{ "id": 8410936, "name": "DAVID B. MILLER, Plaintiff v. BARBER-SCOTIA COLLEGE, Defendant", "name_abbreviation": "Miller v. Barber-Scotia College", "decision_date": "2004-12-07", "docket_number": "No. COA03-292", "first_page": "165", "last_page": "178", "citations": [ { "type": "official", "cite": "167 N.C. App. 165" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "42 U.S.C. \u00a7 1981", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": -1 }, { "cite": "753 F.2d 1281", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 292667 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/f2d/753/1281-01" ] }, { "cite": "527 U.S. 526", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1248163 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "536" } ], "opinion_index": 0, "case_paths": [ "/us/527/0526-01" ] }, { "cite": "367 F. Supp. 860", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 8481226 ], "year": 1973, "pin_cites": [ { "page": "864" } ], "opinion_index": 0, "case_paths": [ "/f-supp/367/0860-01" ] }, { "cite": "397 F.2d 799", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2145972 ], "year": 1968, "pin_cites": [ { "page": "801", "parenthetical": "federal common law applies" } ], "opinion_index": 0, "case_paths": [ "/f2d/397/0799-01" ] }, { "cite": "832 F.2d 194", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10544030 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/f2d/832/0194-01" ] }, { "cite": "206 F.3d 431", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11454292 ], "weight": 4, "year": 2000, "pin_cites": [ { "page": "441" }, { "page": "441" }, { "page": "441" }, { "page": "442" } ], "opinion_index": 0, "case_paths": [ "/f3d/206/0431-01" ] }, { "cite": "461 U.S. 30", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11298143 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "51" }, { "page": "648" } ], "opinion_index": 0, "case_paths": [ "/us/461/0030-01" ] }, { "cite": "281 F.3d 676", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9394541 ], "year": 2002, "pin_cites": [ { "page": "680" } ], "opinion_index": 0, "case_paths": [ "/f3d/281/0676-01" ] }, { "cite": "308 F. Supp. 2d 614", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 9272727 ], "year": 2004, "pin_cites": [ { "page": "620" } ], "opinion_index": 0, "case_paths": [ "/f-supp-2d/308/0614-01" ] }, { "cite": "203 F.3d 274", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11483078 ], "year": 2000, "pin_cites": [ { "page": "280" } ], "opinion_index": 0, "case_paths": [ "/f3d/203/0274-01" ] }, { "cite": "293 F.3d 716", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9417240 ], "year": 2002, "pin_cites": [ { "page": "723", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/f3d/293/0716-01" ] }, { "cite": "80 F.3d 954", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 7641145 ], "year": 1996, "pin_cites": [ { "page": "960-61" } ], "opinion_index": 0, "case_paths": [ "/f3d/80/0954-01" ] }, { "cite": "124 S. Ct. 922", "category": "reporters:federal", "reporter": "S. Ct.", "year": 2003, "pin_cites": [ { "parenthetical": "quoting Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 960-61 (4th Cir. 1996)" } ], "opinion_index": 0 }, { "cite": "157 L. Ed. 2d 742", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2003, "pin_cites": [ { "parenthetical": "quoting Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 960-61 (4th Cir. 1996)" } ], "opinion_index": 0 }, { "cite": "328 F.3d 145", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9129013 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "149" }, { "page": "150" } ], "opinion_index": 0, "case_paths": [ "/f3d/328/0145-01" ] }, { "cite": "871 F.2d 452", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10529798 ], "year": 1989, "pin_cites": [ { "page": "456" } ], "opinion_index": 0, "case_paths": [ "/f2d/871/0452-01" ] }, { "cite": "359 F.3d 330", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9284565 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "336" } ], "opinion_index": 0, "case_paths": [ "/f3d/359/0330-01" ] }, { "cite": "372 F.3d 662", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9234334 ], "weight": 4, "year": 2004, "pin_cites": [ { "page": "667", "parenthetical": "citation omitted" }, { "page": "668" }, { "page": "669" }, { "page": "669" } ], "opinion_index": 0, "case_paths": [ "/f3d/372/0662-01" ] }, { "cite": "355 F.3d 766", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9062746 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "786" }, { "page": "788" } ], "opinion_index": 0, "case_paths": [ "/f3d/355/0766-01" ] }, { "cite": "411 U.S. 792", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 10002 ], "weight": 2, "year": 1973, "pin_cites": [ { "page": "802" }, { "page": "677" } ], "opinion_index": 0, "case_paths": [ "/us/411/0792-01" ] }, { "cite": "93 F.3d 1241", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 7638280 ], "year": 1996, "pin_cites": [ { "page": "1250" } ], "opinion_index": 0, "case_paths": [ "/f3d/93/1241-01" ] }, { "cite": "133 F.3d 293", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 22398 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "298" } ], "opinion_index": 0, "case_paths": [ "/f3d/133/0293-01" ] }, { "cite": "498 U.S. 337", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6225911 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "356" } ], "opinion_index": 0, "case_paths": [ "/us/498/0337-01" ] }, { "cite": "574 S.E.2d 684", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "686" } ], "opinion_index": 0 }, { "cite": "155 N.C. App. 580", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9251187 ], "year": 2002, "pin_cites": [ { "page": "582" } ], "opinion_index": 0, "case_paths": [ "/nc-app/155/0580-01" ] }, { "cite": "524 