UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LINDA S. NOTTER,
Plaintiff-Appellee,

v.
                                                                    No. 95-1087
NORTH HAND PROTECTION, a division
of Siebe, Incorporated,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Rock Hill.
Matthew J. Perry, Jr., Senior District Judge.
(CA-92-1846)

Argued: January 31, 1996

Decided: June 21, 1996

Before WILKINS, NIEMEYER, and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion. Judge Wilkins wrote a
dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Richard James Morgan, MCNAIR & SANFORD, P.A.,
Columbia, South Carolina, for Appellant. Herbert Wiley Louthian,
Sr., LOUTHIAN & LOUTHIAN, Columbia, South Carolina, for
Appellee. ON BRIEF: Leslie S. Rogers, MCNAIR & SANFORD,
P.A., Columbia, South Carolina, for Appellant.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Linda Notter brought a Title VII sex discrimination case against
her employer, North Hand Protection, a Division of Siebe North, Inc.
(North Hand), alleging that she had been discriminated against
because of her pregnancy, childbirth, or related medical conditions.1
A jury found in her favor and awarded her $30,581.00 in back pay,
$10,000.00 "for future pecuniary losses, inconvenience, mental
[anguish], or loss of enjoyment of life," and $50,000.00 in punitive
damages. North Hand seeks to set aside the jury verdict on several
grounds. Because none of North Hand's contentions has merit, we
affirm.
_________________________________________________________________

1 Title VII of the Civil Rights Act of 1964 provides that it is unlawful
for an employer

          to fail or refuse to hire or to discharge any individual, or other-
          wise to discriminate against any individual with respect to his
          compensation, terms, conditions, or privileges of employment,
          because of such individual's race, color, religion, sex, or national
          origin.

42 U.S.C. § 2000e-2(a)(1).

The Pregnancy Discrimination Act of 1978 provides that:

          The terms "because of sex" or "on the basis of sex" include, but
          are not limited to, because of or on the basis of pregnancy, child-
          birth, or related medical conditions; and women affected by
          pregnancy, childbirth, or related medical conditions shall be
          treated the same for all employment-related purposes, including
          receipt of benefits under fringe benefit programs, as other per-
          sons not so affected but similar in their ability or inability to
          work.

42 U.S.C. § 2000e(k).

                    2
I.

In September 1990, North Hand (a glove manufacturer) hired Not-
ter as a full-time secretary for its plant in Clover, South Carolina.
Before then she had worked for North Hand part time. North Hand
conducts regular performance reviews of its employees, rating them
on a scale of zero to four, zero being low and four being high. In Jan-
uary 1991 Notter received her first performance review and scored a
2.08, a rating of "Competent." According to North Hand's personnel
policy,

          COMPETENT indicates consistent overall performance
          which meets all standards. Deficiencies in some aspects may
          be offset by merit in others, making an overall level of com-
          petence. Only with thorough training and experience should
          an incumbent be expected to perform at this level.

Notter's immediate supervisor (and plant manager), Steve Grigg,
conducted the January 1991 review. In "review comments" placed in
Notter's personnel file, Grigg wrote, "Linda Notter has been a pleas-
ant addition to the Clover office staff. Her performance, attitude and
personality have enhanced the office operation." According to Grigg's
post-review comments, he rated Notter more highly than Notter rated
herself. Grigg wrote, "Linda should make Clover an excellent Secre-
tary/Receptionist. She is overall an excellent trainee."

In preparation for Notter's second performance review on April 2,
1991, Grigg noted, "Linda continues to be very efficient in meeting
her job duty requirements. She has learned most of her job require-
ments in a very short time. Her work is accurate and neatly prepared."
Notter therefore received another good performance review and her
performance rating increased to 2.73. Grigg rated her performance as
"Advanced," and according to North Hand's personnel policy,

          ADVANCED indicates training, experience, ability, and
          individual initiative combining to achieve performance
          which consistently exceeds job standards and requirement
          [sic]. An incumbent should not be expected to attain this
          level of task performance until well established and experi-
          enced in the job.

                    3
Notter's second review meeting (in April 1991) lasted about 45
minutes, about half as long as her first. By all accounts Notter was a
splendid employee who was well liked by her co-workers and who
was performing her job responsibilities adequately.

In May 1991, a month after her second review, Notter learned she
was pregnant. Notter's doctor, Malcolm Marion, III, called her at
work to give her this news. North Hand's employment supervisor,
Barbara Beamguard, was present when Notter received the call. Not-
ter immediately told Beamguard what the call was about and asked
her what Grigg would think. According to Notter, Beamguard told her
that Grigg "probably wouldn't be too happy, because I [Notter] just
started my job." Moreover, Notter's pregnancy would require her to
miss work at the plant's profit calculation time, the busiest time of the
year for Grigg.

Notter did not tell Grigg right away about the pregnancy. She testi-
fied, "I was afraid to tell him, at that time. I just kept it to myself until
I got up enough courage to go tell him myself." Grigg learned of the
pregnancy in June, and Notter explained how:

           I hadn't been feeling too good. I must have looked tired or
           something. Because everybody asked me what was wrong?

           And we had come in after lunch, I was sitting at my desk.
           And I was kind of tired. And I didn't feel too good. And
           Steve [Grigg] had been coming in from lunch and asked me,
           you know, what was wrong.

           And he had just -- and I said, you know, I just really wasn't
           feeling well.

           He started walking back toward his office and just turned
           around and said, well, you are not pregnant; are you?

           And at that time I wasn't -- he was going to soon enough
           find out, so I just said: yes.

Grigg then asked Notter if she had been using birth control, if she
knew who the father was, if she knew where the father was, and what

                      4
her parents thought about her being pregnant and unmarried. These
questions upset Notter a great deal. She was able to hold her feelings
in check until the end of the working day, but she cried for her entire
35-minute drive home. When she arrived home, she called Dr. Marion
and told him what had happened. Dr. Marion told her it was important
for her to reduce her stress level at that stage of her pregnancy, and
he told her she should stay home from work for five days. Dr. Marion
filled out and signed a medical excuse form for Notter. The written
excuse did not disclose any medical justification for Notter's missing
work, but no one at North Hand told Notter that the excuse was inade-
quate. Indeed, North Hand treated this five-day absence as excused.

