UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ANDREA NELSON,
Plaintiff-Appellant,

v.

WATERGATE AT LANDMARK,
                                                                   No. 95-2818
Defendant-Appellee.

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Amicus Curiae.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Richard L. Williams, Senior District Judge.
(CA-95-72-A)

Argued: October 28, 1996

Decided: February 21, 1997

Before MURNAGHAN, WILLIAMS, and
MICHAEL, Circuit Judges.

_________________________________________________________________

Remanded by unpublished per curiam opinion. Judge Williams wrote
a dissenting opinion.

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COUNSEL

ARGUED: Sol Zalel Rosen, Washington, D.C., for Appellant. Karen
Marie Moran, Office of General Counsel, EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, Washington, D.C., for Amicus
Curiae. William Frederick Causey, JACKSON & CAMPBELL, P.C.,
Washington, D.C., for Appellee. ON BRIEF: C. Gregory Stewart,
General Counsel, Gwendolyn Young Reams, Associate General
Counsel, Vincent J. Blackwood, Assistant General Counsel, Office of
General Counsel, EQUAL EMPLOYMENT OPPORTUNITY COM-
MISSION, Washington, D.C., for Amicus Curiae.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Andrea Nelson, an African American, filed a complaint under Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e
(1994 & Supp. 1996), and 42 U.S.C. § 1981 (1994 & Supp. 1996),
charging that her employer discriminated against her because of her
race, and that she was unlawfully terminated in retaliation for filing
a charge of discrimination with the Equal Employment Opportunity
Commission (EEOC). The jury returned a verdict of $4,000 in Nel-
son's favor on the Title VII and 1981 discrimination claims, but found
for the employer on the retaliation claim.

The district court set aside the jury verdict and entered a judgment
as a matter of law in favor of the defendant employer on the grounds
that Nelson had failed actually or constructively to notify her
employer regarding her racial discrimination claim as required by
Dennis v. County of Fairfax, 55 F.3d 151, 155 (4th Cir. 1995).1 Since
_________________________________________________________________
1 The district court did not question the sufficiency of the evidence
regarding discrimination, it only questioned whether her employer had
notice of the discrimination. The district court, having found that Nelson
had established a prima facie case of discrimination, properly sent the
case to the jury. If a plaintiff makes out a prima facie case, "rejection of
the defendant's proffered reasons, will permit the trier of fact to infer the
ultimate fact of intentional discrimination, and . .. [n]o additional proof
of discrimination is required." St. Mary's Honor Center v. Hicks, 509
U.S. 502 (1993) (emphasis in original). Thus, based on the evidence, the
jury was permitted to conclude that racial discrimination had taken place.

                    2
we find that Nelson's EEOC complaint was sufficient to satisfy her
burden of notice under Dennis, we reverse the district court's grant
of a judgment as a matter of law and remand so that the verdict in
Nelson's favor may be reinstated.

Andrea Nelson was originally hired by Watergate at Landmark
(WAL) in December 1991 as a temporary switchboard operator. After
the temporary position ended in February 1992, Nelson was re-hired
as a customer service representative. In March 1992 she transferred
to be the assistant to the director of activities. In June 1992 Nelson
accepted her final position as administrative assistant to the director
of administration, Robert Swain. Nelson was the only African Ameri-
can employed in the front office at WAL, and she was the only Afri-
can American administrative assistant.

Nelson claims that after accepting the position as an administrative
assistant she began to experience disparate treatment in her employ-
ment. She argues that the terms and conditions of her employment
were drastically different than that of the white person who previously
held her position, and were different than that of other white people
who were similarly situated.