S.E.2d 591", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "595" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 493", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240704 ], "year": 2000, "pin_cites": [ { "page": "498" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0493-01" ] }, { "cite": "42 U.S.C. \u00a7 1981", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 6, "opinion_index": 0 }, { "cite": "307 F.3d 672", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11349886 ], "year": 2002, "pin_cites": [ { "page": "678", "parenthetical": "noting that the pertinent inquiry is whether the decision-maker, as opposed to other managers or subordinates, evaluated the aggrieved employee based upon discriminatory criteria" } ], "opinion_index": 1, "case_paths": [ "/f3d/307/0672-01" ] }, { "cite": "490 U.S. 228", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 605428 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "277", "parenthetical": "O'Connor, J., concurring" }, { "page": "305", "parenthetical": "O'Connor, J., concurring" } ], "opinion_index": 1, "case_paths": [ "/us/490/0228-01" ] }, { "cite": "530 U.S. 133", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9413371 ], "weight": 5, "year": 2000, "pin_cites": [ { "page": "153" }, { "page": "123" }, { "page": "151" }, { "page": "122" } ], "opinion_index": 1, "case_paths": [ "/us/530/0133-01" ] }, { "cite": "354 F.3d 277", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9294800 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "286", "parenthetical": "quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 153, 147 L. Ed. 2d 105, 123 (2000)" }, { "page": "31" } ], "opinion_index": 1, "case_paths": [ "/f3d/354/0277-01" ] }, { "cite": "219 F.3d 612", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11195778 ], "weight": 3, "year": 2000, "pin_cites": [ { "page": "618" }, { "page": "617", "parenthetical": "emphasis added" }, { "page": "617" } ], "opinion_index": 1, "case_paths": [ "/f3d/219/0612-01" ] }, { "cite": "253 F.3d 561", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 1269518 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "565" } ], "opinion_index": 1, "case_paths": [ "/f3d/253/0561-01" ] }, { "cite": "339 F.3d 454", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9102925 ], "year": 2003, "pin_cites": [ { "page": "479" } ], "opinion_index": 1, "case_paths": [ "/f3d/339/0454-01" ] }, { "cite": "504 S.E.2d 580", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "584", "parenthetical": "internal citation omitted" } ], "opinion_index": 1 }, { "cite": "130 N.C. App. 681", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11470041 ], "year": 1998, "pin_cites": [ { "page": "688", "parenthetical": "internal citation omitted" } ], "opinion_index": 1, "case_paths": [ "/nc-app/130/0681-01" ] }, { "cite": "539 U.S. 90", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8897257 ], "weight": 4, "year": 2003, "pin_cites": [ { "page": "101", "parenthetical": "holding that discrimination is unlawful even if only one of several motives for adverse employment action" }, { "page": "95", "parenthetical": "holding that discrimination is unlawful even if only one of several motives for adverse employment action" }, { "page": "101" }, { "page": "95", "parenthetical": "holding that \"no heightened showing is required\"" } ], "opinion_index": 1, "case_paths": [ "/us/539/0090-01" ] }, { "cite": "438 U.S. 567", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1769263 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "577" }, { "page": "967" } ], "opinion_index": 1, "case_paths": [ "/us/438/0567-01" ] }, { "cite": "301 S.E.2d 78", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1983, "pin_cites": [ { "page": "82" }, { "page": "83" }, { "page": "84" }, { "page": "138" }, { "page": "84" }, { "page": "85" } ], "opinion_index": 1 }, { "cite": "308 N.C. 131", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4707236 ], "weight": 4, "year": 1983, "pin_cites": [ { "page": "137" }, { "page": "137" }, { "page": "138" }, { "page": "142" } ], "opinion_index": 1, "case_paths": [ "/nc/308/0131-01" ] }, { "cite": "527 U.S. 526", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1248163 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "530-31" }, { "page": "502" }, { "page": "506" } ], "opinion_index": 1, "case_paths": [ "/us/527/0526-01" ] }, { "cite": "411 U.S. 792", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 10002 ], "weight": 2, "year": 1973, "pin_cites": [ { "page": "802" }, { "page": "677" } ], "opinion_index": 1, "case_paths": [ "/us/411/0792-01" ] }, { "cite": "524 S.E.2d 591", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2000, "pin_cites": [ { "page": "595" } ], "opinion_index": 1 }, { "cite": "136 N.C. App. 493", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240704 ], "year": 2000, "pin_cites": [ { "page": "498" } ], "opinion_index": 1, "case_paths": [ "/nc-app/136/0493-01" ] } ], "analysis": { "cardinality": 1257, "char_count": 33566, "ocr_confidence": 0.764, "pagerank": { "raw": 5.8073662536290684e-08, "percentile": 0.36161838006771824 }, "sha256": "a7fcc3c90f44ba062a24c829f102a9734d987b1af501fe6b66ff72d09c798809", "simhash": "1:8ea4dc045bc511d4", "word_count": 5337 }, "last_updated": "2023-07-14T15:53:28.670431+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge TYSON concurs.", "Judge HUDSON dissents in part, concurs in part." ], "parties": [ "DAVID B. MILLER, Plaintiff v. BARBER-SCOTIA COLLEGE, Defendant" ], "opinions": [ { "text": "STEELMAN, Judge.\nDefendant, Barber-Scotia College, appeals a trial court order denying its motions for directed verdict and judgment notwithstanding the verdict. For the reasons discussed herein, we vacate the judgment of the trial court and reach only defendant\u2019s first two assignments of error.