UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

 

No. 05-1044

 

PATRICK M. MARTIN,

Plaintiff - Appellee,

versus

MECKLENBURG COUNTY, Jointly and Severally,

Defendant - Appellant,

and

HARRY JONES, SR.; RICHARD JACOBSEN; JOHN

SKIDMORE; SUSAN HUTCHINS; JAMES O. COBB,

Defendants.

 

No. 05-1065

 

PATRICK M. MARTIN,

Plaintiff - Appellant,

versus

MECKLENBURG COUNTY, Jointly and Severally,

Defendant - Appellee,

and
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HARRY JONES, SR.; RICHARD JACOBSEN; JOHN

SKIDMORE; SUSAN HUTCHINS; JAMES O. COBB,

Defendants.

 

 

Appeals from the United States District Court for the Western

District of North Carolina, at Charlotte. Carl Horn, III,

Magistrate Judge. (CA-02-466-3-H)

 

Argued: September 20, 2005 Decided: October 26, 2005

 

Before MICHAEL, MOTZ, and KING, Circuit Judges. 

 

Affirmed by unpublished per curiam opinion.

 

Louis L. Lesesne, Jr., LESESNE & CONNETTE, Charlotte, North

Carolina, for Appellant/Cross-Appellee. Jenny Lu Sharpe,

Charlotte, North Carolina, for Appellee/Cross-Appellant. 

 

Unpublished opinions are not binding precedent in this circuit. 

See Local Rule 36(c).
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PER CURIAM:

In this Title VII retaliation case, Mecklenburg County appeals

the district court’s order denying the County’s motions for

judgment as a matter of law and for a new trial following an

adverse jury verdict. Patrick M. Martin, a County employee, crossappeals the district court’s rulings as to back pay, front pay,

attorneys’ fees, and costs. For the following reasons, we affirm.

I.

Mecklenburg County employed Martin for twenty-seven years--

from 1974 until his discharge in 2001. Since 1985, he served as the

Director of the Department of Social Services’ Youth and Family

Services Division. 

In 1997, an employee in his Division, Ruth Annette Harris,

complained to County officials that she had been sexually harassed

by her supervisor, Glenn Holland. An internal County investigation

so found, and the County disciplined but did not discharge Holland.

In May 1997, after Harris filed an EEOC charge of sexual

harassment against the County on the basis of Holland’s harassment,

the Department of Justice brought a Title VII lawsuit against the

County on Harris’s behalf, and Harris intervened in that suit. An

article in the local newspaper about the Harris suit prompted a

September 1999 conversation between Martin and John Skidmore, his

immediate supervisor, in which Skidmore told Martin that Harris’s
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supervisor, Holland, “was up to his old tricks,” that “Glenn

[Holland] had been caught screwing in the building” in the past,

and that Holland’s boss at the time had failed to do anything about

Holland’s misbehavior.

On February 4, 2000, Martin telephoned Harris’s private

attorney, Thomas Roberts, to tell him about Martin’s September

conversation with Skidmore. Although Martin never reached Roberts,

he left two phone messages that indicated he had information

relating to the Harris suit. Roberts notified the DOJ’s lead

attorney about Martin’s calls; the DOJ attorney then related this

information to James O. Cobb, the County’s lead counsel in the

Harris suit.

On February 8, 2000, Cobb and Sandra Bisanar, the Deputy

County Attorney, called Martin into Bisanar’s office to determine

what he knew about the Harris suit. Martin told Cobb and Bisanar

that he had called Roberts and that he intended to tell Roberts

about the substance of his September 1999 conversation with

Skidmore. However, Martin lied in one respect--he said that Roberts

had initially called him. Martin later testified that he found this

meeting intimidating, and that he lied because he had “panicked.”

On May 16, 2000, Cobb and Bisanar again confronted Martin regarding

his attempt to contact Roberts. Martin repeated the same

information he had told them in the February meeting; he again lied

about Roberts initiating contact.
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In the days that followed, various County officials met

repeatedly to discuss their concern about Martin. In one meeting on

May 31, 2000, Skidmore’s notes relate that the County planned to

obtain the actual tape-recordings of Martin’s telephone messages,

and that there was a “need to get [Martin] on a conduct issue.”

