Saleh v. VA State University ( 2001 )


Menu:
  •                          UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    FATHY M.A. SALEH; GODWIN O.              
    MBAGWU,
    Plaintiffs-Appellees,
    v.
    JANESHWAR UPADHYAY,
    Plaintiff,
    v.
    EDDIE MOORE, JR., in his individual
    capacity and in his official capacity
    as President of Virginia State
    University; MARTHA DAWSON, in her
    individual capacity and in her
    official capacity as Provost of
    Virginia State University; LORENZA
    W. LYONS, in his individual capacity
    and in his official capacity as Dean
       No. 99-2137
    of the School of Agriculture,
    Science and Technology of Virginia
    State University; FLORENCE S.
    FARLEY, in her individual capacity
    and in her official capacity as
    Professor of Virginia State
    University; THOMAS H. EPPS, in his
    individual capacity and in his
    official capacity as Chairperson of
    the Department of Chemistry,
    Director of the MBRS Program and
    Associate Professor at Virginia
    State University,
    Defendants-Appellants,
    and
    
    2                       SALEH v. UPADHYAY
    VIRGINIA STATE UNIVERSITY; GERALD       
    Z. DEMERS, in his individual
    capacity and in his official capacity
    as Chair of the Department of
    Engineering Technology of Virginia
    State University; EDWARD J. MAZUR,
    in his individual capacity and in his
    official capacity as Vice President
    of Administration, Business and
    Finance of Virginia State
    University; RICHARD BOOKER, in his
    individual capacity and in his
    official capacity as Director of
    Extension Services of Virginia State
    University; REGINA KNIGHT MASON,
    in her individual capacity and in her   
    official capacity as Assistant
    Professor at Virginia State
    University and in her individual
    capacity and her official capacity as
    Interim Chairperson of the
    Department of Life Sciences at
    Virginia State University; WINFREY
    S. CLARKE, in his individual
    capacity and in his official capacity
    as Associate Dean for Agriculture
    and Director of Research of the
    School of Agriculture, Science and
    Technology of Virginia State
    University,
    Defendants.
    
    SALEH v. UPADHYAY                 3
    FATHY M.A. SALEH,                       
    Plaintiff-Appellant,
    and
    GODWIN O. MBAGWU; JANESHWAR
    UPADHYAY,
    Plaintiffs,
    v.
    EDDIE MOORE, JR., in his individual
    capacity and in his official capacity
    as President of Virginia State
    University; MARTHA DAWSON, in her
    individual capacity and in her
    official capacity as Provost of
    Virginia State University; LORENZA
    W. LYONS, in his individual capacity       No. 99-2188
    and in his official capacity as Dean
    of the School of Agriculture,
    Science and Technology of Virginia
    State University; FLORENCE S.
    FARLEY, in her individual capacity
    and in her official capacity as
    Professor of Virginia State
    University;
    Defendants-Appellees,
    and
    VIRGINIA STATE UNIVERSITY; THOMAS
    H. EPPS, in his individual capacity
    and in his official capacity as
    Chairperson of the Department of
    Chemistry, Director of the MBRS
    
    4                       SALEH v. UPADHYAY
    Program and Associate Professor at      
    Virginia State University; GERALD
    Z. DEMERS, in his individual
    capacity and in his official capacity
    as Chair of the Department of
    Engineering Technology of Virginia
    State University; EDWARD J.
    MAZUR, in his individual capacity
    and in his official capacity as Vice
    President of Administration,
    Business and Finance of Virginia
    State University; RICHARD BOOKER,
    in his individual capacity and in his
    official capacity as Director of
    Extension Services of Virginia State
    University; REGINA KNIGHT MASON,
    in her individual capacity and in her   
    official capacity as Assistant
    Professor at Virginia State
    University and in her individual
    capacity and her official capacity as
    Interim Chairperson of the
    Department of Life Sciences at
    Virginia State University; WINFREY
    S. CLARKE, in his individual
    capacity and in his official capacity
    as Associate Dean for Agriculture
    and Director of Research of the
    School of Agriculture, Science and
    Technology of Virginia State
    University,
    Defendants.
    
    SALEH v. UPADHYAY                  5
    FATHY M.A. SALEH; GODWIN O.              
    MBAGWU,
    Plaintiffs-Appellees,
    and
    JANESHWAR UPADHYAY,
    Plaintiff,
    v.
    EDDIE MOORE, JR., in his individual
    capacity and in his official capacity
    as President of Virginia State
    University; MARTHA DAWSON, in her
    individual capacity and in her
    official capacity as Provost of
    Virginia State University; LORENZA
    W. LYONS, in his individual capacity
    and in his official capacity as Dean
       No. 00-1744
    of the School of Agriculture,
    Science and Technology of Virginia
    State University; FLORENCE S.
    FARLEY, in her individual capacity
    and in her official capacity as
    Professor of Virginia State
    University; THOMAS H. EPPS, in his
    individual capacity and in his
    official capacity as Chairperson of
    the Department of Chemistry,
    Director of the MBRS Program and
    Associate Professor at Virginia
    State University,
    Defendants-Appellants,
    and
    
    6                       SALEH v. UPADHYAY
    VIRGINIA STATE UNIVERSITY; GERALD       
    Z. DEMERS, in his individual
    capacity and in his official capacity
    as Chair of the Department of
    Engineering Technology of Virginia
    State University; EDWARD J. MAZUR,
    in his individual capacity and in his
    official capacity as Vice President
    of Administration, Business and
    Finance of Virginia State
    University; RICHARD BOOKER, in his
    individual capacity and in his
    official capacity as Director of
    Extension Services of Virginia State
    University; REGINA KNIGHT MASON,
    in her individual capacity and in her   
    official capacity as Assistant
    Professor at Virginia State
    University and in her individual
    capacity and her official capacity as
    Interim Chairperson of the
    Department of Life Sciences at
    Virginia State University; WINFREY
    S. CLARKE, in his individual
    capacity and in his official capacity
    as Associate Dean for Agriculture
    and Director of Research of the
    School of Agriculture, Science and
    Technology of Virginia State
    University,
    Defendants.
    
    Appeals from the United States District Court
    for the Eastern District of Virginia at Richmond.
    Robert E. Payne, District Judge.
    (CA-97-460)
    SALEH v. UPADHYAY                           7
    Argued: November 2, 2000
    Decided: May 31, 2001
    Before WIDENER and KING, Circuit Judges, and
    Margaret B. SEYMOUR, United States District Judge for the
    District of South Carolina, sitting by designation.
    Affirmed by unpublished per curiam opinion.
    COUNSEL
    ARGUED: Bradley Brent Cavedo, SHUFORD, RUBIN & GIBNEY,
    P.C., Richmond, Virginia, for Appellants. Samuel M. Brock, III,
    MAYS & VALENTINE, L.L.P., Richmond, Virginia, for Appellees.
    ON BRIEF: Robert A. Dybing, SHUFORD, RUBIN & GIBNEY,
    P.C., Richmond, Virginia, for Appellants. James S. Crockett, Jr.,
    Richard F. Hawkins, III, MAYS & VALENTINE, L.L.P., Richmond,
    Virginia; Beverly C. Powell, Mark E. Herrmann, EURE, KINCER &
    BELL, P.C., Richmond, Virginia, for Appellees.
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    OPINION
    PER CURIAM:
    These appeals were consolidated for oral argument pursuant to
    U.S. Ct. of App. 4th Cir. Rule 12(b). Appeals Nos. 99-2137 and 99-
    2188 XAP involve the merits of the underlying employment discrimi-
    nation actions. Appeal No. 00-1744 involves the issue of attorneys’
    fees. We address the appeals on the merits first, since our disposition
    8                         SALEH v. UPADHYAY
    of the issues presented influences our determination of the appropriate
    award of attorneys’ fees.
    I.
    Appellees Fathy M. A. Saleh (Saleh) and Godwin O. Mbagwu
    (Mbagwu) (together "Appellees"), tenured professors at Virginia State
    University (VSU), brought employment discrimination actions
    against several VSU administrators, including the University Presi-
    dent and Provost, in their individual capacities. Both Saleh and
    Mbagwu alleged race and national origin discrimination under 
    42 U.S.C. §§ 1981
     and 1983, conspiracy to interfere with their civil
    rights under 
    42 U.S.C. § 1985
    , and state law claims for conspiracy to
    injure them in their reputation, trade, business, or profession under
    
