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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
------------------------------------------------*
ANITA MASON ROWLAND,
Plaintiff-Appellant,
v.No. 01-2481
AMERICAN GENERAL FINANCE,
INCORPORATED,
Defendant-Appellee.
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Appeal from the United States District Court for the Western District of Virginia, at Lynchburg. James C. Turk, District Judge. (CA-97-16-L)
Argued: February 26, 2003
Decided: August 12, 2003
Before WILKINS, Chief Judge, and WILKINSON and MOTZ, Circuit Judges.
____________________________________________________________
Vacated in part and remanded by published opinion. Judge Motz
wrote the opinion, in which Chief Judge Wilkins and Judge Wilkin-
son joined.
____________________________________________________________
COUNSEL
ARGUED: Terry N. Grimes, FRANKLIN COMMONS, Roanoke,
Virginia, for Appellant. Robert Cornelius Wood, III, EDMUNDS &
WILLIAMS, P.C., Lynchburg, Virginia, for Appellee. ON BRIEF:
Kristine H. Smith, EDMUNDS & WILLIAMS, P.C., Lynchburg, Vir-
ginia, for Appellee.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
Anita Mason Rowland appeals a judgment in favor of her former
employer, American General Finance, Inc., in this Title VII sex dis-
crimination case. The district court abused its discretion in denying
Rowland's request for a mixed-motive jury instruction on her failure-
to-promote claim. Accordingly, we must vacate that judgment and
remand for further proceedings.
I.
Rowland began working for American General, a consumer lend-
ing company, in June 1989 as an Administrative Assistant Manager,
first in the Danville, Virginia branch and then in the Lynchburg, Vir-
ginia branch. In March 1990, Rowland resigned from American Gen-
eral, apparently because the company did not promote her to branch
manager. American General then rehired Rowland in July 1990 as an
administrative assistant in the Lynchburg office. In September 1991,
George Roach, the director of operations for American General who
was responsible for the various district offices, promoted Rowland to
the position of branch manager of the Lynchburg office.
Several years later, in July 1994, Roach asked Rowland if she
would be willing to transfer to the Danville office, specifically with
the aim of turning the office around. Rowland contends that she was
reluctant to go to Danville, but that she felt pressured by Roach. She
alleges that Roach promised her that she "would be the next person
to be promoted" to District Manager if she would transfer to Danville.
Although it is not clear exactly what Roach said to Rowland, there is
no dispute that Roach did in fact consider Rowland to be a candidate
for the position of district manager. Rowland agreed to the transfer,
and moved to the Danville office in the summer of 1994. Over the
next year, under her stewardship, the performance of the Danville
office improved.
However, notwithstanding its need to appoint a new district man-
ager on three occasions in 1995, American General never promoted
2
Rowland to that position. In February 1995, American General
rejected Rowland for a district manager position in Tidewater, Vir-
ginia, awarding the position instead to a male candidate. Several
months later, after a reorganization of American General's operations
led to an opening in the district manager position for northern Vir-
ginia, the company, on Roach's recommendation, promoted a minor-
ity female candidate rather than Rowland. Finally, in December 1995,
when the district manager position for Lynchburg opened up, Roach
promoted an African American male candidate to the position after
considering four or five candidates, including Rowland.
Indisputably, Rowland's performance reviews revealed sufficient
qualifications for a promotion to the district manager position. Indeed,
throughout her employment with American General, Rowland
received "favorable annual performance reviews" and annual merit-
based pay increases. Her supervisors generally found that her job per-
formance exceeded standards, that she was extremely dedicated and
hard working, and that she comported herself with a high-level of pro-
fessionalism.
At the same time, however, Rowland's annual reviews from 1995
and 1996 suggested that she needed to work on her "people skills."
Moreover, shortly after American General refused to promote Row-
land for the third time, Roach received a copy of a written complaint
that a customer, who was apparently dissatisfied with the way Row-
land had handled his attempt to cancel a loan, had filed with the State
Corporation Commission. Upon inquiring into the matter, Roach
learned that several employees and former managers felt that Row-
land had problems with her "people skills." Specifically, Roach
learned that Rowland's supposed difficulty in checking her ambitions
and her inability to delegate sometimes alienated those who worked
with her.