\nPlaintiff, David B. Miller, was a professor at defendant Barber-Scotia College, teaching sociology, criminal justice, and anthropology. In February 1997, plaintiff requested that defendant\u2019s registrar change a grade of Mr. Jones, a student, who had taken a course taught by plaintiff.\nOnce a final grade for a student has been submitted by a professor to defendant, it can only be changed in accordance with a specific policy adopted by defendant. This policy allows for a grade to be changed in only four situations: (1) an incorrectly computed grade; (2) an incorrect transcription of a grade; (3) an unintentional omission of some component of a student\u2019s work; and (4) a successful grade appeal. Any request for a grade change must be in writing and must state the reason for the grade change. The grade change form must be approved by the professor\u2019s division chairperson and then by the dean for academic affairs before it is forwarded to the registrar of the college.\nPlaintiff initially submitted a grade change request for Mr. Jones which did not state a reason for the grade change. This request was rejected by Mr. James Ramsey, dean of academic affairs for defendant. Plaintiff submitted the grade change request for Mr. Jones a second time without stating a reason for the requested change. Again, Mr. Ramsey denied the request. Mr. Jones\u2019s grade change request was submitted a third time. A reason was stated on the third request but was not one of the four situations set forth in defendant\u2019s grade change policy. This last grade change request was approved by plaintiff\u2019s division chairperson and immediate supervisor, Dr. Babafemi Elufiede, but was again rejected by Mr. Ramsey. The record does not indicate whether Dr. Elufiede approved the first two grade change requests.\nFollowing a meeting with plaintiff to discuss the rejected grade change requests for Mr. Jones, Mr. Ramsey sent a memo to defendant\u2019s president recommending that plaintiff be given a one year terminal contract based upon his disregard of college policies on changing grades. This memo was dated 22 April 1997.\nOn 23 April 1997 defendant tendered an employment contract to plaintiff for the next school year. The contract contained a provision stating that it was a \u201cterminal contract\u201d which would not be renewed by defendant.\nPlaintiff filed a complaint against defendant alleging breach of contract and racial discrimination under 42 U.S.C. \u00a7 1981 (2004). Plaintiff alleged that his contract was not renewed because of his race (white). At trial, a jury returned a verdict finding that defendant discriminated against plaintiff based upon his race and awarded plaintiff $68,495.00 in compensatory damages plus interest and $7,500.00 in punitive damages. The jury found that there was no contract of employment between plaintiff and defendant beyond the 1997-1998 school year. Defendant appeals.\nWe note that due to a failure of the courtroom recording system, there is no transcript of the trial proceedings. This case is therefore reviewed based upon the parties\u2019 summation of the evidence contained in the record on appeal.\nIn its first assignment of error, defendant argues that the trial court erred by failing to dismiss plaintiffs claim for racial discrimination under 42 U.S.C. \u00a7 1981 at the close of plaintiffs evidence and at the close of all the evidence, and by denying its motion for judgment notwithstanding the verdict. We agree.\nThe standard of review for the denial of motions for directed verdict and judgment notwithstanding the verdict is identical. Tomika Invs., Inc. v. Macedonia True Vine Pentecostal Holiness Church of God, Inc., 136 N.C. App. 493, 498, 524 S.E.2d 591, 595 (2000). Therefore, we consider these arguments together. The evidence must be viewed in the light most favorable to the nonmovant, giving him the benefit of every reasonable inference, in determining whether the evidence was sufficient to go to the jury. Hawley v. Cash, 155 N.C. App. 580, 582, 574 S.E.2d 684, 686 (2002). A \u201cdirected verdict is mandated where the facts and the law will reasonably support only one conclusion.\u201d McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 356, 112 L. Ed. 2d 866, 111 S. Ct. 807 (1991). \u201cTo defeat an employer\u2019s motion for [judgment as a matter of law] as to liability in a discrimination suit, the plaintiff must present substantial evidence to support as a reasonable probability, rather than as a mere possibility, that her employer discriminated against her because of a protected characteristic.\u201d DeJarnette v. Corning, Inc., 133 F.3d 293, 298 (4th Cir. 1998). \u201cWhile we are compelled to accord the utmost respect to jury verdicts and tread gingerly in reviewing them, we are not a rubber stamp convened merely to endorse the conclusions of the jury, but rather have a duty to reverse the [jury\u2019s verdict] if the evidence cannot support it.\u201d Price v. City of Charlotte, 93 F.3d 1241, 1250 (4th Cir. 1996).\nPlaintiff\u2019s claim of racial discrimination was based solely upon the theory of disparate treatment. In order to prevail against a motion for a directed verdict, or a judgment notwithstanding the verdict, plaintiff must meet its burden of persuasion as initially established in the Title VII context by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 677 (1973). DeJarnette v. Corning, Inc., 133 F.3d 293 (4th Cir., 1998). The test is the same under Title VII and 42 U.S.C. \u00a7 1981. Love-Lane v. Martin, 355 F.3d 766, 786 (4th Cir., 2004). In order to satisfy his burden under the McDonnell Douglas test \u25a0 \u201cplaintiff must first establish a prima facie case of discrimination, the defendant may respond by producing evidence that it acted with a legitimate, nondiscriminatory reason, and then the plaintiff may adduce evidence showing that the defendant\u2019s proffered reason was mere pretext and that race was the real reason for the defendant\u2019s less favorable treatment of the plaintiff.