                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 09-2051


MELANIE PITROLO,

                Plaintiff – Appellant,

          v.

COUNTY OF BUNCOMBE, NC; BRITT LOVIN; DEAN KAHL; LOYD KIRK;
VONNA CLONINGER; WESTERN NORTH CAROLINA REGIONAL AIR QUALITY
AGENCY BOARD OF DIRECTORS; WESTERN NORTH CAROLINA REGIONAL
AIR QUALITY AGENCY,

                Defendants – Appellees.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (1:06-cv-00199-MR-DLH)


Submitted:   November 24, 2010           Decided:   January 11, 2011


Before TRAXLER, Chief Judge, and WILKINSON and SHEDD, Circuit
Judges.


Vacated and remanded by unpublished opinion. Judge Shedd wrote
the opinion, in which Chief Judge Traxler and Judge Wilkinson
joined.


Michael G. Wimer, WIMER & JOBE, Asheville, North Carolina, for
Appellant.   Thomas J. Doughton, Amy L. Rich, DOUGHTON & HART,
PLLC, Winston-Salem, North Carolina, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
SHEDD, Circuit Judge:

       Melanie Pitrolo filed this action under Title VII claiming

that the County of Buncombe, the Western North Carolina Regional

Air Quality Agency, the Agency Board of Directors, Britt Lovin,

Dean    Kahl,      Loyd      Kirk,     and              Vonna     Cloninger            (collectively

“Buncombe      County”)      failed       to    promote           her       to   the    position    of

Interim Director because of her gender.                               After a jury decided in

Pitrolo’s favor, the district court granted Buncombe County’s

renewed motion for judgment as a matter of law and entered an

amended      judgment     in    favor          of       Buncombe        County         and    ordering

Pitrolo to pay Buncombe County’s costs.                                 Pitrolo now appeals.

For    the     following       reasons,         we       vacate        the       district     court’s

amended judgment, reinstate the jury verdict, and remand the

case.

                                                I.

       This is Pitrolo’s second appeal in this case.                                   In the first

appeal, we vacated the grant of summary judgment in favor of

Buncombe       County   on     Pitrolo’s        Title           VII    gender       discrimination

claim and remanded that claim for further proceedings.                                        Pitrolo

v. County of Buncombe, No. 07-2145, 2009 WL 1010634 (4th Cir.

Mar. 11, 2009).           In the summary judgment record,                               Pitrolo had

testified       that,   shortly       after             an   Agency         Board      of    Directors

meeting regarding the Interim Director position, Agency Director

Bob    Camby    reported       to   her    that           there       was    opposition        to   her

                                                    2
becoming the future leader of the Agency because of her age and

gender.      We   held    that       Camby’s     statement   to   Pitrolo     was

admissible    evidence    as     a     “party-opponent       admission”     under

Federal Rule of Evidence 801(d)(2).               Importantly, we found the

statement constitutes direct evidence of gender discrimination

sufficient to defeat summary judgment.

     On remand, a jury found that gender was a motivating factor

in Buncombe County’s decision not to promote Pitrolo but also

found that Buncombe County would have denied her the promotion

in the absence of consideration of her gender.                Accordingly, the

jury did not award Pitrolo damages.               The district court denied

Pitrolo’s    post-trial   motion       for     declaratory   relief,   attorney

fees and costs, and granted Buncombe County’s renewed motion for

judgment as a matter of law. *               The district court entered an

amended judgment dismissing Pitrolo’s action with prejudice and

ordering that Buncombe County recover costs from Pitrolo.


     *
       Buncombe County moved for judgment as a matter of law at
the end of the trial, arguing that Camby’s statement was not
sufficient evidence to support a jury verdict in favor of
Pitrolo.   In denying that motion, the district court stated:
“[Y]ou’re fully aware . . . two judges previously were of the
opinion that that was not an adequate basis to keep the case
alive, but three judges disagreed, so I’m going to keep it alive
for them to review again if the jury verdict is adverse to the
position of the plaintiff in this case and give them an
opportunity to review it. So I’m going to let the jury decide
that tomorrow, and we’ll all see at that time what they come up
with.” J.A. 544.



                                        3
                                        II.

       We review de novo a district court's ruling on a motion for

judgment as a matter of law.             Dennis v. Columbia Colleton Med.

Ctr., 290 F.3d 639, 644-45 (4th Cir. 2002).                           Importantly, a

“Rule 50(b) motion for judgment as a matter of law follows the

same standard as a Rule 56 motion for summary judgment.”                        Id. at

644.     Thus, when a jury has returned a verdict, the district

court may grant a Rule 50(b) motion for judgment as a matter of

law only if, “viewing the evidence in a light most favorable to

the non-moving party (and in support of the jury's verdict) and

drawing every legitimate inference in that party's favor, the

only conclusion a reasonable jury could have reached is one in

favor of the moving party.”             Int’l Ground Transp., v. Mayor &

City   Council    of   Ocean    City,    475    F.3d    214,    218-19    (4th      Cir.

2007).       If reasonable minds could differ, we must affirm the

jury’s    verdict.     Dennis,    290    F.3d    at     645.      In    drawing     all

reasonable inferences in favor of the non-movant, a court may

not    weigh    the    evidence   or     assess       the    credibility       of   the

witnesses.      Id.

       We find that Camby’s statement is sufficient evidence to

support   the    jury’s   verdict.        The    law    of     this    case   is    that

Camby’s    statement       constitutes         direct       evidence     of     gender

discrimination sufficient to defeat summary judgment.                         Thus, at

a   minimum,     the   jury    could    reasonably      conclude       from    Camby’s

                                         4
statement      that    Pitrolo’s       gender     was    a     motivating    factor   in

Buncombe      County’s       decision    not     to    hire     her.      Although    the

district      court    may    differ    with     the    jury’s       conclusions,    Rule

50(b) does not permit the court to weigh the evidence or assess

the credibility of the witnesses –- to do so is to usurp the

fact-finding role of the jury.                   Therefore, the district court

erred    in    finding       that   Pitrolo      had    not    presented     sufficient

evidence to support the jury’s finding and that a reasonable

jury could not have inferred from Camby’s statement that gender

was a motivating factor in Buncombe County’s decision not to

promote Pitrolo.

     We note that the district court denied Pitrolo’s post-trial

motion for attorney fees and costs because, under the amended

judgment,      she    did     not   prevail      on    her     “mixed-motive”     claim.

However, with the reinstatement of the jury’s verdict, Pitrolo

is   now      the    prevailing     party.       See    Hill    v.     Lockheed   Martin

Logistics Mgmt., 354 F.3d 277, 284 (4th Cir. 2004) (en banc),

cert. dismissed, 543 U.S. 1132 (2005) (citing 42 U.S.C. § 2000e-

2(m)).     As such, she is entitled to seek “declaratory relief,

injunctive relief, and attorney's fees and costs demonstrated to

be directly attributable” to her mixed-motive claim.                        Id.




                                             5
                                      III.

        For the foregoing reasons, we vacate the district court’s

amended judgment and order granting Buncombe County’s motion for

judgment    as    a   matter   of   law,       ordering   that     Buncombe   County

recover costs from Pitrolo, and denying Pitrolo’s motion for

declaratory relief, attorney fees and costs.                     We reinstate the

jury verdict and judgment in favor of Pitrolo, and we remand the

matter for reconsideration of Pitrolo’s post-trial motion for

declaratory relief and attorney fees and costs in light of our

holding.     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.

                                                             VACATED AND REMANDED




                                           6
