PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GARRY DAVIS,
Plaintiff-Appellant,

v.
                                                                    No. 97-1600
BALTIMORE GAS AND ELECTRIC
COMPANY,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Joseph H. Young, Senior District Judge.
(CA-95-3807-Y)

Argued: September 24, 1998

Decided: November 23, 1998

Before MURNAGHAN and HAMILTON, Circuit Judges,
and MAGILL, Senior Circuit Judge of the
United States Court of Appeals for the
Eighth Circuit, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Judge Murnaghan wrote the opinion,
in which Judge Hamilton and Senior Judge Magill joined.

_________________________________________________________________

COUNSEL

ARGUED: Steven John Potter, Baltimore, Maryland, for Appellant.
Ronald McGlenn Cherry, MCGUIRE, WOODS, BATTLE &
BOOTH, L.L.P., Baltimore, Maryland, for Appellee. ON BRIEF:
Mark T. Hackman, Barbara A. Gaughan, BALTIMORE GAS &
ELECTRIC, Baltimore, Maryland, for Appellee.

_________________________________________________________________

OPINION

MURNAGHAN, Circuit Judge:

Plaintiff Garry O. Davis filed a complaint in the United States Dis-
trict Court for the District of Maryland, Northern Division, alleging
that Defendant Baltimore Gas and Electric Company discharged him
from employment because he had filed a complaint with the Equal
Employment Opportunity Commission. Defendant contends that
Plaintiff was discharged from employment due to his refusal to per-
form a work assignment and an overall record of poor performance.
After the jury was selected for trial, Plaintiff, through his attorney,
made a motion under Edmonson v. Leesville Concrete Co., 500 U.S.
614 (1991), challenging Defendant's allegedly racially discriminatory
use of its peremptory strikes. The district court denied the motion, and
the jury was duly sworn.

Pursuant to the jury verdict, the district court issued an Order enter-
ing judgment in favor of Defendant on the retaliatory discharge claim.
Plaintiff filed a timely notice of appeal, requesting review of the dis-
trict court's ruling on his Edmonson motion. We affirm the district
court's denial of Plaintiff's motion.

I.

Plaintiff Garry O. Davis ("Davis") filed a complaint in the United
States District Court for the District of Maryland, Northern Division,
alleging that Defendant Baltimore Gas and Electric Company
("BGE") discharged him from employment because he had filed a
complaint with the Equal Employment Opportunity Commission.
Defendant contends that Plaintiff was discharged from employment
due to his refusal to perform a work assignment and an overall record
of poor performance. The matter proceeded to trial.

Jury selection commenced on March 24, 1997. The district court
(Young, J., presiding) conducted a voir dire examination of the

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venire. At the conclusion of the examination, the court gave Plaintiff
and Defendant an opportunity to provide challenges for cause. After
both parties made motions to strike certain potential jurors for cause,
the district court provided Plaintiff and Defendant with a list of
twelve prospective jurors and a list of six prospective alternate jurors.
Each party was allowed to strike three jurors from the list of twelve,
and two from the list of six. Defendant used two of its three strikes
to eliminate the only two possible black jurors from the pool. No
black jurors were selected for the jury.

After the jury was selected, Plaintiff made a motion under
Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991). Plaintiff's
counsel stated that Plaintiff was African-American; no African-
Americans were on the jury; and two African-Americans on the
venire had not been "reached." The district court denied the motion.
Plaintiff then inquired whether the court was going to ask Defendant
to give racially neutral reasons for its peremptory strikes of African-
Americans from the venire. The court responded,"[t]hey strike who-
ever they want. They strike just like you have." The court then denied
Plaintiff's motion.

Defendant then volunteered racially neutral reasons why the
African-American veniremen were stricken. Defendant maintained
that the first juror was employed by a large organization, and defense
counsel wanted to avoid jurors who might find themselves similarly
situated to Davis. The second juror, Defendant argued, had a "blank
profile," which prevented defense counsel from drawing any conclu-
sions about him. Counsel indicated that he did not"want to take the
chances with him." After Defendant's proffer, Plaintiff made no fur-
ther attempt to show pretext or purposeful discrimination and sought
no additional relief from the court. The jury was duly sworn.