    Va. Code Ann. §§ 18.2-499
     & 500. Saleh also alleged retaliation for
    the exercise of First Amendment Rights under 
    42 U.S.C. § 1983
    , state
    law claims for tortious interference with contracts allegedly inuring
    to his benefit, and defamation. Appellees claimed that, because of
    their race and national origin, they were given lower annual evalua-
    tions and correspondingly lower annual raises from 1994 to 1998, and
    were denied other professional opportunities incident to their employ-
    ment at VSU.1
    The cases were consolidated by the district court for discovery and
    trial. Appellants Eddie N. Moore, Jr. (Moore), President of VSU; Dr.
    Martha Dawson (Dawson), University Provost; Lorenza W. Lyons
    (Lyons), Dean of VSU’s School of Agriculture, Science and Technol-
    ogy; Dr. Florence S. Farley (Farley), Professor of Psychology; and
    Dr. Thomas H. Epps (Epps), Chairperson of the Chemistry Depart-
    ment, each moved for summary judgment as to all of Appellees’ claims.2
    1
    Two other VSU professors brought related claims against VSU
    administrators; however, their claims are not a part of this appeal.
    2
    Farley was named as a defendant in Saleh’s case only. Epps was
    named as a defendant in Mbagwu’s case only. Both Saleh and Mbagwu
    sued Moore, Dawson, and Lyons. Saleh named three other VSU adminis-
    trators as defendants: Gerald Z. Demers, Chairperson of the Department
    of Engineering Technology; Edward Mazur, Vice President of Adminis-
    tration, Business and Finance; and Richard Booker, Director of Exten-
    sion Services. The district court granted the summary judgment motions
    of Mazur and Booker and dismissed them as defendants. Saleh’s discrim-
    ination and retaliation claims against Demers were presented to the jury
    and a verdict was returned in Demers’ favor.
    SALEH v. UPADHYAY                            9
    The district court granted summary judgment as to Appellees’ con-
    spiracy claims under federal and state law, as to Saleh’s tortious inter-
    ference and defamation claims, and as to Mbagwu’s race
    discrimination claims. The district court denied summary judgment as
    to the national origin discrimination claims under § 1983 and as to
    Saleh’s race discrimination and retaliation claims under § 1983. The
    district court determined that the underlying factual allegations were
    subject to Virginia’s two-year statute of limitations. However, the dis-
    trict court found that evidence respecting the time-barred allegations
    was relevant to prove discriminatory intent as to the claims surviving
    summary judgment.
    The matter was tried before a jury. The jury rejected Saleh’s
    national origin and racial discrimination claims, but found that
    Moore, Dawson, Lyons, and Farley had retaliated against him. The
    jury awarded Saleh $97,769.00 in compensatory damages and
    $19,580.00 in punitive damages. In Mbagwu’s case, the jury found
    that Moore, Dawson, Lyons, and Epps had discriminated against
    Mbagwu on the basis of his national origin. The jury awarded
    Mbagwu $194,829.00 in compensatory damages and $35,714.00 in
    punitive damages.
    Appellants moved at the conclusion of trial for judgment as a mat-
    ter of law in both cases, as well as for a new trial and for a new trial
    nisi remittitur in both cases. The district court denied Appellants’
    post-trial motions. They now appeal the denial of their motions for
    judgment as a matter of law and for a new trial. In addition, Appel-
    lants except to the compensatory damages awarded in both cases as
    excessive. Finally, Appellants argue that the district court committed
    reversible error in admitting Plaintiff’s Exhibit No. 395, a chart that
    summarized faculty hiring practices at VSU. On cross-appeal, Saleh
    argues that the district court erred in granting summary judgment on
    his claims for conspiracy to injure another in his business or profes-
    sion, and for tortious interference with his alleged contracts.
    II.
    In April 1993, the Auditor of Public Accounts of the Common-
    wealth of Virginia reported to the VSU Board of Visitors (BOV) that
    VSU’s finances were in disarray. The BOV elected Moore, then Trea-
    10                       SALEH v. UPADHYAY
    surer of the Commonwealth of Virginia, to be President of VSU, and
    assigned him the task of reforming VSU’s finances. Moore hired
    Dawson as University Provost, and appointed Lyons as Dean of
    VSU’s School of Agriculture, Science and Technology (AST School).
    Moore, Dawson, and Lyons are African-American.
    Shortly after Moore’s election as VSU President, the Virginia Gen-
    eral Assembly issued a "restructuring" mandate to all state-sponsored
    academic institutions in the Commonwealth. The restructuring pro-
    cess required state-sponsored colleges and universities to eliminate
    wasteful expenditures of taxpayer money.
    As part of the state mandated restructuring process, VSU imple-
    mented a new faculty evaluation process known as "pay for perfor-
    mance" to establish faculty members’ annual raises. Under the pay for
    performance guidelines, VSU faculty are rated in three categories:
    teaching, research, and service to VSU. Faculty are rated either "un-
    satisfactory," "satisfactory," "noteworthy," or "outstanding" in each
    category. Until 1998, the department chair averaged these ratings into
    an overall rating and then recommended a pay raise from an incre-
    ment range prescribed by the pay for performance guidelines. For
    example, in 1995, a faculty member receiving an overall rating of
    "satisfactory" could receive a raise of between one and one-half and
    two percent, at the discretion of the department chair. In 1998, the
    system was changed so that all persons receiving the same overall rat-
    ing received the same pay raise.
    A.
    Saleh was born in Egypt in 1949 and moved to the United States
    in 1976. He is of North African racial and ethnic origin. Before work-
    ing at VSU, Saleh was a tenured professor and the Director of the
    Center for Energy and Environmental Studies at Southern University
    in Baton Rouge, Louisiana. In 1989, VSU president Dr. Wesley
    McClure invited Saleh to VSU to establish a similar center there.
    Saleh accepted a tenured position as an associate professor in VSU’s
    Department of Agriculture; however, Saleh was not required to teach
    classes, since his planned role at VSU was to establish a research
    facility.
    SALEH v. UPADHYAY                            11
    Moore reorganized and restructured VSU, among other ways, by
    eliminating several centers at VSU and by requiring all faculty to
    teach. In a letter dated April 6, 1994, Lyons informed Saleh:
    [Y]our new contract will be a full-time teaching appoint-
    ment within the Department of Engineering Technology [in
    the AST School]. There will not be any state funding avail-
    able to support the Center for Energy and Environmental
    Studies, effective May 15, 1994. By a copy of this letter to
    Dr. Martha Dawson . . . I am recommending that all of your
    new initiatives relate to your area of expertise and be consis-
    tent with the goals and objectives of the Department of
    Engineering Technology.
    In April 1994, Moore mailed Saleh a contract for the upcoming
    1994-95 school year that described Saleh as "Associate, Engineering
    Technology." Saleh changed the contract by typing in the words "Pro-
    fessor of Environmental Engineering, Center for Energy and Environ-
    mental Studies," and sent the contract to Lyons. By letter dated
    December 9, 1994, Lyons provided Saleh with a list of courses he was
    expected to teach in Spring 1995, and requested that Saleh contact
    Gerald Z. Demers (Demers), the Chair of the Department of Engi-
    neering Technology. Saleh testified that he did not receive this letter
    until the middle of January 1995. In any event, Saleh did not assume
    his teaching load at the start of the spring semester. Dawson wrote
    Saleh in February 1995, after the spring term had started, threatening
    him with termination if he failed to assume his teaching duties. Saleh
    eventually agreed to teach one class for the remainder of the semester.
    On July 6, 1995, Saleh and Carey Stronach (Stronach), a white
    American Physics professor at VSU, presented a paper entitled "Re-
    cent Acts of Racial Discrimination Against White and Foreign-
    National Faculty and Academic Staff at Virginia State University"
    ("Recent Acts") at a BOV meeting attended by Moore and Dawson.
    The document listed alleged acts of discrimination against white and
    foreign-born VSU faculty; almost all were alleged to have been
    directed by Dawson and Lyons. The document was unsigned; how-
    ever, Saleh and Stronach discussed and concurred with its allegations
    at the BOV meeting.
    12                        SALEH v. UPADHYAY
    Approximately fifteen minutes after this presentation, Saleh was
    instructed to report to Dawson’s office. Dawson informed Saleh that
    she intended to sue him for defamation for the "lies" contained in
    "Recent Acts." According to Saleh, she also told him, "you and your
    friends are going to be reprimanded, you will never do research
    again."
    The presentation of "Recent Acts" was discussed at a July 12, 1995
    meeting of the VSU Faculty Council, a body that presents the official
    opinion of the faculty on policy matters. A transcript of that meeting
    reveals the following discussion:
    Farley: If the name is Salla [sic], I know how Salla got here.
    Salla has tenure and nobody knows that the tenure ever went
    to the Board of Visitors. We have yet to find it. I was
    Interim Dean when he came . . . . And if I go under my bed
    in some boxes, I’m going to find a copy of the A21 [person-
    nel action form]. That was not signed by the Vice President
    of Academic Affairs, because I keep everything for this kind
    of day.
    See but that’s the way he came. He came with his rank and
    he came with tenure. He walked in the door with tenure, and
    nobody in the Ag department acted on it. And it’s my under-
    standing that as of Monday morning they can find no Board
    minutes that said that he was given tenure by the Board of
    Visitors.
    Counsel [sic] member: But then he doesn’t have tenure.
    Farley: As far as I’m concerned he doesn’t have tenure. As
    far as I’m concerned, he doesn’t have tenure.
    Moore subsequently reported to the BOV that, in his opinion, Saleh
