Equal Employment Opportunity Commission v. A.c. Widenhouse, Inc.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1389
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff – Appellee,
CONTONIUS GILL,
Intervenor/Plaintiff – Appellee,
v.
A.C. WIDENHOUSE, INC.,
Defendant – Appellant.
No. 13-1683
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff – Appellee,
CONTONIUS GILL,
Intervenor/Plaintiff – Appellee,
v.
A.C. WIDENHOUSE, INC.,
Defendant – Appellant.
Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:11-cv-00498-TDS-JEP)

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Argued: May 13, 2014 Decided: June 24, 2014
Before DUNCAN and WYNN, Circuit Judges, and J. Michelle CHILDS,
United States District Judge for the District of South Carolina,
sitting by designation.
Affirmed by unpublished opinion. Judge Duncan wrote the
opinion, in which Judge Wynn and Judge Childs joined.
ARGUED: George Bryan Adams, III, VAN HOY, REUTLINGER, ADAMS &
DUNN, PLLC, Charlotte, North Carolina, for Appellant. Jenny Lu
Sharpe, SHARPE LAW OFFICE, Charlotte, North Carolina; Julie
Loraine Gantz, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Washington, D.C., for Appellees. ON BRIEF: Philip Marshall Van
Hoy, VAN HOY, REUTLINGER, ADAMS & DUNN, PLLC, Charlotte, North
Carolina, for Appellant. P. David Lopez, Lorraine C. Davis,
Carolyn L. Wheeler, U.S. EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, Washington, D.C., for Appellee U.S. Equal Employment
Opportunity Commission.
Unpublished opinions are not binding precedent in this circuit.

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DUNCAN, Circuit Judge:
Appellant, A.C. Widenhouse, Inc., appeals from jury
verdicts and an attorney’s fee award in favor of Appellees
Contonious Gill and the Equal Employment Opportunity Commission
(“EEOC”). Widenhouse contends that it is entitled to a new
trial on the appellees’ claims of racially hostile work
environment, racially discriminatory discharge, and retaliatory
discharge as a result of the district court’s evidentiary and
instructional errors, and that the attorney’s fee award should
be vacated or reduced. For the reasons that follow, we affirm.
I.
Gill worked as a truck driver for Widenhouse from May of
2007 until his termination in June of 2008. During that time,
Gill, who is African-American, was subjected to frequent racial
slurs such as the “N” word and “porch monkey,” racially charged
jokes and comments, and displays of freighted objects such as
nooses and confederate flags. Gill repeatedly reported at least
some of these incidents to his supervisors, who took no curative
action. In June of 2008, when Gill became ill while working and
was unable to complete a delivery, his employment was
terminated.
In August of 2008, Gill filed a charge with the EEOC
alleging a pattern of racially discriminatory activities by

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Widenhouse and claiming that he was terminated in retaliation
for reporting that discrimination. In June of 2011, the EEOC
filed a complaint in the Middle District of North Carolina on
behalf of Gill and another African-American Widenhouse employee,
Robert Floyd, alleging that Widenhouse maintained a racially
hostile work environment. In July of 2011, Gill intervened in
the suit, bringing additional claims for racial harassment,
racially discriminatory discharge, and retaliatory discharge in
violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights
Act of 1964. The case proceeded to trial in January of 2013.
At Widenhouse’s request, the trial was bifurcated into
liability and damages phases. During the liability phase,
Widenhouse sought to examine Gill about an EEOC charge he filed
against his previous employer, Consolidated Pipe, and to
introduce testimony from Gill’s former supervisor about the
charge and Gill’s termination. The district court refused to
allow the examination or admit the testimony.
At the close of the liability phase, the district court
instructed the jury on the law concerning the plaintiffs’
claims. The district court instructed the jury that it should
find Widenhouse liable for violating Title VII’s retaliation
provisions if it found that retaliation for Gill’s protected
activity of reporting racial discrimination was a motivating
factor in his termination. Widenhouse did not object to this

