No. 08-1270
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:
Decided:
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
The
district
court
granted
summary
judgment
to
the
jury found for the Cooperative on the Title VII retaliation and
South Carolina Payment of Wages Act claims.
Keeshan appeals,
the
Keeshan
wrongful
to
discharge
disclose
her
claim,
(2)
ruling
post-termination
that
income
required
on
cross-
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
was
part
July
of
2004.
medical
2
Her
employment
school
with
the
scholarship
she
The
scholarship
her
required
residency
at
services
to
an
Keeshan
to
NHSC-approved
traditionally
Cooperatives
spend
director,
four
site
that
Stuart
after
provides
underserved
Dr.
years
medical
populations.
Hamilton,
also
The
an
NHSC
of
Carolina.
the
Eau
Claire
community
in
Columbia,
South
nine
facilities,
opened in 1997.
including
an
OB-GYN
practice
that
she
obligation,
would
requirement.
left
the
remain
Hamilton
after
Cooperative,
other
completing
it
the
possibility
four-year
NHSC
considered
OB-GYNs
during
Keeshan
the
sole
physician
and
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
Hashanah,
the
Cooperative
and
the
first
would
day
give
of
her
Passover
Yom
as
terminated
occurrences
as
that
hereinafter
could
trigger
provided.
termination
S.A.
of
97.
the
The
contract
Material
breach
of
contract
by
[Keeshan]
or
[the
S.A. 98.
If any
smoothly
employment
for
the
with
first
the
couple
Cooperative
of
proceeded
years.
Hamilton
Cooperative
over
her
appointment
4
scheduling
and
billing
documentation.
The
Cooperative
could
not
discern
which
Additionally, Hamilton
of
the
Cooperatives
federal
funding.
Nonetheless,
2003
Following
reschedule
Keeshan
a
requested
meeting
her
in
surgery
time
which
due
off
for
Hamilton
to
another
elective
asked
In
surgery.
Keeshan
physicians
to
absence,
Keeshan sent Hamilton an email saying that she found his request
insensitive
and
inappropriately
presented
in
front
of
other
staff.
due
Keeshans
to
use
of
the
phrase
rip
me
new
one
to
and insulting.
J.A. 136.
and
thought
that
her
professional
with
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
Womens
Health
responsibilities.
benefits
to
and
assumed
This
did
decrease.
Keeshans
not
Keeshan
cause
felt
took
offense
to
Daviss
omission
Keeshans
that
administrative
Davis
salary
took
or
every
In particular, Keeshan
of
the
title
Doctor
when
February
within
three
2004
days
Hamilton
of
each
J.A. 40.
gave
Keeshan
other.
One
two
written
was
for
an
reform.
The
letter
appeared
in
South
Carolinas
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
Cooperatives
written
to
patients,
and
in
stark
contrast
to
the
of
their
economic
status.
6
S.A.
108.
The
Cooperative
reprimanded
its
other
OB-GYNs
who
signed
this
reach
Keeshan,
but
he
received
an
containing
The
No
Keeshan.
Keeshans
merit.
The
complaints
grievance
regarding
committee
her
written
concluded
warnings
that
lacked
complaints
about
Davis,
decide
that
the
Cooperative
should
On
February
memorandum requesting
23,
2004,
Keeshan
filed
Hamilton
wrote
discrimination
complaint
the
Cooperatives
with
Hamiltons
consent,
subjected
Keeshan
to
unfair
Her complaint
restored
Health.
to
her
original
position
as
Director
of
Womens
days
after
receiving
Keeshans
request
for
Keeshan
proposed
agreement.
that
Keeshans
reduce
the
level
of
tension
that
has
arisen
there;
(2)
for
warning
the
remainder
letter
of
her
regarding
NHSC
term;
Keeshans
(3)
remove
unauthorized
the
on-call
to
rotate
through
Keeshans
new
office;
and
(5)
of
this
agreement
proposed
that,
are
in
in
effect.
return,
S.A.
Keeshan
167-68.
rescind
her
to
the
proposed
relocation
and
S.A. 168.
did
not
Keeshan
accept
the
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
EEOC.
discrimination
and
The
was
complaint
Keeshan
After she
to
federal
court
in
the
District
of
South
Carolina.
and
claims
unpaid wages.
the
Cooperative
under
state
law
for
wrongful
discharge
and
Keeshans
Title
VI
claims,
Title
VII
Keeshans
Title VII retaliation claim and her unpaid wages claim proceeded
to a jury trial in February 2008.
B.
