                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 03-1883



DAWN M. GALLINA,

                                                  Plaintiff - Appellee,

          versus


MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO,
P.C.,

                                                 Defendant - Appellant.


                               No. 03-1947



DAWN M. GALLINA,

                                                 Plaintiff - Appellant,

          versus


MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO,
P.C.,

                                                  Defendant - Appellee.


Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, District
Judge. (CA-02-647-A)


Argued:   September 29, 2004                 Decided:   February 2, 2005
Before WILKINS, Chief Judge, and NIEMEYER and SHEDD, Circuit
Judges.


Affirmed in part, reversed in part, and remanded by unpublished
opinion.   Judge Shedd wrote the opinion, in which Chief Judge
Wilkins joined. Judge Niemeyer wrote a dissenting opinion.


ARGUED: Gregory Lynn Murphy, VORYS, SATER, SEYMOUR & PEASE, L.L.P.,
Alexandria, Virginia, for Mintz, Levin, Cohn, Ferris, Glovsky and
Popeo, P.C. Annette Kay Rubin, Leesburg, Virginia, for Dawn M.
Gallina.   ON BRIEF: Byron L. Pickard, VORYS, SATER, SEYMOUR &
PEASE, L.L.P., Alexandria, Virginia, for Mintz, Levin, Cohn,
Ferris, Glovsky and Popeo, P.C.


Unpublished opinions are not binding precedent in this circuit.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




                                2
SHEDD, Circuit Judge:

     A jury determined that Dawn Gallina suffered a retaliatory

discharge from the law firm of Mintz, Levin, Cohn, Ferris, Glovsky,

& Popeo, P.C. (“Mintz Levin”) in violation of Title VII of the

Civil Rights Act of 1964.     Mintz Levin now appeals the district

court’s denial of its Rule 50 (Fed. R. Civ. P.) motion for judgment

as a matter of law on Gallina’s retaliation claim.   Gallina cross-

appeals the district court’s grant of Mintz Levin’s Rule 50 motion

dismissing her claim for punitive damages, as well as the district

court’s denial of her claim for front pay.    For the reasons set

forth below, we affirm in part, reverse in part, and remand for

further proceedings.1



                                 I.

     Mintz Levin is headquartered in Boston, Massachusetts, and has

offices located throughout the United States.2   Gallina worked as

an associate in the Business and Finance section of Mintz Levin’s

office in Reston, Virginia.   Although based in the Reston office,

Gallina worked with attorneys from various offices during the


     1
      Mintz Levin also argues on appeal that the district court
erred with respect to certain jury instructions and trial
evidentiary rulings. We have carefully considered these arguments
and find them to be unpersuasive.
     2
      In this appeal from rulings on Mintz Levin’s Rule 50 motions,
we view the facts in the light most favorable to Gallina, the non-
movant. Babcock v. BellSouth Adver. and Publ’g Corp., 348 F.3d 73,
75 n.1 (4th Cir. 2003).

                                 3
course of her employment. Gallina was employed at Mintz Levin from

October 14, 1999, until she was terminated on March 23, 2001, for

alleged poor performance.

       Gallina’s problems at Mintz Levin began in November 1999, when

Mark Wishner, then acting as managing partner of the Reston office,

discovered that she has a small child. Wishner became disconcerted

about why Gallina had not informed him of her child when she

interviewed with the firm.        Thereafter, Gallina felt that Wishner

began to treat her differently than male associates.          For example,

Wishner was more collegial and cordial with male associates than he

was with Gallina.        Wishner used unusually harsh language toward

Gallina (e.g., “f--king idiot”),3 and on at least one occasion he

called her a “stupid bitch.”           J.A. 554.   Wishner also spoke with

Gallina “about the commitment differential between men and women,

how women lawyers have more demands place[d] on them, and [how]

it’s very hard for them to balance when they have a family.”             J.A.

554.       Additionally, Wishner told Gallina what she regarded as a

“cautionary      tale”   about   his   prior   experience   with   a   female

associate who, upon her return from maternity leave, inquired about

achieving partnership.       J.A. 554.      Wishner was “beside himself”

that the female associate would make such an inquiry, and the story




       3
      David Fuentez, a male associate, testified that Wishner never
used such an epithet directly toward him, and Wishner could not
recall using such harsh language toward Fuentez.