    had been hired in a manner inconsistent with VSU policy. The board
    determined, however, that Saleh had tenure. Moore purportedly told
    Saleh in December 1995, "you make me work hard for you, I have
    to check your file. You don’t have tenure. And I went to the board
    and the board wouldn’t let me take your tenure."
    SALEH v. UPADHYAY                           13
    Saleh testified that in October 1995 he entered into a consulting
    contract with Resources Group of Virginia (RGV), an agricultural
    business venture, although no contract was ever produced at trial.
    Raymond Golden, who formed RGV, testified that financial support
    for the project was contingent on his ability to obtain technical assis-
    tance from VSU’s Cooperative Extension Service, headed by Richard
    Booker. Golden testified that Booker told him over the telephone that
    the Extension Service could not work with RGV "because Dr. Saleh
    and Eddie Moore had a problem," and told him in person that "Eddie
    Moore didn’t like Dr. Saleh and he could not work with me." Booker
    denied making these statements, however. Another witness, Bernard
    Jones, testified that, in the fall of 1995, Booker "said that I was going
    to find myself in trouble hanging out with Dr. Saleh." In any event,
    the RGV project never materialized.
    In late October 1995, Demers evaluated Saleh’s performance for
    the period beginning January 1, 1995 and ending August 30, 1995.
    Demers gave Saleh an overall rating of "unsatisfactory" and recom-
    mended no raise, citing Saleh’s failure to assume his teaching respon-
    sibilities at the beginning of the semester. Saleh objected to this
    evaluation, arguing that his failure to assume his teaching responsibil-
    ities was due to the confusion resulting from his transfer to the
    Department of Engineering Technology. At Dawson’s direction,
    Demers changed the rating to "satisfactory," and recommended a one
    and one-half percent raise. Saleh continued to object to this evalua-
    tion, arguing he merited an overall rating of at least "noteworthy."
    Demers refused to change the rating further, and explained this
    refusal by telling Saleh that he perceived an "aura" surrounding Saleh.
    This "aura," Demers acknowledged at trial, stemmed from the fact
    that Lyons and Dawson were unhappy with Saleh.
    There was evidence that Demers felt Saleh was not at fault for fail-
    ing to assume a teaching load. In a letter to Lyons dated November
    15, 1995, Demers wrote,
    Dr. Saleh, according to documentation I have, was officially
    assigned to this department in February 1995. All other
    information to the contrary was verbal and subject to much
    on-going discussion and controversy between Dr. Saleh and
    the administration.
    14                        SALEH v. UPADHYAY
    In the same letter, Demers reflected on his qualification to complete
    the 1995 evaluation of Saleh. He wrote: "I was placed in a position
    of rating a faculty member while probably being the least informed
    person to do so. That makes me very uncomfortable!" There was evi-
    dence that Demers felt constrained by Lyons and Dawson from giving
    Saleh an overall rating higher than "satisfactory," as he wrote to Saleh
    on this subject, "I’m damned if I do and I’m damned if I don’t! . . .
    From where I sit, it’s a no win situation for me . . . ."
    In December 1995, Saleh presented a research proposal that pro-
    vided for a program through which high school students would study
    engineering at VSU during the summer. Lyons rejected this proposal
    on the ground that it would compete with a similar program already
    underway.
    In May 1996, Saleh submitted a "Departmental Request for Person-
    nel Action" form, or "A21," requesting $19,750.00 in compensation
    for summer employment on a grant project. Lyons determined that the
    compensation requested exceeded that authorized by VSU policies,
    and unilaterally reduced the compensation requested to $13,520.00
    before approving the form. When he received a check for the smaller
    amount, Saleh complained to Lyons, who referred the matter to
    Moore. Moore instructed VSU internal auditor Jack Spooner to con-
    duct an investigation and prepare a report of his findings. Based on
    his own review of applicable university, state, and federal policies,
    Spooner concluded that Saleh had been overpaid for summer work in
    the amount of $5,794.00, and that Saleh had committed a fraud by
    failing to report the overpayment. Spooner also concluded that six
    other faculty members had received overpayments in the 1995-96
    academic year. Moore reported Saleh’s alleged fraud to state law
    enforcement officials and subsequently wrote Saleh to demand repay-
    ment of the $5,794.00 overage. No other faculty member identified
    by Spooner as having received an overpayment was reported to state
    police or asked by Moore to repay any money to VSU.
    In September 1996, Saleh presented to Demers and Lyons a
    research grant proposal relating to a Natural Resources Research
    Institute (NRRI) project funded by the United States Agriculture
    Department (USDA). Lyons rejected this proposal on the ground that
    SALEH v. UPADHYAY                           15
    projects related to Agriculture could not be conducted in the Engi-
    neering Technology Department.
    In November 1996, Demers rated Saleh for the 1995-96 academic
    year, awarding an overall rating of "satisfactory" and recommending
    a two percent raise, which was approved by Lyons. Saleh’s was the
    lowest raise in his department. When Demers was asked at trial
    whether the "aura" he had referred to had disappeared when it came
    time to complete the 1996 evaluations, Demers answered, "not that I
    could tell."
    In November 1997, Saleh was evaluated by Demers’ replacement,
    Kenneth Burbank (Burbank), for the 1996-97 academic year. Burbank
    gave Saleh an overall rating of "satisfactory" and recommended a
    raise of three percent, which was approved by Lyons. This raise was
    also the lowest in the department. On the evaluation form, Burbank
    commented,
    Dr. Saleh is a "square peg in a round hole." He is very tal-
    ented and has great energy. However, his expertise and
    interest lie outside the goals and objectives of this Dept. His
    strained personal relationships with some of the people on
    campus limited his effectiveness to teach and to complete
    tasks.
    Saleh asserts that, when he met with Burbank to object to this evalua-
    tion and corresponding raise, Burbank told him, "off the record . . .
    you need to get a job somewhere else. It’s not worth it . . . you know
    you have sued the administration . . . . They hate you. You are a thorn
    in Dr. Lyon’s side."
    In 1998, Saleh received an overall rating of "satisfactory" and the
    fixed raise for that rating. This was also the lowest raise given in the
    department.
    B.
    Mbagwu was born in Nigeria in 1936 and came to the United
    States in 1977 to study chemistry at VSU. He is of African descent.
    16                       SALEH v. UPADHYAY
    Epps, Chair of VSU’s Chemistry Department, hired Mbagwu as a
    chemistry instructor in 1981. Epps is African-American. Mbagwu
    attained tenure as a full professor at VSU in 1995. He is well-
    respected in his field for his prodigious accomplishments in the field
    of cancer research.
    At trial, Mbagwu endeavored to convince the jury that the orders
    to discriminate against white and foreign-born faculty at VSU were
    part of Moore’s "vision" for VSU. Mbagwu presented evidence that
    Moore and Farley harbored a discriminatory animus towards white
    and foreign-born VSU faculty. Several witnesses testified that they
    heard Moore and Farley make discriminatory remarks about white
    and foreign born faculty. Dr. Jean Cobbs (Cobbs), a former chair of
    the Sociology Department, testified that Moore told her after he was
    elected VSU president that "there were too many foreigners in Life
    Sciences, and he planned to do something about that." Cobbs also tes-
    tified that at a BOV meeting she overheard Farley refer to another
    board member as "that white bitch." Stronach testified that he heard
    Farley refer to a foreign-born VSU professor as "some of that African
    trash that Benepal [another department chair] brought over here."
    Another witness testified that Farley referred to Saleh as "that Egyp-
    tian that McClure brought here." Saleh and Florence Siddiqi, the wife
    of Dr. Shaukat Siddiqi (Siddiqi), a Life Sciences professor and former
    plaintiff in this lawsuit, both testified about a conversation between
    Moore and Mary Usry (Usry), a BOV member, at a Christmas party
    at Saleh’s house. Usry had written to Moore requesting information
    related to various administrative actions during his tenure as presi-
    dent. According to Saleh and Mrs. Siddiqi, Usry reported at the party
    that Moore had told her he "had a problem with the number of foreign
    faculty at Virginia State" because foreign faculty "could not relate
    with our students."
    There was also evidence that Moore desired to appease Farley, who
    was a former dean, department chair, and mayor of Petersburg. Sid-
    diqi testified that Moore told him and his wife over dinner that he
    "knows Dr. Farley, and he will do anything for her not to destroy his
    presidency as she did several other[s] before him." According to Mrs.
    Siddiqi, Moore stated he had heard that Dr. Farley "had been instru-
    mental in other presidential administrations failing and . . . [that]
    [h]e’d be damned if she would do it to him or his administration."
    SALEH v. UPADHYAY                         17
    When Moore arrived at VSU in 1993, Mbagwu was designing a
    grant proposal in the field of cancer research, to be funded by the
    National Institute of Health (NIH). The proposal included extra com-
    pensation in the amount of $3,541.00, to be split between Mbagwu
    and another faculty member for their work on the grant. The proposal
    was due at the NIH office in Bethesda, Maryland by 5:00 p.m. on
    October 1, 1993. Mbagwu delivered the proposal to the VSU Office
    of Grants and Contracts around the middle of September 1993. On
    Monday, September 27, the Director of that office, George Byrd, told
    Mbagwu that Moore would not sign the proposal because of the extra
    compensation included. Moore did not meet with Mbagwu to discuss
    the proposal until noon on October 1, 1993, and this meeting lasted
