                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 08-1270


SUSAN J. KEESHAN, MD,

                Plaintiff - Appellant,

           v.

EAU CLAIRE COOPERATIVE HEALTH       CENTERS,    INC;   STUART   A.
HAMILTON, MD; DEBORAH DAVIS, MD,

                Defendants - Appellees.



Appeal from the United States District Court for the District of
South Carolina, at Columbia.     Margaret B. Seymour, District
Judge. (3:05-cv-03601-MBS)


Argued:   January 26, 2010               Decided:   September 14, 2010


Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Aaron J. Kozloski, CAPITOL COUNSEL, LLC, Columbia, South
Carolina, for Appellant.   Kathryn Thomas, GIGNILLIAT, SAVITZ &
BETTIS, Columbia, South Carolina, for Appellees.      ON BRIEF:
Christina M. Summer, GIGNILLIAT, SAVITZ & BETTIS, Columbia,
South Carolina, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Dr. Susan Keeshan, a physician who is Jewish and of

Hispanic       descent,      sued     her         former     employer,        Eau    Claire

Cooperative       Health    Centers,       Inc.      (the    Cooperative),          alleging

under    Title    VII   that    she     was       terminated       in     retaliation     for

filing a complaint claiming that her supervisors discriminated

against her because she is not black.                            Keeshan also brought

claims under state law for wrongful discharge and nonpayment of

wages.     The     district     court       granted        summary      judgment     to   the

Cooperative on the wrongful discharge claim.                         After a trial the

jury found for the Cooperative on the Title VII retaliation and

South Carolina Payment of Wages Act claims.                             Keeshan appeals,

challenging the district court’s (1) grant of summary judgment

on   the   wrongful        discharge       claim,     (2)        ruling    that     required

Keeshan    to     disclose      her    post-termination              income    on     cross-

examination, (3) denial of Keeshan’s motion for a new trial, and

(4) imposition of costs on Keeshan as the losing party.                                    We

affirm.

                                            I.

                                            A.

               Keeshan is an obstetrician/gynecologist (OB-GYN) who

was employed by the Cooperative in Columbia, South Carolina,

from    July     2000   until    July      2004.           Her    employment      with    the

Cooperative       was   part    of     a    medical         school      scholarship       she

                                              2
received from the National Health Service Corps (NHSC).                                        The

scholarship     required        Keeshan       to    spend     four      years       after      her

residency      at     an     NHSC-approved          site     that      provides          medical

services       to      traditionally          underserved              populations.            The

Cooperative’s         director,       Dr.    Stuart        Hamilton,         also       an    NHSC

scholar, started the Cooperative in 1981 to treat low-income

residents      of     the     Eau    Claire        community      in     Columbia,           South

Carolina.       With the help of charitable donations and federal

funding, the Cooperative expanded over the next twenty years to

include      nine     facilities,      including        an     OB-GYN        practice         that

opened in 1997.            Hamilton interviewed Keeshan in early 2000 and

hired her as a physician in the Cooperative’s OB-GYN practice.

The Cooperative was the only NHSC-approved site in Columbia,

where Keeshan hoped to work so she could be with her husband.

Although aware that Keeshan was at the Cooperative under her

scholarship     obligation,          Hamilton       considered         it    a     possibility

that   she     would       remain    after     completing         the       four-year         NHSC

requirement.         Soon after Keeshan started, the only other OB-GYN

left   the    Cooperative,          making    Keeshan       the     sole     physician         and

leader of the OB-GYN practice.                 The Cooperative eventually hired

two    other        OB-GYNs     during       Keeshan’s         four-year           period       of

employment.

              While        negotiating       the      terms       of        her     employment

contract,      Keeshan        informed       Hamilton        that      she        was    Jewish.

                                              3
Hamilton    responded    that       the    Cooperative       would       give    her     Yom

Kippur,     Rosh   Hashanah,        and    the    first     day     of    Passover        as

holidays.     As for delineating the duration of her employment,

Keeshan’s contract provided that the “term of this Agreement

shall be for one year from the date [Keeshan] begins employment

and shall be automatically renewed for successive one-year terms

unless    terminated    as    hereinafter         provided.”         S.A.       97.      The

occurrences    that     could    trigger         termination       of    the     contract

included: (1) “By notice in writing to the other party given one

hundred and twenty (120) days prior to the date of termination”;

(2)   “Material      breach     of        contract     by        [Keeshan]       or     [the

Cooperative]”; (3) “Death or total disability of [Keeshan]”; (4)

“[Keeshan] conducting [herself] in an unprofessional, unethical

or fraudulent manner”; and (5) “Financial exigency as verified

by an independent party or financial review.”                       S.A. 98.          If any

of these occurrences transpired, Keeshan was entitled to unpaid

compensation and benefits accrued as of the termination date.

Keeshan’s annual salary started at $150,000 and increased to

$160,000, $165,000, and $175,000 during her last three years at

the Cooperative.