\u201d Williams v. Staples, Inc., 372 F.3d 662, 667 (4th Cir., 2004) (citation omitted).\nAssuming arguendo that plaintiff proved a prima facie case of racial discrimination, defendant then had a burden of production under the McDonnell Douglas line of cases to show a legitimate, nondiscriminatory reason for the adverse action against the employee. Williams, 372 F.3d 662, 668. If the employer satisfies its burden, the \u201cpresumption of discrimination raised by the prima facie case is rebutted and drops from the case.\u201d Williams, 372 F.3d at 669. The \u201csole remaining issue for our consideration becomes whether [plaintiff] can prove by a preponderance of the evidence\u201d that defendant\u2019s stated reason for its action was a pretext to hide racial discrimination. Id.; Mereish v. Walker, 359 F.3d 330, 336 (4th Cir., 2004). Appellant can meet its burden of proving pretext \u201ceither by showing that [defendant\u2019s] explanation is \u2018unworthy of credence\u2019 or by offering other forms of circumstantial evidence sufficiently probative of . . . discrimination.\u201d Id. \u201c \u2018The ultimate question is whether the employer intentionally discriminated, and proof that the employer\u2019s proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that [plaintiff\u2019s] proffered reason ... is correct.\u2019 It is not enough to disbelieve the defendants here; the fact-finder must believe [plaintiff\u2019s] explanation of intentional race discrimination.\u201d Love-Lane, 355 F.3d at 788. A plaintiff\u2019s own assertions of discrimination are insufficient to overcome an employer\u2019s legitimate, nondiscriminatory reason for discharge. Williams v. Cerberonics, Inc., 871 F.2d 452, 456 (4th Cir., 1989). This is because \u201cIt is the perception of the decision maker which is relevant, not the self-assessment of the plaintiff.\u201d King v. Rumsfeld, 328 F.3d 145, 149 (4th Cir., 2003), cert denied, 157 L. Ed. 2d 742, 124 S. Ct. 922 (U.S. 2003) (quoting Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 960-61 (4th Cir. 1996)). \u201cAt the end, the burden remains on [plaintiff] to demonstrate that the reasons offered by [defendant] are a pretext for discrimination, or stated differently, that the [defendant\u2019s] reason is unworthy of credence to the extent that it will permit the trier of fact to infer the ultimate fact of intentional discrimination.\u201d Dugan v. Albemarle County Sch. Bd., 293 F.3d 716, 723 (4th Cir., 2002) (citation omitted).\nIn the instant case, defendant met its burden by proffering a legitimate, nondiscriminatory reason for plaintiffs discharge, namely that plaintiff failed to follow College policy when requesting the grade changes for Mr. Jones and did not meet the college\u2019s legitimate expectations by failing to understand the potential damage to students and the College for giving unearned grades. The record includes a memorandum from Mr. Ramsey to Dr. Sammie Potts, president of the College, describing plaintiff\u2019s conduct, action taken thus far, and future recommendations. In the memorandum, Ramsey indicated that plaintiff \u201cdisregarded College Policy as stated in the College Catalog on numerous occasions relative to the changing of grades.\u201d Mr. Ramsey further noted: \u201cIn discussions with [plaintiff], it is my feeling that he does not understand the [damage] that is being done to students who receive unearned grades and he does not understand the potential damages to the institution.\u201d Dr. Potts agreed with Mr. Ramsey\u2019s recommendation, and subsequently offered plaintiff the terminal contract.\nWhile Mr. Ramsey had only been in employment with the College for a short time prior to plaintiff\u2019s termination, he was hired out of retirement as Academic Dean to strengthen the academic integrity of the College and to effectuate changes in college policy. Therefore, it was proper for Mr. Ramsey to observe and conclude that plaintiff did not conform to the legitimate academic expectations of the College.\nBecause defendant met its burden of production in articulating a non-discriminatory reason for its actions, the presumption of discrimination created by plaintiff\u2019s prima facie case dissolved and plaintiff was required to meet his burden of persuasion that defendant\u2019s proffered reason was mere pretext. Williams, 372 F.3d at 669. Plaintiff offered his own allegations that Mr. Ramsey acted with discriminatory intent (stating that he felt he was fired because of his race). This evidence, coming as it does from plaintiff, is \u201cclose to irrelevant.\u201d Hawkins v. PepsiCo, Inc., 203 F.3d 274, 280 (4th Cir., 2000).\nThe only other evidence presented by plaintiff pertinent to the issue was the testimony of plaintiff\u2019s immediate supervisor, Dr. Elufiede. Dr. Elufiede, who is black, testified that if plaintiff violated defendant\u2019s policies by recommending the grade change then he also violated it by approving the request. Plaintiff submitted a grade change request form for Mr. Jones on three separate occasions. Mr. Ramsey declined to approve each of the requests. It is unclear from the record whether Dr. Elufiede approved the first two grade change requests. However, it is clear that Dr. Elufiede approved the third grade change request and forwarded it to Mr. Ramsey, his direct supervisor. Dr. Elufiede was not given a terminal contract.