Shortly after this meeting, Martin began to suffer a series of

disciplinary actions at work. He received two “written reminders”

in June and August 2000. He also received a mediocre job rating for

1999, and the County’s lowest job rating for 2000. These setbacks

were unprecedented: Martin had never before been the subject of any

formal disciplinary action, and his job performance had been rated

exceptional for several years. 

On January 3, 2001, Harris settled her suit with the County

for $66,000. As part of the settlement, Harris gave the County

Roberts’s tape recordings of Martin’s telephone messages. Roberts

later testified that in the months leading up to the settlement,

Cobb had persistently badgered Roberts for the tapes. Roberts

further testified that by October 2000, Cobb had said that Martin

would be discharged for disloyalty.

On January 11, 2001, after reviewing the tape recordings,

Bisanar and Cobb confronted Martin for the last time. The day

afterward, Martin was discharged by Richard Jacobsen, his

supervisor, assertedly for having lied to Bisanar and Cobb about

whether he had initiated contact with Roberts.
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Pursuant to County policy, Martin appealed his termination to

an Employee Review Panel, alleging that he was the victim of

discriminatory retaliation. After a hearing in which several

witnesses testified, the panel concluded on February 22, 2001, that

Martin’s termination should be reversed.

Harry Jones, the Mecklenburg County manager, reviewed the

panel’s ruling. Prior to making his decision, Jones had read

Martin’s grievance statement, a memo between Cobb and Bisanar,

Martin’s statement to the panel, and the panel’s written ruling. On

March 9, Jones reversed the panel’s February 22 ruling and instead

upheld Martin’s discharge, even though County policy treated panel

decisions on discrimination matters as “final and binding.”

Martin then brought this action against the County and various

officials. The County moved for summary judgment on all counts. The

district court granted the motion with respect to Martin’s state

law conspiracy and wrongful discharge claims and his 42 U.S.C. §

1985 conspiracy claims against the individual defendants, but

denied the County summary judgment as to Martin’s First Amendment

and Title VII claims against the County itself.

After trial, the jury rejected all of Martin’s First Amendment

claims, as well as his claim that the County disciplined him in

retaliation for protected activity. The jury, however, found for

Martin on his Title VII claim that the County discharged him in
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retaliation for protected activity. The jury awarded Martin

$300,000 in compensatory damages.

Martin then moved for back pay, front pay, attorneys’ fees,

and pre-judgment interest. Simultaneously, the County moved for

judgment as a matter of law or a new trial, and challenged the

$300,000 compensatory award as excessive. The district court

granted, but reduced, Martin’s request for back pay; denied

Martin’s request for front pay; granted Martin’s request for

prejudgment interest; and granted, but reduced, Martin’s request

for attorneys’ fees. The court also denied the County’s motions for

judgment as a matter of law and a new trial, but agreed that the

$300,000 compensatory award was excessive. Instead, it offered

Martin a remittitur of $100,000, which Martin accepted.

The County appeals, and Martin cross-appeals. 

II.

A.

The County first and principally argues that the district

court erred in denying its motion for judgment as a matter of law

on Martin’s Title VII retaliation claim. We review the denial of a

motion for judgment as a matter of law de novo, viewing the

evidence in the light most favorable to Martin, the nonmoving

party, Babcock v. BellSouth Adver. & Publ’g Corp., 348 F.3d 73, 76

(4th Cir. 2003), and drawing all reasonable inferences in his
1Martin invokes the protection of Title VII’s participation

clause, not its opposition clause, which protects an employee’s

opposition to “any practice made an unlawful employment practice”

by Title VII. 42 U.S.C. § 2000e-3(a) (2000). The County’s reliance

on opposition-clause cases, like Laughlin v. Metropolitan

Washington Airports Auth., 149 F.3d 253 (4th Cir. 1998), is

therefore misplaced.

