Keeshan v. Eau Claire Cooperative Health Centers, Inc.

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.

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 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.

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 III.

For the foregoing reasons, the judgment of the

district court is

AFFIRMED.

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