Notter received another performance review on September 4, 1991.
Her overall rating once again increased, this time to 3.05, another
"Advanced" rating. She did receive a "one" (a low) rating in the atten-
dance category because of the days she missed in June after Grigg
upset her with his comments about her pregnancy. She received rat-
ings of "three" in the categories of dependability, aptitude, initia-
tive/adaptability, judgment, and work habits. She received ratings of
"four" in the categories of punctuality and attitude. She also received
a 3.09 rating in the most heavily weighted category, productivity.
Grigg's pre-review comments to the personnel file once again gave
Notter glowing marks, but Grigg also noted that she was "an expec-
tant unwed mother." According to Grigg's post-review notes, the
review meeting "[s]urprisingly [ ] lasted for 1 1/2 hours."

Notter went on maternity leave on December 28, 1991. Notter sub-
mitted to North Hand a maternity leave form signed by Dr. Marion.
Notter went into labor on January 9, 1992, and Dr. Marion admitted
her into the hospital. Notter's labor was difficult, and Dr. Marion
engaged an obstetric surgeon, Dr. Pratibha Raut, to deliver the baby
by caesarian section. Before Dr. Raut began to operate, the anesthesi-
ologist attempted to give Notter a spinal anesthetic. The anesthesiolo-
gist injected Notter fifteen times in her back, but none of these
attempts to introduce the anesthetic were successful. Eventually, Dr.
Raut decided to perform the caesarian under a general anesthetic.
Raut delivered Notter of a healthy baby girl on January 10, 1992.

As a result of the failed attempt to administer a spinal anesthetic,
Notter suffered from severe back pain. Between January and March

                    5
1992, Notter received chiropractic treatment for her back troubles. At
trial Beamguard testified that she knew Notter was being treated for
back problems and that Notter had made claims under her employee
insurance policy for that treatment.

In spite of her back pain and the time she needed to care for her
new baby, Notter occasionally came in to the Clover plant to train and
assist the temporary secretary who was covering for her. Notter
received no pay for helping the temporary secretary, whom North
Hand hired as a permanent employee after firing Notter.

Near the end of Notter's scheduled maternity leave time, Notter
was still not feeling well. She saw Dr. Marion on February 28 and
told him that she was not quite ready to return to work. Dr. Marion
wrote an excuse on a prescription pad saying simply,"Please extend
Linda's leave." When Notter brought the excuse to the plant, Beam-
guard said it was inadequate. According to Beamguard, a valid excuse
had to contain a medical reason for the extension of leave and a date
that Notter would be able to return to work.

In fact, North Hand's maternity leave policy provides:

          The period of disability, during which the employee is
          unable to work and is eligible for weekly benefits provided
          by group insurance, is determined by the attending physi-
          cian in each case.

          The company has no arbitrary or pre-determined schedule
          for either the timing or duration of maternity leave of
          absence.

North Hand's general leave policy also allows the company to
demand that the employee submit to a physical examination by a phy-
sician selected by the company, but at no time did Beamguard (or any
other company official) ask Notter to submit to such an examination.

Furthermore, North Hand allows employees to take unpaid per-
sonal leaves of absence for up to six months for"illness of a family
member, health problems affecting the employee but not qualifying

                    6
as a disability nor compensable by group insurance, or other case of
personal hardship."

Beamguard claimed that she tried to call Dr. Marion to ask him for
a medical reason to extend Notter's leave, but that Dr. Marion never
returned her calls. Beamguard called Dr. Raut's office, but did not
speak to Dr. Raut personally. Dr. Raut's secretary filled out a "Certifi-
cate to return to work or school," and sent it to Beamguard at the
plant. The form stated that Notter was under Dr. Raut's care and that
Notter "is able to return to work/school on 02-26-92" (emphasis sup-
plied). The form was dated March 13, 1992. Dr. Raut never saw the
form, nor did she sign it. Apparently, Dr. Raut's secretary signed it.
Furthermore, Dr. Raut only saw Notter once between January 10,
1992, the date of the caesarian section, and March 13, 1992, the date
Beamguard got the "return to work" certificate from Dr. Raut's secre-
tary. That visit was when Dr. Raut removed Notter's stitches. It
occurred on January 17, 1992, one week after the caesarian and two
months before the "return to work" certificate was issued.

Grigg wrote Notter a letter, dated March 16, 1992, saying that he
was accepting Notter's "voluntary termination," effective March 6,
1992. Notter became distraught when she received the letter, and her
mother called the plant to find out "why this had happened with no
warning." An unidentified North Hand employee told Notter's mother
"flat out that [what] Steve [Grigg] wanted was Linda [Notter] to call
and beg for her job back." Notter's mother then called Dr. Marion to
tell him what had happened, but when Dr. Marion spoke to Beam-
guard on March 19, 1992, Beamguard denied that Notter had been
fired. Notter, of course, had been fired a few days before.

North Hand appeals from the judgment entered on the jury's ver-
dict in favor of Notter, asking us to reverse the judgment or to grant
a new trial.

II.

North Hand first challenges the jury's finding that Notter was the
victim of intentional discrimination. We believe, however, that there
is sufficient evidence to support the jury's determination.

                     7
During trial a Title VII plaintiff must prove by a preponderance of
the evidence "the ultimate issue . . . whether the defendant intention-
ally discriminated against" her. Jiminez v. Mary Washington College,
57 F.3d 369, 377 (4th Cir.) (appeal after bench trial) (internal quota-
tions omitted), cert. denied, 116 S. Ct. 380 (1995). Once a jury has
rendered its decision, its verdict may be set aside only "if the plaintiff
has failed to adduce substantial evidence in support of his claim."
DeMaine v. Bank One, Akron, N.A., 904 F.2d 219, 220 (4th Cir. 1990)
(per curiam); accord Whalen v. Roanoke County Bd. of Supervisors,
797 F.2d 170 (4th Cir. 1986) (en banc). On appeal we examine all of
the evidence in the light most favorable to Notter, the party seeking
to sustain the verdict, and we draw all reasonable inferences in her
favor. Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1350 (4th Cir.
1995). In conducting our review, we are "prohibited from weighing
the evidence or assessing the credibility of witnesses." Id.

