UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LLOYD M. COOPER,
Plaintiff-Appellee,

v.                                                       No. 97-1543

PAYCHEX, INCORPORATED,
Defendant-Appellant.

LLOYD M. COOPER,
Plaintiff-Appellee,

v.                                                       No. 97-1645

PAYCHEX, INCORPORATED,
Defendant-Appellant.

LLOYD M. COOPER,
Plaintiff-Appellant,

v.                                                       No. 97-1720

PAYCHEX, INCORPORATED,
Defendant-Appellee.

Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Senior District Judge.
(CA-96-54-A)

Argued: December 1, 1997

Decided: August 31, 1998

Before WILKINS, NIEMEYER, and MICHAEL, Circuit Judges.
Affirmed by unpublished opinion. Judge Michael wrote the majority
opinion, in which Judge Wilkins joined. Judge Niemeyer wrote a dis-
senting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Harry L. Manion, III, COOLEY, MANION, MOORE &
JONES, L.L.P., Boston, Massachusetts, for Appellant. Christine Eliz-
abeth Webber, WASHINGTON LAWYERS' COMMITTEE FOR
CIVIL RIGHTS AND URBAN AFFAIRS, Washington, D.C., for
Appellee. ON BRIEF: Timothy D. Speedy, Gregory T. Alvarez,
JACKSON, LEWIS, SCHNITZLER & KRUPMAN, Morristown,
New Jersey, for Appellant. Joseph M. Sellers, Dann Determan,
WASHINGTON LAWYERS' COMMITTEE FOR CIVIL RIGHTS
AND URBAN AFFAIRS, Washington, D.C.; William D. Hopkins,
Jodi L. Cleesattle, ROSS, DIXON & MASBACK, L.L.P., Washing-
ton, D.C., for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

MICHAEL, Circuit Judge:

Lloyd Cooper sued his former employer, Paychex, Inc., alleging
violations of Title VII and 42 U.S.C. § 1981. At trial Cooper's super-
visor said that Cooper was fired due to poor job performance, and
Cooper offered evidence that the supervisor's claim was merely pre-
text for racial discrimination. The jury believed Cooper and gave him
a substantial verdict, including punitive damages. After trial the dis-
trict court denied Paychex's motion for judgment as a matter of law
or for a new trial and awarded Cooper attorneys' fees. On appeal Pay-
chex argues that its post-trial motions should have been granted
because the court erred by: admitting evidence concerning the racial

                    2
bias of Cooper's former secretary; admitting data on the racial
makeup of Paychex's nationwide employment figures; refusing to
give the jury a "business judgment" instruction; and misstating the
burden of proof in a race discrimination case. Paychex also contends
that the court's grant of attorneys' fees was excessive and that the jury
should not have been instructed on punitive damages. In addition,
Cooper cross-appeals the amount of fees he was granted. We find no
error in the trial court's jury instructions or evidentiary decisions or
in the amount of its attorneys' fees award. Therefore, we affirm.

I.

Cooper, an African American sales manager, worked for Paychex,
a national payroll servicing company, from 1989 until his termination
in 1993. Cooper initially was hired as the Field Sales Manager (FSM)
for Paychex's Washington district, which included offices in Fairfax,
Richmond, and Tidewater, Virginia. In 1990 Cooper became the Dis-
trict Sales Manager (DSM) for the Washington district. As DSM,
Cooper was responsible for recruiting, training and supervising sales
representatives. The district's FSM, Jane Hartsock, assisted him with
these tasks.

Cooper was an excellent DSM. He was readily available to help
sales representatives with technical or sales-related questions, and he
had a good working knowledge of both of these aspects of Paychex's
business. Cooper also brought a great deal of intensity and commit-
ment to his job. In fact, certain Paychex sales representatives said that
Cooper was the best DSM they had worked under during their careers
at Paychex. Cooper was therefore a strong leader for the sales team,
and he performed well in the area that mattered most to Paychex,
meeting sales quotas. Under Cooper's guidance the Washington dis-
trict achieved 110 percent of its sales quota for the 1993 fiscal year,
a 22 percent increase over the prior year. The district continued its
success throughout the time Cooper was DSM. In July 1993, for
example, the district made 103 percent of its sales quota.

In early 1993 Ed Reid became the Zone Sales Manager (ZSM) of
Paychex's Mid-Atlantic Zone, which included the Washington dis-
trict. As ZSM, Reid supervised every DSM in the Mid-Atlantic Zone,
including Cooper. On March 8, 1993, Reid made his first visit as

                     3
ZSM to the Washington district headquarters in Fairfax. Reid said
that one purpose of this visit was to familiarize himself with the dis-
trict's management and sales personnel. However, Reid did not get
around to meeting with DSM Cooper, the leader of the Washington
sales team, until after he (Reid) met with other, selected employees
in that office, including Cooper's secretary, Tracy Dodd.

Meeting with Dodd was the main reason Reid visited the Washing-
ton district. Dodd had complained to Paychex's higher management
about Cooper's performance, and Reid wanted to investigate her
complaints.1 When Reid spoke with Dodd, she criticized Cooper's
availability, his timeliness, his intensity and commitment to Paychex,
and his technical knowledge of Paychex's product. 2 There was, how-
ever, ample evidence to allow the jury to conclude that most of
Dodd's criticisms of Cooper were baseless. In any event, Reid con-
fronted Cooper that same day. Reid did this without taking time to
evaluate Cooper's performance first hand and without consulting nine
of the eleven sales representatives in the district about Cooper's per-
formance. When Reid confronted Cooper, he criticized Cooper for,
among other things, lacking intensity. In this, Reid's first meeting
with Cooper, Reid did not even ask Cooper to assess his own perfor-
mance, nor did he give Cooper an opportunity to explain the problems
alleged about his performance.

About a week later Reid sent Cooper a memorandum, dated March
15, 1993, in which Reid purported to memorialize his comments from
_________________________________________________________________
1 There was evidence that Dodd was prejudiced against African Ameri-
cans. Dodd admitted at trial that she told racially biased jokes that tar-
geted African Americans and used the term "nigger" to refer to African
Americans. In addition, another former Paychex sales representative tes-
tified that Dodd had called Cooper a "lazy black ass" behind Cooper's
back.