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favor. Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639,

645 (4th Cir. 2002). Judgment as a matter of law is appropriate

only 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. P. 50(a)(1). Review of

a denial of judgment as a matter of law “is based on the complete

trial record.” Chesapeake Paper Prods. Co. v. Stone & Webster Eng’g

Corp., 51 F.3d 1229, 1236 (4th Cir. 1995).

In support of this argument, the County initially contends

that Martin did not engage in conduct that Title VII protects.

Title VII’s participation clause prohibits employers from

retaliating against employees who “participate[] in any manner in

an investigation, proceeding, or hearing under [Title VII].” 42

U.S.C. § 2000e-3(a) (2000).1

The parties do not agree on the exact “participating” conduct

at issue here. There are three possible candidates: (1) Martin’s

phone calls to Roberts in February; (2) Martin’s statements to

Bisanar and Cobb in February and May about his conversation with

Skidmore and his willingness to testify about the conversation in

the Harris suit; and (3) in the same February and May
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conversations, Martin’s lie that he had not initiated contact with

Roberts.

Clearly, Title VII protects from retaliation Martin’s phone

calls to Roberts since they were made for the purpose of providing

information in a pending Title VII proceeding--the Harris suit.

“Title VII combats unlawful employment practices . . . principally

through reliance on employee initiative.” Jute v. Hamilton

Sundstrand Corp., 420 F.3d 166, 174-75 (2d Cir. 2005). Permitting

retaliation based on an employee’s sua sponte offer of information

would impede voluntary participation by the most effective

witnesses in Title VII actions, frustrating the statute’s purpose

to “ensure . . . that investigators will have access to the

unchilled testimony of witnesses.” Glover v. S.C. Law Enforcement

Div., 170 F.3d 411, 414 (4th Cir. 1999). 

Similarly, Title VII protects Martin’s truthful statements to

Bisanar and Cobb in February and May because Martin made those

statements during the County’s internal investigation in

preparation for its defense in the Harris suit. See Clover v. Total

Systems Servs., Inc., 176 F.3d 1346, 1353 (11th Cir. 1999). It is

of no moment that the content of Martin’s statements--i.e., his

recounting of his conversation with Skidmore--arguably neither

described an incident of sexual harassment nor bore any relevance

to the Harris suit. In Glover, we held that the phrase “in any

manner” in the participation clause is “a clear signal that the
2

Notwithstanding the County’s suggestion, Crowley v. Prince

George’s County, 890 F.2d 683 (4th Cir. 1989), and Balazs v.

Liebenthal, 32 F.3d 151 (4th Cir. 1994), do not support its

contrary argument. In neither Crowley nor Balazs did the underlying

case (the equivalent of the Harris suit here) involve an actual

Title VII investigation, proceeding, or hearing in which the

retaliation-plaintiff could participate. In Crowley, 890 F.2d at

687, the underlying matter involved racial discrimination outside

of the employment context and thus not covered by Title VII. In

Balazs, 32 F.3d at 158-59, the underlying matter involved a charge

of discrimination that we held did not state a Title VII claim.

Here, by contrast, Martin’s truthful statements to Bisanar and Cobb

were made in the context of an underlying matter--the Harris suit--

that indisputably stated a Title VII discrimination charge.

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provision is meant to sweep broadly” to include even unreasonable

and irrelevant activity. 170 F.3d at 414; see also Deravin v.

Kerik, 335 F.3d 195, 203 (2d Cir. 2003) (“[T]he explicit language

of [the] participation clause is expansive and seemingly contains

no limitations.”); Clover, 176 F.3d at 1353 (“The words

‘participate in any manner’ express Congress’ intent to confer

exceptionally broad protection upon employees covered by Title

VII.” (internal quotation marks omitted)). Title VII protects

Martin’s truthful statements, regardless of their content, because

they took place during a meeting that was directly related to a

Title VII proceeding.2

Martin’s lie to Bisanar and Cobb is, however, more

troublesome. Although Glover can be read to protect all dishonest

conduct, we recognize that Title VII is not meant to “arm employees

with a tactical coercive weapon that may be turned against the

employer as a means for the asserted victims to advance their own
3An employer will not be liable under Title VII for the

decisions of just any employee with supervisory or managerial

powers. Rather, Title VII only imposes liability if the retaliatory

animus of an actual decisionmaker--i.e., “the person who in reality

makes the decision”--motivated the contested employment action.

Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 290-

291 (4th Cir. 2004) (en banc). Martin claims that several County

employees--including Skidmore, Jacobsen, and Cobb--“in reality”

made the decision to fire him. The County insists that only Jones

was the actual decisionmaker. For purposes of this appeal, we

assume that the County is correct.

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retaliatory motives and strategies.” Spadola v. N.Y. City Transit

Auth., 242 F.Supp.2d 284, 292 (S.D.N.Y. 2003). For this reason, we

would be reluctant to conclude that an employer can never dismiss

an employee for lying during a Title VII investigation, proceeding,

or hearing. Cf. Mattson v. Caterpillar, Inc., 359 F.3d 885, 892

(7th Cir. 2004). Martin’s lie, however, may have resulted from

intimidation by his employer and be so trivial in context as to be

protected by Title VII. We need not resolve this difficult issue

because even assuming that Title VII does not protect this lie, the

County cannot prevail. Martin presented at trial evidence

sufficient to demonstrate that his protected conduct (namely, his

calls to Roberts and his truthful statements to Bisanar and Cobb),

not his lie, caused the County to discharge him--even if we assume

that Jones, not other County officials, was the ultimate

decisionmaker here.3

We note that both parties phrase their arguments on this point

as a question of whether Martin presented a prima facie case under

the pretext test of McDonnell Douglas Corp. v. Green, 411 U.S. 792
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(1973), or the mixed motive test of Price Waterhouse v. Hopkins,

490 U.S. 228 (1989). In fact, such an “approach is inapposite when

a trial has proceeded to completion” and the appeal is based on a

denial of a motion for judgment as a matter of law. Dennis v.

Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir.

2002). In this latter situation, the question on appeal is simply

“whether the plaintiff was the victim of intentional

discrimination.” Reeves v. Sanderson Plumbing Prods., Inc., 530

U.S. 133, 153 (2000).

In this case, a reasonable jury could have concluded from the

evidence presented at trial that an impermissible retaliatory

animus at least partially motivated Jones to terminate Martin’s

employment. Jones testified that he reviewed a number of documents

prior to deciding to discharge Martin. From reading these

documents, Jones certainly knew about Martin’s protected conduct,

and Jones made his decision to discharge Martin “at the first

opportunity” after learning about this protected conduct. Price v.

Thompson, 380 F.3d 209, 213 (4th Cir. 2004). In doing so, Jones

overturned the Employee Review Panel’s decision, an action that a

jury could find was at odds with the County’s policy of treating

decisions on discrimination matters as “final and binding.”

Furthermore, a jury could conclude that Jones acted inconsistently

by retaining Holland (the defendant in the Harris suit), who had

lied about attending a mandatory assistance program, while firing
4

We also note that during the County’s initial investigation

into Harris’s sexual harassment claim, it concluded that Holland

had lied about whether he had mistreated Harris. Notwithstanding

this dishonesty, counsel for the County informed us at oral

argument that Holland continues to be employed by the County today.

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Martin.4 A decisionmaker’s inconsistent action in violation of

well-established policy, rendered at the first opportunity after

becoming aware of protected conduct, provides sufficient evidence

for a reasonable jury to conclude at the very least that some

consideration of this protected conduct played a role in the

contested employment decision.

Under the Price Waterhouse framework, the County could still

avoid liability by showing that Jones would have terminated Martin

even without the improper retaliatory motivation. Jones ostensibly

fired Martin because Martin had admitted lying to Bisanar and Cobb

about whether he had initiated contact with Roberts. However, the

record reveals evidence from which a reasonable jury could

certainly conclude that Martin’s dishonesty, standing alone, would

not have led to his termination. Viewing the evidence in the light

most favorable to Martin, County policy did not require immediate

dismissal for lying, and the County’s examples of other employees

who had been terminated due to dishonesty were not analogous,

primarily because none of them had had their terminations reversed

by an Employee Review Panel. A jury could also have turned again to

the County’s more lenient treatment of Holland’s lies. Finally, a

jury could determine that given Jones’s responses on cross-
5The County also argues that Martin cannot show causation

because he has failed to meet his employer’s legitimate

expectations and because he has failed to show disparate treatment.