            Keeshan’s    employment         with     the    Cooperative         proceeded

fairly    smoothly     for    the    first       couple     of    years.         Hamilton

recalled at trial that conflict first arose between Keeshan and

the   Cooperative     over    her     appointment         scheduling       and    billing

                                            4
documentation.                The     Cooperative        could        not    discern        which

appointments and bills were Keeshan’s.                           Additionally, Hamilton

learned that Keeshan was performing artificial inseminations for

homosexual couples, which Hamilton considered inappropriate in

light       of    the       Cooperative’s        federal       funding.           Nonetheless,

Hamilton gave Keeshan favorable evaluations from 2000 to 2003.

                 Keeshan’s tension with Hamilton escalated in 2003.                            In

May    2003       Keeshan      requested         time    off    for    elective        surgery.

Following         a     meeting       in   which        Hamilton       asked      Keeshan      to

reschedule         her      surgery     due      to   another      physician’s         absence,

Keeshan sent Hamilton an email saying that she found his request

insensitive           and    inappropriately          presented       in    front      of   other

staff.       Hamilton found Keeshan’s email inappropriate, primarily

due    to    Keeshan’s        use   of     the    phrase       “rip   me    a    new    one”   to

describe Hamilton’s behavior during the meeting.                                J.A. 136, S.A.

101.     Hamilton deemed the email “sexually explicit,” sarcastic,

and insulting.              J.A. 136.      He testified that he decided at that

moment that he would allow Keeshan to serve the time remaining

on the four years required by her scholarship, but that he would

not keep her on after July 2004.                         Keeshan apologized for the

email       and    thought       that      her    professional         relationship          with

Hamilton was partially restored.                         Hamilton, however, filed a

corrective action form regarding the email.



                                                  5
            Conflict        resumed      when      the     Cooperative         hired    another

OB-GYN, Dr. Deborah Davis, with whom Keeshan did not get along.

Davis, who is African American, became the Interim Director of

Women’s      Health         and       assumed             Keeshan’s         administrative

responsibilities.            This     did      not    cause        Keeshan’s      salary      or

benefits    to    decrease.         Keeshan          felt       that    Davis    took       every

opportunity to blame and demean her.                            In particular, Keeshan

took   offense    to    Davis’s       omission        of    the    title       “Doctor”     when

referring to Keeshan and to Davis’s practice of calling other

African Americans “brothers” and “sisters.”                        J.A. 40.

            In    February     2004      Hamilton          gave    Keeshan      two     written

warnings    within     three      days    of       each    other.        One     was    for    an

unauthorized on-call arrangement that Keeshan entered into with

another physician without Davis’s approval.                             The other was for

Keeshan’s name appearing at the bottom of an open letter to

patients urging them to contact their legislators to support

tort   reform.        The    letter      appeared         in    South    Carolina’s         State

newspaper and declared that OB-GYNs were faced with the prospect

of being unable “to continue to deliver babies” due to increased

liability    premiums.            S.A.      104.          The     Cooperative’s         written

warning to Keeshan called the letter “needlessly misleading,”

alarming     to       patients,       and       “in        stark       contrast        to     the

Cooperative’s stated mission of providing care to all patients,

regardless       of    their      economic         status.”             S.A.     108.         The

                                               6
Cooperative     reprimanded      its   other     OB-GYNs     who     signed     this

letter, including Davis.         Before issuing the warning to Keeshan,

Hamilton tried to call her at home to persuade her to call the

newspaper and request removal of her name.                 Hamilton was unable

to   reach    Keeshan,     but    he    received     an      email     containing

unsolicited legal advice from Keeshan’s husband, Aaron Kozloski,

a lawyer.     Hamilton testified that Kozloski sent him unsolicited

legal advice on multiple occasions.

             Keeshan filed formal grievances with the Cooperative

after receiving these two warnings.               The grievances protested

the warnings and Davis’s unprofessional conduct generally.                      The

Cooperative’s grievance committee set a grievance hearing for

February 20, 2004, but Keeshan did not receive notice of the

hearing because it was placed in her mailbox on her day off.

She received a call from a committee member on the day of the

hearing, but she was in a meeting that she could not leave.                      No

mention was made of rescheduling the hearing, which took place

without     Keeshan.       The   grievance       committee     concluded       that

Keeshan’s     complaints    regarding      her    written     warnings        lacked

merit.      The committee did, however, in response to Keeshan’s

complaints    about    Davis,    decide    that    the     Cooperative        should

circulate a memorandum to its employees on professional conduct

and courtesy.



                                       7
               On       February     23,    2004,    Keeshan     wrote     Hamilton    a

memorandum requesting              $127,500 in productivity bonuses that she

claimed to be owed under her contract.                   On the same day, Keeshan

also       filed    a    discrimination      complaint    with    the    Cooperative’s

human resources department, alleging that the Cooperative and

Davis subjected her to a hostile work environment on account of

her religion and race.               Although she mentioned both racial and

religious discrimination, the bulk of her complaint alleged that

Davis,       with       Hamilton’s    consent,      subjected    Keeshan    to   unfair

treatment solely because Keeshan is not black. 1                         Her complaint

requested that Davis be immediately terminated and that Keeshan

be   restored        to    her   original    position    as     Director   of    Women’s

Health.        Hamilton testified that this complaint was the first

time he learned of Keeshan’s Hispanic descent.