                                        4
left Gallina with the impression that “pregnant women don’t make

partner.”    J.A. 555, 635.4

     In February 2000, while on a trip to the Boston office,

Gallina complained about Wishner’s behavior toward her to Cindy

Deegan,     who   was   the   firm’s   Business   and   Finance     practice

administrator.     Gallina told Deegan that Wishner was treating her

differently because she is female. Deegan referred Gallina to Stan

Twarog, a Mintz Levin partner who served as the Business and

Finance section manager. Gallina then met with Twarog and repeated

her belief that Wishner was treating her differently because she is

female. Twarog expressed concern about Gallina’s complaint, and he

asked her not to file a formal complaint because he felt that the

matter could be dealt with informally.5       Being new to the firm and

trying to be a “team player,” Gallina trusted that Twarog would

deal with the matter in an appropriate manner.          J.A. 550.

     By May the news of Gallina’s complaints to Boston reached the

Reston office.      Scott Meza, a partner in the Reston office, told

Gallina that she had “caused a problem” for, and “embarrassed,” the

Reston office by complaining about Wishner to the Boston office.

J.A. 556-57.      Meza told Gallina that “[a]ny dirty laundry that



     4
      Other female employees at Mintz Levin told Gallina that
Wishner had “a pathological view towards women” and “a serious
problem with women.” J.A. 627, 641.
     5
      The record is unclear whether Twarog contemplated an EEOC
complaint or intra-office complaint.

                                       5
there may be in Reston needs to be handled in Reston.                You don’t

need to go to Boston.”       J.A. 557.       During a meeting in July, Meza

informed Gallina that she was not perceived as being “as committed”

as the other lawyers in the Reston office, and he stated that she

needed to decide whether she wanted to be “a successful mommy or a

successful lawyer.”       J.A. 560.    Also, Meza reiterated how Gallina

had “embarrassed us when [she] went to Boston.”              J.A. 560.

      After her July meeting with Meza, Gallina was upset and

concerned with Meza’s response to her complaints. Consequently,

Gallina met with Christina Gadiano, a female attorney in the Reston

office.    At this meeting, Gallina discussed her concerns about the

treatment she had received and stated her belief that it was

because she is female.          Gadiano related that during her own

pregnancy while at the firm, she had heard Wishner’s “pregnant

women don’t make partner” story.           Gadiano also stated that Wishner

had made a sarcastic remark to her that “we just had to get you out

of here, pregnant and all” before making future hiring decisions.

J.A. 522.      Gadiano suggested that Gallina speak to Susan Weller,

another female attorney that had children.                   Taking Gadiano’s

advice, Gallina met with Weller shortly thereafter and expressed

her concerns about Wishner’s conduct.

      In    September,    Gallina     took     her    complaints    of   gender

discrimination to Joan Howland, the Director of Human Resources for

the   Boston    office.      Gallina     sought      an   interim   performance


                                       6
evaluation from reviewers in Boston because she believed that some

of her Reston evaluations were biased.           Later, in October, Howland

denied Gallina’s request for the interim performance evaluation and

advised her to “keep [her] head down and do [her] work.”             J.A. 565.

        In November, David Barmak, a partner practicing employment

law, succeeded Wishner as the managing partner of the Reston

office.     Shortly afterward, Barmak met with Howland to discuss

Gallina’s “situation.”          J.A. 872.      On January 12, 2001, Barmak

withheld Gallina’s annual pay increase pending the results of her

performance      evaluations.         The    performance   evaluations    were

completed in mid-January.             In an e-mail on March 19, Barmak

notified     Gallina     that   the   performance    evaluations    had   been

assembled.       On these performance evaluations, all four reviewers

from the Reston office gave Gallina negative reviews, while both

reviewers from other offices gave her positive reviews.              Notably,

two of the negative evaluations from the Reston office came from

Wishner and Meza.       Four days later, on March 23, Barmak terminated

Gallina’s employment.

     Gallina thereafter brought this action against Mintz Levin

alleging claims under Title VII for gender discrimination, sexual

harassment, and retaliation.            Additionally, Gallina asserted a

claim    under    the   Equal   Pay   Act.     Gallina   sought   compensatory

damages, back pay, front pay, punitive damages, and reinstatement.




                                        7
     Before trial, the district court granted summary judgment in

favor of Mintz Levin on Gallina’s Title VII claims of gender

discrimination and sexual harassment, and her claim under the Equal

Pay Act.    The case then proceeded to trial on Gallina’s Title VII

retaliation claim. At the close of the evidence, Mintz Levin moved

pursuant to Rule 50 for judgment as a matter of law.   The district

court denied the motion as to the retaliation claim, finding that

credibility issues made this the “quintessential . . . jury case.”

