Susan Keeshan v. Eau Claire Cooperative Health, No. 08-1270 (4th Cir. 2010)

Annotate this Case

Download PDF

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-1270 SUSAN J. KEESHAN, MD, Plaintiff - Appellant, v. EAU CLAIRE COOPERATIVE HEALTH HAMILTON, MD; DEBORAH DAVIS, MD, CENTERS, INC; STUART A. Defendants - Appellees. Appeal from the United States District Court for the District of South Carolina, at Columbia. Margaret B. Seymour, District Judge. (3:05-cv-03601-MBS) Argued: January 26, 2010 Decided: September 14, 2010 Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges. Affirmed by unpublished per curiam opinion. ARGUED: Aaron J. Kozloski, CAPITOL COUNSEL, LLC, Columbia, South Carolina, for Appellant. Kathryn Thomas, GIGNILLIAT, SAVITZ & BETTIS, Columbia, South Carolina, for Appellees. ON BRIEF: Christina M. Summer, GIGNILLIAT, SAVITZ & BETTIS, Columbia, South Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Dr. Susan Keeshan, a physician who is Jewish and of Hispanic descent, Cooperative under Health Title VII sued her Centers, that she former Inc. was employer, (the Eau Cooperative), terminated in Claire alleging retaliation for filing a complaint claiming that her supervisors discriminated against her because she is not black. Keeshan also brought claims under state law for wrongful discharge and nonpayment of wages. The district court granted summary judgment Cooperative on the wrongful discharge claim. to the After a trial the jury found for the Cooperative on the Title VII retaliation and South Carolina Payment of Wages Act claims. Keeshan appeals, challenging the district court s (1) grant of summary judgment on the Keeshan wrongful to discharge disclose her claim, (2) ruling post-termination that income required on cross- examination, (3) denial of Keeshan s motion for a new trial, and (4) imposition of costs on Keeshan as the losing party. We affirm. I. A. Keeshan is an obstetrician/gynecologist (OB-GYN) who was employed by the Cooperative in Columbia, South Carolina, from July Cooperative 2000 until July was part of a 2004. medical 2 Her employment school with the scholarship she received from the National Health Service Corps (NHSC). The scholarship her required residency at services an to Keeshan to NHSC-approved traditionally Cooperative s spend director, four site that Stuart after provides underserved Dr. years medical populations. Hamilton, also The an NHSC scholar, started the Cooperative in 1981 to treat low-income residents of Carolina. the Eau Claire community in Columbia, South With the help of charitable donations and federal funding, the Cooperative expanded over the next twenty years to include nine facilities, opened in 1997. including an OB-GYN practice that Hamilton interviewed Keeshan in early 2000 and hired her as a physician in the Cooperative s OB-GYN practice. The Cooperative was the only NHSC-approved site in Columbia, where Keeshan hoped to work so she could be with her husband. Although aware that Keeshan was at the Cooperative under her scholarship that she obligation, would requirement. left the remain Hamilton after Cooperative, other completing it a the possibility four-year NHSC Soon after Keeshan started, the only other OB-GYN making leader of the OB-GYN practice. two considered OB-GYNs during Keeshan the sole physician and The Cooperative eventually hired Keeshan s four-year period of employment. While contract, negotiating Keeshan informed the terms Hamilton 3 of that her she employment was Jewish. Hamilton responded Kippur, Rosh holidays. that the Cooperative Hashanah, and the first would day give of her Passover Yom as As for delineating the duration of her employment, Keeshan s contract provided that the term of this Agreement shall be for one year from the date [Keeshan] begins employment and shall be automatically renewed for successive one-year terms unless terminated occurrences as that hereinafter could trigger provided. termination S.A. of 97. the The contract included: (1) By notice in writing to the other party given one hundred and twenty (120) days prior to the date of termination ; (2) Material breach of contract by [Keeshan] or [the Cooperative] ; (3) Death or total disability of [Keeshan] ; (4) [Keeshan] conducting [herself] in an unprofessional, unethical or fraudulent manner ; and (5) Financial exigency as verified by an independent party or financial review. S.A. 98. If any of these occurrences transpired, Keeshan was entitled to unpaid compensation and benefits accrued as of the termination date. Keeshan s annual salary started at $150,000 and increased to $160,000, $165,000, and $175,000 during her last three years at the Cooperative. Keeshan s fairly smoothly employment for the with first the couple Cooperative of proceeded years. Hamilton recalled at trial that conflict first arose between Keeshan and the Cooperative over her appointment 4 scheduling and billing documentation. The