dissenting:
Because the jury reasonably could have concluded that Karen Williams received discriminatory treatment by her employer, Cerberonics, Inc., on account of her race, I would reverse the district court’s grant of a judgment notwithstanding the verdict on Williams’ § 1981 claims for disparate treatment and retaliatory discharge. I therefore respectfully dissent from the majority’s holding to the contrary. I would affirm, however, the district court’s alternative grant of the motion for a new trial on these claims. In order to avoid its preclu-sive effect in the new trial, and preserve Williams’ right to jury trial on her § 1981 claim, I would vacate the district court’s bench trial judgment in favor of Cerberon-ics on Williams’ Title VII claim pending return of a jury verdict on the remanded § 1981 claim to which the Title VII judgment should then be conformed.
*460I
The standards by which courts should assess the sufficiency of evidence on a motion for directed verdict or jnov in a jury trial on a discrimination claim were discussed in Lovelace v. Sherwin-Williams Co., 681 F.2d 230 (4th Cir.1982). Lovelace was an age discrimination (ADEA) case, but the standards applied there are appropriate to Williams’ claims of racial discrimination since an ADEA proof scheme is itself transposed from a disparate treatment proof scheme under Title VII. Id. at 238. Williams' legal claims were brought under § 1981, whose elements of proof are the same as a Title VII claim. Abasiekong v. City of Shelby, 744 F.2d 1055, 1058 (4th Cir.1984).
The majority and I are in agreement that the burden of production has been satisfied in the first two of the three steps required under the presumption-centered proof scheme enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1980). Maj. op. at 455-56. There is no quarrel that Williams carried her initial burden of production by establishing a prima facie case of discrimination and that Cerberonics carried its burden of production at the second stage by introducing sufficient evidence that it treated Williams disfavorably for legitimate, nondiscriminatory reasons. The point of dispute, then, is at the third stage of the proof scheme: whether Williams showed that Cerberonics’ stated reasons for its treatment and dismissal of her were pretextual. Maj. op. at 456. I therefore limit my discussion of the trial court’s obligation in reviewing a motion for directed verdict or jnov to that stage of the analysis. Here Williams’ burden of production
relates again to the motivational issue but now as recast by the defendant’s proffered explanation into the more specific form whether as between the plaintiff’s [race] and the defendant’s proffered reason, [race] is the “more likely.” In assessing whether this recast burden of production has been carried, the court may properly consider plaintiff’s evidence offered to establish the dispelled [prima facie] presumption along with any designed to show defendant’s proffered explanation to be a pretextual one. If the burden if carried, the case is for the jury under proper instructions defining the motivational issue as ultimately framed at the “new level of specificity” created by the defendant’s rebutting evidence. If this ultimate burden is not carried the defendant’s motion should of course be granted, even though the plaintiff’s original burden of production was carried by force of the presumption.
Lovelace, 681 F.2d at 241 (citations omitted).
We have emphasized that in addressing the question of whether the evidence on the ultimate motivational causation issue is sufficient, the court must be concerned that any verdict for the plaintiff be based on substantial probability rather than mere possibility. Id. at 242. The emphasis on probability emerges from the concern
that in a matter so generally incapable of certain proof jury decision will be on the basis of sheer speculation, ultimately tipped, in view of the impossibility of choosing rationally between mere “possibilities,” by impermissible but understandable resort to such factors as sympathy and the like. It is of course precisely to guard against this danger that the burden of producing rationally probative evidence — and the corresponding risk of nonproduction — is placed upon claimants and subjected to the ultimate jury control devices of directed verdict and judgment n.o.v.
Id.
Under this framework I analyze separately Williams’ § 1981 claims of disparate treatment and retaliatory discharge.
II
At the stage of inquiry we are considering, Williams’ burden of production is recast into the question whether the evidence would support a jury finding that her race rather than Cerberonics’ alleged reasons were the more likely grounds for her treat*461ment and dismissal. I believe that Williams did carry her burden here and that consequently her case was properly before the jury. Specifically, under the Lovelace standard, the evidence was sufficient for the jury to find, on the basis of reasonable probability, that Williams had been discriminated against because of her race. I therefore would reverse the jnov granted by the district court on Williams’ discrimination claim.