A plaintiff in a discrimination action may prove her case by cir-
cumstantial evidence. One way she may do so is to establish by a pre-
ponderance of the evidence (1) that she was in the protected class, (2)
that she was subjected to some adverse employment action, such as
discharge, (3) that she was performing her job at a level that met her
employer's legitimate expectations, and (4) that she was replaced by
someone of comparable qualifications outside the protected class. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973);
EEOC v. Western Elec. Co., 713 F.2d 1011, 1014 (4th Cir. 1983).
Under this mode of proof, the plaintiff also must establish by a pre-
ponderance of the evidence that (5) the employer's asserted justifica-
tion for taking adverse employment action was merely pretextual, and
(6) "that discrimination was the real reason" behind the adverse
employment action. St. Mary's Honor Ctr. v. Hicks, 125 L. Ed. 2d
407, 422 (1993). See also Texas Dep't of Community Affairs v.
Burdine, 450 U.S. 248, 256 (1981). Nevertheless, with respect to ele-
ments (5) and (6), "rejection of the defendant's proffered reasons is
enough at law to sustain a finding of discrimination." St. Mary's
Honor Ctr., 125 L. Ed. 2d at 418-19 n.4 (emphasis in original).

It is undisputed that Notter was subject to adverse employment
action by being fired. It is also undisputed that Notter was performing
her job at a level that met her employer's legitimate expectations.
Indeed, her steadily improving performance reviews reveal that she

                    8
was exceeding company expectations. Notter also was replaced by
someone outside the protected class. (Her replacement later became
pregnant but was not pregnant when she was hired to replace Notter.)
Finally, it is undisputed that Notter's replacement was of comparable
qualifications -- after all, Notter helped to train her. North Hand
claims, however, that Notter was not in the class protected by the
Pregnancy Discrimination Act and that she did not sustain her burden
of proving pretext and discrimination.

A.

North Hand argues that Notter failed to establish that she was in
the protected class because she failed to establish that her medical
conditions related to delivery by caesarian section were incapacitat-
ing. In support of this argument, North Hand relies on a non-Title VII
case, Barrash v. Bowen, 846 F.2d 927, 931 (4th Cir. 1988) (per
curiam). In Barrash we said in dicta without any citation of authority,
"Under the Pregnancy Discrimination Act of 1978, 42 U.S.C.
§ 2000e(k), pregnancy and related conditions must be treated as ill-
nesses only when incapacitating."

The text of the Pregnancy Discrimination Act contains no require-
ment that "related medical conditions" be"incapacitating." And a
careful examination of Barrash and other cases cited by North Hand
reveals that those cases do not compel the reading of such a require-
ment into the statute. In Barrash we held that the federal government
did not violate the plaintiff's rights under the Constitution and a col-
lective bargaining agreement by denying her six months of maternity
leave for breastfeeding. The Barrash plaintiff was fired when she
refused to return to work after she had been given five months of
leave to breastfeed her child. Barrash stands for the narrow proposi-
tion that breastfeeding is not a medical condition related to pregnancy
or to childbirth. See also Wallace v. Pyro Mining Co., 789 F. Supp.
867 (W.D. Ky. 1990) (same), aff'd 951 F.2d 351 (6th Cir. 1991) (table).2
_________________________________________________________________
2 In its unpublished opinion the Sixth Circuit in Wallace did not say
that only incapacitating medical conditions are covered under the Preg-
nancy Discrimination Act; it merely noted that the plaintiff "failed to
produce evidence supporting her contention that breastfeeding her child
was a medical necessity." 1991 WL 270823, **1.

                    9
Similarly, in Barnes v. Hewlett Packard Co., 846 F. Supp. 442, 445
(D. Md. 1994), it was held that medical conditions of the newborn
child are not childbirth-related medical conditions within the meaning
of the Pregnancy Discrimination Act. None of these cases control the
situation presented here: we have a new mother with a bona fide med-
ical problem directly related to the specific circumstances of her
delivery.

Moreover, the Barrash dicta aside, the jury easily could have found
that Notter suffered from an incapacitating medical condition related
to her pregnancy. She suffered from back problems caused directly by
childbirth: she received fifteen spinal injections in preparation for her
caesarian section, and she had severe back pain for long after her
baby was born. The records of her several weeks of chiropractic treat-
ment support a finding that Notter was incapacitated as a result of
complications relating to her caesarian delivery. Finally, Beamguard
testified that she knew Notter was suffering from back problems
because Beamguard reviewed the chiropractic bills Notter submitted
to the company for insurance coverage.

In any event, Notter introduced sufficient evidence at trial to show
that she was in the protected class, that is, she established that she had
medical conditions related to childbirth.

B.

More difficult to resolve is the question of whether Notter adduced
sufficient evidence of pretext and discrimination. Viewing the evi-
dence in its entirety, however, we believe that a jury could reasonably
find in favor of Notter. The jury could have reasonably disbelieved
North Hand's claim that Notter was fired for failing to supply the
company with an adequate medical reason for remaining on maternity
leave. Because the jury could have disbelieved North Hand's asserted
rationale, the verdict must stand. St. Mary's Honor Ctr., 125 L. Ed.
2d at 418-19 n.4.

1.

North Hand allowed Notter to believe that she could rely on her
attending physician's decision that she be allowed to remain on leave.

                     10
The company's disability leave of absence policy provides that autho-
rization for leave "is based on a statement from an attending physician
that the employee is unable for medical reasons to perform his or her
normal job or any other work for which qualified and which can be
provided by the company." The policy does not, however, expressly
indicate that an employee who is properly on maternity leave must
submit any new "medical justification" with her doctor's statement
requesting that the leave be extended.