Cooperative could appointments and bills were Keeshan s. not discern which Additionally, Hamilton learned that Keeshan was performing artificial inseminations for homosexual couples, which Hamilton considered inappropriate in light of the Cooperative s federal funding. Nonetheless, Hamilton gave Keeshan favorable evaluations from 2000 to 2003. Keeshan s tension with Hamilton escalated in 2003. May 2003 Following reschedule Keeshan a requested meeting her in surgery time which due off for Hamilton to another elective asked In surgery. Keeshan physician s to absence, Keeshan sent Hamilton an email saying that she found his request insensitive and inappropriately presented in front of other staff. Hamilton found Keeshan s email inappropriate, primarily due Keeshan s to use of the phrase rip me describe Hamilton s behavior during the meeting. 101. a new one to J.A. 136, S.A. Hamilton deemed the email sexually explicit, sarcastic, and insulting. J.A. 136. He testified that he decided at that moment that he would allow Keeshan to serve the time remaining on the four years required by her scholarship, but that he would not keep her on after July 2004. email and thought that her Keeshan apologized for the professional Hamilton was partially restored. with Hamilton, however, filed a corrective action form regarding the email. 5 relationship Conflict resumed when the Cooperative hired another OB-GYN, Dr. Deborah Davis, with whom Keeshan did not get along. Davis, who is African American, became the Interim Director of Women s Health and This responsibilities. benefits to assumed did decrease. Keeshan s not Keeshan cause felt took offense to Davis s omission Keeshan s that opportunity to blame and demean her. administrative Davis salary took or every In particular, Keeshan of the title Doctor when referring to Keeshan and to Davis s practice of calling other African Americans brothers and sisters. In warnings February within three 2004 days Hamilton of each J.A. 40. gave Keeshan other. One two written was for an unauthorized on-call arrangement that Keeshan entered into with another physician without Davis s approval. The other was for Keeshan s name appearing at the bottom of an open letter to patients urging them to contact their legislators to support tort reform. The letter appeared in South Carolina s State newspaper and declared that OB-GYNs were faced with the prospect of being unable to continue to deliver babies due to increased liability premiums. S.A. 104. The Cooperative s written warning to Keeshan called the letter needlessly misleading, alarming to patients, and in stark contrast to the Cooperative s stated mission of providing care to all patients, regardless of their economic status. 6 S.A. 108. The Cooperative reprimanded letter, including Davis. its other OB-GYNs who signed this Before issuing the warning to Keeshan, Hamilton tried to call her at home to persuade her to call the newspaper and request removal of her name. to reach Keeshan, but he received Hamilton was unable an email containing unsolicited legal advice from Keeshan s husband, Aaron Kozloski, a lawyer. Hamilton testified that Kozloski sent him unsolicited legal advice on multiple occasions. Keeshan filed formal grievances with the Cooperative after receiving these two warnings. The grievances protested the warnings and Davis s unprofessional conduct generally. The Cooperative s grievance committee set a grievance hearing for February 20, 2004, but Keeshan did not receive notice of the hearing because it was placed in her mailbox on her day off. She received a call from a committee member on the day of the hearing, but she was in a meeting that she could not leave. No mention was made of rescheduling the hearing, which took place without Keeshan. Keeshan s merit. The complaints grievance regarding committee her written concluded warnings that lacked The committee did, however, in response to Keeshan s complaints about Davis, decide that the Cooperative should circulate a memorandum to its employees on professional conduct and courtesy. 7 On February memorandum requesting 23, 2004, Keeshan filed a Hamilton a $127,500 in productivity bonuses that she claimed to be owed under her contract. also wrote discrimination complaint On the same day, Keeshan with the Cooperative s human resources department, alleging that the Cooperative and Davis subjected her to a hostile work environment on account of her religion and race. Although she mentioned both racial and religious discrimination, the bulk of her complaint alleged that Davis, with Hamilton s consent, subjected Keeshan treatment solely because Keeshan is not black. 