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Carnell Construction Corporation v Danville Redevelopment & Housing Authority

Case No. 13-1143 (C.A. 4, Mar. 6, 2014)

In this appeal, we review a judgment entered after a jury trial on certain claims of race discrimination, retaliation, and breach of contract brought by a “minority-owned” corporation. We primarily consider: (1) whether a minority-owned corporation has standing to sue for race discrimination under Title VI of the Civil Rights Act of 1964 (Title VI); (2) whether the district court erred in holding at the summary judgment stage that one of the defendants could not be held liable on the alleged race discrimination and retaliation (collectively, race discrimination) claims; (3) whether the court abused its discretion by permitting the use of certain impeachment evidence at trial; (4) whether the court erred in deciding certain contract issues arising under the Virginia Public Procurement Act, Virginia Code §§ 2.2-4300 through 4377; and (5) whether the court erred in modifying the jury’s award of contract damages.

Upon our review, we hold that a corporation can acquire a racial identity and establish standing to seek a remedy for alleged race discrimination under Title VI, but that the district court properly dismissed one of the defendants from liability on the plaintiff’s race discrimination claims. We further conclude that the district court abused its discretion in permitting the use of particular impeachment evidence, which should have been excluded as unfairly prejudicial under Federal Rule of Evidence 403. Finally, we agree that the district court properly reduced certain damages awarded to the plaintiff on its contract claims, but decide that the strict notice requirements of the Virginia Public Procurement Act required the court to narrow further the scope of recoverable contract damages. Accordingly, we affirm the district court’s judgment in part. We also vacate the court’s judgment on both the race discrimination claims and certain contract damages awarded, and remand those aspects of the case for further proceedings.

I.



A.



This appeal involves work performed by a contractor in Danville, Virginia, on the Blaine Square Project (the project), a large public housing venture intended to provide subsidized rental units to low-income residents of Danville. The project was funded in part by a $20 million grant to the Danville Redevelopment and Housing Authority (the Housing Authority) from the Hope VI Program, an initiative of the United States Department of Housing and Urban Development (HUD), which allows private investors to contribute capital to public housing projects in exchange for tax credits.
 

 

Judge(s): Barbara Milano Keenan
Jurisdiction: U.S. Court of Appeals, Fourth Circuit
Related Categories: Business Organizations , Civil Rights , Constitutional Law , Government / Politics
 
Circuit Court Judge(s)
Steven Agee
Henry Floyd
Barbara Keenan

 
Trial Court Judge(s)
Glen Conrad

 
Appellant Lawyer(s) Appellant Law Firm(s)
Rhonda Harmon The Harmon Firm LLC

 
Appellee Lawyer(s) Appellee Law Firm(s)
Lori Bentley Johnson Ayers & Matthews PLC
John Eure Johnson Ayers & Matthews PLC
Joshua Goad Johnson Ayers & Matthews PLC
James Meath Williams Mullen
Joseph Pope Williams Mullen
Nelson Wilkinson Williams Mullen

 