By its own terms, North Hand's policy provides that the duration
of maternity leave is left to the discretion of the woman's "attending
physician." An "attending physician" is the physician that the patient
sees most regularly. See Coffman v. Bowen, 829 F.2d 514, 517 (4th
Cir. 1987). Here it is beyond question that Dr. Marion was Notter's
attending physician and that North Hand knew or should have known
that he was. Dr. Marion told Notter that she was pregnant, and Beam-
guard was with Notter when she received that phone call from Dr.
Marion. Dr. Marion authorized Notter's five-day leave early in her
pregnancy, and the company knew that Dr. Marion was the doctor
who authorized the leave. Dr. Marion also authorized Notter's mater-
nity leave in December, and North Hand accepted that written autho-
rization. Dr. Marion cared for Notter throughout her pregnancy and
after she gave birth.3 Finally, Dr. Marion wrote the excuse Notter
gave to Beamguard in March asking for extended maternity leave.4
_________________________________________________________________
3 Dr. Marion shared a medical practice with his father, Dr. Malcolm
Marion, Jr., who occasionally cared for Notter. In his deposition, read
into evidence at trial, the younger Dr. Marion characterized both himself
and his father as Notter's attending physicians.
4 Notter's medical condition was disputed at trial, and the jury returned
a general finding of discrimination. Dr. Marion's February 28 notes refer
both to "bonding" and to "stinging around incision." Beamguard testified
that she knew Notter was receiving chiropractic treatment and that Notter
told her she had birth-related pain in her side. The critical fact, however,
is that Dr. Marion never told anyone at North Hand before Notter was
fired that she could return to work. Dr. Marion (the attending physician)
wrote an excuse for extended leave, and a reasonable reading of North
Hand's maternity leave policy indicates that it contains two key ele-
ments: (1) "no arbitrary or pre-determined schedule for either the timing
or duration of maternity leave," and (2) the length of leave "is determined
by the attending physician in each case."

                    11
Dr. Raut was not Notter's attending physician. Dr. Marion called
Dr. Raut in as a specialist only when it became clear that Notter
required a caesarian section. Dr. Raut's only contact with Notter
related to the particulars of that surgical procedure, and to no other
aspect of her pregnancy.

Certainly it is reasonable for an employer to require that there be
some legitimate medical rationale for an employee to remain on
maternity or disability leave. Otherwise, employers would face the
problems of employee malingering or making fraudulent claims of
disability. But the company here did not require any"medical reason"
listed on the excuse it accepted from Notter in June, when she took
five days off. Nor did North Hand exercise its rights under its leave
policy to require Notter to submit to a physical, as it could have done
had it truly believed that Notter was malingering. These facts support
the jury's finding of pretext and discrimination. 5
_________________________________________________________________

Furthermore, it is one thing to say that the company's reading of its
maternity leave policy was reasonable, and quite another thing to say that
the company's reading was the only reasonable reading. The question
presented is not how, at some abstract level, the terms of the policy may
best be parsed. Notter's reading of the policy was not strained and was
firmly grounded in plain language to the effect that the attending physi-
cian determines the length of leave. Moreover, the jury could have found
that the company's interpretation of its policy came about only as a post
hoc rationalization for the decision to fire Notter. Beamguard, for exam-
ple, testified that Notter's situation was unique, so there is no basis to say
that North Hand simply applied its policy as it always had. The compa-
ny's argument would carry more weight if there was some evidence of
how North Hand applied the policy to previous employees in Notter's
situation (i.e., where a new mother's doctor wrote an excuse without dis-
closing on the form itself the particular medical justification for the
excuse), but Notter's case was the first.

5 In any event, Notter's claim does not stand or fall with her medical
condition because the jury could have found that she was discriminated
against (1) because of her pregnancy, or (2) because of her childbirth, or
(3) because of medical conditions related to her pregnancy or childbirth.
See 42 U.S.C. § 2000e(k).

                     12
2.

The employer's initial reaction upon learning of the employee's
pregnancy can be circumstantial evidence of pretext and intent to dis-
criminate. See Metz v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,
39 F.3d 1482, 1485 & 1491-92 (10th Cir. 1994); Thompson v. La
Petite Academy, Inc., 838 F. Supp. 1474, 1477-78 (D. Kan. 1993);
Gallo v. John Powell Chevrolet, Inc., 765 F. Supp. 198, 211 (M.D.
Pa. 1991); EEOC v. Ackerman, Hood & McQueen, Inc., 758 F. Supp.
1440, 1453 (W.D. Okla. 1991), aff'd 965 F.2d 944 (10th Cir.), cert.
denied, 113 S. Ct. 60 (1992); cf. McDonnell Douglas, 411 U.S. at 804
(employer's "reaction, if any," upon learning of plaintiff's civil rights
activities is relevant to show pretext and discrimination).

The jury could have accepted Notter's, rather than Grigg's, charac-
terization of their conversation on the day Grigg learned Notter was
pregnant. According to Notter, Grigg asked her a number of intrusive
questions, questions indicating a lack of sensitivity to her condition.
In addition, Grigg's questions to Notter (whether she was using birth
control, whether she knew who the father was, and what her parents
thought of the unplanned pregnancy) indicate that he disapproved of
her for getting pregnant. Grigg also noted in Notter's personnel file
that Notter was "an expectant unwed mother." The jury could have
inferred from these comments that Grigg disapproved of Notter, was
disappointed in her, and did not wish to work with her any longer, and
that he therefore discriminated against her. Beamguard was more can-
did than was Grigg when she learned that Notter was pregnant. The
jury could have found that Beamguard told Notter that Grigg would
be unhappy about the pregnancy because Notter would have to take
time off work. Beamguard's statement also lends support to a finding
of discrimination.

Grigg's attitude is precisely what the Pregnancy Discrimination
Act was intended to combat. "[T]he assumption that women will
become [pregnant] and leave the labor force leads to the view of
women as marginal workers, and is at the root of the discriminatory
practices which keep women in low-paying and dead-end jobs." H.R.
Rep. No. 948, 95th Cong., 2d Sess. 3 (1978), reprinted in 1978
U.S.C.C.A.N. 4749, 4751. When, by his statements, an employer
indicates that he subscribes to this erroneous assumption, a jury may

                    13
properly infer intent to discriminate if, as in this case, the record con-
tains other corroborative evidence.

3.

