UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

TOM CHESTER,
Plaintiff-Appellee,

v.

WISE COUNTY ELECTORAL BOARD;
TERESA JORDAN, Individually and in
her capacity as a member of the
Wise County Electoral Board; DAN
MCCOY, Individually and in his
capacity as a member of the Wise
County Electoral Board; DAVID                             No. 95-3092
AUDAS, Individually and in his
capacity as a member of the Wise
County Electoral Board,
Defendants-Appellants,

and

PATTI CHURCH, Individually and in
her capacity as a member of the
Wise County Electoral Board,
Defendant.

Appeal from the United States District Court
for the Western District of Virginia, at Big Stone Gap.
Samuel G. Wilson, Chief District Judge.
(CA-95-37-B)

Argued: May 8, 1997

Decided: July 11, 1997

Before MURNAGHAN and HAMILTON, Circuit Judges, and
CURRIE, United States District Judge for the
District of South Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Steven Ray Minor, ELLIOTT, LAWSON & POM-
RENKE, Bristol, Virginia, for Appellants. Gerald L. Gray, THE
GERALD GRAY LAW FIRM, Clintwood, Virginia, for Appellee.
ON BRIEF: Edward G. Stout, BRESSLER, CURCIO & STOUT,
P.C., Bristol, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Appellee Tom Chester, General Registrar for Wise County, Vir-
ginia, brought this civil rights action pursuant to 42 U.S.C. § 1983
claiming that the failure of the Wise County Electoral Board to reap-
point him in March 1995, was due to his Democratic political affilia-
tion. Named as defendants were the Wise County Electoral Board
(hereinafter "the Board"), its two Republican members, Teresa Jordan
and Dan McCoy, both of whom had voted against Chester's re-
appointment, and David Audas, the successor General Registrar.1 Fol-
lowing a two-day trial, the jury returned a verdict against the Electoral
Board,2 Jordan and McCoy. The trial judge ordered Chester's rein-
_________________________________________________________________
1 Also named as defendant was Board member Patti Church, a Demo-
crat who had voted to reappoint Chester to the Registrar position. The
jury did not return a judgment against Church and she therefore is not
participating in this appeal.
2 Because the parties had stipulated judgment was to be entered against
the individual defendants only, the court, by order filed November 21,
1995, amended the judgment to correct this. (J.A. 617).

                    2
statement, effective November 8, 1995. Appellants contend: (1) that
the district court erred in denying their motions for judgment as a
matter of law based on insufficiency of evidence of unlawful motiva-
tion; (2) that the district court abused its discretion in ordering equita-
ble relief in the form of reinstatement; and (3) that the district court
erred in several of its evidentiary rulings. Finding no error, we affirm.

I.

On April 1, 1983, Chester first assumed the duties of General Reg-
istrar of Wise County. In Virginia, the General Registrar conducts
voter registration and elections. VA. CODE ANN. § 24.2-114 (Michie
1997). The county General Registrar is appointed to a four-year term
by a majority of the three member county Electoral Board. Id. § 24.2-
110. The members of the Electoral Board are appointed by the circuit
court for three year terms. Two members of the Board must, however,
be from the same political party as the Governor. Id. § 24.2-106. The
political parties recommend nominees to the circuit court for Board
positions. Id.

Upon the expiration of a Registrar's four-year term, the county
Electoral Board is not required to advertise the availability of this
position if the incumbent Registrar will be reappointed. (J.A. 367).
However, it is impermissible to fail to reappoint a General Registrar
on account of political affiliation. Id.

In 1993 Chester was embroiled in marital difficulties with his
estranged wife Phyllis. An incident occurred at a local supermarket
between Chester and Ronald McMurray, his wife's alleged paramour.
As a result of this altercation, Chester pled guilty to a violation of the
"cursing and abusing" statute3 in Wise County Circuit Court.
_________________________________________________________________
3 The cursing and abusing statute provides:

          If any person shall, in the presence or hearing of another, curse
          or abuse such other person, or use any violent abusive language
          to such person concerning himself or any of his relations, or
          otherwise use such language, under circumstances reasonably
          calculated to provoke a breach of the peace, he shall be guilty of
          a Class 3 misdemeanor.

VA. CODE ANN. § 18.2-416 (Michie 1997).