    almost three hours. Finally, Moore signed the grant proposal, backdat-
    ing his signature to September 29, 1993. Mbagwu drove the docu-
    ments to Bethesda, but was unable to reach the NIH office before it
    closed. The proposal was not accepted.
    Also in the fall of 1993, Mbagwu applied for a position advertised
    by the VSU administration as "Associate Dean of Science and Tech-
    nology." A search committee interviewed applicants for the position
    and selected Mbagwu and Stronach as the most qualified candidates.
    After the committee informed Lyons of its recommendations, how-
    ever, he announced that there was no longer funding available for the
    position. Lyons then requested permission from Dawson to appoint
    Physics Professor Dr. James Davenport, who is African-American, to
    the position of "Assistant to the Dean" of the AST School. Davenport
    worked one semester in this capacity without compensation. How-
    ever, he received twenty-five percent release time the following
    semester, and eventually received a twelve month contract at this
    position.
    In December 1994, Epps and Lyons nominated Mbagwu for the
    "Giants in Science Award" for the 1994-95 academic year; Mbagwu
    later was selected as the recipient of the award. In November 1995,
    Epps, Lyons, Dawson, and President Moore nominated Mbagwu for
    the Virginia Council of Higher Education’s Outstanding Faculty
    Award for the 1995-96 academic year; Mbagwu was selected as the
    recipient of this award as well.
    18                        SALEH v. UPADHYAY
    The two other professors in the VSU Chemistry Department, Drs.
    Beck and Foster, both were born in the United States.3 In October
    1995, Epps evaluated Mbagwu for the period beginning January 1,
    1995 and ending August 30, 1995. Epps gave Mbagwu a "notewor-
    thy" in teaching, an "outstanding" in research, and a "noteworthy" in
    service, resulting in an overall rating of "noteworthy," and a recom-
    mended raise of two and one-half percent, which was approved by
    Lyons. Professor Foster also received an overall rating of "notewor-
    thy" and a raise of two and one-half percent. Professor Beck, how-
    ever, received an overall rating of "outstanding" and a three and eight-
    tenths percent raise. Epps commented on Mbagwu’s evaluation form
    that Mbagwu did not receive an overall rating of "outstanding"
    because he "is often away from campus [and] often attends class late."
    In November 1996, Epps rated Mbagwu for the 1995-96 academic
    year, awarding him a "satisfactory" in teaching, a "noteworthy" in
    research, and an "outstanding" in service. Epps gave Mbagwu an
    overall rating of "noteworthy" and recommended a four percent raise,
    which was approved by Lyons. For the same evaluation period, Foster
    received an overall rating of "noteworthy," with a five and one-half
    percent raise, and Beck received an overall rating of "outstanding,"
    with a six percent raise. Again, Epps complained that Mbagwu failed
    to start his classes on time. When Mbagwu confronted Epps about his
    evaluation and raise, however, Epps asked Mbagwu, "why should
    [you] expect to receive outstanding in teaching when [you] have poor
    oral communication skills . . . students and colleagues in the chemis-
    try department [have] difficulty understanding [your] English."
    Mbagwu immediately accused Epps of discrimination and demanded
    an apology. Epps responded that he was sorry if Mbagwu took
    offense at his comment.
    In November 1997, Epps evaluated Mbagwu for the 1996-97 aca-
    demic year. Epps gave Mbagwu a "noteworthy" in teaching, an "out-
    standing" in research, and a "noteworthy" in service. Epps awarded
    Mbagwu an overall rating of "noteworthy" and recommended a five
    3
    In fact, there are three other professors in the VSU Chemistry Depart-
    ment, including Epps. Mbagwu compares himself to Foster and Beck
    because Epps evaluated them as well as Mbagwu. Epps, however, was
    evaluated by Lyons.
    SALEH v. UPADHYAY                            19
    percent raise, which was approved by Lyons. For the same evaluation
    period, Foster received an overall rating of "noteworthy," with a four
    and nine-tenths percent raise, and Beck received an overall rating of
    "noteworthy," with a five and one-tenth percent raise. In 1998,
    Mbagwu received an overall rating of "noteworthy" and the fixed
    raise for that rating; Foster received the same rating; Beck’s 1998
    evaluation is not part of the record.
    III.
    Appellants challenge the district court’s denial of their Rule 50(b)
    motion for judgment as a matter of law and alternative motions for
    a new trial as to Saleh’s retaliation claim and as to Mbagwu’s national
    origin discrimination claim. We review a district court’s denial of a
    Rule 50(b) motion for judgment as a matter of law de novo. Konkel
    v. Bob Evans Farms, Inc., 
    165 F.3d 275
    , 279 (4th Cir. 1999). A Rule
    50(b) motion should be granted if the district court determines that
    there is no legally sufficient evidentiary basis for a reasonable jury to
    find for the non-moving party. Id.; Cline v. Wal-Mart Stores, Inc., 
    144 F.3d 294
    , 301 (4th Cir. 1998). In making our own determination
    whether there was sufficient evidence for the jury verdict, we will not
    set aside the jury’s credibility determinations in favor of our own.
    Cline, 
    144 F.3d at
    301 (citing Duke v. Uniroyal, Inc., 
    928 F.2d 1413
    ,
    1419 (4th Cir. 1991)). We will assume that all testimony in favor of
    the non-movant is credible "unless totally incredible on its face." 
    Id.
    After a full trial on the merits, our "sole focus is ‘discrimination vel
    non’—that is, whether in light of the applicable standard of review the
    jury’s finding of unlawful retaliation [or discrimination] is support-
    able." 
    Id.
     at 301 (citing Jiminez v. Mary Washington College, 
    57 F.3d 369
    , 376 (4th Cir. 1995)). "[O]ur review is circumscribed with respect
    to any facts the jury found, but plenary with respect to any legal con-
    clusions underlying the verdict." Price v. City of Charlotte, 
    93 F.3d 1241
    , 1249 (4th Cir. 1996).
    A.
    Saleh alleges that Moore, Dawson, and Lyons deprived him of his
    First Amendment rights by retaliating against him after he presented
    "Recent Acts" at the BOV meeting on July 6, 1995. To prevail on this
    20                        SALEH v. UPADHYAY
    claim, Saleh "must first show that the expressions which are alleged
    to have provoked the retaliatory action relate to matters of public con-
    cern." Huang v. Board of Governors, 
    902 F. 2d 1134
    , 1140 (4th Cir.
    1990) (citing Connick v. Myers, 
    461 U.S. 138
    , 146 (1983)). Second,
    Saleh must show that the alleged retaliatory action deprived him of
    some valuable benefit. 
    Id.
     (citing Perry v. Sindermann, 
    408 U.S. 593
    ,
    597 (1972)). That is, Saleh must show that the employment actions
    directed toward him were sufficiently adverse to chill a reasonable
    person’s willingness to exercise his First Amendment rights. ACLU
    of Md. v. Wicomico County, 
    999 F.2d 780
     (4th Cir. 1993) (citing
    Perry, 
    408 U.S. at 597
    ). Third, Saleh must demonstrate a causal con-
    nection between the presentation of "Recent Acts" and the alleged
    retaliatory acts. Huang, 
    902 F.2d at 1140
    .
    In order to determine whether Saleh was speaking on a matter of
    public concern when he presented "Recent Acts" to the BOV, we
    inquire whether Saleh was speaking as a private citizen on a matter
    of public concern, or as an employee on a matter of personal concern.
    Edwards v. City of Goldsboro, 
    178 F.3d 231
    , 246 (4th Cir. 1999) (cit-
    ing Pickering v. Board of Educ., 
    391 U.S. 563
    , 568 (1968)). We have
    explained that the answer to this inquiry "rests on ‘whether the public
    or the community is likely to be concerned with or interested in the
    particular expression, or whether it is more properly viewed as a pri-
    vate matter between employer and employee.’" Id. at 247. Finally,
    "[w]hether an employee’s speech addresses a matter of public concern
    must be determined by the content, form and context of a given state-
    ment, as revealed by the whole record." Connick v. Myers, 
    461 U.S. 138
    , 147 (1983) (citations omitted). While it is clear that personal
    interest motivated Saleh in part to present "Recent Acts," we are con-
    vinced that a presentation to the Board of Visitors of a state university
    alleging a campus-wide campaign of racial discrimination in adminis-
    trative and employment decisions qualifies as a matter of public con-
    cern. Appellants agree with this determination for the purposes of this
    appeal. They contend, however, that Saleh is unable to meet his bur-
    den as to the remaining two elements.
    With regard to the second element of the Huang test, we have held
    that "a showing of adversity is essential to any retaliation claim."
    ACLU of Md., 
    999 F.2d at 784
    . We have defined the requisite adver-
    sity as "some impairment of the plaintiff’s rights," 
    id.,
     and have not
    SALEH v. UPADHYAY                            21
    endeavored to provide an exhaustive list of sufficiently adverse
    actions in the context of retaliation for the exercise of First Amend-
    ment rights. Of course, "[n]ot every restriction is sufficient to chill the
    exercise of First Amendment rights[.]" Dimeglio v. Haines, 
    45 F.3d 790
    , 806 (4th Cir. 1995). We note, however, that something less oner-
    ous than an "adverse employment action" in the context of Title VII
    jurisprudence may so chill the exercise of constitutional rights as to
    constitute a showing of adversity in a First Amendment retaliation
    case under § 1983. See, e.g., Power v. Summers, 
    226 F.3d 815
     (7th
    Cir. 2000). The dispositive inquiry is whether the adverse actions
    complained of, under the particular circumstances of the case, would
    deter the employee from again exercising his constitutional right to
    publicly comment on matters of public concern. ACLU of Md., 
    999 F.2d at 784
    .
    As to the third element of the Huang test, we noted then that "the
    causation requirement is rigorous; it is not enough that the protected
    expression played a role or was a motivating factor in the retaliation;
    claimant must show that ‘but for’ the protected expression the
    employer would not have taken the alleged retaliatory action." Huang,
    