Finally, the manner by which the defendant fired Notter is evidence
of pretext and intent to discriminate. Beamguard procured a return to
work form that had not been signed by a doctor, but by a secretary
in the office of a doctor who was not even Notter's attending physician.6
Notter's mother testified that a North Hand employee said that Grigg
wanted Notter to "beg" for her job back. Neither Beamguard nor
Grigg called Notter to tell her that her job was in jeopardy, nor did
they even call her to tell her she had been fired. Instead, Grigg sent
her a letter with the self-serving language, "I have to accept your vol-
untary termination." Finally, when Dr. Marion asked Beamguard if
Notter had been fired, Beamguard denied the fact, indicating an effort
to avoid inquiry into the true cause of Notter's discharge.

4.

Substantial evidence supports the jury's finding that North Hand
intentionally discriminated against Notter because of her pregnancy,
childbirth, or related medical conditions. North Hand's departure
from its attending physician rule, Grigg's insensitivity to Notter upon
learning of her pregnancy, and North Hand's method of firing Notter
suggest intentional discrimination. Because Notter is entitled on
appeal to the benefit of all favorable inferences the jury reasonably
could have drawn, we uphold the verdict.

III.

North Hand next challenges two instructions the court gave to the
jury. A trial court need not give any particular formulation of the law,
so long as its charge is correct and understandable. See United States
v. Russell, 971 F.2d 1098, 1107 (4th Cir. 1992), cert. denied, 506 U.S.
1066 (1993). On appeal, the district court's formulation of instruc-
_________________________________________________________________
6 The dissent describes this form as "Dr. Raut's release." However, the
first time Dr. Raut saw the paper was at her deposition, at which time she
denied signing it.

                     14
tions is reviewed for abuse of discretion, keeping in mind that the ulti-
mate goal of jury instructions is to give the jury a clear understanding
of the law it must apply. See United States v. Abbas, 74 F.3d 506, 513
(4th Cir. 1996); see generally Steven Alan Childress & Martha S.
Davis, Federal Standards of Review § 4.23 (1986). We believe the
instructions were proper.

A.

The district court charged, "Plaintiff has the burden of proving that
she lost her job because of her pregnancy or because of her childbirth
or because of a medically related reason." North Hand claims this
instruction was erroneous because it did not indicate that a medical
condition must be incapacitating for the plaintiff to be within the class
protected by the statute.

According to North Hand, the district court should have charged:

          Under the Pregnancy Discrimination Act of 1978, Amend-
          ments to Title VII, pregnancy and related conditions must be
          treated as illnesses only when incapacitating. In order for the
          Plaintiff to show a violation, there must be a medical dis-
          ability caused or contributed to by pregnancy and recovery
          therefrom, or a "related medical condition." Such things as
          breast-feeding and weaning, bonding, or the desire to stay
          home are not medical disabilities or "related medical condi-
          tions" covered under the law. If you find that the reason for
          Plaintiff's absence from work after being released from
          treatment was a non-medical reason, you must find for the
          Defendant.

North Hand's proposed charge would not have accurately stated
the law, given the limited applicability of Barrash v. Bowen, dis-
cussed supra at II.A. The court's charge that a condition must be a
medical condition related to pregnancy was adequate to inform the
jury of the law relevant to this case.

B.

The second instruction challenged by North Hand relates to the
appropriate measure of damages in an employment discrimination
case.

                     15
The district court instructed the jury:

          You must also consider and reduce any back pay otherwise
          allowable by the amount of money that she has earned since
          her separation from the Defendant's employ, or the amount
          that she could have earned with reasonable diligence. This
          reduction from back pay in the law is called mitigation of
          damages. The Plaintiff was required to make reasonable
          efforts to mitigate her back pay damages.

North Hand asked for the following instruction:

          You must also consider and reduce any back pay otherwise
          allowable by the amount of money she earned since her sep-
          aration from employment or the amounts she could have
          earned with reasonable diligence. This reduction from back
          pay, in the law, is called mitigation of damages. Ms. Notter
          was required to make reasonable efforts to mitigate back
          pay damages. If you find that plaintiff failed to make a rea-
          sonable effort to seek available positions for which she was
          qualified, you should not award back pay damages. Simi-
          larly, if you find that her full-time commitment as a student
          would preclude her from accepting employment equivalent
          to her position at Siebe North, you should not award her
          back pay damages.

The district court's charge accurately stated the law. 42 U.S.C.
§ 2000e-5(g)(1) provides in relevant part,"Interim earnings or
amounts earnable with reasonable diligence by the person or persons
discriminated against shall operate to reduce the back pay otherwise
allowable." The court did not abuse its discretion by refusing to refer
specifically to Notter's attending school. Indeed, undue emphasis
upon particular facts or particular principles of law can be reversible
error if such emphasis creates the potential of misleading the jury. See
Westfarm Assocs. Ltd. Partnership v. Washington Suburban Sanitary
Comm'n, 66 F.3d 669, 685 n.11 (4th Cir. 1995), cert. denied, 64
U.S.L.W. 3637 (1996). There was no error in the district court's
charge.

                     16
IV.

According to the defendant, a new trial must be ordered on the
issue of damages because the jury award of $30,581.00 in back pay
was excessive. We disagree.

After Notter was fired, she received a total of $7,421 in unemploy-
ment benefits. In June 1992 she began attending school at night. She
also helped her father care for her mother after her mother became
sick in February 1993. The defendant argues that the jury failed to
consider these facts when calculating the award of back pay.

An award of damages must stand unless "no substantial evidence
is presented to support it, it is against the clear weight of the evidence,
it is based upon evidence that is false, or it will result in a miscarriage
of justice." Barber v. Whirlpool Corp., 34 F.3d 1268, 1279 (4th Cir.
1994).

The record discloses that while Notter was receiving unemploy-
ment benefits she looked for work twice a week. Notter testified that
because she went to school at night, being in school did not interfere
with her ability to take a job. She also testified that taking care of her
mother did not interfere with her ability to work because her father
helped to care for her mother.