Roach met with Rowland in February 1996 to discuss the reasons
why she had not been promoted. According to Roach, he recounted
some of the reported problems and suggested that she needed to work
on her people skills if she wanted to be promoted. Rowland contends,
however, that when she pushed Roach on why she had not been pro-
moted, Roach stated plainly, "I just don't need another woman in this
position, particularly one like Shelby Bennett." According to Row-
3
land, this confirmed what she had suspected for some time. In fact,
when Rowland had previously voiced her concerns to the same
Shelby Bennett, a female district manager at American General, Ben-
nett responded: "that's just life at American General. That's the way
it is. The men run the company, and you just have to do what they
say."
Frustrated with her lack of promotion, Rowland resigned in March
1996. The following month, she filed a complaint with American
General. The company responded by letter dated July 8, 1996. Two
months later (September 1996), Rowland filed a complaint with the
Equal Employment Opportunity Commission (EEOC) alleging that
American General refused to promote her because of her gender in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C.A. §§ 2000e-2000e-17 (West 1994 & Supp. 2003).
On March 12, 1997, after receiving a right-to-sue letter from the
EEOC, Rowland filed the initial complaint in this action, alleging,
inter alia, refusal to promote and constructive discharge in violation
of Title VII's prohibition on sex discrimination. Two months later, on
May 15, 1997, American General moved to dismiss Rowland's con-
structive discharge claim on the ground that she had failed to raise
this claim in her EEOC complaint. Because both parties offered evi-
dence outside the pleadings in support of, or opposition to, the motion
to dismiss and both recognized that the court could treat the motion
as one for summary judgment if it relied on this evidence, see R. Vol.
3; R. Vol 1, Tab 5, the district court treated the motion as one for par-
tial summary judgment and granted it in an order dated July 16, 1997.
American General later moved for summary judgment on Rowland's
remaining failure-to-promote claim. The district court also granted
that motion (order dated August 13, 1998), on the ground that Row-
land had not filed her complaint with the EEOC within the 180-day
limitations period. On September 9, 1998, Rowland appealed, raising
a single issue: "whether the district court erred by concluding that the
statute of limitations for filing a charge of discrimination is 180 days
instead of 300 days." We vacated and remanded, concluding that state
law did indeed extend the limitations period to 300 days. See Rowland
4
v. Am. Gen. Fin., Inc., 1999 WL 147829 (4th Cir. Mar. 18, 1999) (unpub-
lished).1
On remand, American General again moved for summary judg-
ment on Rowland's failure-to-promote claim. The district court
denied the motion. The parties tried the case before a jury, which ren-
dered a verdict for American General. Rowland then filed this appeal.
We held the case in abeyance pending a decision by the Supreme
Court in Desert Palace, Inc. v. Costa, 539 U.S. ___, 123 S. Ct. 2148
(2003), which the Court issued on June 9, 2003. Accordingly, this
case is now ripe for adjudication.
II.
Rowland first and principally argues that the district court erred
when it refused to provide a mixed-motive jury instruction at the con-
clusion of her trial on her failure-to-promote claim.
We review challenges to jury instructions for abuse of discretion.
South Atlantic Ltd. P'shp v. Riese, 284 F.3d 518, 530 (4th Cir. 2002).
Instructions will be considered "adequate if`construed as a whole,
and in light of the whole record, [they] adequately [inform] the jury
of the controlling legal principles without misleading or confusing the
jury to the prejudice of the objecting party.'" Id. (quoting Spell v.
McDaniel, 824 F.2d 1380, 1395 (4th Cir. 1987)). If we find the
instructions flawed, we will not reverse "unless the error seriously
prejudiced the challenging party's case." Id. (citation omitted).
