19 F.3d 1432
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.ARKWRIGHT MUTUAL INSURANCE COMPANY, Plaintiff,v.NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA.,Defendant-Appellee,Murray Sheet Metal Company, Inc.;  UBA Fire & ExplosionInvestigators, Parties in Interest-Appellants.
No. 93-3084.
United States Court of Appeals, Sixth Circuit.
Feb. 25, 1994.

Before:  GUY and SILER, Circuit Judges;  and ENGEL, Senior Circuit Judge.
PER CURIAM.

1
Murray Sheet Metal Company, Inc., appeals the district court's order that partially granted defendant National Union Fire Insurance Company's motion to compel production of certain documents held by UBA Fire & Explosion Investigators.  Murray asserts the documents in question are protected by work product immunity and attorney-client privilege.  With one exception, we affirm.

I.

2
A fire broke out at the General Electric Company ("GE") plastics facility in Washington, West Virginia, on April 4, 1990.  Murray employees were performing welding work at the GE facility when the fire started.  Murray recognized the possibility of future involvement in litigation concerning the fire and immediately began an in-house investigation of its cause.  On April 5, 1990, Murray reported the fire to its liability insurer, the Erie Insurance Company.  Erie hired UBA Fire & Explosion Investigators and Gay & Taylor, Inc., to investigate the fire.  UBA first examined the fire scene on April 6, 1990, when UBA investigator Mike Kendrick was granted access to the GE facility.  Cleanup activities that altered the fire scene began during or shortly after the time of Kendrick's April 6 visit.  On April 18, 1990, Erie hired the law firm of Steptoe & Johnson to represent Murray.  Steptoe immediately began to supervise UBA's investigation of the fire.

3
Fire investigators quickly discovered that the fire had caused extensive polychlorinated biphenyl ("PCB") contamination at the GE facility.  The cleanup of this PCB has already cost millions and is expected to cost millions more.  GE submitted a claim for the PCB cleanup to its insurer, Arkwright, which Arkwright agreed to pay.  Arkwright in turn presented a claim for the PCB cleanup to its reinsurer, National Union, which National Union refused to pay, on the grounds that the PCB contamination was a "pre-existing condition."   National Union, however, had not been notified of the fact of the fire until June 18, 1990, and thus was unable to conduct its own investigation of the PCB contamination.

4
Arkwright thereafter filed a diversity action against National Union in the United States District Court for the Southern District of New York ("the New York action").  Neither Murray nor UBA is a party to the New York action, which is still pending.  In the course of discovery in the New York action, National Union served subpoenas duces tecum on Murray, Gay & Taylor, and UBA.  These subpoenas demanded production of certain documents concerning the investigations of the PCB contamination.  Murray filed, in the three judicial districts in which these documents were kept, motions to quash these subpoenas on the basis of attorney-client privilege and work product immunity.  National Union responded by filing, in the same judicial districts, motions to compel production of these documents.

5
Murray's own documents were kept at Murray's headquarters in the Southern District of West Virginia.  The district court for that district issued an order that denied National Union's motion to compel,  Arkwright Mutual Insurance Co. v. National Union Fire Insurance Co., 771 F.Supp. 149 (S.D.W.Va.1991), but the Fourth Circuit vacated this order in  National Union Fire Insurance Co. v. Murray Sheet Metal, 967 F.2d 980 (4th Cir.1992).  On remand, National Union's motion to compel was granted in part and denied in part.   Arkwright Mut. Ins. Co. v. National Union Fire Ins. Co., 148 F.R.D. 552 (S.D.W.Va.1993).

6
The subpoenaed Gay & Taylor documents were kept at Gay & Taylor's offices in the Northern District of Alabama.  In unpublished opinions, the district court for that district granted National Union's motion to compel and the Eleventh Circuit affirmed.

7
The subpoenaed UBA documents that are the subject of this appeal were kept at UBA's offices in the Northern District of Ohio.  Murray submitted to the district court a "privileged documents log," which lists and briefly describes 38 documents, held by UBA, that Murray claims are protected by attorney-client privilege, work product immunity, or both.  The district court ordered UBA to turn over documents 21, 22, 27, and 28 to the court for an in camera inspection, because it found there is a substantial question as to whether they are protected by work product immunity.  Similarly, the district court ordered UBA to turn over documents 20, 23, 24, 36, and 38 to the court for an in camera inspection, because it found there is a substantial question as to whether they are protected by attorney-client privilege.  The district court stayed its decision with respect to documents 7 and 9-19, because the discoverability of copies of those documents was then being considered by the District Court for the Southern District of West Virginia after remand from the Fourth Circuit.1  The district court held that documents 1-6, 8, 25, 26, 29-35, and 37 were not protected by attorney-client privilege or work product immunity, and granted National Union's motion to compel as to those documents.  The district court, however, stated that UBA may redact any document portions that contain opinion work product or "that do not bear on the PCB contamination at the site but which tend to implicate Murray with regard to the origins of the fire."  (App. at 151.)   Murray filed a notice of appeal from the district court's order and filed a separate motion to stay the district court's order pending the outcome of this appeal.  The district court has not ruled on the motion to stay, and UBA, at Murray's direction, has not provided any documents to the district court for in camera inspection or to National Union.

8
In an earlier order, we decided that we have jurisdiction to hear Murray's appeal.  We accordingly turn to the merits of its appeal.

II.
A. Work Product Immunity

9
We review the district court's determinations of the discoverability of the documents for an abuse of discretion.   Toledo Edison v. GA Technologies, Inc., 847 F.2d 335, 341 (6th Cir.1988).  Murray first argues that the documents are protected by the qualified work product immunity established by Fed.R.Civ.P. 26(b)(3), which provides in relevant part:

10
(3) Trial Preparation:  Materials.  Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.

11
Murray does not dispute that the documents are "otherwise discoverable" under Rule 26(b)(1).  Hence, we must determine whether Murray proved the documents were "prepared in anticipation of litigation ... by or for another party or by or for that other party's representative."   If Murray met this burden, the documents are entitled to qualified work product immunity.  This immunity is not absolute, because National Union may discover the documents if it proved it has "substantial need" of the materials and is "unable without undue hardship to obtain the substantial equivalent of the materials by other means."   Toledo Edison, 847 F.2d at 339-40.

12
The district court held that documents 21, 22, 27, and 28 should be reviewed in camera to determine whether they are protected by the qualified work product immunity provided by Rule 26(b)(3).  The district court further held that none of the other documents were protected by Rule 26(b)(3) because they were not prepared in anticipation of litigation and because National Union could not obtain the substantial equivalent of the documents by other means.

13
The mere fact that a document is prepared when litigation is foreseeable does not mean the document was prepared in anticipation of litigation;  rather, "[t]he document must be prepared because of the prospect of litigation when the preparer faces an actual claim or a potential claim following an actual event or series of events that reasonably could result in litigation."   National Union Fire Ins., 967 F.2d at 984 (emphasis in original).  See also C. Wright & A. Miller, Federal Practice and Procedure Sec. 2024, at 198 ("the test should be whether, in light of the nature of the document and the factual situation in a particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.")

14
Several facts support Murray's contention that each of the documents was prepared because of the prospect of litigation.  First, each of the documents was prepared at a time when there was a clear and definite prospect of Murray's involvement in litigation concerning the fire.  Second, the preparation of each document was part of an effort to assess the scope of Murray's potential liability for the fire.  Third, Murray submitted the affidavit of Murray president Jack R. Murray ("Mr. Murray"), in which he stated:

15
3.  Because of our workers' proximity to the fire site and their use of a cutting torch at the fire scene, I felt on April 4, 1990 that Murray Sheet Metal Co., Inc. might be involved in future litigation over the fire.

16
4. We began an immediate investigation of the fire's cause on April 4, 1990 to prepare for possible litigation.

17
(App. at 141.)   That the documents were not prepared by Murray does not vitiate the probative force of Mr. Murray's affidavit.  Mr. Murray directed Murray's post-fire actions, and those actions started the causal chain that led to the preparation of these documents.  Thus, Mr. Murray's concerns bear a relationship to the reason the documents were prepared.  Finally, that Steptoe & Johnson was quickly retained after the fire is important evidence that the possibility of litigation was the impetus for the UBA investigation generally and for the preparation of the documents in particular.2  In summary, objective and subjective evidence shows that the documents were prepared because of the prospect of litigation.

18
The district court, however, reasoned that "if an investigation by an independent firm demonstrates anticipation of litigation, almost all of the work undertaken by UBA, here and elsewhere, would be given a privileged status."  (App. at 149.)   Without regard to whether work undertaken by UBA "elsewhere" might be protected under Rule 26(b)(3), the documents held by UBA in this case were prepared in anticipation of litigation, and the district court abused its discretion by finding to the contrary.

19
Rule 26(b)(3) also provides, however, that documents must be prepared "by or for another party or by or for that other party's representative[.]"  Cf. Fed.R.Civ.P. 26(c) (providing, "the court ... may make any order which justice requires to protect a party or person from annoyance, embarrassment," etc.)  (emphasis supplied).  The Ninth Circuit accordingly has held that Rule 26(b)(3), "on its face, limits its protection to one who is a party (or a party's representative) to the litigation in which discovery is sought."   In Re California Pub. Util.  Comm'n, 892 F.2d 778, 781 (9th Cir.1989).  We agree, because "[t]he plain meaning of legislation should be conclusive, except in the 'rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.' "   United States v. Ron Pair Enter., 489 U.S. 235, 242 (1989) (citation omitted).  The "by or for a party" language of Rule 26(b)(3) does not present such a "rare case," because neither Murray nor the Advisory Committee Notes present any reason to conclude that Congress did not mean what it so plainly said.3   Accord FTC v. Grolier, 462 U.S. 19, 25 (1983) (dictum);  C. Wright & A. Miller, Federal Practice and Procedure Sec. 2024, at 201-2 ("[T]he protection [of Rule 26(b)(3) ] extends only to documents obtained by 'another party' or his representative and in context this rather clearly means another party to the litigation in which discovery is being attempted....  [D]ocuments prepared for one who is not a party to the present suit are wholly unprotected even though the person may be a party to a closely related lawsuit in which he will be disadvantaged if he must disclose in the present suit.")4

20
Here it is undisputed that Murray, Erie, and UBA are neither parties to, nor representatives of any party to, the litigation from which the subpoena duces tecum arose, i.e. the New York action.  We therefore hold that none of the documents are protected by Rule 26(b)(3).5  Thus, contrary to the district court's order, no in camera review of documents 21, 22, 27, and 28 is necessary to determine whether those documents are protected by Rule 26(b)(3).