2 At trial Reid testified that two other Paychex employees with whom
he spoke on March 8 also had complaints about Cooper. But Reid admit-
ted that two other employees, including FSM Hartsock (the only other
sales manager in the office), had no complaints whatsoever about Cooper
on March 8. Further, Reid admitted that his consultation with sales repre-
sentatives about Cooper's performance was very limited: most of them
were not contacted at all.

                     4
their March 8 meeting. Yet, the memorandum contained some criti-
cisms that Reid had not even discussed with Cooper in the March 8
meeting. These new criticisms included the ones Dodd made to Reid
on March 8 -- unavailability, tardiness, and poor technical knowl-
edge. The memo did not offer Reid's basis for these criticisms, how-
ever. Also, the memo did not indicate that Reid had performed any
further investigation of Cooper's performance after his March 8 visit
to the Washington district office.

Cooper attempted immediately to address the criticisms raised in
Reid's March 15 memo, both orally and in writing. However, Reid
continued to criticize Cooper harshly. About one month after Reid
first met with Cooper, Reid warned Cooper in no uncertain terms that
"any further infraction" would lead to his termination. This warning,
given in a memo dated April 13, did not say what"infraction" Cooper
had committed; the memo simply criticized Cooper's handling of a
personal dispute between two of the sales representatives. Then, just
two weeks later, Reid urged Cooper to resign and accept a severance
package. These actions belied Reid's real hostility to Cooper's contin-
ued employment with Paychex.

It was revealed at trial that Reid had admitted in his deposition that
he decided to fire Cooper within his first month as Mid-Atlantic ZSM.
Reid also admitted that he made this decision without first initiating
the customary, formal evaluation of Cooper's performance, which
would have taken at least ninety days to complete. At trial, however,
Reid told a different story and claimed that he did not decide to termi-
nate Cooper until August 1993.

In mid-July 1993 Reid met with Cooper again to address the con-
cerns he claimed to have about Cooper's performance and to discuss
the sales figures for the Richmond and Tidewater offices. Again, Reid
documented his recollection of this meeting with a memorandum,
dated July 20. In that memo Reid directed Cooper to submit an
updated action plan for the Richmond and Tidewater offices by the
end of July. According to Reid, Cooper failed to comply with this
request and gave no adequate excuse for his failure. Afterwards, Reid
said, he decided that Cooper was unable to lead the Washington sales
team. Reid fired Cooper on August 6, 1993.

                    5
Reid claimed that he fired Cooper due to poor performance. How-
ever, the record amply supports (and the jury believed) a different
story, which is: Reid drummed Cooper out of Paychex because he
(Reid) wanted to bring in "his own team" -- a team that was all
white. Thus, instead of conducting an objective evaluation of Coo-
per's performance over the customary three-month period, Reid set
out immediately to get rid of him. All of Reid's oral and written criti-
cisms of Cooper after March were part of Reid's efforts to cover up
his plan to drive Cooper out of the Washington district office and fal-
sify a paper trail to make it look as though Cooper was performing
poorly. Reid's strategy was apparent from the way he criticized Coo-
per's management style from day one, the way he reacted in an unrea-
sonably harsh manner to Cooper's alleged mistakes, and the way he
refused to take the time to formally evaluate Cooper's work.

There is other evidence that Reid concocted a scheme to get rid of
Cooper and then lied about it. This includes Reid's fabrication of one
of the criticisms on which he supposedly relied in terminating Coo-
per. Reid asserted in his July 20 memorandum to Cooper that sales
representative Mike Kelly had complained about Cooper's manage-
ment. According to Reid, Kelly said that Cooper had left him in the
dark about his sales quota and had failed to properly train him. How-
ever, Kelly denied ever making the statements and said that any such
statements would be false.

Reid told Cooper in mid-April 1993 that he (Reid) wanted to bring
in his own team. However, Reid's reason for wanting to bring in his
own team was not business-related, but discriminatory: he wanted to
get rid of Cooper because Cooper was African American. This dis-
criminatory animus was evidenced by Reid's statement to Cooper,
less than two months after becoming ZSM, that " you people don't
have the technical expertise to do this job." (emphasis added).
Although Reid claimed otherwise, it was clear from the context of the
conversation that in referring to "you people," Reid meant African
Americans in general. Thus, when Reid said that he wished to bring
in his own team, it was clear that Reid did not want any African
Americans on that team. And in fact, when Reid brought in his own
team, it was all white. After Cooper was fired, Reid promoted Hart-
sock and Dekowski, both of whom were white, to be the new DSM
and FSM, respectively.

                    6
Reid's discriminatory attitude was also manifested by comparing
the favoritism he showed Keith Holland, a white DSM who got into
difficulties, with the antagonism he showed Cooper, an African
American, as a result of problems attributed to Cooper. The main
problems that Reid attributed to Cooper were unavailability, lack of
intensity, tardiness, and poor technical knowledge. 3 Holland's prob-
lems were far worse. He harassed, lied to, intimidated and threatened
his sales staff. Yet, despite the seriousness of the problems with Hol-
land's management style, Reid did not attempt to railroad Holland out
of Paychex as he (Reid) did Cooper. Instead, Reid investigated the
Holland matter carefully and did not decide how to handle the situa-
tion until he spoke to every sales representative in Holland's district
(unlike in Cooper's case, when Reid threatened Cooper's job soon
after hearing complaints from Cooper's secretary). Even then, Hol-
land was offered an opportunity to improve his performance by
attending special training programs, a luxury that Cooper was not
afforded. Finally, while Reid was instrumental in the decision to
retain Holland, he (Reid) terminated Cooper.

Statistical data showing that Paychex employed very few minori-
ties also lent some support to the case that Cooper was fired because
of his race. In 1993 Paychex employed one African American DSM
and forty white DSMs. In 1994 there were no African American
DSMs and fifty-one white DSMs at Paychex. In 1995 there was just
one African American DSM and there were fifty-two white DSMs.
This ratio of African American DSMs to white DSMs was nearly the
same as the ratio of African American sales representatives to white
sales representatives. In 1993 there were nine African American and
510 white sales representatives, in 1994 there were eleven African
American and 564 white sales representatives, and in 1995 there were
eight African American and 652 white sales representatives.