                     3
In November 1993, a Republican Governor of Virginia was
elected, which necessitated a change in the political composition of
the Wise County Electoral Board. Two Republicans, Jordan and
McCoy, were appointed to the Board in late 1993 and the spring of
1994, respectively. The Democratic member, Patti Church, joined the
Board in September 1994. McCoy had formerly been an active Dem-
ocrat but as a result of a slight by the local Democratic party inflicted
on his sister, McCoy switched parties and became an active Republi-
can. He vowed he would fight Democrats as long as he lived. Jordan,
too, had been active in Wise County Republican politics. The Board
became Republican-controlled upon McCoy's appointment.

The Board determines the number and term of field representatives,
also known as assistant registrars. Id.§ 24.2-112 (Michie 1997).
McCoy spoke to Chester about changing the assistant registrars.
McCoy told Chester that Jordan would bring a list of prospective
appointees to Chester. A few days later Jordan delivered a list of
names of persons to be appointed assistant registrars. The list had
come from Paul Varson, the Chairman of the Wise County Republi-
can Party. Nearly all the individuals on the list had previously been
active Republicans. Chester directed letters to the individuals, nearly
all of whom were later appointed.

On September 25, 1994, Chester had another altercation with Ron
McMurray, at a football practice for Chester's son in Smyth County,
Virginia. McMurray claimed Chester assaulted him and spit in his
face while McMurray was helping coach the team, whereas Chester
claimed that McMurray intentionally stepped on his foot and threw a
football at him. Chester was charged with committing a misdemeanor
assault and battery. Jordan learned of the pending charges in an anon-
ymous telephone call she received on October 24, 1994. Jordan there-
after confirmed that a warrant had been served on Chester by the
Sheriff and sought advice from the Wise County Commonwealth
Attorney, Tim McAfee, about terminating Chester. McAfee advised
against terminating Chester until after trial of the criminal case. Ulti-
mately, in December 1994, Judge Tate of the Smyth County General
District Court found Chester guilty of the lesser charge of curse and
abuse, and fined him $250.

Chester's tenure as Registrar was to expire on March 31, 1995. At
a February 3, 1995, meeting, the Board considered whether it should

                     4
advertise the General Registrar position. By a 2-1 vote, Jordan and
McCoy voted to advertise the position in a local paper. Jordan
announced that she did not intend to vote for Chester because of the
second conviction for curse and abuse. Jordan contacted the Virginia
Employment Commission to advertise the Registrar position. McCoy
indicated that Chester would be free to apply for the position like all
other candidates.

At a February 14, 1995, Board meeting, controversy erupted over
Chester's qualifications for the position, and Jordan's decision not to
vote for Chester. At another Board meeting on February 27, 1995, the
Board reviewed 28 applications and agreed to interview six candi-
dates, including Chester and Audas. Interviews were conducted on
March 3, 1995, and the vote was taken on March 6, 1995. At that
meeting Ms. Church moved to reappoint Chester, but the motion
failed for lack of a second. Jordan and McCoy voted in favor of
Audas, who had previously been active in Republican politics and
who had served as campaign chairman for an unsuccessful Republi-
can congressional candidate. McCoy stated that the reason he had not
voted to reappoint Chester was because he had recently applied for
the vacant Circuit Court Clerk's position, which McCoy maintained
Chester was prohibited from pursuing, and because of an alleged dis-
closure of confidential matters discussed in the Registrar's office. Jor-
dan stated that she voted against Chester because of his curse and
abuse convictions.

Chester initiated suit immediately upon expiration of his term of
office. The parties agreed that the scheme of proof set forth in Mt.
Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274 (1977), governed.
By special verdict form, the jury found that Chester had proved by a
preponderance of the evidence that his party affiliation had been a
substantial motivating factor in Jordan and McCoy's decisions not to
reappoint him. (J.A. 458-59). The jury further found that neither Jor-
dan nor McCoy had proved by a preponderance of the evidence that
they would have voted not to reappoint Chester for reasons indepen-
dent of his party affiliation. Id. The parties stipulated as to past eco-
nomic losses. The jury returned a verdict of $5,000 compensatory
damages against both Jordan and McCoy for Chester's pain, suffer-
ing, emotional distress, and humiliation. The court next considered
whether reinstatement or a front pay award should be ordered. Fol-

                     5
lowing an evidentiary hearing at which Chester, several current and
former Board members, an assistant registrar, and Mr. Audas testi-
fied, the court ordered reinstatement. (J.A. 606-11). The court con-
cluded that the balance of equities favored Chester. It reasoned that
Appellants had failed to show equitable considerations different in
kind or degree from those normally accompanying the reinstatement
of a discharged employee and that reinstatement afforded Chester
make-whole relief. The court denied Appellants' posttrial motions for
judgment as a matter of law, for a new trial, and for a stay. This
appeal followed.

