F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH SEP 29 1998
PATRICK FISHER
UNITED STATES COURT OF APPEALS Clerk
TENTH CIRCUIT
MICHAELA A. GUDENKAUF,
Plaintiff-Appellant - Cross-
Appellee,
v. No. 97-3063
& 97-3068
STAUFFER COMMUNICATIONS,
INC.,
Defendant-Appellee - Cross-
Appellant.
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 94-CV-4228)
Alan G. Warner (Amy C. Bixler with him on the brief) of Warner, Bixler &
Associates, L.L.C., Topeka, Kansas, for Plaintiff-Appellant - Cross-Appellee..
Michael W. Merriam of Gehrt & Roberts, Chartered, Topeka, Kansas, for
Defendant-Appellee - Cross-Appellant..
Before SEYMOUR, Chief Judge, McWILLIAMS, and MURPHY, Circuit
Judges.
SEYMOUR, Chief Judge.
Michaela A. Gudenkauf brought this discrimination action against her
former employer, Stauffer Communications, Inc., alleging that she was
terminated in violation of several federal statutes. A jury found that Stauffer’s
firing of Ms. Gudenkauf was motivated in part by her pregnancy, but that she
would have been terminated in any event. Because of this determination, 42
U.S.C. § 2000e-5(g)(2)(B) precluded Ms. Gudenkauf from an award of
reinstatement, back pay, or damages, but the district court held she was entitled to
an award of attorney’s fees and costs. After determining the lodestar, the district
court reduced the amount to reflect the degree of Ms. Gudenkauf’s overall success
on the mixed motive claim. Both parties appeal the fee award and we affirm.
I.
In her complaint, Ms. Gudenkauf alleged that her termination was the result
of sex discrimination in violation of Title VII, 42 U.S.C. § 2000e-2(a)(1),
pregnancy discrimination in violation of the Pregnancy Discrimination Act, 42
U.S.C. § 2000e(k) (PDA), and disability discrimination in violation of the
Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (ADA). Ms.
Gudenkauf also asserted a claim under the Family and Medical Leave Act, 29
U.S.C. §§ 2601 et seq. (FMLA), and state law claims for intentional infliction of
emotional distress. The district court dismissed the state law claims and granted
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Stauffer’s motion for summary judgment on the claims under the ADA and the
FMLA. Ms. Gudenkauf prevailed before the jury on her mixed motive PDA
claim and then she moved for costs and attorney’s fees. Stauffer argued to the
district court that Ms. Gudenkauf was not a prevailing party entitled to a fee
because she had obtained no relief. Alternatively, Stauffer contended that the
court in its discretion should award no fee because Ms. Gudenkauf had recovered
nothing and had served none of the interests supporting a fee award to a
prevailing plaintiff articulated by the Supreme Court in Farrar v. Hobby, 506
U.S. 103 (1992). Stauffer also argued that Ms. Gudenkauf had failed to provide
proof in support of her fee claims and that the amounts requested were grossly
excessive.
The district court rejected Stauffer’s argument that Ms. Gudenkauf was not
a prevailing party and its argument that Ms. Gudenkauf had only a nominal
victory resulting in special circumstances that justified the denial of any fee
award. See Gudenkauf v. Stauffer Communications, Inc., 936 F. Supp. 805 (D.
Kan. 1996) (Gudenkauf I). In a subsequent order, the court calculated a lodestar
amount under Hensley v. Eckerhart, 461 U.S. 424, 434 (1983), eliminating hours
spent on unsuccessful arguments not directly related to the pregnancy
discrimination claim, and further reducing the requested hours by thirty percent to
account for duplicated services, background research, and hours in excess of the
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norm. The court then balanced the public policy furthered by the pregnancy
discrimination and mixed motive statutes under which Ms. Gudenkauf prevailed
with the degree of her overall success, and reduced the lodestar figure by fifty
percent. See Gudenkauf v. Stauffer Communications, Inc., 953 F. Supp. 1237,
1245 (D. Kan. 1997) (Gudenkauf II).