Nelson alleges that (1) she was paid on an hourly basis while other
white employees similarly situated, and the white person previously
employed in her position were salaried employees; 2 (2) she was "writ-
ten up" for being one minute tardy while a white employee similarly
situated was able to come and go as she pleased; (3) her name was
purposefully left off the company's organizational chart even though
her predecessor's name was on the chart, and even though all other
administrative assistants' names were on the chart; 3 (4) white employ-
ees who were given supervisory responsibility were given raises
while she was not;4 (5) she was required to speak directly with her
_________________________________________________________________

2 After Nelson complained, WAL agreed to make Nelson a salaried
employee.
3 Nelson's supervisor allegedly refused to place her name on the chart
even after Nelson informed him of the discrepancy.
4 In December 1992 Nelson became a supervisor of several employees.
Nelson did not receive a pay raise for the added responsibility. In March

                    3
supervisor whenever she needed time off, while other white employ-
ees were able to leave voice mail messages or speak with the supervi-
sor's secretary; and (6) she was required to bring in a physician's note
to justify her taking two sick days leave while other white employees
were only required to bring in a physician's note if their illness
exceeded three days.

In April 1993 Nelson wrote a memorandum to James Cisco, the
president of WAL's Board of Directors, complaining about Swain's
treatment of her. In October 1993 Nelson filed a complaint with the
EEOC alleging that she had received disparate wages and that she
was harassed and disciplined more harshly in retaliation for her com-
plaints and because of her race.5 Nelson also asserted constant harass-
ment and subjection to disparate discipline and wages.

After filing the complaint, Nelson wrote another memorandum, this
time to Swain, complaining that he ridiculed her in a meeting with the
general manager, that he commented as he was passing her desk that
she was "bout [sic] to break" and that he spent numerous hours typing
memos against her. She also claimed that she had been "informed
that, because of [her] charges, there would be numerous attempts to
frustrate [her]. . . ."

In February 1994 Nelson wrote a memorandum to the general man-
ger, Petrine Squires, complaining that, during her tenure at WAL,
Swain would not approve requests for changes in her work schedule
to accommodate doctor's appointments, he applied sick leave policies
differently to her than to others, he purposely made her job more dif-
ficult to do, he caused upper management to hold her in low esteem,
he engaged in sexual harassment of other employees, he yelled at her,
_________________________________________________________________

1993, WAL authorized a raise for a white employee because the white
employee had been given extra responsibility as a supervisor. Nelson
wrote to the general manager and asked why she did not receive a wage
increase when she received added responsibility. In this memorandum,
Nelson also asked why she was being treated differently.

5 Nelson's EEOC complaint stated:"I [Andrea Nelson] believe I have
been discriminated against because of my race (black). . . ."

                    4
and he appeared to have a difficult time working with men, older
women and minorities.6

In response to this memorandum, WAL hired a law firm to investi-
gate Nelson's allegations of sexual harassment. 7 The firm concluded
that there was no evidence to substantiate these allegations. In April
1994 Nelson was terminated.

Five months elapsed between the time Nelson filed her EEOC
complaint and the time she was fired. WAL took no corrective action
_________________________________________________________________
6 In addition to the EEOC complaint, Nelson's memo to Squires also
provides notice of racial discrimination. In her memo she states:

           Someone may think that [Swain] has something against work-
          ing with men, older women, and race minorities. His record
          speaks for itself. Since he has been director over the manage-
          ment office, he has hired no one except, young, white, females
          for his department. Yet, he has been responsible for ruining the
          reputation and firing two males, now the attempt on a black
          female, all who worked under him. . . .

           ...

           The [NAACP counselors] advised me that leaving WAL was
          not the answer and provided me with material to study to better
          my working relationship. . . . The representative explained to me
          about the lack of understanding that whites have when it comes
          to some of the problems of blacks in management and how
          blacks in management have a lack of understanding about what
          whites in management go through. They recommended the book
          The Black Manager. . . .

           ...

           . . . It was often repeated to me by these organizations of
          reform, that if I left, I would be cutting off a pathway for another
          race minority. They instilled in me that, I should seek employ-
          ment elsewhere only if my reasons were genuine and wanting to
          move on to greater opportunities, but to leave any place of
          employment because of indifferent treatment was wrong for
          everyone concerned (emphasis added).
7 WAL investigated the sexual harassment allegation, but it did not
investigate either Nelson's EEOC complaint or the complaint in her
memo to Squire.