21
However, even if we were somehow to accord party status to Murray or UBA, our determination of the qualified work product immunity issue would be no different, because National Union proved it has "substantial need" of the documents and "is unable without undue hardship to obtain the substantial equivalent of the materials by other means."   In considering this issue, "attention is directed at alternative means of acquiring the information that are less intrusive to the lawyer's work and [at] whether or not the information might have been furnished in other ways."   Toledo Edison, 847 F.2d at 340.  Each of the documents in question contains information relating to UBA's investigation of the fire.  The parties do not dispute that National Union had no opportunity to investigate the fire scene before June 18, 1990, which was the day it was notified of the fire.  By that time the fire scene had been substantially altered by cleanup efforts.  National Union thus had no opportunity to investigate the fire scene as UBA did, and hence one cannot say that the information sought by National Union "might have been furnished in other ways."   Moreover, Murray does not contend that the Gay & Taylor or Murray in-house investigation documents, to which National Union has access, are the "substantial equivalent" of the documents held by UBA;  thus, National Union does not have alternative, less intrusive means of acquiring the information it seeks.6  We therefore agree with the district court that National Union made the showing necessary to overcome Murray's assertion of qualified work product immunity.

22
Murray relatedly argues that the documents are protected by Rule 26(b)(3) absolute work product immunity for an attorney's mental impressions or legal opinions.7  Murray maintains that the documents reflect the mental impressions of Murray's counsel, Steptoe & Johnson.  This argument fails for the same reason that Murray's qualified work product immunity argument failed.  Rule 26(b)(3) protects "mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation[,]" and Murray is not a party.

B. Attorney-Client Privilege

23
Murray further argues that documents 1-4, 8, 20, 23, 24, 27, 28, and 31-34 are protected by the attorney-client privilege.  The elements of this privilege are well-settled in this circuit:

24
(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or the legal adviser, (8) except the protection be waived.

25
United States v. Goldfarb, 328 F.2d 280, 281 (6th Cir.), cert. denied 377 U.S. 976 (1964) (quoting 8 J. Wigmore, Evidence in Trials at Common Law Sec. 2292, at 554 (McNaughton rev. 1961)).  Murray contends that these documents are protected by the attorney-client privilege because they were "prepared by UBA following meetings with counsel and Murray[,]" and thus reveal confidential communications made by Murray to Steptoe & Johnson.  Murray's brief at 10.  Alternatively, Murray contends that these documents contain confidential communications that Murray made directly to UBA while UBA was closely cooperating with Steptoe & Johnson.

26
The district court did not abuse its discretion in holding that documents 1-4, 8, 27-28, and 31-34 are not protected by the attorney-client privilege.  Murray describes these documents in the privileged document log.  Documents 1 and 2 each are one page correspondence between UBA and Erie concerning the status of the fire investigation.  Documents 3 and 4 are a UBA invoice and a UBA expense sheet, respectively.  Document 8 is a one page "transmittal letter for witness interviews," sent by Erie to UBA.  Documents 27 and 28 are summaries of work done by UBA on May 3, 1990, and May 25, 1990, respectively.  Document 31 is a two page excerpt from a welding textbook.  Documents 32 and 33 are each a "list of evidence obtained by Mike Kendrick."   Document 34 is the "chain of custody record" sent by REIC Labs to UBA.  These descriptions raise no substantial question as to whether any of these documents contain confidential communications made by Murray for the purpose of receiving legal advice.

27
The district court did hold, however, that documents 20, 23, 24, 36, and 38 should be reviewed in camera to determine if they are protected by the attorney-client privilege.  This holding was not an abuse of discretion because these documents are communications between UBA and Murray's counsel.  We note, however, that UBA is not a "client" of Murray's counsel.  To find any of these documents to be privileged, therefore, the district court must find (1) that the document reflects privileged communications made by Murray to Murray's counsel, and that the communications did not lose their privileged status because of their disclosure to UBA;  or (2) that the document reflects confidential communications made by Murray to UBA for the purpose of ultimately receiving legal advice, and that UBA was acting as the agent of Murray's counsel,  United States v. Kovel, 296 F.2d 918, 921-22 (2nd Cir.1961) (Friendly, J.)  (attorney-client privilege extends to communications made to an attorney's agent for the purpose of ultimately receiving legal advice);  or (3) that the document contains a confidential communication, made by UBA as Murray's agent, for the purpose of receiving legal advice, Wigmore, supra, Sec. 2317, at 618 (explaining that "[a] communication ... by any form of agency employed or set in motion by the client is within the privilege") (emphasis in original).

28
The order of the district court is AFFIRMED, except that documents 21, 22, 27, and 28 should be produced without any in camera review, and this matter is REMANDED for proceedings consistent with this opinion.

1
 We accordingly do not consider in this appeal whether documents 7 and 9-19 are discoverable by National Union

2
 Documents 30 and 32 were prepared on April 6, 1990.  Steptoe was not retained until April 18, 1990.  Since Steptoe's hiring so closely followed the preparation of these two documents, however, we think Steptoe's hiring is probative as to whether these two documents were prepared in anticipation of litigation
Separately, Murray also contends in its reply brief that the documents were prepared in anticipation of litigation because "numerous subcontractors sent claims to Murray contending that Murray was responsible for the occurrence at the [GE] plant" We decline to consider this contention because it was raised for the first time in Murray's reply brief  Wright v. Holbrook, 794 F.2d 1152, 1156 (6th Cir.1986).

3
 The sharp edge of Rule 26(b)(3) is blunted somewhat by Rule 26(c), which allows the court to issue a protective order if necessary to "protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense[.]"  Rule 26(c) is inapplicable here, however, for two reasons.  First, the court may only make a Rule 26(c) order "[u]pon motion by a party or by the person from whom discovery is sought," and no Rule 26(c) motion has been made here.  Second, resort to Rule 26(c) to protect nonparties whose work product is unprotected under Rule 26(b)(3) would effectively remove the "by or for a party" requirement from Rule 26(b)(3)

4
 Murray says "[t]he fact that Murray has not been joined as a party in the instant action is immaterial[,]" and cites as support  Kent Corp. v. NLRB, 530 F.2d 612 (5th Cir.), cert. denied, 429 U.S. 920 (1976), and  Duplan Corp. v. Moulinage et Retordene de Chavanoz, 509 F.2d 730 (4th Cir.1974) (en banc), cert. denied, 420 U.S. 997 (1975).  These cases are inapposite.  In Kent, the plaintiff (Kent) sought production of certain NLRB documents under the Freedom of Information Act.  NLRB had prepared the documents in anticipation of litigation with Kent, but the envisioned litigation did not happen.  NLRB nonetheless asserted work product immunity for the documents.  The court held that Rule 26(b)(3) applied, reasoning that the application of the rule "cannot properly be made to turn on whether [the envisioned] litigation actually ensued."  530 F.2d at 623.  This case, however, only broadens the scope of the Rule 26(b)(3) protection afforded to parties--by protecting documents prepared in anticipation of litigation other than the litigation in which the discovery is sought--and by no means extends Rule 26(b)(3) protection to non-parties, because NLRB was a party to the litigation in which the discovery was sought, i.e. the FOIA litigation.  Similarly, in Duplan, the plaintiff sought production of certain documents prepared by Chavanoz in connection with previous, terminated litigation.  Chavanoz argued that the documents were protected by Rule 26(b)(3).  The court agreed, holding that work product material "is immune from discovery although the litigation in which it was developed has been terminated."  509 F.2d at 732.  Here again the court merely broadened the Rule 26(b)(3) protection afforded to parties, because Chavanoz was a party to the patent litigation in which the discovery was sought

5
 We are aware that the Fourth Circuit did not mention the Rule 26(b)(3) "by or for a party" requirement in considering Murray's work product argument in  National Union Fire Ins. v. Murray Sheet Metal, 967 F.2d 980 (4th Cir.1992).  We believe this omission was an oversight

6
 In its reply brief, Murray stresses that on April 29, 1993, the District Court for the Southern District of West Virginia ordered GE to turn over to National Union certain documents relating to GE's in-house investigation of the PCB contamination resulting from the fire.  Murray contends that this order provides National Union with the substantial equivalent of the information sought from UBA.  Murray, however, failed to make the fact of this order a part of the record in this appeal, by means of a motion for reconsideration or otherwise.  National Union therefore has had no opportunity to refute the argument that Murray now makes to this court, and we decline to consider it

7
 Rule 26(b)(3) provides in relevant part:
In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.


                              In the
 United States Court of Appeals
                For the Seventh Circuit
                          ____________

No. 04-2054
DR. GRACE FARRELL,
                                              Plaintiff-Appellant,
                                 v.