However, these arguments conflate elements from different prima

facie cases. “[T]he elements of a prima facie case differ depending

on the statute and the nature of the claim.” Rowe v. Marley Co.,

233 F.3d 825, 829 (4th Cir. 2000). An employer’s legitimate

expectations and disparate treatment are relevant for

discriminatory discharge, not retaliation. See King v. Rumsfeld,

328 F.3d 145, 149-50 (4th Cir. 2003); Taylor v. Va. Union Univ.,

193 F.3d 219, 234 (4th Cir. 1999) (en banc).

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examination, his testimony that Martin’s lie alone led to the

discharge was simply not credible. All of this evidence could lead

a reasonable jury to find that the County did not have a strong

policy of dismissal for dishonesty, and that Jones fired Martin

only because Martin had also engaged in protected conduct.5

B.

In addition to its Title VII claims, the County makes two

evidentiary objections, which it maintains require us to vacate the

judgment against it. We review a district court’s evidentiary

rulings for abuse of discretion. United States v. Leftenant, 341

F.3d 338, 342 (4th Cir. 2003). 

First, the County objects on relevance grounds to the

admission of the Employee Review Panel’s decision and the

transcript of its proceedings. “[R]elevance typically presents a

low barrier to admissibility.” Leftenant, 341 F.3d at 346. Here,

Jones admitted reading and relying on the Panel’s decision before

he decided to terminate Martin. The decision is thus probative as
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to Jones’s motivation for terminating Martin. Furthermore, the

Panel’s decision was necessary for Martin to demonstrate that Jones

had violated County policy by overruling the decision. As for the

transcript of the Panel’s proceedings, although Jones did not read

the transcript, it confirms the factual basis behind the Panel’s

decision. We thus find no error in the district court’s admission.

Second, the County objects on hearsay grounds to the admission

of Roberts’s testimony about Cobb’s statement in October 2000 that

the County would terminate Martin. Even if Roberts’s testimony is

hearsay, we find its admission harmless. The description of Cobb’s

statement occupied only a few minutes of testimony among several

days of witnesses, and counsel for the County engaged in an able

cross-examination on Roberts’s recollection and characterization of

Cobb’s statement. In addition, Martin presented substantial

additional evidence concerning Jones’s improper motivation. The

district court did not abuse its discretion here.

C.

Finally, the County argues that the award of damages to

Martin--$100,000 after the remittitur--was excessive. The County

“bears a hefty burden in establishing that the evidence is not

sufficient to support the award[]. . . . [I]f there is evidence on

which a reasonable jury may return verdicts in favor of [Martin],
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we must affirm.” Price v. City of Charlotte, 93 F.3d 1241, 1249-50

(4th Cir. 1996).

We find sufficient evidence to support the damage award. Both

Martin and his wife specifically described the emotional distress

and concrete physical symptoms he suffered in response to his

termination. Furthermore, although Martin did not seek counseling

or request medication, he did present evidence that he had adjusted

his lifestyle in an attempt to alleviate his distress. See Bryant

v. Aiken Reg’l Med. Ctrs. Inc., 333 F.3d 536, 547 (4th Cir. 2003).

Martin’s physical and emotional distress was reasonable considering

his sudden and ignominious dismissal after nearly three decades of

continuous employment with the County. See id. (noting that

Bryant’s “emotional distress was a reasonable reaction to this

mystifying frustration of her professional career”). We find no

error in his reduced damage award.

III.

A.

On cross-appeal, Martin first argues that the district court

acted improperly by reducing his request for back pay and denying

his request for front pay. We review the district court’s rulings

regarding back pay and front pay for abuse of discretion. Dennis v.

Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 651 (4th Cir.

2002). The district court based its rulings primarily on its
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finding that Martin had failed to mitigate his damages, and that

with reasonable diligence he could have found comparable work of

roughly equal pay within three years after his termination. The

record reveals that Martin applied to a very limited number of jobs

and ended up working for only brief periods of time in the years

following his termination.