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instruction. The district court also instructed the jury, over
Widenhouse’s objection, to determine whether Widenhouse would be
liable for punitive damages if it were found to be liable for
the substantive counts of the complaints.
The jury found Widenhouse liable for each plaintiff’s
claims and the trial proceeded to the damages phase. The jury
awarded compensatory and punitive damages to both plaintiffs as
well as back pay with interest to Gill. The district court
subsequently granted Gill’s motion for attorney’s fees and
costs. After the district court issued its judgment, the
Supreme Court decided Univ. of Tex. Sw. Ctr. v. Nassar, 133 S.
Ct. 2517 (2013). Nassar held, contrary to our existing
precedent as applied by the district court at trial, that “a
plaintiff making a retaliation claim under [Title VII] must
establish that his or her protected activity was a but-for cause
of the alleged adverse action by the employer,” and not merely a
motivating factor. 133 S. Ct. at 2534. Widenhouse timely
appealed.
II.
When assignments of error are properly preserved below, “we
review a district court’s refusal to give a jury instruction for
abuse of discretion [and] conduct a de novo review of any claim
that jury instructions incorrectly stated the law.” United

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States v. Mouzone, 687 F.3d 207, 217 (4th Cir. 2012) (internal
citations omitted). We review evidentiary rulings for abuse of
discretion and “will only overturn an evidentiary ruling that is
arbitrary and irrational.” United States v. Cloud, 680 F.3d
396, 401 (4th Cir. 2012) (internal quotation marks and citations
omitted). We review awards of attorneys fees under a “sharply
circumscribed” abuse of discretion standard and will not
overturn an award “unless it is clearly wrong.” Robinson v.
Equifax Info. Servs., LLC, 560 F.3d 235, 243 (4th Cir. 2009)
(citation omitted).
When an assignment of error is not properly raised before
the district court, we may still act within our “inherent power
to address [it].” Brickwood Contrs., Inc. v. Datanet Eng’g
Inc., 369 F.3d 385, 396 (4th Cir. 2004). However, we “should
exercise our discretion to correct [such] error only if we can
conclude...‘that the error seriously affect[s] the fairness,
integrity, or public reputation of judicial proceedings.’” Id.
at 397 (quoting Taylor v. Va. Union Univ., 193 F.3d 219, 240
(4th Cir. 1999)). Therefore, “absent exceptional
circumstances...we do not consider issues raised for the first
time on appeal.” Volvo Const. Equip. N. Am., Inc. v. CLM Equip.
Co., 386 F.3d 581, 603 (4th Cir. 2004). When such circumstances
exist, we may grant relief if there is an error, it is plain,
and the error affects the appellant’s substantial rights. See

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United States v. Olano, 507 U.S. 725, 732 (1993); see also
Brickwood Contrs., Inc., 369 F.3d at 396 (“This court has held
that the approach set out by the Supreme Court in Olano should
also be applied in civil cases.”).
III.
A.
Widenhouse first contends that it is entitled to a new
trial on all of Gill’s claims because the district court
improperly instructed the jury regarding Gill’s Title VII
retaliation claim. Widenhouse argues that this error so tainted
the jury’s consideration of the evidence that it became
incapable of reaching a fair verdict on any of Gill’s claims.
Because Widenhouse did not object to this instructional
error at trial, we must first determine whether review is
appropriate. As discussed above, we ordinarily do not review
unpreserved claims of error in civil cases and the burden is on
the party asserting the error to prove the existence of
exceptional circumstances necessitating review. However, in the
case of instructional error, Federal Rule of Civil Procedure 51
specifically provides for our review of an otherwise waived
claim for plain error if that error affects substantial rights.
Fed. R. Civ. P. 51(d)(2). Therefore, we need not determine
whether exceptional circumstances exist and may move directly to

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consideration of the district court’s Title VII retaliation
instruction under Olano.
Before Nassar, in this Circuit and others, plaintiffs could
succeed on a Title VII retaliation claim by showing that
retaliation for protected activity such as filing an EEOC charge
was a “motivating factor”—even if not the only factor—for an
adverse employment action. With Nassar, however, the Supreme
Court changed the Title VII retaliation landscape, holding that
the protected conduct must be the but-for cause of the
retaliatory act. Nassar, 133 S. Ct. at 2528. The Supreme Court
so held based on Title VII’s use of the phrase “because of,”
which, per the Supreme Court, plainly means “but for.” Id. The
parties agree that pursuant to Harper v. Va. Dep’t of Taxation,
509 U.S. 86 (1993), Nassar’s holding is retroactively applicable
to this case.1 Consequently, the parties agree for purposes of
this appeal that the district court’s motivating factor
instruction was erroneous.
Gill argues that although the instruction was erroneous,
the error was not plain because at the time of the trial our
1 Id. at 97 (“When [the Supreme Court] applies a rule of
federal law to the parties before it, that rule is the
controlling interpretation of federal law and must be given full
retroactive effect in all cases still open on direct review and
as to all events, regardless of whether such events predate or
postdate the announcement of the rule.”).