Cerberonics relies upon evidence suggesting that Williams’ discharge was caused, and justified, both by poor job performance and job misconduct. On the first Cerberonics cites in particular the results of recent class questionnaires where Williams was an instructor. J.App. 613 (Dec. 12, 1982, probation notice). Williams, on the other hand, maintains that the evidence would support a finding that the assertion of poor job performance was pre-textual. She introduced evidence that on each salary review prior to 1982 she received at least a 10% increase in salary, which indicated, according to Cerberonics’ own standards, excellent or outstanding performance. J.App. 476-48 (salary reviews of January 1980, February 1981, and October 1981); 468 (company standards on salary increases). In October 1981, for example, Williams was given a “special salary review in recognition of [her] professional competence in accomplishment of assigned tasks.” J.App. 478. She also produced evidence that the quality of her job performance was unchanged throughout 1982, introducing results of numerous class questionnaires, J.App. 535-84, and telexes from various job locations expressing appreciation for her work. J.App. 585-87 (telexes from August 1982, October 1982, and January 1983). Even Mr. Neuman, the supervisor with whom she had the greatest difficulty, testified that Williams’ job performance and attitude did not change between her October 1981 job review and the review undertaken in the fall of 1982. J.App. 298.
Cerberonics’ second alleged reason for Williams’ termination is her job misconduct. Here Cerberonics points to evidence of Williams’ inability to work harmoniously with co-workers or others, her tardiness, and her excessive use of an office telephone for personal calls. As example of Williams’ uncooperative behavior, the company — and the majority, see slip op. at 5— mentions a 1980 hotel incident in Japan, where Williams refused to pay for damages caused when, while asleep, she accidently kicked a pillow on top of a space heater, the pillow caught fire, and it burned a hole in the rug. The burn created a hole the size of a quarter, and the hotel wanted $400 in damages to replace the rug in its entirety. J.App. 96(c). While Neuman’s report indicates that the matter would have been resolved easily and quickly had Williams attempted to resolve the problem amicably, J.App. at 640, the contemporaneous memorandum by her co-employee, Michael Goddard, who was also staying at the hotel, suggests that Williams went to considerable lengths to conclude the matter responsibly. When Williams said she would not pay for the rug because of such a small burn, hotel management called the police. Williams then telephoned the ship on which she was due to give instructions to tell superiors that she would be delayed. She was advised to call shore patrol, which she did. The police wanted Williams to talk with the owner of the hotel about a settlement, and Williams agreed to delay her departure in order to wait for an appointment with the owner at six that evening. On her return to the hotel for the appointment, accompanied by Goddard, she was told that the owner could not return until ten. She and Goddard could not wait but went to the police station to confer. The police informed them that charges were pending but allowed them to leave. J.App. 641 (Goddard memorandum). The matter was later settled, and Williams agreed to pay some money to the hotel. J.App. 99. Williams’ colleagues treated the incident as one of little consequence, Id., and it was not cited whatsoever in later job evaluations, for which she received, as already mentioned, salary increases commensurate with excellent job performance. J.App. 477-78.
Cerberonics’ second major example of Williams’ uncooperative behavior, also cited *462by the majority, at 454, is her argument with Neuman over the use of a reserved parking space while on a San Diego job site in September 1982. Williams received written permission to park in the space, J.App. 175, and when Neuman continued to press her on the use of the space, she moved the car. J.App. 111(a). The majority states that Neuman ordered Williams to return to the home office because of the incident, at 454, but Wayne Hay, department manager and Neuman’s supervisor, testified that Neuman’s response was so extreme that Neuman in fact told Williams she was fired. J.App. 340. The majority also neglects to note that Hay countermanded Neuman’s order and told Williams to remain in San Diego to finish the job. Id.