J.A. 941.    The district court granted the motion as to Gallina’s

claim for punitive damages, noting that she failed to satisfy her

burden of showing that Mintz Levin had not acted in good faith.

The jury thereafter returned a verdict in Gallina’s favor, awarding

her $190,000 in compensatory damages and $330,000 in back pay.

Mintz Levin then renewed its Rule 50 motion on the retaliation

claim, which the district court denied.    The district court also

denied Gallina’s reinstatement and front pay claims.

     Mintz Levin now appeals the district court’s denial of its

Rule 50 motion on the retaliation claim.   On cross-appeal, Gallina

challenges the district court’s dismissal of her punitive damages

claim and its denial of her front pay claim.      We address these

arguments in turn below.6


     6
      We have reviewed Gallina’s argument concerning front pay. An
award of front pay is an equitable remedy within the district
court’s discretion. Cline v. Wal-Mart Stores, 144 F.3d 294, 307
(4th Cir. 1998). A district court must temper an award of front
pay “[b]ecause of the potential for windfall.” Duke v. Uniroyal,

                                  8
                                 II.

      Mintz Levin first argues that the district court erred in

denying its Rule 50 motion on Gallina’s retaliation claim.        We

review this ruling de novo.   Bryant v. Aiken Reg’l Med. Ctrs, Inc.,

333 F.3d 536, 543 (4th Cir. 2003).     Under Rule 50(b), our inquiry

is whether a jury, viewing the evidence in the light most favorable

to Gallina, “could have properly reached the conclusion reached by

this jury.”    Id. (internal quotations omitted).      If reasonable

minds could differ about the result in this case, we must affirm.

Id.

      Gallina can prove unlawful retaliation by showing (1) that she

engaged in a protected activity, (2) that Mintz Levin took an

adverse employment action against her, and (3) that a causal

connection links the protected activity and the adverse action.

Id.   Once Gallina makes this showing, Mintz Levin could defend

itself by producing “evidence of a legitimate, non-discriminatory

reason for taking the adverse employment action.”      Id. (internal

quotations omitted). The jury must then decide whether the adverse

action was actually taken for the proffered reason, or whether that

reason was merely pretext for retaliation.     Id.   In reviewing the

district court’s judgment, “we examine the full trial record to

determine whether sufficient evidence supported the jury’s verdict


Inc., 928 F.2d 1413, 1424 (4th Cir. 1991). We have reviewed the
record and conclude that the district court did not abuse its
discretion in denying Gallina’s claim for front pay.

                                  9
on     the      ultimate       question      of    the      alleged     retaliatory

discrimination.”         Id. (internal quotations omitted).7

       Gallina presented sufficient evidence at trial to establish

that she engaged in a protected activity.                     Through Title VII,

Congress has forbidden employers to retaliate against employees for

engaging       in     protected      activities    such     as     opposing   gender

discrimination in the workplace.                  See 42 U.S.C. § 2000e-3(a).

“Employees are thus guaranteed the right to complain to their

superiors about suspected violations of Title VII.”                     Bryant, 333

F.3d at 543-44.             Gallina made such complaints.           The jury heard

evidence that Gallina complained to at least four superiors at

Mintz Levin about her concerns of gender discrimination, lodging

most of her complaints after assurances by a partner that the

matter would be dealt with informally.

       Further, although Mintz Levin contends that Gallina lacked a

good faith, reasonable belief that the conduct she complained of

violated Title VII, see Peters v. Jenney, 327 F.3d 307, 320-21 (4th

Cir.       2003),    Gallina’s    repeated     complaints    and    expressions   of

concern in response to this conduct demonstrate that she actually

believed       she    was    being    subjected    to    gender     discrimination.

Additionally, Wishner’s alleged course of conduct toward Gallina,



       7
      The burden-shifting framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), is inapposite when the trial has
proceeded to completion. Jiminez v. Mary Washington College, 57
F.3d 369, 378 (4th Cir. 1995).

                                          10
viewed as a whole and in the light most favorable to Gallina, was

sufficiently serious to show that Gallina’s belief of illegal

discrimination was reasonable.           See Conner v. Schrader-Bridgeport

Int’l, Inc., 227 F.3d 179, 192 n. 16 (4th Cir. 2000) (explaining

that “[a]ctionable discrimination includes conduct ‘because of’ the

victim’s   gender,    which    is   broader   than   conduct   of   a   ‘sexual

nature’”).