    902 F.2d at 1140
    . We now address Saleh’s specific allegations of
    retaliation.
    TENURE
    In Edwards v. City of Goldsboro, 
    178 F.3d 231
     (4th Cir. 1999), we
    held that "a public employer is prohibited from threatening to dis-
    charge a public employee in an effort to chill that employee’s rights
    under the First Amendment." 
    Id.
     at 246 (citing Rankin v. McPherson,
    
    483 U.S. 378
    , 384 (1987)). The question presented is whether this
    proscription extends to prevent a public employer from threatening to
    remove a public employee’s tenure in an effort to chill the employee’s
    First Amendment rights. We hold that it does.
    Edwards and Rankin are rooted in the premise that "the threat of
    dismissal from public employment is a potent means of inhibiting
    speech." Pickering v. Board of Educ., 
    391 U.S. 563
    , 574 (1968). A
    threat to remove one’s tenure, however, is tantamount to a threat of
    dismissal. Since tenure prevents a professor from receiving a terminal
    employment contract, the revocation of tenure would be, in most con-
    22                        SALEH v. UPADHYAY
    ceivable scenarios, the precursor to a terminal employment contract.
    Saleh became aware of this threat when Moore told him, "[y]ou make
    me work hard for you, I have to check your file. You don’t have ten-
    ure. And I went to the board and the board wouldn’t let me take your
    tenure." This statement, combined with the inquiry into Saleh’s tenure
    conducted by Moore and Farley, amounted to an adverse action suffi-
    cient to chill the exercise of Saleh’s First Amendment rights.
    As to the element of causation, the temporal proximity between
    Saleh’s presentation of "Recent Acts" and the inquiries into his tenure
    made by Moore and Farley supports the inference that Moore and
    Farley instigated a challenge to Saleh’s tenure in response to pro-
    tected activity. See, e.g., Williams v. Cerberonics, Inc., 
    871 F.2d 452
    ,
    457 (4th Cir. 1989). Board member Garland Bigley testified that at a
    BOV meeting Moore reported that his review of the "minutes of the
    meetings of that time period" did not reveal a BOV vote approving
    tenure for Saleh. Bigley testified that it was "implicit" in Moore’s
    comments "that the minutes had been reviewed to find that." Farley
    indicated in her comments to the Faculty Council that "we have yet
    to find [the record of Saleh’s tenure approval by the BOV]." Most sig-
    nificantly, Farley stated in her pretrial deposition, which was taken
    before the tape of the Faculty Council Meeting was produced, she was
    aware that Stronach was involved with the presentation of "Recent
    Acts," but had never heard Saleh’s name in connection with the docu-
    ment. When confronted at trial with her remarks to the Faculty Coun-
    cil, Farley admitted that she had testified incorrectly at her deposition,
    blaming the discrepancy on a lapse or memory. Apparently, the jury,
    which asked to hear the tape again during its deliberations, discredited
    this explanation. It is the function of the jury to assess the credibility
    of witnesses at trial. Based on our review of the record, we cannot say
    that no reasonable jury could have concluded that Farley and Moore
    threatened to revoke Saleh’s tenure in retaliation for his exercising his
    First Amendment rights.
    EVALUATIONS
    As discussed previously, Saleh received the lowest raises in his
    department for the years 1996, 1997, and 1998. In Rutan v. Republi-
    can Party of Ill., 
    497 U.S. 62
    , 75-76 (1990), the Supreme Court rec-
    ognized that a failure to rehire, a denial of a promotion, or a denial
    SALEH v. UPADHYAY                           23
    of a transfer may constitute a deprivation of a valuable benefit. In so
    holding, the Court noted that public employees who are denied a pro-
    motion "stand to lose the considerable increases in pay and job satis-
    faction attendant to promotions[.]" 
    Id. at 74
    . Similarly, in this case,
    Saleh allegedly lost considerable increases in pay because of Appel-
    lants’ acts. Saleh’s economic expert calculated Saleh’s lost earnings
    as between $56,767.00 and $113,075.00. The reduction of Saleh’s
    raises for three years in a row constitutes an adverse employment
    action that may be expected to chill an employee’s First Amendment
    rights.
    As to the issue of causation, there was ample evidence from which
    the jury could infer that Saleh’s evaluations remained low at the
    direction of Lyons and with the implied consent of Dawson. As noted,
    in 1995, Demers commented to Saleh that he perceived an "aura" sur-
    rounding him. At trial Demers stated that the "aura" stemmed from
    the fact that Dawson and Lyons were unhappy with Saleh. The "aura,"
    Demers testified, was still there in 1996. In 1997, Dr. Burbank alleg-
    edly told Dr. Saleh more bluntly, "[t]hey hate you. You are a thorn
    in Dr. Lyon’s side." A reasonable jury could find that Lyons and
    Dawson ensured lower annual raises for Saleh in retaliation for
    Saleh’s personally accusing them of racial discrimination with the
    presentation of "Recent Acts."
    SUMMER PAY
    After an investigation ordered by Moore revealed that at least six
    faculty members, including Saleh, had been overpaid, Moore asked
    only Saleh to repay $5,794.00 to VSU, and reported only Saleh to law
    enforcement authorities as a fraud suspect. Moore presented no evi-
    dence to justify the decision to single out Saleh for this treatment. Nor
    did Moore present any evidence that the auditor’s interpretation of the
    relevant laws was the authoritative, or even correct, interpretation. To
    the contrary, BOV member Bigley testified that Moore had "skillfully
    avoided" answering her questions to this effect for "nearly two years."
    Under these circumstances, Moore’s actions constitute an adverse
    action such as may be expected to chill the First Amendment rights
    of a public employee. See also Hetzel v. County of Prince William,
    