Cerberonics also contends that it was justified in terminating Williams for job misconduct because of her tardiness and her excessive use of the phone for personal use. These were cited in particular as examples of the deterioration in Williams’ conduct after she was put on probation. Williams testified, on the other hand, that because ABO personnel traveled so much and worked so hard in the field, the office environment was lax; punctuality in the office was not an issue as long as staff members completed their work. J.App. 115-16. Neuman acknowledged that other employees were also tardy. J.App. 286. As for phone use, co-employee Theodore Newkirk testified that it was the practice of all employees to use the phone for personal calls and that he saw other employees so use both their desk phone and the phone in the conference room. J.App. 68, 70. It is true that one other employee was terminated because of excessive use of the phone, but this employee charged to the company over $800 in long-distance calls. J.App. 77.
The phone call that Williams received in the conference room on February 18, 1983, which led to her suspension and subsequent termination, was from her attorney. Williams had filed a discrimination complaint against Cerberonics in November 1982, and on February 18 had tried to call her attorney about recent events while she was at home for lunch. The attorney was not in at the time, and he returned the call to Williams that afternoon when she was back at work. So that she did not have to receive the call at her desk, which is in an open area where the call would be overheard, Williams took the call in the conference room. Understandably, she did not want to identify the caller to Hay, who found her in the room, so she hung up the phone and went back to her desk. J.App. 128-29. After a meeting was convened at which Hay, Neuman, and John Ludes, division manager, were present, Williams stated, according to Hay, that the call was from her attorney and concerned company business. J.App. 373. Williams was suspended immediately and terminated shortly thereafter. J.App. 130-31. I return to this incident in discussion of Williams’ retaliatory discharge claim, but for the moment it is sufficient to note that Williams’ use of the conference phone here was not only understandable under the circumstances but typical of employee phone use in general.
In response to all of Cerberonics’ claims of her poor job performance and misconduct, then, Williams contends that the evidence shows that her performance and conduct were at worst unexceptional and that the incidents mentioned were pretextual reasons for the discriminatory treatment she received. As additional indications that her behavior was discriminatorily singled out by management, Williams cites three other pieces of evidence. First, Neuman never gave her, unlike everyone else, compensatory time — time off as payment for periods where she worked overtime in the field. J.App. 117. Second, Lorraine Clark, a white woman who was hired in April 1982, J.App. 448, was given preferential assignment to a number of job locations that Williams requested but was refused. J.App. 86. On at least two other occasions, Neuman decided to send Clark and not Williams to a job assignment, and Williams was able to go also only on the intervention of someone higher than Neuman in the organization. J.App. 86, 108. By October 1982, Clark was also receiving higher pay than Williams for the same job. J.App. *463449, 667. Third, Theodore Newkirk, a black male hired in the fall of 1982, reported that Neuman’s behavior toward Williams was arrogant and nasty, a continued pattern that Neuman displayed toward no’other employee. J.App. 66-68. Despite this treatment, Newkirk testified, Williams’ response to Neuman was always respectful: “The way Mr. Neuman would express himself towards Karen and the way Karen reacted was — I just don’t see how anyone could be that nice.” J.App. 66.
Obviously, the evidence on the question of pretext — whether Williams was fired for discriminatory reasons or for the non-discriminatory reasons assigned — was in stark conflict. Either inference was certainly a permissible one for the jury. It might have inferred that Williams had come over time to be such a thorn in the side of the enterprise, so disruptive of personal relations, so unproductive, that this rather than anything connected to her race, was the reason for her discharge. But there was evidence supporting the opposite inference — that the non-discriminatory reasons specifically assigned were, upon inspection, sufficiently flimsy to indicate that they were indeed pretextual, not the real reason. I am satisfied that under our precedents the evidence was more than sufficient to support the jury verdict in Williams’ favor.
Accordingly, I would reverse the district court’s grant of judgment n.o.v. on Williams’ disparate treatment claim.
Ill
I would also reverse the trial court’s jnov on Williams’ claim of retaliatory discharge. I agree with the majority, slip op. at 457, that Williams satisfied the elements of a prima facie case and that the crux here is whether the evidence, considered in its most favorable light, was sufficient to negate Cerberonics’ nondiscriminatory explanation for her discharge and thereby to permit the inference that it would not have occurred “but for” her filing a discrimination claim with the Maryland Commission on Human Relations. See Ross v. Communications Satellite Corp., 759 F.2d 355, 365-66 (4th Cir.1985). As with Williams’ discrimination charge, I believe that Williams carried her burden of production and that the jury verdict in her favor is therefore supported.