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precedent called for the application of the motivating factor
standard to Title VII retaliation claims. This argument is
unavailing. It is settled law that an error is plain for
purposes of review when the challenged ruling is plainly
erroneous at the time of direct appeal. See Brickwood Contrs.,
369 F.3d at 397; see also Henderson v. United States, 133 S. Ct.
1121, 1127-29 (2013) (adopting a general “time of review” rule
for all plain error claims in criminal proceedings). Gill does
not claim that the challenged instruction, if given now, would
be anything but plainly erroneous.
Although the district court erred and the error was plain,
Widenhouse is not entitled to a new trial because it cannot show
that the error affected its substantial rights. For an error to
affect substantial rights, it generally “must have been
prejudicial: It must have affected the outcome of the district
court proceedings.” Olano, 507 U.S. at 734. Unlike an error
that is timely noticed, at the substantial rights stage of a
plain error analysis, it is “the [appellant] rather than the
[appellee] who bears the burden of persuasion with respect to
prejudice,” and in general, the appellant must make a specific
showing of prejudice. Id. at 734-35. Widenhouse has failed to
make the requisite showing.
Widenhouse’s conclusory assertion that the district court’s
erroneous instruction on Gill’s Title VII retaliation claim

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prejudicially affected the jury’s consideration of all claims is
wholly unsupported by the record.
Nor has Widenhouse shown that the district court’s
erroneous instruction actually affected the outcome of the case
with regard to Gill’s Title VII retaliation claim itself.
First, despite the improper instructions, it is not clear that
the jury actually determined Widenhouse’s liability under the
incorrect standard. The jury’s verdict sheet may constitute
“evidence to the contrary” of our typical assumption that the
jury followed the district court’s instruction on this claim.
United States v. Hager, 721 F.3d 167, 189 (4th Cir. 2013). On
its verdict sheet, the jury found that Gill had proven “he was
terminated from his employment by the defendant because of his
opposition to activity made unlawful under Title VII.” J.A.
2378 (emphasis added). Under Nassar, the use of “because of”
indicates the existence of a but-for causal relationship. 133
S. Ct. at 2527-2528. Moreover, the jury also found that
Widenhouse had not shown “that it would have terminated [Gill]
for other reasons, even though his race and/or his protected
opposition was a motivating factor.” J.A. 2378. The jury’s
finding that there was no lawful reason for Gill’s termination
indicates that it could have concluded retaliation was a but-for
cause of the adverse employment action.

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Second, Widenhouse cannot prove that the district court’s
Title VII retaliation instruction was actually prejudicial
because the jury found it liable for exactly the same conduct in
violation of § 1981. Finally, while it is impossible to
determine the amount of damages the jury would have granted if
Widenhouse had not been found liable for violating Title VII’s
retaliation provisions, Gill would have been eligible for, and
might have received, the same compensatory and punitive damages
on the basis of Widenhouse’s liability for his remaining claims.
Because Widenhouse has failed to show any actual prejudice
as a result of the district court’s improper instruction, its
claim of plain error fails.
B.
Next, Widenhouse argues that it is entitled to a new trial
on all of the EEOC’s and Gill’s claims because the district
court abused its discretion by instructing the jury on punitive
damages liability during the liability phase of the trial. This
claim is meritless.
In Mattison v. Dallas Carrier Corp., 947 F.2d 95 (4th Cir.
1991), we observed that “when it is determined that the evidence
relevant to the appropriate amount of punitive damages will be
prejudicial to the jury’s consideration of liability or
compensatory damages, bifurcation of the trial under Federal
Rule of Civil Procedure 42(b) remains an available solution.”

