author: THACKER, Circuit Judge:

text:
    Makia SMITH, Plaintiff-Appellant, v. BALTIMORE CITY POLICE DEPARTMENT; Anthony W. Batts, in his official capacity as Commissioner of the Baltimore City Police Department; Officer Nathan Church, in both his official and individual capacity as an officer of the Baltimore City Police Department; Officer Kenneth Campbell, in both his official and individual capacity as an officer of the Baltimore City Police Department, Defendants-Appellees, and Officer William Pilkerton, Jr., in both his official and individual capacity as an officer of the Baltimore City Police Department; Officer Nathan Ulmer, in both his official and individual capacity as an officer of the Baltimore City Police Department, Defendants.
    No. 15-1604
    United States Court of Appeals, Fourth Circuit.
    Argued: September 20, 2016
    Decided: October 27, 2016
    Amended: November 1, 2016

      ' ARGUED: Lawrence S. Greenberg, GREENBERG LAW OFFICE, Baltimore, Maryland, for Appellant. Suzanne Sangree, BALTIMORE CITY LAW DEPARTMENT, Baltimore, Maryland, for Appel-lees. ON BRIEF: Zebulan P. Snyder, GREENBERG LAW OFFICE, Baltimore, Maryland, for Appellant. George Nilson, City Solicitor of Baltimore City, William R. Phelan, Chief Solicitor, Glenn Marrow, Chief of Police Legal Affairs Division, BALTIMORE CITY LAW DEPARTMENT, Baltimore, Maryland, for Appel-lees.
    Before KEENAN, FLOYD, and THACKER, Circuit Judges.
   Reversed and remanded by published opinion. Judge THACKER wrote the opinion, in which Judge KEENAN and Judge FLOYD joined.

THACKER, Circuit Judge:

Makia Smith (“Smith” or “Appellant”) sued the Baltimore City Police Department (“BCPD”) and several individual officers pursuant to 42 U.S.C. § 1983 and Maryland law. Smith claimed two officers battered and unlawfully arrested her after they saw her filming them as they arrested a juvenile. At trial, the district court allowed defense counsel to elicit testimony that Smith had been arrested three times before. The jury ultimately returned a verdict in favor of the two officers on all counts.

We fail to see how Smith’s prior arrests were relevant to her claim for damages, which was the sole reason the district court admitted them, and any probative value of those arrests was far outweighed by prejudice to Smith. The admission of such evidence was prohibited by Federal Rule of Evidence 404(b) and was nof; harmless. Therefore, we reverse and remand for a new trial.

I.

A.

Officer Nathan Church of the BCPD testified to the following facts at the trial. On Friday, March 8, 2012, just as high school students were being released from school, Officer Church received a call for back-up to the 2800 block of Harford Road in Baltimore. He arrived to find several juveniles running through the streets and another officer, Talmadge Jackson, attempting to arrest one of them. When Officer Church arrived, the juvenile was giving Officer Jackson a struggle. Officer Church and several other officers formed a “half-horseshoe” barrier between the public and Officer Jackson to “keep other juveniles from getting close to [Officer Jackson].” S.J.A. 7.

Meanwhile, Officer Church heard tires screeching and turned to see multiple vehicles stopped on Harford Road. He testified that traffic was stopped and/or moving extremely slowly, and Smith’s car was “blocking all the traffic behind her.” S.J.A. 10-11. Smith was standing outside of her car with her phone up as if videotaping. Officer Church, over 50 feet away from Smith, yelled, “Ma’am, pull your car to the side or keep on going.” Id. at 11. Smith replied, “I’m not going to let you hurt that young boy. I ain’t moving—I ain’t moving [shit].” Id.

Officer Church “quickstep[ped]” toward Appellant and again told her to move, and she responded, “I’m not moving [shit]. [Fuck] y’all.” S.J.A. 13-14. Officer Church moved closer, told her this was a traffic stop, and asked for her license. Smith “ran back into her car” and sat with her back toward the passenger door, which Officer Church described as “not normal[]” and indicative of someone “trying to flee from the scene.” Id. at 17-19. At that point, Officer Church reached in the car and was trying to grab for her keys, but Appellant began “kicking [him], throwing fists at [him], [and] scratching [him].” Id. at 19. At one point he was “being hit with a[n] [unidentified] hard object.” Id. He placed his right arm on the vehicle and reached in the car with his left arm, “just trying to grab her and pull her out of the car.” Id. She was “flailing” and Office Church was “keeping [his] face ... out of harm’s way.” Id. at 22. Officer .Church succeeded in pulling Smith out of the ear, but he did not know what he grabbed onto, whether it was her hair or something else. He handcuffed her and began to effect an arrest. Pictures of Officer Church with visible red marks and scratch marks on his arm and neck were admitted into evidence.

Smith’s version of the facts is quite different. According to her, while she was driving with her two-year-old daughter on Harford Road, she saw Officer Jackson arresting the juvenile and became concerned when she saw the officer’s “knee pressed against his temple.” J.A. 94. She got out of her vehicle, took the keys out, and pulled her cell phone up as if videoing what the officers were doing. Officer Church yelled, “What are you doing?” and Smith replied, “I’m just trying to make sure that you guys are not hurting that little boy and trying to make sure that he’s okay.” Id. at 97.

At that point, Officer Church “started coming towards the vehicle ... [l]ike The Incredible Hulk, like Manny Pacquiao ... in an aggressive ... manner,” and once he got closer to the vehicle, he started running. J.A. 97. Smith tried to get back in the car, but at that point, she could not have driven anywhere because traffic was still stopped. Officer Church came over to the car, “snatched the phone out. of [her] hand and he kicked it and he stomped it.” Id. at 99. He then said, “You want to film things, B[itch], film this. I should knock your teeth out.” Id. Smith had one foot in the car and tried to get her other foot in the car when Officer Church “took both of his hands and dragged [her] out of the car” by her hair. Id. She did not punch, scratch, or kick Officer Church before he grabbed her hair because “that kind of thinking gets you killed,” although she admitted to “flailing” to try and get Officer Church off of her. Id. at 101-02. Then she felt three or four other people join in but could not really see them. She felt someone hit her in the back of the head and then she “just blacked out.” Id. at 102. The next thing she remembered is being slammed onto the car and then seeing her daughter crying. Another officer, Officer Campbell, pulled her left arm back and all the way up and said, “Did you have enough yet? Do you want me to break it?” Id. at 103.

As they began to arrest her, Smith asked Officer Church if she could call her mother to come get her baby. Officer Church taunted, “No. Child Protective Services will be here, to get your daughter.” J.A. 105. Smith asked a bystander if she could come get her daughter out of the car, and the bystander did so. The officers put Smith in the patrol car, and she began yelling out her mother’s phone number; another officer finally gave the bystander her mother’s phone number.

Smith was taken away in the transport vehicle to a central booking station. Because she was complaining of head and neck pain, she was taken to a nearby hospital before booking. She was eventually charged with second-degree assault of Officer Church, resisting or interfering with arrest, failing to display a license on demand, willfully disobeying a lawful order of the police, and causing a vehicle to obstruct a free vehicle passage of a roadway. On January 3,- 2013, after nearly a year of pre-trial release obligations, the charges against Smith were dropped via a nolle prosequi disposition.

B.

On May 8, 2013,' Smith filed the instant action in the District of Maryland against the BCPD; Anthony Batts, Commissioner of the BCPD; Office Church; Officer Campbell; and two other officers at the scene, William Pilkerton and Nathan Ul-mer (collectively, “Appellees”). The operative complaint, amended on October 9, 2014, alleged 13 counts: excessive force, deprivation of property without due process, and violations of the First and Fourth Amendments under 42 U.S.C. § 1983; violation of attendant rights under the state constitution; Monell claims against the city; and state law claims of conversion, battery, false arrest, false imprisonment, and intentional infliction of emotional distress. Smith claimed a minimum of $1.5 million in damages for, inter alia, “emotional trauma, humiliation, distress, bodily injury and damage to personal property.” J.A. 37-38.

The original district court judge to whom the case was assigned granted summary judgment to Officers Pilkerton and Ulmer on some of the counts and determined the case should be tried in two phases. First the jury would consider claims against Officers Church and Campbell, and then, the Monell claims against the city would proceed in a second phase if the jury determined any constitutional harm had occurred. As a result, at the trial underlying this appeal, only five claims proceeded against Officer Church—the First Amendment, Fourth Amendment, excessive force, battery, and false arrest claims—and two • claims against Officer Campbell—the excessive force and battery claims.