Martin maintains that the district court improperly placed

upon him the burden of showing mitigation. It is well established

that the employer bears the burden of proving the employee’s

failure to mitigate. Martin v. Cavalier Hotel Corp., 48 F.3d 1343,

1358 (4th Cir. 1995). “[T]he duty to mitigate damages requires that

the claimant be reasonably diligent in seeking and accepting new

employment substantially equivalent to that from which he was

discharged.” Brady v. Thurston Motor Lines, Inc., 753 F.2d 1269,

1273 (4th Cir. 1985). The question here is whether an employer

bears the burden of showing the existence of comparable work if it

meets its burden of showing lack of reasonable diligence. Although

we have not yet ruled on this issue, “[o]ther courts of appeals .

. . uniformly have relieved the defendant-employer of the burden to

prove the availability of substantially equivalent jobs in the

relevant geographic area once it has been shown that the former

employee made no effort to secure suitable employment.” Quint v.

A.E. Staley Mfg. Co., 172 F.3d 1, 16 (1st Cir. 1999) (citing
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cases). We see no reason to modify this rule under the

circumstances of this case.

B.

Martin argues next that the district court improperly reduced

his request for attorneys’ fees and costs. A district court’s award

of attorneys’ fees is “reversed on appeal only if under all the

facts and circumstances [the award] is clearly wrong.” Martin v.

Cavalier Hotel Corp., 48 F.3d 1343, 1359 (4th Cir. 1995) (quoting

Johnson v. Hugo’s Skateway, 974 F.2d 1408, 1418 (4th Cir. 1992) (en

banc)). 

Martin makes three arguments on this point. Martin primarily

faults the district court for not calculating a “lodestar” amount.

We find no merit to this claim. A court calculates a lodestar

figure “by multiplying the number of reasonable hours expended

times a reasonable rate.” Brodziak v. Runyon, 145 F.3d 194, 196

(4th Cir. 1998) (quoting Daly v. Hill, 790 F.2d 1071, 1077 (4th

Cir. 1986)). The district court’s post-trial memorandum opinion

demonstrates that it performed this exact calculation.

Second, Martin contends that the district court erred by not

expressly relying on the twelve-factor test in Johnson v. Ga.

Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). However, the

district court’s analysis was consistent with several Johnson

factors; we do not believe that the district court must invoke
6Indeed, although Martin prevailed on only one-fourth of his

trial claims (and an even smaller proportion of his original

claims), the district court still compensated his counsel for twothirds of her work.

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Johnson by name. Furthermore, although the district court did not

consider all twelve Johnson factors, we do not believe that the

twelve factors must all be considered in each and every case. See

Hensley v. Eckerhart, 461 U.S. 424, 434 n.9 (1983) (“The district

court also may consider other factors identified in Johnson . . .

.” (emphasis added)); Trimper v. City of Norfolk, 58 F.3d 68, 74

(4th Cir. 1995) (describing factors as “general standards” (quoting

Daly v. Hill, 790 F.2d 1071, 1079 (4th Cir. 1986))).

Finally, Martin argues that the district court’s award

improperly relied on the fact that Martin did not prevail on all of

his original claims. But the district court here did not improperly

base its award of fees and costs “simply on the ratio of claims

raised to claims prevailed upon.” Brodziak, 145 F.3d at 197.6

Rather, the court properly recognized that “[w]hen successful

claims are unrelated to unsuccessful claims, it is not appropriate

to award fees for the latter.” Id. at 197. Martin’s unsuccessful

claims were not based on the same “core of facts” as his successful

claims. Johnson, 974 F.2d at 1419. We thus find no error in the

district court’s award of attorney’s fees and costs. 
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IV.

For the foregoing reasons, we affirm the district court’s

denial of the County’s motions for judgment as a matter of law and

for a new trial. We also affirm the district court’s rulings as to

back pay, front pay, and attorneys’ fees and costs. In sum, the

judgment of the district court is affirmed in all respects. 

AFFIRMED