BUTLER UNIVERSITY,
                                              Defendant-Appellee.
                          ____________
            Appeal from the United States District Court
     for the Southern District of Indiana, Indianapolis Division.
          No. 02-0531-C B/S—Sarah Evans Barker, Judge.
                          ____________
  ARGUED JANUARY 4, 2005—DECIDED SEPTEMBER 1, 2005
                     ____________

  Before FLAUM, Chief Judge, and EVANS and WILLIAMS,
Circuit Judges.
  WILLIAMS, Circuit Judge. Dr. Grace Farrell, a tenured
professor of English at Butler University (“Butler”), claimed
sex discrimination under Title VII of the Civil Rights Act of
1964 § 701 et seq., as amended, 42 U.S.C. § 2000(e). The
issue before us is whether the district court erred by finding
that no genuine issue of material fact existed for trial on
either Dr. Farrell’s disparate treatment or disparate impact
claims. We affirm, and find that on Dr. Farrell’s disparate
treatment claim, she did not establish that Butler’s stated
nondiscriminatory reasons for its personnel decision were
a pretext for unlawful discrimination. Furthermore, we find
as to her disparate impact claim, that she failed to establish
2                                                No. 04-2054

that Butler’s selection of recipients for the academic award
at issue here had an adverse disparate impact on women on
the basis of their gender.

                    I. BACKGROUND
  Dr. Grace Farrell was hired by Butler in 1987 as a
tenured full professor of English and served as the head of
the English Department until 1989. When she resigned
as head of the Department, she continued to earn the same
salary as she had when she was head of the English
Department, although non-administrative faculty at Butler
traditionally earned less than those faculty members in
administrative roles.
  In 1996, in response to concerns about salary equity
with respect to gender, Butler created a Faculty Compensa-
tion Task Force (“Task Force”). The primary purpose of the
Task Force was to evaluate problems with gender inequities
at Butler, with a particular focus on salary parity. At the
conclusion of its review of salary data for male and female
professors, the Task Force reported that male professors
tended to have higher mean salaries than female professors
at all rank levels. Among its many initiatives, the 1997
Task Force report recommended that Butler create and
implement the Professional Excellence Program (“PEP”) to
reward professors who had been tenured full professors for
at least five years and who demonstrated sustained excel-
lence in scholarship, teaching and service.
  Eligible Butler faculty were first able to apply for the PEP
award in 2000. Dr. Farrell applied both in the inaugural
year of the program and again in 2001. In both 2000 and
2001, Dr. Farrell was the only woman eligible in Butler’s
College of Liberal Arts and Sciences to apply, and indeed,
was the only woman to do so.
  For both years the PEP was awarded only to male
professors—Paul Valliere, Professor of Religion and William
No. 04-2054                                                 3

Neher, Professor of Speech & Communication in 2000,
Stephen Perrill from the Biology Department, George Geib
of the History Department, and Joseph Kirsch, a Professor
of Chemistry, in 2001. When Dr. Farrell failed to receive
the award for the second time in 2001, she filed a grievance
before the faculty appeals committee and eventually filed a
complaint with the Equal Employment Opportunity
Commission (“EEOC”). In her EEOC complaint, Dr. Farrell
charged Butler with gender discrimination. Dr. Farrell
ultimately filed a Title VII gender discrimination suit in the
United States District Court for the Southern District of
Indiana and now appeals the district court’s summary
judgment in favor of Butler.

                      II. ANALYSIS
  A. Standard of Review
  We review de novo a district court’s grant of summary
judgment. Ozlowski v. Henderson, 237 F.3d 837, 839 (7th
Cir. 2001) (quoting Hendricks-Robinson v. Excel Corp., 154
F.3d 685, 692 (7th Cir. 1998)). Summary judgment is
properly granted when “the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and the moving party is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). When determin-
ing whether a genuine issue of material fact exists, we
consider evidence in the light most favorable to the
nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). Material facts are
facts that “might affect the outcome of the suit” under the
applicable substantive law. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute over material facts
is genuine if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Id.
4                                               No. 04-2054

    B. Disparate Treatment
  Title VII prohibits employers from discriminating against
employees on the basis of sex or gender. 42 U.S.C. § 2000e-
2(a)(1). Claims of discrimination under Title VII for dispa-
rate treatment can be proven either through direct or
indirect evidence. O’Regan v. Arbitration Forms, Inc., 246
F.3d 975, 983 (7th Cir. 2001). Given that Dr. Farrell does
not provide any direct evidence of discrimination on the
basis of gender, she must proceed under the McDonnell
Douglas indirect burden-shifting method. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973); O’Neal v. City
of Chicago, 392 F.3d 909, 911 (7th Cir. 2004).
  Under the McDonnell Douglas scheme, the plaintiff bears
the initial burden of establishing a prima facie case. Id. at
802. To state a prima facie case of “disparate treatment”
gender discrimination under Title VII, a female plaintiff
must show that she: (1) is a member of a protected class, (2)
is performing her job satisfactorily, (3) suffered an adverse
employment action, and (4) was treated less favorably than
at least one similarly-situated male colleague. Lim v. Trus.
of Ind. Univ., 297 F.3d 575, 580 (7th Cir. 2002); Paluck v.
Gooding Rubber Co., 221 F.3d 1003, 1012 (7th Cir. 2000).
  Once the plaintiff has established a prima facie case, the
burden of production shifts to the defendant to provide a
legitimate, nondiscriminatory reason for the decision.
McDonnell Douglas, 411 U.S. at 802; Paluck, 221 F.3d at
1009. Once the defendant satisfies its burden, the burden
shifts back to the plaintiff to show that the defendant’s
explanation was pretextual. Paluck, 221 F.3d at 1009.
Pretext requires more than showing that the decision
was “mistaken, ill considered or foolish, [and] so long as
[the employer] honestly believed those reasons, pretext has
not been shown.” Jordan v. Summers, 205 F.3d 337, 343
No. 04-2054                                                 5

(7th Cir. 2000). Pretext “means a dishonest explanation, a
lie rather than an oddity or an error.” Kulumani v. Blue
Cross Blue Shield Ass’n, 224 F.3d 681, 685 (7th Cir. 2000).
   On appeal, Butler argues that we need not undergo a
McDonnell Douglas analysis because Dr. Farrell’s allega-
tions regarding the 2000 PEP award are untimely. How-
ever, this court has previously held that a plaintiff may
base her suit on conduct outside of the statute of limitations
if it would have been unreasonable to expect the plaintiff to
sue before the statute of limitations passed on the alleged
discriminatory conduct. Galloway v. Gen. Motors Serv. Parts
Operations, 78 F.3d 1164, 1167 (7th Cir. 1996). In the
present case, it would have been unreasonable for Dr.
Farrell to sue Butler in 2000 when she was first passed up
for the PEP award, since that was the first time that Butler
gave the award. Moreover, it is reasonable that Dr. Farrell
would have suspected Butler of discriminatory conduct
when she had failed to receive the award twice, and both
times the award had been given to a male professor.
  We now proceed to a McDonnell Douglas analysis. First,
we find that Dr. Farrell has established a prima facie case
with respect to her claim of disparate treatment. Dr.
Farrell, a woman, is a member of a protected class under
Title VII. The record also shows that she was performing
her job satisfactorily. However, the third element of the
prima facie test, whether Dr. Farrell’s failure to “win” the
PEP award constituted an adverse employment action,
remains contested. We have adopted a generous defini-
tion of the phrase “adverse employment action.” See
Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th
Cir. 2003); see also Haugerud v. Amery Sch. Dist., 259 F.3d
678, 691 (7th Cir. 2001). In some cases, it is apparent that
an employee has suffered an adverse employment action,
for example, “when an employee is fired, or suffers a
reduction in benefits or pay.” Smart v. Ball State Univ., 89
F.3d 437, 441 (7th Cir. 1996). However, “adverse job action
6                                                No. 04-2054

is not limited solely to loss or reduction of pay or monetary
benefits. It can encompass other forms of adversity as well.”
Collins v. State of Ill., 830 F.2d 692, 703 (7th Cir. 1987).
  Butler argues that the PEP award is not a raise, but
a bonus. We have held that the denial of a raise qualifies as
an adverse employment action, Hunt v. City of Markham,
219 F.3d 649, 654 (7th Cir. 2000), but that the denial of a
bonus does not, id.; Miller v. Am. Family Mut. Ins. Co., 203
F.3d 997, 1006 (7th Cir. 2000). In Hunt, we distinguished
bonuses from raises, noting that “bonuses generally are
sporadic, irregular, unpredictable, and wholly discretionary
on the part of the employer,” while “[r]aises are the norm
for workers who perform satisfactorily.” Hunt, 219 F.3d at
654.
  Therefore, for Dr. Farrell to state a prima facie case, it is
both necessary and sufficient that the PEP award be
deemed a raise rather than a bonus. The district court
correctly noted that the PEP award does not fit cleanly into
either Hunt category, but rather “straddles the two classifi-
cations.” As the PEP award recognizes excellence
in scholarship, teaching, and service, employees cannot
expect to receive it as a matter of course. On the other
hand, Butler announces PEP awards not in some “sporadic,
irregular, unpredictable” fashion, but rather in a regular,
annual presentation. Furthermore, the fact that a PEP
award bestows upon its recipient a permanent increase in
base salary strongly suggests that the award is a raise, not
a bonus. See Power v. Summers, 226 F.3d 815, 821 (7th Cir.
2000) (finding that the “catch-up raise” at issue in this case
was a raise and not a bonus because it had continuing
effects when it was added to the recipients’ base salary). In
addition, under the unique facts of this program, an
opportunity for abuse exists on the part of the employer if
we held that the PEP program is a bonus. By holding that
this program is indeed a bonus, we fear that we might give
Butler a license to discriminate openly in its selection of
No. 04-2054                                                  7

recipients for this program, knowing that an employee could
not successfully establish her prima facie case under any
circumstance. With all of these considerations in mind, on
the balance, we agree with the district court’s determina-
tion that the PEP award is best characterized as a raise. As
all the requirements for a prima facie case are thus satis-
fied, we hold that Dr. Farrell has met her initial burden
under McDonnell Douglas.1
  Following Dr. Farrell’s establishment of a prima facie
case, the burden of production shifts to Butler to offer a
legitimate, nondiscriminatory reason for not awarding the
PEP to Dr. Farrell. Butler offered the following reasons
for not giving the PEP award to Dr. Farrell. First, the
2000 and 2001 PEP Selection Committees determined that
Dr. Farrell’s overall records in the areas of teaching,
scholarship and service were exceeded by other professors
in the applicant pool. Second, the 2000 and 2001 PEP
Selection Committees found Dr. Farrell’s record to be
weak in the area of service to the university.
  In response, Dr. Farrell asserted that the reasons prof-
fered by Butler were pretextual and that the PEP award
was essentially meant to reward applicants with lifelong
service to Butler (thereby specifically excluding her from
consideration). Furthermore, Dr. Farrell asserted that the
existence of an “old boys’ club”—an informal exclusive
network of male faculty members—provided conclusive
evidence of discriminatory treatment. Dr. Farrell’s evidence
that an informal “old boys’ club” exists at Butler amounts
to a recommender’s acknowledgment that he and the PEP