Notably, on March 9, 2015, Smith filed a motion in limine to exclude “all evidence or discussion of [Appellant’s] prior arrests.” J.A. 81. Smith had been arrested three times: for second degree assault in 2005, fleeing and eluding in 2006, and second degree assault in 2010. No convictions followed any of Smith’s prior arrests. The district court granted the motion on March 11, explaining, “There shall be no reference [at trial] to [Appellant’s prior arrests.” Id. at 86. On March 26, the case was reassigned to a new district court judge and proceeded to trial.

During the three-day trial in March 2015, the following relevant exchanges occurred. First,; at a bench conference on March 25, directly before Smith’s mother testified on her behalf, Appellees’ counsel said, “I expect plaintiffs counsel to elicit [testimony from Smith’s mother of] pain and suffering after the event, [but] one of the Motions in Limine is that we are not allowed to go into prior arrests.... [I]f [plaintiffs counsel] go[es] into it, I believe they opened the door.” S.J.A. 79. The court explained to Smith’s counsel, “I haven’t heard the testimony yet. But be forewarned. It makes sense to me.” Id. at 80.

Smith’s mother then testified as follows: Following the incident, ... Makia cried every day. She held onto [her daughter] and continued to apologize to her for what had happened. You know, she was, “I’m sorry. I didn’t know that was going to happen. I’m'sorry.”
She didn’t eat, and at night she would just be up crying ,. in her room crying.
Her' eyes would practically close where she just continued to cry and be depressed and sad.

Id. at 83-84. Later that day, just before Smith testified, Smith’s counsel reiterated at a bench conference that the prior arrests should not come in. The district court explained,

I have tremendous respect for [the judge who originally ruled on the motion in limine]. He has not heard the evidence. He didn’t hear the mother give overemotional testimony which was shaded with hearsay—
I am letting it in. I think it goes to whether or not she really suffered pain and suffering from this incident. So I’m letting it in for that reason.

Id. at 87. The court added, “I think [the original judge] is right, you don’t attack somebody’s credibility by an arrest and not a conviction, but I’m letting it in.” Id.

During Appellant’s testimony that same day, the following exchange took place:

[SMITH]: Every time I see a officer now, I immediately tense up. I remember once my taillight was out and I got pulled over, I was like extremely scared. Every time I see anything that goes on on TV, I Mnd of get upset because I really trusted in. the officers. I was raised to respect officers and that they were people that should be respected, and I kind of was let down.
BY [Smith’s counsel]:
Q. Had you ever had an interaction like this with an officer before?
A. No.
Q. Not just the Baltimore City Police Department, but anywhere?
A. No.
Q. What you just described, the problems you had, do you still have those . problems?
A. Most definitely.

J.A. 118 (emphasis supplied).

⅝ ⅝ ⅜ ⅜

Then, during cross-examination, the following testimony occurred:

BY [BCPD’s counsel]:
Q. Ma’am, you said you were traumatized by this event; is that correct?
A. I think anybody would be.
Q. Okay. And you also testified that you were brought up to have respect for police and now you feel a little different; is that correct?
A. I don’t feel that they shouldn’t be respected. I feel like I was let down by them.
Q. You also remember when I had an opportunity to speak to you in.my office, I asked you, I said this wasn’t your first rodeo, was it?
[Smith’s counsel]: Objection.
THE COURT: Let me tell you, it’s important—I think I know where [BCPD’s counsel] is going, and I’m overruling the objection, which is understandable.'
If the plaintiff—am I right, the rodeo means arrest?
[BCPD’s counsel]: That’s correct, Your Honor.
THE COURT: If the plaintiff was arrested and the charges were dismissed, which is, I think, what happened, -you can’t use an arrest, and it’s essential that yoü und'erstand that. You cannot use the mere fact of an arrest to judge the plaintiffs credibility. That is absolutely essential.
Rightly or wrongly, having heard the testimony, I think that since the plaintiff says this has had such an effect on her that the fact of the arrest may be relevant to the amount of damages, if any, that she suffered. So that I’m letting it in.
But please understand that you cannot consider an arrest to judge the plaintiffs credibility. That’s absolutely against the rules, and it’s a good rule, because they haven’t—you know, there hasn’t been a trial. And there’s an objection to this, and that’s understandable.
[Smith’s counsel]: And in addition to the prior ruling from [the original judge] that you—
THE COURT: [He] made his ruling, but [he] hadn’t heard the testimony.
[Smith’s counsel]: Okay.
BY [BCPD’s counsel]:
Q. When you were in my office, I asked you, I said this wasn’t your first rodeo, was it?
[SMITH]: Yes, I have been arrested before.
Q. Right. And, matter of fact, when I asked you how many times, you said, “Two. No, I think three”; correct?
A. I think so.

J.A. 133-35.

⅝ ⅜ ⅝ ⅜

Appellees did not ask any further questions about the prior arrests. But on redirect examination, Smith’s counsel asked about the nature of the prior arrests. As to the first (second degree assault), Smith explained the father of her child sent his girlfriend “to beat [her] up,” and she merely defended herself. J.A. 136. The second (fleeing and eluding) occurred when an officer tried to her pull her over, and she kept driving to pull into a lit area, rather than a dark area. The officer arrested her, but when she explained herself, he apologized. Finally, as to the third arrest (second degree assault), the father of her child showed up in the middle of the night and dragged her baby out of the house in her car seat, threw her out into the grass, and “tousl[ed]” Appellant around, and again, Appellant defended herself. Id.

The jury returned a verdict in favor of Officers Church and Campbell on all counts on March 30, 2015. Appellant moved for a new trial, raising an unrelated issue, but her request was denied. She then filed this appeal, raising only one issue: whether the district court committed reversible error in admitting evidence of Appellant’s prior arrests.

II.

We review the district court’s ev-identiary decisions for abuse of discretion. See United States v. Lighty, 616 F.3d 321, 351 (4th Cir. 2010). An abuse of discretion occurs only when the district court acts “arbitrarily or irrationally” in admitting evidence. United States v. Benkahla, 530 F.3d 300, 309 (4th Cir. 2008) (internal quotation marks omitted). Such evidentiary rulings are, however, “subject ... to harmless error review.” United States v. Johnson, 587 F.3d 625, 637 (4th Cir. 2009). “Where error is founded on a violation of Rule 404(b), the test for harmlessness is whether we can say with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.” United States v. Madden, 38 F.3d 747, 753 (4th Cir. 1994) (internal quotation marks omitted).

III.

This appeal turns on whether the fact that Smith was arrested three times before—with no evidence that her prior arrests involved a struggle of any kind with police and with no convictions stemming from the arrests—makes it more or less probable that she suffered emotional damages in the case at hand, where the police allegedly cursed at her, beat her, and threatened to turn her child over to Child Protective Services. We think not, and indeed, the admission of that fact could easily have tipped the scales in what the district court itself called “a tough case” that boiled down to a classic he-said, she-said dispute. J.A. 158.

A.

Federal Rule of Evidence 404(b) prohibits the admission of “[ejvidence of a crime, wrong, or other act ... to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” Fed. R. Evid. 404(b)(1). Prior act evidence is admissible, however, to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2).

We utilize a four-part test to assess admissibility of prior-act evidence: “(1) the prior-act evidence must be relevant to an issue other than character, such as intent; (2) it must be necessary to prove an element of the [claim]; (3) it must be reliable; and (4) its probative value must not be substantially outweighed by its prejudicial nature.” United States v. Garcia-Lagunas, 835 F.3d 479, 493, 2016 WL 4547206, at *9 (4th Cir. Sept. 1, 2016) (alteration and internal quotation marks omitted). In her opening brief, Smith only questions the relevance and prejudicial nature of the pri- or arrests, so we limit our discussion to those two issues.

1.

Relevance

It is well established that “a witness, whether a party or not, may not be asked questions as to irrelevant matters on cross-examination for the purpose of ... discrediting [her].” United States v. Chase, 372 F.2d 453, 463 (4th Cir. 1967). Generally; “[r]elevant evidence is admissible” unless otherwise prohibited by the Constitution, the Rules of Evidence^ statutes, or other rules prescribed by the Supreme Court. Fed. R. Evid. 402. Evidence is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence,” and “the fact is of consequence in determining the action.” Fed. R. Evid. 401(a), (b).

Under Rule 404(b), “admission of evidence of other bad acts to assist the jury in measuring the extent of damages is a legitimate, non-character-based use of such evidence.” Udemba v. Nicoli, 237 F.3d 8, 15 (1st Cir. 2001) (citing Lewis v. Dist. of Columbia, 793 F.2d 361, 363 (D.C. Cir. 1986)) (emphasis supplied). But that evidence still must have “probative value on the question of ... damages” in the case at hand. Nelson v. City of Chicago, 810 F.3d 1061, 1069 (7th Cir. 2016) (internal quotation marks omitted).

