PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LESLIE A. ROSS,
Plaintiff-Appellee,

v.

SAINT AUGUSTINE'S COLLEGE, a Non-
profit Corporation; DWIGHT J. FENNELL,
individually and in his official capacity
as Vice-President for Academic
Affairs, Saint Augustine's College;
GREGORY P. SLIGH, individually and in
his official capacity as Senior Class
Advisor, Saint Augustine's College;
JAMES E. BURT, individually and in his
official capacity as Senior Class
Advisor, Saint Augustine's College,
Defendants-Appellants,
                                            No. 95-1949
and

PREZELL R. ROBINSON, individually and
in his capacity as President, Saint
Augustine's College; MARSHALL W.
HARVEY, individually and in his official
capacity as Registrar, Saint
Augustine's College; CHARLES R.
EDWARDS, individually and in his
official capacity as Supervisor of
Postal Services, Saint Augustine's
College; RICHARD L. MOORE, JR.,
individually and in his official capacity
as Coordinator, Division of Social
Sciences, Saint Augustine's College;
UNKNOWN PERSONS,
Defendants.
Appeal from the United States District Court
for the Eastern District of North Carolina at Raleigh.
W. Earl Britt, District Judge.
(CA-93-616-5-BR)

Argued: September 27, 1996

Decided: December 27, 1996

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Michael and Judge Motz joined.

_________________________________________________________________

COUNSEL

ARGUED: Charles Theophilus Francis, WOOD & FRANCIS,
P.L.L.C., Raleigh, North Carolina, for Appellants. Theaoseus Thea-
boyd Clayton, Jr., CLAYTON & BANKS, P.A., Raleigh, North Caro-
lina, for Appellee. ON BRIEF: Bryan E. Wardell, CLAYTON &
BANKS, P.A., Raleigh, North Carolina; Willie O. Dixon, IV, TODD,
PARHAM, HARRIS & DIXON, P.L.L.C., Raleigh, North Carolina,
for Appellee.

_________________________________________________________________

OPINION

NIEMEYER, Circuit Judge:

After Leslie A. Ross testified against St. Augustine's College in a
successful reverse discrimination case by one of its professors, her
fortunes as a student at the college changed dramatically. She sued the
college and seven of its officers and professors for retaliation, and
after a two-week trial, a jury found against St. Augustine's College
and three other defendants, awarding her compensatory and punitive
damages for reckless infliction of emotional distress.

                    2
On appeal, the defendants challenge various evidentiary and trial
rulings made by the district court and contend that the evidence does
not support the verdict. Finding none of the contentions meritorious,
we affirm.

I

As Leslie Ross approached the last semester of her four years at St.
Augustine's College, she had compiled a nearly perfect (3.969/4.0)
grade point average, having received all A's except for one B (in her
first year). She had been elected president of her senior class and had
been selected for membership in several honor societies. She earned
a position on the Dean's List and residency in the Honors Dormitory.
Upon graduation from St. Augustine's College, she planned to attend
law school.

In the last semester of her senior year, Ross was subpoenaed to tes-
tify in a reverse discrimination case brought by Professor Allen Coo-
per, Ph.D., against St. Augustine's College. The Cooper trial involved
charges of racial discrimination, inflaming and dividing the faculty
and students at the historically black institution. Before giving testi-
mony in the Cooper case, one of the St. Augustine's administrators
allegedly approached Ross and urged her to find a means to avoid tes-
tifying. He also requested that she provide the administration with a
summary of her testimony before trial. Ross refused the requests and
testified on behalf of Cooper who ultimately obtained a $745,000 ver-
dict against the college.

