Lynne S. TAYLOR, Plaintiff-Appellant, and Keisha Johnson, Plaintiff, v. VIRGINIA UNION UNIVERSITY, Defendant-Appellee; Keisha Johnson, Plaintiff-Appellant, and Lynne S. Taylor, Plaintiff, v. Virginia Union University, Defendant-Appellee, 193 F.3d 219

Affirmed by published opinion. Judge HAMILTON wrote the opinion, in which Chief Judge WILKINSON and Judges WIDENER, NIEMEYER, LUTTIG, WILLIAMS and TRAXLER joined. Judge MURNAGHAN wrote a dissenting opinion, in which Judges MICHAEL, MOTZ and KING joined. Judge MOTZ also wrote a separate dissenting opinion. Judge WILKINS did not participate in this case. OPINION HAMILTON, Circuit Judge: This consolidated appeal involves various claims of gender discrimination brought by two former female patrol officers with the campus police department of Virginia Union University (VUU). See 42 U.S.C. § 2000e-2(a)(1).

The officers, Lynne Taylor (Taylor) and Keisha Johnson (Johnson) (collectively the Plaintiffs), each alleged she: (1) was delayed in receiving a firearm; (2) was not promoted; (3) was not selected to attend the police academy operated by the Virginia Commonwealth University (the Police Academy); and (4) was discharged, because she is a woman. Johnson alone alleged a sexual harassment claim. Upon VUU’s pretrial motion for

summary judgment, the district court dismissed Johnson’s sexual harassment claim for failure to exhaust her administrative remedies. The remaining claims proceeded to trial. At the close of all evidence, the district court granted VUU’s motion for judgment as a matter of law with respect to all of Taylor’s claims. Johnson’s remaining claims went to the jury. The jury returned a verdict fully in favor of VUU, and the district court entered judgment thereon. This appeal followed.

A divided panel of this court affirmed the judgments in favor of VUU with respect to the Plaintiffs’ claims alleging discriminatory delay in receiving firearms, but reversed the judgments in favor of VUU with respect to the Plaintiffs’ failure to promote, failure to be sent to the Police Academy, and discharge claims and remanded for trial on those claims with instructions to allow the admission of certain previously excluded evidence. The divided panel also instructed the district court to reinstate Johnson’s sexual harassment claim.

Upon VUU’s suggestion, we vacated the panel decision and reheard the case en banc. We now affirm the judgments entered by the district court in favor of VUU in all respects and affirm its dismissal of Johnson’s sexual harassment claim. I. VUU’s campus police department (the Department) consists of approximately twenty pólice officers. After a ninety-day probationary period, new hires entered the Department at the rank of patrol officer. Patrol officers could subsequently be promoted to the rank of corporal, sergeant, or lieutenant.

For promotion to any rank higher than corporal, both oral and written examinations are required. Until 1993, overall supervision of the Department was assigned to Walter H. Miller, VUU’s Vice President for University Services (Department Supervisor Miller). For approximately a year thereafter, overall supervision of the Department was assigned to S. Dallas Simmons, VUU’s President (Department Supervisor Simmons). In August 1994, overall supervision of the Department shifted to Anthony E. Manning, VUU’s Vice President for University Relations (Department Supervisor Manning).

Overall supervision of the Department included making significant personnel decisions such as hiring, firing, and promoting, with both formal and informal input from the Department’s Chief of Police. However, the decision to recommend an individual for promotion to a rank above corporal was made by a panel of individuals from both inside and outside VUU. This panel consisted of individuals from the Virginia Commonwealth University’s police department, the City of Richmond’s police department, VUU faculty members, and certain senior officers in the Department.

While the Department’s Chief of Police was not a member of this panel, he would receive and forward the panel’s recommendation to the Department Supervisor. At all times relevant to this appeal, Eugene Wells (Chief Wells) served as the Department’s Chief of Police. In this position, Chief Wells was responsible for the daily operation and administration of the Department, including the individual assignment of Department personnel and scheduling.

Furthermore, as previously mentioned, Chief Wells had input with respect to significant personnel decisions, although the ultimate decision making authority rested with the Department Supervisor. However, Chief Wells was authorized to select who among the Department’s officers could attend the Police Academy.

Of relevance to this appeal, VUU’s personnel manual required the following of a patrol officer in order to be promoted to the rank of corporal: (1) a minimum of six months as a VUU patrol officer; (2) no arrests for a criminal offense in the past twenty-four months unless found not guilty in a court of law; (3) ratings of satisfactory or above in all areas on the patrol officer’s most recent performance evaluation; and (4) service with good conduct as evidenced by no disciplinary action within the previous six months.

VUU’s personnel manual required the following in order to be promoted to the rank of lieutenant: (1) a minimum of one year as a VUU police officer with at least one year as sergeant or of supervisory experience; (2) no arrests for a criminal offense in the past twenty-four months unless found not guilty in a court of law; (3) ratings of satisfactory or above in all areas on the most recent performance evaluation; (4) service with good conduct as evidenced by no disciplinary action within the previous twelve months; (5) submission of a letter of interest for promotion to the Department’s Chief of Police; and (6) passage of qualifying oral and written examinations.

A. Taylor. Taylor holds a bachelor of arts degree in journalism from Norfolk State University. After receiving her degree, she served on active duty status in the United States Army for an unspecified amount of time in Germany. Upon returning from Germany, Taylor attended military police school at Fort Meade in Maryland in preparation for deployment in connection with Operation Desert Storm. Approximately two days after Taylor graduated from military police school, the conflict giving rise to Operation Desert Storm ended, thus eliminating the necessity for Taylor’s expected deployment.

Apparently no longer on active duty status in the United States Army, Taylor applied for the position of patrol officer at the Department, and in August 1992, Department Supervisor Miller hired Taylor as a patrol officer upon Chief Wells’ recommendation. Taylor served her mandatory ninety-day probationary period with the Department without incident. In April 1993, Wells rated Taylor’s communication skills as “marginal” in a written performance evaluation and encouraged her to improve in that area. Wells rated Taylor’s skills in all other areas, including initiative, dependability, and leadership as satisfactory.

Despite giving Taylor a “marginal” rating with respect to her communication skills, Wells allowed Taylor to serve on a regular basis as Acting Shift Supervisor starting in August 1994. In this position, Taylor supervised all activities on the assigned shift, informed officers of Department policies and procedures as they applied to the shift, ensured compliance with Department policies and procedures, and assigned officers to work details. After serving as Acting Shift Supervisor on a number of occasions, Taylor unsuccessfully sought promotion to the rank of corporal.