1
   We note our struggle with the determination of whether the
PEP award was more similar to a raise or a bonus. We also find
it ironic that the PEP program, created in response to a report
noting gender inequity at Butler, has never been awarded to a
woman in the two years the award was granted.
8                                                 No. 04-2054

award candidate were lunch-time companions, one recom-
mender’s knowledge of a PEP award candidate’s home life,
and some coincidental overlap of a male faculty member’s
membership on the PEP award selection committee and his
status as an award recipient. Without more substantial
evidence, Dr. Farrell’s assertions of an “old boys’ club” fails
to rise to a level that shows pretext.
  Similarly, we find no evidence in the record supporting
Dr. Farrell’s claim that the PEP award was designed to
reward lifelong service to Butler, thereby precluding her
from serious consideration. The selection criteria for the
PEP award included consideration of scholarship, teaching
and service at Butler and were applied to all of the candi-
dates. It is difficult to identify a more legitimate, nondis-
criminatory reason for awarding the PEP to one recipient
over another than adherence to the selection criteria for the
award itself.
  Furthermore Dr. Farrell asserts that her record of
scholarship, teaching and service is “superior” to the records
of the actual winners. However, Dr. Farrell’s own opinion
that her record supercedes that of the PEP award recipients
is not enough in and of itself to establish pretext. In
Millbrook v. IBP, Inc., 280 F.3d 1169, 1180 (7th Cir. 2002),
we held that “evidence of the applicants’ competing qualifi-
cations does not constitute evidence of pretext ‘unless those
differences are so favorable to the plaintiff that there can be
no dispute among reasonable persons of impartial judgment
that the plaintiff was clearly better qualified for the
position at issue.’ ” Although Dr. Farrell’s qualifications are
indeed very impressive,2 these qualifications do not rise
above the burden that Millbrook imposes. In fact, the record
reveals a thorough and fair selection process; the selection

2
   Dr. Farrell’s 2000 PEP application listed over eighteen pub-
lished books, chapters, and essays that she authored.
No. 04-2054                                                  9

committee diligently reviewed each application and held a
meeting to discuss each applicant’s qualifications. For
example, the deposition testimony of all members of the
2000 PEP selection committee indicates that each selection
committee member read the applicants’ dossiers on his or
her own time, and then met to discuss the applicants’
dossiers, and to provide the names of their choices for the
award. Also their testimony indicates that the committee
looked for balance in the areas of teaching, service, and
scholarship, and these were the same factors utilized by the
2001 committee. The 2000 PEP selection committee chair-
person Shannon Lieb stated that in assessing candidates,
the committee asked, “Is the person actively engaged in
scholarship, are they good teachers, are they contributing
service to the university.” Def.’s Br. in Supp. of its Mot.
for Summ. J. at 6 (quoting Lieb Dep. at 19). The deposition
testimony also reflects that gender was not one of the
factors that the 2000 or 2001 PEP selection committees
considered in rendering the award. The 2001 selection
committee made the assumption that the opportunities for
Butler science faculty to publish were limited, and less than
those Butler faculty in the humanities and this assumption
was factored into their analysis.
  As nonobjective as the selection criteria for the PEP
award may have been, this circuit and others have been
reluctant to review the merits of tenure decisions and other
academic honors in the absence of clear discrimination. We
have previously recognized that scholars are in the best
position to make the highly subjective judgments related
with the review of scholarship and university service. See,
e.g., Vanasco v. National-Louis Univ., 137 F.3d 962, 968
(7th Cir. 1998); Zahorik v. Cornell Univ., 729 F.2d 85, 93
(2d Cir. 1984). In light of the foregoing, Dr. Farrell fails to
carry her burden of showing that Butler’s legitimate,
nondiscriminatory reasons were pretextual.
10                                               No. 04-2054

  C. Disparate Impact
  Under a disparate impact theory, an employer is held
liable when a facially neutral employment practice dispro-
portionately impacts members of a legally protected group.
Reidt v. County of Trempealeau, 975 F.2d 1336, 1340 (7th
Cir. 1992) (citing Dothard v. Rawlinson, 433 U.S. 321, 329
(1977)). Specifically, Title VII prohibits “employment
practices that are facially neutral in their treatment of
different groups but that in fact fall more harshly on one
group than another and cannot be justified by business
necessity.” O’Regan v. Arbitration Forms, Inc., 246 F.3d
975, 986 (7th Cir. 2001) (internal citations omitted).
  With regard to Dr. Farrell’s disparate impact claim,
Butler correctly points out that a Title VII plaintiff may not
bring a claim in her lawsuit that she did not include in her
EEOC charge. However, this Court has adopted a liberal
standard for reviewing the scope of an EEOC charge and
has held that “[a]ll claims of discrimination are cognizable
that are ‘like or reasonably related to the allegations of the
charge and growing out of such allegations.’ ” Babrocky v.
Jewel Food Co., 773 F.2d 857, 864 (7th Cir. 1985) (internal
citations omitted). Dr. Farrell’s statements, reflected in the
EEOC’s Charge of Discrimination and in Dr. Farrell’s
Charge Questionnaire, encompass a disparate impact
complaint. In Dr. Farrell’s Charge Questionnaire, she
writes, “I believe that there is an inherent or deliberate bias
against women faculty and, in this case, only two women
from the entire faculty would have met the criteria for the
award, yet many more men would have been eligible.”
  In order to advance a disparate impact claim, the plaintiff
must first establish a prima facie case by proving by a
preponderance of the evidence that the employment policy
or practice had an adverse disparate impact on women on
the basis of their gender. 42 U.S.C. § 2000(e)-2(k)(1)(A)(i);
Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 985-87
No. 04-2054                                                       11

(1988); Scherr v. Woodland Sch. Cmty. Consol. Dist. No. 50,
867 F.2d 974, 979 (7th Cir. 1988). The plaintiff must first
“isolate and identify ‘the specific employment practices that
are allegedly responsible for any observed statistical
disparities’ ”, and second demonstrate causation by offering
“statistical evidence of a kind and degree sufficient to show
that the practice in question has caused the exclusion of
applicants for jobs or promotion because of their member-
ship in protected group.” Bennett v. Roberts, 295 F.3d 687,
698 (7th Cir. 2002) (citations omitted); Vitug v. Multistate
Tax Comm’n, 88 F.3d 506, 513 (7th Cir. 1996).
  Although Dr. Farrell identifies two practices which she
argues have a disparate impact against women faculty, she
fails to establish a prima facie case of disparate impact
discrimination. Specifically, Dr. Farrell asserts that the
eligibility requirements and the candidate evaluation
methods for the PEP award have a disparate impact against
women faculty members at Butler. With respect to the
eligibility requirements, Dr. Farrell has failed to show that
she was injured by Butler’s employment practice. To have
standing to bring a disparate impact claim, a plaintiff must
show that she was personally injured by the defendant’s
alleged discriminatory practice. Melendez v. Ill. Bell Tel.
Co., 79 F.3d 661, 668 (7th Cir. 1996); see also Carpenter v.
Bd. of Regents of the Univ. of Wis. Sys., 728 F.2d 911, 915
(7th Cir. 1984) (affirming dismissal of disparate impact
claim where plaintiff failed to show that the university’s
practice of considering candidates for tenure after seven
years of service affected him personally). In this case, Dr.
Farrell met the eligibility requirements for the PEP award,
and the PEP selection committee duly considered her
candidacy.3

3
  In fact, if anything, the record reflects that the PEP selection
committee was willing to be flexible in its eligibility requirements
                                                        (continued...)
12                                                    No. 04-2054

  Dr. Farrell also argues that the methods Butler used
to evaluate the PEP applicants tended to favor male
professors over female professors. However, Dr. Farrell’s
purported evidence, that the selection committee failed to
consider her alternative and supplemental submissions
regarding her teaching activities, hardly amounts to a
disparate impact on women in general. Rather, these
allegations are specific to Dr. Farrell and in fact, specific to
her 2001 application. Given the singularity of the accusa-
tions, we find it too much of a stretch to say that the
selection committee’s procedures can be characterized as
employment practices having a disparate impact on women.

3
   (...continued)
in order to accommodate Dr. Farrell’s own personal circum-
stances. Part of the requirements for applying to the PEP award
involved the candidate listing the previous five-year’s worth of
teaching and student evaluation summaries. However, the 2000
PEP Selection Committee Chairperson Lieb gave Dr. Farrell
permission to submit a separate, uninterrupted five-year period
for consideration, in addition to the previous five years. Chairper-
son Lieb gave Dr. Farrell permission to do this because the
unmodified requirement would have forced Dr. Farrell to include
two-and-a-half years of non-teaching time, including one year of
fellowship and three semesters of sick leave.
No. 04-2054                                               13

                     CONCLUSION
  For the reasons stated above, we AFFIRM the district
court’s order granting summary judgment in favor of the
defendant, Butler University.