\nPlaintiff and Dr. Elufiede were not similarly situated, and thus \u2022any disparate treatment between Dr. Elufiede and plaintiff does not tend to prove discrimination by defendant. See Disher v. Weaver, 308 F. Supp. 2d 614, 620 (M.D.N.C., 2004). Foremost, Dr. Elufiede was plaintiff\u2019s immediate supervisor. He was the chair of the social sciences department, and plaintiff was only a professor in that department. They did not share the same immediate supervisor, did not have the same job responsibilities or job description, and did not have equivalent experience. Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir., 2002). Furthermore, it was not Dr. Elufiede who initiated the grade change requests on three separate occasions without valid reasons. Rather, he merely reviewed and approved one of them as plaintiff\u2019s supervisor. The conduct with respect to the grade change request by plaintiff and Dr. Elufiede was not substantially similar. These differences in Dr. Elufiede\u2019s and plaintiff\u2019s job duties and conduct are such that any difference in the treatment of the two does not support an assertion of discrimination. This circumstantial evidence is simply too weak and speculative to establish that defendant\u2019s stated legitimate reasons for offering plaintiff a terminal contract were pretextual. Thus, defendant was entitled to a directed verdict dismissing plaintiff\u2019s claim for discrimination. Reeves, 530 U.S. at 148-49, 147 L. Ed. 2d at 120.\nIn its second assignment of error, defendant argues that the trial court erred in denying its motion to dismiss plaintiff\u2019s claims for punitive damages. We agree.\nPlaintiff\u2019s claim for punitive damages was based solely upon the alleged racial discrimination by defendant. As discussed above, this claim should have been dismissed by the trial court and as a result we hold that the plaintiff\u2019s claim for punitive damages, too, should have been dismissed. Further, assuming arguendo that the trial court properly denied defendant\u2019s motions on the issue of liability, we hold that the trial court erred in failing to grant defendant\u2019s motions for directed verdict and judgment notwithstanding the verdict with respect to the issue of punitive damages. After determining that defendant had discriminated against plaintiff, the jury awarded plaintiff $7,500.00 in punitive damages. In order for a plaintiff to sustain an award of punitive damages pursuant to \u00a7 1981 he must prove some aggravating conduct beyond that needed to sustain a claim of discrimination under the statute. Smith v. Wade, 461 U.S. 30, 51, 75 L. Ed. 2d 632, 648 (1983); Lowery v. Circuit City Stores, Inc., 206 F.3d 431, 441 (4th Cir., 2000); Rowlett v. Anheuser-Busch, 832 F.2d 194 (1st Cir. 1987); Caperci v. Huntoon, 397 F.2d 799, 801 (1st Cir., 1968) (federal common law applies); Tillman v. Wheaton-Haven Recreation Ass\u2019n, 367 F. Supp. 860, 864 (D. Md., 1973). \u201c[M]ere proof of a violation of the statute is not enough to recover punitive damages. There must also be proof that the defendant, in violating the letter of section 1981, exhibited oppression, malice, gross negligence, willful or wanton misconduct, or reckless disregard of the plaintiff\u2019s civil rights.\u201d James D. Ghiardi et al., Punitive Damages L. & Prac. \u00a7 15.07 (1999). In the case of Kolstad v. ADA, 527 U.S. 526, 144 L. Ed. 2d 494 (1999), the United States Supreme Court analyzed what aggravated conduct plaintiff must prove under Title VII to entitle it to punitive damages pursuant to 42 U.S.C. \u00a7 1981a (2004). The Fourth Circuit has determined that the Kolstad test is applicable to cases brought under 42 U.S.C. \u00a7 1981 as well as those brought under Title VII. Lowery, 206 F.3d at 441 (\u201cThus, any case law construing the punitive damages standard set forth in \u00a7 1981a, for example Kolstad, is equally applicable to clarify the common law punitive damages standard with respect to a \u00a7 1981 claim.\u201d). Following Kolstad, the Lowery Court held that in order to recover punitive damages under 42 U.S.C. \u00a7 1981, the plaintiff must prove that defendant \u201c \u2018engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to [plaintiff\u2019s] federally protected rights,\u2019 42 U.S.C. \u00a7 1981a(b)(l),\u201d Lowery, 206 F.3d at 441. In order for plaintiff to prove this aggravated conduct, he must not only prove that defendant discriminated, but that it discriminated \u201c \u2018in the face of a perceived risk that its actions will violate federal law.\u2019 \u201d Id. at 442 (quoting Kolstad, 527 U.S. at 536).\nThe jury in the instant case made no finding of aggravated conduct on the part of defendant. Our review of the record fails to uncover any evidence, beyond two sentences summarizing plaintiff\u2019s personal feelings on the matter (\u201cMr. Miller thinks that he was single [sic] out for dismissal because of his race (white). He feels the only explanation for his dismissal is that Mr. Ramsey (black) had innate feelings toward whites.\u201d), that would support a finding of the required aggravated conduct. Plaintiff fails in meeting his burden because, even assuming arguendo that plaintiff has proved discrimination, he has not offered any evidence that defendant acted with the knowledge that its conduct was in violation of federal law. Plaintiffs testimony standing alone is not sufficient, as its probative weight is slight (see King v. Rumsfeld, 328 F.3d 145, 150 (4th Cir., 2003); Gairola v. Virginia Dep\u2019t of General Services, 753 F.2d 1281, 1288 n.4 (4th Cir., 1985)), and it does not address the issue of defendant\u2019s knowledge that its purported actions were illegal. Thus, even assuming argu-endo that plaintiff proved his case of discrimination under 42 U.S.C. \u00a7 1981, having offered no evidence of aggravated conduct, defendant\u2019s motion for directed verdict on the issue of punitive damages should have been granted.