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decision-making power uses the formal decision-maker as a dupe standing to bring its race discrimination claims under title vi. whether a plaintiff is entitled to a decision on the merits of a to pay fully for that additional work. again, we disagree. controlled the activities of a discriminating party. following and mcguirewoods. as stated above, scales testified that he did not contract,” but was “a passive entity [that] would ensure that by the power of attorney, dhc’s president, garry [sic] unless the legislature’s judgment is “demonstrably arbitrary or carnell filed a lawsuit against the housing authority and cir. 1998). judgment to blaine, i do think that the blurriness of wasson’s and timely state[] the contractor’s intention to later file an power co. v. carolina envt’l study grp., 438 u.s. 59, 83-84 8 “[d]efendants’ conduct,” by the costs relating to “investigating “[s]hape the initial story so that it is sympathetic to carnell before the second trial began, the district court awarded damages” accounting for the remainder of the damages award. the record lacked evidence supporting a claim that blaine 58 (4th cir. 2002) (indicating that a third party’s statement recalled reviewing a two-page consulting agreement in which he the contract terms. cf. scofield eng’g co. v. danville, 126 manufactured, despite the fact that the proposal was never argument in this appeal that carnell is only asking for a new suffered injury based on race discrimination and was either in the october 2008 letter. on the contract based on the minority status of its owner, and broader interest in the case in neighboring counties, and that any impeachment value of the quoted statements from the during cross-examination of scales in the third trial, the evidence to “make out a race claim.” scales denied these [a] public contract may include provisions for lawfully have obtained through a mutually-agreed modification of awarded on its breach of contract claims. we first consider properly reduced certain damages awarded to the plaintiff on its we are unable to ascertain with certainty the amounts and nature carnell, as a corporate entity, had standing to assert race based on racial discrimination in violation of federal law, summary judgment to blaine on carnell’s theory of direct sum and unit prices,” this contract language demonstrates that contract claims, but decide that the strict notice requirements 13 1935) (“all persons dealing with a municipal corporation are timely filed cross-appeals. ultimately, wasson) as the biased shell entity that lacks sought in the october 2008 letter. nor are we in a position to decision in this case, we consider the evidence in the “light unfairly prejudicial evidence only when the risk of unfair that discriminatory intent was a motivating factor in the contractor to get an approved stabilization plan for the north and complete charge of the management of the business of co. v. brantley, 510 f.3d 1256, 1266 (10th cir. 2007); see also case for a third trial. unjustly removed from the project. deposition testimony that he was acting on behalf of the housing wasson is both puppet and puppeteer of the funding operation for in doing so, we agree with the district court that the vppa only that prohibits any increases to contracts “without adequate dispute, has both constitutional and prudential dimensions. should have been excluded under federal rule of evidence 613(b), complete the site preparation work (the contract). the contract of the case was that scales and his subordinates fabricated race wasson holds positions of authority within each entity. for director of the housing authority and as president of dhc, 47 danville redevelopment & housing authority notwithstanding the deferential standard of review, we conclude that conduct or by controlling the conduct of housing authority recover on its breach of contract claims for being removed interpretation of a prior oral statement unless the witness has participating or seeking to participate in a federally funded standing, namely, that carnell has alleged that (1) it has basis. we therefore affirm the court’s award of summary defendants - appellees. mcguirewoods proposal was unfairly prejudicial under federal claims run afoul of one of the standing doctrine’s judicially the standing doctrine, which requires us to consider the operating agreement and certain other legal lawfully can be increased. under the vppa, this appeal involves work performed by a contractor in damages are governed by the federal rules of civil procedure. to removal from the project without just cause, based on the that one of the defendants could not be held liable on the iii. v. discrimination) claims; (3) whether the court abused its (defining agency as “a fiduciary relationship” based on the employees” acting on its behalf. according to the relevant procedural requirement[]” that must be met before a court can we next address carnell’s argument that the district court danville redevelopment & housing authority the vppa’s written notice requirement is a “mandatory, impeachment purposes that could not be presented directly on the from arlington heights was surplusage unrelated to the court’s provides that “[e]xtrinsic evidence of a witness’ prior federal appellate courts have considered this question, and have 24 obliged to deny standing to the stockholders on the here, the cast of characters is as follows: blaine (via dhc, and involvement in the project as the developer, and so 16 blaine (by way of dhc) appear to be concentric, or at a minimum at 255-56. when local authorities withheld the necessary michael scales represented in the signed, notarized bid form, first, carnell asserts that the vppa does not cap all from its admission. see united states v. ham, 998 f.2d 1247, with the proposal as if it were his own prior inconsistent cost. virginia code § 2.2-4300(c); see etheridge, 376 s.e.2d at see id. in support of their position, the defendants primarily defendants did not establish that the contents of the proposal authorized to take or do thereunder . . . .” held that carnell had standing to assert race discrimination avitia v. metro. club of chi., inc., 49 f.3d 1219, 1226 (7th grants the housing authority sole responsibility for managing a determination that the evidence is “relevant” to a material that ‘no person’ is subject to discrimination in federally consulting agreement executed by scales. also, when scales inconsistent statement is admissible only if the witness is consideration,” id., carnell argues that the vppa should not carnell argues, nevertheless, that blaine was vicariously united states court of appeals likewise maintain an imputed racial bias based upon its determined that blaine could not be held liable on carnell’s letter of the litany of other unpaid work claims described in construction of the project, either by participating directly in proposal to attack scales’s credibility when there was no and attorneys’ fees and other expenses related to third-party 234 (4th cir. 1982) (citing united states v. morlang, 531 f.2d jury found in favor of both carnell and the defendants on their racial identity and establish standing to seek a remedy for this amount reflects a reduced award that includes 17 corporation may establish an “imputed racial identity” for least on paper) at blaine’s behest. although carnell did not 9 opinion on that issue and leave it to the parties to present set forth goals to “[s]hape the initial story so that it is right, nor “property, in the constitutional sense,” to a blaine’s amended operating agreement provides as follows: scales. f.2d 942, 947 (4th cir. 1942) (denying quantum meruit recovery 46 issue and would remand the case for trial, or at a minimum, for 44 “failed to state specifically the claim for fees in the exhibit a substantial overlap. fire co., inc., 853 f.2d 1130, 1134 (4th cir. 1988); see old under guise of implying a contract.”) (citation and internal vacate the district court’s judgment with respect to carnell’s stated that a corporation “has no racial identity and cannot be adopted its contents. exactly the same as) “cat’s paw” (or “rubber-stamp”) liability, 43 a limited liability company organized under the 1059. we hold that a corporation that is minority-owned and has its race discrimination claims. however, the jury found in 15 participated in allegedly discriminatory conduct. however, as blaine square, llc our conclusion is not altered by the defendants’ blaine engaged in the alleged discriminatory conduct during brown, 462 f.3d 312, 316 (4th cir. 2006). individual gas stations specified that each station was an housing authority personnel and dhc personnel and the fact that f.2d 36, 38 (2d cir. 1983) (interpreting title vi to cover court properly dismissed blaine at the summary judgment stage objected to use of this evidence on the grounds that it was american. carnell publicly represented that it was eligible for i join the majority’s well-reasoned opinion in its entirety unrelated to the probative value of the evidence. united states although state law governs our determination of the nature at trial but not less than $419,575, plus interest.” its equipment and personnel from the project site the following interest in the contract to blaine square, llc (blaine) based on that carnell lacks standing to bring race discrimination claims two particular instances of uncompensated work.8 as the majority opinion correctly notes, blaine provides defendants’ case-in-chief, the well-recognized problem remained 5 instead, the record shows that scales denied any recollection of district court abused its discretion by failing to exercise its race discrimination suffered by such a corporation during its 35 that written notice is required.”) (citation omitted). remand those aspects of the case for further proceedings. in its pleadings, carnell alleged numerous claims for before us is whether carnell’s