               Two        days   after     receiving     Keeshan’s       request      for

productivity bonuses and her discrimination complaint, Hamilton

       1
        During a colloquy with court at the close of trial,
Keeshan’s counsel maintained that Keeshan never pursued a
religious discrimination complaint in her pleadings and that the
issue of her religion was “water under the bridge.”     J.A. 303.
The Title VII heading of Keeshan’s supplemental complaint refers
only to racial discrimination.    But in the factual allegations
she   refers   to   the  “racial  and  religious   discrimination
grievance” that she submitted to the Cooperative.        J.A. 29.
Because her Title VII retaliation claim was based on this
grievance that alleged discrimination on both grounds, the court
instructed the jury that it could find unlawful retaliation
based   on   Keeshan’s  complaint   of  “race  and/or   religious
discrimination.” J.A. 363.



                                              8
talked with her at a board meeting.                     He inquired about her plans

to attend law school and discussed whether they could agree on

some changes that would make her happy.                         The next day Hamilton

gave     Keeshan    a     proposed     agreement.           Noting       that     Keeshan’s

“service obligation to [NHSC] ends in four short months” and

that it “is important to finish any task well,” Hamilton offered

to (1)     meet personally with the staff in the OB-GYN division to

“reduce    the     level     of    tension        that    has    arisen       there;”    (2)

reassign Keeshan to a different Cooperative office as the sole

OB-GYN    for     the     remainder    of    her    NHSC    term;       (3)     remove   the

warning     letter         regarding        Keeshan’s           unauthorized        on-call

arrangement from her personnel file; (4) allow a family practice

resident     to     rotate    through        Keeshan’s      new        office;    and    (5)

“discuss[] in good faith” the prospect of Keeshan’s employment

with the Cooperative beyond her NHSC obligation, “assuming all

aspects     of     this    agreement        are    in    effect.”          S.A.     167-68.

Hamilton     proposed        that,     in        return,     Keeshan          rescind    her

grievances against the Cooperative, demonstrate a willingness to

engage in “constructive personal dialogue” on her various areas

of conflict with the Cooperative, and that Keeshan’s husband

cease communication with the Cooperative.                         S.A. 168.         Keeshan

objected    to     the    proposed     relocation         and    did    not     accept   the

agreement. Hamilton gave Keeshan a revised agreement without the

relocation proposal.              Unsatisfied with the proposed term that

                                             9
her husband cease communication with the Cooperative, Keeshan

rejected      the    revised        agreement.         The    Cooperative          then     gave

Keeshan 120 days’ notice that her contract would not be renewed

after July 2004.

              In     May     2004     Keeshan        filed     a     discrimination         and

retaliation         complaint       with      the     EEOC.          The    complaint        was

transferred to the South Carolina Human Affairs Commission, and

Keeshan received a right to sue letter in October 2004.                               Keeshan

sued the Cooperative in South Carolina state court.                                After she

amended her complaint to include federal claims, the case was

removed    to      federal      court    in   the     District       of    South    Carolina.

Keeshan’s claims included a racial discrimination claim under

Title VI and Title VII, a retaliation claim under Title VI and

VII,   and    claims       under     state     law    for     wrongful      discharge       and

unpaid wages.          The district court granted summary judgment to

the    Cooperative         on    Keeshan’s          Title     VI     claims,       Title    VII

discrimination claim, and wrongful discharge claim.                                 Keeshan’s

Title VII retaliation claim and her unpaid wages claim proceeded

to a jury trial in February 2008.

                                              B.

              Over objection from Keeshan’s counsel, the jury heard

Keeshan      testify       on   cross-examination            about    her    income        after

leaving the Cooperative.                Keeshan said that her yearly income in

2007 was $300,000.               Keeshan’s counsel argued that her income

                                              10
after 2005 was irrelevant because she was not seeking back pay

for    any    period        after    that    year.      The    Cooperative’s            counsel

responded      that     her        current   income     was    relevant          in   that   it

“show[ed] that she is much better off today than if she had

stayed where she was.”                J.A. 276.        Moreover, the Cooperative’s

counsel maintained that Keeshan’s current salary was relevant to

her request for punitive damages.                      The court was persuaded by

the last point and ruled that the 2007 salary testimony was

admissible if Keeshan sought punitive damages.                          At the close of

trial,       the     court    ultimately       found    insufficient             evidence    of

malicious or reckless conduct by the Cooperative to warrant a

punitive damages instruction to the jury.                         The jury found for

the Cooperative on both the retaliation and unpaid wages claims.

               Keeshan moved for a new trial on the grounds that the

jury    was        unduly    prejudiced       after    learning        of    her      $300,000

salary.       In support of her motion, she submitted an affidavit

swearing that she heard “gasps from the jury box” and that she

could tell from the astonished looks on jurors’ faces that they

had already decided against her.                   J.A. 373-74.        The court denied

Keeshan’s      motion        and    taxed    Keeshan   with     costs       as    the    losing

party.       Keeshan appeals, asking this court to (1) reverse the

grant of summary judgment to the Cooperative on her wrongful

discharge claim, (2) hold that she is entitled to a new trial on

the    grounds       that    her     post-termination         income    was       erroneously

                                              11
admitted into evidence, and (3) hold that even if she remains

the losing party, she should not be taxed with the Cooperative’s

costs.