                     5
regarding the discrimination claim.8 Therefore, during the five
months, adequate notice had been given to the employer regarding
Nelson's racial discrimination claim, yet no timely and adequate cor-
rective action concerning racial harassment or discrimination had
been taken. "The employer is liable where it had actual or construc-
tive knowledge of the existence of a sexually hostile working environ-
ment and took no prompt and adequate remedial action." Dennis, 55
F.3d at 155 (internal quotations omitted). "The above reasoning
applies as well to claims of racial discrimination in the workplace
under § 1981." Id. WAL had such notice; accordingly, we remand so
that the verdict in Nelson's favor may be reinstated.

REMANDED

WILLIAMS, Circuit Judge, dissenting:

For the reasons stated in the district court's memorandum opinion
in this case, see Nelson v. Watergate at Landmark, 898 F. Supp. 346
(E.D. Va. 1995), I do not believe that Nelson's employer, WAL,
failed to respond to sufficient notice of a racially hostile environment.
I would affirm the district court's grant of judgment as a matter of law
for WAL on Nelson's claims under Title VII and 42 U.S.C. § 1981.1
Accordingly, I dissent.
_________________________________________________________________
8 WAL argues that they did not investigate the racial discrimination
allegation since they thought Nelson's complaints involved sexual
harassment. However, at the time Nelson wrote the memorandum claim-
ing that she was treated differently, Nelson had already filed EEOC
charges based on race. The EEOC complaint and the memorandum com-
plaining of "different treatment" were sufficient to put WAL on notice
that Nelson believed she was discriminated against because of her race.

WAL may have dismissed the EEOC complaint as frivolous, but the
jury found otherwise. WAL cannot now claim that the EEOC complaint
was not notice simply because WAL did not believe it.
1 Prior to sending the case to the jury, the district court strongly consid-
ered granting WAL's motion for judgment as a matter of law because of
the lack of evidence of notice to WAL but decided to submit the entire
case because notice was not an element of the retaliation claim. The jury
found that WAL had not retaliated against Nelson for complaining about
any discriminatory conduct. On the issue of whether racial discrimination

                    6
This court has on numerous occasions held that an employer is lia-
ble for impermissibly harassing behavior only if it had actual or con-
structive knowledge of the illegal conduct and took no prompt and
adequate remedial action. See Andrade v. Mayfair Management, Inc.,
88 F.3d 258, 261 (4th Cir. 1996) (collecting cases). In Dennis v.
County of Fairfax, 55 F.3d 151 (4th Cir. 1995), we applied this rule
to claims of racial discrimination in the workplace under Title VII and
§ 1981 and held "that where an employer implements timely and ade-
quate corrective measures after harassing conduct has come to its
attention, vicarious liability should be barred regardless of the specific
motivation for the wrongdoing or the particular cause of action." Id.
at 156. Implicit in this rule is that the employer must have adequate
notice of the wrongdoing that it is charged with remedying.

The majority finds WAL liable because "[f]ive months elapsed
between the time Nelson filed her EEOC complaint and the time she
was fired [and because] WAL took no corrective action regarding the
discrimination claim." Majority Op. at 5-6. Because the record does
not disclose when WAL received notice of Nelson's EEOC claim, we
can assume only that notice was sent within ten days as required. Nel-
son admits that, after investigating, "[t]he Alexandria Office of
Human Rights found no probable cause and dismissed the complaint."2
(Appellant's Br. at 5.) It would be curious indeed to require WAL to
implement remedial measures to correct an allegedly racially-hostile
work environment when the investigatory agency made a finding of
"no probable cause" and when Nelson, an individual admittedly
_________________________________________________________________
had occurred, the jury found in favor of Nelson and awarded $4,000
actual damages. Upon WAL's post-verdict motion, the district court
revisited the issue of notice, required supplemental briefing, and entered
judgment for WAL on the Title VII and § 1981 claims for the reasons
stated in its memorandum opinion.

2 Given the lack of credence accorded Nelson's complaint by the inves-
tigating agency, the majority has no more basis to chastise WAL for dis-
missing the EEO complaint as frivolous than it does the Alexandria
Office of Human Rights or the EEOC. See Majority Op. at 6 n.8. Perhaps
had Nelson not moved in limine to preclude WAL from mentioning the
investigating agency's findings the jury's verdict would have been differ-
ent.

