Karen A. Williams v. Cerberonics, Incorporated, Karen A. Williams v. Cerberonics, Incorporated

K.K. HALL, Circuit Judge:

Karen A. Williams appeals the district court’s judgment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., that her employer, Cerberonics, Inc., did not terminate her on the basis of race or in retaliation for her filing of a discrimination charge. She also appeals the district court’s entry of judgment notwithstanding the verdict (“j.n.o.v.”) in favor of Cerberonics on her 42 U.S.C. § 1981 discrimination and retaliatory discharge claims. Finding no error, we affirm.

I.

Williams is a black female who was employed by Cerberonics, a defense contractor, from July, 1979, until her termination in February, 1983. She was employed as an instructor in Cerberonics’ Aviators Breathing Oxygen (“ABO”) Program. The Program was under contract with the Navy and its purpose was to maintain and test high altitude breathing apparatus for Navy pilots. Williams’ job was to instruct Navy personnel on how to conduct this maintenance and testing. Instruction was conducted in Naval installations and on aircraft carriers around the world.

The ABO Program itself was a small, close-knit operation of between seven to ten employees based in Lexington Park, Virginia. While other black employees worked for brief periods with the Program, Williams was the only black continuously employed in the group from 1979 until mid-1982. Her immediate supervisor in the program was Bernard A. Neuman. Neuman’s supervisor was the department manager, Wayne R. Hay. The division manager, the person with ultimate hiring and firing authority in the program, was John R. Ludes. All of these supervisory personnel are white.

It is readily apparent from the record in this ease that ill feelings existed between Williams and Neuman. The animosity between the two was attested to by both parties’ witnesses. Williams testified that Neuman treated her more demandingly than he did other, white employees. She claimed that he singled her out for criticism, particularly in regard to tardiness in reporting for work and use of the telephone for personal calls. Neuman denied these charges and testified that Williams had a “negative attitude” and was “defiant” to constructive criticism from her su*454periors. Cerberonics produced evidence that other employees were disciplined for abuse of telephone privileges and evidence that Williams’ tardiness was chronic. Williams’ poor attitude was corroborated by both Hay and Michael Goddard, a white male who was Neuman’s assistant. Both of these witnesses, along with Neuman, testified that Williams’ attitude infected her relationships with her coworkers.

Williams’ difficulties were also reflected in teaching evaluations by her students. Although a majority of the evaluations was favorable, the percentage of unfavorable evaluations that she received was higher than that of her co-instructor. Also, criticisms of her performance became more frequent during the latter part of her tenure.

Moreover, Cerberonics produced a voluminous record of contemporaneously written memoranda documenting numerous incidents of Williams’ misconduct. Two of these incidents deserve mention.

In March of 1980, Williams was in Yoko-suka, Japan, conducting training on the carrier Midway. A small fire started in her hotel room when one of her bed pillows came into contact with a space heater. Williams became belligerent toward the hotel personnel and refused to acknowledge any responsibility for the incident. As a result, an argument ensued and the situation disintegrated to the point where the local police were called and criminal charges were filed against Williams. Neu-man, who was on assignment in the Philippines, had to fly to Japan to apologize to the hotel management and defuse the potentially embarrassing situation.

An equally telling incident occurred in September, 1982, at the Naval base in San Diego, California. There, Williams persisted in parking in an officer’s reserved space after Neuman had ordered her not to do so. An unpleasant confrontation resulted where Neuman eventually ordered Williams to return to the home office.

Shortly after the San Diego incident, Hay began to prepare an Employee Change Notice, placing Williams on probation. Although Williams had received a favorable job evaluation as recently as October, 1981, Hay felt that probation v/as necessary due to her declining job performance, poor attitude, and difficulty with co workers. Approximately at the same time, also prompted by the San Diego incident, Williams decided to file a discrimination complaint against Neuman and Cerberonics with the Maryland Commission on Human Relations (“MCHR”). The complaint was subsequently filed on November 4, 1982.

On November 23, Hay and Neuman met with Williams to counsel her over her continued tardiness; however, Hay did not inform her that he was considering placing her on probation. By mid-December Williams’ performance had not improved and the final decision was made by Hay to place her on probation. At the time Hay made this decision, he was not aware of Williams’ discrimination charge. After the decision was approved by Hay’s superiors, she was notified of the probation on January 6, 1983.

