UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SALLY W. DREW; JUDY MAYO,

Plaintiffs-Appellants,

v. No. 95-3128

RICOH CORPORATION,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

James C. Cacheris, Chief Judge.

(CA-95-269-A)

Argued: January 29, 1997

Decided: March 31, 1997

Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Vicki Greene Golden, CASHDAN & GOLDEN, Washington, D.C., for Appellants. Joel L. Finger, ROBERTS & FINGER,

L.L.P., New York, New York, for Appellee. ON BRIEF: Michael G.

Kane, CASHDAN & GOLDEN, Washington, D.C., for Appellants.

Jean L. Schmidt, ROBERTS & FINGER, L.L.P., New York, New

York, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Defendant-Appellee Ricoh Corporation ("Ricoh") manufactures

and sells various types of office equipment, including digital

facsimile

("fax") systems. Plaintiffs-Appellants Sally Drew and Judy Mayo

(collectively, the "Plaintiffs") worked in Ricoh's Washington, D.C.

branch office (the "D.C. branch") as sales account executives.

The D.C. branch is currently divided into three sales divisions:

commercial and federal government copier sales, commercial fax

sales, and federal government fax sales. The federal government fax

sales division sells "Securefax" machines and regular commercial

fax

machines to agencies of the federal government and to the primary

federal contractors to those agencies (the "prime contractors").

Securefax machines connect to government encryption equipment and

ensure the security of fax transmissions. Commercial fax machines

do

not have this capability. Ricoh Securefax machines cost, on

average,

two to four times more than Ricoh commercial fax machines.

Prior to April 1990, the federal government fax sales division in

the

D.C. branch consisted of two separate departments: the Securefax

sales department and the civil government sales department. The

Securefax sales department sold Ricoh Securefax machines and commercial fax machines to Department of Defense ("DOD") agencies,

such as the Army, Navy, and Air Force (the "DOD accounts"). The

Securefax sales department also sold Securefax machines to prime

contractors. The civil government sales department, where the

Plaintiffs worked, sold Securefax machines and commercial fax machines

to civil agencies of the federal government (the"civil agency

accounts"). Account executives in the civil government sales

department sold exclusively to civil government agencies and did not sell

to DOD agencies. The civil government sales account executives

received the same base salary and commission rates as the Securefax

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sales account executives. However, because Securefax machines cost

more than commercial fax machines, and because DOD agencies purchase more Securefax machines than civil government agencies,

account executives in the Securefax sales department earned

substantially more in total commissions than the account executives in the

civil government sales department.

In April 1990, Ricoh decided to consolidate the civil government

sales department and the Securefax sales department into one

federal

government fax sales division. At that time, there were three

account

executives in each department: Ted Morgan, Richard Tackels, and

Robert Johnson in the Securefax sales department, and David Parrish

and the two Plaintiffs in the civil government sales department.

The

Plaintiffs were the only women account executives in the new

consolidated division.

David Shaver served as manager of the entire federal government

fax sales division. Shaver laid Parrish off, and Ralph Bennie, the

former manager of the civil government sales department, replaced him

and became an account executive in the new division. Bennie took

over the existing civil agency accounts that had been assigned to

Parrish. Tackels, Morgan, and Johnson, the former Securefax sales

account executives, continued to service the same DOD accounts that

they had served before the consolidation, and the Plaintiffs, the

former civil government sales account executives, continued to service

the same civil agency accounts.

In March 1991, Ricoh promoted Shaver to D.C. branch director,

and Johnson became the new manager of the consolidated federal

government fax sales division. When Ricoh promoted Johnson to

manager, it required him to give up thirty percent of his accounts

in

order to attend to his new management responsibilities. Johnson

assigned a few of his prime contractor accounts and four of his DOD

accounts to Bennie. Even with those DOD accounts, however, Bennie

continued to earn less than the Plaintiffs.

In March 1992, Bennie retired. Ricoh hired Martin Hickey in April

1992 to replace Bennie. Ricoh assigned Hickey all of Bennie's

accounts, including the four DOD accounts, five of Morgan's and

Tackles's DOD accounts, and one of Plaintiff Mayo's civil agency

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accounts. Hickey, however, earned less than either of the

Plaintiffs,

even though he had several DOD accounts.

Following the April 1990 merger of the two departments, the Plaintiffs made repeated requests to Shaver and Johnson to receive DOD

accounts, pointing out that every male account executive in the

division had DOD accounts. Each time, however, Shaver and Johnson

refused their requests. In November 1993, the two Plaintiffs,

Hickey,

and Morgan filed an internal complaint with Ricoh about "account

structure." The complaint alleged that the two Plaintiffs and

Hickey

earned less than the account executives who served DOD accounts.