After a four-day trial the jury awarded Cooper back pay
($200,272), compensatory damages for emotional distress ($50,000),
and punitive damages ($100,000). The court then awarded Cooper
attorneys' fees. Paychex moved for judgment as a matter of law and
_________________________________________________________________
3 Several Paychex sales representatives testified that these complaints
were simply untrue, and the jury apparently believed their testimony
rather than Reid's.

                    7
for a new trial on a number of grounds. According to the trial court,
Paychex "hurl[ed] at least sixteen objections against the judicial wall
with the hope that at least one [would] stick." Cooper v. Paychex,
Inc., 960 F. Supp. 966, 969 (E.D. Va. 1997). The trial court rejected
every one of Paychex's claims. See id. at 969-76. Paychex now
appeals on essentially the same grounds, and Cooper cross-appeals.

II.

On appeal Paychex offers twelve assignments of error. Of these,
seven warrant discussion. First, Paychex claims that the district court
committed reversible error by admitting the testimony concerning
Dodd's biased remarks about African Americans. The company says
it was also error to admit the statistical data showing that the work-
force at Paychex was almost entirely white. Next, Paychex asserts that
the district court incorrectly stated the law with respect to Cooper's
burden of persuasion on the prima facie case of discrimination and the
issue of pretext. Further, Paychex argues that it was entitled to a
"business judgment" instruction. Paychex argues that it was entitled
to judgment as a matter of law, or at least a new trial, as a result of
these five errors because the evidence of discrimination was slim
without the inadmissible evidence and the instruction errors com-
pounded the harm from the evidentiary errors. In any event, Paychex
says the court should not have instructed the jury on punitive dam-
ages. Finally, Paychex claims that the award of attorneys' fees was
too high. We reject all of these claims.4
_________________________________________________________________
4 Paychex also argues that: (1) the district court erred by admitting the
findings and conclusions of the Fairfax County Human Rights Commis-
sion, which investigated Cooper's race discrimination complaint against
Paychex; (2) the court failed to properly instruct the jury that Cooper was
required to mitigate his damages; (3) the jury's award of back pay was
improper as a matter of law because Cooper failed to mitigate his dam-
ages; (4) the jury's award of compensatory damages to Cooper for emo-
tional distress was against the clear weight of the evidence; and (5) the
court incorrectly applied Virginia's statutory prejudgment interest rate in
calculating prejudgment interest for Cooper.

These claims are meritless for the reasons set forth by the district
court. See Cooper v. Paychex, Inc., 960 F. Supp. 966, 970 (E.D. Va.
1997) (explaining why the court properly exercised its discretion to

                    8
In his cross-appeal Cooper claims that his attorneys' fee award was
too low. We disagree and affirm the fee award.

III.

We review a district court's decisions concerning the admission of
evidence for an abuse of discretion. See Benedi v. McNeil-P.P.C.,
Inc., 66 F.3d 1378, 1383 (4th Cir. 1995). Of course, we review de
novo all legal questions necessary to assess the ultimate question of
whether the court abused its discretion.

A.

The testimony that Dodd had previously told racist jokes, used the
word "nigger," and referred to Cooper as a"lazy black ass" tended to
show that she was biased against African Americans. The district
court concluded that this evidence was admissible because Dodd "had
a significant impact in the decision to fire" Cooper. Cooper v. Pay-
chex, Inc., 960 F. Supp. 966, 970 (E.D. Va. 1977). Paychex argues
that Dodd's testimony was inadmissible because Dodd was not
involved in the decision to fire Cooper. Dodd's testimony was preju-
dicial, Paychex says, because there is a danger that the jury imputed
her bias to the company. We do not believe that a new trial is required
because of the admission of Dodd's testimony. Even if the district
court abused its discretion in admitting Dodd's testimony, there was
still no reversible error because Paychex was not prejudiced by
Dodd's testimony.

First, Cooper's trial counsel did not ask the jury to attribute Dodd's
comments to Paychex. In his closing Cooper's counsel only referred
to Dodd's comments twice. The first time, he said:
_________________________________________________________________
admit the Human Rights Commission's report); id. at 972 (explaining
why the court's mitigation instruction was proper); id. at 973 (holding
that Cooper's mitigation efforts were not insufficient as a matter of law);
id. at 973 n.4 (explaining that Paychex waived its objection to the com-
pensatory damages, and further, holding that the award was supported by
the evidence); id. at 974 (exercising its discretion to apply the Virginia
statutory rate for prejudgment interest in the absence of a standard fed-
eral rate).

                    9
           Now, there were two other witnesses who testified about
          Lloyd's performance at Paychex: One was Tracy Dodd, his
          secretary, who admittedly did not like him, spied on him,
          made anonymous calls to headquarters about him, has told
          racial jokes, has used the word "nigger" and who . . . has
          called Lloyd "a lazy black ass". It's hard to imagine a case
          with a more obviously biased and prejudiced witness than
          that. And Tracy Dodd has a very strong motive to lie about
          Lloyd in order to justify the firing that her smear campaign
          brought about.

Here, counsel was arguing that Dodd told a false story about Cooper's
performance, which Reid used to begin his campaign to terminate
Cooper. Counsel's comments therefore supported the legitimate argu-
ment that the company's stated reason for firing Cooper, poor perfor-
mance, was not worthy of belief.

The second time Cooper's counsel mentioned Dodd's racial bias,
he referred in passing to her role in the process of Cooper's termina-
tion. However, counsel did not attempt to attribute Dodd's bias to
Paychex. Counsel merely said:

           Are there any other indications in the record that this was
          a racially discriminatory firing? Beyond the stark contrast in
          the treatment of Lloyd and Keith, I suggest the record shows
          plenty. The firing clearly had its genesis in the anonymous
          sniping and spying campaign launched by Tracy Dodd,
          whose racism is virtually admitted.