The probationary status did little to change Williams’ behavior. The record shows that her tardiness became more frequent and her abuse of the telephone continued. Only four days after being placed on probation, she became involved in a shouting altercation with one of her coworkers. One month later, on February 4, 1983, Goddard confronted Williams concerning her continued excessive personal use of the telephone. The situation came to a head two weeks later when Williams was fired after another incident over the telephone.

While at work on the afternoon of February 18, 1983, Williams received a phone call from her attorney. She took the call in an unoccupied conference room. While talking to her attorney, Williams was discovered by Hay. After refusing to tell Hay about the nature of the call, she was ordered to Ludes’ office to meet with Ludes, Neuman, and Hay. After repeated questioning from her superiors, Williams finally admitted that the call was a personal one, from her attorney. Ludes immediately suspended her and she was terminated four days later.

*455Shortly thereafter, Williams filed an application for unemployment compensation with the Employment Security Administration of the Maryland Department of Human Resources. Her application was denied based on a finding that she was fired for misconduct. Williams also filed an unsuccessful complaint with the Equal Employment Opportunity Commission (“EEOC”). Upon receiving her right-to-sue letter, she filed this action.

Initially, Williams alleged both race and sex discrimination in her employment and termination under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e, et seq.), 42 U.S.C. § 1981, and 42 U.S.C. § 1983. She also claimed that she had been unlawfully discharged in retaliation for filing the discrimination charge with MCHR. After extensive discovery, the trial court dismissed Williams’ § 1983 claim, her claims of sex discrimination, and her related claim that she was discriminated against in not receiving timely promotions.

In this posture, the case proceeded to a concurrent jury trial on the § 1981 claims and bench trial on the Title VII claims. After a three and one-half day trial, the jury returned a verdict in Williams’ favor, awarding her $15,000 in back pay and $35,-000 in compensatory damages. The trial court took Williams’ Title VII claims under advisement.

Cerberonics immediately filed a motion for j.n.o.v., or, in the alternative, for a new trial. On February 10, 1988, the trial court found for Cerberonics on the Title VII claims and entered j.n.o.v. in its favor on the § 1981 claims. In the alternative, the district court granted Cerberonics’ motion for a new trial. This appeal followed.

II.

Appellant’s contentions are easily stated. She maintains that the trial court erred in finding for Cerberonics on her Title VII claims and that it erred in entering j.n.o.v. on her § 1981 claims. She argues that the district court did not properly consider the evidence in reaching either conclusion.1 We address the Title VII claims first.

Appellant made two claims under Title VII: that she was fired by Cerberonics because of her race, and that she was fired in retaliation for having filed a discrimination charge with MCHR. We turn our attention to the discrimination claim.

A. Discrimination

For a plaintiff to prevail on a discrimination claim, she must first establish a four-part prima facie case:

(1) that she is a member of a protected class;
(2) that she was qualified for her job and her job performance was satisfactory;
(3) that, in spite of her qualifications and performance, she was fired; and
(4) that the position remained open to similarly qualified applicants after her dismissal.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed. 2d 668 (1973); Holmes v. Bevilacqua, 794 F.2d 142, 146 (4th Cir.1986) (en banc); Smith v. Univ. of N.C., 632 F.2d 316, 332 (4th Cir.1980). Once this prima facie case is established, an inference of discrimina*456tion arises that may be rebutted by an employer on a showing of legitimate, nondiscriminatory reasons for the dismissal. Smith, supra at 332-33. Once this showing is made, the burden of proof lies with the plaintiff to show, by a preponderance of the evidence, that the employer’s proffered reasons for the dismissal are pretex-tual. Id. at 333.2

In applying this analysis to appellant’s case, the trial court found that she had established a prima facie case. The court also found that Cerberonics had met its burden of production in showing legitimate, nondiscriminatory reasons for appellant’s discharge, namely: her insubordinate attitude, her difficulty in working with fellow employees, her tardiness in reporting for work, and her abuse of the telephone. Thus, the outcome of appellant’s claim turned on the trial court’s determination of whether Cerberonics’ articulated reasons for dismissal were pretextual.

We pause to note that inherent in this determination are myriad findings of fact. Thus, we will not upset the trial court’s finding as to pretext unless our reading of the record leaves us convinced that the trial court’s decision was clearly erroneous. Bevilacqua, supra, at 147. On this record, we cannot conclude that the trial court clearly erred in holding that appellant was fired for legitimate reasons.

