal Employment Opportunity officer, with the responsibility to "hire, retain, and promote

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female, minority, . . . [and other] people of the protected classes." I

J.A. at 276. While DeJarnette speculates that Schrock and Bardo,

from the instant that DeJarnette was hired, plotted with other Corning

employees to create a paper record and discharge DeJarnette, DeJarnette has presented no evidence to support this conspiracy theory as

a reasonable probability.

DeJarnette also has failed to show as a reasonable probability that

Corning's reasons for discharging her were pretextual. This Court has

held that to establish that an employer's "proffered reason for the

challenged action is pretext for discrimination, the plaintiff must

prove `both that the reason was false, and that discrimination was the

real reason' for the challenged conduct." Jiminez, 57 F.3d at 377-78

(quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)).

DeJarnette failed to satisfy either prong.

While reviewing the employer's articulated reasons for discharge

and the plaintiff's refutation thereof, we must keep in mind that "Title

VII is not a vehicle for substituting the judgment of a court for that

of the employer." Id. at 377. Particularly, this Court "does not sit as

a kind of super-personnel department weighing the prudence of

employment decisions made by firms charged with employment discrimination . . . ." Giannopoulos v. Brach & Brock Confections, Inc.,

109 F.3d 406, 410 (7th Cir. 1997) (quotations and citations omitted).

See also EEOC v. Clay Printing, Inc., 955 F.2d 936, 946 (4th Cir.

1992). Our sole concern is

whether the reason for which the defendant discharged the

plaintiff was discriminatory. Thus, when an employer articulates a reason for discharging the plaintiff not forbidden by

law, it is not our province to decide whether the reason was

wise, fair, or even correct, ultimately, so long as it truly was

the reason for the plaintiff's termination.

Giannopoulos, 109 F.3d at 410-11.

In an attempt to show that Corning's nondiscriminatory reasons for

her termination are pretextual, DeJarnette relies on her own opinion

and her coworkers' opinions that DeJarnette was an average or good

employee. She relies on Data Processing Sheets to show that her

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inspecting and packaging performance was at least average. And,

contrary to her own testimony, she contends that she was never adequately trained to be an IP.

With respect to the opinion testimony, we have repeatedly

explained that "`[i]t is the perception of the decision maker which is

relevant,' not the self-assessment of the plaintiff." Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 960-61 (4th Cir. 1996)

(quoting Smith v. Flax, 618 F.2d 1062, 1067 (4th Cir. 1980)). Accordingly, the plaintiff's "perception of [her]self . . . is not relevant."

Smith, 618 F.2d at 1067. Similarly, that plaintiff's coworkers "may

have thought that [she] did a good job, or that [she] did not `deserve'

[to be discharged], is close to irrelevant." Conkwright v. Westinghouse Elec. Corp., 933 F.2d 231, 235 (4th Cir. 1991) (footnote omitted).

To the extent that the proffered opinion testimony has any relevance,3

it fails to prove as a reasonable probability that Liggon's evaluations

were either false or pretextual for discrimination. See Giannopoulos,

109 F.3d at 411 (employee must present evidence reasonably calling

into question the honesty of his employer's belief; employee's mere

demonstration that his employer's belief may be incorrect is not sufficient to prove discrimination). Particularly, and rather than suggesting

Liggon fabricated his evaluations, DeJarnette's coworkers testified

that they considered Liggon to be a fair and honest supervisor and that

they had no reason to believe Liggon wanted to discharge DeJarnette

because of her pregnancy. In addition, Liggon rendered his first evaluation before he was aware of DeJarnette's pregnancy, and his other

evaluations were consistent with the first evaluation. There is nothing

in the record to suggest as a reasonable probability either that Liggon's knowledge of DeJarnette's pregnancy affected his remaining

evaluations in any manner, or that Liggon did not truly believe that

DeJarnette demonstrated a poor attitude, lacked enthusiasm, and used

her slack time poorly.

_________________________________________________________________

3 Our conclusion that DeJarnette's coworkers' opinion testimony is

substantially irrelevant is buttressed by the coworkers' concessions, during trial, that they rarely observed DeJarnette and that they were unable

to observe DeJarnette as often as Liggon observed her.

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DeJarnette's remaining evidence of pretext fails to specifically

refute the facts--Liggon's evaluations--which support Corning's

nondiscriminatory reasons for discharging her. See Mills v. First Fed.