In Nelson, the plaintiff, Larry Nelson, sued officers and the City of Chicago pursuant to § 1983 when Chicago police officers pulled him over, pointed a gun at him, threatened to kill him, and searched his car for no apparent reason. See Nelson, 810 F.3d at 1064. At trial, the district court allowed defense counsel to introduce Nelson’s arrest record, which included nine arrests between 1983 and 1999 and one in 2005. See id. at 1066.

Nelson moved in limine to exclude the evidence of prior arrests, but then he testified about his emotional distress during the traffic stop, explaining, “I was terrified, humiliated ... I feared for my life.” Nelson, 810 F.3d at 1067. The court then granted defense counsel’s request to introduce the prior arrest evidence, but explained it could only come in for impeachment purposes and “on the theory that some of [Nelson’s] fear of the police may have been attributable to his earlier arrests.” Id. at 1067-68. The district court gave no limiting instruction, although it prohibited mention of the evidence in closing argument. The jury returned a verdict in favor of the police. See id. at 1065-66.

The. Seventh Circuit found reversible error. First, it concluded the evidence was not relevant. The theories that his arrest history “mitigated his fear during the traffic stop” or “augmented it,” were “tenuous at best,” and the arrest history had “miniscule probative value on the question of his damages.” Nelson, 810 F.3d at 1068-69 (emphases in original) (internal quotation marks omitted). Indeed, “the arrests were distant in time,” and “Nelson carefully limited his claimed emotional injury to the fear he felt during the 30 minutes of the traffic stop itself.” Id. at 1069; see also id. (“Although [Nelson] said he remained angry about the incident despite the passage of time, he never claimed that the experience left him fearful of the police more generally.”). The court also warned that allowing such evidence in § 1983 cases “would seemingly permit any civil-rights plaintiffs criminal history to .come in on .the issue of emotional-distress damages, no- matter how tenuous a connection the evidence has to the issue of damages or how central a role emotional distress plays during the plaintiffs case.” Id. (quoting Barber v. City of Chicago, 725 F.3d 702, 715 (7th Cir. 2013)).

The court then decided the error was not harmless: “The jury heard that Nelson had been arrested numerous times, making him appear particularly unsympathetic. The trial turned entirely on his credibility, so the harm caused by improperly admitting this damaging evidence would naturally be substantial.” Nelson, 810 F.3d at 1070. And even though defense counsel only asked one question and elicited only the feet of the prior arrests, the court explained, “[T]hat single question was especially damning, referring to ‘numerous’ prior arrests.” Id.

.■Some decisions involving prior arrests allegedly bearing on damages, however, have gone the other way. See, e.g., Udemba, 237 F.3d at 15 (in § 1983 appeal, affirming district court’s finding that evidence of subsequent arrest was relevant to a contested issue in the case—the extent of damages attributable to emotional distress); Karnes v. Skrutski, 62 F.3d 485, 500 (3d Cir. 1995) (finding no abuse of discretion in admitting evidence of prior arrest in § 1983 action where plaintiff contended that the underlying incident diminished his respect for police and, thus, caused him damage), abrogated on other grounds as recognized in Curley v. Klem, 499 F.3d 199 (3d Cir. 2007); Montoya v. Sheldon, 898 F.Supp.2d 1259, 1273 (D.N.M. 2012) (allowing evidence of prior arrests in § 1983 action, explaining they “are relevant to the issue of [plaintiffs] emotional distress damages, because the amount of times and the manner in which [plaintiff] had been arrested ... makes more or less probable the Defendants’ arrest emotionally distressed him”).

Considering Smith’s argument “with meticulous regard to the facts of [her] case,” United States v. Hernandez, 975 F.2d 1035, 1040 (4th Cir. 1992) (internal quotation marks omitted), we find this case on par with Nelson, and we find the reasoning of Nelson to be sound. Like Nelson, Smith did not claim damages because she is now more fearful of police generally; in fact, her testimony at trial was that she felt “let down by them” but still thought they deserved respect. J.A. 133. Rather, in her Amended Complaint she claims damages for the allegedly unlawful arrest and use of excessive force that occurred on March 8, 2012, and emotional' damages stemming'from that encounter. See id. at 37 (claiming damages for “emotional trauma, humiliation, distress ... suffered from the acts of the Defendants” (emphasis supplied)).

Appellees’ relevance argument also falls apart given the backdrop of Smith’s testimony. First of all, on direct examination, Smith clearly testified she had “[n]ever had an interaction like this with an officer before.” J.A. 118 (emphasis supplied). Rather than try and disprove this testimony, defense counsel pointedly asked Smith if this was her “first rodeo,” J.A. 133, a question that Baltimore City Law Department’s own appellate counsel admitted was “a very poor way of asking her whether she had been arrested before,” Oral Argument at 19:01, Smith v. Baltimore City Police Dep’t, No. 15-1604 (4th Cir. Sept. 20, 2016), http://www.ca4.uscourts.gov/oral-argument/listen-to-oral-arguments. This is a clear indication that the evidence was being used to show character and propensity, rather than to demonstrate the extent of her damages.

Perhaps most damning to Appellees’ position, however, is not what defense counsel said, but what he failed to say. Appel-lees made no record of—and the district court did not inquire—whether these prior arrests were of a similar nature to the case at hand. “There is, after all, a material difference between being arrested and being subjected to excessive force in the course of that arrest.” Sanchez v. City of Chicago, 700 F.3d 919, 931 (7th Cir. 2012). And by eliciting the mere fact of Smith’s three prior arrests with no further details, the jurors were permitted to fill in the gaps themselves and let their imaginations run wild.

In sum, the district court did not determine whether the three prior arrests involved conduct remotely similar to the arrest in this case; Smith is claiming damages specifically for the alleged conduct of the March 8, 2012 arrest; and defense counsel’s questioning reveals the evidence was admitted for purposes of credibility, propensity, and character of Smith. Therefore, based on this record, the evidence was irrelevant to damages, and the district court abused its discretion in admitting it.

2.

Prejudice

Even if the prior arrests possessed a trace of probative value, we find the risk of prejudice from the mention of the prior arrests to be “enormous.” Nelson, 810 F.3d at 1069. For one thing, it is common sense that “evidence of prior arrests ... generally impugns character.” Id And “[fit’s doubtful that the jury drew the distinction between an arrest and a legal finding of wrongdoing[.]” Id.

Of course, prejudice may be mitigated by “carefully framed” limiting instructions regarding “proper consideration of [the] evidence.” United States v. Lespier, 725 F.3d 437, 448 (4th Cir. 2013); see also Sanchez, 700 F.3d at 932 (assuming error occurred with admission of statement that § 1983 plaintiff had been arrested “several” times in the past, finding no harm where court “gave a limiting instruction admonishing the jury that it was to consider this evidence only insofar as it shed light on the extent of any emotional harm he experienced”). But assuming limiting instructions in this type of case are even effective, here, we cannot say the instructions were carefully framed or sufficiently explained how the jury should have properly considered the evidence. Rather, they afforded “meager protection” at best. United States v. Johnson, 617 F.3d 286, 297 (4th Cir. 2010).

The court gave the following instructions to the jury during Smith’s testimony:

If the plaintiff was arrested and the charges were dismissed, which is, I think, what happened, you can’t use an arrest, and it’s essential' that you understand that. You cannot úse the mere fact of an arrest to judge the plaintiffs credibility. That is absolutely essential.
Rightly or wrongly, having heard the testimony, I think that since the plaintiff says this has had such an effect on her that the fact of the arrest may be relevant to the amount of,damages, if any, that she suffered. So that I’m letting it in.
But please understand that you cannot consider an arrest to judge the plaintiffs credibility. That’s absolutely against the rules, and it’s a good rule, because they haven’t—you know, there hasn’t been a trial.

J.A. 134-35. This was the universe of the instruction, since the district court did not give a limiting instruction in the jury charge before deliberations. The court mentioned only credibility and nothing about “character,” which is also forbidden use of the evidence and is listed in the text of Rule 404(b) itself, or “propensity to break the law,” which is prohibited under our case law, and which became a central issue in this trial. United States v. Young, 248 F.3d 260, 271 (4th Cir. 2001). And while the court instructed the jury to consider the testimony on the issue of damages, it did not confine the jury’s consideration to that issue. Thus, prejudice in this case far outweighed any perceived probative value of the three arrests.