The evidence of appellant’s misconduct on the job was overwhelming. As the trial court noted, testimony from Neuman, Hay, and Ludes concerning appellant’s deteriorating job performance was consistent, fully corroborated by contemporaneously written memoranda, and entirely credible. Further, the record shows that the pace of the deterioration of appellant’s job performance quickened after she was placed on probation. Her tardiness increased, she was confrontational with coworkers, and her misuse of the telephone continued unabated.

This substantial record of misconduct lies in stark contrast to appellant’s slight evidence of discrimination. As the trial court noted, appellant’s evidence of discriminatory intent was directed solely at Neuman and was composed almost entirely of her own assertions. She claimed that Neuman disciplined her more harshly for her tardiness and use of the telephone than he did other white employees. She also testified that she had overheard him making disparaging remarks about black males, a charge Neuman denied. Appellant also introduced the testimony of Seaman Troy Miller, who testified that when he was trained at the Lexington Park office, Neuman told him that Neuman did not want that “black uppity female” (appellant) in the Program. However, as the district court pointed out, all of this evidence was conclusively rebutted at trial.

As to appellant’s claims of disparate treatment, Cerberonics introduced documented evidence that her tardiness was much worse than that of her fellow employees and that another white employee had been terminated for abuse of the telephone. Seaman Miller’s testimony concerning Neu-man’s racial animus was negated when it was shown by Neuman’s passport that at the time the alleged remark about appellant was made, Neuman was in the Indian Ocean at a training session. Thus, appellant’s evidence of discrimination boils down to her own assertions concerning her poor relationship with Neuman. As we have previously held, a plaintiff’s own assertions of discrimination in and of themselves are insufficient to counter substantial evidence of legitimate nondiscriminatory reasons for an adverse employment action. Gairola v. Commonwealth of Virginia Dept. of General Services, 753 F.2d 1281, 1288 (4th Cir.1985). What appellant’s assertions did prove was that she and Neuman did not like each other. As another court has said:

[t]his personality conflict generated antipathy and professional incompatibility *457which might have made it more difficult for the plaintiff to perform. But this certainly does not translate into discrimination. An employer is not required to like his employees.

Bradington v. Int’l Business Machines Corp., 360 F.Supp. 845, 854 (D.Md.1973), aff’d 492 F.2d 1240 (4th Cir.1974). Such is the case here. This record, if anything, proves personal animus on the part of Neu-man, not racial animus. It proves nothing at all about Williams’ other supervisors. The evidence in this case manifestly supports the district court’s conclusion that appellant was not terminated on the basis of her race and, therefore, we affirm this holding.

B. Retaliatory Discharge

To prevail on her retaliatory discharge claim, appellant had to follow the same sequence of proof that she was required to follow in her discrimination claim. Ross v. Communications Satellite Corp., 759 F.2d 355, 365 (4th Cir.1985). In this instance, however, her prima facie case consisted of three parts:

(1) that she engaged in protected activity;
(2) that Cerberonics took adverse employment action against her; and
(3) that a causal connection existed between the protected activity and the adverse action. Id.

Once this prima facie case is established, it must be rebutted by legitimate nonretalia-tory reasons for the adverse action. Id. Again, after the employer meets the prima facie case, the burden of proof lies with the plaintiff to establish by preponderance of the evidence that the proffered reasons are pretextual. Id.

The trial court concluded that there had been no retaliation because appellant had failed to make her prima facie case. The court opined that she had failed to show a causal connection between her termination and the protected activity.3 On this point, we cannot agree.

It is undisputed that appellant engaged in protected activity when she filed her discrimination charge. Likewise, no one contests that she was fired. Appellant’s proof of a causal connection between the protected activity and her discharge essentially was that she was fired after her employer became aware that she had filed a discrimination charge. While this proof far from conclusively establishes the requisite causal connection, it certainly satisfies the less onerous burden of making a prima facie case of causality. However, despite the fact that appellant has made her prima facie case, we hold that she has not proven retaliatory discharge.

As discussed above, Cerberonics has articulated and proven legitimate nondiscriminatory and nonretaliatory reasons for appellant’s termination. Other than the fact that at the time she was fired her supervisors were aware that she had filed a discrimination claim, appellant has produced no other evidence of retaliation. Plainly, mere knowledge on the part of an employer that an employee it is about to fire has filed a discrimination charge is not sufficient evidence of retaliation to counter substantial evidence of legitimate reasons for discharging that employee. Again, a trial court’s determination on the legitimacy of an employer’s motives for taking an adverse employment action is essentially one of fact that we will not overturn unless clearly in error. The record in this case overwhelmingly supports the trial court’s finding of no retaliation, and consequently, although on different reasoning, we must affirm.