           It was carried out by a zone manager who has had little
          contact with blacks and no lasting friendship; who has never
          worked with a black DSM other than Lloyd; who didn't
          know whether there were any blacks in his community when
          was growing up; who has never had an opinion about the
          racial diversity in Paychex's management; who looked
          Lloyd Cooper in the eye and said, you people don't have the
          technical knowledge and expertise to do this job, so I will
          bring in my own team.

                    10
           Ed Reid was granted by Paychex the authority to carry
          out this firing, and, according to his testimony, the company
          supported his decision.

           So, if his motive was racist, Paychex is liable.

Here, Cooper's counsel mentioned Dodd only briefly, and the focus
of his argument was to portray Reid, not Dodd, as a biased decision-
maker. Although counsel called Dodd "the genesis" of Cooper's fir-
ing, counsel firmly stated that Reid had "carried. . . out" Cooper's
firing. Here, counsel was asking the jury to attribute only Reid's racist
motives to Paychex. Dodd's alleged racism, while mentioned, was not
offered to the jury as a reason to hold Paychex liable for Cooper's ter-
mination.

Second, our review of the district court's instruction on liability
reveals that the jury was not told that it could attribute Dodd's racial
bias to Paychex. The court instructed the jury, correctly, that it could
only "consider discriminatory or racially stereotyped comments made,
or tolerated by those who participated in employment decisions
affecting the plaintiff as evidence of Paychex's discriminatory intent."
Here there was no evidence that Reid either knew of or tolerated
Dodd's racist comments. Further, Cooper's counsel never argued that
Dodd participated in the decision to fire Cooper. We therefore can
presume that the jury followed this instruction and did not attribute
Dodd's racial biases to Paychex.

Finally, there was enough independent evidence of Reid's own
racial bias to support the verdict against Paychex. For example,
Reid's "you people don't have the technical expertise" comment to
Cooper demonstrated Reid's bias against African Americans.
(Emphasis added.) Reid's bias was also shown by his favorable treat-
ment of a white DSM with poor management skills as compared to
his harsh treatment of Cooper, who demonstrated that he was an
excellent manager.

Accordingly, even if the district court's admission of the evidence
of Dodd's bias was improper, we do not believe that it affected the
outcome of the case.

                     11
B.

Paychex also complains that the trial court abused its discretion by
admitting statistical data showing the racial composition of Paychex's
nationwide sales force. The statistics showed that between 1993 and
1995, the ratio of white to African American sales managers was
about one to forty, and the ratio of white to African American sales
representatives was about one to fifty. Cooper introduced this statisti-
cal data as evidence that Reid's proffered reason for terminating him
was merely pretext for discrimination, on the theory that Paychex's
poor track record of hiring African Americans was some evidence
that his firing had occurred because of his race.

It is well established that "[s]tatistics can provide important proof
of employment discrimination" in Title VII cases, both to establish a
prima facie case of discrimination and to demonstrate that the
employer's proffered reason for its employment decision was pretext
for discrimination. See Carter v. Ball, 33 F.3d 450, 456 (4th Cir.
1994). Paychex, however, contends that Cooper's statistics concern-
ing its employment of African Americans nationwide were irrelevant
for two reasons. First, Paychex claims that the statistics did not sug-
gest that Reid fired Cooper with a discriminatory motive because
nationwide numbers do not reflect Reid's own employment practices
(since Reid only managed the Mid-Atlantic zone). This claim con-
fuses the decisionmaker with the employer. See Cooper v. Paychex,
960 F. Supp. 966, 970 (E.D. Va. 1997). Reid was the decisionmaker
here, but he made the decision to fire Cooper on behalf of the
employer, Paychex. It is the employer, not the decisionmaker, whom
a plaintiff sues for violating Title VII. Any statistical evidence which
tends to suggest that the employer's practices are discriminatory
reflects on the question of whether the employer discriminated against
a specific employee, regardless of whether those statistics reflect the
practices of the specific person who made the decision to terminate
that employee. Moreover, we reject Paychex's premise. Evidence
suggesting than an employer had a general practice of discrimination
does reflect on the actual decisionmaker because it suggests that the
decisionmaker may have followed the company line in making his
decision based on race. See Estes v. Dick Smith Ford, Inc., 856 F.2d
1097, 1103 (8th Cir. 1988).

                    12
Second, Paychex argues that Cooper's data was irrelevant because
it did not set forth the racial distribution of the relevant labor pool.
Without establishing the number of qualified white and African
American candidates for DSM and sales representative positions,
Paychex argues, Cooper's evidence of the ratio of whites to African
Americans in those positions at Paychex was entirely meaningless to
show a pattern of discrimination. We disagree. This circuit has held,
on more than one occasion, that a district court did not abuse its dis-
cretion by refusing to admit raw employment figures without compar-
ative data on the number of qualified whites and African Americans
in the relevant labor pool. See, e.g., Carter, 33 F.3d 450 at 456;
Williams v. Cerberonics, Inc., 871 F.2d 452, 455 n.1 (4th Cir. 1989).
However, we have never held that data concerning the racial makeup
of an employer's workforce was irrelevant to the issue of discrimina-
tory intent in the absence of comparative data on the racial makeup
of the relevant labor pool. Of course, raw data, such as the number
of African Americans working for a particular employer, will be of
little use to a jury if it is not placed in context. See Williams, 871 F.2d
at 455 n.1. But we have not set the bar so high that statistical data
must be compelling in order to be relevant; the threshold inquiry for
relevance is not so stringent. Rather, we have allowed trial courts to
exercise their discretion to decide whether the data is placed in suffi-
cient context to be of assistance to the jury. Generally, the presence
or absence of comparative data (and the quality of the comparative
data) will go to the weight, not the competence, of the evidence.

Here, the statistical evidence showed that Paychex had virtually a
lily-white sales force and sales management structure, employing (on
average) less than one African American DSM nation-wide between
1993 and 1995. Cooper did not provide comparative labor pool num-
bers to complement his statistics, so his data was not compelling evi-
dence of discrimination. However, we cannot say that his data was
irrelevant. Employment statistics are often admissible as some evi-
dence of discrimination even when they are not enough by themselves
to get a plaintiff to a jury on that issue. See MacDissi v. Valmont
Indus., Inc., 856 F.2d 1054, 1058 (8th Cir. 1988); cf. e.g., Henson v.
Liggett Group, Inc., 61 F.3d 270, 276-77 (4th Cir. 1995); Birkbeck v.
Marvel Lighting Corp., 30 F.3d 507, 511-12 (4th Cir. 1994); Mallory
v. Booth Refrigeration Supply Co., 882 F.2d 908, 912 (4th Cir. 1989).