1 to unfair Her complaint requested that Davis be immediately terminated and that Keeshan be restored Health. to her original position as Director of Women s Hamilton testified that this complaint was the first time he learned of Keeshan s Hispanic descent. Two days after receiving Keeshan s request for productivity bonuses and her discrimination complaint, Hamilton 1 During a colloquy with court at the close of trial, Keeshan s counsel maintained that Keeshan never pursued a religious discrimination complaint in her pleadings and that the issue of her religion was water under the bridge. J.A. 303. The Title VII heading of Keeshan s supplemental complaint refers only to racial discrimination. But in the factual allegations she refers to the racial and religious discrimination grievance that she submitted to the Cooperative. J.A. 29. Because her Title VII retaliation claim was based on this grievance that alleged discrimination on both grounds, the court instructed the jury that it could find unlawful retaliation based on Keeshan s complaint of race and/or religious discrimination. J.A. 363. 8 talked with her at a board meeting. He inquired about her plans to attend law school and discussed whether they could agree on some changes that would make her happy. gave Keeshan a proposed agreement. The next day Hamilton Noting that Keeshan s service obligation to [NHSC] ends in four short months and that it is important to finish any task well, Hamilton offered to (1) meet personally with the staff in the OB-GYN division to reduce the level of tension that has arisen there; (2) reassign Keeshan to a different Cooperative office as the sole OB-GYN for warning the remainder letter of her regarding NHSC term; Keeshan s (3) remove unauthorized the on-call arrangement from her personnel file; (4) allow a family practice resident to rotate through Keeshan s new office; and (5) discuss[] in good faith the prospect of Keeshan s employment with the Cooperative beyond her NHSC obligation, assuming all aspects Hamilton of this agreement proposed that, are in in effect. return, S.A. Keeshan 167-68. rescind her grievances against the Cooperative, demonstrate a willingness to engage in constructive personal dialogue on her various areas of conflict with the Cooperative, and that Keeshan s husband cease communication with the Cooperative. objected to the proposed relocation and S.A. 168. did not Keeshan accept the agreement. Hamilton gave Keeshan a revised agreement without the relocation proposal. Unsatisfied with the proposed term that 9 her husband cease communication with the Cooperative, Keeshan rejected the revised agreement. The Cooperative then gave Keeshan 120 days notice that her contract would not be renewed after July 2004. In retaliation May 2004 complaint Keeshan with filed the a and The EEOC. discrimination was complaint transferred to the South Carolina Human Affairs Commission, and Keeshan received a right to sue letter in October 2004. sued the Cooperative in South Carolina state court. Keeshan After she amended her complaint to include federal claims, the case was removed to federal court in the District of South Carolina. Keeshan s claims included a racial discrimination claim under Title VI and Title VII, a retaliation claim under Title VI and VII, and claims unpaid wages. the Cooperative under state law for wrongful discharge and The district court granted summary judgment to on Keeshan s Title VI claims, discrimination claim, and wrongful discharge claim. Title VII Keeshan s Title VII retaliation claim and her unpaid wages claim proceeded to a jury trial in February 2008. B. Over objection from Keeshan s counsel, the jury heard Keeshan testify on cross-examination leaving the Cooperative. 2007 was $300,000. about her income after Keeshan said that her yearly income in Keeshan s counsel argued that her income 10 after 2005 was irrelevant because she was not seeking back pay for any period responded that after her that year. current income The Cooperative s was relevant in counsel that it show[ed] that she is much better off today than if she had stayed where she was. J.A. 276. Moreover, the Cooperative s counsel maintained that Keeshan s current salary was relevant to her request for punitive damages. The court was persuaded by the last point and ruled that the 2007 salary testimony was admissible if Keeshan sought punitive damages. trial, the court ultimately found At the close of insufficient evidence of malicious or reckless conduct by the Cooperative to warrant a punitive damages instruction to the jury. The jury found for the Cooperative on both the retaliation and unpaid wages claims. Keeshan moved for a new trial on the grounds that the jury was salary. unduly prejudiced after learning of her $300,000 In support of her motion, she submitted an affidavit swearing that she heard gasps from the jury box and that she could tell from the astonished looks on jurors faces that they had already decided against her. Keeshan s party. motion and taxed J.A. 373-74. Keeshan with The court denied costs as the losing Keeshan appeals, asking this court to (1) reverse the grant of summary judgment to the Cooperative on her wrongful discharge claim, (2) hold