According to VUU, Taylor’s request for promotion was denied because of the marginal rating she had received in May 1993 with respect to her communication skills, and because she was less qualified than the male patrol officer selected for promotion. According to Taylor, most of the male officers who served as Acting Shift Supervisor were promoted to the rank of corporal. The record does not contain any evidence regarding the specific qualifications of the male officer who was promoted instead of Taylor.

Approximately two months after Taylor was denied promotion to the rank of corporal, in October 1994, Lieutenant Yancey responded to a complaint by a resident assistant that females were in the Omega fraternity room of Storer Hall in violation of VUU policy. Upon arriving at the entrance to the room, Lieutenant Yancey discovered the existence of a coed party. A member of the Omega fraternity then informed Lieutenant Yancey that one of the Department’s female officers was in attendance as a guest. The officer was Taylor, who was off-duty. She had attended the party for “a little over ... an hour.” (J.A. 152).

Her attendance was a direct violation of VUU policy regarding fraternization with students. Based upon Lieutenant Yancey’s incident report and an investigation by Chief Wells, in November 1994, Chief Wells recommended to Department Supervisor Manning that Taylor be discharged. On November 7, 1994, Taylor was discharged with the stated reason being her violation of VUU’s anti-fraternization policy.

In support of her discriminatory discharge claim, Taylor offered the testimony of Corporal Tommy Harrell (Corporal Harrell) of the Department that some male officers were not disciplined for having “contact” with female students. (J.A. 85). Corporal Harrell did not describe what type of contact was involved. Taylor also relied upon her own testimony that “[t]here were several incidents where students would say that there were male officers who were engaged in sexual relationships with female students and bragging about it all over campus,” and VUU officials did nothing. (J.A. 153).

One of the issues in this appeal stems from the fact that Taylor was never selected to attend the Police Academy. At trial, Taylor testified that Chief Wells assured her that she would be sent to the Police Academy. Nevertheless, Taylor claims that she was not sent to the Police Academy during her twenty-six month tenure with the Department because of her gender. In support of her claim, Taylor put forth the following testimony by Lieutenant Quinton Terry (Quinton Terry or Lieutenant Terry) of the Department: “I asked [Chief Wells] one day was he going to send Ms.

Johnson to the Police Academy with me because I knew I was getting ready to go to the Academy. He stated to me he was never going to send a female to the Academy.” (J.A. 70). Furthermore, Corporal Harrell testified that Chief Wells had once referred to Taylor as a “stupid bitch,” and asked him if he was sleeping with Johnson. (J.A. 82). B. Johnson. Johnson does not hold a college degree. She did serve two years, however, in the United States Army prior to her employment at VUU. Johnson held the rank of sergeant at the time she separated from the Army.

In July 1993, Department Supervisor Simmons hired Johnson as a patrol officer upon Chief Wells’ recommendation. She served the mandatory ninety-day probationary period without incident. Like Taylor, Johnson also served regularly as Acting Shift Supervisor. Johnson began doing so in April 1994. Chief Wells rated Johnson as satisfactory or above in all of the categories listed on her April 1994 performance evaluation, the only one prepared during Johnson’s fourteen month tenure with the Department.

In May 1994, Johnson sent a letter to Chief Wells expressing her desire to apply for promotion to the rank of lieutenant. According to Johnson, Chief Wells then told her, “I don’t know why you can’t be the next lieutenant around here.” (J.A. 136). To achieve that end, Johnson took both the requisite written and oral examinations. The examinations were conducted by a panel consisting of Lieutenant Yancey of the Department, a police officer from Virginia Commonwealth University’s police department, and a police officer from the City of Richmond’s police department.

In August 1994, after the examination process was complete, VUU compiled the panel’s results in a final ranking. Quinton Terry finished three points higher than Johnson and was promoted to the rank of lieutenant. In September 1994, fourteen months after she was hired as a VUU patrol officer, Johnson sent a letter to Chief Wells expressing how much she had enjoyed working under him but was resigning to “further develop [her] career in areas that [were] more in line with [her] long term goals.” (J.A. 370).

Department Supervisor Manning, upon receipt of Johnson’s letter of resignation, attempted unsuccessfully to persuade Johnson to remain with the Department. Department Supervisor Manning then allowed and encouraged Johnson to adjust her termination date so that she could collect an extra four days of pay. Also at issue in this appeal is the fact that Johnson, like Taylor, was never selected to attend the Police Academy.

In support of her claim that her failure to be selected to attend the Police Academy was a result of discriminatory animus held by Chief Wells toward women, like Taylor, Johnson relies upon the exchange between Chief Wells and Lieutenant Terry during which Chief Wells stated he was “never going to send a female to the Academy.” (J.A. 70). The jury heard Taylor testify, however, that some of the male officers at VUU had waited as long as three years before being selected to attend the Police Academy, which was much longer than either Taylor or Johnson’s respective tenures with the Department.

Also in support of her claims, Johnson testified at trial that at times during her tenure with the Department, Chief Wells: (1) talked to her in his office with the door shut; (2) told her she would be promoted if she “did the right thing”; (3) told her she looked good in her uniform; and (4) touched her on her arm or shoulder when he spoke to her. (J.A. 107). C. Equal Employment Opportunity Commission. The Plaintiffs filed charges alleging gender discrimination against VUU with the Equal Employment Opportunity Commission (EEOC).

At issue in the present appeal is the affidavit that Johnson attached to her charge in which she attested to the following: On several times [Chief Wells] called me at home on thing [sic] that could wait until the next day. He has touched me on the arm on several times while talking to me. He stated he hire [sic] me because he liked me. He has called my Military Reserve (SgLDixon) Unit to discuss with my supervisor that he was in the process of promoting. He has called me in his office for hours at a time, away from job [sic] to talked [sic] to me. (J.A. 353).

Johnson argued below and argues on appeal that these statements in her affidavit are sufficient to conclude that she advanced a sexual harassment claim before the EEOC even though her actual charge form never explicitly alleged a sexual harassment claim. On April 1, 1996, both Taylor and Johnson received a “right to sue” letter from the EEOC. D. The District Court. On June 27 and 28, 1996, respectively, Taylor and Johnson filed the present actions against VUU, which were later consolidated for purposes of trial.

As previously stated, the district court dismissed Johnson’s sexual harassment claim for failure to exhaust her administrative remedies and granted VUU’s motion for judgment as a matter of law with respect to all of Taylor’s claims.