      Mintz Levin does not dispute that it took adverse employment

actions against Gallina.        Indeed, Mintz Levin deferred Gallina’s

pay increase and ultimately terminated her.

      Gallina also presented evidence sufficient for a reasonable

jury to find that Mintz Levin’s pay deferral and firing were the

result of her complaints about gender discrimination.                    After

Gallina complained about Wishner’s conduct toward her to Deegan and

Twarog in Boston, Twarog asked Gallina not to file a formal

complaint and assured her that the matter would be dealt with

appropriately.   Subsequently, Meza explained on two occasions how

Gallina had embarrassed the Reston office by complaining about

Wishner to the Boston office -- where Gallina had complained about

gender discrimination.        Further, Meza requested that Gallina bring

future complaints to him. Despite these apparent efforts to stifle

her   attempts   to   complain      of    gender   discrimination,      Gallina

continued to complain to Gadiano, Weller, and Howland.              Within two

months of Barmak’s becoming the managing partner of the Reston


                                         11
office, he met with Howland to discuss Gallina’s “situation” and

deferred her pay increase.       Then, only two month’s after the pay

deferral, Barmak fired Gallina.             The jury could have reasonably

inferred from this evidence that Gallina’s pay deferral and firing

were manifestations of Mintz Levin’s retaliation against her.

     The    reasonableness     of     this    inference    is   buttressed   by

Gallina’s evidence that Mintz Levin had no other valid reason for

deferring her pay or terminating her.            Gallina presented evidence

that on her performance evaluations all four reviewers from the

Reston office (including Wishner and Meza) gave her negative

reviews, while both reviewers from other offices gave her positive

reviews.    This evidence supports the inference that, but for the

bias of the Reston office, Gallina’s work was acceptable to Mintz

Levin,    and   the   firm   fired    Gallina   because    of   her   continued

complaints of gender discrimination.

     We    therefore    hold   that    there    is   sufficient   evidence   to

support the jury’s verdict on Gallina’s retaliation claim.



                                      III.

     We now turn to Gallina’s cross-appeal.               Gallina argues that

the district court erroneously granted judgment as a matter of law

to Mintz Levin on her claim for punitive damages.                 Our inquiry

requires that we determine whether the evidence, viewed in the

light most favorable to Gallina, would have permitted a reasonable


                                       12
jury to return a verdict in her favor on punitive damages.

Anderson v. G.D.C., Inc., 281 F.3d 452, 457 (4th Cir. 2002).

     A Title VII plaintiff is entitled to punitive damages if her

employer engaged in intentional retaliation “with malice or with

reckless indifference to [her] federally protected rights.”     42

U.S.C. § 1981a(b)(1). This standard does not require “a showing of

egregious or outrageous discrimination,” but rather proof that the

employer retaliated “in the face of a perceived risk that its

actions will violate federal law.”     Kolstad v. American Dental

Ass’n, 527 U.S. 526, 535-36 (1999).8    However, “in the punitive

damages context, an employer may not be vicariously liable for the

discriminatory employment decisions of managerial agents where

these decisions are contrary to the employer’s good-faith efforts

to comply with Title VII.”      Id. at 545 (internal quotations

omitted).   Thus, the questions we must answer are: (1) whether

Gallina presented sufficient evidence for the jury to find that

Mintz Levin, in the course of its unlawful retaliation, perceived

the risk of violating Title VII and (2) whether Mintz Levin

presented sufficient evidence such that a reasonable jury could


     8
      For Mintz Levin to be held vicariously liable for punitive
damages, Gallina “must also show that the discriminating employee
served the employer in a managerial capacity and committed
intentional discrimination while acting within the scope of
employment.” Bryant, 333 F.3d at 548 n.4. In this appeal, there
is no dispute that the Mintz Levin employees (including partners at
the firm) responsible for Gallina’s pay deferral and firing
qualified as managerial agents acting within the scope of
employment.