After giving testimony on behalf of Professor Cooper, Ross experi-
enced a sudden reversal of fortune at St. Augustine's College. Her
transcripts began to show mysteriously fluctuating grades and, at one
point, her cumulative grade point average appeared to be as low as
2.2. She received five F's and one B in her final semester, and two
earlier incompletions were changed to failing grades. The Social Sci-
ence division and Political Science Department withheld top student
honors from her. In the last days before the end of the school year,
the administration called a meeting of the student body to impeach
her as class president, without having given her notice of the
impeachment proceedings or an opportunity to respond to the charges
against her. Throughout the period of these events, Ross met with var-

                    3
ious members of St. Augustine's administration and was allegedly
falsely assured that they would correct her grades and fix the other
problems in time for graduation. No adjustments were made, how-
ever, and Ross did not graduate. As a result of these events, Ross sus-
tained emotional distress and psychological injury for which she still
receives psychiatric treatment.

Ross filed this action in October 1993 under 42 U.S.C. §§ 1985(2),
1985(3), and 1986. She also alleged several common law torts includ-
ing intentional and negligent infliction of emotional distress.

At trial, Ross testified as the last witness in her case and, on the
advice of her psychiatrist, missed most of the trial. Before she took
the witness stand, several other witnesses testified about what Ross
had said and done during the spring of 1993 in response to St. Augus-
tine's College's actions. The district court described the hearsay testi-
mony of these witnesses as "corroborating" testimony and admitted it
over the defendants' objections. After Ross testified, the defendants
cross-examined her intensely for four days with attacks on her aca-
demic, moral, and personal character in an effort to support their con-
tention that Ross fabricated her oppression to hide her own
irresponsible behavior. During cross-examination, trial was recessed
several times to allow Ross to compose herself after uncontrollable
sobbing.

The jury rendered a verdict in favor of four defendants. It also
found in favor of all defendants on the claims of witness intimidation
and conspiracy to retaliate against Ross in violation of the Civil
Rights Act. But the jury found in favor of Ross against the four
remaining defendants, including St. Augustine's College, based on
their reckless infliction of emotional distress. The jury awarded Ross
$150,000 in compensatory damages and $30,000 in punitive damages,
and the district court awarded Ross costs and prejudgment interest.
This appeal followed.

II

As their principal point of appeal, the defendants contend that on
at least 29 occasions,1 the district court admitted hearsay statements
_________________________________________________________________
1 Appellants claim 29 such statements but provide support for only a
few more than half that number. They provide only 24 record citations

                     4
in violation of Federal Rule of Evidence 801(d)(1)(B) (permitting
admission of prior consistent statements of witness only to rebut
charge of recent fabrication or improper motive) and our decision in
United States v. Bolick, 917 F.2d 135 (4th Cir. 1990) (prohibiting
admission of bolstering hearsay until witness has been impeached).
Despite defendants' objections, the district court admitted testimony
that related what Ross had said during the alleged period of retaliation
at St. Augustine's College for the purpose of corroborating Ross'
promised testimony.2 In doing so, the court instructed the jury as fol-
lows:
_________________________________________________________________
in the relevant footnote of their brief. Moreover, their list of 24 includes
a citation to a period of the trial during which the jury was absent, J.A.
648, to instances in which the trial court sustained defendant's objection,
J.A. 677, 791, and to several occasions when appellants failed to pre-
serve the issue by objecting. See, e.g. , J.A. 664, 812, 848, 884, 899,
1107-08, 1239K.

2 The statements to which objection has been preserved are:

Ross appeared concerned that "the grades that she had . . . gotten had
been changed" and that other actions had been taken against her. J.A.
816.

Ross did not want to send a transcript to law schools which did not
reflect her true level of accomplishment. J.A. 664.

Ross was concerned about difficulty she was experiencing in obtaining
proper credit for classes which she had taken while in England and
appeared afraid that "if she did not receive the credits she felt she was
entitled to and [was] told she could be expected to add to her record, that
she would not graduate in time." J.A. 814-15.

Ross "felt that she had been pressured [about her testimony in the Coo-
per trial]; that actions had been taken against her for her participation in
the suit." J.A. 815-16.

Ross believed that Defendant Edwards had opened her mail. J.A. 817.

Ross believed that she would fit in at a historically black college, that
she "had a personal commitment to support institutions like that." J.A.
819.

After the problems at St. Augustine's College began, Ross "started
complaining of mediastinum pains." J.A. 885.