Sav. & Loan Ass'n, 83 F.3d 833, 845 (7th Cir. 1996) (plaintiff must

specifically refute facts which support the employer's proffered nondiscriminatory reasons). Corning discharged DeJarnette because of

her poor attitude, lack of enthusiasm, and poor use of slack time. Corning did not discharge DeJarnette because of any difficulties she may

have had with the technical aspects of the IP job. While the Data Processing Sheets may show that DeJarnette's packing and inspecting

performance was average, they do not refute Liggon's opinion that

DeJarnette had a poor attitude, lacked enthusiasm, and made poor use

of her slack time. Similarly, DeJarnette's contention that Corning did

not adequately train her to inspect glass does not refute Liggon's

observations of DeJarnette's poor attitude, lack of enthusiasm, and

poor use of slack time.

It is clear that DeJarnette failed to introduce sufficient evidence to

support, based on a reasonable probability, a finding that she was discharged because of her pregnancy. Because DeJarnette failed to make

a submissible case of pregnancy discrimination, we conclude that the

district court erred in denying Corning's motion for judgment as a

matter of law as to liability. Accordingly, we will not address the

issues raised in DeJarnette's appeal.

III.

For the foregoing reasons, we reverse the district court order denying judgment as a matter of law to Corning as to liability. Because

DeJarnette failed to prove a violation of Title VII and Corning is not

liable, we dismiss DeJarnette's appeal as moot.

No. 96-1897 - DISMISSED

No. 96-1937 - REVERSED

MURNAGHAN, Circuit Judge, dissenting:

I feel compelled to dissent on the majority's determination of no

liability. That represents a reversal of the conclusion of the district

 10
court based on the jury's finding. Yet a jury's verdict should be

respected when reasonable. Since adequately supported by the evidence, the verdict here was reasonable.

The issue of credibility of the witnesses is not for us. See

Abasiekong v. City of Shelby, 744 F.2d 1055, 1059 (4th Cir. 1984).

DeJarnette, as the non-moving party, was entitled to the benefit of

"every legitimate inference" in her favor. Duke v. Uniroyal, Inc., 928

F.2d 1413, 1419 (4th Cir.), cert. denied, 502 U.S. 963 (1991). That

is especially true where determinations of motive and causation are

critical. Taylor v. Home Ins. Co., 777 F.2d 849, 854 (4th Cir. 1985),

cert. denied, 476 U.S. 1142 (1986). Here DeJarnette presented sufficient circumstantial evidence involving credibility of witnesses to

necessitate submission to the jury.

Reliance sua sponte by the majority on Proud v. Stone, 945 F.2d

796, 797 (4th Cir. 1991), for the proposition that hiring and firing by

the same individual constitutes an inference of non-discrimination is

not justified. Schrock did the hiring, Breznay the firing. Also, Corning's attempt to rely on DeJarnette's supposed poor attitude, lack of

enthusiasm and poor use of slack time, the existence of which were

questioned by fellow employees, is "always suspect" because it provides a convenient mask for discrimination. Barnett v. W.T. Grant

Co., 518 F.2d 543, 550 (4th Cir. 1975). Such subjective evidence, particularly in the complete absence of objective evidence from the

employer, was vague and intangible, which may have occasioned substantial disparagement by the jury. That is especially true in view of

the uncontroverted evidence of DeJarnette's speed and accuracy as an

inspector-packer.

Although DeJarnette's allegedly poor technical performance was

pervasive in her job evaluations, that attempt to justify her termination was abandoned by the time the case was tried. Supervisors Bardo

and Breznay both testified that technical performance was "never an

issue." Corning in the end asserted only "the intangible things." See

Hossaini v. Western Missouri Med. Ctr., 97 F.3d 1085, 1089 (8th Cir.

1996) ("[S]ubstantial changes over time in the employer's proffered

reason for its employment decision support a finding of pretext.").

The majority's opinion does not address the fact that Corning's justifications changed over time, nor is any attempt made to explain why

 11
such change could not support a reasonable finding of pretext.

"[R]ejection of the defendant's proffered reasons will permit the trier

of fact to infer the ultimate fact of intentional discrimination . . . ."

St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993).

Corning's knowledge of DeJarnette's pregnancy existed at all relevant times, and Corning admitted that DeJarnette was more technically proficient than many of her co-workers. Hence there was

enough to support the jury's verdict of liability.*

_________________________________________________________________

*Given the majority's unwarranted decision to reverse the jury's finding of liability, it seems unnecessary to address other issues that may

have been raised, though I do not disagree with the disallowance of back

pay or of punitive damages.

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