  FLAUM, Chief Judge, concurring in part and concurring in
the judgment. Although I agree with the result reached by
the majority and join its opinion with respect to plaintiff’s
disparate impact claim, I disagree with the Court’s resolu-
tion of plaintiff’s disparate treatment claim. I would affirm
the district court’s entry of summary judgment in favor of
Butler on the ground that the denial of the PEP award is
not an adverse employment action.
   While I agree with the Court that the PEP award has
characteristics of both a raise and a bonus, I conclude that
it much more closely resembles a bonus, and that the denial
of the award is not actionable under Title VII. See Hunt v.
City of Markham, 219 F.3d 649, 654 (7th Cir. 2000); Miller
v. Am. Family Mut. Ins. Co., 203 F.3d 997, 1006 (7th Cir.
2000). Unlike most raises, the PEP award was not the
“norm for workers who perform satisfactorily.” Hunt, 219
F.3d at 654. Rather, the PEP program was conceived as a
way to reward a few distinguished faculty members “who
had demonstrated sustained excellence in scholarship,
teaching and service.” The discretionary raise at issue in
Power v. Summers, 226 F.3d 815 (7th Cir. 2000) is quite
different from the PEP award and helps highlight the
exceptional nature of the PEP award. Although the raise in
Summers was discretionary, most faculty members received
one; indeed, the university appropriated sufficient funds to
grant each faculty member an average raise of $1,000. Id.
14                                             No. 04-2054

at 819. The PEP award, by contrast, was bestowed on only
a few professors who were selected by a faculty committee
after a rigorous application process. Neither the permanent
nature of the salary increase nor the announcement of the
PEP awards in a regular, annual presentation made the
award a “normal and expected element” of a faculty mem-
ber’s salary or entitled faculty members to count on receiv-
ing the award. Fyfe v. City of Fort Wayne, 241 F.3d 597, 602
(7th Cir. 2002).
  I would therefore affirm the grant of summary judgment
in favor of Butler on the ground that plaintiff failed to
establish a prima facie case of disparate treatment.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit

                   USCA-02-C-0072—9-1-05


                               Cite as 2014 Ark. App. 415

                ARKANSAS COURT OF APPEALS

                                     DIVISION III
                                    No. CR-13-1155

                                              Opinion Delivered   June 18, 2014

 KIM DERICK JACKSON                     APPEAL FROM THE ARKANSAS
                              APPELLANT COUNTY CIRCUIT COURT,
                                        SOUTHERN DISTRICT
                                        [NO. CR-2011-051]
 V.
                                              HONORABLE DAVID G. HENRY,
                                              JUDGE
 STATE OF ARKANSAS
                                APPELLEE AFFIRMED

                            RHONDA K. WOOD, Judge

       The State charged Kim Jackson with two counts of first-degree terroristic

threatening.1 A jury convicted him on only one count. Jackson now appeals the

conviction. However, he never made a directed-verdict motion specifying how the count

that resulted in conviction lacked sufficient evidence. His argument, therefore, is not

preserved for our review, and we affirm.

       The State alleged that Jackson had threatened two jailers, Houston Thompson and

Timothy Sneed, while he was incarcerated in the county jail. Both jailers testified at

Jackson’s jury trial that Jackson ripped out a telephone headset and smashed it against the

jail cell’s windows. In response, Thompson and Sneed entered the cell and transported

Jackson to a holding tank. On the way there, Jackson made the comments that formed the

       1
       Jackson was also charged and convicted of criminal mischief, but he has not
appealed that conviction.
                                Cite as 2014 Ark. App. 415

basis of the criminal charges; and on this point Thompson’s and Sneed’s testimonies

diverged.

       Thompson testified that Jackson said he would “hurt us, pretty much[,] and he

mentioned killing [Sneed] at one point.” The State attempted to refresh Thompson’s

recollection and provided him with the incident report he signed shortly after the quarrel.

After reading the report, Thompson clarified his testimony and said that Jackson

threatened to “kill both of us the first time he saw us.” But Sneed’s testimony was less

equivocal. He testified that Jackson told him, “[w]hen I get out, I’m going to kill you.”

       At the end of the State’s case, Jackson moved for a directed verdict on the count of

terroristic threatening involving victim Thompson. The court denied the motion and

submitted the case to the jury. The jury eventually acquitted Jackson on the count against

victim Thompson, but it convicted him on the count against victim Sneed.

       On appeal, Jackson argues that the conviction against victim Sneed is not supported

by substantial evidence. Yet that argument is not preserved. A motion for a directed

verdict must specifically advise the circuit court about how the evidence was insufficient.

Eastin v. State, 370 Ark. 10, 257 S.W.3d 58 (2007). Arguments not raised at trial will not

be addressed for the first time on appeal, and parties cannot change the grounds for an

objection on appeal, but are bound by the scope and nature of the objections and

arguments presented at trial. Tryon v. State, 371 Ark. 25, 263 S.W.3d 475 (2007). Here,

Jackson’s directed-verdict argument only addressed the charge involving victim

Thompson. It was silent regarding the charge involving victim Sneed. Because the jury

acquitted Jackson for the charge against victim Thompson, there is no sufficiency

                                             2
                               Cite as 2014 Ark. App. 415

argument preserved for our review. We cannot now, for the first time on appeal, consider

Jackson’s new argument that the evidence was insufficient for the charge involving Sneed.

       Affirmed.

       PITTMAN and HIXSON, JJ., agree.

       Digby Law Firm, by: Bobby R. Digby II, for appellant.

       Dustin McDaniel, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., and Richmond

Giles, Law Student Admitted to Practice Pursuant to Rule XV of the Rules Governing

Admission to the Bar of the Supreme Court under the supervision of Darnisa Evans

Johnson, Deputy Att’y Gen., for appellee.

                                             3


              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED

                                              IN THE DISTRICT COURT OF APPEAL

                                              OF FLORIDA

                                              SECOND DISTRICT

JORGE LEYVA,                                  )
                                              )
             Appellant,                       )
                                              )
v.                                            )      Case No. 2D17-3938
                                              )
STEPHANIE TORRES,                             )
                                              )
             Appellee.                        )
                                              )

Opinion filed January 2, 2019.

Appeal from the Circuit Court for
Hillsborough County; Richard A. Weis,
Judge.

Michael A. Giasi of Giasi Law, P.A., Tampa,
for Appellant.

No appearance for Appellee.

PER CURIAM.

             Affirmed.

LaROSE, C.J., and KELLY and BLACK, JJ., Concur.


            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.

                          STATE OF MICHIGAN

                           COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   January 17, 2019
               Plaintiff-Appellee,

v                                                                  No. 339119
                                                                   Wayne Circuit Court
ROBERTA VAN BUREN,                                                 LC No. 16-010382-01-FC

               Defendant-Appellant.

Before: MARKEY, P.J., and M. J. KELLY and SWARTZLE, JJ.

PER CURIAM.

       Defendant appeals as of right her jury trial conviction for possession of a firearm during
the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced
defendant to two years’ imprisonment as mandated under the statute. We affirm.

                                       I. BACKGROUND

        This case arises out of the shooting of George Mealy by defendant during a family
argument. Testimony admitted at trial indicated that, when Mealy charged defendant and her
daughter with a knife, defendant shot the victim. Defendant admitted that she shot and killed
Mealy, but argued that she did so in self-defense. At trial, the jury acquitted defendant of the
second-degree murder charge by reason of self-defense, but convicted defendant of the felony-
firearm charge. Defendant contends on appeal that the trial court erred by improperly instructing
the jury. Defendant also contends that her trial counsel was ineffective for failing to argue that
the defense of self-defense specifically applied to the felony-firearm charge and for failing to
request that the trial judge explicitly instruct the jury that self-defense applied to the felony-
firearm charge.

                                         II. ANALYSIS

                                     A. JURY INSTRUCTIONS
        Defendant first contends that the trial court erred when it failed to instruct the jury
specifically that the defense of self-defense applied to the felony-firearm charge. Defendant
contends that she was prejudiced by the trial judge’s instructions. We disagree.

        To preserve an appellate challenge to jury instructions given at trial, the defendant must
either have requested a jury instruction rejected by the trial court or have objected to the jury
instructions given by the trial court. People v Sabin (On Second Remand), 242 Mich App 656,
657; 620 NW2d 19 (2000). In this case, defendant did not object to the jury instructions at the
trial court level. It is unclear from the record what instructions defendant requested or whether
defendant indicated satisfaction with the instructions that were given. Therefore, this Court
reviews the issue for plain error that affects defendant’s substantial rights. People v Knapp, 244
Mich App 361, 375; 624 NW2d 227 (2001), citing People v Carines, 460 Mich 750, 766-767;
597 NW2d 130 (1999). To establish plain error, a defendant must show three things: “1) error
must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected
substantial rights.” Id. at 763, citing United States v Olano, 507 US 725, 731-734; 113 S Ct
1770; 123 L Ed 2d 508 (1993). “The third requirement generally requires a showing of
prejudice, i.e., that the error affected the outcome of the lower court proceedings.” Carines, 460
Mich at 763, citing Olano, 507 US at 734.