\nVACATED AND REMANDED.\nJudge TYSON concurs.\nJudge HUDSON dissents in part, concurs in part.", "type": "majority", "author": "STEELMAN, Judge." }, { "text": "HUDSON, Judge,\nconcurring in part and dissenting in part.\nDefendant appeals from the denial of a motion for judgment not withstanding the verdict (JNOV), following a jury verdict in plaintiff\u2019s favor. Because I believe the majority has misapplied the legal precedents and imposed burdens on plaintiff that the law does not require, I dissent with respect to the primary claim of employment discrimination. I concur, however, with the disposition of the issue of punitive damages.\n\u201cIn considering a motion for JNOV, the trial court is to consider all evidence in the light most favorable to the party opposing the motion; the nonmovant is to be given the benefit of every reasonable inference that legitimately may be drawn from the evidence; and contradictions must be resolved in the nonmovant\u2019s favor.\u201d Tomika Invs., Inc. v. Macedonia True Vine Pent. Holiness Ch. of God, 136 N.C. App. 493, 498, 524 S.E.2d 591, 595 (2000). The standard of review for the denial of a JNOV is whether the evidence was sufficient to go to the jury. Id. \u201cThe hurdle is high for the moving party as the motion should be denied if there is more than a scintilla of evidence to support the plaintiffs prima facie case.\u201d Id. Thus, if there is more than a scintilla of evidence to support plaintiffs prima facie claim of discrimination, we must affirm the trial court\u2019s denial of defendant\u2019s motions.\n\u201cThe burden of establishing a prima facie case of discrimination is not onerous.\u201d North Carolina Dep\u2019t of Correction v. Gibson, 308 N.C. 131, 137, 301 S.E.2d 78, 82 (1983). \u201c[A] prima facie case of discrimination may be made out by showing that (1) a claimant is a member of a minority group, (2) he was qualified for the position, (3) he was discharged, and (4) the employer replaced him with a person who was not a member of a minority group.\u201d Id. The precise requirements of a prima facie case can vary depending on the context and were \u201cnever intended to be rigid, mechanized, or ritualistic.\u201d Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 57 L. Ed. 2d 957, 967 (1978). \u201cAprima facie case of discrimination may... be made out by showing the discharge of [a minority employee] and the retention of [a majority employee] under apparently similar circumstances.\u201d Gibson, 308 N.C. at 137, 301 S.E.2d at 83. More recently, the United States Supreme Court has evidenced an intent to ease the burden of proving discrimination. Desert Palace v. Costa, 539 U.S. 90, 101, 156 L. Ed. 2d 84, 95 (2003) (holding that discrimination is unlawful even if only one of several motives for adverse employment action).\nMaking a prima facie case is not the same as proving discrimination. Gibson, 308 N.C. at 138, 301 S.E.2d at 84. \u201cRather, it is proof of actions taken by the employer from which a court may infer discriminatory intent or design because experience has proven that in the absence of an explanation, it is more likely than not that the employer\u2019s actions were based upon discriminatory considerations.\u201d Id. at 138, 301 S.E.2d at 84. This Court has held that the \u201cplaintiff met his burden of establishing a prima facie case of discrimination [by presenting] evidence satisfying three of the four elements recited in Gibson-, plaintiff was an African-American discharged from his position at CPI and replaced by a white worker.\u201d Brewer v. Cabarrus Plastics, Inc., 130 N.C. App. 681, 688, 504 S.E.2d 580, 584 (1998) (internal citation omitted) (emphasis added). Once a plaintiff has established a prima facie case, the burden shifts to the employer to articulate some legitimate nondiscriminatory reason for its actions. Id.\nIn reviewing the denial of defendant\u2019s motions for directed verdict and for JNOV then, we consider whether, taking all evidence in the light most favorable to plaintiff, there is more than a scintilla of evidence to support plaintiff\u2019s prima facie claim of discrimination. Because the evidence is undisputed that plaintiff, who is white, was qualified for his position at the historically black college, was fired by defendant, and was replaced by a non-white employee, on this basis alone plaintiff has met the requirements of a prima facie case as articulated by this Court in Brewer.\nHere, plaintiff alleges he was fired because of his race. Defendant\u2019s evidence tended to show that he was fired for violating policy regarding a student\u2019s grade change. Under defendant\u2019s policies, such a request would be initiated by a professor (plaintiff, then passed on to the department head (Babfemi Elufiede), and if approved by the department head, would be passed on again to Mr. Ramsey, the academic dean, for final approval and implementation. Plaintiff asserts that Mr. Ramsey, his and Elufiede\u2019s supervisor regarding grade changes and contract matters, acted in a racially discriminatory manner when he recommended that plaintiff be terminated. The evidence tended to show that Mr. Ramsey is the supervisor of both plaintiff and Mr. Elufiede in the matter of grade changes, and that both plaintiff and Mr. Elufiede approved the grade change in question. As special assistant to the president for academic affairs, Mr. Ramsey was responsible for making recommendations to the college president about termination of faculty. Mr. Ramsey treated plaintiff and Mr. Elufiede differently, despite essentially identical actions in this regard. Defendant offered no explanation for the disparate treatment of plaintiff and Mr. Elufiede, and in fact presented no evidence at the trial.