Of relevance in the present appeal, at the trial on Johnson’s remaining claims, the district court refused to admit evidence, over Johnson’s objection, that Chief Wells once stated that he bet a certain unidentified woman had “good pussy” and called a female VUU employee named Angela Sheridan at home on several occasions, touched her, and told her that he had looked down her blouse once when standing behind her. (J.A. 187).

Also of relevance in the present appeal is the following note sent by the jury to the district court during its deliberations: How many women were hired, promoted, worked at VUU Campus Police during Well’s [sic] tenure? Also, how many women from the VUU Campus Police went to the Police Academy during the same time? (J.A. 343). At a conference with all parties, and outside the presence of the jury, the district court indicated how it planned to answer the jury’s questions.

While the court engaged in a brief discussion with the parties concerning its proposed answers to the jury’s questions, no party raised any objections thereto. The district court then informed the jury in accordance with its proposed answers as follows: All right, we had a note from the jury asking the following questions: “How many women were hired, promoted or worked at VUU Campus Police during Wells’ tenure?” My answer to that is that we have to be very careful. These are factual matters that you are supposed to decipher.

But as I have indicated to counsel, and based on what I recall in my notes in the matter, there was no evidence in terms of what were the total number of women who worked during Wells’ tenure, and you are stuck with that. You can only deal with what was presented to you. And then on the second question, I’ll answer it in two ways. You want to know how many women on the campus went to the Police Academy. If your indication from that is during Wells’ tenure, again, there is no evidence of the totality of women, if any, who went during Wells’ tenure. And again, you are stuck with that.

The only evidence that I recall relating to any specific testimony about women going to the Police Academy was Mr. Miller, who testified specifically about a Jean Robinson and a Corrinne Thomas, who were both promoted to Sergeant and both attended the Police Academy. This would have been prior to the time of Mr. Wells, Chief Wells. So that’s the best I can do for you. If it is not there, it is not there and we can’t speculate. All right? Thank you. (J.A. 335-36). No party raised any objection to these statements.

The jury continued its deliberations and ultimately returned a verdict in favor of VUU on all of Johnson’s remaining claims. Johnson then moved for entry of judgment as a matter of law or in the alternative for a new trial, see Fed.R.Civ.P. 50(b), which the district court denied. The district court then entered judgment in favor of VUU based upon the jury’s verdict. E. Arguments On Appeal. The Plaintiffs noticed timely appeals.

On appeal, Taylor contends the district court erroneously granted VUU’s motion for judgment as a matter of law with respect to her claims alleging discriminatory: (1) delay in receiving a firearm; (2) failure to be promoted; (3) failure to be selected to attend the Police Academy; and (4) discharge. She seeks a new trial on all of her claims.

Johnson contends the district court committed reversible error by refusing to admit evidence, over her objection, that Chief Wells once stated that he bet a certain unidentified woman had “good pussy” and called a female VUU employee named Angela Sheridan at home on several occasions, touched her, and told her that he had looked down her blouse once when standing behind her. (J.A. 187).

On this basis, Johnson seeks a new trial on her claims alleging discriminatory: (1). delay in receiving a firearm; (2) failure to be promoted; (3) failure to be selected to attend the Police Academy; and (4) constructive discharge. Johnson also contends the district court erroneously dismissed her sexual harassment claim, and therefore, seeks to have the claim reinstated. We address Taylor’s contentions first and Johnson’s contentions second. II.

As the moving party, VUU was entitled to prevail on its motion for judgment as a matter of law with respect to Taylor’s claims if during the jury trial, after Taylor was fully heard, “there [was] no legally sufficient evidentiary basis for a reasonable jury to find” in Taylor’s favor. Fed.R.Civ.P. 50(a)(1). We review the district court’s grant of VUU’s motion for judgment as a matter of law with respect to Taylor’s claims de novo, viewing the evidence in the light most favorable to Taylor. See Brown v. CSX Transp., Inc., 18 F.3d 245, 248 (4th Cir.1994). A. Failure to Promote Claim.

Section 703 of Title VII of the Civil Rights Act of 1964, inter alia, makes it “an unlawful employment practice for an employer — (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s ... sex.... ” 42 U.S.C. § 2000e-2(a)(1). Taylor claims that she successfully met her burden of proof under the McDonnell Douglas burden-shifting proof scheme on her Title VII claim alleging discriminatory failure to promote on account of her gender.

See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). McDonnell Douglas contains a familiar three-step burden-shifting proof scheme. See Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 959 (4th Cir.1996). Under that three-step framework, the plaintiff-employee must first prove a prima-facie case of discrimination by a preponderance of the evidence. If she succeeds, the defendant-employer has an opportunity to present a legitimate, nondiscriminatory reason for its employment action.

If the employer does so, the presumption of unlawful discrimination created by the prima facie case drops out of the picture and the burden shifts back to the employee to show that the given reason was just a pretext for discrimination. Id. (internal quotation marks omitted). To meet her burden of proving pretext, a plaintiff must prove both that the reason given for the adverse action by the employer was false, and that discrimination was the real reason. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Vaughan v.

Metrahealth Cos., Inc., 145 F.3d 197, 201-02 (4th Cir.1998). In order to establish a prima facie case, Taylor was required to demonstrate by a preponderance of the evidence that: (1) she is a member of a protected class; (2) her employer had an open position for which she applied; (3) she was qualified for the position; and (4) she was rejected for the position under circumstances giving rise to an inference of unlawful discrimination. See Hughes v. Bedsole, 48 F.3d 1376, 1383 (4th Cir.1995). The other two steps are not reached unless and until Taylor satisfies her burden of establishing a prima facie case.

See Evans, 80 F.3d at 959. At bottom, Taylor failed to offer sufficient evidence to establish the third element of a prima fade case — that she was qualified for the rank of corporal.

The evidence at trial was undisputed that to qualify for promotion to the rank of corporal, the candidate must possess: (1) a minimum of six months as a VUU patrol officer; (2) no arrests for a' criminal offense in the past twenty-four months unless found not guilty in a court of law; (3) ratings of satisfactory or above in all areas on the patrol officer’s most recent performance evaluation; and (4) service with good conduct as evidenced by no disciplinary action within the previous six months.

Taylor was not qualified for promotion to the rank of corporal because she had received a rating of “marginal” in the category of communication skills on her most recent performance evaluation. Accordingly, Taylor cannot make out a prima facie case, and therefore, rightly did not survive VUU’s motion for judgment as a matter of law. Taylor urges this court to discount her marginal rating in the category of communication skills on her performance evaluation because Chief Wells, whom she alleges harbored discriminatory animus toward women, performed the evaluation.