        As a preliminary matter, we acknowledge that the jury returned an inconsistent verdict.
The existence of this verdict by itself does not automatically mean, however, that the trial court
gave erroneous instructions. An inconsistent jury verdict is constitutional under Michigan law.
People v Garcia, 448 Mich 442, 461; 531 NW2d 683 (1995), citing People v Vaughn, 409 Mich
463; 295 NW2d 354 (1980). Furthermore, inconsistent verdicts do not necessarily undermine
the validity of a felony-firearm conviction. Garcia, 448 Mich at 462, citing People v Lewis, 415
Mich 443, 448; 330 NW2d 16 (1982). It is not necessary for a jury to convict a defendant of the
predicate felony in order to convict the defendant of felony-firearm. Lewis, 415 Mich at 453-
454. Therefore, the jury could have decided that defendant committed the underlying felony for
the purposes of the felony-firearm charge without convicting the defendant of that underlying
felony. Any inconsistency in a verdict suggests that the jury either compromised or was lenient.
Garcia, 448 Mich at 462, citing Lewis, 415 Mich at 450. In addition, “[w]henever a defendant is
charged with different crimes that have identical elements, the jury must make an independent
evaluation of each element on each charge . . . and may reach different conclusions concerning
an identical element of two different offenses.” People v Goss, 446 Mich 587, 597; 521 NW2d
312 (1994), citing Lewis, 415 Mich 443 (emphasis omitted). Therefore, the fact that the jury
rendered an inconsistent verdict does not necessitate a conclusion that defendant’s conviction of
felony-firearm was invalid.

        This Court reviews jury instructions in their entirety to determine if error requiring
reversal occurred. People v Chapo, 283 Mich App 360, 373; 770 NW2d 68 (2009).
Specifically, this Court considers the jury instructions to determine whether the trial court
“omitted an element of the offense, misinformed the jury on the law, or otherwise presented
erroneous instructions.” People v Hartuniewicz, 294 Mich App 237, 242; 816 NW2d 442
(2011). Imperfect instructions do not require reversal if the instructions fairly presented the
issues to be tried and sufficiently protected the defendant’s rights. Chapo, 283 Mich App at 373.
Furthermore, “[e]rror does not result from the omission of an instruction if the charge as a whole

                                                -2-
covers the substance of the omitted instruction.” People v Piper, 223 Mich App 642, 648; 567
NW2d 483 (1997).

        Felony-firearm is a possessory offense. People v Goree, 296 Mich App 293, 302; 819
NW2d 82 (2012). The Michigan appellate courts have found that the defense of self-defense
applies to possessory offenses. In People v Dupree, 486 Mich 693, 712; 788 NW2d 399 (2010),
the Michigan Supreme Court held that the defense of self-defense was an available defense to the
crime of being a felon in possession of a firearm (felon-in-possession). The Dupree Court
reasoned that the felon-in-possession statute was not intended to affect a defendant’s right to use
a firearm “in self-defense, but was intended only to prohibit members of the affected classes
from arming themselves with firearms or having such weapons in their custody or control in
circumstances other than those in which the right to use deadly force in self-defense exists or
reasonably appears to exists.” Id. at 706 (citation omitted). Likewise, this Court, in Goree,
followed the same rationale and held that the defense of self-defense is an available defense to a
felony-firearm charge. Goree, 296 Mich App at 304-305.

        Defendant first contends that the trial court erred when it failed to instruct the jury
specifically that the defense of self-defense applied to the felony-firearm charge. At the close of
defendant’s case, the trial court first instructed the jury regarding the elements of second-degree
murder and the lesser included offense of voluntary manslaughter. The trial court then gave the
elements of defendant’s claims of self-defense and defense of another. Specifically, the trial
court instructed the jury that, “[i]f a person acts in lawful self-defense, that person’s actions are
justified and she is not guilty of second degree murder or voluntary manslaughter,” and “[i]f a
person acts in lawful defense of another, her actions are justified and she is not guilty of second
degree murder or voluntary manslaughter.” The trial court then immediately concluded its
instructions to the jury by outlining the elements of the felony-firearm charge, and instructed the
jury that the prosecutor was required to prove beyond a reasonable doubt that defendant
committed either the crime of second-degree murder or voluntary manslaughter, for the jury to
convict defendant of felony-firearm. The trial court further informed the jury that defendant
need not be actually convicted of either of those underlying felonies to be convicted on the
felony-firearm charge.

        Defendant must show that a clear and obvious error occurred to satisfy the plain-error
standard, specifically, that the trial judge omitted an element of the offense, misinformed the jury
on the law, or otherwise presented an erroneous instruction. Hartuniewicz, 294 Mich App at
242. Although we acknowledge that the trial court could have given instructions that more
clearly and explicitly outlined the connection between the defense of self-defense and the felony-
firearm charge, we believe that the instructions given fairly presented the issues to be tried and
sufficiently protected defendant’s rights.

        First, the trial court did not omit any element of either the defense of self-defense or the
felony-firearm charge. Each instruction contained all of the applicable elements. See Goree,
296 Mich App at 304 (describing the elements of self-defense), and MCL 750.227b(1)
(describing the elements of felony-firearm). The trial court instructed the jury that the defense of
self-defense applied to the charges of both second-degree murder and voluntary manslaughter.
The trial court specifically instructed the jury both that defendant would not be guilty of second-
degree murder if she acted in self-defense and that defendant would not be guilty of felony-

                                                -3-
firearm if defendant did not commit second-degree murder. Therefore, the jury could have made
the logical inference that the defense of self-defense applied to the felony-firearm charge through
the underlying felony of second-degree murder.

         Second, the trial court did not misinform the jury regarding the applicable law. The trial
court neither instructed the jury that self-defense did not apply to the felony-firearm charge, nor
made a false statement about the law. The jury could have made the logical inference that self-
defense applied to the felony-firearm charge through the predicate felony of second-degree
murder without any interference from the trial court. Finally, no other erroneous instruction is
clear and obvious from the record. When looking at the instructions as a whole, we believe that
the trial court gave the jury instructions that fairly presented the issues to be tried and sufficiently
protected defendant’s interests. The instructions were sufficient to inform the jury that the
defense of self-defense applied to the felony-firearm charge through the predicate felony.
Therefore, we believe that the trial court did not err when it instructed the jury.

        Although defendant relies on Goree to argue that the trial court’s jury instructions were
improper, Goree is distinguishable from this case. In Goree, the trial judge specifically
instructed the jury that the defense of self-defense was not an available defense to a felony-
firearm charge. Goree, 296 Mich App at 300-301. This Court held that the trial court’s
erroneous instruction constituted error prejudicial to the defendant. Id. at 304-305. Defendant’s
argument, that the instructions given in Goree are analogous to the instructions given in this
case, is unpersuasive. Therefore, this Court’s conclusion in Goree does not apply to the facts of
this case.

        This Court will not vacate defendant’s conviction merely because of an inconsistent jury
verdict. The trial court’s instructions fairly presented the law of the case, and, therefore,
sufficiently protected defendant’s interests. It is entirely possible that the jury may have
compromised or may have demonstrated leniency when it convicted defendant of only felony-
firearm without convicting defendant of the underlying felony charge. A jury may reach
different conclusions when independently evaluating a second-degree murder charge, on the one
hand, and second-degree murder as the predicate felony element of felony-firearm, on the other.
The existence of this inconsistent verdict does not, by itself, support a conclusion that the jury
received improper instructions regarding the application of the defense of self-defense.
Therefore, defendant’s contention that the jury instructions were improper is without merit.

                        B. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant next contends that her trial counsel’s failure both to argue explicitly that the
defense of self-defense applied to the felony-firearm charge and to request that the trial court
instruct the jury as such amounted to the ineffective assistance of counsel. Defendant contends
that defense counsel’s failures, combined with the trial court’s failure to instruct the jury
properly on the felony-firearm charge, prejudiced defendant. We disagree.

        A defendant may preserve his claim of ineffective assistance of counsel by moving for
remand in this Court. See People v Ginther, 390 Mich 436, 444-445; 212 NW2d 922 (1973).
Because defendant filed a motion for remand in this Court, she preserved her claim of ineffective
assistance of counsel. Because this Court denied that motion and no Ginther hearing occurred,

                                                  -4-
however, our review is limited to errors apparent on the record. People v Jordan, 275 Mich App
659, 667; 739 NW2d 706 (2007).

        “The determination whether defendant has been deprived of the effective assistance of
counsel presents a mixed question of fact and constitutional law.” People v Lockett, 295 Mich
App 165, 186; 814 NW2d 295 (2012). This Court reviews the trial court’s constitutional
determinations de novo and its factual determinations for clear error. Id. A factual finding is
clearly erroneous if the appellate court is “left with a definite and firm conviction that the trial
court made a mistake.” People v Armstrong, 490 Mich 281, 289; 806 NW2d 676 (2011).

        To support a conclusion that defendant’s trial counsel was ineffective, a defendant must
show that “counsel’s performance fell below an objective standard of reasonableness, and that
the representation so prejudiced the defendant as to deprive him of a fair trial.” People v
Pickens, 446 Mich 298, 338; 521 NW2d 797 (1994); see also Strickland v Washington, 466 US
668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984). A defendant must also demonstrate that the
result was “fundamentally unfair or unreliable.” Lockett, 295 Mich App at 187. “Effective
assistance of counsel is presumed, and the defendant bears a heavy burden of proving
otherwise.” People v Solmonson, 261 Mich App 657, 663; 683 NW2d 761 (2004).

        A defendant must overcome a strong presumption that the assistance of his counsel was
sound trial strategy, and the defendant must show that, but for counsel’s error, the outcome of the
trial would have been different. People v Davis, 250 Mich App 357, 368-369; 649 NW2d 94
(2002). A particular trial strategy does not rise to the level of ineffective assistance of counsel
simply because it does not work. People v Matuszak, 263 Mich App 42, 61; 687 NW2d 342
(2004). Further, an appellate court cannot assess defense counsel’s competence with the benefit
of hindsight. Id. at 58.