B.

Having found error, we must now consider whether it is harmless, i.e., “whether we can say with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.” United States v. Madden, 38 F.3d 747, 753 (4th Cir. 1994) (internal quotation marks omitted).

We cannot say with fair assurance the judgment was not substantially swayed by the admission of Smith’s prior arrests. Smith’s and Officer Church’s accounts of their interaction were extremely different. The main issues in the case—who assaulted whom, whether probable cause to arrest existed, whether the force used by Officer Church was justified—hinged on which witness the jury believed, making the trial a classic he-said, she-said dispute. The district court itself admitted this was a “tough case.” J.A. 158. Thus, the jury’s view of Smith’s credibility and character was necessarily central to its verdict.

Once the jury heard the evidence, it is reasonable that they assumed “where there’s smoke, there’s fire.” Nelson, 810 F.3d at 1069. And again, the limiting instructions in this case failed to mitigate the prejudice naturally flowing from this questioning. Cf. Barber, 725 F.3d at 717 (“At some point judicial presumptions must give way to commonsense, and the formulaic recitation of a pro forma limiting instruction may not suffice to cure an error as it may fail to instruct the jury meaningfully as to what it legitimately may do with the evidence.”). Therefore, the error in this ease was not harmless and requires reversal.

IV.

For the foregoing reasons, we reverse the judgment below and remand for a new trial.

REVERSED AND REMANDED

      . Citations to the "S.J.A.” refer to the Supplemental Joint Appendix filed by the parties in this appeal.

      . Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.

      . Monell v. Dep’t of Soc. Servs,, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

      . The motion also mentioned a fourth arrest, which was not presented to the jury.

      . The district court later entered judgment in favor of BCPD and Batts pursuant to City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986) (holding that where no underlying constitutional violation occurred, the city cannot be liable under Monell). See Order, Smith v. Baltimore City Police Dep't, No. 1:13-cv-1352 (D. Md. June 17, 2015), ECF No. 165.

      . Cf. United States v. Jones, 455 F,3d 800, 811 (7th Cir. 2006) (Easterbrook, J., concurring) (“Telling juries not to infer from the defendant's criminal record that someone who violated the law once is likely to do so again is like telling jurors to ignore the pink rhinoceros that just, sauntered into the courtroom,”).

      . Appellees claim Smith did not properly object to the limiting instruction. However, directly after the district court gave the instructions above, Smith's counsel noted his “continuing objection,” to which the district court responded, "Oh, you have an absolutely continuing objection.” J.A. 134. We find this sufficient to preserve the argument for our review.


source: Caselaw Access Project

author: HAYNES, Circuit Judge:

license: Public Domain

text:
    AIG SPECIALTY INSURANCE COMPANY, formerly known as Chartis Specialty Insurance Company, Plaintiff-Appellee, v. TESORO CORPORATION, Defendant-Appellant. Tesoro Corporation, a Delaware Corporation; Tesoro Refining and Marketing Company, L.L.C., Plaintiffs-Appellants, v. AIG Specialty Insurance Company, formerly known as Chartis Specialty Insurance Company, Defendant-Appellee.
    No. 15-50953
    United States Court of Appeals, Fifth Circuit.
    Filed October 17, 2016

      Stacy R. Obenhaus, Scott Louis Davis, Jason Bryan Heep, Elliot Strader, David Howard Timmins, Gardere Wynne Sewell, L.L.P., Dallas, TX, for AIG Specialty Insurance Company.
    Allyson Newton Ho, John Clay Sullivan, Morgan, Lewis & Bockius, L.L.P., Dallas, TX, David Sean Cox, Esq., Morgan, Lewis & Bockius, L.L.P., Los Angeles, CA, Joshua Lee Fuchs, Jones Day, Houston, TX, Judd Edward Stone, II, Morgan, Lewis & Bockius, L.L.P., Washington, DC, for Te-soro Corporation and Tesoro Refining and Marketing Company, L.L.C.
    Before SMITH, HAYNES, and COSTA, Circuit Judges.
   HAYNES, Circuit Judge:

Tesoro Corporation and Tesoro Refining & Marketing Company, LLC (“Tesoro Refining”) (collectively, the “Tesoro Parties”) appeal the summary judgment granted in favor of AIG Specialty Insurance Company, formerly known as Chartis Specialty Insurance Company (“Chartis”). We AFFIRM.

I. Facts

The Golden Eagle Refinery in Martinez, California, has been subject to a prolonged series of federal and state environmental remediation orders. In 2000, Tosco Corporation (“Tosco”) sold the refinery to Ultra-mar Diamond Shamrock (“Ultramar”) and provided indemnity for $50 million of remediation costs to cover preexisting environmental issues. Ultramar, based in Texas, also purchased $100 million excess coverage from Chartis (the “Chartis poli-ey”) via an insurance broker, Marsh. Ultimately, Ultramar began negotiating with Tesoro Corporation and agreed to sell the refinery to Tesoro Refining. The purchase and sale agreement specified that Ultra-mar was to assign the Tosco indemnities, and to either secure an endorsement to the Chartis policy adding the new company as an additional insured oh assign the Chartis policy directly.

This litigation concerns the transfer of the Chartis policy from Ultramar. Chartis did provide the transfer endorsement—but the endorsement named Tesoro Corporation as the new named insured. By contrast, Tesoro Refining, its subsidiary,,was the actual purchaser of the refinery, Char-tis contends that it acted upon instructions that listed only Tesoro Corporation as the named insured. Indeed, Tesoro Corporation has a corporate practice of naming the parent on insurance policies but takes the position in this litigation that both companies should have been insured. The Tesoro Parties further maintain that all of the parties to the deal shared a common understanding and intention that the policy should be written such that it covered Tesoro Refining.

Soon after the refinery transaction took place, Tesoro Refining sued Tosco for fraud contending that Tosco had concealed the severity of the environmental liabilities present at the refinery. Tosco argued that Tesoro Refining’s decision to secure extensive excess insurance coverage showed that it had not detrimentally relied on Tosco’s purportedly,inaccurate representations regarding the environmental issues at the refinery. In response, Tesoro Refining argued that its insurance coverage could not defeat its fraud claim, and that, since Tosco had not paid the premium on the policies and was not itself a named insured, there was no basis for it to even raise the existence of the coverage.

The Tosco/Tesoro Refining dispute stretched from 2003 until 2007. As Tosco and Tesoro Refining drew near a settlement, Tesoro sent a letter to apprise Char-tis of the progress of the litigation. Chartis responded with a reservation of rights letter that acknowledged the matter as a potential claim. That letter identified “Te-soro Petroleum Corporation” (Tesoro Corporation’s prior name) as the named insured and stated that coverage would be provided only if the insured were legally obliged to pay for cleanup costs.

Tesoro Refining settled the Tosco litigation in March 2007, receiving $58.5 million from Tosco’s successor, ConocoPhillips. In October 2009, Chartis received a formal demand for coverage in a letter written on “Tesoro Corporation” letterhead and identifying “Tesoro Petroleum Corporation” as the named insured. This letter indicated that Tesoro Refining was the buyer of the refinery and the party that owed cleanup liabilities. The Tesoro letter explained the conclusion of the Tosco litigation, outlined various expenditures on environmental cleanup, and demanded that Chartis pay under the policy. Chartis acknowledged the demand and indicated that it would investigate the claims. That investigation proceeded slowly, and the parties eventually filed suit. The Tesoro Parties initially sued in California, with Chartis filing a declaratory judgment action in Texas. Both cases were later consolidated into one action in federal district court in San Antonio.

It was in this litigation that the matter of which entity was insured under the Chartis policy came to the fore, with Char-tis contending that it owed coverage only to Tesoro Corporation. In 2012, the Tesoro Parties sought reformation and also sued for breach of contract on a “third-party beneficiary” claim under California law (assuming arguendo that Tesoro Refining was not a named or additional insured under the policy). The district court applied Texas law to the third-party beneficiary claim and concluded that it failed; alternatively, it concluded also that California law would not offer relief. In addition, the court concluded that the reformation claim was barred by the Texas four-year statute of limitations (and, in the alternative, the California three-year statute) because, at a minimum, the Tesoro Parties should have discovered the alleged mistake during the mid-2000’s Teso-ro/Tosco litigation. Thus, the action filed in 2012 was barred. Ultimately, the district court entered judgment in Chartis’s favor, and the Tesoro Parties timely appealed.