claims arguably fall within the before us to reverse the district court’s grant of summary in virginia, the issue whether the contested damages are authorized additional expenditures to rectify the underlying johnson, ayers & matthews, plc, roanoke, virginia; joseph ray 2001). because the district court ruled that evidence of the also long v. abbruzzetti, 487 s.e.2d 217, 220 (va. 1997) claims, the district court declared a mistrial and scheduled the s.e.2d 525, 532 (va. 1989) (stating that “[o]ne area in which of $793,541, and included a set of enumerated contract defenders of wildlife, 504 u.s. 555, 560-61 (1992); miller v. discriminatory. id. at 258-59. the supreme court ultimately (section 1983 claim), abrogated on other grounds, bd. of cnty. contractor has increased the contract price excessively without contract issues arising under the virginia public procurement moreover, we are not persuaded by defendants’ argument that dissatisfied with the other’s performance. the housing which “impos[es] liability upon an employer for the conclusion would permit the absurd result of allowing carnell to purpose of rule 9(g) is one of notice, both to “inform defending does not specifically define “person,” but the dictionary act unjust removal, the district court allowed carnell to recover participated directly in the allegedly discriminatory behavior. was not an agent or employee of blaine. anything directly in furtherance of its obligations under the impeachment evidence against scales was an abuse of discretion. tell carnell’s story to the public. because the proposal was an decision-maker that took the adverse employment actions (at trial on certain claims of race discrimination, retaliation, and (1978)). thus, the vppa provisions at issue are constitutional presumed to be aware of statutory limitations on the housing entity—the housing authority or blaine (by way of dhc)—wasson u.s. at 263). the second circuit thus held that when a automobile manufacturer because relevant documents show that the traceable to the challenged conduct; and (3) the injury is blaine square, llc erred in limiting the types of damages that carnell could not be given significant weight because they predated the 183, 190 (4th cir. 1975)). under the present circumstances, a. 160 (va. 1975). under virginia law, direct damages are those upon our review, we hold that a corporation can acquire a 37 and, at trial, framed carnell’s lawsuit as an example of the housing authority and blaine. complaint”). authority’s power to modify contracts. see american-la france & statement. in response, the defendants fail to address the rule affirmed in part, vacated in part and remanded, vacated in part in the letter, michael scales protested that carnell was not in allegedly discriminatory acts against carnell.6 case in neighboring counties, and potentially statewide complaint listed blaine as a defendant, but only with respect to unjustly from the construction project. after the jury returned carnell’s original and first amended complaints named only due to race discrimination) (citation omitted). indeed, in the vppa’s limitation of the amount by which public contracts and final judgment by published opinion. judge keenan wrote the operations of the housing authority. namely the members of dhc’s board and the housing authority’s on the other hand, the danger that unfair prejudice would projects in exchange for tax credits. 10 the district court’s determination that the parties entered witness has made or adopted, or to which the witness otherwise 546 u.s. 470, 473 n.1 (2006) (recognizing that “the courts of parties as to the nature of the damages claimed in order to no. 13-1229 would not extend carnell’s contract beyond the stipulated in this appeal, we review a judgment entered after a jury that blaine directly participated in the conduct alleged or displayed the challenged language from the proposal on a poster recoveries on contract claims, but solely those in which a carnell relies, refers to a very limited class of grievances. claims against the housing authority, and that blaine could not avitia, 49 f.3d at 1226. limited the jury’s award of contract damages to a reduced total tax considerations. blaine is a limited liability company 9(g)”); see also 5a charles alan wright & arthur r. miller, not consequential damages under virginia law, but that, even if 23 unfairly prejudicial and damaging to carnell’s race grading work and controlling erosion at the project site. although i do not think that there is sufficient evidence § 2.2-4363(a). at the third trial, unlike in the first two restricted is the common law,” and that “the legislature has the of carnell from the project without just cause. the district direct or consequential damages presents a question of law. see does: “in determining the meaning of any act of congress, unless alternative contention that carnell lacked standing because it performing additional seeding, relocating a fire hydrant, the contract was negotiated on a unit-price basis. we disagree. llc, michael scales. we review for abuse of discretion the district of the construction, including the site preparation work. a large public housing venture intended to provide subsidized authority and blaine filed a counterclaim for breach of contract project site and carnell’s failure to conduct due diligence 499 (va. 2010). although the notice need not exhibit “the which limits the admissibility of a witness’s prior inconsistent direct object of discriminatory action and establish standing to government to obtain the benefit of a contractor’s additional no person shall “be excluded from participation in, be denied in this case, carnell filed a third amended complaint alleging court must also ensure that any damages carnell may be awarded department of housing and urban development (hud), which allows credits to private investors. the housing authority agreed to concluded that corporations have standing to assert race purposes of demonstrating standing to bring a claim of race vacated in part and final judgment. manner and, based on the foregoing relationships, i do not think special damages in connection with its breach of contract we disagree with carnell’s argument. we conclude that on provision . . . invoked in the suit.” bennett v. spear, 520 (j.a. 2445.) additionally, it is undisputed that the housing liable pursuant to a theory similar to (although perhaps not was funded in part by a $20 million grant to the danville because the damages sought by carnell did not flow directly from did not refer to any proposal in his cover letter. given these 2 subject to the heightened pleading requirement of rule 9(g). site preparation work (site preparation work, or the work), statutory notice requirement, we do not discuss further that liability and respectfully dissent from the majority’s holding district of virginia, at danville. glen e. conrad, chief carnell’s constitutional challenges under state and federal law. carnell construction corporation, requirements under the vppa only with respect to the claims for internal document prepared by mcguirewoods that contained only direct discrimination, carnell did put all of the pieces in that scales had read, let alone endorsed, the proposal. indeed, that blaine has met its own burden of “showing that there is an defendant. no fixed-price contract may be increased by more than credibility based on a statement that was not his own. although even if we assume, without deciding, that vicarious 19 erroneous because blaine “solely . . . controlled” the financing was directed to perform work for which it was never paid, and hill v. lockheed martin logistics mgmt., inc., 354 f.3d 277, 288 place to connect these dots—namely, the massive overlap between that carnell improperly was removed from the project and office (e.g., same physical address, same telephone number, the record before us does not contain evidence that the activity, or was the intended beneficiary of those federal claims against the housing authority. the controversy centered court later issued a post-trial ruling that significantly at 21 n.6, wasson appears to nevertheless control blaine’s (and which was incorporated into the contract, that carnell sought to carnell argues danville redevelopment & housing authority; blaine square, dsa. under virginia law, control is a necessary component of a to blaine’s organizational structure and dhc’s ability to act we find it difficult to envision circumstances more bring the action.5 distribution of funds to the the case would be significantly bolstered because the document actions under the common law, not the validity of the underlying 8 carnell had failed to plead special contract damages, and that reduction of general damages on its unjust removal claims. poster exhibit displaying the proposal’s language to illustrate the harmless error test “appropriately focuses upon ‘whether the unconstitutionally abrogates the common law in the commonwealth evidence that the defendant “maintain[ed] some control over been allowed for any purpose under the federal rules of written notice requirement in [virginia] code § 33.1-386(a), and authority, especially with respect to a strategy for completing 6 family housing classification, the developer and several stated is a procedural question governed by fed. r. civ. p. the court earlier had excluded evidence of the proposal from the corporate entity, lacks a “race, color, or national origin.” its executive director. act’s statutory cap, and $72,490.00 for contract claims relating evidence.” united states v. young, 248 f.3d 260, 268 (4th cir. interest.” before questioning scales concerning this content, rule 613 are met” a district court “may still exercise its restricted carnell’s recovery on its contract claims by a. quotation marks omitted). moreover, carnell had no fundamental conclude that the court’s decision to allow the use of this thus the housing authority’s, and thus carnell’s) purse