                     13
Therefore, the court did not abuse its discretion by admitting Coo-
per's statistical data.

Moreover, even if we were inclined to say that the trial court erred
by admitting Cooper's statistical data, we are certain that this mistake
did not prejudice Paychex. There was independent evidence of pretext
(including Reid's harsh treatment of Cooper from day one) and dis-
crimination (including Reid's favoritism of Baltimore DSM Keith
Holland and Reid's "you people" comment). This evidence was more
than sufficient to get Cooper to a jury. As a result, we conclude that
the court neither abused its discretion by denying Paychex a new trial
nor erred by denying Paychex judgment as a matter of law due to any
errors in admitting evidence.

IV.

Next, Paychex challenges three of the district court's jury instruc-
tions. We review a district court's formulation of a jury instruction for
an abuse of discretion. See United States v. Abbas, 74 F.3d 506, 513
(4th Cir.), cert. denied, 517 U.S. 1229 (1996). In doing so, we con-
sider whether the instruction, when construed as a whole, "properly
informed the jury of the controlling legal principles without mislead-
ing or confusing the jury to [the defendant]'s prejudice." Hartsell v.
Duplex Prods., Inc., 123 F.3d 766, 775 (4th Cir. 1997).

A.

Paychex criticizes two aspects of the trial court's jury instruction
on Cooper's burden of proof. Cooper proceeded under the familiar
method of proving employment discrimination by circumstantial evi-
dence, set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-04 (1973). Under McDonnell Douglas, a plaintiff first must
establish a "prima facie case" of discrimination. When the plaintiff
alleges that he was illegally terminated, his prima facie case consists
of evidence that (1) he was a member of a protected class (2) who was
qualified for his job and performed his job satisfactorily, (3) was
fired, and (4) the position was filled by a similarly qualified applicant
after his dismissal. See Karpel v. Inova Health Sys. Servs., 134 F.3d
1222, 1228 (4th Cir. 1998). Once the plaintiff makes out a prima facie
case, the burden of production shifts to the employer, which must

                     14
articulate a legitimate, nondiscriminatory reason for the adverse
employment action. If the employer advances such a reason, the
plaintiff must rebut the reason by proving that it was simply pretext
for intentional discrimination. See St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 506-11, 515 (1993).

Paychex challenges the district court's instruction on the second
element of the prima facie case. Paychex asked the court to instruct
the jury that Cooper must prove he "was qualified for his job and per-
forming his job at a level which met his employer's legitimate expec-
tations." The court opted instead to instruct the jury that Cooper had
to prove that he "was satisfactorily performing his job." Paychex
argues that this instruction failed to inform the jury that Cooper had
to prove he was performing his job to Paychex's satisfaction, not just
to the jury's own satisfaction. We disagree.

Paychex is correct, of course, that this court has described the
plaintiff's burden using Paychex's proposed language. See, e.g.,
O'Connor v. Consolidated Coin Caterers Corp., 56 F.3d 542, 546
(4th Cir. 1995), rev'd on other grounds, 517 U.S. 308 (1996);
Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1315 (4th Cir. 1993). Fur-
ther, we agree that Paychex's proposed language more clearly con-
veys to a jury that it may not impose on a defendant its own view of
what constitutes satisfactory employee performance. However, when
evaluating jury instructions we do not reverse simply because one
instruction might have been a little clearer. See Nelson v. Green Ford,
Inc., 788 F.2d 205, 209 (4th Cir. 1986). Rather, we affirm so long as
the jury instructions, taken as a whole, were correct and understand-
able. Here, the district court's formulation of Cooper's burden was
correct and understandable, since we have often used similar formula-
tions without any indication that a district court must be more clear.
See, e.g., Carter v. Ball, 33 F.3d 450, 459 (4th Cir. 1994); McNairn
v. Sullivan, 929 F.2d 974, 979 (4th Cir. 1991); Alvarado v. Board of
Trustees, 928 F.2d 118, 122 (4th Cir. 1991); Williams v. Cerberonics,
Inc., 871 F.2d 452, 455 (4th Cir. 1989). Since the instruction
informed the jury of the law to apply and the instruction's phrasing
was understandable, there was no abuse of discretion.

Paychex also complains that the district court did not properly
instruct the jury on Cooper's burden with respect to proving pretext.
The challenged instruction (with emphasis added) was:

                    15
           If . . . the defendant has produced evidence of a reason
          other than race for discharging plaintiff, you must find for
          the defendant unless you find, considering all of the evi-
          dence in the case, that the plaintiff has proved that the rea-
          son given by the defendant was not the true reason for
          plaintiff's discharge, or that it is more likely than not that,
          except for the plaintiff's race, he would not have been dis-
          charged.

           Plaintiff must show that the defendant intentionally dis-
          criminated against him. Plaintiff, however, is not required to
          produce direct evidence of intentional discrimination. . . .

          ....

          The law is violated if the defendant's actions would not
          have occurred "but for" the plaintiff's race.

According to Paychex, this instruction allowed the jury to find that
Paychex violated the law if it found either that Paychex's proffered
nondiscriminatory reason for terminating Cooper was pretext or that
Paychex discharged Cooper because of his race. Paychex argues that
this is an incorrect statement of the law. In order to hold an employer
liable for intentional discrimination, it argues, a jury must find that
the employer's proffered nondiscriminatory reason for firing the
employee was pretext for discrimination -- that is, the jury must find
both pretext and discrimination.

