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Retaliation jury instruction was wrong, but employee win stands

A trial court’s faulty jury instruction in a Title VII retaliation case did not allow an employer to escape a $333,029 win for an African-American truck driver whose coworkers subjected him to racist slurs and displays of nooses and confederate flags.

Although the “Title VII retaliation landscape” had changed since the jury award, the 4th U.S. Circuit Court of Appeals refused to order a new trial.

The Equal Employment Opportunity Commission sued the employer, A.C. Widenhouse Inc., on behalf of driver Contonious Gill, alleging retaliatory firing after Gill complained about the hostile environment.

A jury awarded Gill compensatory damages and punitive damages totaling $105,000, and the Greensboro, N.C. federal court awarded back pay with interest. The trial judge ordered Widenhouse to pay the EEOC $50,000 in compensatory and punitive damages and to pay Gill a total of $193,509.79, plus $132,650 in attorney’s fees and $6,868.80 in costs.

Although the U.S. Supreme Court had stepped up the standard for a Title VII retaliation claim – from bias as a “motivating factor” to a “but-for” cause – the change did not save the employer on appeal. Both sides agreed that the new standard under Univ. of Tex. Sw. Ctr. v. Nassar applied to Gill’s case, and the trial court’s motivating factor instruction was wrong.

But the 4th Circuit said the employer was not entitled to a new trial based on the plain error in the jury instruction because Widenhouse did not show the error affected “substantial rights,” said Judge Allyson K. Duncan in the court’s June 24 unpublished opinion.

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 unlawful activity,” Duncan wrote in EEOC v. A.C. Widenhouse Inc.

Widenhouse also challenged the attorney fee award as based on a $350 hourly rate that was too high for a solo practitioner “with lower overhead costs.”

A “counsel’s firm size and overhead are not necessary considerations,” the appellate court said as it upheld the fee award.

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