strings appeal. and substantive evidence, and that, consequently, “there is a concurring). unpaid work, and that carnell had failed to plead special that “it is beyond dispute that notice for these sums, for these to the extent that the defendants could attribute the contested do not exceed the vppa’s statutory cap. the direct target” of race discrimination. we first address the district court’s determination that had hired mcguirewoods in connection with the litigation to help revealed a plan to “shape” the credibility of carnell’s the record corroborated that the allegedly discriminatory certain impeachment of scales based on the contents of the inc., 207 f.3d 803, 807-08 (5th cir. 2000) (reasoning that the refusal to change the classification of the land was racially in applying the rule 403 analysis to the district court’s 1. argued: rhonda m. harmon, the harmon firm llc, manakin-sabot, § 2000d, which provides that “[n]o person in the united states discrimination. therefore, we hold that under the facts before result from allowing counsel to quote from the proposal was contained shall be construed to constitute any party as the that carnell complied with the vppa’s notice requirement. under extrinsic proof of a prior inconsistent statement is her race, color, or national origin.” see hudson valley, 671 b. (allegedly erroneously) signed as blaine’s president, see ante documents. pursuant to the limited authority granted declined to bar on prudential grounds race discrimination claims 88 (1986); felty v. graves-humphreys co., 818 f.2d 1126, 1127 evidence to influence a jury to make a decision for reasons ruling that certain testimony admitted on behalf of carnell was rely on dictum from the supreme court’s decision in village of unfairly prejudicial, particularly in view of the types of discrimination claims. carnell for extra work and $400,000 for the defendants’ removal the hope vi program, an initiative of the united states suggest that blaine actually controlled any of the regular before agee, keenan, and floyd, circuit judges. held that the developer and an individual plaintiff had standing case of political subdivisions. in no event may the that juries find it difficult to distinguish between impeachment the document at issue is the unsigned proposal prepared by such a mechanism for negotiating modifications did not transform limit increases to carnell’s contract, which were justified by before us. the deposition testimony of blaine’s corporate 1999) (observing that state substantive law applies in permitting us to conclude that carnell’s corporate status does v. u.s. 582, 633 (1983) (“because title vi is intended to ensure development services agreement (dsa), blaine agreed that the reversible error by allowing defense counsel to use certain methodist fort worth, 970 f.2d 94, 97 (5th cir. 1992) paw’ theory can apply when a biased subordinate who lacks unilaterally on blaine’s behalf,1 should have been excluded as unfairly prejudicial under federal cir. 2012) (“in the law of employment discrimination, the ‘cat’s mcguirewoods proposal was negligible given the lack of damages, namely, those that are not the “ordinary result” of the carnell’s request and declared a default under carnell’s multiple roles (and the overlap of other individuals, as well, statements made by the housing authority’s hope vi program we adopt the district court’s reasons for rejecting we next consider the district court’s decision to reduce modification of the contract during performance, but based on the defendants’ alleged violations of title vi and 42 housing authority hat with little to no appreciation for the conclude that the dictum in arlington heights does not impede proposal could be used for impeachment purposes during cross- the amount of damages awarded on the unpaid work claims based on the proper measure of damages for the two items for which example, in arguing that blaine should be held directly liable, we credit the district court’s statement at the damages hearing defendant – appellant, completion date, and requested reimbursement for numerous designee, owen mccormick, plainly states that blaine “did not do 22 breach of contract brought by a “minority-owned” corporation. (e.g., appellees’ opening br. at 32.) 9 purposes of paying the contractors.” written correspondence in whether the vppa’s monetary cap on modifications to public scales requested reimbursement in the october 2008 letter for evidentiary error. therefore, we vacate the district court’s potentially statewide interest . . . .” carnell repeatedly corporation satisfies constitutional requirements for standing, it is undisputed that carnell properly was certified by the we first address several issues related to carnell’s race principal and agent, by specifying that the housing authority (analyzing whether damages were a “direct and necessary claims. on appeal, carnell does not challenge the court’s race discrimination and breach of contract claims against both by contrast, consequential damages “arise from the in a deliberate scheme to trigger a discriminatory employment b. dismissal of a car dealership’s § 1981 claim against an vppa does not apply. under the parties’ contract, the housing discrimination claims. those issues concern: (1) whether accordingly, i would vacate the district court’s grant of determining whether the elements of special damages are met, but evidence. see united states v. grimmond, 137 f.3d 823, 831 (4th prejudicial and irrelevant, the district court allowed counsel circumstances, carnell’s third amended complaint failed to plead through [the housing authority], but the funds originated with direction and to rely exclusively upon wasson’s self-serving after evaluating the marginal probative value of the clearance to rezone the land from a single-family to a multiple- the zone of interests protected by title vi. see bennett, 520 from the consequences of an error in its bid or offer. individual who wears multiple hats: he is both the president of out a race claim” to the jury. scales denied these suggestions, plaintiff – appellee, arguments on appeal, namely, that the district court committed instead, the defendants assert that carnell’s title vi $142,557.57 for contract claims relating to unpaid work, after court lent legitimacy to an unfounded attack on scales’s u.s. 326, 332 (1993); etheridge, 376 s.e.2d at 531 (citing duke inc. v. genito glenn, l.p., 560 s.e.2d 246, 249 (va. 2002) performed services under that contract for nearly a year. withheld from carnell. proposal quoted above, in an attempt to impeach scales with the after determining that carnell was the lowest bidder, the we further observe that the plain language of the statute free” on “excessive” project modifications. at carnell’s housing authority is essentially controlled by dhc. thus, even we primarily consider: (1) whether a minority-owned corporation agreement also contemplated [the housing authority]’s prejudice “substantially” outweighs the probative value. see file a claim shall be given at the time of the occurrence or we further observe that rule 613(b) “speaks only to when paragraphs from the complaint’s introductory section that that exceeds a proportion of the contract’s price. a contrary unacceptable work, particularly regarding the grading of the blaine’s members granted a limited power of attorney federal practice & procedure: civil 3d § 1311, at 361-62 (2004). contracts limits carnell’s recovery on its contract claims. receiving federal financial assistance.” the defendants argue alleged race discrimination under title vi, but that the cleaning out a sediment pond, removing excess dirt from constituted proper impeachment by a prior inconsistent practices such as “prepayment” for materials, “retainage” of that carnell suffered direct injury as a result of that racial 39 the parties etc.) when he acts on behalf of both dhc and the housing 21 imposed by the vppa. administrative claim.” id. shall, on the ground of race, color, or national origin, be 429 u.s. at 263. thus, the quoted language michael scales, complained about race discrimination to the grading the land, and installing proper drainage and erosion inc. v. chi. hous. auth., 892 f.2d 583, 591 (7th cir. 1989) relationship of blaine and the housing authority as that of was acting on behalf of when he took certain actions adverse to 531; see also duke power co., 438 u.s. at 83-84 (holding that 48 the district court’s award of summary judgment de novo, and i. a recurring issue in the litigation that resurfaced during to the witness); see also united states v. saget, 991 f.2d 702, f.2d at 705 (observing the same); see also mohamad v. retaliation under title vi. we review this question of law de process violation under both the federal and virginia district judge. (4:10-cv-00007-gec) discriminatory conduct of another party if the record contained certain of those damages, including $12,000 in lost profits from carnell construction corporation §§ 2.2-4300 through 4377. the vppa governs public contracts in adopted by the witness or otherwise is “reasonably attributable” discretion by permitting the use of certain impeachment evidence chevrolet, inc. v. hayden, 480 s.e.2d 477, 481 (va. 1997); see v. mohr, 318 f.3d 613, 620 (4th cir. 2003) (internal quotation with carnell’s position. the zone of interests protected or regulated by the statutory standing to the corporation because it “has no racial elec. indus. co., ltd. v. zenith radio corp., 475 u.s. 574, 587- consequence” of the breach). project. however, we conclude that the vppa further limited the and stated that he had hired mcguirewoods “to tell who we are.” rule of evidence 403, because the defendants improperly used the among other things, rule 403 provides for the exclusion of in my view, we do not know from the record exactly which clearly that carnell sought special damages with respect to “situations where federal funding is given to a non-federal arlington heights v. metropolitan housing development corp., 429 403 question, and solely argue that their use of the proposal argument. see commonwealth v. amec civil, llc, 699 s.e.2d 499, order to cover up poor performance, [to] excuse poor separate corporate designations, wasson works out of the same that the october 2008 letter independently supplied adequate expressions of intent in the governing contract persuade us that carnell proved it had provided the requisite vppa notice, the not been incorporated or referenced in the february 24, 2010 barbara milano keenan, circuit judge: carnell’s work on the [project].” instead, carnell offered into see hogan v. wal-mart stores, inc., 167 f.3d 781, 783 (2d cir. to the president of its managing member, dhc, to sign in performing blaine’s contractual obligations. we disagree dev. ctr., inc. v. commonwealth, 541 s.e.2d 915, 919 (va. 2001). 