that she is entitled to a new trial on the grounds that her post-termination 11 income was erroneously admitted into evidence, and (3) hold that even if she remains the losing party, she should not be taxed with the Cooperative s costs. II. A. We first address the district court s grant of summary judgment to discharge Cooperative claim. discharged wages the in under Keeshan retaliation South on Keeshan s maintains for her civil unlicensed practice rights, of she law was wrongful wrongfully asserting her right to Payment of Wages Act, for aid the Carolina s exercising that state and medicine for and refusing insurance to fraud. unpaid This wrongful discharge claim is based on South Carolina s public policy exception exception permits discharge of an to a the employment cause at-will of action employee clear mandate of public policy. at-will where doctrine. the constitutes The retaliatory violation of a Ludwick v. This Minute of Carolina, Inc., 337 S.E.2d 213, 225 (S.C. 1985). The exception applies to at-will employees claims of retaliatory termination for invoking their rights under the Payment of Wages Act. Evans v. Taylor Made Sandwich Co., 522 S.E.2d 350, 354 (S.C. Ct. App. 1999). The district court held that Keeshan could not avail herself of the public policy exception because she was not an 12 at-will employee Keeshan s of the comparison of Cooperative. her contract The to court that in rejected Stiles v. American General Life Insurance Co., 516 S.E.2d 449, 451 (S.C. 1999), in which the South Carolina Supreme Court found the durational terms of an employment contract so indefinite that the employee was essentially at-will. The contract allowed either party to terminate the employment relationship for any reason upon thirty days written notice. Id. at 450. supreme provision court reasoned that the notice The was so unrestricted that it left the employee in the same position as an at-will employer employee is with required the to terminating employment. only give difference the employee being notice that the prior to Id. at 451. We agree with the district court that Keeshan failed to raise a material factual dispute over whether she was an atwill employee. The automatic renewal provision indicates that the contract would continue from year to year absent one of the specified termination-triggering occurrences. The notice provision, if invoked, had to be invoked at least 120 days prior to the end of a one-year term. This durational restriction distinguishes Keeshan s contract from the completely unfettered contract in Stiles. definite durational The term, contract whereas in Stiles Keeshan s contained contract no provided that it would remain in effect for one year from the date 13 [Keeshan] begins employment and shall be automatically renewed for successive one year terms. S.A. 97 (emphases added). Although Keeshan s contract contained a 120-day notice provision that could be invoked by either party, her contract had more constraints than the contract in Stiles. Because Keeshan started at the Cooperative on July 17, 2000, the oneyear terms ran from July 17 of one year to July 17 of the next. When Keeshan refused to accept Hamilton s revised agreement by March 5, 2004, the Cooperative gave her 120 days notice that her employment would not continue after she completed the last one-year term of her four-year scholarship requirement. was the first day of the 120-day notice period. March 5 Keeshan s employment with the Cooperative ended on July 17, 2004, 132 days later. If the Cooperative had tried to give Keeshan 120 days notice on, say, March 30 instead of March 5, this would have violated the contract because there would be fewer than 120 days remaining on the term. Keeshan s contract was therefore unlike the contract in Stiles, which did not have a durational term constraining provision. the parties Indeed, ability Keeshan herself to invoke interpreted the the notice notice provision as protecting her from having at-will status. She testified his that during her discussion with Hamilton over proposed resolution of her complaints, she explained that she 14 was not going to waive [her] 120 day notification. [she] would be an at-will employee. Further, listed in the the other contract Otherwise S.A. 74. termination-triggering (death, total disability, events material breach, unprofessional conduct, and financial exigency) suggest that unlike the Cooperative parties had relationship. Stiles, in unbounded neither discretion to Keeshan end the nor the employment Keeshan was not an otherwise at-will employee, with the only difference being that the Cooperative had to give her 120 days notice of termination. Stiles, 516 S.E.2d at 450-51 (emphasis added). Her contract contained a durational term of one year and limited the time period during which the parties could invoke the notice provision. B. We now turn to Keeshan s argument that her compelled cross-examination