                     7
familiar with EEOC requirements, never alleged that the offensive
conduct was due to her race, despite numerous correspondence with
management complaining about unfair treatment.

I agree with the district court that the record reflects no complaints
of discrimination by Nelson between the EEOC charge and the
exchange of memos between Nelson and WAL's general manager,
Petrine Squires, during February 1994. Within one week of Nelson's
statements, Squires acknowledged Nelson's "first time allegations of
sexual harassment and other discriminatory conduct." (J.A. at 90k.)
Squires noted that Nelson's allegations covered an extended period of
time. In addition, she criticized Nelson, particularly due to her super-
visory status and familiarity with EEOC requirements, for not
promptly bringing matters to Squires's attention and for refusing to
disclose the victims of the alleged discrimination. Nevertheless, WAL
immediately hired a law firm to investigate Nelson's claims of harass-
ment. Based on Squires's reasonable reading of Nelson's memo, the
two-day on-site investigation focused on sexual harassment and a sex-
ually hostile work environment. Moreover, although Nelson was
interviewed by the attorney at length, she made no claim of harass-
ment of any kind. Accordingly, the law firm's final report in March
1994 concluded that there was no evidence of sexual harassment.

Thus, when confronted by Nelson's allegation of misconduct,
WAL took immediate and decisive action. If racial discrimination
existed at WAL, then it was Nelson's failure to particularize her con-
cerns that prevented its discovery and correction. As the district court
stated, "Nelson did not merely fail to inform Watergate of the prob-
lem, but she also actively, if inadvertently, prevented management
from discovering it." Nelson, 898 F. Supp. at 350.

I therefore agree with the district court that the testimony and
exhibits at trial do not support a finding of actual or constructive
notice to WAL of a racially-hostile environment. This conclusion is
consistent with Nelson's own testimony at trial, in which she con-
ceded that she "never used the word race," (J.A. at 172), because she
"was trying to be very diplomatic" and did not want "to just come out
and say, you-all are treating me bad because I am black" (J.A. at 171).
Nelson admitted that she never reported that Miss Green directed
racial slurs towards her. Furthermore, Nelson herself contradicts the

                    8
majority's conclusion that the February 1994 memo to Petrine Squires
gave WAL notice of the alleged racial discrimination:

           Q: In this memo to Miss Squires, anywhere in here do
          you make a charge of racial discrimination?

           A: No, I didn't come out in those words, no, I did not.

(J.A. at 177.) If Nelson recognized that her memo did not convey a
complaint of racial discrimination, how can the majority hold WAL
accountable for not taking remedial action to cure such discrimina-
tion?

Squires testified that in the two-and-one-half years Nelson was
employed at WAL, she complained neither orally nor in writing that
she was subjected to discrimination because of her race, and that no
employee ever reported that Nelson had made such a claim. Further,
Squires did not interpret Nelson's letter complaining about being
treated indifferently as a complaint of racial discrimination. More-
over, Squires's assistant, Ms. Reynolds, testified that in four inter-
views with Nelson in response to various complaints about
management, Nelson never said she felt discriminated against because
of her race. In fact, the issue of racial discrimination was never raised.
In sum, not a single witness at trial heard Nelson complain to a super-
visor or to anyone else that she was discriminated against because of
her race. (J.A. at 162 (M. Gomez), 163 (T.L. Bower), 164-65 (P.M.
Squires, 167 (J.W. Cisco), 197 (K.M. Green), 198 (P.A. Warters), 199
(L.A. Speakmon).)

All the evidence presented suggests that had Nelson raised the
issue of racial discrimination, WAL would have investigated the
charges immediately, as it did in response to Nelson's charges of sex-
ual harassment. I find no legally sufficient evidentiary basis upon
which a jury could find that WAL failed to take prompt action to cor-
rect any racially-hostile environment of which it had actual or con-
structive notice. Because I would affirm the district court, I dissent
from the opinion of the majority.

                     9