II.

Appellants contend there was no direct evidence of political retalia-
tion and insufficient circumstantial evidence to support such a conclu-
sion. Thus, they contend that there was no legally sufficient
evidentiary basis for a reasonable jury to have found that McCoy and
Jordan's decision not to reappoint Chester was substantially moti-
vated by his political affiliation and that he would not have been reap-
pointed for other reasons, Rule 50(a) & (b), Fed. R. Civ. P. We
disagree.

In reviewing a Rule 50 determination, this court's review is cir-
cumscribed as to any facts the jury found, but is plenary as to any
legal conclusions underlying the verdict. As the court has previously
recognized:

          Judgment as a matter of law is proper "when, without
          weighing the credibility of the evidence, there can be but
          one reasonable conclusion as to the proper judgment." The
          movant is entitled to judgment as a matter of law"if the
          nonmoving party failed to make a showing on an essential
          element of his case with respect to which he had the burden
          of proof." While our review of this motion is plenary, it is
          also circumscribed because we must review the evidence in
          the light most favorable to [the nonmoving party].

Price v. City of Charlotte, 93 F.3d 1241, 1249 (4th Cir. 1996) (cita-
tions omitted). Appellants bear the "hefty burden" in establishing that
the evidence is insufficient to support the award. Id. (quoting Bristol

                    6
Steel & Iron Works v. Bethlehem Steel Corp., 41 F.3d 182, 186-87
(4th Cir. 1994)). We may not substitute our judgment for that of the
jury or make credibility determinations, and if there is evidence on
which a reasonable jury may return a verdict in favor of Appellee, we
must affirm. Id. (citations omitted).

A termination based solely on an employee's political affiliation is
a deprivation of his First Amendment rights to freedom of association
and freedom of belief. Elrod v. Burns, 427 U.S. 347 (1976). In Mt.
Healthy City School District Bd. of Educ. v. Doyle , 429 U.S. 274
(1977), the Supreme Court established a test for analyzing discharge
cases involving both constitutionally protected and unprotected activ-
ity. In the first step, the employee bears the burden of establishing the
requisite causation by proof that the protected activity was a motivat-
ing factor or played a substantial role in the discharge. Id. at 287; Hall
v. Marion School Dist. No. 2, 31 F.3d 183, 193 (4th Cir. 1994). If the
employee is able to prove this, then the second step shifts the burden
to the employer to put forward evidence that it would have fired the
employee even in the absence of the protected activity. Mt. Healthy,
429 U.S. at 287.

Our review convinces us that the evidence adequately supports the
jury's two determinations under Mt. Healthy. As to whether Chester's
political affiliation was a motivating factor to Board member McCoy,
the jury heard substantial evidence showing that he, indeed, intended
to fight Democrats "as long as he lived." On two occasions McCoy
told former Delegate Jim Robinson that he was under pressure not to
reappoint Chester. He told Buddy Cantrell the same thing. Of consid-
erable significance to the jury on the issue of McCoy's credibility
might have been the sharply conflicting evidence concerning a foot-
ball game in September 1994. Two witnesses, Cantrell and Baker,
placed McCoy at the game distributing political literature in support
of Oliver North's campaign. Cantrell testified that McCoy stated there
that he wished to replace Chester with a "good Republican," (J.A.
122), such as Danny Baker, and Baker testified that McCoy wanted
to put him into some type of political appointment because of his
Republican connections. In contrast, McCoy flatly denied even
attending the football game or having such conversations.