testimony on her income after leaving the Cooperative was irrelevant and prejudiced the jury to decide against ruling her. on the A trial court admissibility possesses of broad evidence, and discretion we will in not overturn an evidentiary ruling absent an abuse of discretion. United 2005). has States v. Hedgepeth, 418 F.3d 411, 418-19 (4th Cir. An abuse of discretion occurs only when a trial court acted arbitrarily or irrationally in admitting evidence, when a court has failed to consider judicially recognized facts 15 constraining its exercise of discretion, or when it has relied on erroneous factual or legal premises. citations and quotations omitted). found to be erroneous, harmlessness. we Id. at 419 (internal If an evidentiary ruling is then review the error for Id. (internal citations and quotations omitted). To conclude that the district court s evidentiary errors were harmless, we need only be able to say with fair assurance, after pondering erroneous action all that from the happened whole, substantially swayed by the error. without that the stripping judgment the was not United States v. Heater, 63 F.3d 311, 325 (4th Cir. 1995) (internal citations and quotations omitted). We agree with Keeshan that the district court s admission of her testimony on her post-termination income was based on an erroneous legal premise and was therefore an abuse of discretion. The court found the testimony relevant to Keeshan s request for punitive damages, which she sought under her Title VII retaliation claim. punitive party damages from demonstrates private that Title VII permits employers the if respondent recovery of the complaining engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved standard requires individual. the 42 plaintiff 16 U.S.C. to show 1981a(b)(1). that the This employer discriminate[d] in the face of actions will violate federal law. 527 U.S. 526, 536 (1999). a perceived risk that its Kolstad v. Am. Dental Ass n, It is axiomatic that the purpose of punitive damages is to punish and deter defendants. Most often . . . eligibility for punitive awards is characterized in terms of a defendant s added). motive or intent. Id. at 538 (emphasis That Keeshan s salary nearly doubled after leaving the Cooperative may indicate that Keeshan was better off in another job. But her improved financial status is irrelevant to her contention that the Cooperative terminated her with malice or reckless indifference to her right under Title VII to bring a racial and religious discrimination complaint. Yet we are satisfied that this error was harmless. After reviewing the record, we can say with more than fair assurance that the jury was not substantially swayed by the revelation of Keeshan s higher salary to render a verdict for the Cooperative. Heater, 63 F.3d at 325. After the court declined to send a punitive damages instruction to the jury, Keeshan s counsel did not proffer a limiting instruction that Keeshan s subsequent income was irrelevant to her claims. The district court correctly instructed the jury on what Keeshan had to show to prevail on her Title VII retaliation claim, and her Wages Act claim. The court also instructed the jury to follow 17 the law as stated by the court and not to decide based on personal dislikes or prejudices. Without stripping the erroneous action from the whole, Heater, 63 F.3d at 325, the record supports the jury s findings for the Cooperative. A Title VII retaliation claim requires a plaintiff to prove that (1) she engaged in protected activity, (2) an adverse employment action was taken against her, and (3) a causal connection between the protected activity and the adverse action. Holland v. Wash. Homes, Inc., 487 F.3d 208, 218 (4th Cir. 2007). Keeshan would have to show that the Cooperative did not renew her contract because [she] engaged in a protected activity by complaining about discrimination. (emphasis in omitted). If a plaintiff establishes a prima facie case, the burden original) shifts to the (internal defendant citations to and Id. articulate nonretaliatory reason for its actions. a quotations legitimate Id. (internal citations and quotations omitted). The record comes up far short for Keeshan on the third element of a prima facie Keeshan s problems at the Cooperative started long her discrimination and the causal activity. filed action the between she adverse claim: connection before the retaliation complaint. protected Hamilton testified that problems started as early as 2002 over Keeshan s billing and appointment scheduling discrepancies. 