While employed with North Hand, Notter earned $17,409 annually,
plus insurance benefits worth $286.61 monthly. Notter's unlawful ter-
mination caused her to lose a total of $1,737.36 per month that she
otherwise would have earned (($17,409/12) + $286.61). Notter was
fired (retroactively) to March 6, 1992. Judgment was entered in her
favor on August 2, 1994. At most, she could receive back pay for the
two years and five months between termination and judgment. Sands
v. Runyon, 28 F.3d 1323, 1328 (2d Cir. 1994). Therefore, if no evi-
dence of failure to mitigate damages had been presented, Notter could
have been awarded $50,383.44 ($1,737.36 x 29). After subtracting the
amount Notter received in unemployment compensation, $7,421, the
maximum award could have been $42,962.44.

After hearing all the evidence North Hand presented as to Notter's
activities after she was fired and as to unemployment compensation

                     17
she received, the jury awarded her $30,581.00, or 71 percent of the
maximum award. The jury weighed North Hand's mitigation evi-
dence and awarded Notter a sum that was not excessive. We affirm
the award of back pay.

V.

North Hand challenges the award of punitive damages on the
ground that the district court should have instructed the jury that such
damages must be established by clear and convincing evidence (rather
than by a preponderance of the evidence, as the district court did
instruct). In any event, North Hand says there was insufficient evi-
dence to support a finding that it acted with malice or with reckless
indifference toward Notter's rights under the Pregnancy Discrimina-
tion Act.7 We disagree with North Hand's contentions, and accord-
ingly we affirm the award of punitive damages.

A.

North Hand argues that state law should determine the standard of
proof on the question of punitive damages. Under South Carolina law,
punitive damages must be proven by clear and convincing evidence.
S.C. Code § 15-33-135. North Hand relies on 42 U.S.C. § 1988(a),
which provides:

          The jurisdiction in civil and criminal matters conferred on
          the district courts by the provisions of titles 13, 24, and 70
          of the Revised Statutes for the protection of all persons in
          the United States in their civil rights, and for their vindica-
          tion, shall be exercised and enforced in conformity with the
          laws of the United States, so far as such laws are suitable to
          carry the same into effect; but in all cases where they are
          not adapted to the object, or are deficient in the provisions
          necessary to furnish suitable remedies and punish offenses
_________________________________________________________________
7 42 U.S.C. § 1981a(b)(1) provides that a plaintiff "may recover puni-
tive damages under [Title VII] . . . if [she] demonstrates that the [defen-
dant] engaged in a discriminatory practice or discriminatory practices
with malice or with reckless indifference to [her] federally protected
rights."

                    18
          against law, the common law, as modified and changed by
          the constitution and statutes of the State wherein the court
          having jurisdiction of such civil or criminal cause is held, so
          far as the same is not inconsistent with the Constitution and
          laws of the United States, shall be extended to and govern
          the said courts in the trial and disposition of the cause, and,
          if it is of a criminal nature, in the infliction of punishment
          on the party found guilty.

(Emphasis supplied.)

We believe the statute's use of the term "deficient" means that state
law may be invoked only in circumstances where remedies under fed-
eral law are less protective of civil rights than are remedies under
state law. In discrimination cases brought under federal law, punitive
damages need be proven only by a preponderance of the evidence.
Bird v. Figel, 725 F. Supp. 406, 412 (N.D. Ind. 1989); Patrykus v.
Gomilla, 1989 WL 8610, *3 (N.D. Ill. 1989); Norris v. City of Easton,
1989 WL 49520, *3 (E.D. Pa. 1989). We are aware of no authority
to the contrary. Because wrongdoers are more likely to be assessed
punitive damages under a preponderance of the evidence standard
than under a clear and convincing standard, federal law is not "defi-
cient" within the meaning of 42 U.S.C. § 1988(a). Cf. 29 U.S.C.
§ 2651(b) (Family and Medical Leave Act of 1993 shall not "super-
sede any provision of any State or local law that provides greater fam-
ily or medical leave rights than the rights established under this Act").

We recognize that punitive damages awards should be carefully
circumscribed, so as not to become vehicles for unbridled retribution.
The statute, however, already addresses these concerns in two ways:
(1) by providing that punitive damages may be awarded only in cases
where the defendant either acts maliciously or out of reckless indiffer-
ence toward the plaintiff's federally-protected rights and (2) by pro-
viding for caps on damages awards. See 42 U.S.C. § 1981a(b)(3). We
see no need to impose additional limits on punitive damages when
Congress could have done so, but did not.

The district court properly instructed the jury on Notter's burden
of proving punitive damages.

                    19
B.

According to North Hand, the record does not contain substantial
evidence that it acted out of malice or with reckless indifference to
Notter's federally-protected rights. North Hand primarily points to the
fact that both Grigg and Beamguard attended Notter's baby shower.
We believe the record does contain substantial evidence to support the
punitive damages award. The jury could have inferred malice or reck-
less indifference from the insensitive manner in which Notter was
fired (out of the blue, without so much as a phone call to warn her
that her job was in jeopardy); from the testimony that Grigg wanted
Notter to beg for her job back; from Beamguard's procuring a "return
to work" certificate from the secretary of a doctor who was not Not-
ter's attending physician and who had not seen Notter for two
months; and from Beamguard's telling Dr. Marion that Notter had not
been fired, when in fact she had.

VI.

The judgment is affirmed in its entirety.

AFFIRMED

WILKINS, Circuit Judge, dissenting:

While I fully appreciate, and indeed share, the reluctance of the
able trial judge to set aside the jury verdict, I feel compelled to dissent
because the evidence was not sufficient to support a conclusion that
North Hand terminated Notter because of her pregnancy.

I agree with the majority that the evidence supports a conclusion
that Notter established a prima facie case of discrimination by proving
that she was a member of a protected class (pregnant); that she was
performing her duties satisfactorily; that she suffered an adverse
employment decision (termination); and that she was replaced by
someone outside the protected class (someone who was not pregnant).
North Hand maintains, however, that it established a nondiscrimina-
tory reason for the termination--that company policy provided that
termination would result if an employee failed to return from a dis-

                     20
ability leave within five days of release. Since North Hand's proffered
reason for Notter's termination unquestionably constitutes a legiti-
mate nondiscriminatory basis for her dismissal, Notter may not pre-
vail unless she carried her burden of showing that the company's
proffered reason was a pretext and that the true reason for dismissal
was discriminatory, i.e., based on pregnancy, childbirth, or a related
medical condition. See St. Mary's Honor Ctr. v. Hicks, 113 S. Ct.
2742, 2753-54 (1993).