                     5
          Members of the Jury, what this witness has previously
          testified to and is now being asked to testify to[is] some-
          thing that Miss Leslie Ross told him. Ordinarily that would
          not be admissible because it is hearsay. It is something she
          said out of the courtroom and it is not admissible here.

           However, I have been assured by counsel for plaintiff that
          Miss Ross will testify in this case. This witness can testify
          as to things that Miss Ross told him for the purpose of cor-
          roborating, if you find in fact that it does corroborate, what
          Miss Ross herself will testify to.

           Ordinarily that sequence of events is [that] she would tes-
          tify first and he later. But in order to expedite trial, I am
          going to allow him to go ahead and testify to these things.
          But it is received solely for the purpose of corroborating
          what Miss Ross later testifies to herself, if you find in fact
          that it does corroborate what Miss Ross testifies to.

Defendants contend that because Ross offered the statements to "cor-
roborate" her assertions and to bolster her credibility, they were
admissible under Federal Rule of Evidence 801(d)(1)(B) only if Ross'
credibility had been attacked. Since she had not yet testified, they
argue, the district court should not have admitted the statements in
evidence.

A

Under Federal Rule of Evidence 801(d)(1)(B), a prior out-of-court
statement offered for the truth of the matter asserted is admissible if
_________________________________________________________________
After receiving what she believed to be previously opened mail, Ross
"began ranting and raving" J.A. 1103.

Ross "had plans to go to Mort's [trophy store] . . . and pick out the
senior class awards," making her absent from the meeting at which she
was impeached. J.A. 1110-11.

Ross said "There is so much pressure on me not to testify" and said
that the administrator had told her that "she should rot in jail before she
testified against St. Aug[ustine's College]." J.A. 1117.

                     6
it is "consistent with the declarant's testimony and is offered to rebut
an express or implied charge against the declarant of recent fabrica-
tion or improper influence or motive." But admission of such corrobo-
rating statements before the impeachment of the declarant may
constitute reversible error. See Bolick, 917 F.2d at 138; United States
v. Lowe, 65 F.3d 1137, 1144 (4th Cir. 1995) ("[c]orroborative testi-
mony consisting of prior, consistent statements is ordinarily inadmis-
sible unless the testimony sought to be bolstered has first been
impeached" (citation omitted)).

In Bolick, we determined that the error in failing to obey the
requirements of Rule 801(d)(1)(B) constituted reversible error
because "the government's entire case against Bolick" consisted of
peremptorily bolstered statements from declarants whose "character
for veracity . . . was extremely doubtful." 917 F.2d at 140. Our ruling
was aimed at a trial strategy in which the government "attempt[ed] to
minimize the unpalatability of its witnesses" by substituting the state-
ments of a federal agent for the statements of three felons, two of
whom were testifying on behalf of the government in exchange for
recommendations of a reduced sentence. Id. at 136. As the court
noted, the declarants in Bolick, "might well have worn signs saying,
`Impeach me.'" Id. The policy of our rule in Bolick also recognizes
that a jury would find it nearly impossible to "absorb the distinction
between prior consistent statements as substantive evidence and such
statements as rehabilitation" and then "to condition registration in his
mind of each of the declarations on whether the declarant ultimately
so testified and whether . . . counsel subsequently impeached" the
declarant. Id. at 140.

In the case before us, none of the risks that Bolick sought to fore-
stall were present. The statements attributed to Ross were already bol-
stered by other extensive documentary evidence, and, as promised,
Ross was subjected to extensive cross-examination on every state-
ment attributed to her. Ross was merely allowed to replace her testi-
mony temporarily with testimony of persons with a similar character
for veracity, namely three of Ross' professors and a fellow student.
Moreover, Ross as the declarant of many of the "corroborating" state-
ments was absent not through an attorney's tactics but because of the
advice of her psychiatrist, and she was found by the jury to be resis-
tant to the defendants' substantial efforts to impeach her. When Ross

                    7
was cross-examined for four days at the conclusion of her case-in-
chief, no admitted "corroborating" hearsay statement was left
unlinked to impeachment efforts by the defendants.