    89 F.3d 169
    , 171 (4th Cir. 1996) (Internal Affairs investigation of
    plaintiff police officer was sufficiently adverse action to constitute
    24                         SALEH v. UPADHYAY
    deprivation of a valuable benefit in First Amendment retaliation con-
    text).
    Further, we find that there was sufficient evidence presented to the
    jury on the issue of causation from which to infer that Saleh was sin-
    gled out in retaliation for his presentation of "Recent Acts." While
    almost a year elapsed between the presentation of "Recent Acts" and
    the summer pay incident, this fact alone is not fatal to Saleh’s claim.
    But see Dowe v. Total Action Against Poverty in Roanoke, 
    145 F.3d 653
    , 656 (4th Cir. 1998) (finding three year time lapse between pro-
    tected activity and alleged retaliation negates inference of causation).
    The inference of causation is not negated where, as here, the alleged
    retaliatory act was one of a set of similar acts occurring simulta-
    neously or consecutively over the course of several years. In this case,
    evidence was presented that Moore and Farley attempted to remove
    Saleh’s tenure in 1995; that Lyons and Dawson ensured that Saleh
    received lower raises in 1995, 1996, and 1997; that Saleh was singled
    out for repayment of an alleged overpayment in summer 1996; and
    that Saleh was reported to state police as a fraud suspect in summer
    1996. We find that a reasonable jury could find that this conduct was
    undertaken in retaliation for Saleh’s protected activity a year earlier.
    For the foregoing reasons, we find that Saleh presented sufficient
    evidence from which a jury reasonably could infer that Moore, Daw-
    son, Lyons and Farley retaliated against him for the presentation of
    "Recent Acts." Accordingly, we affirm the district court’s denial of
    Appellants’ motion for judgment as a matter of law as to this issue.4
    4
    We note that Lyons’ rejection of Saleh’s research proposals does not
    constitute the kind of adverse action that would chill the reasonable per-
    son’s exercise of his First Amendment rights. These were simply admin-
    istrative decisions, best made by Lyons, and not a federal court. See
    Dorsett v. Board of Tr. for State Coll. & Un., 
    940 F.2d 121
    , 124 (5th Cir.
    1991) (noting that federal courts "have neither the competency nor the
    resources to undertake to micromanage the administration of thousands
    of state educational institutions") (citing Clark v. Whiting, 
    607 F.2d 634
    ,
    640 (4th Cir. 1979)). Moreover, as to the NRRI project, Lyons had
    informed Saleh in April 1994 that he was "recommending that all of your
    new initiatives relate to your area of expertise and be consistent with the
    goals and objectives of the Department of Engineering Technology."
    SALEH v. UPADHYAY                            25
    B.
    To establish a prima facie case of discriminatory compensation on
    the basis of his national origin, Mbagwu was required to demonstrate
    that, as a member of a protected class, he was paid less than a
    similarly-situated employee who is not a member of a protected class.
    See, e.g. Brinkley-Obu v. Hughes Training, Inc., 
    36 F.3d 336
    , 343
    (4th Cir. 1994). As discussed, Mbagwu demonstrated that he received
    lower raises in 1995, 1996, and 1997 than Professor Beck, who was
    born in the United States, and a lower raise in 1996 than Dr. Foster,
    who also was born in the United States. Therefore, under the burden-
    shifting framework first articulated in McDonnell Douglas Corp. v.
    Green, 
    411 U.S. 792
    , 802-805 (1973), Appellants were required to
    offer a legitimate, non-discriminatory justification for Mbagwu’s
    lower annual raises. Appellants met this burden of production by stat-
    ing that Mbagwu received lower raises because he was late to class,
    and because students allegedly had difficulty understanding his
    accent. At that point, "the McDonnell Douglas framework . . . disap-
    peared . . . and the sole remaining issue was discrimination vel non."
    Reeves v. Sanderson Plumbing Prod., Inc., 
    120 S. Ct. 2097
    , 2106
    (2000) (internal citations omitted).
    Therefore, Lyons made the decision that agricultural grants could not be
    operated out of the Engineering Department over a year before the pre-
    sentation of "Recent Acts." Therefore, Saleh failed to demonstrate the
    requisite causal connection between Lyon’s decision and Saleh’s exer-
    cise of his First Amendment rights.
    Nor has Saleh presented sufficient evidence from which a jury reason-
    ably could find that Appellants retaliated against him by interfering with
    his alleged consulting contract with RGV. Even assuming such a contract
    existed, and assuming that interference with this contract could constitute
    an adverse employment action, there is insufficient evidence in the
    record to establish that any defendant caused the RGV project to fail.
    The only testimony on this issue was that Richard Booker told Raymond
    Golden on two instances that Moore had a problem with Saleh, and told
    another witness that he would find himself in trouble hanging around
    Saleh. There was no evidence, however, that Moore told Booker that the
    project would not be allowed because Saleh was involved with the proj-
    ect as a consultant. Therefore, the jury could have reached this conclu-
    sion only by conjecture and speculation.
    26                       SALEH v. UPADHYAY
    Mbagwu introduced Ron Mollick (Mollick) as an expert on faculty
    evaluation systems. Mollick testified that the VSU pay for perfor-
    mance system lacked necessary features, such as in-class observation
    of teaching and student evaluations of teaching, that would make the
    system more objective. Mollick explained to the jury that, for the
    years 1995, 1996 and 1997, there was a range within which all faculty
    members receiving the same overall rating could fall in terms of their
    annual raise; yet there were no criteria to establish why one professor
    received an overall rating of satisfactory and a given raise, while
    another professor received an overall rating of satisfactory and a
    lower or higher raise.5 The combination of these features, Mollick
    opined, created a system left "wide open to subjective determinations,
    wide open to the possibility of abuse." Mollick’s testimony went
    unrebutted. Indeed, Appellants concede in their brief that the pay for
    performance system "began as a subjective system open to the possi-
    bility of abuse." App. Br. at p. 18.
    We cannot say that the evidence would not allow a reasonable jury
    to conclude that Appellants’ proffered reasons for Mbagwu’s low
    evaluations and annual raises were pretextual. Under Reeves,
    Mbagwu was not required to present affirmative evidence of Appel-
    lants’ discriminatory intent. Reeves, 
    120 S. Ct. at 2108
    . Rather, "[i]n
    appropriate circumstances, the trier of fact can reasonably infer from
    the falsity of the explanation that the employer is dissembling to
    cover up a discriminatory purpose." 
    Id.
    At trial, Appellants’ proffered legitimate, non-discriminatory rea-
    sons for Mbagwu’s lower evaluations and raises were inconsistent
    with their assessment of Mbagwu’s performance in light of the fact
    that they nominated him for the "Giants in Science" and SCHEV
    awards. For example, in October 1995, Epps gave Mbagwu an overall
    rating of "noteworthy," and recommended a two and one-half percent
    raise, commenting on Mbagwu’s evaluation form that he "is often
    away from campus, often attends class late, and does not appear to
    use time wisely." Just a few days later, Dawson commended Mbagwu
    in the Outstanding Faculty Award nomination materials for his "con-
    5
    In 1996, both Mbagwu and Dr. Foster received an overall rating of
    noteworthy. Yet, Dr. Foster received a five and one-half percent raise,
    while Mbagwu received only a four percent raise.
    SALEH v. UPADHYAY                          27
    sistent excellence in teaching, scholarship and service." In the same
    materials, Lyons wrote, "Dr. Mbagwu is an outstanding teacher and
    researcher at Virginia State University. He is highly respected by his
    peers and viewed as a positive role model by his students."
    Later in 1996, after Mbagwu received the Outstanding Faculty
    Award, the BOV presented Mbagwu with a resolution commending
    him for his "excellence in teaching, research, and public service," and
    recognizing Mbagwu as an "outstanding teacher and researcher
    among his peers . . . ." However, in his evaluation of Mbagwu in
    November 1996, Epps gave Mbagwu an overall rating of "notewor-
    thy," and the lowest raise in the department.
    In addition, when Mbagwu complained to Epps about his 1996
    evaluation and raise, Epps did not reiterate his written comments
    about lateness, but responded, "Why should [you] expect to receive
    outstanding in teaching when [you] have poor oral communication
    skills . . . students and colleagues in the chemistry department [have]
    difficulty understanding [your] English." We have held that "requiring
    a professor to speak the native tongue in order to convey his ideas is
    not any form of discrimination, invidious or otherwise." Jiminez v.
    Mary Washington College, 
    57 F.3d 369
    , 380 (4th Cir. 1995), and we
    affirm this proposition. However, the jury was not prohibited from
    considering Epps’ comment in addition to other evidence of discrimi-
    natory animus. Epps had not discussed Mbagwu’s accent with him in
    fifteen years as his supervisor. We cannot say that a jury could not
    reasonably have viewed this comment as a manifestation of a discrim-
    inatory animus toward foreign faculty.
    Where, as in Mbagwu’s case, the ultimate issue of discrimination
    vel non is "a close one, involving the sufficiency of circumstantial
    evidence and rational inferences to be drawn therefrom," we are
    "mindful of the Seventh Amendment’s commission of factual ques-
    tions to the jury and of our limited role of review." Johnson v. Hugo’s
    Skateway, 
    974 F.2d 1408
    , 1420 (4th Cir. 1992). In light of (1) the evi-
    dence tending to demonstrate that Moore "had a problem" with for-
    eign faculty; (2) the subjective system for faculty evaluations; (3) the
    apparent inconsistency between Mbagwu’s low evaluations and the
    praise he received from the administration; and (4) Epps’ comment
    concerning Mbagwu’s accent, we conclude that there was sufficient
    28                        SALEH v. UPADHYAY
    evidence to support the jury’s verdict as to Moore, Dawson, Lyons,
    and Epps.
    We continue to "review professorial employment decisions with
    great trepidation." Jiminez, 
    57 F.3d at 376
    . We will not "substitute
    [our] judgment for that of the college with respect to the qualifica-
    tions of faculty members for promotion and tenure." 
    Id.
     (quoting
    Kunda v. Muhlenberg College, 
    621 F.2d 532
    , 548 (3d Cir. 1980)).
    However, in Jiminez we held that "[d]eterminations about such mat-
    ters as teaching ability, research scholarship, and professional stature
    are subjective, and unless they can be shown to have been used as the
    mechanism to obscure discrimination, they must be left for evaluation
    by the professional." Id. at 377. In this case, Mbagwu presented suffi-
    cient evidence from which the jury could infer that the VSU pay for
    performance system was used by Epps, Lyons, Dawson, and Moore
    as a "mechanism to obscure discrimination."
    IV.
    Appellants also challenge the district court’s denial of their alterna-
    tive motions for a new trial pursuant to Fed. R. Civ. P. 59(a). A new
    trial should be granted if "(1) the verdict is against the clear weight
    of the evidence, or (2) is based upon evidence which is false, or (3)
    will result in a miscarriage of justice, even though there may be sub-
    stantial evidence which would prevent the direction of a verdict."
    Atlas Food Sys. & Servs., Inc. v. Crane Nat’l Vendors, Inc., 
    99 F.3d 587
    , 594 (4th Cir. 1996). The decision to grant or deny a new trial is
    in the sound discretion of the trial court, and is reviewed only for an
    abuse of that discretion. 
    Id.
    For the reasons previously discussed, we find that the verdict was
    not against the clear weight of the evidence. Nor is any demonstrably
    false evidence called to our attention. We cannot say that a miscar-
    riage of justice occurred in this case. We agree with the district court
    that Appellees presented enough evidence to submit their retaliation
    and discrimination claims to a jury. Although on review of the denial
    of a new trial motion we are permitted to weigh the evidence and
    assess the credibility of witnesses, we are persuaded that the jury’s
    credibility determinations should be left undisturbed. Accordingly, we
    SALEH v. UPADHYAY                             29
    affirm the district court’s refusal to grant a new trial in either Saleh’s
    or Mbagwu’s case.
    V.
    Appellants also challenge the trial court’s denial of their motions
    for a new trial and for a new trial nisi remittitur in both cases on the
    grounds that the damages awards are excessive. Whether a jury award
    is excessive is a question of law. Konkel v. Bob Evans Farms, Inc.,
    