\nAlthough under Brewer, it may not be necessary to prove such, the majority focuses on the \u201csimilarly situated\u201d prong, as articulated in McDonnell Douglas Corp. v. Green. 411 U.S. 792, 802, 36 L. Ed. 2d 668, 677 (1973). The only possibly disputed issue between the parties is whether plaintiff was treated differently than a similarly situated non-white employee, Mr. Elufiede. If the evidence, in the light most favorable to the plaintiff, supports that inference, the trial court acted properly sending plaintiff\u2019s case to the jury. I conclude that, even if plaintiff\u2019s burden included presenting a prima facie case of disparate treatment of similarly situated employees, the evidence does support that inference and that the trial court properly denied the motions to dismiss and for JNOV.\nA long line of cases have explored the definition of \u201csimilarly situated.\u201d The majority\u2019s opinion frames the issue as solely controlled by whether the plaintiff and the comparator employee had the same supervisor. \u201cHowever, the \u2018same supervisor\u2019 criterium has never been read as an inflexible requirement.\u201d Seay v. TVA, 339 F.3d 454, 479 (6th Cir. 2003). Courts have rejected \u201cthe proposition that whenever two different supervisors are involved in administering the disciplinary actions, the comparators cannot as a matter of law be similarly situated for Title VII purposes.\u201d Anderson v. WBMG-42, 253 F.3d 561, 565 (11th Cir. 2001). \u201c[M]aking an independent determination as to the relevancy of a particular aspect of the plaintiffs employment status and that of the non-protected employee is crucial.\u201d Id. Indeed, one of the cases cited by the majority makes clear that the determination of whether a comparator employee is similarly situated must be based on \u201call material respects\u201d of the case. Radue v. Kimberly-Clark Corp., 219 F.3d 612, 618 (7th Cir. 2000). \u201c[A] court must look at all relevant factors, the number of which depends on the context of the case.\u201d Radue, 219 F.3d at 617 (emphasis added). In Gibson, as here, one of the comparator employees in the trial court\u2019s analysis was plaintiff\u2019s immediate supervisor. Gibson, 308 N.C. at 142, 301 S.E.2d at 85. The majority opinion, holding that the same supervisor requirement bars this plaintiff as a matter of law from making a prima facie case is inconsistent with these cases, and overlooks the crucial and undisputed fact that the plaintiff and his comparator (Elufiede) actually reported to the same supervisor (Ramsey) regarding the matter at issue.\nHere, both plaintiff and Mr. Elufiede were faculty members working for defendant; both were under the supervision of Mr. Ramsey with regard to final decisions on grade changes; both were subject to the same policies and procedures regarding grade changes; and both approved the same proposed grade change for the same student in the same course. Although the majority states that the actions of the two were not similar because \u201cplaintiff initiated the grade change\u201d but Mr. Elufiede \u201cmerely approved it,\u201d no evidence suggests that defendant used this purported difference to justify treating the two differently. To the contrary, the evidence indicates strong similarity in their actions, that \u201c[b]ecause Mr. Elufiede felt that [plaintiff\u2019s grade change] request was legitimate, Mr. Elufiede signed the request.\u201d The stipulated summary of the evidence reveals the following from Mr. Elufiede\u2019s narrated testimony:\nIf Mr. Miller broke the policy by recommending the grade change, then Mr. Elufiede broke the policy by approving it, but he was he not fired. Mr. Rainey (black) was hired to replace Mr. Miller. . . . Because Mr. Elufiede felt that Mr. Miller [sic] [grade change] request was legitimate, Mr. Elufiede signed the request.\nIn light of this evidence of \u201crelevant factors,\u201d I am unable to conclude, as a matter of law, that plaintiff and Mr. Elufiede are not similarly situated under the applicable case law. Radue, 219 F.3d at 617. Thus, considering the evidence in the light most favorable to the plaintiff, as the law requires, this issue was properly for the jury to decide.\nFurther, because \u201cthe ultimate question in every employment discrimination case involving a claim of disparate treatment is whether the plaintiff was the victim of intentional discrimination,\u201d the identity and actions of the decision-maker are relevant factors. See Hill v. Lockheed Martin Logistics Mgmt., 354 F.3d 277, 286 (4th Cir. 2004) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 153, 147 L. Ed. 2d 105, 123 (2000)). In adverse employment actions, an employer is liable for the improper motivations of the \u201cperson who in reality makes the decision.\u201d Id. 354 F.3d at 31. The U.S. Supreme Court, in Reeves, held that the employer was not entitled to judgment as a matter of law under the McDonnell Douglas framework where one of petitioner\u2019s superiors in the chain of authority, \u201cwas motivated by [discriminatory] animus and was principally responsible for petitioner\u2019s firing.