Similarly, sufficient evidence existed to permit a reasonable juror
to conclude that McCoy's stated reasons for not reappointing Chester

                     7
--his application for the vacant Clerk of Court's position, and the
alleged disclosure of confidential matters involving Karen Kaylor--
were clearly pretextual and that Chester would have been reappointed
absent his political affiliation. The vacancy in the Clerk of Court's
office did not occur until November 1994, and McCoy did not learn
of the alleged disclosure of confidential matters until late February or
early March of 1995. However, the jury heard evidence that McCoy
was taking active steps to replace Chester long before these events.
McCoy's statements at the football game, and his subsequent admis-
sions to Robinson that he was under pressure not to reappoint Chester,
provided an adequate basis for the jury's conclusion that McCoy har-
bored impermissible political considerations long before the cited rea-
sons for discharge appeared.

As to Board member Jordan, the jury heard evidence tending to
show she was acting at the behest and command of the county Repub-
lican Party chairman. Although she insisted that her decision not to
reappoint Chester was based solely on his second curse and abuse
conviction, Cheryl Bailey testified that even before the second charge
became known, Jordan stated that she was under pressure to get rid
of Chester. Jordan also wanted Republicans to be appointed to the
assistant registrar positions, and hand carried the list of names from
the county Republican Party chairman to Chester. She admitted ques-
tioning some of the Registrar interviewees about their political affilia-
tions. From such evidence, the jury could reasonably have concluded
that Chester's political affiliation was a substantial motivating factor
in Jordan's decision and that her professed reason for not reappointing
him--the second curse and abuse conviction--was merely pretextual.

Based on the foregoing, the trial judge properly refused to grant
Appellants' trial and posttrial motions for judgment as a matter of
law.

III.

The next contention is that the district court improvidently ordered
reinstatement. Reinstatement is an equitable remedy which is
reviewed for abuse of discretion. See, e.g., Schwartz v. Gregori, 45
F.3d 1017, 1023 (6th Cir. 1995). We accord considerable deference
to a reinstatement order, as the district court "has had first-hand expo-

                     8
sure to the litigants and the evidence . . . [and] is in a considerably
better position to bring the scales into balance than an appellate tribu-
nal." Hiraldo-Cancel v. Aponte, 925 F.2d 10, 12 (1st Cir. 1991), quot-
ing Rosario-Torres v. Hernandez-Colon, 889 F.2d 314, 323 (1st Cir.
1989) (en banc).

Although we have not had recent occasion to consider the appropri-
ateness of reinstatement based on a First Amendment violation, our
longstanding precedent confirms such a make-whole remedy. In
Jannetta v. Cole, 493 F.2d 1334 (4th Cir. 1974), the court reversed
the district court's refusal to order reinstatement in a § 1983 claim
involving discharge of a fireman for First Amendment activity. As we
recognized, "where there is no lawful basis for the discharge, the
plaintiff is entitled to be restored to the position he occupied when he
attempted to exercise his constitutionally protected right which led to
the discharge. Thus the remedy for constitutionally impermissible dis-
charge from public employment is back pay and reinstatement." Id.
at 1337. In a case strikingly similar to this one, where two county reg-
istrars and an assistant registrar were not reappointed due to their
political affiliations, this court affirmed the trial court's order requir-
ing reinstatement. McConnell v. Adams, 829 F.2d 1319 (4th Cir.
1987).

Appellants argue that Spagnuolo v. Whirlpool Corp., 717 F.2d 114
(4th Cir. 1983), prohibits the court from ordering reinstatement when
it bumps an innocent third-party in favor of the victim of discrimina-
tion. We think Appellants construe Spagnuolo too broadly. Spagnuolo
was an Age Discrimination in Employment Act (ADEA) case in
which the court's recognition of the "rightful place" theory rested on
Title VII legislative history. We do not believe it circumscribes the
court's determination of a make-whole remedy in a § 1983 political
discharge case.

Here the trial judge received considerable evidence on reinstate-
ment and concluded that Appellants failed to show "equitable consid-
erations different in kind and degree" from those normally
accompanying reinstatement. (J.A. 610). These findings were not
clearly erroneous. Both Jordan and McCoy assured the court they
could put aside their feelings and continue to work with Chester.
Chester also confirmed that he could resume his position with no bad

                     9
feelings, a statement that was particularly credible given that he had
been able to do so years earlier when he had been wrongfully dis-
charged and reinstated.4 The court also found that the position of Reg-
istrar did not involve a traditional employer/employee relationship
because daily contact with the Board was not required. The court
observed that application of the "rightful place" doctrine was also
inappropriate here because Appellants offered "no comparable
employment and there is no prospect of vacancy in the general regis-
trar's post." (J.A. 610). Finally, Chester testified as to the positive
impact of reinstatement on the vesting of his pension rights.5 The trial
court weighed the appropriate factors and we conclude the decision
ordering reinstatement was not an abuse of discretion.