We agree with Paychex's statement of the law but disagree with its
interpretation of the relevant jury instruction. Under the McDonnell-
Douglas burden-shifting analysis, an employee retains the ultimate
burden of proving that the employer intentionally discriminated
against him. See Hicks, 509 U.S. at 514-15; DeJarnette v. Corning
Inc., 133 F.3d 293, 298 (4th Cir. 1998). Thus, although the
McDonnell-Douglas analysis helps focus the jury's inquiry by placing
before it two possible reasons for the employer's adverse employment
action, the intent to discriminate and the employer's proffered, legiti-
mate reason, the jury is not required to accept the former just because
it rejects the latter. The jury may disbelieve that the employer's prof-
fered reason was its actual reason for firing the plaintiff, but remain

                     16
unconvinced that the real reason the employer fired the plaintiff was
due to unlawful discrimination.5 Since a plaintiff does not prove his
case unless the jury both rejects the defendant's proffered reason for
the adverse employment action and accepts that the real reason for the
employer's action was discrimination, a court may not inform a jury
to decide for the plaintiff if it finds solely pretext. A court must
inform a jury to find for the plaintiff only if it finds both pretext and
discrimination.

If the district court had done as Paychex claims, it would have been
in error. However, the court's jury instruction focused on the
defendant, not on the plaintiff. The court did not state at any time that
the jury could give the plaintiff a verdict if it found pretext but not
discrimination. Rather, the court said the converse, that the jury "must
find for the defendant unless" it found pretext or discrimination. Of
course, if the court had just left it at that, the instruction would have
been incomplete. Since this part of the instruction did not tell the jury
what to do if it found just pretext, the jury might have been left with
the mistaken impression that it could give a verdict to the plaintiff
based solely on a finding of pretext. However, the court's instruction
did not stop there. The court also explained to the jury that if it found
pretext it had to ascertain whether "[p]laintiff . . . show[ed] that the
defendant intentionally discriminated against him." This instruction
adequately informed the jury that it had to find both pretext and dis-
crimination in order to find for Cooper.

As if this was not enough, the court also made certain that the jury
understood the law by reiterating the bottom line:"the law is violated
if the defendant's actions would not have occurred`but for' the plain-
tiff's race." This additional instruction informed the jury that, despite
the burden-shifting aspect of the prima facie case, Cooper retained the
ultimate burden of proving that Paychex's proffered reason for firing
_________________________________________________________________
5 That is to say, the jury may conclude that the defendant fired the
plaintiff for a third (legitimate but not proffered) reason. The jury could
so conclude if it found that the employer proffered a false reason for its
action, not as a pretext for discrimination but rather to cover up a third
(possibly embarrassing but nonetheless legitimate) reason for firing the
plaintiff. Cf. e.g., Holder v. City of Raleigh, 867 F.2d 823, 827-28 (4th
Cir. 1989).

                     17
him was pretext for discrimination. On the whole, the district court's
instruction on pretext was correct. Again, there was no abuse of dis-
cretion.

B.

Paychex also challenges the district court's decision not to give a
"business judgment" instruction, that is, an instruction to the jury that
it could not find for Cooper simply because it disagreed with Reid's
reason for firing him. Paychex argues that such an instruction was
necessary to ensure that the jury did not substitute its own ideas about
fairness and good business practices for Reid's. We disagree.

When scrutinizing the district court's jury instructions in a race dis-
crimination case, we consider whether the instructions "fairly placed
before the jury the dispositive question of whether race was a deter-
minative factor in the adverse employment decision." Fuller v.
Phipps, 67 F.3d 1137, 1144 (4th Cir. 1995). If so, we require no fur-
ther explication of the law. In fact, we discourage repetitive or com-
plex supplemental instructions that may confuse the jury. Cf. Mullen
v. Princess Anne Volunteer Fire Co., Inc., 853 F.2d 1130, 1137 (4th
Cir. 1988). It is true, of course, that a jury may not substitute its own
business judgment for that of the employer. See McNairn, 929 F.2d
at 980; cf. also Holder v. City of Raleigh, 867 F.2d 823, 825-26 (4th
Cir. 1989). However, we do not require a trial court to provide a sepa-
rate business judgment instruction when it otherwise correctly
instructs the jury on the law. Even when a business judgment instruc-
tion might be useful, its omission does not provide a basis for under-
mining the adequacy of the jury charge as a whole so long as the rest
of the charge does do not lead the jury to believe that it may find for
the plaintiff if it disagrees with the employer's business judgment. See
Kelley v. Airborne Freight Corp., 140 F.3d 335, 350-51 (1st Cir.
1998).

Here (as we explained above), the district court properly instructed
the jury on the prima facie case and the issue of pretext. The court
then reiterated that the jury could give a verdict to Cooper only if
Paychex terminated him because of his race. These instructions did
not suggest that the jury could find for Cooper simply because it dis-
agreed with Reid's decision to fire Cooper. Rather, these instructions

                     18
made clear that Cooper could prevail only if he showed that Pay-
chex's proffered reason for his termination was false and the real rea-
son he was fired was his race. The instructions correctly stated the
law, and the court was required to do no more than that.6

C.

Paychex also complains that the district court should not have
instructed the jury on punitive damages. Paychex argues that even if
Cooper proved that it fired him because of his race, there was no evi-
dence that Paychex acted with the heightened culpability necessary
for an award of punitive damages.

Punitive damages are not warranted in every case of discrimina-
tion. See Stephens v. South Atl. Canners, Inc. , 848 F.2d 484, 489-90
_________________________________________________________________
6 Paychex urges us to adopt a rule requiring a business judgment
instruction whenever the defendant asks for one, even when the district
court has correctly instructed the jury that it must find that the plaintiff's
race was the "but for" cause of his termination. Only one circuit follows
such a rule, see Stemmons v. Missouri Dep't of Corrections, 82 F.3d 817,
819 (8th Cir. 1996); Walker v. AT&T Techs., 995 F.2d 846, 849-50 (8th
cir. 1993), and even that circuit has held that the failure to give such an
instruction is not necessarily prejudicial error, see Stemmons, 82 F.3d at
820.