                                              II.

                                              A.

            We first address the district court’s grant of summary

judgment    to    the    Cooperative       on       Keeshan’s      state       law    wrongful

discharge    claim.         Keeshan      maintains         that    she    was       wrongfully

discharged    in       retaliation      for    asserting       her     right        to   unpaid

wages    under     South        Carolina’s          Payment       of   Wages         Act,     for

exercising       her    civil       rights,    and     for    refusing         to     aid     the

unlicensed       practice      of    medicine        and   insurance       fraud.            This

wrongful discharge claim is based on South Carolina’s public

policy   exception        to    the     employment         at-will       doctrine.            The

exception    permits       a    cause    of     action       “where      the    retaliatory

discharge    of    an    at-will      employee        constitutes        violation          of   a

clear mandate of public policy.”                       Ludwick v. This Minute of

Carolina, Inc., 337 S.E.2d 213, 225 (S.C. 1985).                           The exception

applies to at-will employees’ claims of retaliatory termination

for invoking their rights under the Payment of Wages Act.                                   Evans

v. Taylor Made Sandwich Co., 522 S.E.2d 350, 354 (S.C. Ct. App.

1999).

            The district court held that Keeshan could not avail

herself of the public policy exception because she was not an

                                              12
at-will     employee        of     the       Cooperative.          The    court        rejected

Keeshan’s       comparison        of     her    contract     to    that     in    Stiles      v.

American General Life Insurance Co., 516 S.E.2d 449, 451 (S.C.

1999),    in    which       the    South       Carolina    Supreme       Court    found      the

durational terms of an employment contract so indefinite that

the    employee       was   essentially          at-will.         The    contract       allowed

either party to terminate the employment relationship “for any

reason” upon thirty days’ written notice.                               Id. at 450.          The

supreme     court       reasoned         that     the     notice     provision         was    so

unrestricted that it left the employee “in the same position as

an    at-will       employee      with    the    only     difference      being     that     the

employer       is    required      to     give    the     employee       notice    prior      to

terminating employment.”                 Id. at 451.

               We agree with the district court that Keeshan failed

to raise a material factual dispute over whether she was an at-

will employee.          The automatic renewal provision indicates that

the contract would continue from year to year absent one of the

specified       termination-triggering                  occurrences.             The     notice

provision, if invoked, had to be invoked at least 120 days prior

to the end of a one-year term.                          This durational restriction

distinguishes Keeshan’s contract from the completely unfettered

contract       in    Stiles.           The     contract     in    Stiles    contained         no

definite    durational           term,    whereas       Keeshan’s       contract       provided

that it would remain in effect “for one year from the date

                                                13
[Keeshan] begins employment and shall be automatically renewed

for successive one year terms.”               S.A. 97 (emphases added).

             Although Keeshan’s contract contained a 120-day notice

provision that could be invoked by either party, her contract

had   more    constraints        than   the     contract    in   Stiles.      Because

Keeshan started at the Cooperative on July 17, 2000, the one-

year terms ran from July 17 of one year to July 17 of the next.

When Keeshan refused to accept Hamilton’s revised agreement by

March 5, 2004, the Cooperative gave her 120 days’ notice that

her employment would not continue after she completed the last

one-year term of her four-year scholarship requirement.                       March 5

was   the    first    day   of    the   120-day      notice   period.       Keeshan’s

employment with the Cooperative ended on July 17, 2004, 132 days

later.      If the Cooperative had tried to give Keeshan 120 days’

notice on, say, March 30 instead of March 5, this would have

violated the contract because there would be fewer than 120 days

remaining on the term.             Keeshan’s contract was therefore unlike

the contract in Stiles, which did not have a durational term

constraining         the    parties’       ability     to     invoke    the    notice

provision.       Indeed,         Keeshan    herself     interpreted     the    notice

provision as protecting her from having at-will status.                            She

testified     that    during      her   discussion     with      Hamilton   over   his

proposed resolution of her complaints, she explained that she



                                           14
was “not going to waive [her] 120 day notification.                                    Otherwise

[she] would be an at-will employee.”                          S.A. 74.

               Further,        the        other          termination-triggering           events

listed    in     the     contract          (death,           total    disability,       material

breach, unprofessional conduct, and financial exigency) suggest

that    unlike    the        parties      in    Stiles,        neither       Keeshan     nor    the

Cooperative       had       unbounded       discretion           to    end     the    employment

relationship.          Keeshan was not an “otherwise at-will employee,”

with the “only difference” being that the Cooperative had to

give her 120 days’ notice of termination. Stiles, 516 S.E.2d at

450-51 (emphasis added).                   Her contract contained a durational

term of one year and limited the time period during which the

parties could invoke the notice provision.

                                                  B.

               We now turn to Keeshan’s argument that her compelled

cross-examination            testimony         on      her    income     after       leaving   the

Cooperative was irrelevant and prejudiced the jury to decide

against    her.         “A    trial       court        possesses       broad    discretion      in

ruling    on     the    admissibility               of    evidence,      and     we    will    not

overturn an evidentiary ruling absent an abuse of discretion.”