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Id. at 110. We then stated that “[w]henever the district court
orders a bifurcated trial, the jury should be required, in the
first phase, to determine whether punitive damages are to be
awarded, and only if its verdict so determines, should it be
presented in the second phase with the evidence relevant to the
factors for finding the appropriate amount.” Id.
The district court in this case followed the procedure
explained in Mattison exactly, and we therefore find no abuse of
discretion.
C.
Widenhouse also contends that it is entitled to a new trial
on all claims because the district court abused its discretion
by excluding testimony and examination concerning Gill’s
termination from, and EEOC charge against, Consolidated Pipe.
It contends that the evidence was admissible under several rules
and that the district court’s Federal Rule of Evidence 403
analysis was improper.
We need not consider the merits of these arguments. The
district court excluded Widenhouse’s desired testimony and
evidence on alternative grounds, each of which was independently
sufficient. Because Widenhouse failed to object to these
alternative grounds on appeal, we find no abuse of discretion
and affirm.

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D.
Finally, Widenhouse contends that the district court abused
its discretion in calculating the amount of Gill’s attorney’s
fees because it relied on an unreasonable hourly rate and did
not require sufficient proof that Gill’s attorney’s work was not
mere duplication of the EEOC’s efforts.2
In cases such as this, factors courts in this circuit
consider in determining fee awards are: (1) the time and labor
expended; (2) the novelty and difficulty of the questions
raised; (3) the skill required to properly perform the legal
services rendered; (4) the attorney’s opportunity costs in
pressing the litigation; (5) the customary fee for like work;
(6) the attorney’s expectations at the outset of the litigation;
(7) the time limitations imposed by the client or circumstances;
(8) the amount in controversy and the results obtained; (9) the
experience, reputation and ability of the attorney; (10) the
undesirability of the case; (11) the nature and length of the
professional relationship between the attorney and the client;
2 On appeal, Widenhouse also contends that the district
court erred by failing to reduce Gill’s requested fees to
account for travel time and by failing to reduce its lodestar
calculation to account for the amount of recovery and Gill’s
contingency fee arrangement. However, Widenhouse did not raise
these objections below and has not alleged the existence of any
exceptional circumstances necessitating review, so we deem these
arguments waived. See Brickwood Contrs., Inc., 369 F.3d at 390.

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and (12) attorneys’ fee awards in similar cases. In re Abrams &
Abrams, P.A., 605 F.3d 238, 244 (4th Cir. 2010); Barber v.
Kimbrell’s, Inc., 577 F.2d 216, 226 n.28 (4th Cir. 1978).
In support of his fee request, Gill submitted affidavits
from other local attorneys, neither of whom was a solo
practitioner. Widenhouse contends that the district court
unreasonably failed to account for the fact that, unlike the
affiant attorneys, Gill’s attorney is a solo practitioner with
lower overhead costs. However, as the district court correctly
noted, under our controlling precedent, a counsel’s firm size
and overhead are not necessary considerations. See In re Abrams
& Abrams, 605 F.3d at 244.3 Widenhouse does not otherwise
challenge the district court’s application of the Barber
factors, and we therefore find no abuse of discretion in its
adoption of Gill’s requested hourly rate.
Widenhouse also argues that the district court’s fee award
constituted an abuse of discretion because Gill’s submissions
were inadequate to overcome a presumption that his attorney’s
efforts duplicated the EEOC’s. This claim is similarly
baseless. First, we have never recognized a presumption of
3 It is worth noting that in the context of low-overhead
non-profit agency representation, the Supreme Court has rejected
the application of cost-based rates in favor of the usual
market-based rates for attorney’s fees. See generally Blum v.
Stenson, 465 U.S. 886 (2006).

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duplication, nor do we believe it is necessary to create one
because the prevailing party must already demonstrate its
entitlement to fees with specificity. Second, Widenhouse’s
claim that Gill’s evidence fails to show substantially
independent work is belied by the record. Beyond Gill’s
supporting billing, affidavits, and other documentation, the
district court found that Gill’s counsel was the only attorney
to prepare his Title VII and § 1981 retaliation claims and that
Gill’s attorney had taken on a lead counsel role for several of
the plaintiffs’ shared causes of action. J.A. 2533-35. In
light of the evidence submitted and the district court’s own
observations, Widenhouse’s unsupported arguments fail to show
that the district court abused its discretion by awarding
attorneys fees in the amount requested.4
IV.
For the reasons stated above, the jury’s verdicts and the
district court’s fee award are
AFFIRMED.
4 We have considered Widenhouse’s remaining arguments and
find them to be without merit.

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