                                13
only conclude that it engaged in good-faith efforts to comply with

Title VII.9

     We hold that Gallina presented evidence that is sufficient for

a reasonable jury to find that Mintz Levin perceived the risk of

violating federal law through its retaliation.               A reasonable jury

could    have   found   that   members     of    a   prominent   law   firm,   and

especially a law firm with an employment law section in the

relevant office, perceived the risk of violating federal law in

retaliating against an employee.                 See Lowery v. Circuit City

Stores, Inc., 206 F.3d 431, 443 (4th Cir. 2000) (stating that an

employer perceived the risk of violating federal law where that

employer required every manager “to attend a week-long training

seminar that included education on the federal anti-discrimination

laws”);   Anderson,     281    F.3d   at   460    (finding   that   an   employer

perceived the risk of violating federal law where that employer

merely knew of an anti-discrimination poster in the workplace).

Notably, Barmak was an employment lawyer and was aware of Gallina’s

complaints of gender discrimination, so he undoubtedly could have

perceived the risk of violating federal law.              Barmak even admitted



     9
      We agree with other circuits that have held that it is the
employer’s burden to establish that it has engaged in good-faith
efforts to comply with Title VII. See Zimmermann v. Associates
First Capital Corp., 251 F.3d 376, 385 (2d Cir. 2001); Romano v. U-
Haul, Int’l, 233 F.3d 655, 670 (1st Cir. 2000); Passantino v.
Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 516 (9th
Cir. 2000); Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 188 F.3d
278, 286 (5th Cir. 1999).

                                       14
that if a member of a protected class raises complaints, employers

should explore the possibility that Title VII issues have arisen.

J.A. 884.    Thus, a reasonable jury could have found sufficient

evidence that Mintz Levin perceived the risk of violating federal

law through its retaliation against Gallina.

       We also hold that Mintz Levin did not proffer sufficient

evidence such that a reasonable juror could only conclude that the

firm engaged in good-faith efforts to comply with Title VII.

Although Mintz Levin proffered evidence of the existence of a

“Sexual Harassment Prevention Training” manual and a contact person

to deal with sexual discrimination issues, there was no evidence

that Mintz Levin had any specific policy regarding retaliation.

The only evidence of any policy was a reference in the “Sexual

Harassment Prevention Training” manual, but there was no evidence

that anyone at the firm was aware of that policy, nor that it was

implemented or enforced. Particularly condemning is the fact that,

assuming any policy existed to deal with gender discrimination and

retaliation, the policy completely failed Gallina because her

complaints    of   gender     discrimination     caused    her   ultimate

termination. After considering the conflicting evidence presented,

we are not persuaded that a reasonable juror could only conclude

that Mintz Levin engaged in good-faith efforts to comply with Title

VII.     Accordingly,   the   district   court   erred    by   disallowing

Gallina’s punitive damages claim to go to the jury.


                                   15
                               IV.

     Based on the foregoing, we affirm in part, reverse in part,

and remand for consideration of punitive damages.



                 AFFIRMED IN PART, REVERSED IN PART, AND REMANDED




                               16
NIEMEYER, Circuit Judge, dissenting:

          On this record, I would reverse the district court's

order denying Mintz Levin's Rule 50 motion for judgment as a matter

of law because Gallina failed, as a matter of law, to prove that

her complaints with respect to Wishner's behavior constituted

protected activity.   In particular, the evidence on the severity

and pervasiveness of Wishner's discriminatory conduct was too weak

to support a jury finding that Gallina reasonably believed it to

constitute a violation of Title VII.   She also failed to prove that

Mintz Levin's proffered reason for discharging her -- that she was

performing poorly -- was pretextual.

          To survive a Rule 50 motion, a plaintiff in a Title VII

retaliation claim must present enough evidence that a reasonable

juror could find (1) that the plaintiff engaged in a protected

activity; (2) that the employer acted adversely to the plaintiff;

and (3) that the protected activity was causally related to the

adverse action.   Beall v. Abbot Labs., 130 F.3d 614, 619 (4th Cir.

1997).   And although the employee need not successfully establish

an underlying violation of Title VII to succeed on a retaliation

claim, for an employee's complaints to constitute a "protected

activity," the employee must have held a reasonable belief that the

complained-of conduct violated Title VII.     Peters v. Jenney, 327

F.3d 307, 320-21 (4th Cir. 2001).    Thus, this "protected activity"

test contains both a subjective and an objective component.