18 And Keeshan sent the email to which Hamilton took offense in May 2003, nearly a year before she filed her discrimination complaint. Keeshan even referred to her widening rift with Hamilton in the email. S.A. 102. The jury could therefore find that Keeshan showed no causal connection between the complaint and the nonrenewal of her contract. Even if Keeshan could establish a prima facie case, the record terminated supports her interpersonal for the a legitimate, conflicts contribution to a conclusion with the Cooperative nonretaliatory Davis friction-laden division starting in 2003. that and reason: Hamilton atmosphere in and the her her OB-GYN It is clear that there was seldom a meeting of the minds between Keeshan, Hamilton, and Davis when it came to professional matters. determine whether the It was up to the jury to Cooperative terminated Keeshan in retaliation for her discrimination complaint. The record gives us Keeshan s fair assurance that the disclosure of higher salary upon leaving the Cooperative did not prejudice the jury to ignore or discrimination discount complaint a and causal the connection termination, between or legitimate nonretaliatory reason where none existed. F.3d at 325. to the find a Heater, 63 The abundant evidence of Keeshan s tension-fraught relationship with Hamilton and Davis persuades us that the jury decided against her based on the law, not her subsequent higher 19 salary. We note that Keeshan s salary at the Cooperative was not paltry, so we are not convinced that after learning that she continued to earn more than most Americans, 2 the jury decided to ignore Title VII law. There is more room for prejudicial effect on Keeshan s Payment of Wages Act claim. contention that the This claim was based on Keeshan s Cooperative unlawfully withheld productivity bonuses that she was owed under her contract. Her contract provided that if her base salary was less than forty percent of her net production (collected fees) she would receive a settlement in an amount equal between the base salary and such sum. to the difference S.A. 95. Keeshan s testimony on her subsequent salary put her in the position of arguing that although she enjoyed a considerable income, she was entitled to an additional $127,500 in productivity bonuses. However, we are satisfied that the jury based its finding for the Cooperative on both sides presentation of the numbers during the period of Keeshan s employment with the Cooperative, not on her later income. 2 The medium household income for the United States in 20022004 was $44,473. The medium household income for South Carolinians during this period was $39,326. U.S. Census Bureau, Three-Year Medium Household Income by State, 2002-2004, available at http://www.census.gov/hhes/www/income/income04/statemhi.html. 20 Keeshan testified to her base salary during each year of her employment with the Cooperative. At the request of the Cooperative s counsel during cross-examination and with the aid of a calculator, Keeshan multiplied her collected fees by 0.4. The numbers that Keeshan plugged in for her collected fees came from the Cooperative s answers to her interrogatory requests for the sum of all amounts actually paid to [the Cooperative] by any person or payor for care or services Keeshan for each year from 2000 to 2004. rendered by S.A. 200-01. Dr. When Keeshan multiplied these yearly fees by 0.4 and then compared the result to her corresponding base salary for those years, it was clear that her base salary always exceeded 40 percent of these collected fees. Keeshan calculation anything jury s of more verdict disputed her the collected accuracy accurate for the from fees, which but we Cooperative of she can was the Cooperative s did not conclude so offer that off-base as the to indicate that it was substantially swayed by some resentment towards Keeshan s financial Heater, 63 F.3d at 325. collected sums were status the time of trial. Hamilton testified to how Keeshan s calculated adjustments factored in. at and explained how insurance He said that part of the difficulty in calculating Keeshan s collected sums, at least for the years 2000-2002, was because Keeshan 21 billed nurse practitioner services under Keeshan s provider number and Keeshan set the appointment schedule such that it looked like she was seeing a large number of patients . . . but in reality, the nurse practitioner was hidden in the appointment schedule under Dr. Keeshan s name. J.A. 108. He explained that the Cooperative then had to go and do a manual count by hand employing extra people to go through 13,000 records to sort out who was actually doing what. requesting J.A. 109. productivity After receiving Keeshan s memorandum bonuses, the Cooperative rehired a previous employee from the billing office who had assisted in separating nothing Keeshan s in the billings record to from 2000 indicate to that 2002. the We jury find accepted calculations so blatantly inaccurate that we can infer that its Wages Act verdict was tainted by Keeshan s subsequent income. Keeshan s testimony conviction. on the numbers was not overflowing with She explained that some of her figures came from extrapolation based on other physicians in the community who had a similar pay mix and [were] doing similar work. J.A. 200. She kept handwritten post-its of the procedures she performed, which she later threw out. J.A. 266-67. The record leaves us more than fairly assured that the jury s verdict on the Wages Act claim was not substantially swayed by the admitted testimony on Keeshan s subsequent income. 