____________________________________________________________
1 Rowland now contends that the district court erred in its July 16, 1997
order finding that she had failed to include her constructive discharge
claim in her EEOC complaint and so granting partial summary judgment
to American General on that claim. However, Rowland did not include
that contention in her initial September 9, 1998 appeal to this court.
Given that she had the opportunity (indeed the duty) to raise this and all
other appealable issues in her initial appeal, we conclude that she has
waived appellate consideration of this claim. See Sweat v. City of Fort
Smith, 265 F.3d 692, 696 (8th Cir 2001); Schering Corp. v. Illinois Anti-
biotics Co., 89 F.3d 357, 358 (7th Cir. 1996); see also Omni Outdoor
Adver., Inc. v. Columbia Outdoor Adver., Inc., 974 F.2d 502, 505 (4th
Cir. 1992).
5
In this case, the district court rejected Rowland's specific request
for a mixed-motive instruction (i.e., an instruction that would allow
the jury to find that American General violated Title VII if gender
was at least a motivating factor in its decision not to promote her).2
Instead it instructed the jury that if American General "chose not to
promote Ms. Rowland for any other reason than Ms. Rowland's gen-
der, then Ms. Rowland cannot recover, and you must find your verdict
for the defendant."3 The court explained: "I don't think this is a mixed
motive case at all. . . . This is a very simple case. And it's whether
or not they did not promote her to district manager because of her
____________________________________________________________
2 The specific jury instruction requested by Rowland reads as follows:
Your verdict must be for the plaintiff on plaintiff's sex dis-
crimination claim, if all the following elements have been proved
by the greater weight of the evidence:
First, defendant failed to promote plaintiff; and
Second, plaintiff's gender was a motivating factor in the
defendant's decision.
If either of the above elements has not been proved by the
greater weight of the evidence, your verdict must be for the
defendant and you need not proceed further in considering this
claim.
3 The relevant section of the instructions offered by the district court
reads in its entirety:
The court charges the jury that in determining whether plain-
tiff Rowland is entitled to recover any damages, you must decide
one (1) issue, whether Rowland has proved, by a preponderance
of the evidence, that her gender was the determinative factor in
the defendant's, American General Finance, Incorporation [sic]
not promoting her to district manager.
In other words, for Mrs. Rowland to recover, she must prove,
by a preponderance of the evidence, that but for the fact that she
is a female, she would have been promoted to district manager
by the defendant, American General Finance, Incorporation [sic].
If the defendant, American General Finance, Incorporation [sic]
chose not to promote Mrs. Rowland for any other reason than
Mrs. Rowland's gender, then Mrs. Rowland cannot recover, and
you must find your verdict for the defendant, American General
Finance, Incorporation [sic].
6
gender." As the Supreme Court's recent unanimous decision in Costa
makes clear, however, the district court abused its discretion in refus-
ing to give the requested mixed-motive instruction.
Title VII has long prohibited employment practices that "discrimi-
nate against any individual . . ., because of such individual's race,
color, religion, sex, or national origin." 42 U.S.C.A. § 2000e-2(a)(1)
(West 1994). Moreover, since 1991, Title VII has also outlawed
employment discrimination in mixed-motive cases, that is, cases
where both legitimate and illegitimate reasons motivated the employ-
ment decision. See 42 U.S.C.A. § 2000e-2(m) (providing that "an
unlawful employment practice is established when the complaining
party demonstrates that race, color, religion, sex, or national origin
was a motivating factor for any employment practice, even though
other factors also motivated the practice").
Prior to Costa, however, "the Courts of Appeals [were] divided
over whether a plaintiff must prove by direct evidence that an imper-
missible consideration was a `motivating factor' in an adverse
employment action." Costa, 123 S. Ct. at 2151-52. In Costa, the
Supreme Court clarified that mixed-motive plaintiffs "need only pres-
ent sufficient evidence for a reasonable jury to conclude, by a prepon-
derance of the evidence, that `race, color, religion, sex, or national
origin was a motivating factor'" for the contested employment prac-
tice. Id. at 2155. In reaching this holding, the Court expressly rejected
the heightened "direct evidence" standard, previously embraced by
this and other circuits, requiring plaintiffs to proffer evidence of con-
duct or statements that both reflected discriminatory animus and bore
directly on the contested employment decision. See id. at 2150, 2152.