                                17
              In this case, no reasonable juror could have concluded,

based on the evidence presented at trial, (1) that Gallina actually

held a belief that Wishner's conduct violated Title VII or (2) that

such a belief would have been objectively reasonable. This alleged

belief   of    discrimination       must    be   assessed    in   light   of   the

underlying Title VII claim. In this case, Gallina alleged that her

complaints were in response to Wishner's treatment of her during

the   course    of   her   employment.       Her    allegations    most   closely

resemble a hostile work environment claim, the elements of which

are (1) the conduct was done "based on the plaintiff's sex"; (2)

the conduct was unwelcome; (3) the conduct was sufficiently "severe

or pervasive" so as to alter the terms and conditions of her

employment; and (4) the conduct was imputable to her employer.

Anderson v. G.D.C., Inc., 281 F.3d 452, 458 (4th Cir. 2002).

              The evidence presented at trial does not support a

conclusion that Gallina held a good-faith, reasonable belief that

Wishner's      conduct     was   sufficiently      "severe   or   pervasive"    as

effectively to alter the terms and conditions of her employment.

Id.   The Supreme Court has noted that "'simple teasing,' offhand

comments, and isolated incidents (unless extremely serious) will

not amount to discriminatory changes in the 'terms and conditions

of employment.'"      Faragher v. City of Boca Raton, 524 U.S. 775, 788

(1998) (internal citation omitted).                More relevant to the case

before us, the Supreme Court has said that a single, isolated


                                       18
incident is insufficient to support a finding that the plaintiff

reasonably believed that the conduct was severe and pervasive.

Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 271 (2001).

           Gallina   bases   her   claim      on   a   handful   of    isolated

incidents:   (1) Wishner routinely used foul language with respect

to Gallina's work and threatened to fire her if she "f--ked up"

assignments. (2) On a couple of occasions Wishner required Gallina

to work on weekends even in the absence of a pressing due date.

(3) Wishner required Gallina to remain in constant contact with him

("wired") during her vacation.         (4) Wishner commented about the

commitment   differential    between    men    and     women.    (5)    Wishner

remarked on the audacity of a woman who returned from maternity

leave and immediately asked about making partner.                 (6) On one

occasion, Wisher called Gallina a "f--king idiot" and a "stupid b--

ch."   And (7) on one occasion, Wishner asked Gallina to make coffee

when she worked on a weekend.

           With respect to the first three incidents (foul language,

working weekends, and remaining "wired"), the record demonstrates

that they were not discriminatory, as Wishner treated Gallina's

male counterparts in the firm in the same manner.                The next two

incidents (the comment about the "commitment differential" and the

maternity leave story) are analogous to what the Supreme Court

referred to as "simple teasing" or "offhand comments" in Faragher,

524 U.S. at 788.     Gallina is thus left with only two legitimate


                                   19
instances of discriminatory conduct -- the name-calling incident

and the coffee-making incident.     Those incidents, however, do not

come close to being so "severe or pervasive" as effectively to

change the terms and conditions of Gallina's employment.

          It is noteworthy that the record contains evidence that,

at the time, Gallina did not understand Wishner's conduct to be

severe or persuasive, since she nominated Mintz Levin for the "100

Best Companies for Working Moms" list and recommended the firm to

her boyfriend. If Wishner's conduct were as severe or pervasive as

Gallina claimed at trial, it is doubtful that she would have

nominated or recommended the firm.        The record does show that

Wishner   was    a   very   demanding   supervisor   and   often   used

inappropriate language when communicating with his inferiors, but

Gallina has failed to prove that Wishner regularly treated her more

severely than he treated male attorneys.        Accordingly, I would

reverse the district court's denial of Mintz Levin's Rule 50

motion.

          In addition, the evidence failed to show that Gallina's

discharge was caused by her complaints about Wishner's behavior.

Mintz Levin provided extensive evidence of Gallina's inadequate

performance and failures as an attorney and contended that her poor

performance was the reason that the firm discharged her.       Gallina

contends that the firm's proffered reasons for discharging her were

pretextual.     Even though Gallina presented some evidence that she


                                   20
performed well on occasion, she does not provide any response to

the incidents in which she was clearly deficient. The firm pointed

to four evaluations from attorneys in the Reston office (where

Gallina worked) rating her work below-average.          It described one

transaction, on which she worked, where Gallina failed in her

responsibility to file documents creating preferred stock shares,

and another transaction where she failed to account for a stock

split when preparing an employment agreement for the client.           The

latter mistake required the firm to rework the deal.

            Because the evidence was insufficient to prove two of the

three requirements for a Title VII retaliation claim, I would

reverse the district court's denial of Mintz Levin's motion under

Rule   50   and   remand   this   case   to   the   district   court   with

instructions to enter judgment in favor of the defendants.




                                    21