Williams filed her discrimination complaint with the Maryland Commission on Human Relations on November 4, 1982. J.App. 601-11. Ludes, Hay, and Neuman, the three management employees in attendance at the meeting at which Williams was suspended on February 18, 1983, all testified that they knew of Williams’ discrimination charge by the date of this meeting. J.App. 311, 313 (Neuman); 363-64 (Hay); 384-85 (Ludes). This sequence of events, Williams’ unrebutted evidence that her phone use was typical of that of other Cerberonics employees, and the evidence that she was suspended and then terminated because of a phone call with her lawyer completely support, though surely it did not compel, the jury verdict that her discharge was retaliatory. I would therefore reverse the trial court’s grant of Cerberon-ics’ motion for jnov as to that claim.
IV
Because I would reverse the district court’s grants of jnov, I then must address its grant in the alternative of a new trial, an issue the majority of course did not have to reach. That ruling is a discretionary one which we review under a highly deferential abuse of discretion standard. Wadsworth v. Clindon, 846 F.2d 265, 266 (4th Cir.1988); Gill v. Rollins Protective Services Co., 836 F.2d 194, 196 (4th Cir.1987). Applying that standard, I would affirm the alternative grant of a new trial.
V
Because I would affirm the grant of a new trial, I must also address the problem — not faced by the majority — of the effect upon that retrial of the district judge’s findings and judgment against Williams on her parallel Title VII claim. To allow that judgment to have preclusive effect would of course effectively nullify the new trial, because the adverse findings in the Title VII claim would clearly forestall plaintiff’s *464attempt to prove her identical § 1981 legal claims of discriminatory and retaliatory discharge. This in turn raises the fundamental issue of whether to allow such a preclu-sive result would violate Williams’ jury trial rights in pursuing her § 1981 claims on retrial.
In confronting this jury trial issue, we encounter some problems in squaring our recent precedents with controlling decisions of the Supreme Court. The basic precept controlling the proper handling of joined legal and equitable claims raising common issues of fact in the same action remains that announced in Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959): the right to jury trial of the legal claim must not be lost through prior determination of the equitable claim except “under the most imperative circumstances.” Id. at 510-11, 79 S.Ct. at 957. Accordingly, to protect the jury trial right, trial of such joined claims, where possible, must be arranged and staged to insure primacy and preclusive effect for jury findings on the common issues. Id.
This does not mean that equitable findings embodied in a final judgment in one action may not have the ordinary issue preclusive effect of a prior judgment on the resolution of the same issues in a later legal action; they may. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979). But most courts, perhaps all but this court, have not applied the Parklane jury preclusion rule to circumstances involving joined claims in the same action. Rather, when confronted with that circumstance, other courts uniformly have followed the basic precept of Beacon The-atres to insure binding jury resolution of the common issues. See, e.g., Bouchet v. National Urban League, Inc., 730 F.2d 799, 803-04 (D.C.Cir.1984) (Scalia, J.); Wade v. Orange County Sheriffs Office, 844 F.2d 951, 954 (2d Cir.1988); Roebuck v. Drexel University, 852 F.2d 715, 738 (3d Cir.1988); Ward v. Texas Employment Comm’n, 823 F.2d 907, 908-09 (5th Cir.1987); In re Lewis, 845 F.2d 624, 629 (6th Cir.1988); Volk v. Coler, 845 F.2d 1422, 1437 (7th Cir.1988); Garza v. City of Omaha, 814 F.2d 553, 557 (8th Cir.1987); GTE Sylvania, Inc. v. Continental TV, Inc., 537 F.2d 980, 986 n. 7 (9th Cir.1976); Dybczak v. Tuskegee Institute, 737 F.2d 1524, 1527 (11th Cir.1984). Importantly, a number of these courts have applied this basic precept where, as here, the joined legal and equitable claims have been employment discrimination claims under § 1981 and Title VII, respectively.* See Wade, 844 F.2d at 954; Roebuck, 852 F.2d at 738; Ward, 823 F.2d at 907-08; Williamson v. Handy Button Machine Co., 817 F.2d 1290, 1293-94 (7th Cir.1987); Lincoln v. Bd. of Regents, 697 F.2d 928, 934 (11th Cir.1983).
