                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 04-1955



VIENNA D. SPENCER,

                                              Plaintiff - Appellant,

          versus


JOHN ASHCROFT, Attorney General,

                                               Defendant - Appellee.


Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonard D. Wexler, Senior
District Judge, sitting by designation. (CA-03-515-1)


Submitted:   August 26, 2005            Decided:   September 21, 2005


Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Donna W. Rucker, DUBOFF & ASSOCIATES, Silver Spring, Maryland, for
Appellant.   Paul J. McNulty, United States Attorney, Rachel C.
Ballow, Assistant United States Attorney, Alexandria, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

            After twenty years of employment at the Drug Enforcement

Agency (“DEA”), Vienna D. Spencer left her position as an employee

relations specialist in the DEA’s Office of Personnel in 1998.

Although Spencer applied for disability retirement, she claimed

that she did so because the DEA failed to provide her with

reasonable accommodations that would have enabled her to continue

to perform her job.          Accordingly, Spencer filed suit against

Appellee John Ashcroft, Attorney General (the “Attorney General”),

alleging:     (1) a violation of the Rehabilitation Act of 1973, 29

U.S.C. §§ 701-797 (2000) (the “Rehabilitation Act”), based on her

employer’s failure to provide reasonable accommodations; (2) a

violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§§ 2000e to 2000e-17 (2000) (“Title VII”), based on her race

(African-American);    and    (3)   that    she   had   been   constructively

discharged from the DEA because she was forced to work without

reasonable accommodations.

            On June 22, 2004, a jury trial was held and on June 24,

2004, the jury returned a defense verdict on the two counts

submitted to it for decision.       First, the jury found that Spencer

was unable to perform the essential functions of her job, with or

without reasonable accommodations.           Second, the jury found that

Spencer was not intentionally discriminated against on the basis of

her race.    Spencer’s final claim, constructive discharge, was not


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before the jury because the district court had previously dismissed

that   charge    because   Spencer   failed        to     exhaust    available

administrative remedies.    We affirm.

            Spencer’s first issue on appeal is that the jury’s

verdict was against the weight of the evidence.            Spencer, however,

failed to move for judgment as a matter of law at the close of the

evidence.   Thus, this court’s review is limited to “whether there

was any evidence to support the jury’s verdict, irrespective of its

sufficiency, or whether plain error was committed which, if not

noticed, would result in a ‘manifest miscarriage of justice.’”

Bristol Steel & Iron Works, Inc. v. Bethlehem Steel Corp., 41 F.3d

182, 187 (4th Cir. 1994).

            Moreover, the Rehabilitation Act provides that “[n]o

otherwise qualified individual with a disability in the United

States . . . shall, solely by reason of her or his disability, be

excluded from the participation in, be denied the benefits of, or

be subjected to discrimination . . . under any program or activity

conducted by any Executive agency.”      § 794(a).        The Rehabilitation

Act    imposes   on   agencies   a   duty     to        provide     “reasonable

accommodations” to a disabled employee who could perform a job's

essential functions with such accommodations, unless the provision

of accommodations would place an “undue hardship” on the agency.

42 U.S.C. § 12112(b)(5)(A) (2000).       Based on a careful review of




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this record, we find that ample evidence supports the jury’s

verdict.

              Spencer next argues that certain comments of the district

court prevented her from receiving a fair and impartial trial.

Because “[i]t was the jury, not the trial judge, that found” for

Spencer, “to argue that she was deprived of a fair trial,” Spencer

must show that the judge's comments “somehow affected the outlook

or deliberations of the jurors.”          Rowsey v. Lee, 327 F.3d 335, 342

(4th Cir. 2003).      Although Spencer did not object at trial to the

court's    comments,      “where   a    trial    judge’s   comments     were   so

prejudicial as to deny a party an opportunity for a fair and

impartial trial, the absence of objections will not preclude this

Court’s review since counsel will be loathe to challenge the

propriety of a trial judge’s utterances for fear of antagonizing

him and thereby prejudicing a client's case.”              Stillman v. Norfolk

& W. Ry. Co., 811 F.2d 834, 839 (4th Cir. 1987).                   The Supreme

Court,    however,     has   ruled     that    “expressions   of   impatience,

dissatisfaction,         annoyance,     and     even   anger”--an       accurate

description of all of the comments to which Spencer now objects--do

“[not] establish[ ] bias or partiality” on the part of a judge.

Liteky v. United States, 510 U.S. 540, 555-56 (1994). Against this

background, and again, a comprehensive review of this record, we

find that Spencer did not demonstrate that she was prejudiced by

the   trial    judge’s    comments.       Moreover,    the    judge’s    lengthy


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instructions, both at the beginning and end of the trial, that

“[n]othing the Court may say or do during the course of the trial

is intended to indicate nor should be taken by you as an indication

of what your verdict should be” cured any prejudice that might have

arisen from these comments. See, e.g., United States v. Villarini,

238 F.3d 530, 537 (4th Cir. 2001) (citations omitted).

            Finally,    Spencer     contends       that   the     district    court

improperly dismissed her claim for constructive discharge.                      The

Rehabilitation Act expressly incorporates the standards of the

Americans with Disabilities Act (ADA).               § 794(d).         The ADA, in

turn, follows the “powers, remedies and procedures” set forth in

Title VII of the Civil Rights Act of 1964, as amended.                       See 42

U.S.C. § 12117(a) (2000).            Thus, like a Title VII plaintiff,

Spencer was required to exhaust her administrative remedies before

instituting a lawsuit.        See Brown v. Gen. Servs. Admin., 425 U.S.

820, 829-32 (1976).

            Exhaustion of administrative remedies may be satisfied

where the claim in question is sufficiently related to properly

exhausted      claims   to   be    within    the     scope   of    a    reasonable

investigation.     See, e.g., Ong v. Cleland, 642 F.2d 316, 319 (9th

Cir.   1981)    (absence     of   perfect    "fit"    between     administrative

complaint and Title VII charge not necessarily fatal, especially

since Title VII's procedural requirements are not to be interpreted

too technically or applied too mechanically).                Nevertheless, the


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Supreme   Court   has    made   clear   that     a   claim   for   constructive

discharge is not necessarily saved by the “continuing violations”

doctrine.   See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,

114 (2002) (termination and failure to promote acts are discrete

acts requiring exhaustion); see also Young v. Nat’l Ctr. for Health

Serv. Research, 828 F.2d 235, 237-38 (4th Cir. 1987) (citations

omitted) (constructive discharge is a discrete discriminatory act

requiring administrative exhaustion).            We find that Spencer failed

to demonstrate that her claim for constructive discharge was

“imbedded” within her EEO complaint.             As a result, this claim is

without merit.

            Accordingly, we affirm the judgment in favor of the

Attorney General, in addition to the dismissal of Spencer’s claim

for constructive discharge. We dispense with oral argument because

the facts and legal contentions are adequately presented in the

materials   before      the   court   and     argument   would     not   aid   the

decisional process.



                                                                         AFFIRMED




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