Such a position overlooks this court’s holding that if: the employee was hired and fired by the same person within a relatively short time span ... this fact creates a strong inference that the employer’s stated reason for acting against the employee is not pretextual.... In short, employers who knowingly hire workers within a protected group seldom will be credible targets for charges of pretextual firing. Jiminez v. Mary Washington College, 57 F.3d 369, 378 (4th Cir.1995) (quoting Proud v. Stone, 945 F.2d 796, 798 (4th Cir.1991)). See also Tyndall v.

National Education Centers, Inc., 31 F.3d 209, 215 (4th Cir.1994) (recognizing-in context of the Americans with Disabilities Act, 42 U.S.C. §§ 12101—12213, that “[a]n employer who intends to discriminate against disabled individuals or holds unfounded assumptions that such persons are , not good employees would not be apt to employ disabled persons in the first place”). Chief Wells was instrumental in hiring Taylor in August 1992, and evaluated her just eight months later in April 1993. While Taylor was not fired at the time of her evaluation, the same hirer-same firer inference applies here by analogy.

It strains credulity to believe that Chief Wells would have falsely rated Taylor as marginal in one category in her performance evaluation only eight months after he recommended that she be hired, so that he could prevent her from being promoted to the rank of corporal because she was a woman. See id. at 215 (holding in ADA case that employer was entitled to same hirer-same firer inference within eighteen month time span). Further, both Department Supervisor Miller and Lieutenant Yancey corroborated Chief Wells’ assessment of Taylor’s poor job performance.

Lieutenant Yancey testified at trial that Taylor had problems “getting the job done,” (J.A. 213), and Department Supervisor Miller testified that Taylor exhibited a “lackadaisical attitude.” (J.A. 198). Significantly, Taylor offered no evidence even remotely suggesting that either of these individuals held any discriminatory animus toward women.

Even in the face of Chief Wells’ comment that he would never send a woman to the Police Academy, these factors compel the conclusion that a reasonable jury could not find Taylor’s performance evaluation to be anything other than an accurate assessment of her job performance. Because there was no legally sufficient evidentiary basis for a reasonable jury to find that Taylor was qualified for the rank of corporal, the district court properly granted VUU’s motion for judgment as a matter of law on Taylor’s failure to promote claim.

Additionally, even assuming arguendo that Taylor established a prima facie case, she did not carry her ultimate burden of offering sufficient evidence for a reasonable jury to find that VUU’s reasons for failing to promote her — her receipt of a “marginal” rating in the category of communication skills on her most recent performance evaluation and her inferior qualifications as compared to the male patrol officer selected to be promoted — were a pretext for gender- discrimination.

At this stage of the analysis, Taylor “must establish that she was the better qualified candidate for the position sought.” Evans, 80 F.3d at 960. This she has unquestionably not done. Indeed, Taylor did not offer any evidence regarding the qualifications of the male patrol officer selected for the promotion she sought. Thus, she cannot even attempt to make the required comparison. B. Police Academy Claim. Taylor next contends the district court erred in granting VUU’s motion for judgment as a matter of law with respect to her Police Academy claim.

In this regard, Taylor believes that she is entitled to enjoy the more advantageous standard of liability applicable in mixed-motive cases. We disagree on all fronts. A plaintiff qualifies for the more advantageous standard of liability applicable in mixed-motive cases if the plaintiff presents “‘direct evidence that decision makers placed substantial negative reliance on an illegitimate criterion.’” Fuller v. Phipps, 67 F.3d 1137, 1142 (4th Cir.1995) (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 277, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (O’Connor, J., concurring)).

Such a showing requires “evidence of conduct or statements that both reflect directly the alleged discriminatory attitude and that bear directly on the contested employment decision.” Id. If the plaintiff satisfies this evidentiary threshold, the burden of persuasion shifts to the employer to prove that “it would have reached the same determination without any discriminatory animus.... ” Id.

The determination of whether a plaintiff has satisfied this evidentiary threshold is a decision for the district court after it has reviewed the evidence, see id. at 1142, which “ultimately hinges on the strength of the evidence establishing discrimination.” Id. at 1143. The bonus for plaintiffs able to invoke the standard of liability applicable in mixed-motive cases is that proof by the employer that it would have reached the same determination without any discriminatory animus does not allow the employer to avoid liability altogether. Rather, such proof only limits the remedies available to the plaintiff.

See id. at 1142. Absent the threshold showing necessary to invoke the standard of liability applicable in mixed-motive cases, however, a plaintiff must prevail under the less advantageous standard of liability applicable in pretext cases. See id. at 1143. According to Taylor, the following testimony by Lieutenant Terry is sufficient to trigger the mixed-motive standard of liability with respect to her claim alleging discriminatory failure to be selected to attend the Police Academy: “I asked [Chief Wells] one day was he going to send Ms.

Johnson to the Police Academy with me because I knew I was getting ready to go to the Academy. He stated to me he was never going to send a female to the Academy.” (J.A. 70). While Chief Wells’ statement reflects directly his alleged discriminatory attitude toward women, because Chief Wells made the statement in response to Lieutenant Terry’s question as to whether Johnson would be joining him in attending the Police Academy, the statement obviously does not “bear directly on the contested employment decision,” ie., Chief Wells’ decision not to send Taylor to the Police Academy. Fuller, 67 F.3d at 1142.

Accordingly, under our circuit precedent, the mixed-motive standard of liability is not triggered. Taylor, therefore, bears the burden of establishing her Police Academy claim under the McDonnell Douglas burden-shifting proof scheme applicable in pretext cases. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817.

To establish a -prima facie case of disparate treatment in a pretext case, Taylor must demonstrate that: (1) she is a member of a protected class; (2) she was qualified to attend the Police Academy; (3) she was not selected to attend the Police Academy; and (4) other officers who are not members of the protected class were selected to attend the Police Academy under similar circumstances. See Hughes, 48 F.3d at 1383.

At a minimum, Taylor cannot establish the fourth element of her prima facie case — ’that other officers who are not members of the protected class were selected to attend the Police Academy under similar circumstances. Critically, during Taylor’s tenure at the Department, Chief Wells never sent any VUU officer to the Police Academy with less qualifications than or similar qualifications to Taylor. During Taylor’s two years of employment with the Department, there were a total of six Police Academy slots available for VUU officers (two slots each year).