II. Discussion

A summary judgment is reviewed de novo, applying the same standard on appeal that the district court applied. Rogers v. Bromac Title Servs., L.L.C., 755 F.3d 347, 350 (5th Cir. 2014). Summary judgment is proper “if the mov-ant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Crv. P. 56(a). “A genuine dispute as to a material fact exists ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ ” Rogers, 755 F.3d at 350 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The court is to view the evidence and reasonable inferences drawn from the evidence in the light most favorable to the nonmoving party, here the Tesoro Parties. Hernandez v. Velasquez, 522 F.3d 556, 560 (5th Cir. 2008). We can affirm a summary judgment for any reason supported by the record and presented to the district court, even if the district court did not rely on that reason. See id.'

A. Third-Party Beneficiary

The parties agree that Texas law does not recognize a third-party beneficiary claim that would permit Tesoro Refining to recover here. The Tesoro Parties argue that California law governs and that it provides relief for Tesoro Refining. Because the Tesoro Parties concede that they would not prevail under Texas law and therefore do not appeal the district court’s resolution of that portion of the issue, we analyze only California law to see whether it sustains the claimed relief the Tesoro Parties seek.

California, like most states, holds that a contract should be interpreted so as to “give effect to the mutual intention of the parties as it existed at the time of contracting.... ” Cal. Civ. Code § 1636 (West). Further, “[w]hen a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible....” Cal. Civ. Code § 1639 (West); see also, e.g., Wolf v. Walt Disney Pictures & Television, 162 Cal. App.4th 1107, 76 Cal.Rptr.3d 585, 601 (2008) (“Ordinarily, the objective intent of the contracting parties is a legal question determined solely by reference to the contract’s terms.”). California has a permissive approach to the use of extrinsic evidence in disputes- over meaning. See Spinks v. Equity Residential Briarwood Apartments, 171 Cal.App.4th 1004, 90 Cal.Rptr.3d 453, 469 (2009). The Tesoro Parties thus argue that the district court should have followed the intent of the parties—(purportedly) that the owner of the refinery, whichever entity it was, was covered under the policy—rattier than the actual words of the policy.

The district court disagreed, citing Am. Home Ins. Co. v. Travelers Indem. Co., 122 Cal.App.3d 951, 175 Cal.Rptr. 826 (1981). American Home Insurance Company (“American Home”) wrote a property insurance policy for Toyota Motor Company, Toyota Motor Sales (“Sales”), and Toyota Motor Distributors (“Distributors”) (the latter two were wholly-owned subsidiaries of the parent auto manufacturer). Id. at 827. Travelers insured Davis, a “California corporation which maintained and prepared Toyota automobiles for distribu-tion_” Id. at 828. Davis and Distributors contracted to have Davis process certain automobiles on Distributors’ behalf. Id. Under the contract, Davis was supposed to. maintain liability coverage for Distributors. Id. However, the policy it procured contained a critical error: the insured premises were described as those leased “to the named insured.” Id. But, while Davis occupied the premises, Sales was the actual lessee. Id.

A fire on the premises resulted in substantial litigation targeted at Sales. Id. at 829. Travelers refused to defend Sales, because Sales was not the named insured on the policy. Id. American Home, Sales’s general insurer, brought suit as Sales’s subrogee against Travelers. Id. The court determined that in order to have standing to sue, American Home had to demonstrate that Sales was an intended third-party beneficiary of the policy. Id. at 831. The court held that Sales was not an intended third-party beneficiary, because nothing in the contract evinced any express intent to benefit third parties. Id. at 834-35. Under California law, the court said, “a policy of indemnity insurance will not inure to. a third party’s benefit unless the contract makes such an obligation express, and any doubt should be construed against such intent.” Id. at 834, There was nothing in the contract’s language to show that Sales was intended to benefit from the contract, so Sales could not pursue reformation. Id. at 835.

The district court stated that the instant - case was materially indistinguishable, and thus cited American Home Insurance for the proposition that, because the instant policy’s language .does not evince any intent to benefit a third party (Tesoro Refining or otherwise), Tesoro Refining cannot assert third-party beneficiary status. We agree and affirm the district court’s summary judgment on the breach of contract claim premised upon a third-party beneficiary argument.

B. Reformation

' The district court granted summary judgment on the Tesoro Parties’ reformation claim on limitations. The parties agree that Texas law governs this issue. Texas applies a four-year statute of limitations to reformation claims. Harbor Ins. Co. v. Urban Const. Co., 990 F.2d 195, 200 (5th Cir. 1993); Tex. Civ. Prac. & Rem. Code § 16.051. The Tesoro Parties argue that limitations did not begin to run until they discovered the alleged mistake in the policy.

It has long been the law in Texas that receipt of a policy containing a mistake does not bar a later claim for reformation if the insured offers proof “that when he received it he put it away without examination, or that he relied upon the knowledge of the insurer and supposed he had correctly drawn it.’ ” Fireman’s Fund Indem. Co. v. Boyle Gen. Tire Co., 392 S.W.2d 352, 355 (Tex. 1965) (quoting Del. Ins. Co. v. Hill, 127 S.W. 283, 286-87 (Tex.Civ. App.—El Paso 1910, writ denied); Colonial Sav. Ass’n v. Taylor, 544 S.W.2d 116, 119 (Tex. 1976)). Taylor and Boyle both address the merits of an insured’s claim for reformation and hold that receipt of a policy without protest is not an absolute bar to a reformation claim. 544 S.W.2d at 118-19; 392 S.W.2d at 354-55. In other words, an insured is not deemed to have accepted the terms of a policy simply by receiving it without argument.

This merits inquiry is distinct from the statute of limitations inquiry: whether the four year statute of limitations runs from the time the injury occurred—according to the well-settled “legal injury rule,” Murphy v. Campbell, 964 S.W.2d 265, 270 (Tex. 1997)—or whether, through application of the discovery rule, it runs from the date “the plaintiff knows or, by exercising reasonable diligence, should know of the facts giving rise to the , claim.” Priester v. JP Morgan Chase Bank, N.A., 708 F.3d 667, 675 (5th Cir. 2013) (quoting Wagner & Brown, Ltd. v. Horwood, 58 S.W.3d 732, 734 (Tex. 2001)). Early cases suggested that the discovery rule applies to toll accrual of the cause of action for reformation. See Harbor Ins. Co., 990 F.2d at 200 (concluding that the discovery rule did not apply because the insured had actual knowledge of his claim).

On the merits, the Tesoro Parties argue that they relied upon the “specialized knowledge” of Chartis, To benefit from the “reliance on knowledge” prong of the Taylor/Boyle line of cases, they must argue that they relied upon Chartis to determine that the correct owner of the refinery was a separate entity other than the named insured (Tesoro Corporation) Chartis was told to list. This argument makes little sense, as Chartis was hardly in a superior position to know which entity purchased, the refinery, i.e., which entity was likely to be most directly liable for any environmental problems.

The Tesoro Parties have not directed this court to any evidence that they relied on Chartis to know that Tesoro Refining actually oumed the refinery in question and to therefore draft the policy to include Tesoro Refining as an additional insured (i.e., a policy that covered both Tesoro Corporation and a separate entity, Tesoro Refining). Pressed at oral argument to identify any such evidence, counsel for the Tesoro Parties failed to direct the court to any record evidence that could support the conclusion that they relied on Chartis to include the correct name in the insurance poliey. Thus, even if there is evidence buried somewhere in .the various transmissions from 2002 that mentioned “Tesoro Refining,” there is no basis for the Tesoro Parties to argue that they were relying upon Chartis to ferret out that fact. See Willis v. Cleco Corp., 749 F.3d 314, 317 (5th Cir. 2014) (“Rule 56 does not impose upon the district court or the court of appeals a duty to sift through the record in search of evidence to support a party’s opposition to summary judgment.”. (quoting Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998))).

We conclude that the Tesoro Parties did not raised a genuine issue of material fact issue as to the “reliance on knowledge” prong. They also point to no evidence of the “put it away without examination” prong. Thus, their argument fails on the merits.

However, even if we assume ar-guendo that their claim is not barred on the merits for the Tesoro Parties’ failure to question the policy when they received it, the claim was nonetheless filed too late. The Tesoro Parties sued for reformation many more than four years after the 2002 “mistake” was made. Thus, the parties argue over the application of the discovery rule here. The Tesoro Parties rely upon decades-old caselaw to support their arguments about the discovery rule. This reliance is unwarranted in light of developments in Texas law regarding the discovery rule’s application that began in 1996. The Texas Supreme Court’s holdings in Comput. Assocs. Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453, 456 (Tex. 1996), and S.V. v. R.V., 933 S.W.2d 1, 6-7 (Tex. 1996), explained that the discovery rule applies only where “the nature of the injury [is] inherently undiseoverable and .,. the injury itself [is] objectively verifiable .... Applicability of the discovery rule is determined categorically.” HECI Expl. Co. v. Neel, 982 S.W.2d 881, 886 (Tex. 1998) (citing Altai, 918 S.W.2d at 456).