Pursuant to the jury verdict, the district court issued an Order enter-
ing judgment in favor of Defendant on the retaliatory discharge claim.
Plaintiff now appeals the district court's denial of his motion chal-
lenging Defendant's allegedly racially discriminatory use of its
peremptory strikes.

We affirm the district court ruling.

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II.

A trial court's determination regarding the exercise of a peremp-
tory challenge for allegedly racially discriminatory reasons is
accorded great deference on appeal. See Hernandez v. New York, 500
U.S. 352, 364-365 (1991). The court of appeals reviews the trial
court's determination for clear error. See id. at 369; Jones v. Plaster,
57 F.3d 417, 421 (4th Cir. 1995). To find "clear error," the evidence
must be "such that a `reviewing court on the entire evidence [would
be] left with the definite and firm conviction that a mistake ha[d] been
committed.'" Hernandez, 500 U.S. at 369.

An attorney typically is entitled to exercise peremptory challenges
for any reason related to the outcome of the case to be tried. See
Batson v. Kentucky, 476 U.S. 79, 89 (1986). In Batson v. Kentucky,
however, the Supreme Court determined that the Equal Protection
Clause forbids a prosecutor from challenging potential jurors ". . .
solely on account of their race or on the assumption that black jurors
as a group will be unable impartially to consider the State's case
against a black defendant." Id. at 89. The defendant, the Court
asserted, has "the right to be tried by a jury whose members are
selected pursuant to nondiscriminatory criteria." Id. at 85-86.

The Court created, in Batson, a 3-step burden-shifting scheme for
proving racial discrimination in jury selection. First, the party chal-
lenging the strikes must establish a prima facie case showing that the
opposing party exercised the peremptory challenges on the basis of
race. See id. at 96-97. Once a prima facie case is established, the bur-
den shifts to the party exercising the strikes to provide a racially neu-
tral explanation for removing the jurors in question. See id. at 97-98.
Finally, once a neutral explanation is presented, the complaining party
must prove purposeful discrimination. See id. at 98. A movant may
show purposeful discrimination by demonstrating that the opposing
party's explanation is mere pretext for racial discrimination. See
United States v. McMillon, 14 F.3d 948, 953 (4th Cir. 1994); United
States v. Joe, 928 F.2d 99, 102 (4th Cir.), cert. denied, Baylor v.
United States, 502 U.S. 816 (1991).

The Supreme Court applied the Batson analysis, which pertained
to criminal prosecutions, to jury selections for civil suits in Edmonson

                    4
v. Leesville Concrete Co., Inc.. 500 U.S. at 618-630. The petitioner
in Edmonson sued Leesvile Concrete Co., alleging that the company's
negligence had caused him personal injury. During voir dire, Lees-
ville used two of its three peremptory challenges to remove black
individuals from the prospective jury. Id. at 616. The Supreme Court
determined that, although the conduct of private parties usually lies
beyond the Constitution's scope, Leesville's exercise of peremptory
challenges was pursuant to a course of state action and was therefore
subject to constitutional requirements. Id. at 620-628. Consequently,
a private litigant in a civil case may not use peremptory challenges
to exclude jurors on account of race. Id. at 630.

Combined, Batson and Edmonson govern the case at bar. Appellant
has failed to satisfy the requirements of the two cases. Typically, a
movant must first establish a prima facie case by showing that (1)
opposing counsel has exercised peremptory strikes to remove mem-
bers of a cognizable racial group from the venire;* and (2) the facts
and any other relevant circumstances raise an inference that counsel
used the strikes to exclude the venirepersons from the jury on account
of their race. See Batson, 476 U.S. at 96. In the present case, however,
the preliminary question of whether the party disputing the peremp-
tory strikes has established a prima facie case of discrimination is
moot, since Defendant voluntarily offered racially neutral reasons for
its strikes. In Hernandez v. New York, the Supreme Court determined
that "[o]nce a prosecutor has offered a race-neutral explanation for
peremptory challenges, and the trial court has ruled on the ultimate
question of intentional discrimination, the preliminary issue of
whether the defendant had made a prima facie showing of intentional
discrimination becomes moot." 500 U.S. at 359.