\u201d Reeves, 530 U.S. at 151, 147 L. Ed. 2d at 122. Thus, when the alleged discrimination was committed by someone other than the plaintiff\u2019s direct supervisor, the identity and motivations of the decision-maker, rather than the direct supervisor, are the proper points of focus in establishing the prima facie case. Cf. Price Waterhouse v. Hopkins, 490 U.S. 228, 277, 104 L. Ed. 2d 268, 305 (1989) (O\u2019Connor, J., concurring) (holding that statements by nondecision-makers are not relevant to satisfying the plaintiff\u2019s burden of proving discrimination); Koski v. Standex Int\u2019l Corp., 307 F.3d 672, 678 (7th Cir. 2002) (noting that the pertinent inquiry is whether the decision-maker, as opposed to other managers or subordinates, evaluated the aggrieved employee based upon discriminatory criteria).\nAs a result of their essentially identical actions, plaintiff was fired and Mr. Elufiede was not. Plaintiff was replaced by an individual of the majority race in his employment situation. Plaintiff alleges racial discrimination accounts for this action, and the evidence constitutes more than a scintilla of evidence to support the plaintiff\u2019s prima facie case, based on both replacement theory under Brewer, and on disparate treatment theory by Ramsey of similarly situated employees (plaintiff and Elufiede). Under McDonnell Douglas and its progeny as well, this evidence constitutes a prima facie case. See Hill, supra. Whether defendant\u2019s contentions about non-discriminatory reasons for plaintiffs termination were persuasive was a factual matter for the jury to decide. Thus, I conclude that the court\u2019s denial of defendant\u2019s motions for directed verdict and JNOV were proper, and that we should affirm those rulings.\nIt is important to note that the majority opinion would have the effect \u00f3f heightening the plaintiff\u2019s proof requirements in race discrimination cases, and would push our State\u2019s law outside the national mainstream, to the detriment of those who seek redress for discrimination based on race. Although this case involves \u201creverse discrimination\u201d against a white plaintiff, the primary impact of the decision will be on those individuals and groups who have historically suffered the most from discrimination in our State. The United States Supreme Court has continually cautioned lower courts against attempting to impose heightened burdens on plaintiffs in race discrimination cases. See Desert Palace, Inc., 539 U.S. at 101, 156 L. Ed. 2d at 95 (holding that \u201cno heightened showing is required\u201d). I do not believe this Court should increase such burdens, contrary to precedent, as the majority here has done. Thus, I respectfully dissent.\nHowever, with respect to the issue of punitive damages, I agree that plaintiff failed to meet his burden. \u201cPunitive damages are limited, however, to cases in which the employer has engaged in intentional discrimination and has done so \u2018with malice or with reckless indifference to the federally protected rights of an aggrieved individual.\u2019 \u201d Kolstad v. Ada, 527 U.S. 526, 530-31, 144 L. Ed. 2d 494, 502 (quoting 42 U.S.C. \u00a7 1981a(b)(l)). \u201cApplying this standard in the context of \u00a7 1981a, an employer must at least discriminate in the face of a perceived risk that its actions will violate federal law to be liable in punitive damages.\u201d Id. at 336, 144 L. Ed. 2d at 506. Plaintiff presented no evidence that defendant discriminated against him with the requisite intent, and the jury made no finding that defendant acted \u201cwith malice or with reckless indifference to the federally protected rights\u201d of plaintiff. Thus, I agree that we must vacate the award of punitive damages.\nIn sum, for the reasons discussed above, I believe we should hold that the plaintiff presented sufficient evidence for his case to go to the jury. As a result, we should uphold the jury\u2019s verdict finding discrimination, and affirm the denial of the post-trial motions. However, because the plaintiff presented no evidence to support the award of punitive damages, we should vacate that award and remand for the trial court to enter judgment on the underlying claim of discrimination. Therefore, I respectfully concur in part and dissent in part.", "type": "concurring-in-part-and-dissenting-in-part", "author": "HUDSON, Judge," } ], "attorneys": [ "U. Wilfred Nwauwa for plaintiff-appellee.", "Plummer, Belo & Russell, PA, by Vernon A. Russell, for defendant-appellant." ], "corrections": "", "head_matter": "DAVID B. MILLER, Plaintiff v. BARBER-SCOTIA COLLEGE, Defendant\nNo. COA03-292\n(Filed 7 December 2004)\n1. Civil Rights\u2014 dismissed college professor \u2014 burden of proof not carried\nThe trial court erred by not dismissing a claim for racial discrimination under 42 U.S.C. \u00a7 1981 by a college professor who was dismissed after a dispute with the administration over changing a grade. Plaintiff did not meet his burden of showing that defendant\u2019s stated reason for its action was a pretext.\n2. Civil Rights\u2014 dismissed college professor \u2014 punitive damages \u2014 aggravated conduct \u2014 evidence insufficient\nAssuming, that the trial court properly denied defendant\u2019s motions to dismiss (which it did not) in a claim of racial discrimination by a dismissed college professor, the trial court erred by not granting defendant\u2019s motions for a directed verdict and a j.n.o.v. on punitive damages. The jury made no finding of aggravated conduct and plaintiff\u2019s testimony standing alone is not sufficient, as its probative value is slight and it did not address whether defendant knew that its purported actions were illegal.\nJudge Hudson concurring in part and dissenting in part.\nAppeal by defendant from judgment entered 20 March 2001 by Judge Donna H. Johnson in Cabarrus County District Court. Heard in the Court of Appeals 20 November 2003.\nU. Wilfred Nwauwa for plaintiff-appellee.\nPlummer, Belo & Russell, PA, by Vernon A. Russell, for defendant-appellant." }, "file_name": "0165-01", "first_page_order": 195, "last_page_order": 208 }