The Tesoro Parties were unable to point to any basis for concluding that the injury in this case—the alleged mistake over which entity was covered—is “inherently undiseoverable.” Indeed, the mistake is evident from the face of the document. Texas cases since 1996 have determined the discovery rule does not apply to delay the accrual of the cause of action in such situations. Accordingly, the Tesoro Parties’ reformation claim is time-barred.

AFFIRMED.

      . The policy listed the “Named Insured” on the front page and defined "Insured” in the body of the policy as “the Named Insured, and any past or present director, officer, partner, or employee thereof, including a temporary or leased employee, while acting within the scope of his or her duties as such.” This definition, then, did not include subsidiaries. Effective May 17, 2002, Chartis sent an endorsement changing the Named Insured to “Tesoro Petroleum Corporation” (now known as Tesoro Corporation) and adding Valero ■Energy Corporation as an additional insured. Tesoro Refining was not mentioned,

      . We have appellate jurisdiction under 28 U.S.C. § 1291, and the district court had diversity jurisdiction over the underlying case.

      . The parties dispute which state’s laws apply: California or Texas. We conclude that it is unnecessary to decide this question because (as discussed below), while the two states' laws are different, they do not result in a different outcome here. Baldwin v. Taishang Gypsum Co. Ltd. (In re Chinese-Manufactured Drywall Prods. Liab. Litig.), 742 F.3d 576, 586 (5th Cir. 2014) (explaining that a "false conflict” occurs when the application of the laws of either state in question "would produce the same decision in the lawsuit" (citation omitted)).

      . The identification of the precise "mistake" in the policy has been something of a moving target. The Tesoro Parties have at times argued that the identity of the named insured is the “mistake” but have conceded that Tesoro corporate practice is to list the parent as the named insured. The Tesoro Parties further conceded that Tesoro Corporation gains some benefit from the policy such as if it is held liable for. environmental liabilities under a veil-piercing, respondeat superior, or similar theory. At oral argument, counsel for the Te-soro Parties explained that the “mistake” is the Tesoro Parties' belief that Tesoro Refining was also covered under the policy. Both “mistakes” are obvious from the face of the policy.

      . Altai addressed misappropriation of trade secrets. The Texas legislature later added a specific discovery rule for misappropriation of trade secrets, but it did nothing to alter the general rule (since followed in many different cases) announced in Altai for claims without a statutory discovery rule. Tex. Civ. Prac. & Rem. Code § 16.010(a).

      . See, e.g., Cosgrove v. Cade, 468 S.W.3d 32, 36-37 (Tex. 2015) (holding ¿at the discovery rule does not apply to a reformation claim based upon plainly obvious and material omissions in an unambiguous deed, because such mistakes are not inherently undiscoverable); Via Net v. TIG Ins. Co., 211 S.W.3d 310, 313-15 (Tex. 2006) (concluding that the discovery rule was inapplicable to a breach of contract claim premised on the failure by a vendor to add the plaintiff as an additional insured on the vendor's policy); see also Hunton v. Guardian Life Ins. Co. of Am., 243 F.Supp.2d 686, 698-99 (S.D. Tex. 2002) ("Plaintiffs do not raise a genuine issue of fact as to whether Guardian’s alleged misrepresentations are inherently undiseoverable.”), aff’d, 71 Fed.Appx, 441 (5th Cir. 2003) (unpublished) (concluding that discovery rule was not available in a case involving insurance because the alleged wrongdoing was not "otherwise undiseoverable”).


author: JERRY E. SMITH, Circuit Judge:

text:
    Jackie OUTLEY, Plaintiff-Appellant, v. LUKE & ASSOCIATES, INCORPORATED, Defendant-Appellee.
    No. 16-60223
    United States Court of Appeals, Fifth Circuit.
    Filed October 19, 2016

      Robert Chris Pittard, Forte & Pittard, P.L.L.C., San Antonio, TX, for Plaintiff-Appellant.
    Darren A. Patin, Esq., Pandit Law Firm, L.L.C., New Orleans, LA, for Defendant-Appellee. • •
    Before JOLLY, SMITH, and GRAVES, Circuit Judges.
   JERRY E. SMITH, Circuit Judge:

Jackie Outley appeals' a summary judgment dismissing her claims of race-based employment discrimination and retaliation. Because she has not presented evidence sufficient to make a prima fade case of discrimination or to create a fact issue regarding pretext, we affirm.

I.

Luke & Associates, Inc. (“Luke”), and the Air Force entered into a Clinical Services Support Agreement under which Luke agreed to provide medical personnel to various Air Force facilities, including Keesler Air Force Base. The agreement provided that the Air Force would (1) provide all equipment and supplies used by the medical personnel; (2) direct the manner in which duties were performed; (3) schedule the hours of medical personnel; and (4) supervise all medical personnel.

Luke entered into a Contractor Agreement with Jackie K. Outley, LLC, under which Outley agreed to provide inpatient pharmacy services at Keesler. The agreement provided, in part, that “if Luke should receive a request by the Government that the services of [Outley] be terminated for cause, then such-services will be terminated in accordance with such request.”

On May 16, 2011, Major Thuy Vo, Outley’s Air Force supervisor, submitted a Memorandum for Record, which noted that Outley had prepared and sent intravenous fluids that did not match the physician’s order and had ignored the “constructive intervention” of another pharmacist. On May 18, Vo submitted a second memorandum, this time because of an “intensive argument” between Out-ley and another pharmacist “at the front line of the inpatient pharmacy.” Outley and the other pharmacist were “counseled” for “unprofessional behavior” and were informed that the Air Force would file a complaint with Luke if such behavior were repeated. Finally, on July 14, Vo submitted a third memorandum concerning a “Prepacking Error Due to Inattention to Detail,” describing Outley’s mislabeling of medication.

In August 2011, Air Force staff notified Luke of their concerns regarding Outley’s performance. On August 29, Air Force staff met with representatives of Luke and with Outley to discuss those concerns and to inform them that Outley would no longer be permitted to work as an inpatient pharmacist'. According to Luke, to avoid terminating Outlets contract,- it proposed a transfer, and the Air Force and Outley agreed to a transfer in lieu of termination.

Outley denies consenting to that arrangement. She was transferred to an outpatient pharmacy, then in December 2011 to a second outpatient pharmacy. Before that, in October, she requested a “merit adjustment raise.” Luke informed her that it was unable to grant the request but that in January it would reassess after discussing her performance with the Air Force.

II.

On August 11, 2011, Outley had emailed Colonel Richard McBride to notify him of “prejudices/double standards/hostility/harassment and being singled out in the workplace.” McBride instructed Outley to “notify both your Contráctor and EEO if you honestly feel you are working in a hostile environment.” Outley filed a formal complaint with the Air Force on August 29, 2011, then sued, alleging race-based discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981.

The district court entered summary judgment for Luke because Outley had not established a prima, facie case of discrimination. It also found that Luke had provided legitimate, nondiscriminatory reasons for the transfer. With respect to retaliation, the court found that, even assuming that Outley had presented a prima, facie case, Luke had presented sufficient nondiscriminatory reasons. Outley’s appeal of the summary judgment also challenges the denial of her motion to compel responses to interrogatories.

III.

Title VII prohibits discrimination “because of’ a protected characteristic, including race. 42 U.S.C. § 2000e-2(a)(l). Under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the plaintiff must first demonstrate a prima facie case, and then the burden of production shifts to the defendant to proffer a legitimate, nondiscriminatory reason for its action. Vaughn v. Woodforest Bank, 665 F.3d 632, 636 (5th Cir. 2011). If it does that, “the presumption of discrimination disappears.” Id. The plaintiff, who always has the ultimate burden, must then “produce substantial evidence indicating that the proffered legitimate nondiscriminatory reason is a pretext for discrimination.”

A.

To establish a prima facie case, Outley must provide evidence “that she (1) is a member of a protected class; (2) was qualified for her position; (3) was subject to an adverse employment action; and (4) was replaced by someone outside the protected class, or, in the case of disparate treatment, shows that others similarly situated were treated more favorably.” She meets the first two prongs: She is black and therefore a member of a protected class, and although Luke disputes whether she was qualified as an inpatient pharmacist, we agree with the district court’s inference that her initial hiring demonstrates her qualification. Moreover, Luke’s request for her transfer, instead of termination, suggests that she is qualified.