        Defendant’s first contention regarding ineffective assistance of counsel is that her trial
counsel failed to argue that defendant’s self-defense claim applied to the felony-firearm charge.
The “failure to raise every conceivable issue does not constitute ineffective assistance of
counsel.” People v Reed, 198 Mich App 639, 646; 499 NW2d 441 (1993). Defendant is unable
to show that defense counsel’s lack of an explicit argument on this point fell below an objective
standard of reasonableness. Defense counsel requested, both in opening statement and closing
argument, that the jury acquit defendant completely by reason of self-defense. The jury could
have reasonably understood this request to apply to both the second-degree murder charge and
the felony-firearm charge. We conclude that trial counsel’s actions did not fall below an
objective standard of reasonableness. Because the jury could have made a reasonable inference
that defendant’s theory of self-defense applied to the felony-firearm charge, defendant’s first
argument regarding ineffective assistance of counsel is without merit.

        Defendant’s final contention regarding ineffective assistance of counsel is that her trial
counsel was ineffective for failing to request a jury instruction specifically indicating that self-
defense applied to the felony-firearm charge. Failing to request a particular jury instruction can
be a matter of trial strategy. People v Thorne, 322 Mich App 340, 347; 912 NW2d 560 (2017).
Additionally, the failure to request specific jury instructions does not constitute ineffective
assistance of counsel where the trial court did not otherwise err in giving those instructions.
People v Cooper, 236 Mich App 643, 659; 601 NW2d 409 (1999).

                                                -5-
        The exact jury instructions that defense counsel requested are unclear from the trial court
record. The record only reflects that defense counsel gave proposed instructions to the trial court
and did not object to the instructions that the trial court read to the jury. Although defendant
argues on appeal that counsel’s failure to request a specific instruction that self-defense applied
to felony-firearm was ineffective, defendant does not adequately explain how this failure
constitutes an objectively unreasonable performance, especially in light of the legal presumptions
against ineffective assistance of counsel. Defendant has neither provided adequate reasons why
the failure to specifically request an instruction that self-defense applied to felony-firearm was
not a sound trial strategy, nor that the outcome of the trial would have been different absent this
failure. No error is apparent on the face of the record that shows that defense counsel’s failure to
request a specific self-defense instruction was objectively unreasonable. Finally, the instructions
that the trial court gave to the jury were otherwise proper, rendering defendant’s claim for
ineffective assistance meritless. Therefore, defendant’s second contention regarding ineffective
assistance of counsel also fails.

       Affirmed.

                                                             /s/ Jane E. Markey
                                                             /s/ Michael J. Kelly
                                                             /s/ Brock A. Swartzle

                                                -6-


48 Mich. App. 723 (1973)
211 N.W.2d 106
JENNESS
v.
SHERATON-CADILLAC PROPERTIES, INC.
Docket No. 13534.
Michigan Court of Appeals.
Decided August 27, 1973.
Royal G. Targan, for plaintiffs.
Alexander, Buchanan & Seavitt (by James S. Goulding), for defendant.
Before: QUINN, P.J., and J.H. GILLIS and BASHARA, JJ.
Leave to appeal denied, 391 Mich ___.
QUINN, P.J.
This action was for recovery of damages for personal injuries sustained by Fred A. Jenness and arising from a physical assault on him while he was a guest of defendant. The wife, Dorothy Jenness, joined the action on her derivative claim for loss of consortium. Trial resulted in jury verdicts and judgments in favor of the husband for $50,000 and the wife for $5,000. Defendant appeals.
Fred A. Jenness had engaged a hospitality suite of defendant for the entertainment of business clients. He went to the hotel about 2:25 p.m. on November 2, 1967 to set up the suite, obtained the room keys, and took the elevator to the twentieth floor. As he walked from the elevator to the suite, an attractively dressed young lady asked him if he had a cigarette. Jenness told her to wait a moment, *725 and he unlocked the suite, entered it, and removed his coat and gloves. She followed him into the room uninvited; he lit a cigarette for her and she propositioned him. Jenness declined the proposition but permitted her to use the bathroom. During all of this time the door to the suite remained open.
After using the bathroom, the young lady inquired the way to the elevator, and Jenness offered to show her the way, as he was returning to the lobby. While walking to the elevator, she fell somewhat behind Jenness, struck him over the head with a hard object, described as a tire iron, and fled. Jenness was not robbed; he did not lose consciousness; he was found moments later by a security guard.
Both sides agree that defendant owed plaintiff husband a duty of ordinary care for the latter's safety. The contest is whether or not the record contains sufficient proof of the breach of that duty to create a fact question for jury determination. Defendant moved timely for directed verdict and for judgment notwithstanding the verdict, and it asserts as reversible errors on appeal the denial of these two motions. We review the facts in the light most favorable to plaintiffs, and the facts disclose:
1. The female assailant had been in defendant's lobby long enough prior to the assault for one of defendant's employees, an elevator starter, to become suspicious of her. This employee reported the presence of this female to defendant's front office manager about one and one-half hours prior to the assault. The latter told the employee to advise him if this female entered an elevator. The manager suspected the female was there "to turn a trick".
2. It was the policy of defendant to question suspicious persons in the lobby before permitting *726 them access to the upper floors. Defendant employed a security guard but he did not report for duty until 3 p.m. One of the duties of the guard was to make periodic rounds of the parade area, lobby, and of the floors; he often questioned people in the lobby who were suspicious either to him or to others. No one questioned this suspicious female.
3. This female took an elevator to the twentieth floor, and this fact was reported to the front office manager as soon as the elevator returned to the lobby. Then he and an assistant manager went to the twentieth floor to find the suspicious female, but they were unsuccessful.
On these facts, we are unable to say that all men would agree that defendant exercised ordinary care for the safety of Fred A. Jenness. On the question of defendant's negligence, a fact question for the jury was presented and it was not error to deny defendant's motion for directed verdict and judgment notwithstanding the verdict because there was no proof of negligence.
In its motions, defendant asserted that Fred A. Jenness was guilty of negligence and/or contributory negligence as a matter of law. While the actions of Jenness with respect to his future assailant were not prudent, they did not amount to negligence or contributory negligence as a matter of law. He had no prior knowledge that defendant's employees were suspicious of this female, and he testified that he believed her to be a guest or an employee coming to work. There is record basis for a jury finding that Jenness was negligent or contributorily negligent but the record does not support such a finding as a matter of law.
The latter finding obviates discussion of defendant's reliance on Johnston v Harris, 30 Mich App *727 627; 186 NW2d 752 (1971), but we point out that it was reversed in 387 Mich 569; 198 NW2d 409 (1972).
The remaining issues raised in defendant's brief are not before us. As to each, defendant states the facts, gives a general statement of position, but makes no argument and cites no authority. This is insufficient to bring issue before an appellate court, Dolby v State Highway Commissioner, 283 Mich 609, 613; 278 NW 694, 696 (1938), Delta Twp. v Eyde, 40 Mich App 485, 490; 198 NW2d 918, 921 (1972).
Affirmed with costs to plaintiffs.
All concurred.


                                                               [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT            FILED
                          ________________________ U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                 No. 09-13359                    JUNE 3, 2010
                             Non-Argument Calendar                JOHN LEY
                           ________________________                 CLERK

                      D. C. Docket No. 09-00054-CV-CDL-4

LEO FULLER,

                                                               Petitioner-Appellant,

                                       versus

WILLIAM M. TERRY,
Warden,

                                                              Respondent-Appellee.

                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Georgia
                        _________________________

                                   (June 3, 2010)

Before MARCUS, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

      Leo Fuller, a Georgia state prisoner serving a life sentence for rape and theft,

appeals pro se the dismissal of his 28 U.S.C. § 2254 petition for a writ of habeas
corpus. The district court dismissed his petition based on its finding that he did not

pay the filing fee or move to proceed in forma pauperis (“IFP”) within 20 days of a

magistrate judge’s order requiring him to do so.        We granted a certificate of

appealability (“COA”) on the issue of:

      Whether the district court erred in failing to reinstate [] Fuller’s 28
      U.S.C. § 2254 petition, originally dismissed for failure to pay the
      filing fee, after his application for leave to proceed in forma pauperis
      was received within the time allotted by the district court?

On appeal, Fuller argues that the district court erred by dismissing, and then failing

to reinstate, his § 2254 petition for failure to pay the filing fee or move to proceed

IFP, since he filed his request to proceed IFP within the time allotted, but the

prison mailroom failed to transmit it in a timely fashion. After careful review, we

vacate and remand.

      We review a district court’s dismissal of a habeas petition de novo. Melson

v. Allen, 548 F.3d 993, 996 (11th Cir. 2008), cert. denied, 130 S.Ct. 254 (2009).

“A district court’s factual findings are reviewed for clear error.” Id. at 997. We

review a district court’s sua sponte dismissal of an action for failure to comply

with its orders for abuse of discretion. See Wilson v. Sargent, 313 F.3d 1315, 1318

(11th Cir. 2002) (reviewing a district court’s sua sponte dismissal of a prisoner’s

complaint for failure to comply with its IFP order for abuse of discretion). We

must limit the scope of our review to the issues specified in the COA. Murray v.

                                          2
United States, 145 F.3d 1249, 1250-51 (11th Cir. 1998).           We construe pro se

pleadings liberally. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.

1998).

         A court may authorize the commencement of a suit without prepayment of

fees by permitting the litigant to proceed IFP. See 28 U.S.C. § 1915. In order to

qualify, a person “submits an affidavit that includes a statement of all assets such

prisoner possesses that the person is unable to pay such fees.” Id. § 1915(a)(1). A

prisoner who seeks IFP status must also include a copy of his trust fund account

statement for the prior six-month period. Id. § 1915(a)(2). “In no event shall a

prisoner be prohibited from bringing a civil action . . . for the reason that the

prisoner has no assets and no means by which to pay the initial partial filing fee.”