III.

Because appellant did not produce any direct evidence of discriminatory or retaliatory intent on the part of Cerberonics, she was forced to prove her § 1981 discrimination and retaliatory discharge claims circumstantially, through the identical ele-*458merits and shifting intermediate evidentia-ry burdens employed in her Title VII claims. Gairola, supra, at 1285-86. However, the jury viewed appellant’s evidence more favorably than did the trial court and returned a verdict in her favor. As we have just concluded, there was substantial evidence in this record to support the court’s verdict in favor of Cerberonics. That, however, does not end our inquiry. Plainly, there frequently may be sufficient evidence in a record to support a verdict for either party. That is reason in the first instance for having a trial.4 Our task is to review this trial court’s decision that on this record the evidence cannot reasonably support a verdict in appellant’s favor. That we now do.

A trial court may not appropriately enter j.n.o.v. unless it concludes, after consideration of the record as a whole in the light most favorable to the non-movant, that the evidence presented supports only one reasonable verdict, in favor of the moving party. Foster, supra, at 1055.5 The special difficulties and concerns in making this determination in the employment discrimination area, where subtleties of motive and intent abound, were cogently discussed at length in our holding in Lovelace v. Sherwin-Williams Co., 681 F.2d 230 (4th Cir.1982).

There, we noted that in the discrimination area the danger of improvidently sending a case to the jury is amplified by the inherent difficulties in conclusively proving matters of motive and intent. Id. at 242. This is so even in cases where the plaintiff has made a prima facie case that has been rebutted by the employer. Id. at 243-45. At that point, absent the benefit of the presumption of unlawful intent, plaintiff’s circumstantial evidence of discrimination is equally open to the inference that the employer’s actions were not discriminatory. Id. at 244. Thus, such a case does not automatically present a jury question. Accordingly, we held that j.n.o.v. is appropriate whenever the evidence as a whole does not support the inference that it was reasonably probable that discriminatory intent was the “but for” cause of the adverse employment action. Id. at 243. The rationale underlying this standard is persuasive.

To guard against the danger that the jury will reach a decision on the basis of mere speculation, in light of the demonstrated difficulty in choosing rationally between “mere possibility” and “substantial probability”, by impermissible but understandable resort to such factors as sympathy, the Lovelace court held that “the burden of producing rationally probative evidence — and the corresponding risk of nonproduction — is placed upon the claimants and subjected to the ultimate jury control devices of directed verdict and judgment n.o.v.”

Foster, supra, at 1056 (quoting Lovelace, supra, at 242). We find this reasoning equally applicable to appellant’s retaliatory discharge claim. We also find that under *459this analysis the trial court correctly entered j.n.o.v. against appellant on both her claims.

Appellant’s only evidence of discriminatory intent was her own assertions concerning Neuman. She presented no evidence of racial animus on the part of Hay or Ludes, the officials responsible for her discharge. Further, the corroborating testimony of Neuman’s animus by Seaman Miller must be discounted because of its documented impossibility. As the Fifth Circuit has noted:

[W]e have recognized that generalized testimony by an employee regarding his subjective belief that his discharge was the result of age discrimination is insufficient to make an issue for the jury in the face of proof showing an adequate, nondiscriminatory reason for his discharge.

Elliott v. Group Medical & Surgical Service, 714 F.2d 556 (5th Cir.1983) cert. denied, 467 U.S. 1215, 104 S.Ct. 2658, 81 L.Ed.2d 364 (1984) (citation omitted). This reasoning rings especially true when appellant’s proof is posed against the voluminous documentation of her misconduct and the internally consistent testimony of her supervisors. We agree with the trial court that no reasonable inference can be drawn that discrimination was the probable “but for” cause of appellant’s discharge.