The majority agrees with Notter that the evidence she presented
was sufficient to support a conclusion that she carried this burden.
According to the majority, the jury properly could have inferred that
North Hand's proffered reason for the termination was a pretext and
that the true reason for her dismissal was discriminatory from five cir-
cumstances: (1) Beamguard's comment to Notter when she first
learned of the pregnancy that Grigg would not be happy about her
absence during the busiest portion of the year; (2) Grigg's unprofes-
sional reaction when Notter disclosed her pregnancy to him; (3)
Grigg's reference to Notter in an evaluation as an unwed, expectant
mother; (4) Beamguard's and Grigg's purported misapplication of the
leave policy; and (5) the circumstances surrounding Notter's termina-
tion.

In my view, the first three circumstances, even in combination, are
insufficient to support a finding of pretext and discrimination.
Undoubtedly, Beamguard's and Grigg's initial reactions to the
announcement of Notter's pregnancy were insensitive. Title VII, how-
ever, prohibits only adverse employment actions taken for a discrimi-
natory reason; it does not mandate either that employers greet with
pleasure news that a key employee will be absent from the office dur-
ing a busy time of the year or that employers behave in the most
understanding manner in dealing with difficult social situations.
While evidence of an employer's reaction properly may be considered
as relevant evidence of an intent to discriminate, Beamguard's and
Grigg's reactions to the announcement of Notter's pregnancy, as well
as Grigg's reference to Notter as an unwed mother is counterbalanced
by the undisputed facts that Grigg did not terminate Notter immedi-
ately and in fact awarded Notter the highest performance evaluation
that she received during her employment with North Hand months
after he learned of her pregnancy--in spite of the low score she

                    21
received for attendance due to her absenteeism. Certainly, Notter's
performance evaluations would not have continued to rise if Grigg
possessed an intention to discriminate against her.

The question becomes, then, whether a jury reasonably could have
concluded that North Hand's application of its leave policy or the cir-
cumstances surrounding the termination were pretextual. North
Hand's disability leave of absence policy provided:

          I. Definitions:

          A. Disability Leave of Absence

          Any absence from work because of non job-related injuries
          or illnesses for which the employee receives compensation
          and benefits under this policy. . . .

          B. Short-term Disability (STD)

          The first twenty-six week period of absence for which an
          employee is authorized and receives pay and benefits under
          this policy. Company authorization is based upon a state-
          ment from an attending physician that the employee is
          unable for medical reasons to perform his or her normal job
          or any other work for which qualified and which can be pro-
          vided by the company.

J.A. 616. Under this policy it is the employee's duty to keep a super-
visor advised of circumstances necessitating an absence from duties
as far in advance as possible. With respect to returning from a disabil-
ity leave of absence, the policy provides:

          If the employee fails to return (or to make himself or herself
          available to return) to work within five working days of the
          date of termination of weekly [disability] insurance benefits,
          he or she will be considered voluntarily terminated and will
          be replaced. . . . [Further,] failure to advise the company of
          medical release from disability within five days of such
          release will constitute voluntary termination of employment.

                    22
J.A. 619 (emphasis added). Notter was no longer entitled to disability
benefits once she was able to perform the duties of her employment;
she was released to perform these duties six weeks 1 after the delivery
of her daughter (by February 26); thus, her failure to report to work
within five days after the expiration of this six-week period consti-
tuted a voluntary termination.

Notter acknowledges that under the disability leave provisions her
failure to return to her duties was properly treated as a voluntary ter-
mination. However, she nevertheless claims that her termination was
improper because she was on maternity leave rather than disability
leave. Although she admits that she was receiving disability payments
(for which she concedes she was no longer eligible in the absence of
a medical excuse), Notter contends that the cessation of these pay-
ments did not terminate her maternity leave as it would a disability
leave. Instead, she asserts, under the maternity leave policy only the
attending physician's written statement could end the leave.

The maternity leave policy provides:

          I. Policy

          A. Maternity Leave of Absence is provided for female
          employees disabled because of pregnancy.

          B. Reinstatement to original job or a position of like status
          and pay, retention of seniority, and eligibility for benefits
          provided in Disability Leave of Absence Policy . . . apply
          equally to all non job-related disabilities, whether or not the
          disability is related to pregnancy.

           C. The period of disability, during which the employee is
           unable to work and is eligible for weekly benefits provided
_________________________________________________________________
1 The majority opinion does not make clear that it is undisputed that
there was no medical reason to prolong Notter's maternity leave. Dr.
Marion, Notter's treating physician, confirmed that Notter was physically
able to return to work six weeks after her delivery and that she sought
to extend her maternity leave because she wanted to spend additional
time with her newborn daughter.

                      23
          by group insurance, is determined by the attending physi-
          cian in each case.

          D. The Company has no arbitrary or pre-determined
          schedule for either the timing or duration of maternity leave
          of absence.

          II. Administration

          A. The employee will be asked to advise her supervisor
          promptly of any change in her condition which affects her
          job performance, and to provide as much advance notice as
          possible as to 1) the date she intends to begin her leave, and
          2) her future plans to return to work or her expected date of
          return.

          B. Maternity Leave of Absence will begin on the date on
          which the employee's attending physician specifies that she
          should no longer work and will continue until release by the
          attending physician. Both statements by the physician must
          be in writing.

J.A. 622 (emphasis added).