The Plaintiffs also alleged that Ricoh discriminated against them

on

the basis of sex in assigning the DOD accounts.

In December 1993, Hickey resigned from Ricoh. Ricoh decided not

to replace Hickey, and it assigned Hickey's civil agency accounts

to

the Plaintiffs and his DOD accounts to Johnson. Ricoh contends that

the Plaintiffs told the corporation that they did not want Hickey's

DOD accounts. The Plaintiffs, however, contend that Ricoh's human

resources department promised them that all of Hickey's accounts

would be distributed to the Plaintiffs, but that Ricoh refused to

do so.

On May 6, 1994, the Plaintiffs filed a sex discrimination charge

with the City of Alexandria Office of Human Rights (the "Alexandria

Commission"). The Alexandria Commission determined that no probable cause existed to believe that Ricoh discriminated against

either

of the Plaintiffs on the basis of sex.

On March 1, 1995, the Plaintiffs filed an employment discrimination action against Ricoh under Title VII of the Civil Rights Act

of

1964, as amended, 42 U.S.C.A. §§ 2000e to 2000e-17 (West 1994 &

Supp. 1996), in the Eastern District of Virginia. They claimed that

Ricoh had discriminated against them since 1990 on the basis of sex

by refusing to assign them any DOD accounts. The case proceeded

to a jury trial on October 10-13, 1995. At the close of all of the

evidence, the district court gave the jury a "mixed-motive"

instruction.*

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*The district court advised the jury, in pertinent part, as

follows:

In order for the plaintiffs . . . to recover on their claim

against
Ricoh, . . . plaintiffs must prove that defendant

intentionally dis4
The verdict form that the court gave to the jury mirrored the

court's

instruction. The verdict form provided, in pertinent part:

1. Have Plaintiffs proved that plaintiffs' sex was, more

likely than not, a motivating factor in the decision of Defendant not to distribute DOD accounts to the Plaintiffs[?]

....

2. Would Ricoh more likely than not have made the same

employment decision concerning the Plaintiffs even if

unlawful motive, namely plaintiffs' sex, was not present?

Ricoh objected to the instruction and verdict form, and it argued

that

the court should give a "but for" instruction. The court denied

Ricoh's

objection.

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criminated against plaintiff[s]; that is, plaintiffs' sex must

be

proven to have been a motivating factor in defendant's

decision

not to assign the [DOD] accounts to plaintiffs.

. . . In showing the plaintiffs' sex was a motivating factor,

plaintiffs are not required to prove that sex was the sole

motivation or even the primary motivation for defendant's decision.

Plaintiff need[ ] only prove that sex played a part in

defendant's

decision, even though other factors may also have motivated

the

defendant.

If you find from the evidence that sex is more likely than not

a motivating factor in defendant's employment decision, not to

assign DOD accounts, you should . . . so indicate on the

verdict

form.

....

If you find the Defendant Ricoh would have more likely than

not made the same employment decision not to assign DOD

accounts concerning plaintiffs, even if an unlawful motive was

not present, you should so indicate on the verdict form.

Plaintiffs . . . must show the defendant Ricoh intentionally

discriminated against them. Plaintiffs, however, are not required

to
produce direct evidence of intentional discrimination.

Intentional

discrimination may be inferred from the existence of other

facts.

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The jury returned the verdict form on October 13, 1995 and

answered both questions in the affirmative. That is, the jury found

that the Plaintiffs' sex was a motivating factor in Ricoh's

decision not

to assign them DOD accounts, but that Ricoh would have made the

same employment decision regardless of their sex. The district

court

then entered judgment for Ricoh.

The Plaintiffs and Ricoh filed post-trial motions. Ricoh moved for

judgment as a matter of law on question one of the verdict form on

the ground that substantial evidence did not support a finding that

the

Plaintiffs' sex was a motivating factor in Ricoh's actions. The

Plaintiffs moved to alter or amend the judgment. The Plaintiffs also

filed

a motion for judgment as a matter of law on question two of the

verdict form on the ground that substantial evidence did not support

a

finding that Ricoh would have made the same employment decision

regardless of the Plaintiffs' sex. In the alternative, the

Plaintiffs

moved for a new trial on question two. Relying on Fuller v. Phipps,

67 F.3d 1137 (4th Cir. 1995), the district court granted Ricoh's

motion for judgment as a matter of law on question one of the

verdict

form and denied all of the Plaintiffs' motions.

We have reviewed all of the arguments that the Plaintiffs raised in

their briefs and at oral argument, and we find no reversible error.

Accordingly, we affirm for the reasons sufficiently expressed in

the

district court's thorough opinion. See Drew v. Ricoh Corp., Civil

No.

95-269-A (E.D. Va. Nov. 7, 1995).

AFFIRMED

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