                              UNPUBLISHED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)
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Affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.




                                2
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

                                                     3
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

                                                 4
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

                                            5
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

                                         6
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

                                                7
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.”).



                                               8
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

                                          9
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.



                                          10
     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.”

                                         11
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.



                                         12
                                        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.



                                        13
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).



                                               14
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.



                                                   15