41 foundation for those statements. value and minimizing its prejudicial effect.” mullen, 853 f.2d 2 of the work reimbursed and how they correspond to the amounts the fact that scales had hired mcguirewoods consulting llc claims, allocating $515,000 for the defendants’ failure to pay impeachment material in cross-examining carnell’s president, district court erred in holding at the summary judgment stage oti kaga, inc. v. s.d. hous. dev. auth., 342 f.3d 871, 882 (8th iv. the virginia public procurement act, virginia code §§ 2.2-4300 program, “a program or activity receiving federal financial district court properly dismissed one of the defendants from carnell argues that the district court erred in awarding from liability for the allegedly discriminatory conduct; and (3) statement. the defendants took full advantage of this windfall multiple times in the context of impugning scales’s credibility subjected to discrimination under any program or activity carnell argues that defense counsel’s use of the assisted programs, private parties function as third-party sound ground that the injury was suffered by the sediment from the north side of the specified construction site.9 “person” from being discriminated against “on the ground of proposal’s contents. carnell also asserts that the proposal for the project and directed that various contested payments be virginia and was enacted, among other reasons, to ensure “that 230, 234 (4th cir. 2005). either the remaining race discrimination claims or the contract for a statement to qualify as a witness’ prior inconsistent affirm the district court’s judgment with respect to carnell’s evidence showing that scales had adopted, or even had read, the written approval of . . . the governing body, in the behalf and subject to [the other’s] control”). obstruct purposes that the corporation was created to 1983) (barring a claim for attorney’s fees because the party alleged disparate treatment with respect to contracting fact in the case. rather, the trial court must assess the the initial story in danville to garner broader interest in the accordingly, we affirm the district court’s application of and leave the property of ms. juanita edwards.” as “redress,” from alleging that a defendant, on racial grounds, has acted to funding to the housing authority for the project, and the 50 both parties agree that virginia law governs the price, public contract lawfully could be increased.3 that the doctrine of respondeat superior applied to section 1981 corporation and not by them. because one of the other plaintiffs in the case was an african- contrary to carnell’s characterization of the holding in bodies in virginia obtain goods and services at a reasonable under virginia law, carnell satisfied its notice liable for the discriminatory conduct of housing authority the defendants claim that these issues were addressed by 931 f.2d 1565, 1568 (d.c. cir. 1991) (section 1981 claim), carnell’s third amended complaint. 42 a contract that proposed a “lump sum” payment into a unit-price carnell plainly has met this test. it is undisputed that the statute, “written notice of the contractor’s intention to trials, carnell did not offer into evidence a november 2009 27 progress payments, and approval of change order requests. u.s. 154, 162 (1997). thus, the relevant standing inquiry agreed to purchase land in order to build racially-integrated evidence in the light most favorable to carnell. see matsushita (j.a. 2449 (emphasis added).) roanoke hosp. ass’n v. doyle & russell, inc., 214 s.e.2d 155, richmond, virginia, for danville redevelopment & housing documents. defendant. first examine the probative value of the evidence at issue. carnell’s title vi claim meets the requirements for prudential chiefly were attributable to poor planning by the housing novo. frank krasner enters., ltd. v. montgomery cnty., 401 f.3d blaine’s managing member—all roads ultimately lead back to the burden-shifting framework at summary judgment). to the same trial on its race discrimination claims based on this time and expense of defending carnell’s name and u.s. 252, 263 (1977) (arlington heights), in which the court authority. from the area located on the north side of [the] seeland road agreed to perform the site preparation work “for the above lump retaliation claims, and proceed to review the remaining issues blaine (the defendants) based on claims of race discrimination 506 (va. 2010) (“we hold that actual notice cannot satisfy the discrimination, while at the same time it would be carnell presents several arguments related to the damages therefore, we conclude that carnell’s october 2008 letter natural damages associated with such a claim”). the primary the referenced work, which he defined as the “efforts of the 6 our circuit has not addressed this standing issue in any that “flow ‘naturally’ from a breach of contract; i.e., those the two claims raised in carnell’s october 2008 letter. ultimate beneficiary”). business” because its president and sole shareholder is african- recited damages for, among other things, “harm to its name and 18 the error so pervaded the proceedings to require remand of 7 26 meaning of the statute. the defendants maintain that carnell, a [blaine]” pursuant to blaine’s amended 2008 operating agreement. mohr, 318 f.3d at 620. the project. erred in vacating the jury award in the first trial and in adverse party is given an opportunity to examine the witness specified a june 2009 completion date, stipulated a total price accusations and later explained that he had sought the hard to believe that the supreme court would deny accordingly, we affirm the district court’s judgment in part. allegedly inconsistent statements. however, scales testified damages. commonwealth v. amec civil, llc, 677 s.e.2d 633, 641 explained his perception that carnell was “being singled out as accordingly, with regard to carnell’s contract claims for unpaid contract, in current funds, subject to additions and deductions lawsuits. however, a concurring opinion suggested that a wasson signed on behalf of [the housing authority] as those injuries as part of its contract claims. in particular, contractual obligations. see etheridge v. med. ctr. hosps., 376 in arlington heights, a non-profit real estate developer representing that carnell was certified as a minority business parties’ consent that one party “shall act on [the other’s] no. 13-1239 appeals to have considered the issue have concluded that and left the project site more than two weeks before the june 2009 carnell’s argument, however, misrepresents the record to its contents. moreover, scales already had testified that he after counsel quoted the proposal’s language, scales protested imposed, prudential limits on federal jurisdiction, which most favorable to [the] proponent, maximizing its probative 20 rental units to low-income residents of danville. the project (title vi claim); des vergnes v. seekonk water dist., 601 f.2d language in the proposal to scales, the defendants’ theory of court’s determination that carnell failed to prove the full into a fixed-price contract is well supported by the record. appeal from the united states district court for the western that he was unfamiliar with the proposal and did not subscribe corporations.” 1 u.s.c. § 1. moreover, § 2000d prohibits a subscribed to or otherwise adopted the statement as his own.”). entity which, in turn, provides financial assistance to the discrimination claims under title vi; (2) whether the district upshaw, 286 f.3d 179, 181 (4th cir. 2002) (explaining the without the requirement of any act or signature of the reversible error. therefore, with respect to carnell’s race any notice submitted for purposes of satisfying this statutory authority’s board of commissioners is identical to dhc’s board consideration as a minority business enterprise when it contractor intends to claim reimbursement for the particular foamite indus., inc. v. arlington cnty., 178 s.e. 783, 784 (va. authority. clarification of blaine’s management structure in the revised costs, for these expenditures, was not given.” accordingly, we carnell’s contract claims, because carnell represented at oral on a contract when the contract was forbidden by statute, and performance, or to gain an advantage in a contractual procedures be conducted in a fair and impartial manner.” id. evidence an october 2008 letter, which sought reimbursement for allegedly discriminatory conduct because there was no evidence formally admitted into evidence. discrimination and retaliation. in each of the race court erred in modifying the jury’s award of contract damages. complaint, carnell requested, among other things, damages for act, virginia code §§ 2.2-4300 through 4377; and (5) whether the participation in a program that has received federal funding recall viewing the document, which delineated objectives to 710 (11th cir. 1993) (“[w]e conclude that a witness may not be carnell asserted that “money [for the project] was funneled discretion to exclude” evidence of a prior inconsistent court for a new trial on those claims on damages only. housing for residents with low and moderate incomes. 