Thus, while the district court violated the sequence required by
Rule 801(d)(1)(B) and Bolick, the violation did not, in this case, affect
the "substantial right" of a party. See Fed. R. Evid. 103(a). Accord-
ingly, we conclude that any trial error was harmless.

B

The district court had other grounds on which it might have admit-
ted the challenged statements by considering whether they were hear-
say at all or, if hearsay, whether they fell within other exceptions to
the hearsay rule. Several of the admitted "corroborating" statements
relate to witnesses' direct observations of Ross at the time she felt the
retaliation. For example, witnesses testified that Ross appeared con-
cerned and fearful about what the college was doing to her and that
she began "ranting and raving." Statements that convey direct obser-
vations of the physical appearance and actions of another person are
not hearsay at all, but rather direct evidence of the facts in question.
Although the trial court should not allow such direct observations to
create a back door for otherwise inadmissible hearsay, the trial court
could have allowed as direct evidence those portions of such state-
ments which merely reported Ross' appearance, emotional state, and
actions which the witnesses personally observed.

The district court could also have considered whether hearsay
statements about what Ross said fell within established exceptions
because they described or explained Ross' then existing state of mind,
emotional condition, or mental feelings. Such statements could well
have been admitted under Federal Rules of Evidence 803(1) and 803(3).3
_________________________________________________________________
3 Fed. R. Evid. 803(1) excepts from hearsay "[a] statement describing
or explaining an event or condition made while the declarant was per-
ceiving the event or condition, or immediately thereafter." And Fed. R.
Evid. 803(3) creates a hearsay exception for "[a] statement of the declar-
ant's then existing state of mind, emotion, sensation, or physical condi-
tion (such as intent, plan, motive, design, mental feeling, pain, and bodily
health), but not including a statement of memory or belief to prove the
fact remembered or believed . . . ."

                     8
These rules provide an exception to the hearsay rule because the "sub-
stantial contemporaneity of event and statement negate the likelihood
of deliberate or conscious misrepresentation." Fed. R. Evid. 803 advi-
sory committee's notes; see also 6 Wigmore, Evidence § 1714, at 90-
97 (Chadbourne rev. 1976) (describing the practical necessity of rely-
ing on the declarant's own descriptions of personal condition). For
instance, at the trial witnesses testified that at the time of the alleged
retaliation Ross felt that she had been pressured about her testimony
in the Cooper trial; that she had expressed her fear and belief that an
administrator had opened her mail; and that she started complaining
of mediastinum pains. While witnesses' statements, such as these,
about what Ross had said earlier are probably hearsay, they are
undoubtedly probative of what Ross believed at the time about her
persecution and her then existing state of mind in response to the per-
secution. Such statements would be relevant to her emotional distress
claims.

Admission of the challenged statements under Federal Rules of
Evidence 803(1) and 803(3) also would not have been unfair to the
defendants in this case because they had the ability to cross-examine
Ross concerning the statements when she later testified. While defen-
dants did lose the ability to cross-examine Ross as the declarant when
the jury first heard Ross' words, they also had the ability to cross-
examine the witnesses concerning the circumstances surrounding the
statements, a rehabilitative mechanism that the Civil Rules Advisory
Committee clearly contemplated. See Federal Rule of Evidence 803
advisory committee's notes (noting in regard to statements admissible
under Federal Rule of Evidence 803(1) & (2), "if the witness is not
the declarant, he may be examined as to the circumstances as an aid
in evaluating the statement").

Had the court chosen to admit hearsay statements under the hearsay
exceptions in Federal Rules of Evidence 803(1) & (3), an instruction
limiting such evidence to its proper purposes would have been avail-
able at least for the statement attributed to defendants that "[Ross]
should rot in jail before she testified against St. Augustine's College."
See Fed. R. Evid. 105. But Ross was allowed to testify about this
statement herself without objection, and therefore the absence of a
limiting instruction was harmless. Cf. Shepard v. United States, 290
U.S. 96, 103 (1933).