United    States       v.    Hedgepeth,         418       F.3d   411,     418-19       (4th    Cir.

2005).    An “abuse of discretion occurs only when a trial court

has    acted    arbitrarily          or    irrationally          in    admitting       evidence,

when a court has failed to consider judicially recognized facts

                                                  15
constraining its exercise of discretion, or when it has relied

on erroneous factual or legal premises.”                                  Id. at 419 (internal

citations and quotations omitted).                            “If an evidentiary ruling is

found     to        be     erroneous,          we        then      review        the     error      for

harmlessness.”             Id. (internal citations and quotations omitted).

To conclude that the district court’s evidentiary errors were

harmless, “we need only be able to say with fair assurance,

after     pondering          all       that     happened             without       stripping        the

erroneous      action        from      the     whole,         that    the       judgment     was    not

substantially swayed by the error.”                            United States v. Heater, 63

F.3d 311, 325 (4th Cir. 1995) (internal citations and quotations

omitted).

               We        agree    with       Keeshan          that    the       district      court’s

admission of her testimony on her post-termination income was

based on an erroneous legal premise and was therefore an abuse

of   discretion.             The       court    found          the    testimony         relevant     to

Keeshan’s request for punitive damages, which she sought under

her Title VII retaliation claim.                         Title VII permits              recovery of

punitive       damages       from       private      employers            “if    the     complaining

party     demonstrates              that       the            respondent         engaged       in     a

discriminatory practice or discriminatory practices with malice

or with reckless indifference to the federally protected rights

of   an   aggrieved          individual.”                42    U.S.C.      1981a(b)(1).            This

standard       requires          the    plaintiff             to   show     that       the   employer

                                                    16
“discriminate[d]       in    the   face    of   a    perceived     risk   that   its

actions will violate federal law.”              Kolstad v. Am. Dental Ass’n,

527 U.S. 526, 536 (1999).           It is axiomatic that the purpose of

punitive damages is to punish and deter defendants.                   “Most often

. . . eligibility for punitive awards is characterized in terms

of   a   defendant’s    motive     or     intent.”      Id.   at   538    (emphasis

added).    That Keeshan’s salary nearly doubled after leaving the

Cooperative may indicate that Keeshan was better off in another

job.     But her improved financial status is irrelevant to her

contention that the Cooperative terminated her with malice or

reckless indifference to her right under Title VII to bring a

racial and religious discrimination complaint.

            Yet we are satisfied that this error was harmless.

After reviewing the record, we can say with more than “fair

assurance” that the jury was not “substantially swayed” by the

revelation of Keeshan’s higher salary to render a verdict for

the Cooperative.            Heater, 63 F.3d at 325.              After the court

declined to send a punitive damages instruction to the jury,

Keeshan’s counsel did not proffer a limiting instruction that

Keeshan’s subsequent income was irrelevant to her claims.                        The

district court correctly instructed the jury on what Keeshan had

to show to prevail on her Title VII retaliation claim, and her

Wages Act claim.        The court also instructed the jury to follow



                                          17
the   law    as    stated        by    the   court   and    not   to    decide    based    on

personal dislikes or prejudices.

              Without           “stripping     the    erroneous        action    from     the

whole,” Heater, 63 F.3d at 325, the record supports the jury’s

findings for the Cooperative.                       A Title VII retaliation claim

requires a plaintiff to prove that (1) she engaged in protected

activity, (2) an adverse employment action was taken against

her, and (3) a causal connection between the protected activity

and the adverse action.                 Holland v. Wash. Homes, Inc., 487 F.3d

208, 218 (4th Cir. 2007).                    Keeshan would have to show that the

Cooperative did not renew her contract “because [she] engaged in

a protected activity” by complaining about discrimination.                                Id.

(emphasis         in       original)     (internal        citations      and     quotations

omitted).         If a plaintiff establishes a prima facie case, the

burden      shifts         to   the    defendant     to    articulate     a     “legitimate

nonretaliatory reason for its actions.”                      Id. (internal citations

and quotations omitted).

              The record comes up far short for Keeshan on the third

element      of        a    prima      facie    retaliation       claim:       the     causal

connection         between        the    adverse      action      and    the      protected

activity.         Keeshan’s problems at the Cooperative started long

before      she        filed     her    discrimination        complaint.             Hamilton

testified that problems started as early as 2002 over Keeshan’s

billing and appointment scheduling discrepancies.                              And Keeshan

                                               18
sent    the   email    to    which        Hamilton     took      offense     in    May       2003,

nearly a year before she filed her discrimination complaint.

Keeshan even referred to her “widening rift” with Hamilton in

the    email.     S.A.       102.         The   jury     could    therefore        find       that

Keeshan showed no causal connection between the complaint and

the nonrenewal of her contract.