22 erroneously Because there was ample evidence indicating that the verdicts were not substantially swayed by the erroneously admitted testimony, we readily conclude that the district court did not abuse its discretion by denying Keeshan s motion for a new trial. In considering a motion for a new trial, a trial judge may weigh the evidence and consider the credibility of witnesses, and if he finds the verdict is against the clear weight of the result in a evidence, is based on miscarriage of justice, false he evidence must set or aside will the verdict, even if supported by substantial evidence, and grant a new trial. Chesapeake Paper Prods. Co. v. Stone & Webster Eng g 51 Corp., F.3d 1229, 1237 citations and quotations omitted). the decision save in the most (4th Cir. 1995) (internal This court will not reverse exceptional evincing a clear abuse of discretion. circumstances Bristol Steel & Iron Works v. Bethlehem Steel Corp., 41 F.3d 182, 186 (4th Cir. 1994) (internal citations and quotations omitted). In support of her motion for a new trial, Keeshan submitted an affidavit swearing that she heard gasps from the jury box when she revealed her subsequent income, and that some jurors looked at her with open mouths and astonished eyes. 373. The Cooperative contends that this affidavit J.A. is inadmissible under Fed. R. Evid. 606(b), which provides that evidence of any statement by the juror may not be received on a 23 matter about testifying, processes which including in the matters connection affidavit is impression of more the juror would concerning with the accurately effect of be the verdict. juror s testimony on from mental Keeshan s Id. characterized her evidence of a juror statement. precluded as Keeshan s the jury, not Regardless, even if the district court credited Keeshan s recollection, the court did not abuse its discretion evidence in concluding outweighed testimony. any that possible the clear prejudice weight from of the Keeshan s As explained above, the record leaves us assured that the jury correctly applied the law. C. Finally, district court we should take not up Keeshan s have imposed argument costs on that her as the the losing party. As an initial matter, we reject the Cooperative s contention that this argument was not preserved for appeal because Keeshan s notice of appeal did not explicitly indicate that she costs. was challenging the district court s imposition of Federal Rule of Appellate Procedure 3(c)(1)(B) requires appellants to designate the judgment, order, or part thereof being appealed. We liberally construe Rule 3(c) s requirements concerning the sufficiency of the notice of appeal to avoid technical impediments to appellate review. Spence v. Educ. Credit Mgmt. Corp. (In re Spence), 541 F.3d 538, 543 (4th 24 Cir. 2008). [E]ven when a party files a notice of appeal that is technically at variance with the letter of a procedural rule, a court may nonetheless find that a litigant has complied with the rule if the litigant s action is the functional equivalent of what the rule requires. United States v. Little, 392 F.3d 671, 681 (4th Cir. 2004) (internal quotations omitted). [A]n error in designating the issue appealed will not result in a loss of judgment appeal can as be long as fairly the intent inferred and to the appeal a specific appellee is not Bogart v. Chapell, 396 F.3d 548, prejudiced by the mistake. 555 (4th Cir. 2005) (internal citations and quotations omitted). The appellant simply needs to address the merits of a particular issue in her opening brief in order to demonstrate that she had intent to appeal that issue and the appellees were not prejudiced by her mistake, inasmuch as they had notice of the issue and the opportunity to fully brief it. Id. Keeshan s notice of appeal says that she appeals from the final judgments and orders granting summary judgment and denying Plaintiff s Motion for New Trial. J.A. 378. The district court s imposition of costs is a final judgment and although Keeshan did not specifically designate the cost issue in her notice of appeal, she addressed the merits in her opening brief and Cooperative the Cooperative has not shown responded prejudice 25 in from its brief. Keeshan s lack The of specificity in the notice. Keeshan s costs challenge contention that is therefore properly before this court. As Keeshan acknowledges, her costs should be awarded to prevailing Title VII defendants only in rare circumstances is contrary to the plain language of Federal Rule of Civil Procedure 54(d)(1) and the law of this circuit. Rule 54(d)(1) presumes that costs are awarded to the prevailing party: Unless a federal statute, these rules, or a court order