With respect to the third prong, Outley maintains that her transfers from inpatient facilities at Keesler to outpatient facilities constitute adverse employment actions. It is well-settled that a “purely lateral transfer” is not an adverse employment action. A transfer might be purely lateral if the new position had “the same job title, benefits, duties, and responsibilities” as the old position. Id. A transfer can be an adverse action if it is “the equivalent of a demotion,” such that the new position proves “objectively worse.”

In the district court, Outley contended that her transfers were adverse employment actions because her hours were reduced “at times” and her new work schedule was “not as favorable.” On appeal, she presents additional evidence that, in her outpatient role, she (1) was unable to work overtime; (2) served up to four times as many patients; and (3) was required to attend training for her new role. As a general rule, “[wjhen evidence exists in the summary judgment record but the nonmovant fails even to refer to it in the response to the motion for summary judgment, that evidence is not properly before the district court.” This rule extends to pro se plaintiffs such as Outley.

Even with the additional facts, Out-ley’s transfers were not adverse employment actions. Merely changing working hours or imposing a higher workload does not qualify. Moreover, Outley’s hourly pay remained the same, and she retained her full-time status. The fact that she had to attend training does not mean that the transfer was a demotion; indeed, training may be required for even a coveted promotion. Finally, Outley has presented no evidence that her outpatient role was objectively viewed as less prestigious or desirable than her inpatient role—a fact that is crucial. In sum, Outley has not shown that her transfer resulted in a position that was “objectively worse.” Thompson, 764 F.3d at 503.

Outley additionally suggests that she suffered an adverse employment action because she was denied a “merit adjustment raise” in October 2011. Although the denial of a pay increase can be an adverse employment action, Outley did not present that argument in the district court. Assuming arguendo that she did, she has satisfied prong three with respect to the denial of her merit adjustment raise.

Outley must next show “that others similarly situated were treated more favorably” with regard to the pay raise, meaning that they must be under “nearly identical circumstances,” which requires that

the employees being compared held the same job or responsibilities, shared the same supervisor- or had their employment status determined by the same ■person, and have essentially comparable violation histories. And,- critically, the plaintiffs conduct that drew the adverse employment decision must have been “nearly identical” to that of the proffered comparator who allegedly drew dissimilar employment decisions.[]

Even- accepting, as true, that other employees received a merit raise, Outley provided no evidence that they were similarly situated to her. In particular, she has not shown that any of them shared her history of on-the-job violations. Thus, she has not established the fourth prong and accordingly has not made a prima facie case of discrimination.

B.

Assuming, again for the sake of argument, that Outley had shown a prima facie case, the burden would shift to Luke to provide legitimate, nondiscriminatory reasons for its decisions. Those reasons must be “clear and reasonably specific.” It points to the three memoranda, which document Outley’s performance issues. “Job performance is a legitimate ... reason for termination.” LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 391 (5th Cir. 2007). Moreover, under the Contractor Agreement, Luke was required to terminate Outley if the Air Force requested dismissal for cause, which the Air Force did. Thus,'Luke has met its burden of production.

C.

Continuing to assume a prima fa-cie ease, the burden would then shift back to Outley to “produce substantial evidence indicating that the proffered legitimate nondiscriminatory reason is a pretext for discrimination.” Laxton, 333 F.3d at 578. “A plaintiff may establish pretext either through evidence of disparate treatment or by showing that the employer’s proffered explanation is false or unworthy of credence.” Id. (quotation marks omitted). As explained above, Outley has not shown disparate treatment, because she has not presented any similarly situated comparators. Nor does she dispute that she engaged in misconduct. Although she asserts that one of the memoranda was based on an “incorrect[t]” report by a fellow pharmacist, she offers no response to the other two.

Instead, Outley urges that she faced a “hostile work environment” in the inpatient pharmacy, and that raises an inference of pretext. She provides eleven examples—none of which was presented to the district court—of times when she faced discrimination. Most of those instances are unrelated to race. For example, she states that Master Sergeant McCune yelled at her and that Major Vo did not intervene. Thus, those examples are not relevant to her race-based discrimination claim.

Outley identifies three instances that, drawing all reasonable inferences in her favor, can be connected to race:

(1) Coworker Stephanie Bosarge referred to Outley as “that.”
(2) Vo stated that “Asians and Blacks like to show off.”
(3) Coworker Amie Douglas “remarked [that] she had seen security stopping the cars driven by Black people, and asked [Staff Sergeant] Smith, who is Black, ‘What’d you all do?’ ”

That evidence is insufficient to establish pretext. Outley points to comments from three different speakers. She provides no evidence that Bosarge or Douglas had any authority over her transfer or her denied pay increase. Nor has she shown how Vo, employed by the Air Force and not by Luke, had authority to deny her a pay increase. Moreover, the fact that Luke suggested a transfer in lieu of termination weighs against a finding of pretext. In sum, Outley has not met her burden to show that Luke’s legitimate, nondiscriminatory reasons are pretext for racial discrimination.

IV.

McDonnell Douglas's burden-shifting framework also applies to retaliation claims under Title VII. Outley must first establish a prima facie case by showing that “(1) she,participated in an activity protected under the statute; (2) her employer took an adverse employment action against her;. and (3) a causal connection exists between the protected activity and the adverse action.” McCoy v. City of Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007). It is undisputed that Outley participated in protected activity by complaining to Colonel McBride on August 11. And, as explained above, her denial of a pay increase was an adverse employment action. Finally, the close timing between her protected activity and the denial of a raise—about two months—is sufficient to show causal connection for purposes of a prima facie case.

Luke can satisfy -its burden to show legitimate, nondiscriminatory reasons by pointing to Outley’s performance issues and Luke’s contractual obligations. The burden then shifts back to Outley to show that Luke’s reasons are pretext for retaliation. She must demonstrate that “thé adverse action would not have occurred ‘but for’ [Luke’s] retaliatory motive.”

Although the close timing was sufficient to establish a prima fade case, it is insufficient to show pretext. Rather, Out-ley points to evidence that on August 2, 2011, Vo threatened to write an incident report on Outley if she complained about discrimination. Outley did not identify that evidence to the district court in opposing summary judgment. But even assuming she had, she has not met her burden to show pretext. The connection between Vo’s threat and Luke’s denial of a merit pay adjustment is too attenuated. Outley provides no evidence that Vo had authority to set Outley’s hourly rate; to the contrary, her Contractor Agreement with Luke specifies her compensation. Moreover, her documented performance issues provide a reasonable basis to deny-a “merit adjustment raise.” In sum, Outley has not provided evidence that “but for” her complaints to the Air Force, Luke would have given a pay raise.

V.

As part of her appeal of the summary judgment, Outley questions the denial of her motion to compel responses to interrogatories. The court denied her motion as untimely because she filed it a week after the deadline for discovery requests. “Discovery rulings are ‘committed to the sound discretion of the trial court’ and will not be reversed on appeal unless ‘arbitrary or clearly unreasonable.’ ” Out-ley maintains that the district court abused its discretion because she filed her interrogatories—the object of her motion to compel—on October 19, before the close of discovery. But the Uniform Local Rules of the Northern and Southern Districts of Mississippi require that all “discovery motions must be filed sufficiently in advance of the discovery deadline so as not to affect the deadline.” Outley provides no good cause for waiting until the last month of discovery to submit her interrogatories, particularly given that the court had already extended the discovery period by three months. The court did not abuse its discretion in denying the motion to compel.

The summary judgment is AFFIRMED.

      . The parties dispute whether Outley was an independent contractor or an employee of Luke’s. This issue bears on whether she has standing to bring a Title VII claim. But because we affirm on the assumption that she could bring her claim, we need not reach this issue.

      . Outley initially named Quarterline Consulting Services, LLC, as a second defendant, but because Outley and that entity settled, the district court addressed only the claims against Luke.

      . Although Outley bases her claims on Title VII and Section 1981, we refer only to Title VII, because "[wjhen used as parallel causes of action, Title VII and [S]ection 1981 require the same proof to establish liability,” and "it would be redundant to refer to [both] of them.” Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 403 n.2 (5th Cir. 1999).

      . Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 233 (5th Cir. 2015) (quoting Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003)).

      . Okoye v. Univ. of Tex. Hous. Health Sci. Ctr., 245 F.3d 507, 512-13 (5th Cir. 2001) (footnote and quotation marks omitted).