429 u.s. the third trial involved certain impeachment evidence regarding under title vi, the second circuit observed that it is unable to discern from the record the particular amounts that carnell contests both these findings on appeal. we review irrelevant and unfairly prejudicial. maintained that its work was satisfactory and that delays authority attributed expensive delays to carnell’s allegedly other members, to take any action of any type and to were unsuccessful in their efforts. the dsa provides, in relevant part, that “[n]othing herein evidentiary context of the case. old chief v. united states, zone of interests protected by title vi. see id. merely prayed for aggregate damages “in an amount to be proven 4 completion date, and that carnell would be required to remove to use the mcguirewoods proposal to impeach scales was view, a serious legal threshold has been crossed,” and that the danville, virginia, on the blaine square project (the project), uniform [limited liability company] act may be defendants discriminated against carnell during its performance located on the north side of the seeland road construction site concluding that the vppa limited damages on the claims for 28 carnell’s race discrimination claims centered on certain vacated on other grounds, 502 u.s. 1068 (1992); triad assocs., 1252 (4th cir. 1993). foremost among those dangers is the risk of claim in question” and, therefore, were special damages opening/response brief, state the following: (4th cir. 1987). damages on its claims that it was unjustly removed from the 45 representatives under an agency relationship with the housing month regardless whether the work had been completed. carnell further conclude that the district court abused its discretion the context indicates otherwise,” the word person “include[s] racial identity (and thus standing to sue) based upon its during closing argument, when counsel referred the jury to a various statutory contexts, several of our sister circuits have public bodies in the commonwealth obtain high quality goods and (continued) power to provide, modify, or repeal a remedy”). carnell was notably, in the context of a plaintiff asserting a claim carnell’s breach of contract claims. after the first jury trial that receive federal funding); soberal-perez v. heckler, 717 1 at trial; (4) whether the court erred in deciding certain their arguments on partial or full payment for these two economic regulations generally are presumed constitutional carnell began the work on the project in june 2008. representatives. carnell asserts that the dsa designated blaine public contracts and forbids an increase to any such contract portions of a document that carnell contends should not have the civil rights act of 1964 (title vi); (2) whether the plaintiff - appellant, determination of the standing issue presented. reputation, the loss of integrity and good will, . . . , the sympathetic to carnell and critical of [the housing authority]” plaintiff – appellee, during closing argument, counsel for the housing authority they were pleaded sufficiently in the third amended complaint. been properly certified as such under applicable law can be the u.s.c. § 1981. as ultimately developed in the litigation, predictable,” r.k. chevrolet, 480 s.e.2d at 481, compels the signed and returned the consulting agreement to mcguirewoods, he contract and that requested for the alleged racial 3 likely to be redressed by a favorable decision. see lujan v. (appellees’ opening br. at 7 (emphasis added).) these actions the case for a new trial. program or activity receiving federal financial assistance” on carnell argues that because the total contract price was which lack merit. unpaid work claims under the vppa’s notice requirement; and (2) [the law] forbids”) (citation omitted). a verdict awarding carnell $400,000 on its claims alleging additional layer off of the blaine onion than off of the carnell (quoting kotteakos v. united states, 328 u.s. 750, 765 (1946)), foundation work and materials left by another contractor, about it, or if justice so requires.” the defendants’ argument 14 advance this precise theory relating to blaine’s liability for discrimination and retaliation counts, carnell specifically and to “[e]xpand on the initial story in danville to garner carnell, and it is simply too easy for blaine to look the other defense counsel asked scales whether he was trying to “shape” a corporation had standing to assert that it suffered injury summary judgment to blaine on carnell’s race discrimination on an unsigned mcguirewoods document entitled “assessment and u.s. at 162. discrimination claims and certain contract damages awarded, and the proposal’s negligible probative value was diminishingly general building contractors ass’n v. pennsylvania, 458 u.s. at trial.” by contrast, carnell’s breach of contract count liability on the plaintiff’s race discrimination claims. we that congress often uses the word “individual” to mean something same individuals, and particularly gary wasson. labor pursuant to contract modifications without being required housing authority, in turn, distributes those funds to the language allowing modifications to the final contract price, 375, 395 (1982), the supreme court did not decide in that case claims. the district court held that there was no evidence that identity and cannot be the direct target” of the deficiencies, incurring additional surveying costs, and of the virginia public procurement act (vppa), virginia code $3.1 million in damages on the race discrimination claims. the danville housing corporation (dhc), blaine’s managing member, that he was unfamiliar with the unsigned document and only beneficiary of federal funds. instead, title vi provides that 36 shortly after executing the contract with carnell, the housing authority would continue to provide actual supervision inc., 368 f.3d 1053, 1060 (9th cir. 2004) (section 1981 claim); 31 statement under rule 403). in support of its position, carnell principal-agent relationship. cf. acordia of va. ins. agency, rezoning decision. id. at 263-64, 270. barred by carnell’s failure to offer evidence at the third trial to bring the action, but failed to carry their burden of proving standing requirements. cf. domino’s pizza, inc. v. mcdonald, finally, carnell argues that the vppa’s statutory cap no. 13-1143 blaine’s potential liability as a direct discriminatory actor. summary judgment to blaine on carnell’s race discrimination were consequential in that they were “not ordinarily the housing authority’s counterclaim for breach of contract. sufficiently alleged carnell’s special damages. in the relevant objections that the proposed impeachment evidence was unfairly wasson signed the operating agreement. the operating media outreach” with respect to carnell’s race discrimination respective breach of contract claims, but did not award damages discrimination claims to conceal poor contractual performance. wasson taking off his dhc (i.e., blaine) hat and putting on his after a two-week trial, a jury awarded carnell more than 7 including, but not limited to, relief of an offeror those claimed damages were consequential or special in nature, of the virginia public procurement act required the court to concerning the contract’s requirements. carnell, however, grp. prop. mgmt., inc., 295 f.3d 1065, 1072 (10th cir. 2002) carnell’s declaration that it was injured failed to convey 2 carnell’s race discrimination claims are based on 42 u.s.c. that will result from its admission. fed. r. evid. 403. an we are persuaded by the second circuit’s reasoning, and u.s. 90 (2003). on the contrary, the defendants’ entire theory authority steadily deteriorated as each party became in march 2008, the housing authority solicited bids for we also vacate the court’s judgment on both the race commonwealth of virginia as a “small, women- and minority-owned as the “owner” of the project with full control over the housing an agency relationship was not established between blaine and membership. although this analysis requires us to peel back an they were consequential in nature. see, e.g., atl. purchasers, limited liability company with “no individual officers or and “conspicuously declar[e] that, at least in the contractor’s housing authority’s executive director, gary wasson. scales prudential considerations should not prohibit that corporation ayers & matthews, plc, roanoke, virginia, for blaine square, agreed to hire mcguirewoods on carnell’s behalf. nevertheless, liability may be asserted in the context of a section 1981 for the fourth circuit 40 which carnell specifically requested reimbursement and signified carnell submitted a successful bid proposal, entered into a 4 and by “the harm to its name and reputation.” however, 12 unpaid work. in the relevant section of its third amended (va. ct. app. 2009), rev’d in part on other grounds, 699 s.e.2d president and members, it follows that a defendant company can theater, inc. v. heimbach, 671 f.2d 702, 706 (2d cir. 1982) exceedingly high. in allowing the impeachment, the district further hold that the court’s decision to allow defense counsel “independent business” and therefore foreclosed an agency not dispute that carnell meets the constitutional test of limits all fixed-price public contracts, carnell’s contract with and critical of [the housing authority],” and to “[e]xpand on standing, and we proceed to consider the merits of carnell’s of directors. in sum, the upper-level management personnel who assistance of media relations consultants from mcguirewoods “to (5th cir. 1962). our conclusion that the damages cited above the special circumstances were within the contemplation of the beginning of the work upon which the claim is based.” id. discrimination claims, including claims brought under title vi. performance bond. discounting in their entireties the letters that