According to VUU policy, these slots were to be filled with officers based on their: (1) seniority; (2) employment with VUU for more than ninety days; (3) experience; (4) interest; (5) desire to attend the Police Academy; and (6) written evaluations. The evidence is overwhelming and un-contradicted that Taylor was not as qualified as the male officers when these six criteria are considered as a whole.

The evidence, viewed in the light most favorable to Taylor, shows that she served in the Department approximately two years, had a minimal amount of military experience during which she completed military police school, and, by her own admission, was only interested in being promoted to the rank of corporal, a position for which Police Academy training was unnecessary.

Of the six officers selected to attend the Police Academy during Taylor’s time at the Department, unlike Taylor, all expressed an interest in being promoted to the rank of sergeant or lieutenant, which showed a high degree of professional motivation. Additionally, as compared to Taylor:

(1) Vernon Dawson had more seniority and higher performance evaluations;

(2) Ralph Ortiz had more seniority (the record does not disclose how his performance evaluations compared to Taylor);

(3) Lieutenant Terry had higher performance evaluations and a great deal more military experience;

(4) Wilfred Tegre had more seniority, higher performance evaluations, and security guard experience;

(5) Troy Jones had experience as a firearms instructor, higher performance evaluations, attended the United States Marine Security Force School, and a great deal more military experience; and

(6) Harper Morrison had higher performance evaluations and also had military experience, which included completion of the United States Army’s military police school. Further, Taylor conceded at trial that Officers Alfred Pittman and James Anderson, both of whom are male and had more seniority than Taylor, were also not selected to attend the Police Academy during her tenure with the Department. In sum, Taylor has not produced legally sufficient evidence for a reasonable jury to find that male officers were selected to attend the Police Academy ahead of her under similar circumstances.

Indeed, she has produced no such evidence. Furthermore, Taylor has produced no evidence to rebut VUU’s proffered legitimate nondis-eriminatory reason for not selecting Taylor to attend the Police Academy — considering the totality of the stated factors, all of the male officers selected were more qualified. Accordingly, we affirm the district court’s grant of VUU’s motion for judgment as a matter of law on Taylor’s Police Academy claim. C. Discriminatory Discharge.

Taylor also contends that the district court erred in granting VUU’s motion for judgment as a matter of law with respect to her discriminatory discharge claim. Again, we disagree. Taylor premises her discriminatory discharge claim on her assertion that male officers in the Department also fraternized with VUU students but escaped discipline. For Taylor to avoid VUU’s motion for judgment as a matter of law, she must, at a minimum, demonstrate a prima facie case of disparate treatment with respect to her being disciplined by being discharged.

Thus, Taylor must demonstrate by a preponderance of the evidence that: (1) she is a member of a protected class under Title VII; (2) the prohibited conduct in which she engaged was comparable in seriousness to misconduct of employees outside the protected class; and (3) she suffered more severe discipline for her misconduct as compared to those employees outside the protected class. See Cook v. CSX Transp. Corp., 988 F.2d 507, 511 (4th Cir.1993). Fatal to Taylor’s discriminatory discharge claim is her failure to meet the second and third elements of a prima facie case.

The only evidence offered by Taylor in support of the second and third elements was: (1) her own testimony repeating statements by unidentified VUU students; and

(2) Corporal Harrell’s testimony that unidentified male officers were not disciplined for having “contact” with students. (J.A. 85).

Taylor’s testimony merely repeating hearsay statements made by unidentified VUU students indicating that unidentified male officers were engaged in sexual relationships with unidentified female students without discipline by VUU and Corporal Harrell’s testimony that unidentified male officers were not disciplined for having undescribed “contact” with students is too vague for a reasonable jury to find Taylor established elements two and three of a prima facie case by a preponderance of the evidence. See Guthrie v.

Tifco Industries, 941 F.2d 374, 379 (5th Cir.1991) (statements that are “vague and remote in time ... are insufficient to establish discrimination”). Cf. Simpson v. Welch, 900 F.2d 33, 35 (4th Cir.1990) (holding mere allegations without descriptions of specific incidents ... insufficient to state a claim under Title VII). Taylor’s failure to establish a prima facie case is fatal to her discriminatory discharge claim.

Because there is no legally sufficient evidentiary basis for a reasonable jury to find in Taylor’s favor on any of her claims, we affirm the district court’s grant of judgment as a matter of law in favor of VUU on all of Taylor’s claims. III.

According to Johnson, she is entitled to a new trial on all of her claims that went to the jury because the district court abused its discretion in excluding evidence that Chief Wells once stated that he bet a certain unidentified woman had “good pussy” and evidence that Chief Wells called a female VUU employee named Angela Sheridan at home on several occasions, touched her, and told her that he had looked down her blouse once when standing behind her. (J.A. 187). We review a district court’s exclusion of proffered evidence for abuse of discretion. See Persinger v. Norfolk & Western Ry.

Co., 920 F.2d 1185, 1187 (4th Cir.1990). Here, we need not decide whether the district court abused its discretion in excluding the evidence identified by Johnson, because assuming arguendo it did, the abuse constitutes harmless error. Title 28, United States Code § 2111 provides: “On the hearing of any appeal or writ of certiorari in any case, the court shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties.’.’ Id.

The Supreme Court has characterized this statute as the harmless error statute, “which applies directly to appellate courts and which incorporates the same principle as that found in [Federal] Rule [of Civil Procedure] 61.” McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 554, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984).

In order to conclude the district court’s assumed evidentiary errors did not affect Johnson’s substantial rights, and therefore were harmless, “we need only be able to say ‘with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error[s].’” United States v. Heater, 63 F.3d 311, 325 (4th Cir.1995) (quoting United States v. Nyman, 649 F.2d 208, 211-12 (4th Cir.1980), which in turn was quoting Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)).

This test appropriately focuses upon “whether the error itself had substantial influence.” Kotteakos, 328 U.S. at 765, 66 S.Ct. 1239. We note that we have never before expressly used this particular test for determining whether an error or assumed error for the sake of argument affected an appellant’s substantial rights in a civil case. Justice Rutledge first expressed this test in Kotteakos, a criminal case, and since then, the majority of our sister circuits have applied it in the civil context. See Williams v. United States Elevator Corp., 920 F.2d 1019, 1022-23 (D.C.Cir.1990); Schrand v. Federal Pac. Elec.