Although this court has recognized the Beacon Theatres precept as basically controlling in the joined claim context, see Swentek v. USAIR, Inc., 830 F.2d 552, 559 (4th Cir.1987); Gnossos Music v. Mitken, Inc., 653 F.2d 117, 119-20 (4th Cir.1981); Tights, Inc. v. Stanley, 441 F.2d 336, 337 *465(4th Cir.1971), we have recently held it not applicable where, following erroneous dismissal of ADEA and Equal Pay Act legal claims, the district court found against claimant on a joined, parallel Title VII equitable claim. In that situation, we held that the Parklane preclusion rule would apply and that because it would defeat any remanded trial of the erroneously dismissed legal claims, that dismissal and the consequent loss of jury trial right was harmless error. Ritter v. Mount St. Mary’s College, 814 F.2d 986, 990-91 (4th Cir.1987); accord Dwyer v. Smith, 867 F.2d 184 (4th Cir.1989).
We may stand alone at this point in holding Parklane’s preclusion rule applicable in the joined claim situation, see Roebuck, 852 F.2d at 737 (so asserting), but Ritter nevertheless stands as controlling precedent for that rule in this circuit. However, I think the situation created by ordering a new trial here is sufficiently different from that presented in Ritter that Ritter’s rule does not control here. Here, unlike the situation in Ritter, both claims have proceeded to resolution: by jury verdict favorable to claimant on the § 1981 claims, and by judge findings against claimant on the parallel Title VII claim. In that circumstance, I think we are free to follow the Beacon Theatres precept, and indeed must. See Roebuck, 852 F.2d at 738-39 (so distinguishing Ritter from comparable situation there presented); see also Swentek 830 F.2d at 562-63 (where parallel Title VII and state tort claims joined, adverse Title VII findings should not be preclusive of state tort claim remanded for legal error after verdict for claimant; Ritter distinguished).
To follow the Beacon Theatres precept here would require that we vacate that portion of the judgment denying Williams’ Title VII claim, and remand that claim with directions to hold it in abeyance pending jury verdict on the remanded § 1981 claims and thereupon to enter judgment on the Title VII claim conformed to the jury verdict. Accord Roebuck, 852 F.2d at 739; Volk, 845 F.2d at 1438 (reversing the Title VII judgment); Bouchet, 730 F.2d at 803 (Scalia, J.) (if jury trial required, Title VII judgment should be vacated). Only in this way can Williams’ rights to a jury trial under § 1981 be preserved.
I would so order.
It has been argued — though in a different context — that because claimants under the various federal anti-discrimination statutes might be positively disfavored by jury trials given the potential for racial prejudice on juries, non-jury trials of such claims should be preferred. See, e.g., Curtis v. Loether, 415 U.S. 189, 191-92, 94 S.Ct. 1005, 1007, 39 L.Ed.2d 260 (1974) (argument advanced in support of contention that Congress did not intend to provide jury trials on Title VIII damages actions). Transposed to the context of joined legal and equitable race-discrimination claims under § 1981 and Title VII, the argument would presumably be that in that context, the basic Beacon Theatres precept should be reversed, with primacy and preclusive effect being accorded the Title VII bench trial findings — that this is just such an “imperative circumstance” warranting primacy for non-jury findings on common issues as Beacon Theatres posited. There are several answers to this possible argument. (1) The Supreme Court in Curtis v. Loether rejected the notion that non-jury trials could or should on that account be the preferred mode of trial of such claims, both on constitutional, 415 U.S. at 192, 94 S.Ct. at 1007, and practical, 415 U.S. at 198, 94 S.Ct. at 1010, grounds. (2) No other court of appeals has adopted it as a general rule for handling joined legal and equitable claims of race discrimination. (3) The race-discrimination claimant ordinarily retains the power to make her own judgment about the balance of risks — including that of racial prejudice — as between the two modes of trial.