The majority accepts Notter's contention that under this policy her
maternity leave was to continue until a written statement releasing her
was obtained from her attending physician, Dr. Marion. Nevertheless,
although section I.C. of the maternity leave policy specifies that the
period of disability is determined by the physician, it plainly ties the
permissible length of that period to the time during which the
employee is unable to perform the duties of her employment and is
eligible for disability benefits. Consequently, the only fair reading of
the policy is that the physician's release must be based on the employ-
ee's medical ability to perform the duties of her position. Accord-
ingly, while North Hand was not in strict technical compliance with
the maternity leave policy--in the sense that it had not received Dr.
Marion's written statement of release--North Hand nonetheless did
not act in violation of Notter's rights under the policy because no
medical reason existed for the extension of her leave, and North Hand

                    24
had been informed orally of this fact by Dr. Marion. Although Dr.
Marion had not issued a written medical release (and, of course,
North Hand could not force him to issue one) it is undisputed that he
informed Beamguard and Notter that there was no medical reason for
Notter not to return to work.2 In view of this, the only reasonable
basis on which to conclude that Notter elected not to return to work
was not because of a medical reason, but because of her understand-
able desire to stay at home with her young child. Further, the mater-
nity leave policy provided that the reinstatement and benefits
eligibility provisions of the disability leave policy apply equally to
maternity leave, and the disability policy expressly stated that a fail-
ure to return within five days of a medical release would be viewed
as a voluntary termination.

The majority asserts that the question before the court is not
whether North Hand's actions violated Notter's rights under the
maternity leave policy. On the contrary, if the action North Hand took
was permitted by the leave provisions, that action cannot amount to
evidence of a discriminatory motive for the termination. Thus, the
question of the proper interpretation of the leave provisions is critical
to the resolution of this appeal. Further, the majority maintains that
"Notter's reading of the policy was not strained and was firmly
grounded in plain language to the effect that the attending physician
determines the length of the leave." Supra p. 12 note 4. But, an inter-
pretation of North Hand's policy to permit an employee to remain on
maternity leave indefinitely simply because her doctor fails to return
a written release form to the company and in the absence of any medi-
cal reason for continuation of the leave undoubtedly is strained, if not
absurd.3
_________________________________________________________________
2 Dr. Marion's progress notes reflect that he spoke with Beamguard on
March 8, 1992 and informed her that the extension of Notter's leave was
not for medical reasons but for "bonding." J.A. 45, 636. Since Notter
requested that Dr. Marion extend her leave for this reason, there is no
question that she knew that her leave was not for medical reasons.
3 Perhaps more fundamentally, the majority must acknowledge that
Notter's interpretation of the leave policy is, in any event, irrelevant.
Notter was required to prove that her termination resulted from a dis-
criminatory action by North Hand; whether Notter subjectively believed
that she was acting in compliance with the policy is immaterial to that
question.

                     25
The majority also relies on the manner in which North Hand
effected Notter's termination as support for its conclusion that the evi-
dence is sufficient to sustain the verdict, arguing that an inference of
discrimination can be drawn from the circumstances surrounding the
dismissal. The majority first stresses that no one ever explained to
Notter that her employment was in jeopardy or that she could have
applied for a personal leave of absence. But, it is undisputed that
North Hand did not have a duty to apprise Notter of this information,
and Notter was unable to point to any similarly situated employee
outside the protected class that had been so advised. As a result, I find
no basis for an inference of discrimination from the failure of North
Hand to advise Notter of these facts.4 Next, the majority contends that
Beamguard's repeated calls to doctors' offices and her acceptance of
Dr. Raut's release demonstrate a discriminatory motive. To the con-
trary, these actions are compatible only with the nondiscriminatory
motive offered by Beamguard--that of seeking to assist Notter in
maintaining benefits by attempting to obtain the necessary informa-
tion, and only after determining that she could not do so, taking the
steps necessary to remove someone who was no longer entitled to dis-
ability benefits from its rolls. In my view, this evidence is far from
sufficient to support a determination of discrimination.

In sum, the first three circumstances to which the majority and Not-
ter point, while circumstantial evidence of an intent to discriminate,
are insufficient by themselves to support a conclusion that North
Hand's termination of Notter for violating company leave policies
was a pretext for discrimination. And, since North Hand, in fact, did
not violate Notter's rights under the maternity leave policy, the final
two arguments to which the majority points provide virtually no sup-
port for a finding of pretext. In opposition to this evidence offered in
support of a conclusion that North Hand's termination of Notter was
discriminatory was evidence that Grigg had given Notter her highest
performance rating after he learned that she was pregnant; that Beam-
guard voluntarily hostessed a baby shower--attended by Grigg--at
the plant for Notter; and that other women had taken maternity leave
and returned from leave without incident--including Notter's unwed
_________________________________________________________________
4 Moreover, it was undisputed that Beamguard told Notter that the
excuse she provided was unacceptable and that Notter had a copy of the
employment manual containing the leave provisions.

                    26
replacement. See Jiminez v. Mary Washington College, 57 F.3d 369,
384 (4th Cir.) (evidence that others in protected class are thriving is
evidence of lack of discriminatory motive), cert. denied, 116 S. Ct.
380 (1995). Notter was unable to demonstrate that she had been
treated less favorably, or differently, than anyone. And, finally, a
much less sinister motive exists to explain North Hand's admittedly
harsh treatment of Notter. Company officials feared that if the leave
policy were not strictly enforced, North Hand would open itself to
claims of discriminatory treatment by others in the future.5 Viewed in
the light most favorable to Notter, the evidence simply is not suffi-
cient to support a finding that North Hand's proffered reason for ter-
minating her was a pretext and that the true reason was
discriminatory. See Benesh v. Amphenol Corp. (In re Wildewood
Litig.), 52 F.3d 499, 502 (4th Cir. 1995) (explaining that this court
reviews de novo a decision of the district court denying a motion for
judgment as a matter of law and must affirm if there is substantial evi-
dence, viewing it in the light most favorable to the nonmoving party,
in the record from which the jury could find for that party). Therefore,
I would reverse the decision of the district court denying North
Hand's motion for judgment as a matter of law.
_________________________________________________________________

5 The majority contends that the company's argument that Notter's ter-
mination resulted from a straightforward application of its leave policy
"would carry more weight if there were some evidence of how North
Hand [had] applied the policy to previous employees in Notter's situa-
tion." Supra p. 12 note 4. In so stating, however, the majority illustrates
exactly why it was essential for the company to apply the policy in this
instance. If it had failed to do so, any attempt to apply the policy in the
future potentially would expose it to a claim of disparate treatment. But,
if it applied the policy consistently in the manner it did with Notter, its
interpretation would be entitled to greater evidentiary value in the future.




                     27