Co., 851 F.2d 152, 157 (6th Cir.1988); Aetna Casualty & Sur. Co. v. Gosdin, 803 F.2d 1153, 1159 (11th Cir.1986); Lataille v. Ponte, 754 F.2d 33, 37 (1st Cir.1985); Howard v. Gonzales, 658 F.2d 352, 357 (5th Cir.1981); Cohen v. Franchard Corp., 478 F.2d 115, 125 (2d Cir.1973). We now join these circuits, because we can fathom no sound justification for using a different test for determining whether a lower court’s error affected an appellant’s substantial rights in the civil context as compared to the criminal context.

Indeed, by its own terms, § 2111 makes no distinction between civil and criminal cases, thereby implying that Congress intended uniform treatment of the statute’s language in the civil and criminal contexts. Applying this test to each of Johnson’s claims reveals that she is not entitled to a new trial on those claims. A. Failure to Promote Claim. Johnson alleged that VUU denied her promotion to the rank of corporal and lieutenant because of her gender.

At trial, VUU attributed Johnson’s failure to be promoted to the rank of corporal or lieutenant to her not being the most qualified candidate for the positions at the time she applied for the promotions. Given that this matter proceeded through a jury trial on the merits, “we no longer concern ourselves with the vagaries of the prima facie case because subsequent to a trial in a Title VII action, the ultimate issue is one of discrimination vel non.” Jiminez, 57 F.3d at 377.

In this “posture, the McDonnell Douglas paradigm of presumption created by establishing a prima facie case drops from the ease, and the factual inquiry proceeds to a new level of specificity.” Id. (internal quotation marks and citations omitted). This factual inquiry is whether VUU intentionally discriminated against Johnson. See id. Johnson bore the burden of persuasion on this issue. See id. To meet her burden, Johnson had to prove both that the reason given by VUU for failing to promote her was false, and that discrimination was the real reason. See St.

Mary’s Honor Ctr., 509 U.S. at 515, 113 S.Ct. 2742; Vaughan, 145 F.3d at 201-02. With respect to the rank of corporal, Johnson relied at trial on her own testimony and that of Taylor that all of the male officers who served as Acting Shift Supervisor were promoted to the rank of corporal. She also relied on the testimony of Lieutenant Terry that Chief Wells commented that he would never send a woman to the Police Academy in response to his (Lieutenant Terry’

s) query as to whether Johnson would be joining him at the Police Academy. Finally, she relied upon Corporal Harrell’s testimony that Chief Wells referred to Taylor as a “stupid bitch,” (J.A. 82), and queried whether Corporal Harrell had slept with Johnson. With respect to the rank of lieutenant, Johnson relied upon all of this same evidence, except for her own testimony and that of Taylor that all of the male officers who served as Acting Shift Supervisor were promoted to the rank of corporal.

Additionally, the jury had before it evidence that a number of male officers, some with more seniority and experience than Johnson, served regularly as Acting Shift Supervisor without receiving promotion to the rank of corporal until they had been with the Department for several years. For example, Alfred Pittman was with the Department for four and one half years and regularly served as Acting Shift Supervisor prior to being promoted to the rank of corporal. This is a significantly longer period of time than Johnson’s fourteen month tenure with the Department.

Moreover, with respect to Johnson’s failure to be promoted to lieutenant, the jury considered evidence that a panel consisting of three individuals with no history of discriminatory animus toward women (Lieutenant Yancey of the Department, a police officer from Virginia Commonwealth University’s police department, and a police officer from the City of Richmond’s police department) ranked Johnson lower than Quinton Terry, the male officer who was promoted over Johnson, after comparing their performances on written and oral examinations.

Finally, the jury considered evidence that Lieutenant Terry had previously received higher performance evaluations than Johnson and had more military experience than Johnson. The jury considered all of this evidence and concluded that Johnson had not carried her burden of persuasion: (1) that the reason given by VUU for failing to promote her to the rank of corporal or lieutenant — that she was not the most qualified candidate for either position- — was false, and (2) that discrimination was the real reason. See St. Mary’s Honor Ctr., 509 U.S. at 515, 113 S.Ct. 2742.

Considering the above outlined evidence, we are able to say with fair assurance, after pondering all that happened, that the absence of the alleged erroneously excluded evidence did not substantially sway the jury’s decision. Johnson offered the evidence of Chief Wells’ alleged “good pussy” comment and the evidence of his alleged conduct toward VUU employee Angela Sheridan in support of her ultimate burden of proving that Chief Wells failed to recommend her for promotion to the rank of corporal or lieutenant because of her gender.

If this evidence, assuming arguendo it suggests a discriminatory attitude toward women on the part of Chief Wells, had been thrown into the mix of evidence that was already before the jury on the issue of Chief Wells’ discriminatory animus toward women, for example, Chief Wells’ comment about never sending a woman to the Police Academy, we can say with fair assurance the outcome would have been the same. In

summary, we are firmly convinced the allegedly erroneously excluded evidence, assuming arguendo it was admissible, was simply too weak to have made a difference in the jury’s decision. B. Police Academy Johnson also alleges that VUU prevented her from attending the Police Academy because of her gender. After a full trial, the jury returned a verdict in favor of VUU on Johnson’s Police Academy claim. Thus, after considering the evidence presented by both sides, the jury was not ultimately persuaded that Johnson should prevail.

Common sense compels the conclusion that if the jury rejected her Police Academy claim in the face of Lieutenant Terry’s testimony that Chief Wells stated he would never send a woman to the Police Academy in response to his (Lieutenant Terry’

s) query as to whether Johnson would be joining him at the Police Academy, throwing the alleged erroneously ex-eluded evidence into the mix would not have changed the outcome. In short, we say with more than fair assurance that the jury was not substantially swayed by the alleged errors. Thus, any possible error committed by the district court in excluding the evidence at issue was at most harmless. C. Constructive Discharge Johnson also claims that she was constructively discharged because of her gender.

As a threshold matter, Johnson was required to prove that VUU deliberately made her working conditions “ ‘intolerable’ in an effort to induce [her] to quit.” Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1353-54 (4th Cir.1995) (quoting Bristow v. The Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir.1985)). In order to meet this burden, Johnson had to prove:

(1) VUU’s actions of which she complains were deliberately done; and (2) her working conditions were intolerable. See id. at 1354. Deliberateness exists only if the actions complained of were intended by the employer as an effort to force the plaintiff to quit. See id. Whether a plaintiffs working conditions were intolerable is assessed by the objective standard of whether a reasonable person in the plaintiffs position would have felt compelled to resign. See Bristow, 770 F.2d at 1255.