On appeal, Stauffer argues that the district court erred in placing the burden
on it to show extraordinary circumstances justifying the denial of any fee award,
and that Ms. Gudenkauf is not entitled to a fee in any event because she obtained
only a technical victory. Stauffer also contends that Ms. Gudenkauf failed to
present evidence to support the requested hourly rates and failed to submit the
records necessary to separate out the hours devoted to unsuccessful claims.
Finally, Stauffer argues that the fee award was excessive in view of the fact the
Ms. Gudenkauf “obtained nothing but a moral victory.” Br. of Aplt. at 20. Ms.
Gudenkauf cross-appeals, arguing that the terms of section 2000e-5(g)(2)(B)
specifically allowing an award of attorney’s fees for prevailing on a mixed motive
claim precludes the district court from making any reduction based on the degree
of plaintiff’s success.
II.
In resolving this appeal, we first address Stauffer’s claim that the district
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court should have followed the Supreme Court’s analysis in Farrar and denied
any award of attorney’s fees based on Ms. Gudenkauf’s failure to recover
monetary damages. For the reasons set forth below, we find Stauffer’s analysis to
be inconsistent with the proper reading of Farrar and irreconcilable with the Civil
Rights Act of 1991.
In Farrar, the Supreme Court considered the reasonableness of an award of
attorney’s fees under 42 U.S.C. § 1988 1 to a party who wins only nominal
damages in an action under 42 U.S.C. § 1983 alleging the denial of procedural
due process. Significantly, the Court began its discussion with the observation
that “‘the basic purpose of a § 1983 damages award should be to compensate
persons for injuries caused by the deprivation of constitutional rights.’” Id. at 112
(quoting Carey v. Piphus, 435 U.S. 247, 254 (1978)). See also id. at 114-15.
The plaintiffs in Farrar had recovered only nominal damages after
extended litigation and were awarded $280,000 in attorney’s fees by the district
court. The court of appeals reversed the award, ruling that the plaintiffs’
“technical victory” was “so insignificant . . . as to be insufficient to support
1
Section 1988 provides in relevant part:
In any action or proceeding to enforce a provision of section 1981,
1981a, 1982, 1983, 1985, and 1986 of this title . . ., the court, in its
discretion, may allow the prevailing party, other than the United
States, a reasonable attorney’s fee as part of the costs. . . .
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prevailing party status.” Farrar, 506 U.S. at 108 (quoting Estate of Farrar v.
Cain, 941 F.2d 1311, 1315 (5th Cir. 1991)). The Supreme Court reversed the
court of appeals and held that “a plaintiff who wins nominal damages is a
prevailing party under § 1988.” Id. at 112. Nevertheless, in a five-to-four
decision without briefing on the issue, see id. at 123 (White, J., dissenting), the
Court further held that the plaintiffs were not entitled to an award of fees because
the only reasonable fee in such circumstances “is usually no fee at all.” Id. at
115. Central to the Court’s ruling was its assumption that compensation was the
primary purpose of the suit. The Court therefore held that in a section 1983
action, “a district court, in fixing fees, is obligated to give primary consideration
to the amount of damages awarded as compared to the amount sought.” Id. at
115. In holding that no fee was appropriate, the Court observed that “[t]his
litigation accomplished little beyond giving petitioners ‘the moral satisfaction of
knowing that a federal court concluded that [their] rights had been violated’ in
some unspecified way.” Id. at 114 (quoting Hewitt v. Helms, 482 U.S. 755, 762
(1957)).
Yet even under Farrar it is clear that not every non-monetary victory
precludes a fee award. Justice O’Connor’s special concurrence is significant in
this regard because her vote made the majority and thus constitutes the opinion of
the court on what constitutes a “purely technical” victory. See Phelps v.