We need not decide now whether such a rule is warranted. Even if we
required such an instruction, the failure to give one here was not prejudi-
cial error. Nothing in the record suggested to the jury that it could find
for Cooper merely because it disagreed with Reid's business judgment.
Although Cooper challenged Reid's assessment of his performance, Coo-
per's lawyer used this testimony in his summation solely to show that
Paychex's proffered reason for firing Cooper was pretextual. Also, there
was substantial evidence and argument about the issue of race. Surely,
the jury knew that the issue before it was race, not fairness, so there was
no need for a business judgment instruction. See Stemmons, 82 F.3d at
820-21 (holding that the failure to give a business judgment instruction
was not reversible error, and distinguishing Walker, which held that fail-
ure to give a business judgment was reversible error, because in Walker
the trial focused solely on the plaintiff's qualifications and there was no
testimony about whether discrimination played a role in the adverse
employment decision).

                    19
(4th Cir. 1988). Evidence sufficient to reach a jury on the issue of dis-
crimination is not necessarily sufficient to warrant a punitive damages
instruction. See Harris v. L & L Wings, Inc., 132 F.3d 978, 982-83
(4th Cir. 1997). To warrant such an instruction, under both Title VII
and 42 U.S.C. § 1981, the plaintiff must offer evidence which tends
to show that defendant acted with "malice, an evil motive, or reckless-
ness or callous indifference to a federally protected right." Cline v.
Wal-Mart Stores, Inc., 144 F.3d 294, 306 (4th Cir. 1998) (quoting
Stephens, 848 F.2d at 489).

Paychex argues that Cooper's sole proof of Reid's racial animus
was Reid's "you people" remark, which (it contends) was insufficient
to prove that Reid acted with malice towards Cooper's right to be free
from race discrimination. Paychex further contends that this remark
was not known to Paychex, and so Paychex cannot be held liable for
it. Here Paychex is wrong as a matter of law and as a matter of fact.
First, it is "well settled that a private employer may be held liable for
punitive damages in employment discrimination case .. . based on the
act of supervisory employees." Patterson v. P.H.P. Healthcare Corp.,
90 F.3d 927, 942 (5th Cir. 1996), cert. denied , 117 S. Ct. 767 (1997).
As ZSM, Reid was without question a very high-level supervisor. He
was exactly the type of corporate "higher management" whose malice
or reckless indifference will be attributed directly to the corporate
employer through agency theory and will result in the imposition of
punitive damages against his employer. See Reynolds v. CSX Transp.,
Inc., 115 F.3d 860, 869 (11th Cir. 1997), cert. denied, 118 S. Ct. 2364
(1998); see, e.g., Patterson, 90 F.3d at 942; Cline, 144 F.3d at 299,
306. If Reid acted with malice or reckless indifference, then Paychex
was liable for punitive damages.

Second, Paychex is wrong that Cooper's only evidence of Reid's
malice or reckless indifference was Reid's "you people" statement.
Punitive damages may be warranted in discrimination cases when the
employer (or its agent) deliberately deceives the court by consciously
misrepresenting its true motives for an employment decision. See
Merriweather v. Family Dollar Stores of Indiana, Inc., 103 F.3d 576,
582 (7th Cir. 1996); see, e.g., Cline , 144 F.3d at 306. Here the jury
necessarily found that Reid lied when he testified about his reason for
firing Cooper. Indeed, the jury must have found that Reid deliberately
lied about his reason for firing Cooper throughout this episode --

                     20
from March 8, 1993, when he (Reid) first met with Cooper and criti-
cized him for no apparent reason; through mid-March 1993, when he
began creating a paper trail to cover his true intent to fire Cooper;
through July 1993, when he attributed false criticisms of Cooper to
Mike Kelly; and through early 1997, when he testified at trial. Reid's
systematic and continuous deceit, including his orchestrated cover-up
of his racist motivations and the jury's obvious rejection of his testi-
mony as false, revealed Reid's truly cavalier disregard for Cooper's
federal right to be free from race discrimination. Therefore, the dis-
trict court did not abuse its discretion in instructing the jury on puni-
tive damages.

V.

Finally, Paychex argues that Cooper's request for attorneys' fees
was excessive and, therefore, should be denied or substantially
reduced. We disagree. As the prevailing party in this civil rights
action, Cooper was entitled to an award of attorneys' fees. See Rum
Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 174 (4th Cir. 1994);
42 U.S.C. § 2000e-5(k). The district court had the discretion to deter-
mine the amount of the fee award, based on the twelve factors set
forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714,
717-19 (5th Cir. 1974). See Barber v. Kimbrell's Inc., 577 F.2d 216,
226 (4th Cir. 1978). Cooper requested attorneys' fees and costs in
excess of $397,000 for the seven lawyers, one summer associate and
five paralegals who assisted in his representation. The trial court care-
fully considered this request in a detailed, 15-page opinion by apply-
ing the factors set forth in Johnson. See Cooper v. Paychex, No. 96-
54-A, mem. op. at 2-14 (E.D. Va. April 14, 1997). The court awarded
Cooper $311,117.50 plus costs. The court concluded that this award
was warranted because Paychex's attorneys "played hard ball"
throughout the litigation, id. at 6, and because Cooper's attorneys
received "excellent results in getting [him] awarded back pay, com-
pensatory damages and punitive damages," id. at 12. Further, the
court did not simply award Cooper's full request. The court reduced
the fee amount for over-staffing or inefficient use of time. See id. at
3-8. Overall, the court reduced Cooper's fee request by more than 20
percent, and we cannot say it abused its discretion by not reducing the
award any more than that.

                     21
Nor can we say that the district court abused its discretion by trim-
ming too much fat from Cooper's fee award. Cooper challenges two
specific cuts: (1) the court's reduction, from $360.00 to $280.00, of
the hourly fee for his lead counsel (who had 27 years' experience as
a litigator), and (2) the court's refusal to award fees for 76 percent of
the time his lawyers spent responding to Paychex's motion for sum-
mary judgment. The court reduced lead counsel's rate because other,
similarly experienced attorneys winning recent civil rights cases in
that court had received only $225.00 to $250.00 per hour. See id. at
10-11. And, the court awarded fees on only 59.9 hours for Cooper's
summary judgment response because it found Cooper's 244.8-hour
request to be "extremely excessive." See id. at 8.