    165 F.3d 275
    , 280 (4th Cir. 1999) (citing Gasperini v. Center for
    Humanities, Inc., 
    518 U.S. 415
    , 438-39 (1996)). The district court’s
    decision whether or not to grant a new trial based upon an allegedly
    excessive verdict will not be disturbed on appeal absent an abuse of
    discretion. A damages award will be set aside only if it is "‘against
    the clear weight of the evidence, or is based upon evidence which is
    false, or will result in a miscarriage of justice.’" Johnson v. Hugo’s
    Skateway, 
    974 F.2d 1408
    , 1414 (4th Cir. 1992) (quoting Johnson v.
    Parrish, 
    827 F.2d 988
    , 991 (4th Cir. 1987)). If we find that the jury’s
    award of compensatory damages was excessive, we have the option
    of ordering a new trial, or granting the plaintiff a new trial nisi remit-
    titur. Cline v. Wal-Mart Stores, Inc., 
    144 F.3d 294
    , 305 (4th Cir.
    1998).
    An award of compensatory damages under § 1983 "must be pro-
    portional to the actual injury incurred . . . ." Price v. City of Charlotte,
    
    89 F.3d 169
    , 172 (4th Cir. 1996) (quoting Piver v. Pender County Bd.
    of Educ., 
    835 F.2d 1076
    , 1082 (4th Cir. 1987), cert. denied, 
    487 U.S. 1206
     (1988)). Compensatory damages for emotional distress must be
    proven by competent, sufficient evidence. 
    Id.
     (citing Carey v. Piphus,
    