      . Burger v. Cent. Apartment Mgmt., Inc., 168 F.3d 875, 879 (5th Cir. 1999) ("Our view comports with the clear trend of authority in other circuits holding that a purely lateral transfer is not an adverse employment action.”) (quotation marks omitted); see also Hockman v. Westward Commc’ns, LLC, 407 F.3d 317, 331 (5th Cir. 2004).

      . Thompson v. City of Waco, 764 F.3d 500, 503 (5th Cir. 2014) (citing Alvarado v. Tex. Rangers, 492 F.3d 605, 612-15 (5th Cir. 2007); Sharp v. City of Hous., 164 F.3d 923, 933 (5th Cir. 1999) (explaining that a transfer "can be a demotion if the new position proves objectively worse-such as being less prestigious or less interesting or providing less room for advancement”) (citations omitted)).

      . Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003); see also Ragas v. Term. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) ("Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment.”); Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1307 (5th Cir. 1988) (explaining that it is not necessary "that the entire record in the case ... be searched and found bereft of a genuine issue of material fact before summary judgment may be properly entered”); cf. United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) ("Judges are not like pigs, hunting for truffles buried in briefs.”).

      . E.E.O.C. v. Simbaki, Ltd., 767 F.3d 475, 484 (5th Cir. 2014) (“Despite our general willingness to construe pro se filings liberally, we still require pro se parties to fundamentally abide by the rules that govern the federal courts.... Pro se litigants must properly ... present summary judgment evidence") (quotation marks omitted).

      . See Benningfield v. City of Hous., 157 F.3d 369, 376-77 (5th Cir. 1998).

      . Outley concedes that once she informed Air Force staff that her new schedule resulted in her losing hours, her schedule was changed so that she worked at least forty hours per week.

      . Compare Click v. Copeland, 970 F.2d 106, 110 (5th Cir. 1992) with Serna v. City of San Antonio, 244 F.3d 479, 485 (5th Cir. 2001).

      . Fierros v. Tex. Dep't of Health, 274 F.3d 187, 194 (5th Cir. 2001), overruled on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003).

      . Okoye, 245 F.3d at 513. It is possible that Outley could satisfy prong four with regard to her transfer, because she alleges that she was replaced in the inpatient facility by LeRoy Jacobs, who is white. See Okoye, 245 F.3d at 513. But even if she had provided evidence in support, it would be immaterial because, as we have said, the transfer was not an adverse employment action.

      . Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009).

      . Id. (citations omitted); see also Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 221 (5th Cir. 2001); Okoye, 245 F.3d at 514.

      . Okoye, 245 F.3d at 514 (quoting Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 258, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)).

      . See id. at 513 (concluding that defendant had met its burden to show a legitimate, nondiscriminatory reason because it was under a contractual obligation to remove an employee from a jail assignment upon request of the Sheriff).

      . To the extent Outley's brief can be construed as raising a hostile-work-environment claim under Title VII, such a claim has been waived. See Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013).

      . See Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012); Jackson v. Cal-W. Packaging Corp., 602 F.3d 374, 380 (5th Cir. 2010).

      . See Jackson, 602 F.3d at 380 (“We have explained that comments are evidence of discrimination only if they are ... made by an individual with authority over. the employment decision at issue_”).

      . In the district court and on appeal, Outley identified her transfer only as a retaliatory employment action. As explained above, her transfers were not adverse employment actions. Though she did not claim that her denied pay increase was retaliatory, we assume for the sake of argument that she did.

      . See Evans v. Hous., 246 F.3d 344, 354 (5th Cir. 2001) (noting that "a time lapse of up to four months” may be sufficiently close); Le-Maire, 480 F.3d at 390 (stating that a lapse of two weeks suggests a causal coiinectiori).

      . Feist v. La. Dep’t of Justice, 730 F.3d 450, 454 (5th Cir. 2013) (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, — U.S. -, 133 S.Ct. 2517, 2533, 186 L.Ed.2d 503 (2013)); see also Long v. Eastfield Coll., 88 F.3d 300, 308 (5th Cir. 1996).

      . Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 487 (5th Cir. 2008) (“[T]emporal proximity standing alone is insufficient to establish an issue of fact as to pretext after an employer has provided a non-retaliatory reason.”).

      . McCreary v. Richardson, 738 F.3d 651, 654 (5th Cir. 2013) (quoting Williamson v. U.S. Dep’t of Agric., 815 F.2d 368, 373, 382 (5th Cir. 1987)).

        .Prideaux v. Tyson Foods, Inc., 387 Fed. Appx. 474, 478 (5th Cir. 2010) (citing Unif. Loc. R. 7.2(B)(2)). The relevant local rule is currently located at 7(b)(2)(C).


author: PER CURIAM:

text:
    Mandeep SINGH, Petitioner, v. Loretta LYNCH, U.S. Attorney General, Respondent.
    No. 15-60400
    United States Court of Appeals, Fifth Circuit.
    Filed October 20, 2016

      Garish Sarin, Esq., Attorney, Los Ange-les, CA, for Petitioner.
    Kristen Ann Giuffreda Chapman, Esq., Trial Attorney, Monica G. Antoun, U.S. Department of Justice, Office of Immigration Litigation, Civil Division, Washington, DC, for Respondent.
    Before SMITH, CLEMENT, and GRAVES, Circuit Judges.
   PER CURIAM:

Mandeep Singh, a native and citizen of India, petitions for review of the decision of the Board of Immigration Appeals (“BIA”) denying his motion to reopen. Singh was charged with entering the United States without inspection in 2011. He sought asylum, withholding of removal, and relief .under the Convention Against Torture (“CAT”), claiming he was threatened and injured by members of rival political party in India—the Akali Dal (Ba-dal) party—for refusing to join their ranks. He alleged that his life was in “grave danger” and that he could not relocate to another state in India, so he left India and attempted entry into the United States.

The immigration judge (“IJ”) denied relief, and the BIA affirmed but remanded, instructing the IJ to make additional findings concerning Singh’s eligibility for protection under the CAT. On remand, the IJ made further findings, denied relief under the CAT, and ordered Singh removed to India; Singh did not appeal the IJ’s order.

More than nine months later, Singh filed an untimely motion to reopen, asserting that the Indian police had threatened him and wrongly accused him of receiving terrorist training in Pakistan. In support of his claims, he submitted affidavits from his mother and the Sarpanch of his Indian village, and the State Department’s 2012 Country Report for India. He averred that the Country Report verified his new fear of retoning to India, because it established that human rights violations regularly occur in India, and the Indian police and security forces commit serious abuses. Singh claimed entitlement to relief based on changed circumstances. The IJ denied the motion to reopen, and the BIA dismissed the appeal.

We review the denial of a motion to reopen under a “highly deferential abuse-of-discretion standard.” Zhao v. Gonzales, 404 F.3d 295, 303-04 (5th Cir. 2005). Under that standard, the BIA’s ruling will stand, even if this court concludes it is erroneous, “so long as it is not capricious, racially invidious, utterly without foundation in the evidence, or otherwise so irrational that it is arbitrary rather than the result of any perceptible rational approach.” Id. at 304 (internal quotation marks and citation omitted).

The BIA found, inter alia, that “the State Department’s 2012 Country Reports for India did not describe a change in country conditions that are materially different than [sic] the conditions in place at the time [Singh] was ordered removed.” The BIA further found that, although the Report describes “ongoing violence by both insurgents and security forces,” it “does not indicate whether conditions have substantially deteriorated since [Singh’s] order of removal,”

Those conclusions find support in the record. A motion to reopen can be denied where the evidence of changed conditions shows only a continuance of ongoing violence in the home country. Moreover, Singh’s assertion that he fears for his safety upon returning to India, given the new threats and violence experienced by his mother and the Indian police’s targeting of him, amounts to a change in personal circumstances and does not constitute changed country conditions.

The petition for review is DENIED.

      . See, e,g., Ramos v. Lynch, 622 Fed.Appx. 432, 433 (5th Cir. 2015); Das v. Holder, 490 Fed.Appx. 672, 673 (5th Cir. 2012); Thomas v. Holder, 396 Fed.Appx. 60, 61 (5th Cir. 2010); Himani v. Mukasey, 305 Fed.Appx. 229, 231 (5th Cir. 2008).

      . See Gatamba v. Holder, 485 Fed.Appx. 690, 691 (5th Cir. 2012); Yang Xin Chun v. Holder, 335 Fed.Appx. 454, 455 (5th Cir. 2009); Keiv-ani v. Gonzales, 214 Fed.Appx. 469, 470 (5th Cir. 2007); Zhao, 404 F.3d at 307.