IV.

A.

Appellants' remaining exceptions pertain to three evidentiary rul-
ings. These claims are reviewed for abuse of discretion. United States
v. Heater, 63 F.3d 311, 320 (4th Cir. 1995). First, Appellants contend
the district court erred in permitting Cheryl Bailey to read from notes
she had made concerning a conversation with Jordan on October 26,
1994. (J.A. 365-66). Although Appellants acknowledge that Fed. R.
Evid. 803(5) permits the introduction of such hearsay testimony if the
notes were shown to have been made or adopted by the witness when
the matter was fresh in the witness' memory and to reflect that knowl-
edge correctly, they contend there was no showing that her memory
was fresh when she made the notes. Furthermore, Appellants contend
that admission of Bailey's testimony was unduly prejudicial and
formed the basis of the verdict against Jordan.
_________________________________________________________________
4 A schism in a Democratic-controlled Electoral Board had led to Ches-
ter's failure to be reappointed in 1991. Chester was reinstated only after
prevailing at an earlier trial.

5 We agree with the First Circuit's observation that, "reinstatement,
even for a brief interlude, often affords ancillary benefit to the employee,
such as increased seniority, and enhanced eligibility for pension vesting,
which do not obtain as consequences of a traditional backpay award."
Hiraldo-Cancel, 925 F.2d at 13.

                     10
Appellants' contention is without foundation in the record. The
transcript reveals that the trial judge correctly applied the hearsay
exception for recorded recollection testimony set forth in Rule 803(5).
The judge repeatedly questioned Ms. Bailey concerning the accuracy
of the notes when they were made. (J.A. 75, 76). Consistent with the
Rule, the judge then ruled that although the notes could be read into
evidence, they could not be received as an exhibit. Moreover, as to
Appellants' prejudice argument, Fed. R. Evid. 403 recognizes that rel-
evant evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice. However, we have
repeatedly held that in reviewing decisions to admit or exclude evi-
dence, "the appraisal of the probative and prejudicial value of evi-
dence under Rule 403 is entrusted to the sound discretion of the trial
judge; absent extraordinary circumstances, the Court of Appeals will
not intervene it its resolution." United States v. Morison, 844 F.2d
1057, 1078 (4th Cir. 1988). We do not believe the trial court erred in
this balancing.

B.

Appellants next contend that the court erred in not permitting
McMurray to testify to the details of the two altercations with Ches-
ter. Our review convinces us that the trial court recognized the limited
relevancy of such testimony. The issue before the jury in this case
was why Appellants refused to reappoint Chester, not who instigated
the squabbles between Chester and McMurray. The court correctly
recognized that the altercations were only relevant insofar as they
were known to and relied upon by Appellants in failing to reappoint
Chester. The court did not abuse its discretion in excluding McMur-
ray's testimony because neither McCoy nor Jordan had relied on
McMurray's personal account in reaching their decisions not to reap-
point Chester.

C.

Finally, Appellants contend the district court erred in allowing
Plaintiff's counsel to question Audas and Jordan concerning alleged
racial epithets spoken by Audas. However, Jordan testified that she
had refused to reappoint Chester because of her longstanding opposi-
tion to cursing and abusive language. The trial court allowed the

                    11
cross-examination on the basis that it might tend to contradict Jor-
dan's testimony that she could not support a candidate for the Regis-
trar position who used abusive language.

The trial judge has broad discretion to control the scope and extent
of cross-examination. Davis v. Alaska, 415 U.S. 300, 316 (1974);
United States v. Morsley, 64 F.3d 907, 918 n.10 (4th Cir. 1995)
("broad latitude afforded a trial judge in controlling cross-
examination"). Here, the district court acted within the scope of its
considerable discretion in fashioning the reach of counsel's cross-
examination of a witness concerning her allegedly inconsistent posi-
tions.

Based on the foregoing, we affirm the judgment below.

AFFIRMED

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