    435 U.S. 247
    , 263 (1978)). Further, an award of compensatory dam-
    ages for emotional distress "must be attributed to the invidious dis-
    crimination, not to the deprivation of an ultimate benefit." 
    Id.
    A.
    The jury awarded Saleh $97,769.00 in compensatory damages.
    Appellants argue that, in the event that we affirm the district court’s
    denial of their motion for a directed verdict, Saleh is entitled to nomi-
    nal damages of one dollar. We disagree.
    30                        SALEH v. UPADHYAY
    There was ample evidence from which the jury could find that
    Saleh suffered both economic injury and emotional distress as a result
    of the Appellants’ retaliatory actions. Saleh’s economic expert, David
    Parcell, opined that Saleh’s lower evaluations deprived him of
    between $56,767.00 and $113,075.00. Parcell’s testimony on this
    point went unrebutted, and it was for the jury to assess his credibility.
    Even if Saleh suffered economic injury at the lowest end of the range
    posited by Parcell, we conclude that there was sufficient evidence that
    Appellants caused Saleh emotional distress and related health prob-
    lems to support the remainder of the award.
    Saleh testified as to the effects that Appellants’ retaliatory acts had
    on him:
    I was very stressed. I was emotionally and mentally drained.
    I have problems sleeping. I was sweating and waking up
    every night so many times, I get up in the morning, I can’t
    move. I have no energy, continuous fatigue . . . I was
    extremely down, discouraged. I feel like I have no hope, no
    place. I have been through this so many times, I can’t do
    anything to grow in my field. I can’t work in this place. I
    don’t know what to do. I was demoralized and my health
    was going down.
    In Hetzel v. County of Prince William, 
    89 F.3d 169
     (4th Cir. 1996),
    we vacated an award of $500,000.00 for emotional distress allegedly
    caused by the defendant’s retaliatory acts where the award was "based
    almost entirely on Hetzel’s own self-serving testimony concerning
    stress and headaches." 
    Id. at 172
    . We also noted that Hetzel’s discrim-
    ination claims were rejected by the jury, that she was not physically
    injured, that she remained an officer in good standing with the defen-
    dant, and that she had not sought care from a physician. Saleh’s dis-
    crimination claim likewise was rejected by the jury, and he also
    remains employed. However, unlike Hetzel, Saleh introduced inde-
    pendent evidence of his emotional distress and related health prob-
    lems. Dr. Saleh took eight weeks of medical leave in early 1997.
    During that leave, Saleh was admitted to a hospital on two occasions,
    and treated for hypertension, atrial fibrillation, and diabetes. Saleh’s
    treating physician, Dr. Ellenbogen, opined that each of these condi-
    tions was exacerbated by Saleh’s stress at work. Dr. Ellenbogen also
    SALEH v. UPADHYAY                          31
    attributed Saleh’s sleeping problems to stress at work. Finally, Hetzel
    is distinguishable because as much as half of the $97,769.00 awarded
    can be attributed to the economic injuries Saleh suffered because of
    his alleged retaliatory low raises.
    In Johnson v. Hugo’s Skateway, we recognized "the difficulty in
    measuring the amount appropriate to compensate for the emotional
    injuries resulting from [racial discrimination]." 
    974 F.2d 1408
    , 1414
    (4th Cir. 1992). In Johnson, we upheld a jury award of $25,000.00 to
    a victim of racial discrimination where the alleged acts transpired in
    one night. As discussed above, in this case, the jury could have found
    that Appellants retaliated against Saleh by giving him low annual
    raises from 1995 to 1998, by reporting him to state police for sus-
    pected fraud in 1996, and by challenging his tenure in 1995. Since the
    jury was entitled to find that each of these events caused Saleh emo-
    tional distress, we cannot say that the jury award is excessive.
    B.
    The jury awarded Mbagwu $194,829.00 in compensatory damages.
    Mbagwu’s economic expert, David Parcell, opined that Mbagwu’s
    lower evaluations deprived him of $47,667.00. As in Saleh’s case,
    this testimony went unrebutted, and Appellants have stated in their
    briefs that they do not dispute this figure. App. Reply Brief at 14.
    Assuming the jury found this testimony credible, Mbagwu was
    awarded approximately $150,000.00 to compensate for emotional dis-
    tress. We find that this award was against the weight of the evidence.
    Mbagwu testified that the discrimination he experienced severely
    affected him:
    To say the least, it has been a very devastating experience,
    and it has affected my life, my family life, my relationship
    with my wife, my children. I feel very sad, very betrayed
    very isolated . . . . I feel betrayed because I spent most of
    my career and efforts at Virginia State University trying to
    help my students. I have worked very hard to help my stu-
    dents. That’s perhaps one of the primary reasons why I
    came to Virginia State University. But my effort is not being
    appreciated, and I feel betrayed because Dr. Epps and the
    32                        SALEH v. UPADHYAY
    administration . . . had supported me up to 1993. . . . The
    stress has led to sleeplessness, insomnia. In the morning I
    get up, I feel exhausted and tired. I feel stressed out, but I
    still got to go to school because of my students. . . . When
    I get to school, I feel ostracized, a sense that I do not belong
    to the environment where I have made major contributions
    . . . . So I feel betrayed, and sleeplessness, insomnia, you
    can’t imagine what insomnia can do to you. It s 24-hour
    problem, a 24-hour problem.
    As in Saleh’s case, the jury was entitled to find that Mbagwu was
    subjected to emotional distress throughout a period of approximately
    four years. Unlike Saleh, however, Mbagwu presented no medical
    evidence to corroborate his testimony about the emotional distress he
    endured. Moreover, as was true of the plaintiff in Hetzel, Mbagwu
    never sought medical or psychological care for his stress and insom-
    nia. A plaintiff’s testimony, standing alone, can support an award of
    compensatory damages for emotional distress based on a constitu-
    tional violation. See Price v. City of Charlotte, 
    93 F.3d 1241
    , 1254
    (4th Cir. 1996). However, that testimony must competently demon-
    strate a "genuine injury." 
    Id.
     (quoting Carey, 
    435 U.S. at 264
    ). Mbag-
    wu’s testimony, standing alone, simply does not support an award of
    $150,000.00 for emotional distress. On the evidence presented, we
    find that $75,000.00 in compensatory damages is the largest award
    that could be sustained. We add to this the $47,667.00 in compensa-
    tory damages for economic injury, for a total figure of $122,667.00.
    Accordingly, we reduce Mbagwu’s compensatory damages award to
    $122,667.00 and grant a new trial nisi remittitur at Mbagwu’s option.
    VI.
    Appellants argue that the district court committed reversible error
    by admitting Plaintiff’s Exhibit No. 395. That document is a chart that
    was composed by Appellants and produced by them in connection
    with a Rule 30(b)(6) deposition of VSU’s Director of Human
    Resources. The chart lists several faculty members in VSU’s AST
    School, and tells the race, birthplace, time of hiring, reason for selec-
    tion, and current position of each. Appellants objected to the chart’s
    admission on the grounds that its probative value was substantially
    outweighed by its potentially prejudicial effect. Fed. R. Evid. 403.
    SALEH v. UPADHYAY                          33
    Decisions regarding the admissibility of evidence are peculiarly
    within the province of the district court, and will not be reversed on
    appeal absent an abuse of discretion. Martin v. Deiriggi, 
    985 F.2d 129
    , 137 (4th Cir. 1992). We agree with the district court that the
    chart’s prejudicial effect did not substantially outweigh its probative
    value. The chart’s probative value lay in its tendency to demonstrate
    that it was easier for an African-American to find employment at the
    AST School than it was for a white American or foreign-born individ-
    ual. Appellants argue the chart’s potential to confuse the jury was
    "manifest" because the jury "did not know the qualifications of the
    persons who applied for these positions, did not know whether any of
    the applicants withdrew their names from consideration, and did not
    know all the factors that went into each hiring decision." App. Br. at
    48. However, Appellants were not prohibited from offering this infor-
    mation into evidence in order to negate any inference of discrimina-
    tion that the chart created. We cannot say that admitting the chart
    amounted to an abuse of discretion.
    VII.
    On cross-appeal, Saleh argues that the district court erred in grant-
    ing summary judgment as to his state law claims for conspiracy to
    injure another in his business or profession, and for tortious interfer-
    ence with alleged contracts. We have reviewed the record and the dis-
    trict court’s opinion and find no reversible error. Accordingly, we
    affirm on the reasoning of the district court. See Saleh v. Moore, No.
    CA-97-460 (E.D. Va., Feb. 25, 1999).
    VIII.
    Appellants argue that the district court’s award of attorneys’ fees
    to Saleh and Mbagwu is excessive. We disagree. We review the
    amount of an award of attorney’s fees only for an abuse of discretion.
    Brodziak v. Runyon, 
    145 F.3d 194
    , 195 (4th Cir. 1998). The district
    court abuses its discretion when the fee award is "clearly wrong." 
    Id.
    We have reviewed the record and the district court’s opinion, and
    find no abuse of discretion. In a thorough and well-reasoned opinion,
    the district court arrived at an appropriate award of attorneys’ fees.
    34                      SALEH v. UPADHYAY
    See Saleh v. Moore, 
    95 F. Supp. 2d 555
     (E.D. Va. 2000). The decision
    of the district court is affirmed as to this issue.
    AFFIRMED
    

Document Info

Docket Number: 99-2137, 99-2188, 00-1744

Judges: Widener, King, Seymour

Filed Date: 5/31/2001

Precedential Status: Non-Precedential

Modified Date: 3/2/2024

Authorities (31)

connie-rae-kunda-v-muhlenberg-college-john-h-morey-individually-and-in ( 1980 )

Gloria W. DOWE, Plaintiff-Appellant, v. TOTAL ACTION ... ( 1998 )

atlas-food-systems-and-services-incorporated-v-crane-national-vendors ( 1996 )

edwin-g-piver-v-pender-county-board-of-education-billy-o-rivenbark ( 1987 )

Keith W. Cline v. Wal-Mart Stores, Incorporated ( 1998 )

Anthony E. Jiminez v. Mary Washington College Philip Hall, ... ( 1995 )

Karen A. Williams v. Cerberonics, Incorporated, Karen A. ... ( 1989 )

Thomas Ax. BRODZIAK, Plaintiff-Appellant, v. Marvin RUNYON, ... ( 1998 )

barney-k-huang-v-the-board-of-governors-of-the-university-of-north ( 1990 )

jesse-t-duke-sidney-w-fox-v-uniroyal-incorporated-uniroyal-chemical ( 1991 )

vernon-clark-v-albert-n-whiting-individually-and-in-his-capacity-as ( 1979 )

frank-m-dimeglio-v-j-robert-haines-individually-and-in-his-former ( 1995 )

american-civil-liberties-union-of-maryland-inc-a-maryland-corporation ( 1993 )

james-h-johnson-aka-james-h-ferebee-commonwealth-of-virginia-v-hugos ( 1992 )

Charles I. Dorsett v. Board of Trustees for State Colleges &... ( 1991 )

Ernest Gary Johnson v. Lloyd Parrish Homer Pinnell, D/B/A ... ( 1987 )

janice-e-hetzel-v-county-of-prince-william-charlie-t-deane-and-gw ( 1996 )

darrell-a-price-david-h-holland-robert-a-holl-oswald-d-holshouser ( 1996 )

kenneth-r-edwards-v-city-of-goldsboro-chester-hill-individually-and-in ( 1999 )

Sharon D. Brinkley-Obu v. Hughes Training, Incorporated, ... ( 1994 )

View All Authorities »