                     9
In the circumstances of this case, accordingly, we conclude that the
district court committed no reversible error in its evidentiary rulings
at trial.

III

The defendants next contend that the district court erred in denying
their motions for judgment as a matter of law because the evidence
was insufficient to support a jury's verdict on the plaintiff's reckless
infliction of emotional distress claim.

In North Carolina, a plaintiff may prove the tort of infliction of
emotional distress by showing either that the defendant engaged in
"extreme and outrageous conduct, which is intended to cause and
does cause severe emotional distress to another" or the "defendant's
actions indicate a reckless indifference to the likelihood that they will
cause severe emotional distress." Dickens v. Puryear, 276 S.E.2d 325,
335 (N.C. 1981) (emphasis added).

If we credit, as we must in the case's present posture, the testimony
of Ross and other witnesses testifying on her behalf, ample evidence
was presented from which a reasonable jury could have concluded
that St. Augustine's College, acting through its administrators, was
recklessly indifferent to the likelihood that its actions would cause
Ross severe emotional distress. Specifically, evidence presented at
trial showed that Professors Gregory Sligh and James Burt, the two
senior class advisers, disregarded appropriate procedures for impeach-
ing a class president and initiated the vote to impeach Ross while
Ross was out buying awards for her fellow graduating seniors. Simi-
larly, the evidence allows an inference that Dr. Fennell, the Vice Pres-
ident for Academic Affairs, was involved in altering or at least
refusing to correct Ross' transcripts. For example, at one of the meet-
ings shortly before graduation, Dr. Fennell, in the presence of others,
presented Ross with a transcript bearing her name, about which Ross
testified, "All I could see were F's on the transcript." She testified that
after showing Ross that transcript, Dr. Fennell looked up and smiled,
stating, "Mr. President, she will not be graduating." Ross thereupon
became distraught and started "yelling and carrying on." While others
were trying to escort Ross out of the room, Dr. Fennell "sat up there
laughing." From this evidence, the jury could have concluded that St.

                     10
Augustine's College administrators acted with reckless indifference to
the likelihood of inflicting severe emotional distress on a student to
whom they owed special responsibilities as educators.

IV

The defendants also challenge the district court's jury instructions
on the infliction of emotional distress claim, contending that the court
should not have instructed the jury that reckless indifference would
suffice to create liability. We would reverse a jury instruction error
only if it were prejudicial, based on a review of the record as a whole.
Sturges v. Mathews, 53 F.3d 659, 663 (4th Cir. 1995). The defen-
dants' argument, however, fails to recognize that North Carolina's
tort of infliction of emotional distress may be proved by evidence of
either intent to cause severe emotional distress or reckless
indifference to the likelihood of resulting severe emotional distress.
See Dickens, 276 S.E.2d at 332.

V

The defendants contend that the district court erred in submitting
the issue of punitive damages to the jury because the evidence did not
support an award of punitive damages. Again, we find no merit to the
contention. The evidence already recounted in this opinion, if
believed, would support a claim of maliciousness, wantonness, or
recklessness on the part of the defendants, and that is what North Car-
olina law requires to support a claim for punitive damages. See
Stanback v. Stanback, 254 S.E.2d 611, 623 (N.C. 1979).

VI

Finally, the defendants contend that the district court unjustly
assessed plaintiff's costs against them, particularly in view of the fact
that they succeeded in their defense of the claims under the Civil
Rights Act. The district court, however, enjoys broad discretion in
taxing costs pursuant to Federal Rule of Civil Procedure 54(d), and
our review is only for an abuse of discretion. See Flint v. Haynes, 651
F.2d 970, 973 (4th Cir. 1981), cert. denied, 454 U.S. 1151 (1982).
While the defendants did succeed on many of the claims alleged

                     11
against them, Ross succeeded on a significant portion of her claim,
recovering substantial damages. In the circumstances, we cannot con-
clude that the district court abused its discretion.

Finding no reversible error, the judgment of the district court is

AFFIRMED.

                     12