Fourth Circuit law endorses the Supreme Court's holding in
Hernandez. Prior to the Court's pronouncement in Hernandez, the
Fourth Circuit held that when racially neutral reasons are proffered,
it is unnecessary to determine whether a prima facie case was actually
_________________________________________________________________
*Under the formulation established in Batson, the defendant needed to
show that he was a member of the same cognizable racial group as the
stricken venireperson. 476 U.S. at 96. In Powers v. Ohio, however, the
Supreme Court discarded the requirement of racial identity between the
defendant and venireperson. 499 U.S. 400, 411-417 (1991).

                    5
demonstrated. See McMillon, 14 F.3d at 952 n.2, citing United States
v. Lane, 866 F.2d 103, 105 (4th Cir. 1989); see also Matthews v.
Evatt, 105 F.3d 907, 918 (4th Cir.), cert. denied, Matthews v. Moore,
118 S.Ct. 102 (1997); United States v. Skeeter , 989 F.2d 496 (4th Cir.
1993) (per curiam). So, since Defendant volunteered racially neutral
reasons for its strikes, the prima facie determination is moot. The
court of appeals simply assumes the existence of a prima facie case.

Also, by volunteering its racially neutral reasons for removing the
jurors in question, BGE satisfied the second step of the Batson-
Edmonson scheme -- namely, the production of a nondiscriminatory
explanation for the use of its strikes. BGE need only offer a legitimate
reason for exercising the strikes, i.e., one that does not deny equal
protection. See Jones, 57 F.3d at 420. The explanation need not rise
to the level of justifying exercise of a challenge for cause. See
McMillon, 14 F.3d at 952. During the trial, BGE explained that one
juror worked for a large organization, and it wanted to avoid seating
jurors so similarly situated to Davis. The other juror in question, BGE
maintained, had a "blank profile," and Defendant did not wish to risk
the uncertainty. The reasons advanced by Defendant are both legiti-
mate and nondiscriminatory.

After Defendant's proffer of racially neutral reasons, the record
reveals no further comment on the matter, which is the crux of the
case before us. Plaintiff made no attempt to satisfy the third step in
the Batson-Edmonson scheme. The burden is on the party alleging
discriminatory selection of the venire to prove the existence of pur-
poseful discrimination, see Batson, 476 U.S. at 93, yet when faced
with BGE's presentation of a seemingly race-neutral explanation,
Plaintiff stood mute -- effectively abandoning his Batson-Edmonson
challenge.

While the Fourth Circuit has not previously addressed the question
presented here, we now follow the lead of other circuits that have held
that the movant's failure to argue pretext constitutes a waiver of his
initial objection. In Hopson v. Fredericksen, for example, the plaintiff
charged that the defendant's use of his peremptory strike was racially
motivated. 961 F.2d 1374, 1376 (8th Cir. 1992). The defendant
advanced presumably racially neutral reasons for striking the black
venireman, but the plaintiff made no attempt to rebut the proffered

                    6
explanation. The Eighth Circuit determined that by failing to pursue
his Batson objection, the movant failed to preserve the issue for
appeal. See id. at 1378.

Similarly, in United States v. Rudas, the defendant argued that the
Government used its peremptory challenges to exclude potential
jurors of Hispanic ancestry, in violation of the equal protection princi-
ples enunciated in Batson. 905 F.2d 38, 39 (2nd Cir. 1990). The Gov-
ernment provided adequate race-neutral explanations for its strikes,
and nothing more was said by the parties or the trial court on the mat-
ter. See id. at 40. The Second Circuit held that "[b]ecause [defen-
dant's] counsel said nothing in response to the Government's
explanations for its peremptory challenges, we deem the objection
waived ...." Id. at 39. The court of appeals continued, "[o]nce the
[nonmovant] has offered reasons for its peremptory challenges, [the
movant] must expressly indicate an intention to pursue the Batson
claim." Id. at 41; cf. Clark v. Newport News Shipbuilding and Dry
Dock Co., 937 F.2d 934, 940 (4th Cir. 1991) (citing United States v.
Rudas favorably). Following the lead of the Eighth and Second Cir-
cuits, we hold that Plaintiff waived his Batson challenge by failing to
pursue his objection once Defendant offered a legitimate, nondiscrim-
inatory explanation.