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Hamilton, 120 F.3d 1126, 1131 (10th Cir. 1997). Justice O’Connor agreed with
the plurality opinion that “‘a technical victory may be so insignificant . . . as to be
insufficient’ to support an award of attorney’s fees,” id. at 117 (O’Connor, J.,
concurring), and that “when the plaintiff’s success is purely technical or de
minimis, no fees can be awarded,” id. (emphasis added). She acknowledged,
however, that section 1988 “is a tool that ensures the vindication of important
rights, even when large sums of money are not at stake, by making attorney’s fees
available under a private attorney general theory.” Id. at 122. She then listed
factors that would support recovery of attorney’s fees despite recovery of only
nominal damages including the “significance of the legal issue” on which the
plaintiff prevails, id. at 121, or accomplishment of some public goal, id. She
concluded that no fee was appropriate in Farrar because she discerned no
significant legal issue or public purpose served by Mr. Farrar’s success. 2 As
narrowed by Justice O’Connor’s concurring opinion, therefore, Farrar essentially
holds that failure to recover more than nominal damages in a section 1983 action
is a Pyrrhic or technical victory precluding an award of attorney’s fees under
2
Justice O’Connor and the court were no doubt influenced by the
narrowness of Mr. Farrar’s constitutional claim (which was based on conduct of
public officials resulting in his indictment), the lack of a request for injunctive
relief, and the resulting jury verdict which was acknowledged as “regrettably
obtuse” and which awarded only one dollar and pointed to no discernible public
purpose after ten years of litigation.
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section 1988 only when the action serves no public purpose.
Furthermore, Farrar must be applied consistently with 42 U.S.C. § 2000e-
5(g)(2)(B), the statute governing the award of an attorney’s fee in a mixed motive
case such as this one, i.e. a mixed motive case in which a plaintiff proves illegal
discrimination was a motivating factor in the adverse employment action, see id. §
2000e-2(m), but the fact finder determines the employer would have taken the
adverse action even absent the illegal motive. In 1989, the Supreme Court held
that “once a plaintiff in a Title VII case shows that gender played a motivating
part in an employment decision, the defendant may avoid a finding of liability
only by proving that it would have made the same decision even if it had not
allowed gender to play such a role.” Price Waterhouse v. Hopkins, 490 U.S. 228,
244-45 (1989). Partly in response to the Price Waterhouse ruling, under which an
employer could avoid liability altogether even if illegal discrimination factored
into his employment decision, Congress passed the Civil Rights Act of 1991. 3
3
The Price Waterhouse case was one of several Supreme Court decisions
which Congress addressed in the Civil Rights Act of 1991. “The bill responds to
a number of recent decisions by the United States Supreme Court that sharply cut
back on the scope and effectiveness of . . . important [civil rights laws that ban
discrimination in employment]. H.R. R EP . N O . 102-40(II), at 2, reprinted in 1991
U.S.C.C.A.N. 694. In explaining the need for and the purpose of the legislation,
the legislative history states:
Section 2 of the legislation sets forth Congress’ findings that
the Supreme Court’s recent employment discrimination decisions
have cut back dramatically on the scope and effectiveness of civil
(continued...)
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Section 107 of the 1991 Act overturned Price Waterhouse on this point by
amending 42 U.S.C. § 2000e-2 to make clear that an employer is liable for a
violation of Title VII upon proof that an impermissible motive played a role in the
challenged action. The new subsection states: “Except as otherwise provided in
this subchapter, an unlawful employment practice is established when the
complaining party demonstrates that race, color, religion, sex, or national origin
was a motivating factor for any employment practice, even though other factors
also motivated the practice.” 42 U.S.C. § 2000e-2(m).
The 1991 Act then addressed the award of relief for victims of unlawful
employment practices under section 2000e-2(m) in those cases where the
employer proves that discriminatory motives, although present, did not cause the
adverse employment action. Congress thus amended 42 U.S.C. § 2000e-5(g) to
add a new part (2)(B) providing as follows:
3
(...continued)
rights protections, and that as a result, existing protections and
remedies are not adequate to deter unlawful discrimination or to
compensate victims of intentional discrimination.
Section 2 of the legislation also sets forth Congress’s dual
purposes: to respond to the Court’s recent decisions by restoring the
civil rights protections that were so dramatically limited, and to
strengthen existing remedies to provide more effective deterrence
and ensure compensation commensurate with the harms suffered by
victims of intentional discrimination.
H.R. R EP . N O . 102-40(I), at 18 (1991), reprinted in 1991 U.S.C.C.A.N. 549, 556.
See also 42 U.S.C. § 1981 note.