Id. § 1915(b)(4).

         Under the mailbox rule for prisoners, a prisoner’s motion is deemed filed on

the date it is delivered to prison officials for mailing. See Adams v. United States,

173 F.3d 1339, 1341 (11th Cir. 1999). Absent contrary evidence, we will assume

that a prisoner’s filing “was delivered to prison authorities the day he signed it.”

Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001).

         Here, the district court dismissed Fuller’s § 2254 petition because he did not

pay the $5 filing fee or move for leave to proceed IFP within 20 days of the

                                            3
magistrate’s May 21, 2009, order requiring him to do so. Although the court had

not received Fuller’s motion for IFP status at the time of its ruling on June 23,

Fuller did submit the motions within the relevant time period. Indeed, under the

prison mailbox rule, the motions for IFP status were timely, having been received

by the prison on May 27, the date Fuller signed them. Because Fuller in fact

complied with the original order requiring him to either pay the partial filing fee or

move for IFP status within 20 days, the district court erred in dismissing Fuller’s §

2254 petition, albeit through no fault of its own.               Accordingly, we vacate and

remand the case with instructions to the district court to reinstate the petition and

conduct further proceedings.1

       1
          We note that the magistrate subsequently entered an order denying the motions to
proceed IFP, finding that (1) Fuller did not establish that he could not pay the filing fee, and (2)
in any event, his petition was untimely and he failed to exhaust his state remedies. However, we
do not have jurisdiction to consider that order. Although the magistrate’s order was docketed on
July 2, the same day that the court docketed Fuller’s notice of appeal, Fuller signed his notice of
appeal on June 27, which means that, under the mailbox rule, the notice of appeal was filed on
that date, before the magistrate’s order was issued. Adams, 173 F.3d at 1341; Washington, 243
F.3d at 1301. Consequently, Fuller’s notice of appeal could not have contemplated the
magistrate’s order, since that order was not in existence at the time he filed the notice of appeal.
See Fed.R.App.P. 3(c) (requiring a notice of appeal to designate a judgment or order); Bogle v.
Orange County Bd. of County Comm’rs, 162 F.3d 653, 661 (11th Cir. 1998) (holding that we
lacked jurisdiction to review an order that had not been entered at the time the notice of appeal
was filed). Moreover, Fuller did not file an amended notice of appeal, nor did he file his
appellate brief within 30 days of the magistrate’s order, so that it could be construed as an
amended notice of appeal challenging the magistrate’s order. Fed.R.App.P. 4(a)(1)(A); Finch v.
City of Vernon, 845 F.2d 256, 259-60 (11th Cir. 1988) (treating a pro se brief filed within 30
days of a final judgment as an amended notice of appeal). Therefore, we lack jurisdiction to
consider the magistrate’s conclusions that Fuller was able to pay the partial filing fee and that the
§ 2254 petition was untimely and potentially unexhausted. See Bogle, 162 F.3d at 661.
Furthermore, and perhaps more fundamentally, we also lack jurisdiction to review the issue of
whether the magistrate had the legal authority to enter its July 2 order denying Fuller’s IFP

                                                  4
       As for the other issues Fuller raises on appeal, these are beyond the scope of

the COA, and, therefore, we cannot consider them.                    See Murray, 145 F.3d at

1250-51.

       VACATED AND REMANDED.

motions after he had signed his notice of appeal. See Mahone v. Ray, 326 F.3d 1176, 1179 (11th
Cir. 2003) (holding that once a notice of appeal is filed, it ordinarily deprives a district court of
jurisdiction over issues that are the subject of the appeal).

                                                  5


366 P.2d 928 (1961)
Fred HENRY and National Trailer Convoy, Inc., a corporation, Plaintiffs in Error,
v.
Elbert CARPENTER, Defendant in Error.
No. 39046.
Supreme Court of Oklahoma.
October 24, 1961.
Rehearing Denied December 12, 1961.
Butler, Rinehart & Morrison, Oklahoma City, for plaintiffs in error.
Earl Truesdell, Robert D. Scott, Tulsa, for defendant in error.
*929 PER CURIAM.
The action was tried to a jury and a verdict and judgment was rendered in favor of plaintiff. It is from said judgment that defendants have perfected this appeal.
The defendants will be referred to as Henry, and National, respectively for the purpose of brevity.
One of the contentions by the defendants is that the evidence was insufficient to support the verdict and judgment as against the defendant National.
The evidence reveals that defendant Henry, Norman Speir, another employee of National, and O.L. Thee, a member of the Board of Directors and Vice-President for National, departed from the office of National around 4:30 P.M. which was the time the offices of National customarily closed; that they were driven by O.L. Thee in an automobile belonging to National to Jones' Garage, where they found the plaintiff, a former employee of National recently discharged. Henry informed Thee that he was going to the particular garage to contact the plaintiff and recover from him a check issued by the National to the plaintiff for expenses earlier in the day prior to the termination of plaintiff's employment; when the parties reached the garage they all got out of the car and approached the plaintiff where he became engaged in a conversation with Henry concerning the return of the check; it was during this conversation that the altercation *930 occurred and injuries resulted to plaintiff; that after the alleged assault and battery upon the plaintiff by Henry, the plaintiff delivered the check to Henry; Thee, Henry and Speir took the plaintiff to a hospital and thereafter the check was delivered to the treasurer of National by Henry. Henry continued to remain in the employment of National after the said altercation occurred.
It is argued by defendants that the recovery of the check by Henry was entirely outside of his duties as a servant of defendant National, as developed by the evidence, which revealed that Henry was Safety Director for National and that his duties as such did not require him to obtain recovery of the check. The evidence fails to show that Henry was either specifically authorized or requested by National to recover the check.
Defendants, in support of this contention, cite Hill v. McQueen, 204 Okl. 394, 230 P.2d 483, 22 A.L.R.2d 1220; Fairmont Creamery Co. of Lawton v. Corsten et al., 175 Okl. 592, 55 P.2d 757; Crews v. Garber, 181 Okl. 373, 73 P.2d 855, and Tulsa General Drivers, etc. v. Conley, Okl., 288 P.2d 750.
We do not disagree with the rule of law enunciated in the above cases, nor do we disagree with defendants' contention that the evidence fails to show that the recovery of the check was in line with the regular duties of Henry in the course of his employment.
However, the evidence does show that Henry remained in the employment of the National after the incident complained of, and that National accepted the check from Henry after he recovered the same. This, in our opinion, constitutes an acceptance of the benefits derived from the conduct of Henry, and it is obvious from the record that Thee, Vice-President for National, had specific knowledge of the details of the wrongful acts of Henry.
Where a master with full knowledge of the wrongful acts of his servant accepted the benefits derived from the servant's conduct by retaining an article which he took from another, master thereby ratifies the acts of the servant, and becomes liable as though authority had been given. Mason et al. v. Nibel, 129 Okl. 7, 263 P. 121; Kirk v. Montana Transfer Co., 56 Mont. 292, 184 P. 987; Kastrup v. Yellow Cab & Baggage, 129 Kan. 398, 282 P. 742; 1 Mechem on Agency (2d Ed.) page 261, section 348; 57 C.J.S. Master and Servant § 558, pages 269 and 270; 39 C.J. Section 1448, page 1266; 14A C.J. Sec. 2836, page 772.
Although, in the case of Kastrup v. Yellow Cab & Baggage, supra, the Court did not hold the master liable, in the body of the opinion the Court said:
"If by use of force Harris had taken $15 in money from Kastrup's pocket, had turned the money over to Holman, and the company with full knowledge of all facts, had kept the money, it might be said the company ratified the tortious act." [129 Kan. 398, 282 P. 744.]
Therefore, we are of the opinion that National, by accepting the check, knowing through its Vice-President of the wrongful acts and conduct of agent Henry by which he acquired the check, National thereby ratified the conduct of Henry.
Defendant contends the trial court erroneously rejected evidence as to money damages which plaintiff claimed and collected for several personal injuries from accidents in prior years. The argument and authorities cited do not demonstrate any error in the ruling.
In one proposition the defendant contends that "Henry's conduct was in self-defense and the injury to Carpenter was accidental." However, this seems to be more a question of fact which we must consider settled against defendant by the jury verdict.
In another proposition the defendants contends the evidence is not sufficient to justify an instruction on exemplary damages, but the record convinces us to the contrary. *931 There is no contention of error in the instruction given on the subject.
We find no reversible error, and the judgment of the trial court is therefore affirmed.
WILLIAMS, C.J., BLACKBIRD, V.C.J., and HALLEY, JOHNSON, JACKSON and IRWIN, JJ., concur.
DAVISON and BERRY, JJ., concur in result.
The Court acknowledges the aid of the Supernumerary Judge N.S. CORN, in the preparation of this opinion. After a tentative opinion was written, the cause was assigned to a Justice of this Court. Thereafter, upon report and consideration in Conference, the foregoing opinion was adopted by the Court.


People v Fernandez (2015 NY Slip Op 01752)

People v Fernandez

2015 NY Slip Op 01752

Decided on March 3, 2015

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 3, 2015

Acosta, J.P., Andrias, Saxe, DeGrasse, Richter, JJ.

14401

[*1] The People of the State of New York, 	Dkt. 41513C/11 Respondent,
vEsmilta Fernandez, Defendant-Appellant.

Seymour W. James, Jr., The Legal Aid Society, New York (Ellen Dille of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Paul B. Hershan of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Richard Lee Price, J.), rendered May 24, 2012, convicting defendant, after a nonjury trial, of attempted petit larceny and attempted criminal possession of stolen property in the fifth degree, and sentencing her to a conditional discharge, unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the court's credibility determinations. The evidence, viewed as a whole, supports an inference that, after finding the victim's wallet, defendant removed money from the wallet before returning it to the victim.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 3, 2015
CLERK