Instead, the Costa Court concluded that plaintiffs could use direct or
circumstantial evidence to make the showing necessary to merit a
mixed-motive instruction. Id. at 2153-54.4
Thus, in Costa, the Court found that the plaintiff's circumstantial
evidence of sex discrimination in a series of disciplinary actions ulti-
mately ending in her termination sufficed to merit a mixed-motive
____________________________________________________________
4 In Costa, the Court refused to decide "when, if ever, [42 U.S.C.A.
§ 2000e-2(m)] applies outside of the mixed-motive context." Costa, 123
S. Ct. at 2151 n.1. We decline to do so as well.
7
instruction. Specifically, the plaintiff, who was the sole female ware-
house worker and heavy equipment operator for a Las Vegas casino,
presented evidence that she had been subjected to "stalking" by one
of her supervisors, harsher discipline than men for the same conduct,
less favorable treatment than men in the assignment of overtime,
stacking of her disciplinary record, and sex-based slurs from her
supervisors. Id. at 2152. Although none of this evidence was "direct,"
the Court found that it provided a sufficient basis for a reasonable jury
to conclude that sex had been a motivating factor in the employer's
decisions to discipline and terminate her. Id. at 2155. Consequently,
the Court affirmed the lower court's decision to grant the mixed-
motive instruction.
Applying the Costa standard to the facts of this case, it is clear that
Rowland offered sufficient evidence to support a mixed-motive
instruction. This includes evidence that (1) Roach had the authority
to promote a person to district manager; (2) Roach knew of Row-
land's undisputed qualifications for and interest in that position; (3)
Roach assertedly stated to Rowland at their February 1996 meeting:
"I just don't need another woman in this position "; and (4) Shelby
Bennett purportedly stated to Rowland in response to Rowland's
expressions of concern about the lack of promotional opportunities
for women at American General: "that's just life at American Gen-
eral. That's the way it is. The men run the company, and you just
have to do what they say." In sum, Rowland provided evidence that
Roach - the supervisor who knew of her qualifications for and inter-
est in the district manager position and who had the power to promote
her but did not do so - told her that he did not need any more women
in the position that she sought, as well as statements by another
female superior suggesting that sex was a "motivating factor" in
employment decisions at American General. Under Costa, this evi-
dence certainly suffices to merit a mixed-motive instruction.
We recognize, of course, that the record also contains evidence
indicating that Rowland's supervisors felt that she needed to work on
her "people skills" before she would be ready for the district manager
position. It is possible that Rowland's shortcomings in this area could
have provided the sole basis for denying her the promotion she
sought. It is also possible, however, that her alleged "people skills"
deficiency constituted part of a larger mix of motivations, including
8
the fact that she was a woman, that collectively drove the decision not
to promote her. In any event, given the evidence that Rowland pre-
sented suggesting that sex was at least one of the motivating factors
behind American General's decision not to promote her, a reasonable
jury, properly instructed, could have decided the matter in her favor.5
We conclude, therefore, that the district court abused its discretion in
refusing to give the mixed-motive instruction. (We note that the dis-
trict court did not have the benefit of Costa when it made its ruling.)
Moreover, there is no question that without the mixed-motive
instruction, Rowland had almost no chance of prevailing. Had the dis-
trict court given the requested instruction, on the other hand, it is at
least possible that the jury would have found that gender was "a moti-
vating factor" in American General's failure to promote Rowland.
The refusal to give the instruction thus did "seriously prejudice[ ]"
Rowland's case. South Atlantic, 284 F.3d at 530. Accordingly, we
must vacate the judgment and remand for further proceedings.
III.
Rowland also argues that the district court committed certain evi-
dentiary errors at trial. Because these issues may arise on remand, we
briefly address them here.