wasson 33 because the impeachment evidence had little or no probative pope, williams mullen, richmond, virginia, for appellees/cross- carnell separately asserts, however, that even if the vppa court’s decision to permit counsel to impeach scales with funds. cf. guardians ass’n v. civil serv. comm’n of n.y., 463 relationship). indeed, we discern no evidence in the record to onion—i.e., because blaine has no individual employees or for the reasons that follow, i respectfully dissent on this request, the parties attempted to mediate their grievances, but not at any time be deemed an employee of [blaine].” such clear of about $215,000, based on the court’s determination that non-profit company led by housing authority executive director authority. blaine was created to obtain and distribute tax member, a special member, and the managing member, which is a marks and emphasis omitted); mullen v. princess anne volunteer complaint.” great am. indem. co. v. brown, 307 f.2d 306, 308 assessment of probative value under rule 403 requires more than providing additional work. seizing on the part of the statute error itself had substantial influence’” on the judgment) pertaining to the same. the housing authority was a unit-price contract to which the prudential considerations should not bar review of a claim of palestinian auth., 132 s. ct. 1702, 1707-08 (2012) (observing was merely a “minor episode” in a lengthy trial. see taylor v. and executive director of the housing authority. despite these implementing various plan revisions, correcting environmental as provided in the contract documents, the sum of $793,541.00.” limitations may not be exceeded, defeated, evaded, or nullified comm’rs v. umbehr, 518 u.s. 668 (1996); hudson valley freedom the defendants argue that carnell’s unpaid work claims are published opinion. however, we observe that several other and breach of contract.1 “president” on two documents he signed on blaine’s behalf, and the housing authority’s approval of two change orders that on any of the contract claims. however, based on a post-trial mcguirewoods proposal. of virginia, and constitutes an unlawful taking and a due of virginia has rejected this position with respect to a similar amount of any contract, without adequate dealership is an independent business); arguello v. conoco, (concluding that title vi protects physician staff in hospitals of “unfair prejudice,” which refers to an undue tendency of board, respectively) is an issue for a jury to consider at tell who we are.” contains evidence that carnell provided sufficient notice of its 30 gatekeeping authority to exclude the evidence under rule 403. by wasson, although facially insignificant, are exemplary of 38 9, 13-14 (1st cir. 1979) (section 1981 claim).4 contract claims for unpaid work, and remand the two contract the trial, after the jury was unable to agree on a verdict on at 1135 (citation and internal quotation marks omitted). we according to carnell, the district court’s conclusion was on appeal involving carnell’s contract claims. ultimately, carnell did not prevail at the third trial on unusual for the type of claim in question—that are not the instances of unpaid work. the housing authority rejected additionally, in december 2008, carnell’s president, ordering a new trial. we begin by considering whether carnell, as a corporate wield decision-making power for both the housing authority and perform the site preparation work “for the firm, fixed price” entity, had standing to assert claims of race discrimination and inquiry in this regard is whether carnell alleged that it (sections 1981 and 1982 claims); gersman v. group health ass’n, corporations may raise [42 u.s.c.] § 1981 claims” for injuries carnell’s burden to show that blaine acted in a discriminatory heights, the supreme court was not required to consider whether avoid surprise; and to inform the court of the substance of the that, in the ordinary course of human experience, can be federal rule of civil procedure 9(g) requires that “special” problems with the construction site. on the record before us, separate opinion concurring in part and dissenting in part. authority agreed to pay carnell “for the performance of the 5 under carnell’s unpaid work claims, we review certain provisions blaine.” (carnell reply br. at 29.) gary wasson. moreover, the record fails to establish that gary judgment with respect to carnell’s race discrimination and of scales about a statement in the proposal constituted bring an action based on such discrimination. accordingly, we african-american individuals filed a lawsuit alleging that their consider the evidence and all inferences fairly drawn from the the general assembly’s authority has not been forbidden or the proposal and stated that he did not sign the document. in “retainage” withheld by the defendants, but ruled that according to the court, such consequential damages included the the jury awarded as compensation for that work. accordingly, we merits of the case.” united states v. macdonald, 688 f.2d 224, and the motives underlying carnell’s lawsuit. published under section 14.2 of the operating agreement, “[e]xtrinsic evidence” within the meaning of rule 613(b), the xiv, § 1; va. const. art. i, § 11. in essence, carnell contends we additionally hold that the district court properly charged with notice of the limitations upon its power. those housing authority leased the project site and assigned its redevelopment and housing authority (the housing authority) from claim,7 cir. 2003) (fair housing act claims); guides, ltd. v. yarmouth discrimination claims. we express no opinion, however, whether the valuable consideration of additional work performed by denials of carnell’s requests for certain payments were made by ii. we find no merit in the defendants’ argument. rule 613(b) the applicability and constitutionality of the statute, all of carnell construction corporation small absent any evidence that scales approved or otherwise however, the relationship between carnell and the housing between the relief requested for the alleged breaches of the race discrimination claims were discrimination and retaliation claims against the housing in addressing the amount of damages that could be recovered american individual who plainly had demonstrated standing to inadmissible; it says nothing about the admissibility of such intervention of ‘special circumstances’ not ordinarily parties to the contract.” r.k. chevrolet, 480 s.e.2d at 481 authority, we vacate the district court’s judgment and remand authority “at all times.”2 sections, carnell stated that it was damaged by the statement under rule 613(b), the statement must be one that the in a back-door fashion. to wit, in his dual roles as executive trial, or an issue that, at the least, warrants additional 519 u.s. 172, 184-85 (1997). 2. version of blaine’s “operating agreement,” blaine’s three beneficiaries to these contracts.”); united states v. harris vppa’s notice requirement. however, because the supreme court may allow a corporation to have title vi standing. title vi examination, we turn to consider carnell’s argument that the claims referenced in the october 2008 letter to the district except as to the three paragraphs of part ii.b pertaining to excluded from participation in, be denied the benefits of, or be only is admissible under rule 613(b) if the statement was through 4377, restricted the amount by which the parties’ fixed- contract. therefore, we conclude that the parties’ contract was and defending [the defendants’] claims and causes of action,” do anything and everything which a managing member of we turn now to consider one of carnell’s principal significant danger of prejudice where evidence is adduced for claims. in particular, we note the contrasting level of detail proof of notice under the vppa. we disagree. sophistication of a legal pleading,” the notice must “clearly (citation omitted). we agree with the district court that that “[t]he form in which claims for special damages must be “plain language” of contracts between an energy company and its affects the remedy available for certain breach of contract impeached with a third party’s characterization or authority, which merely was an agent obligated to assist blaine further, with regard to those two aspects of the project, we are contracted to work for the housing authority on a public project claims. on appeal, carnell argues that the foregoing items were after much discussion, and over carnell’s repeated a fixed-price contract subject to the modification limits favor of carnell both on its breach of contract claims and on in permitting the use of particular impeachment evidence, which the housing authority as a defendant. a second amended construction site.” no mention was made in the october 2008 not being able to complete the site preparation work and $60,490 make factual findings on that point. accordingly, we express no our application of the second circuit’s analysis. in arlington 11 particularized, and not conjectural; (2) the injury is fairly assistance. 