We have previously held that “[dissatisfaction with work assignments, a feeing of being unfairly criticized, or difficult or unpleasant working conditions are not so intolerable as to compel a reasonable person to resign.” Carter v. Ball, 33 F.3d 450, 459 (4th Cir.1994). Moreover, the denial of a single promotional opportunity is insufficient to create an intolerable working environment. See Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1160 (8th Cir.1999).

If Johnson met her burden of showing that she was constructively discharged, she then bore the burden of showing the complained of conduct was motivated by discriminatory animus toward women. See Vitug v. Multistate Tax Com’n, 88 F.3d 506, 517 (7th Cir.1996). In attempting to prove that her working conditions were intolerable, Johnson relied on her own testimony that Chief Wells touched her on the arm, called her at home on numerous occasions, talked to her in his office with the door shut, told her that she looked good in her uniform, and told her that she would be promoted if she did the right thing.

She also relied on the fact that during her fourteen month tenure at VUU, she was neither selected to attend the Police Academy nor promoted. In contrast, VUU offered evidence that Johnson parted from VUU, including Chief Wells’ supervision, upon extremely pleasant terms. For example, in her letter of resignation addressed to Chief Wells, she stated that she “enjoyed very much working under [his] direction.... ” (J.A. 370). The jury considered all of this evidence and found in favor of VUU.

Considering the elements of proof of a constructive discharge claim and the mix of relevant evidence before the jury, we can say with fair assurance that throwing the alleged erroneously excluded evidence into the mix would not have changed the outcome. Johnson’s evidence at trial fell far short of the evidence needed for a reasonable jury to find that her working conditions at VUU were intolerable.

Certainly no single incident stands out in the record as sufficiently insufferable in and of itself to compel a reasonable person’s departure; indeed, Johnson herself relies on the cumulative effect of the acts she has cited. But even the totality of these acts do not support an inference that Johnson was forced to resign. The bulk of the actions on the part of Chief Wells, for example, calling Johnson at home, are moderately annoying at best, and would not force a reasonable person to resign. See Carter, 33 F.3d at 459.

Even when these actions are coupled with her failure to be sent to the Police Academy and her failure to be promoted during her fourteen month tenure with the Department, our conclusion does not change. Critically, such failure to be sent to the Police Academy and to be promoted during such a brief tenure of employment is hardly unreasonable. See Breeding, 164 F.3d at 1160. Finally, beyond all of this, Johnson certainly did not part from VUU under circumstances which a reasonable jury could find that she was forced to resign. Her resignation letter belies any contention to the contrary.

The “good pussy” comment coupled with the Angela Sheridan evidence add absolutely nothing to Johnson’s offer of proof with respect to her burden of proving that her working conditions were so intolerable that a reasonable person would have felt forced to resign. Indeed, the record is void of evidence that Johnson even had knowledge while employed by VUU of Chief Wells’ “good pussy” comment or of his alleged conduct directed toward Angela Sheridan. In

summary, we hold that assuming ar-guendo the district court abused its discretion in excluding evidence that Chief Wells once stated that he bet a certain unidentified woman had “good pussy,” (J.A. 187), and in excluding evidence that Chief Wells called a female VUU employee named Angela Sheridan at home on several occasions, touched her, and told her that he had looked down her blouse once when standing behind her, the errors were at best harmless. IV. Next, we consider Johnson’s appeal of the district court’s dismissal of her sexual harassment claim.

The district court dismissed Johnson’s sexual harassment claim because she had not exhausted her administrative remedies. We review the district court’s dismissal de novo. See Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir.1999).

In order to assert a Title VII claim in federal court, a plaintiff must have exhausted her administrative remedies with respect to the claim. “Only those discrimination claims stated in the [admin--istrative] charge, those reasonably related to the original complaint, and those developed by reasonable investigation of the original complaint may be maintained in a subsequent Title VII lawsuit.” See Evans, 80 F.3d at 963. This exhaustion requirement is meant to preserve judicial economy by barring claims that have not been sufficiently investigated following an EEOC complaint. See McCarthy v.

Madigan, 503 U.S. 140, 144-45, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992). Johnson’s EEOC complaint, did not sufficiently allege a claim of sexual harassment. The relevant portion of the affidavit that Johnson filed with her EEOC complaint reads as follows: On several times [Chief Wells] called me at home on thing [sic] that could wait until the next day. He has touched me on the arm on several times while talking to me. He stated he hire [sic] me because he liked me. He has called my Military Reserve (Sgt.Dixon) Unit to discuss with my supervisor that he was in the process of promoting.

He has called me in his office for hours at a time, away from job[sic] to talked [sic] to me. (J.A. 353). This passage is extremely vague. It never raises even the inference that these actions were done in a manner that had the intent or effect of sexually harassing Johnson. In fact, the actions about which Johnson complains normally occur within the employer-employee relationship. Employers normally: (1) contact employees at home; (2) hire people they like; and (3) talk to their employees for extended time periods when necessary.

Furthermore, it is commonplace for an individual to touch the arm of someone with whom they are talking, for example, to emphasize a point. Accordingly, even construing Johnson’s EEOC charge liberally, she did not exhaust her administrative remedies with respect to her sexual harassment claim. Therefore, we affirm the district court’s dismissal of Johnson’s sexual harassment claim. V. Finally, we reject Johnson’s contention that the district court’s answer in response to the jury’s second question asked during deliberations amounted to reversible error.

According to Johnson, the district court’s answer to the jury’s second question stressed and highlighted evidence about which the jury did not inquire (that two woman from the Department had been selected to attend the Police Academy prior to Chief Wells’ tenure) and minimized the facts that would have accurately answered the question posed. Because Johnson failed to object to the district court’s answer, we only review Johnson’s allegation of error for plain error. See Owens-Illinois, Inc., 124 F.3d at 630-31.

Before we can exercise our discretion to correct an error not raised below in a civil case, at a minimum, the requirements of United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), must be satisfied. See Owens-Illinois, Inc., 124 F.3d at 631.

Under Olano, “a federal appellate court may exercise its discretion to correct an error not raised below ... if: (1) there is an error; (2) the error is plain; (3) the error affects substantial rights; and (4) the court determines, after examining the particulars of the case, that the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” Owens-Illinois, Inc., 124 F.3d at 630-31. Johnson has failed to satisfy even the first element of Olano.

When evaluating the adequacy of supplemental jury instructions given in response to a question asked by the jury during deliberations, “we ask whether the court’s answer was reasonably responsive to the jury’s question and whether the original and supplemental instructions as a whole allowed the jury to understand the issue presented to it.” See United States v. Stevens, 38 F.3d 167, 170 (5th Cir.1994). Here, the jury’s second question asked how many women from the Department attended the Police Academy during Chief Wells’ tenure.