____________________________________________________________
5 Whether Rowland would be entitled to damages upon receiving a
favorable jury verdict would depend on whether American General could
successfully avail itself of the affirmative defense provided under the
statute. See 42 U.S.C.A. § 2000e-5(g)(2)(B) (West 1994). As the Costa
Court explained, if the "complaining party" succeeds in proving a viola-
tion under this statute the employer is then entitled to "a limited affirma-
tive defense that does not absolve it of liability, but restricts the remedies
available to a plaintiff." Costa, 123 S. Ct. at 2151. Specifically, if the
employer "demonstrates that [it] would have taken the same action in the
absence of the impermissible motivating factor," 42 U.S.C.A. § 2000e-
5g(2)(B), the remedies available to the plaintiff "include only declaratory
relief, certain types of injunctive relief, and attorney's fees and costs."
Costa, 123 S. Ct. at 2151.
9
A.
First, Rowland maintains that the district court improperly admitted
a letter that Albert Terry, an American General customer, had sent to
the Virginia State Corporation Commission, which in turn forwarded
it to American General. Terry complained of his treatment by the
company and by Rowland in particular (although he did not mention
her by name) when he tried to cancel a loan that he had arranged with
American General. At trial, American General sought to introduce the
letter during Roach's testimony regarding Rowland's lack of "people
skills." Although Rowland objected to the letter as inadmissible hear-
say, the district court admitted it, indicating that either it was not hear-
say or qualified for the business records exception to the hearsay rule.
See Fed. R. Evid. 803(6). After the court admitted the letter, Roach
read it to the jury, and recounted an altercation that he had with Row-
land when he raised the issue with her and told her to cancel Terry's
loan.
We review a district court's evidentiary rulings for abuse of discre-
tion. See, e.g., United States v. Robinson, 275 F.3d 371, 383 (4th Cir.
2001). Despite this deferential standard of review, however, we
believe that the district court abused its discretion in admitting the
Terry letter.
The trial record clearly demonstrates that American General intro-
duced the letter with the intent to use it as evidence of Rowland's lack
of people skills. Consequently, American General did not submit the
letter for anything other than proof of the matter asserted: that Terry
had been treated poorly by Rowland and, by extension, that Rowland
had problems with her people skills.6 Because it was hearsay, the
Terry letter could only be deemed admissible if it fit within one of the
exceptions to the hearsay rule.
____________________________________________________________
6 If, in fact, the district court did not admit the letter to prove the truth
of the matter asserted, we fail to see its relevance. And even if the letter
was somehow relevant under these circumstances, Federal Rule of Evi-
dence 403 would prevent its admission given its very low probative
value as compared to the obvious danger of unfair prejudice that would
result from its admission.
10
None of the recognized exceptions to the hearsay rule provides a
basis for admitting the Terry letter, and American General provides
no argument in its appellate brief that the letter fits within any of
those exceptions. See Fed. R. Evid. 803 and 804. To the extent that
the district court admitted the letter under the business records excep-
tion contained in Federal Rule of Evidence 803(6), and the record is
not entirely clear on this matter, we fail to see how the letter qualifies
under that exception.
To qualify for the business records exception, the document must
be prepared by someone acting "in the course of a regularly con-
ducted business activity." Fed. R. Evid. 803(6). "If, however, the sup-
plier of the information does not act in the regular course, an essential
link is broken; the assurance of accuracy does not extend to the infor-
mation itself, and the fact that it may be recorded with scrupulous
accuracy is of no avail." Fed. R. Evid. 803 advisory committee's
notes; see also Timberlake Constr. Co. v. U.S. Fid. & Guar. Co., 71
F.3d 335, 342-43 (10th Cir. 1995). Clearly, no one at American Gen-
eral, or the State Corporation Commission for that matter, prepared
the Terry letter, let alone prepared it "in the course of a regularly con-
ducted business activity." Moreover, even if the letter could be con-
sidered part of a larger business record (i.e., a record of customer
complaints referred from the State Corporation Commission), this
would present a double hearsay problem, which would still require
that the Terry letter qualify under one of the exceptions or that Ameri-
can General demonstrate standard verification procedures for cus-
tomer complaints. See Fed. R. Evid. 805 (requiring that each instance
of hearsay meet one of the exceptions to the hearsay rule in order to
be admissible); see also United States v. Mitchell, 49 F.3d 769, 778
(D.C. Cir. 1995). Nothing in the record supports either of these routes
to admissibility.