              Even if Keeshan could establish a prima facie case,

the    record     supports          the       conclusion      that     the        Cooperative

terminated      her    for    a     legitimate,        nonretaliatory           reason:       her

interpersonal         conflicts       with       Davis      and      Hamilton          and    her

contribution      to     a    friction-laden             atmosphere     in        the    OB-GYN

division starting in 2003.                 It is clear that there was seldom a

meeting of the minds between Keeshan, Hamilton, and Davis when

it came to professional matters.                         It was up to the jury to

determine       whether       the     Cooperative           terminated          Keeshan        in

retaliation for her discrimination complaint.                          The record gives

us    “fair   assurance”       that       the    disclosure       of   Keeshan’s         higher

salary upon leaving the Cooperative did not prejudice the jury

to     ignore    or     discount          a     causal     connection           between       the

discrimination        complaint       and       the    termination,        or     to    find    a

legitimate nonretaliatory reason where none existed.                              Heater, 63

F.3d at 325.      The abundant evidence of Keeshan’s tension-fraught

relationship with Hamilton and Davis persuades us that the jury

decided against her based on the law, not her subsequent higher

                                                19
salary.    We note that Keeshan’s salary at the Cooperative was

not paltry, so we are not convinced that after learning that she

continued to earn more than most Americans, 2 the jury decided to

ignore Title VII law.

           There is more room for prejudicial effect on Keeshan’s

Payment of Wages Act claim.             This claim was based on Keeshan’s

contention       that      the     Cooperative         unlawfully         withheld

“productivity bonuses” that she was owed under her contract.

Her contract provided that if her base salary was less than

forty percent of her “net production (collected fees)” she would

“receive   a    settlement   in    an    amount   equal   to   the   difference

between the base salary and such sum.”                  S.A. 95.      Keeshan’s

testimony on her subsequent salary put her in the position of

arguing that although she enjoyed a considerable income, she was

entitled   to    an   additional    $127,500      in   productivity       bonuses.

However, we are satisfied that the jury based its finding for

the   Cooperative     on   both   sides’     presentation      of   the    numbers

during the period of Keeshan’s employment with the Cooperative,

not on her later income.


      2
       The medium household income for the United States in 2002-
2004 was $44,473.       The medium household income for South
Carolinians during this period was $39,326. U.S. Census Bureau,
Three-Year   Medium   Household  Income   by  State,   2002-2004,
available                                                      at
http://www.census.gov/hhes/www/income/income04/statemhi.html.



                                        20
             Keeshan testified to her base salary during each year

of her employment with the Cooperative.                       At the request of the

Cooperative’s counsel during cross-examination and with the aid

of a calculator, Keeshan multiplied her collected fees by 0.4.

The numbers that Keeshan plugged in for her collected fees came

from the Cooperative’s answers to her interrogatory requests for

the “sum of all amounts actually paid to [the Cooperative] by

any   person    or     payor     for    care     or    services          rendered         by   Dr.

Keeshan” for each year from 2000 to 2004.                             S.A. 200-01.             When

Keeshan multiplied these yearly fees by 0.4 and then compared

the result to her corresponding base salary for those years, it

was clear that her base salary always exceeded 40 percent of

these collected fees.

             Keeshan     disputed       the    accuracy          of     the    Cooperative’s

calculation      of    her     collected       fees,       but     she    did       not    offer

anything    more      accurate       from   which     we     can      conclude       that      the

jury’s    verdict      for     the     Cooperative         was     so    off-base         as    to

indicate that it was “substantially swayed” by some resentment

towards     Keeshan’s        financial      status      at       the     time       of    trial.

Heater, 63 F.3d at 325.                 Hamilton testified to how Keeshan’s

collected      sums    were     calculated       and       explained          how    insurance

adjustments factored in.              He said that part of the difficulty in

calculating Keeshan’s collected sums, at least for the years

2000-2002,      was     because        Keeshan        billed          nurse     practitioner

                                            21
services under Keeshan’s provider number and Keeshan “set the

appointment schedule such that it looked like she was seeing a

large   number    of    patients        .    .    .     but    in     reality,     the    nurse

practitioner was hidden in the appointment schedule under Dr.

Keeshan’s name.”        J.A. 108.            He explained that the Cooperative

then had to “go and do a manual count by hand employing extra

people to go through 13,000 records to sort out who was actually

doing what.”         J.A. 109.      After receiving Keeshan’s memorandum

requesting     productivity        bonuses,           the      Cooperative        rehired     a

previous employee from the billing office who had assisted in

separating     Keeshan’s      billings           from    2000        to   2002.      We    find

nothing   in     the    record    to        indicate          that    the   jury    accepted

calculations so blatantly inaccurate that we can infer that its

Wages Act verdict was tainted by Keeshan’s subsequent income.

Keeshan’s     testimony      on   the       numbers       was    not      overflowing      with

conviction.      She explained that some of her figures came from

“extrapolation” based on “other physicians in the community who

had a similar pay mix and [were] doing similar work.”                              J.A. 200.

She kept “handwritten post-its” of the procedures she performed,

which she later threw out.                  J.A. 266-67.             The record leaves us

more than fairly assured that the jury’s verdict on the Wages

Act   claim    was     not   substantially              swayed       by   the     erroneously

admitted testimony on Keeshan’s subsequent income.