Appellant’s charge of retaliatory discharge is similarly untenable. Aside from the fact that at the time she was fired her superiors had knowledge that she had filed a discrimination charge, she presented no evidence to support her claim other than her own assertions. Set against the documented deterioration of her work after she was placed on probation and her continued abuse of telephone privileges after repeated warnings, no reasonable trier of fact could conclude that retaliation figured in her dismissal. As the trial court noted, this jury may have been impermissibly swayed by appellant’s emotional testimony, a danger that we have repeatedly recognized. See Foster, supra, at 1056; Lovelace, supra, at 242. We agree with the district court that the evidence in this record cannot reasonably support the inference that the probable “but for” motive behind appellant’s discharge was retaliation. This conclusion is strongly supported by the Maryland Employment Security Administration’s conclusion that appellant was fired for misconduct. See Ross, supra, at 363 (such proceedings while not having preclusive effect are relevant and worthy of consideration). Thus, we affirm the entry of j.n.o.v. in favor of Cerberonics.6

IV.

In sum, because the trial court was not clearly erroneous in rendering a verdict in favor of Cerberonics on the Title VII claims, and because j.n.o.v. was appropriate on the § 1981 claims, we affirm the judgment below in all respects.7

AFFIRMED.

. Appellant also contends that the trial court improperly excluded her general statistical evidence of Cerberonics' employment of minorities. The proffered evidence showed the percentage of qualified blacks in the greater Washington area relative to the percentage employed by Cerberonics. Appellant sought to introduce this evidence without expert testimony as to how the statistics were compiled or how they related to appellant’s claim. Under these circumstances, we do not believe that the trial court erred in excluding this evidence under Fed.R.Evid. 403. Without expert testimony, the limited probative value of the evidence was plainly outweighed by the possibility it might mislead or confuse the jury. See Foster v. Tandy Corp., 828 F.2d 1052, 1057 (4th Cir.1987) (“raw statistics devoid of any context which relates those statistics to the alleged discriminatory practice are of minimal probative value”). After issuance of this opinion, it was brought to our attention by West Publishing Co. that Foster was mistakenly published in full when it should have been designated a table decision without a published opinion. Foster v. Tandy Corp., 848 F.2d 184 (4th Cir.1987). We have chosen not to amend this opinion but advise that proper reference to Foster should point to the table decision.

. The ultimate burden of persuasion in a Title VII or § 1981 employment discrimination case never "shifts" from the plaintiff. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981). The shifting intermediate evidentiary burdens established by McDonnell Douglas, supra, and its progeny, merely expedite the process of plaintiffs proof. Id.

. This conclusion was based in part on the trial court’s erroneous belief that appellant’s supervisors had no knowledge of her discrimination charge until after she was terminated. It is clear from the record that both Hay and Ludes were aware that she had filed a charge at the time Ludes decided to terminate her.

. Appellant strenuously argues that once the jury returned a verdict in her favor on the § 1981 claims, a verdict that necessarily encompassed all of the material questions of fact in her Title VII claims, the trial court should have conformed its findings of fact accordingly. The facts in this case do not allow us to agree. As a general proposition, we stated in Swentek v. USAIR Inc., 830 F.2d 552, 559 (4th Cir.1987), that trial judges are encouraged to conform their equitable findings to jury verdicts on the same essential facts. And, we are aware of the growing body of authority that says a trial court is bound in Title VII cases to conform its findings of fact to those of the jury in concurrently tried § 1981 cases. See Roebuck v. Drexel University, 852 F.2d 715, 737-39 (3rd Cir.1988). However, we need not address this issue because, as we stated in Swentek, supra, this principle is stretched to the breaking point if the trial court would be forced to accept an infirm verdict. Since we conclude that there was not sufficient evidence for the jury to base a verdict in appellant's favor, we find no error in the trial court making its findings of fact contrary to those of the jury. Although deference must be paid to the jury's role as the finder of fact, it is always incumbent upon a trial court to follow its view of the clear weight of the evidence.

. It is axiomatic that in making this determination, the court cannot weigh the credibility of the witnesses. Appellant’s claim to the contrary notwithstanding, a reading of the entirety of the lower court’s opinion demonstrates that the court did not impermissibly weigh credibility in reaching its conclusion to grant j.n.o.v. Rather, the court was doing nothing more than articulating, in a detailed fashion, that the evidence supported no other reasonable verdict.

. Because we conclude that j.n.o.v. was appropriate, there is no need to address the trial court's alternative grant of a new trial.

. Cerberonics cross-appeals and complains that the trial court should have entered summary judgment in its favor on Williams’ retaliatory discharge claims. Our disposition of the case makes it unnecessary to address this claim.