Cooper argues that the court should have granted his lead counsel
at least $325.00 per hour, which Cooper claims is the accepted rate
in the Washington, D.C. metro area. For this proposition Cooper cites
Laffey v. Northwest Airlines, Inc., 572 F. Supp. 354, 371 (D.D.C.
1983), rev'd in part on other grounds, 746 F.2d 4 (D.C. Cir. 1984),
which sets forth a rate schedule that (as updated yearly) has been
accepted by the District of Columbia Circuit as"a useful starting
point" for determining the prevailing fee rate in Washington,
Covington v. District of Columbia, 57 F.3d 1101, 1109 (D.C. Cir.
1995), cert. denied, 516 U.S. 1115 (1996). Of course, a trial court
determining what fee to award may take into account a rate schedule
like the Laffey court did. But it need not do so. We are skeptical about
endorsing a fee schedule, since a district court's discretion is already
adequately guided by Johnson.7 Therefore, we conclude that the trial
court did not abuse its discretion by using its own precedents to gauge
the going rate for experienced attorneys in civil rights cases.

We also reject Cooper's contention that the district court was
wrong to award less than one fourth of the hours his lawyers spent
responding to Paychex's summary judgment motion. Although the
court slashed this particular line item, on the whole the court granted
_________________________________________________________________
7 In fact, the Laffey rate schedule may be the wrong indicator for attor-
neys fees in the Eastern District of Virginia. Even if the prevailing rate
for senior partners in downtown Washington, D.C. is well above $300.00
per hour, the prevailing rate may be somewhat lower in the suburbs of
Washington, like Alexandria, Virginia.

                     22
Cooper nearly 80 percent of what he requested. Even if the court cut
too close to the bone on this one item, we cannot say that the overall
fee award was an abuse of discretion.

VI.

As the district court put it, "[t]he outcome of this case turned on
the credibility of two witnesses, the plaintiff Lloyd Cooper and Mr.
Ed Reid, the man who fired him on behalf of the defendant [Paychex].
The jury obviously believed Cooper more than Reid." Cooper v. Pay-
chex, Inc., 960 F. Supp. 966, 973-74 (E.D. Va. 1997). Credibility was
a question for the jury, and we will not second guess its verdict. The
district court's denial of Paychex's post-trial motions and grant of
fees to Cooper are both

AFFIRMED.

NIEMEYER, Circuit Judge, dissenting:

Contrary to the asserted position of Paychex, Inc., that it terminated
Cooper's employment because of poor job performance, Cooper
maintains that it was because he was African-American and that his
termination violated Title VII of the Civil Rights Act.

At trial, Cooper was permitted to introduce extensive and highly
inflammatory, irrelevant testimony of his secretary, Tracy Dodd, who
not only did not care for Cooper but also was a racial bigot. The
record demonstrates, however, that Dodd was not the decisionmaker,
nor was she consulted when the decision to terminate Cooper's
employment was made. Indeed, there was no evidence that Edward
Reid, the zone manager who made the decision to terminate Cooper,
was even aware of Dodd's racial animus. Dodd's limited role
involved her complaints to Reid, made after he became zone manager
in 1993, that Cooper came to work late and left early and that he did
not prepare monthly reports as necessary.

Yet, Tracy Dodd's testimony was the centerpiece of Cooper's case
for racial discrimination. Over objection, Dodd was pressed to testify
about her racial prejudice, her having told racially biased jokes, and

                    23
her having referred to African-Americans as "niggers." Over objec-
tion, she reluctantly agreed that she had referred to Cooper as "an
asshole," and another employee was allowed to attribute to Dodd her
characterization of Cooper as a "lazy black ass" as well as other racial
references about Cooper. During closing argument to the jury, this
evidence was again paraded to the jury by Cooper's counsel when he
argued as follows:

          Now, there were two other witnesses who testified about
          [Cooper's] performance at Paychex: One was Tracy Dodd,
          his secretary, who admittedly did not like him, spied on him,
          made anonymous calls to headquarters about him, has told
          racial jokes, has used the word "nigger" and who, while
          smoking with John Gillogly, has called [Cooper] "a lazy
          black ass." It's hard to imagine a case with a more obviously
          biased and prejudiced witness than that. And Tracy Dodd
          has a very strong motive to lie about [Cooper] in order to
          justify the firing that her smear campaign brought about.

The jury surely transferred this animus to the workplace generally and
to Paychex in particular.

In reviewing its decision to admit this evidence of and about Tracy
Dodd, the district court justified it on the grounds that Dodd "appears
to have had a significant impact on the decision to fire. Accordingly,
her testimony was properly admitted." That conclusion by the district
court, however, has no support from evidence in the record.

When Dodd's evidence is properly excluded from the jury, then the
thinnest of evidence, if any, remains to support a finding of racial ani-
mus in Reid's decision to fire Cooper. When Reid became zone man-
ager in March 1993, he began to make some personnel changes, and
over the next two years he fired Cooper as well as two other district
sales managers, both of whom were white, and he recommended that
a third district sales manager, also white, be terminated. In no docu-
ment or testimony is there any evidence that race was a factor in mak-
ing these decisions. Indeed, the evidence shows to the contrary that
during his period as zone manager, Reid hired three black sales repre-
sentatives.

                     24
Cooper testified, however, that Reid wanted to put in his own sales
team, all of whom were white. In connection with that effort, Cooper
attributed to Reid the following statements:

          Mr. Reid said to me that he wanted his own team. Mr. Reid
          said to me that he didn't think I can bring the team to the
          next level which has 125 percent quota. Mr. Reid looked me
          dead in the eye and made a face and said: You people don't
          have the technical expertise to do this job.

While Cooper took the reference to "you people" to refer to black
people, in context it would appear more probably to refer to the team
that Reid was replacing with his own personnel.

This remaining bit of testimony, which is ambiguous at most, does
not, I respectfully submit, support the jury's aggressive verdict
entered in this case, much less its award of punitive damages. The
record reveals clearly, in my judgment, that Dodd's testimony was a
most prejudicial and unfortunate element in this case, violating Fed-
eral Rule of Evidence 403.

Because I conclude that the admission of Dodd's extensive testi-
mony about her prejudice constituted reversible error, I would remand
this case for a new trial. Accordingly, I dissent.

                    25