Over objection from Keeshans counsel, the jury heard
Keeshan
testify
on
cross-examination
about
her
income
after
after 2005 was irrelevant because she was not seeking back pay
for
any
period
responded
that
after
her
that
year.
current
income
The
Cooperatives
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.
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
was
salary.
unduly
prejudiced
after
learning
of
her
$300,000
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.
Keeshans
party.
motion
and
taxed
J.A. 373-74.
Keeshan
with
costs
as
the
losing
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 Cooperatives
costs.
II.
A.
We first address the district courts grant of summary
judgment
to
discharge
Cooperative
claim.
discharged
wages
the
in
under
Keeshan
retaliation
South
on
Keeshans
maintains
for
her
civil
unlicensed
practice
rights,
of
she
law
was
wrongful
wrongfully
asserting
her
right
to
Payment
of
Wages
Act,
for
aid
the
Carolinas
exercising
that
state
and
medicine
for
and
refusing
insurance
to
fraud.
unpaid
This
exception
exception
permits
discharge
of
an
to
a
the
employment
cause
at-will
of
action
employee
at-will
where
doctrine.
the
constitutes
The
retaliatory
violation
of
The exception
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
Keeshans
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
employee
was
essentially
at-will.
The
contract
allowed
Id. at 450.
supreme
provision
court
reasoned
that
the
notice
The
was
so
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.
the contract would continue from year to year absent one of the
specified
termination-triggering
occurrences.
The
notice
in
Stiles.
definite
durational
The
term,
contract
whereas
in
Stiles
Keeshans
contained
contract
no
provided
that it would remain in effect for one year from the date
13
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 Hamiltons 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
Keeshans
employment with the Cooperative ended on July 17, 2004, 132 days
later.
the
parties
Indeed,
ability
Keeshan
herself
to
invoke
interpreted
the
the
notice
notice
She
testified
his
that
during
her
discussion
with
Hamilton
over
14
in
the
the
other
contract
Otherwise
S.A. 74.
termination-triggering
(death,
total
disability,
events
material
unlike
the
Cooperative
parties
had
relationship.
Stiles,
in
unbounded
neither
discretion
to
Keeshan
end
the
nor
the
employment
term of one year and limited the time period during which the
parties could invoke the notice provision.
B.
We now turn to Keeshans argument that her compelled
cross-examination
testimony
on
her
income
after
leaving
the
her.
on
the
trial
court
admissibility
possesses
of
broad
evidence,
and
discretion
we
will
in
not
States
v.
Hedgepeth,
418
F.3d
411,
418-19
(4th
Cir.
acted
arbitrarily
or
irrationally
in
admitting
evidence,
to
be
erroneous,
harmlessness.
we
If an evidentiary ruling is
then
review
the
error
for
pondering
erroneous
action
all
that
from
the
happened
whole,
without
that
the
stripping
judgment
the
was
not
F.3d 311, 325 (4th Cir. 1995) (internal citations and quotations
omitted).
We
agree
with
Keeshan
that
the
district
courts
discretion.
The
court
found
the
testimony
relevant
to
damages
from
demonstrates
private
that
the
if
respondent
recovery of
the
complaining
engaged
in
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
perceived
risk
that
its
Most often
defendants
added).
motive
or
intent.
Id.
at
538
(emphasis
The
17
the
law
as
stated
by
the
court
and
not
to
decide
based
on
stripping
the
erroneous
action
from
the
in
omitted).
burden
original)
shifts
to
the
(internal
defendant
citations
to
and
Id.
articulate
quotations
legitimate
of
prima
facie
discrimination
and
the
causal
activity.
filed
action
the
between
she
adverse
claim:
connection
before
the
retaliation
complaint.
protected
Hamilton
And Keeshan
sent
the
to
which
Hamilton
took
offense
in
May
2003,
email.
S.A.
102.
The
jury
could
therefore
find
that
record
terminated
supports
her
interpersonal
for
the
legitimate,
conflicts
contribution
to
conclusion
with
the
Cooperative
nonretaliatory
Davis
friction-laden
that
and
reason:
Hamilton
atmosphere
in
and
the
her
her
OB-GYN
whether
the
Cooperative
terminated
Keeshan
in
us
Keeshans
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
to
the
find
Heater, 63
salary.
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 Keeshans
Payment of Wages Act claim.
contention
that
the
unlawfully
withheld
settlement
in
an
amount
equal
to
the
difference
S.A. 95.
Keeshans
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
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
person
or
payor
for
care
or
services
rendered
by
S.A. 200-01.