                                             22
               Because there was ample evidence indicating that the

verdicts       were    not    substantially        swayed         by     the    erroneously

admitted testimony, we readily conclude that the district court

did not abuse its discretion by denying Keeshan’s motion for a

new trial.          “In considering a motion for a new trial, a trial

judge may weigh the evidence and consider the credibility of

witnesses, and if he finds the verdict is against the clear

weight    of    the    evidence,     is    based    on   false         evidence    or    will

result    in    a     miscarriage    of    justice,      he       must    set    aside    the

verdict, even if supported by substantial evidence, and grant a

new trial.”           Chesapeake Paper Prods. Co. v. Stone & Webster

Eng’g    Corp.,       51   F.3d    1229,   1237     (4th      Cir.       1995)    (internal

citations and quotations omitted).                  This court will not reverse

the     decision      “save   in     the    most    exceptional            circumstances”

evincing a “clear abuse of discretion.”                       Bristol Steel & Iron

Works v. Bethlehem Steel Corp., 41 F.3d 182, 186 (4th Cir. 1994)

(internal citations and quotations omitted).

               In   support   of    her    motion    for      a    new    trial,   Keeshan

submitted an affidavit swearing that she heard “gasps from the

jury box” when she revealed her subsequent income, and that some

jurors looked at her with open mouths and astonished eyes.                               J.A.

373.       The        Cooperative     contends       that         this     affidavit       is

inadmissible under Fed. R. Evid. 606(b), which provides that

“evidence of any statement by the juror may not be received on a

                                            23
matter     about       which      the     juror          would     be        precluded         from

testifying,”        including     matters         “concerning       the      juror’s      mental

processes      in    connection        with”      the    verdict.            Id.     Keeshan’s

affidavit      is      more      accurately           characterized           as     Keeshan’s

impression      of    the   effect      of     her      testimony       on    the    jury,      not

evidence of a juror statement.                    Regardless, even if the district

court credited Keeshan’s recollection, the court did not abuse

its    discretion      in     concluding          that    the    clear       weight       of    the

evidence      outweighed         any    possible          prejudice          from    Keeshan’s

testimony.          As explained above, the record leaves us assured

that the jury correctly applied the law.

                                               C.

              Finally,      we    take       up      Keeshan’s      argument         that       the

district      court    should     not    have       imposed      costs       on    her    as    the

losing party. As an initial matter, we reject the Cooperative’s

contention      that    this     argument         was     not    preserved          for   appeal

because Keeshan’s notice of appeal did not explicitly indicate

that    she   was     challenging       the       district       court’s      imposition         of

costs.     Federal Rule of Appellate Procedure 3(c)(1)(B) requires

appellants to “designate the judgment, order, or part thereof

being     appealed.”             “We      liberally          construe             Rule    3(c)’s

requirements concerning the sufficiency of the notice of appeal

to avoid technical impediments to appellate review.”                                 Spence v.

Educ. Credit Mgmt. Corp. (In re Spence), 541 F.3d 538, 543 (4th

                                               24
Cir. 2008).         “[E]ven when a party files a notice of appeal that

is technically at variance with the letter of a procedural rule,

a court may nonetheless find that a litigant has complied with

the rule if the litigant’s action is the functional equivalent

of what the rule requires.”                  United States v. Little, 392 F.3d

671, 681 (4th Cir. 2004) (internal quotations omitted).                                    “[A]n

error in designating the issue appealed will not result in a

loss    of   appeal    as       long   as    the       intent   to    appeal      a   specific

judgment      can    be     fairly       inferred         and   the    appellee       is      not

prejudiced by the mistake.”                    Bogart v. Chapell, 396 F.3d 548,

555 (4th Cir. 2005) (internal citations and quotations omitted).

“The    appellant         simply       needs      to      address     the   merits       of    a

particular issue in her opening brief in order to demonstrate

that she had intent to appeal that issue and the appellees were

not prejudiced by her mistake, inasmuch as they had notice of

the issue and the opportunity to fully brief it.”                           Id.

              Keeshan’s notice of appeal says that she appeals “from

the final judgments and orders granting summary judgment and

denying      Plaintiff’s        Motion      for     New    Trial.”      J.A.      378.        The

district court’s imposition of costs is a final judgment and

although Keeshan did not specifically designate the cost issue

in her notice of appeal, she addressed the merits in her opening

brief     and   the       Cooperative          responded        in    its   brief.            The

Cooperative      has      not    shown      prejudice        from     Keeshan’s       lack     of

                                               25
specificity        in    the      notice.          Keeshan’s         costs       challenge      is

therefore properly before this court.

             As    Keeshan        acknowledges,          her      contention       that       costs

should be awarded to prevailing Title VII defendants only in

rare circumstances is contrary to the plain language of Federal

Rule of Civil Procedure 54(d)(1) and the law of this circuit.

Rule 54(d)(1) presumes that costs are awarded to the prevailing

party: “Unless a federal statute, these rules, or a court order

provides otherwise, costs – other than attorney’s fees – should

be allowed to the prevailing party.”                           A district court’s award

of   costs   is     reviewed         for    abuse       of     discretion.          Cherry       v.

Champion     Int’l       Corp.,      186    F.3d        442,      446     (4th    Cir.     1999).