The district court responded to the jury as follows: And then on the second question, I’ll answer it in two ways. You want to know how many women on the campus went to the Police Academy. If your indication from that is during Wells’ tenure, again, there is no evidence of the totality of women, if any, who went during Wells’ tenure. And again, you are stuck with that. The only evidence that I recall relating to any specific testimony about women going to the Police Academy was Mr.

Miller, who testified specifically about a Jean Robinson and a Corrinne Thomas, who were both promoted to Sergeant and both attended the Police Academy. This would have been prior to the time of Mr. Wells, Chief Wells. So that’s the best I can do for you. If it is not there, it is not there and we can’t speculate. All right? Thank you. (J.A. 336). We conclude this answer was reasonably responsive to the jury’s second question. Indeed, the district court correctly reported the state of the evidence with respect to the jury’s inquiry.

Furthermore, contrary to Johnson’s contention, it did so without improperly highlighting evidence unfavorable to Johnson. Finally, considering the district court’s answer as just quoted and the original instructions as a whole, we are convinced the jury understood the issues before it. Accordingly, Johnson has failed to demonstrate the first element of Olano — i.e., that the district court’s answer to the jury’s second question constituted error. Thus, our plain error analysis is at an end, and Johnson’s challenge to the district court’s answer to the jury’s second question asked during deliberations fails. VI.

For the reasons set forth herein, we affirm the judgments entered by the district court in favor of VUU in all respects and affirm its dis-missal of Johnson’s sexual harassment claim. AFFIRMED . Specifically, Johnson alleges that she was constructively discharged. . VUU did not have a formal training program for its officers. However, VUU had the opportunity to send two officers each year to the Police Academy.

According to VUU policy, individuals were sent to the Police Academy based on: (1) seniority; (2) employment with VUU for more than ninety days; (3) experience; (4) interest; (5) desire to attend the Police Academy; and (6) written evaluations. Attendance at the Police Academy enhanced an officer’s professional skills and had a positive impact on promotional opportunities above the rank of corporal. . In her brief, Taylor describes the amount of time she spent in Germany as one tour, which is commonly known to last one to two years. .

At trial, Taylor's immediate supervisor during 1993 and 1994, Lieutenant Henry Yancey (Lieutenant Yancey), testified that he had problems with Taylor "getting the job done.” (J.A. 213). In addition, Department Supervisor Miller testified at trial that Taylor exhibited a "lackadaisical attitude.” (J.A. 198). .Taylor admitted at trial that she did not want to be promoted to any rank above corporal. Indeed, Department Supervisor Manning testified without contradiction that Taylor informed him that she "d[id]n't want any responsibility,” with respect to her employment at VUU. (J.^V. 246). .

Lieutenant Yancey filed an incident report stating that Taylor attended the party and had been drinking. Taylor denies drinking any alcohol at the party. . We note this testimony is inadmissible hearsay under Federal Rule of Evidence 802. However, VUU neither objected to its admission at trial nor contends on appeal that its admission was erroneous. . Taylor's contention that the district court erroneously granted VUU’s motion for judgment as a matter of law with respect to her claim alleging discriminatory delay in receiving a firearm deserves only brief comment.

Taylor conceded at oral argument before the three-judge panel that the delay she allegedly suffered in receiving her firearm did not constitute a separate cognizable claim under Title VII. Furthermore, the record is void of evidence that VUU caused the delay that Taylor allegedly suffered in receiving a firearm. Accordingly, we affirm the grant of VUU’s motion for judgment as a matter of law with respect to this claim. .

Federal Rule of Civil Procedure 61 commands district courts "at every stage of the proceeding [to] disregard any error or defect in the proceeding which does not affect the substantial rights of the parlies.” Id. . We recognize that three circuits have refused to apply the Kotteakos standard in the civil context primarily on the basis that proving harmless error in the criminal context as opposed to the civil context should be more difficult given the differing burdens of proof. See United States Industries, Inc. v.

Touche Ross & Co., 854 F.2d 1223, 1252-53 (10th Cir.1988), impliedly overruled on other grounds; McIlroy v. Dittmer, 732 F.2d 98, 105 (8th Cir.1984); Haddad v. Lockheed California Corp., 720 F.2d 1454, 1459 (9th Cir.1983). As we have said, the statutory language of § 2111 implies that Congress intended uniform treatment of the harmless error statute in the civil and criminal contexts. Cf. Owens-Illinois, Inc. v. Rapid Am.

Corp. (In re Celotex), 124 F.3d 619, 630 (4th Cir.1997) (holding that requirements for obtaining relief on appeal for plain error in a criminal case under Federal Rule of Criminal Procedure 52(b), one of which is that a plain error affected an appellant's substantial rights, at a minimum, must be satisfied before we would exercise our discretion to correct an error not raised below in a civil case, because the court could not conceive of any "reason why an appellant in a civil case should bear a lesser burden for obtaining correction of a forfeited error than an appellant in a criminal case....”).

Accordingly, we reject the holdings and rationale of these circuits. . Johnson also complains that the district court erred in refusing to submit a more favorable mixed-motive instruction to the jury with respect to her claim alleging discriminatory failure to be selected to attend the Police Academy. The record shows that the district court issued the very instructions Johnson tendered with respect to her burden of proof on this claim.

Because Johnson invited any error committed by the district court in failing to give a mixed-motive instruction, she is prohibited by the invited error doctrine from obtaining any relief on appeal for any such error. See United States v. Jackson, 124 F.3d 607, 617 (4th Cir.1997) ("The invited error doctrine recognizes that a court cannot be asked by counsel to take a step in a case and later be convicted of error, because it has complied with such a request.”) (internal quotation marks omitted). .

Johnson also contends that the district court erred in excluding evidence that Chief Wells solicited a prostitute in 1995, one year after Johnson left VUU. We disagree. The district court did not abuse its discretion in excluding this evidence, because the evidence was irrelevant to any issue in the case. See Fed.R.Evid. 401. Furthermore, Johnson’s contention that we should grant her a new trial on her claim alleging discriminatory delay in receiving a firearm is completely without merit and warrants only brief discussion.

First, Johnson conceded during oral argument before the three-judge panel that the alleged delay in her receiving a firearm did not give rise to a separate cognizable claim under Title VII. Second, the uncontradicted evidence at trial showed that VUU had nothing to do with the delay Johnson experienced in receiving her firearm.