Alternatively, American General argues for the first time on appeal
that even if the letter did not qualify for admission under any of the
specific hearsay exceptions identified in Rules 803 or 804, it was
nonetheless admissible under the residual hearsay exception, which
governs the admissibility of hearsay statements not covered by those
rules. See Fed. R. Evid. 807. But Rule 807 permits admission of a
statement under this exception only if, inter alia, the proponent pro-
vides the opposing party proper notice that it will rely on this excep-
11
tion. Id. Because American General did not rely on this exception or
cite Rule 807 at trial, it obviously failed to provide the required
advance notice to Rowland. See, e.g., Herrick v. Garvey, 298 F.3d
1184, 1192 n.6 (10th Cir. 2002) (rejecting effort to use the residual
hearsay exception on ground that proponent failed to provide adverse
party with prior notice of intent to utilize the exception). Accordingly,
American General's attempt on appeal to use Rule 807 to justify
admission of the letter fails.
Because the letter does not qualify for any of the exceptions to the
hearsay rule, the district court abused its discretion in admitting the
Terry letter.
B.
Finally, Rowland argues that the district court erred when it
allowed, over her objections, American General to offer witnesses
and exhibits at trial that it failed to timely identify during discovery.
Specifically, Rowland argues that American General violated Federal
Rule of Civil Procedure 26(a)(3), which requires parties to disclose
information concerning witnesses and exhibits to other parties "at
least 30 days before trial," by filing its pretrial disclosures twenty-
eight days prior to the commencement of trial. She contends that
because American General failed to request an enlargement of time
under Federal Rule of Civil Procedure 6(b), the district court "should
have precluded American General from offering witnesses and exhib-
its at trial." Brief of Appellant at 26. Rowland also argues that the dis-
trict court erred in allowing American General to call Kirk Shields
(whom Rowland deposed prior to trial) as a witness at trial because
American General had never identified him in its pretrial disclosures.
A district court has "wide latitude in controlling discovery and . . . its
rulings will not be overturned absent a showing of clear abuse of dis-
cretion." Ardrey v. United Parcel Service, 798 F.2d 679, 682 (4th Cir.
1986); see also Mid-America Tablewares, Inc. v. Mogi Trading Co.,
100 F.3d 1353, 1363 (7th Cir. 1996). Under Federal Rule of Civil
Procedure Rule 37(c), a "party that without substantial justification
fails to disclose information required by Rule 26(a) . . . is not, unless
such failure is harmless, permitted to use as evidence at a trial . . .
any witness or information not so disclosed." Fed. R. Civ. P. 37(c)(1)
12
(emphasis added). Rule 37(c)(1) thus does not require witness preclu-
sion for untimely disclosure if missing the deadline is harmless.
In this case, although American General does appear to have vio-
lated the technical requirements of Rule 26 (missing the thirty-day
pretrial deadline by two days and failing to identify one of the wit-
nesses who testified), we see no basis for concluding that the district
court abused its discretion in allowing American General to offer the
witnesses and exhibits. Rather, the record indicates that Rowland had
ample opportunity to prepare for the witnesses and exhibits put for-
ward by American General. Moreover, Rowland makes no argument
on appeal that the alleged errors committed by the district court in
managing the discovery in this case prejudiced her ability to prepare
for and conduct her case at trial. Accordingly, we conclude that the
district court acted well within its discretion in allowing American
General to offer those witnesses and exhibits at trial even though they
were not timely identified during discovery.
IV.
For all of these reasons, the judgment of the district court is
vacated in part and remanded for further proceedings.
VACATED IN PART AND REMANDED
13