Appellant argues that the trial court made no findings of fact and
stated no rationale for its decision that BGE had properly exercised
its peremptory strikes. See Jones, 57 F.3d at 421 (noting that "when
the district court fails to articulate its findings, remand for further pro-
ceedings may be necessary"). While we strongly suggest that trial
judges make on-the-record rulings articulating their reasons for over-
ruling a Batson objection, the district court is not required to make
such a ruling where the movant fails to pursue the objection after
racially neutral reasons are given. Here, Davis' failure to respond to
BGE's explanation for its strikes could have been reasonably con-
strued by the trial judge as Plaintiff's agreement that the expressed
reasons were racially neutral. See Hopson, 961 F.2d at 1378; see also
Rudas, 905 F.2d at 41 (noting that failure of counsel to respond to
non-movant's explanation of its peremptory challenges indicated to
court that she no longer disputed propriety of challenges). By failing
to dispute BGE's explanations, Davis appeared to acquiesce in them.

                     7
As a result, there was no need for the trial judge to make a more pre-
cise on-the-record ruling. See id. at 41.

The court has no obligation to guide the movant, step-by-step,
through the requirements of his own objection. Cf. Clark, 937 F.2d
at 939 ("Neither Batson nor its progeny suggests that it is the duty of
the court to act sua sponte to prevent discriminatory exclusion of
jurors."). Rather, the court need only afford the party an opportunity
to establish pretext. See Joe, 928 F.2d at 103 ("the court ... provide[s]
the defendant with the opportunity to establish pretext ...") (emphasis
added). The burden remains with the movant to demonstrate purpose-
ful discrimination, i.e., that the jurors were stricken on account of
their race. See McMillon, 14 F.3d at 953 ("[t]he burden thus lay with
[movant] to show both that these reasons were merely pretextual and
that race was the real reason for the strike").

We do confess some concern regarding the trial judge's response
to Plaintiff's inquiry as to whether the court was going to request that
Defendant provide racially neutral reasons for the strikes. The court
replied, "[t]hey strike whoever they want." The comment is especially
troubling given its remarkable similarity to comments uttered by the
trial judge in Batson. In Batson, after counsel requested a hearing on
his motion to discharge the jury on the ground that the prosecutor's
removal of the black venirepersons violated the petitioner's rights, the
trial judge noted that the litigants could use their peremptory chal-
lenges to "strike anybody they want to." Batson, 476 U.S. at 83.
Indeed, as Batson now dictates, litigants cannot use their challenges
to "strike anybody they want to." We fear that the trial judge's breach
in the case at bar threatens to tarnish the court's integrity, which the
Supreme Court in Batson aimed to avoid. See id. at 99 ("public
respect for our criminal justice system and the rule of law will be
strengthened if we ensure that no citizen is disqualified from jury ser-
vice because of his race"); see also Edmonson , 500 U.S. at 628 ("Race
discrimination within the courtroom raises serious questions as to the
fairness of the proceedings conducted there. Racial bias mars the
integrity of the judicial system and prevents the idea of democratic
government from becoming a reality."). While the lower court's state-
ment is distressing, we are comforted by the fact that the breach was
later corrected by Defendant's voluntary proffer of a racially neutral

                     8
explanation. We do pause, however, to remind the lower court of its
important role in preserving the integrity of the federal court system.

III.

In conclusion, we find nothing in the record to suggest that the dis-
trict court's determination is clearly erroneous. Accordingly, we
affirm.

AFFIRMED

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