49 substance of the proposal reasonably was attributable to scales. different from its use of the word “person”). a. argued: december 11, 2013 decided: march 6, 2014 performing work on sidewalks, ramps, and driveway entrances. particular remedy in contract. see gibbes v. zimmerman, 290 of the evidence against the harmful consequences that may result compensated for work required “to clean out the sediment pond #3 the district court implemented the virginia public procurement narrow further the scope of recoverable contract damages. receiving federal funding assistance. carnell alleged that the alleged race discrimination and retaliation (collectively, race housing authority entered into a contract with carnell to for the housing authority to recite the language from the c. see id. (stating that “even if all the foundational elements of authority. as blaine’s managing member, dhc—and thus impliedly letter notifying the housing authority of “claims arising from director and contracting officer, cedric ulbing, as well as project contractors, including carnell. accordingly, pursuant carnell therefore undoubtedly has participated in the hope vi a minority contractor,” and was “expected . . . to work for distinction between his dual roles at each entity. housing authority personnel, not by blaine. (4th cir. 2004); see smith v. bray, 681 f.3d 888, 897 n.3 (7th statement. conduct alleged, “shall be specifically stated.” weyerhaeuser not prevent its race discrimination claims from falling within any error was harmless because use of this impeachment material virginia, for appellant/cross-appellee. john dickens eure, by contrast, the october 2008 correspondence, on which qualified as a prior statement of scales. appellees, in their recitation of the facts in their claims, holding that blaine could not be held liable for the the basis of race. 42 u.s.c. § 2000d. thus, the determinative be held liable for the misconduct alleged in those claims. we value and the danger of unfair prejudice was very great, we fails at the outset, because even if counsel’s cross-examination was not an intended beneficiary of hope vi program funding. counsel for the housing authority asked whether scales had carnell argues, nevertheless, that the breach of contract (mcguirewoods) to “assist carnell in reputation management and race discrimination claims on either a direct or a vicarious dsa also explicitly forecloses any ability to construe the services at reasonable cost,” and “that all procurement consideration, be increased for any purpose, relationship between blaine and the housing authority under the associated with cleaning out the sediment pond and removing (continued) v. case for a new trial on damages limited to the two claims raised 51 federally funded contract with the housing authority, and supplied the required notice only with respect to expenses [that party’s] activities.” id. at 404 (o’connor, j., accomplish. id. carnell insufficiently had pleaded “consequential or special of damages sought, the procedural requirements for pleading 29 based on the aforementioned relationships, blaine may be carnell argues that wasson was listed as blaine’s evidence is “substantially outweighed” by “unfair prejudice” carnell does not argue on appeal that the district court [t]he managing member [dhc] is fully authorized, extent that we hold in this opinion that carnell has an imputed constitutions. see u.s. const. amend. v; u.s. const. amend. chief, 519 u.s. at 180. rule 403 provides for the exclusion of the district court correctly observed, those documents should as the nonmovant in the summary judgment proceedings, it is not the jury awarded carnell a total of $915,000 on its contract carnell’s arguments concerning its claims for unpaid work. defendant could be held vicariously liable for the the housing authority. see, e.g., causey v. sewell cadillac- requirement must identify specifically each claim for damages defendant – appellant, further conclusion that those damages were “unusual for the type chevrolet, inc., 394 f.3d 285, 290 (5th cir. 2004) (affirming wasson acted in any respect on blaine’s behalf when he engaged examining the present record, we conclude that carnell has agree with the conclusions reached by our sister circuits that as we have stated above, no evidence was adduced to show abrogated on other grounds, desert palace inc. v. costa, 539 briefing and consideration at the summary judgment stage. enterprise because its owner is african-american. alleged destruction of carnell’s business, loss of good will, contends that the evidence lacked probative value and was carnell briefly argues that the housing authority’s actual recover, through a lawsuit, an amount that carnell could not version of its operating agreement. appellants. on brief: lori j. bentley, joshua d. goad, johnson, reputation, . . . , and other compensatory damages to be proven inc. v. aircraft sales, inc., 705 f.2d 712, 716 n.4 (4th cir. which included clearing the construction site for the project, we agree with the ninth circuit that a minority-owned affirmed in part, has standing to sue for race discrimination under title vi of requires that “a plaintiff’s grievance must arguably fall within discriminatory motivations of a supervisor, even though the citing “the absurdity of implying an obligation to do that which provide funds from the hope vi program to blaine and, under a side of seeland road and the associated removal of the sediment vacated in part and remanded, agent of another party,” and that “[the housing authority] shall undisputed facts, the record lacked any foundation for treating 3 decision-making power to distribute funds to the project otherwise relevant evidence if the “probative value” of the “occasions when false claims of race discrimination are made in because they reasonably are related to the legitimate government for the second time,” and “to enter, remove siltation material, the defendants’ decision to remove carnell from the project, given an opportunity to explain or deny the statement and an its face, the statutory cap plainly applies to all fixed-price cir. 1995) (defining special damages as “damages that are assistance.” 42 u.s.c. § 2000d. accordingly, we hold that a bid for the work, proposing a price of $793,541 and in may 2009, the housing authority advised carnell that it 32 expected to result from the breach, and are compensable.” r.k. proponent’s need for admission of the evidence in the full as best i can glean from the record, wasson is an “propose[d]” goals for mcguirewoods’s relationship with carnell, in summary, we conclude that the district court correctly llc. j. nelson wilkinson, james v. meath, williams mullen, controls. carnell construction corporation (carnell) submitted proposed evidence, the trial court then must balance the value under title vi because carnell is not a “person” within the false, the district court ordered a new trial.2 knowledge of the unpaid work claims substantially satisfied the work. on remand, therefore, when the district court considers the defense theory that carnell’s discrimination claims were proposal” (the proposal, or the mcguirewoods proposal), which surviving unpaid work claims to the district court upon remand. we agree with the district court that under these supervisor did not formally take the adverse employment action.” private investors to contribute capital to public housing virginia code § 2.2-4309. carnell raises three challenges to predictable and are compensable only if it is determined that see, e.g., thinket ink info. res., inc. v. sun microsystems, race, color, or national origin,” not “on the ground of his or wasson, in his role as dhc’s president—“ha[s] full, exclusive action.” (citation omitted) (internal quotation marks omitted)). carnell’s contract claims focused on allegations that carnell 34 specified. although the contract contained some conditional twenty-five percent of the amount of the contract or extent of the general damages that it was awarded on those claims being litigated. we agree with carnell’s argument. an intent to file a claim. see amec civil, 677 s.e.2d at 641. absence of evidence to support [carnell]’s case.” kitchen v. § 2.2-4300(c). here, we consider: (1) whether the record scope of relief available on carnell’s claims for unpaid work to has subscribed. see united states v. barile, 286 f.3d 749, 757- title vi does not require that an injured party be the intended that the vppa is unconstitutional because it permits the additional briefing at the summary judgment stage. failure to plead special damages on its claims that it was therefore, that wasson acted on blaine’s behalf when he moreover, the proposal, which was dated february 22, 2010, had 25 managed by a non-profit instrumentality of the housing carnell. board that was shown to the jury, and referred to that language reach the merits of a claim. dr. william e.s. flory small bus. situation.” 1 the vppa in reducing carnell’s damages on its claims for unpaid construction of the project as an independent contractor. the work, we vacate the district court’s judgment and remand the officers, we must instead look to the individual employees of “worked to shape and tone the content of this evidence” to “make brought by minority-owned corporations that meet constitutional whether the district court abused its discretion in allowing the checks would be written to [the housing authority] for judgment to blaine with respect to those claims. allen v. wright, 468 u.s. 737, 751 (1984). the defendants do opinion, in which judge agee joined. judge floyd wrote a contractors, and the housing authority as the duped formal floyd, circuit judge, concurring in part and dissenting in part: purpose of promoting fair procurement procedures by which public “subject to additions and deductions,” and because carnell hudson valley, 671 f.2d at 706 (quoting arlington heights, 429 declared in default of its contract obligations. the housing va. union univ., 193 f.3d 219, 235 (4th cir. 1999) (holding that accordingly, we conclude that the district court correctly the benefits of, or be subjected to discrimination under any shareholders are corporate entities, including an investor additionally, as the district court observed, blaine is a us, carnell sufficiently has shown an imputed racial identity irrational”). discrimination under federal law. thinket ink, 368 f.3d at carnell’s argument fails. the plain language of the dsa defense counsel ultimately was allowed to impeach scales rule of evidence 403. finally, we agree that the district court count in its third amended complaint incorporated certain $50,000, whichever is greater, without the advance suffered an actual or threatened injury that is concrete, the proposal as a prior inconsistent statement attributable to


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