However, Rule 54(d)(1) places some restraint on this discretion

by indicating when costs should not be awarded to prevailing

parties as a matter of course, such as when a statute or a court

order provides otherwise.              In Cherry we held that when a statute

or federal rule of civil procedure does not shift costs to the

prevailing        party,      a   court     may     not        do    so    except     in       rare

circumstances       including:         “misconduct           by     the    prevailing         party

worthy of a penalty”; “the losing party’s inability to pay”; the

“excessiveness          [of    the    costs]       in    a     particular         case”;      “the

“limited     value      of     the   prevailing          party’s        victory”;        or   “the

closeness and difficulty of the issues decided.” Id.



                                              26
             The   Supreme       Court     has    held     that        Title     VII     cabins

courts’      discretion     to    award      attorneys’          fees       to     prevailing

defendants, but the Court has not held the same with regard to

costs.    A prevailing Title VII defendant should not be awarded

attorneys’ fees from the losing plaintiff unless the court finds

that   the     plaintiff’s       claim    was     “frivolous,           unreasonable,         or

groundless, or that the plaintiff continued to litigate it after

it   clearly    became     so.”     Christiansburg              Garment      Co.    v.   Equal

Employment Opportunity Comm’n, 434 U.S. 412, 422 (1978).

             Most circuits, including this one, have rejected the

argument that an unsuccessful Title VII plaintiff’s good faith

in bringing the suit will likewise shield her from being taxed

with her opponent’s costs.               “[G]ood faith, standing alone, is an

insufficient basis for refusing to assess costs against [the

losing] party.”          Cherry, 186 F.3d at 446; see also Pacheco v.

Mineta, 448 F.3d 783, 794 (5th Cir. 2006) (“Every circuit to

expressly      address    the    question        in   a   published         opinion      –    the

Fourth, Sixth, Seventh, Ninth and Tenth – has ruled that good

faith,    by     itself,        cannot     defeat         the        operation      of       Rule

54(d)(1).”); Cosgrove v. Sears, Roebuck, & Co., 191 F.3d 98, 101

(2d Cir. 1999) (“We see no reason . . . to apply the same type

of   heightened    [Christiansburg]          standard           to    the   assessment         of

costs.”).



                                           27
              Keeshan         contends         that        there     is        no     reason     to

distinguish between costs and attorneys’ fees under Title VII.

She       therefore      urges       us        to     reverse        Cherry          and     extend

Christiansburg’s bad faith standard to costs.                              This panel cannot

overrule      the   decision         of    a    prior      panel.          United      States    v.

Collins,      415   F.3d      304,     311      (4th    Cir.       2005).           Moreover,   we

disagree that there is no reason to distinguish between costs

and attorneys’ fees for unsuccessful Title VII plaintiffs who

litigated in good faith.                   Christiansburg’s bad-faith standard

was grounded in the rationale that if unsuccessful Title VII

plaintiffs     were      taxed      with       defendants’         attorneys’         fees,    this

“would undercut the efforts of Congress to promote the vigorous

enforcement of the provisions of Title VII.”                               434 U.S. at 422.

The same deterrent rationale does not necessarily hold true for

costs, which are typically much less than attorneys’ fees. 3                                    See

Poe v. John Deere Co., 695 F.2d 1103, 1108 (8th Cir. 1982)

(“Congress has not . . . carved out an exception to Rule 54(d)

relieving      a    losing     civil       rights       litigant          of   the    burden    of

bearing      the    costs      of    litigation.              The    rationale         for     this

distinction         is        clear.                Whereas         the        magnitude        and

unpredictability         of    attorney’s           fees    would     deter         parties    with

      3
       The district court taxed Keeshan with costs in the amount
of $ 2823.05.   It is safe to assume that this sum is far less
than the Cooperative’s attorneys’ fees.



                                                28
meritorious claims from litigation, the costs of suit in the

traditional sense are predictable and, compared to the costs of

attorneys’     fees,     small.”).        And,    as   the   Seventh   Circuit      has

observed, “[i]f the awarding of costs could be thwarted every

time the unsuccessful party is a normal, average party and not a

knave,     Rule    54(d)      would   have       little   substance        remaining.”

Popeil Bros. v. Schick Elec., Inc., 516 F.2d 772, 776 (7th Cir.

1975).     The district court thus acted well within its discretion

by taxing Keeshan with the Cooperative’s costs.

            The district court also properly taxed Keeshan with

costs on her Payment of Wages Act claim because the Cooperative

was the prevailing party.             If an employer is found liable under

the Wages Act, “the employee may recover in a civil action an

amount equal to three times the full amount of the unpaid wages,

plus   costs      and   reasonable    attorney’s        fees.”      S.C.    Code   Ann.

§ 41-10-80(C).          The     statute   allows       prevailing    plaintiffs      to

recover treble damages, costs, and attorneys fees, but it is

silent on when losing plaintiffs may avoid the attorneys’ fees

and    costs      of    their    successful       opponents.     Therefore,        Rule

54(d)(1)’s presumption of awarding costs to the prevailing party

applies.




                                          29
                                  III.

          For   the   foregoing    reasons,   the   judgment    of   the

district court is

                                                               AFFIRMED.




                                   30