provides otherwise, costs other than attorney s fees should be allowed to the prevailing party. A district court s award of discretion. costs is Champion reviewed Int l for abuse of 186 F.3d 442, Corp., 446 (4th Cherry Cir. v. 1999). However, Rule 54(d)(1) places some restraint on this discretion by indicating when costs should not be awarded to prevailing parties as a matter of course, such as when a statute or a court order provides otherwise. In Cherry we held that when a statute or federal rule of civil procedure does not shift costs to the prevailing party, circumstances a court including: may not misconduct do by so the except in prevailing rare party worthy of a penalty ; the losing party s inability to pay ; the excessiveness limited value [of the costs] in of the prevailing a particular party s victory ; closeness and difficulty of the issues decided. Id. 26 case ; or the the The courts Supreme discretion Court to has award held that attorneys Title fees VII to cabins prevailing defendants, but the Court has not held the same with regard to costs. A prevailing Title VII defendant should not be awarded attorneys fees from the losing plaintiff unless the court finds that the plaintiff s claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate it after it clearly became so. Christiansburg Garment Co. v. Equal Employment Opportunity Comm n, 434 U.S. 412, 422 (1978). Most circuits, including this one, have rejected the argument that an unsuccessful Title VII plaintiff s good faith in bringing the suit will likewise shield her from being taxed with her opponent s costs. [G]ood faith, standing alone, is an insufficient basis for refusing to assess costs against [the Cherry, 186 F.3d at 446; see also Pacheco v. losing] party. Mineta, 448 F.3d 783, 794 (5th Cir. 2006) ( Every circuit to expressly address the question in a published opinion the Fourth, Sixth, Seventh, Ninth and Tenth has ruled that good faith, by itself, cannot defeat the operation of Rule 54(d)(1). ); Cosgrove v. Sears, Roebuck, & Co., 191 F.3d 98, 101 (2d Cir. 1999) ( We see no reason . . . to apply the same type of heightened [Christiansburg] standard costs. ). 27 to the assessment of Keeshan contends that there is no reason to distinguish between costs and attorneys fees under Title VII. She therefore urges us to reverse Cherry and extend Christiansburg s bad faith standard to costs. This panel cannot overrule the decision United Collins, 415 F.3d of 304, a 311 prior (4th panel. Cir. v. Moreover, 2005). States we disagree that there is no reason to distinguish between costs and attorneys fees for unsuccessful Title VII plaintiffs who litigated in good faith. Christiansburg s bad-faith standard was grounded in the rationale that if unsuccessful Title VII plaintiffs were taxed with defendants attorneys fees, this would undercut the efforts of Congress to promote the vigorous enforcement of the provisions of Title VII. 434 U.S. at 422. The same deterrent rationale does not necessarily hold true for costs, which are typically much less than attorneys fees. 3 See Poe v. John Deere Co., 695 F.2d 1103, 1108 (8th Cir. 1982) ( Congress has not . . . carved out an exception to Rule 54(d) relieving bearing a the distinction losing costs is unpredictability civil of rights litigation. clear. of litigant attorney s The Whereas fees 3 of the rationale the would burden of for this magnitude and deter parties with The district court taxed Keeshan with costs in the amount of $ 2823.05. It is safe to assume that this sum is far less than the Cooperative s attorneys fees. 28 meritorious claims from litigation, the costs of suit in the traditional sense are predictable and, compared to the costs of attorneys fees, small. ). And, as the Seventh Circuit has observed, [i]f the awarding of costs could be thwarted every time the unsuccessful party is a normal, average party and not a knave, Rule 54(d) would have little substance remaining. Popeil Bros. v. Schick Elec., Inc., 516 F.2d 772, 776 (7th Cir. 1975). The district court thus acted well within its discretion by taxing Keeshan with the Cooperative s costs. The district court also properly taxed Keeshan with costs on her Payment of Wages Act claim because the Cooperative was the prevailing party. If an employer is found liable under the Wages Act, the employee may recover in a civil action an amount equal to three times the full amount of the unpaid wages, plus costs and § 41-10-80(C). reasonable The attorney s statute allows fees. S.C. prevailing Code Ann. plaintiffs to recover treble damages, costs, and attorneys fees, but it is silent on when losing plaintiffs may avoid the attorneys fees and costs of their successful opponents. Therefore, Rule 54(d)(1) s presumption of awarding costs to the prevailing party applies. 29 III. For the foregoing reasons, the judgment of the district court is AFFIRMED. 30

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.