Dr.
When
of
more
verdict
disputed
her
the
collected
accuracy
accurate
for
the
from
fees,
which
but
we
Cooperative
of
she
can
was
the
Cooperatives
did
not
conclude
so
offer
that
off-base
as
the
to
Keeshans
financial
sums
were
status
the
time
of
trial.
calculated
at
and
explained
how
insurance
was
because
Keeshan
21
billed
nurse
practitioner
number
of
patients
but
in
reality,
the
nurse
J.A. 108.
J.A. 109.
productivity
the
Cooperative
rehired
Keeshans
in
the
billings
record
to
from
2000
indicate
to
that
2002.
the
We
jury
find
accepted
testimony
conviction.
on
the
numbers
was
not
overflowing
with
J.A. 200.
J.A. 266-67.
more than fairly assured that the jurys verdict on the Wages
Act
claim
was
not
substantially
swayed
by
the
22
erroneously
were
not
substantially
swayed
by
the
erroneously
of
the
result
in
evidence,
is
based
on
miscarriage
of
justice,
false
he
evidence
must
set
or
aside
will
the
Engg
51
Corp.,
F.3d
1229,
1237
decision
save
in
the
most
(4th
Cir.
1995)
(internal
circumstances
Works v. Bethlehem Steel Corp., 41 F.3d 182, 186 (4th Cir. 1994)
(internal citations and quotations omitted).
In
support
of
her
motion
for
new
trial,
Keeshan
The
Cooperative
contends
that
this
affidavit
J.A.
is
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.
jurors
testimony
on
from
mental
Keeshans
Id.
characterized
her
precluded
as
Keeshans
the
jury,
not
discretion
evidence
in
concluding
outweighed
testimony.
any
that
possible
the
clear
prejudice
weight
from
of
the
Keeshans
court
we
should
take
not
up
Keeshans
have
imposed
argument
costs
on
that
her
as
the
the
that
this
argument
was
not
preserved
for
appeal
she
costs.
was
challenging
the
district
courts
imposition
of
appealed.
We
liberally
construe
Rule
3(c)s
Spence v.
Educ. Credit Mgmt. Corp. (In re Spence), 541 F.3d 538, 543 (4th
24
Cir. 2008).
[A]n
of
judgment
appeal
can
as
be
long
as
fairly
the
intent
inferred
and
to
the
appeal
specific
appellee
is
not
appellant
simply
needs
to
address
the
merits
of
Id.
Plaintiffs
Motion
for
New
Trial.
J.A.
378.
The
and
Cooperative
the
Cooperative
has
not
shown
responded
prejudice
25
in
from
its
brief.
Keeshans
lack
The
of
specificity
in
the
notice.
Keeshans
costs
challenge
is
Keeshan
acknowledges,
her
contention
that
costs
of
discretion.
costs
is
Champion
reviewed
Intl
for
abuse
186
F.3d
Corp.,
of
442,
446
(4th
Cherry
Cir.
v.
1999).
party,
circumstances
court
including:
may
not
misconduct
do
by
so
the
except
in
prevailing
rare
party
value
[of
the
of
the
costs]
in
prevailing
particular
partys
victory;
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.
attorneys fees from the losing plaintiff unless the court finds
that
the
plaintiffs
claim
was
frivolous,
unreasonable,
or
clearly
became
so.
Christiansburg
Garment
Co.
v.
Equal
losing] party.
Mineta, 448 F.3d 783, 794 (5th Cir. 2006) (Every circuit to
expressly
address
the
question
in
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
therefore
urges
us
to
reverse
Cherry
and
extend
overrule
the
decision
United
Collins,
415
F.3d
of
304,
311
prior
(4th
panel.
Cir.
2005).
States
v.
Moreover,
we
were
taxed
with
defendants
attorneys
fees,
this
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
attorneys
The
Whereas
fees
of
the
rationale
the
would
burden
of
for
this
magnitude
and
deter
parties
with
28
fees,
small.).
And,
as
the
Seventh
Circuit
has
Rule
54(d)
would
have
little
substance
remaining.
Popeil Bros. v. Schick Elec., Inc., 516 F.2d 772, 776 (7th Cir.
1975).
costs
and
41-10-80(C).
reasonable
The
attorneys
statute
allows
fees.
S.C.
prevailing
Code
Ann.
plaintiffs
to
costs
of
their
successful
opponents.
Therefore,
Rule
29
III.
For
the
foregoing
reasons,
the
judgment
of
the
district court is
AFFIRMED.
30