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(B) On a claim in which an individual proves a violation under
section 2000e-2(m) of this title and a respondent demonstrates that
the respondent would have taken the same action in the absence of
the impermissible motivating factor, the court--
(i) may grant declaratory relief, injunctive relief (except as
provided in clause (ii)), and attorney’s fees and costs demonstrated to
be directly attributable only to the pursuit of a claim under section
2000e-2(m) of this title; and
(ii) shall not award damages or issue an order requiring any
admission, reinstatement, hiring, promotion, or payment, described in
subparagraph (A).
42 U.S.C. § 2000e-5(g)(2)(B). Subparagraph A, to which the above-quoted
material refers, in turn provides that the court may not award injunctive relief or
back pay with respect to any employment action taken for a nondiscriminatory
reason. See id. § 2000e-5(g)(2)(A).
“Where, as here, resolution of a question of federal law turns on a statute
and the intention of Congress, we look first to the statutory language and then to
the legislative history if the statutory language is unclear.” Blum v. Stenson, 465
U.S. 886, 896 (1984). “The plainness or ambiguity of statutory language is
determined by reference to the language itself, the specific context in which that
language is used, and the broader context of the statute as a whole.” Robinson v.
Shell Oil Co., 117 S. Ct. 843, 846 (1997). In addition, we note that sections
2000e-2(m) and 20003-5(g)(2)(B) constitute remedial legislation which we are to
construe liberally. Richardson v. Frank, 975 F.2d 1433, 1436 (10th Cir. 1991)
(quoting Peterson v. City of Wichita, 888 F.2d 1307, 1309 (10th Cir. 1989)).
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Indeed, the legislative history of the 1991 Act reiterated Congressional intent that
the civil rights laws are to be broadly construed and revealed Congressional
dismay with recent Supreme Court decisions Congress viewed as “deviat[ing]
repeatedly from this principle and giv[ing] unduly narrow constructions to civil
rights statutes.” See H.R. R EP . N O . 102-40(I) at 87-88 (1991), reprinted in 1991
U.S.C.C.A.N. at 625-26. The House Report pointed out that “[a]s a result,
Congress has been required to pass legislation to override these interpretations,”
and that when “Congress has done so, the legislative history is replete with
references to Congress’s intention that civil rights laws are to be broadly
construed consistent with their remedial purpose.” Id.
As set out above, section 2000e-5(g)(2)(B)(i) provides that the court may
grant attorney’s fees in the described circumstances. 4 We agree with the parties
4
The general fee provision applicable to actions or proceedings under
section 2000e-5 provides that “the court, in its discretion, may allow the
prevailing party . . . a reasonable attorney’s fee (including expert fees) as part of
the costs.” 42 U.S.C. § 2000e-5(k). Subsection (g)(2)(B) differs from the general
fee provision in four respects: (1) it does not contain the language found in
subsection (k) expressly providing that a fee award is a matter within the court’s
discretion; (2) it likewise does not contain the language found in subsection (k)
expressly providing that the fee must be reasonable; (3) it authorizes an award to
an individual “who proves a violation under section 2000e-2(m)” while subsection
(k) authorizes fees to “a prevailing party”; and (4) it provides that a court may
award attorney’s fees and costs, while subsection (k) states that fees are to be
awarded as part of the costs.
The parties do not argue that the omission in subsection (g)(2)(B) of an
express reference to the court’s discretion in awarding fees or to the requirement
(continued...)
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that this language commits the award of fees to the district court’s discretion.
However, we disagree with Stauffer as well as with the Fourth Circuit Court of
Appeals, both of whom assert that Farrar should be applied in a mixed motive
case to deny all but a nominal fee recovery simply because a mixed motive
plaintiff does not recover money damages or obtain injunctive relief. See
Sheppard v. Riverview Nursing Center, Inc., 88 F.3d 1332 (4th cir. 1996).
As noted above, Justice O’Connor’s concurring opinion in Farrar
recognizes that recovery may be had even where actual damages are minimal or
nonexistent if plaintiff succeeds in serving an important public purpose. An
examination of the language and legislative history of section 2000e-2(m) and
subsection 2000e-5(g)(2)(B) clearly demonstrates Congress’ conclusion that a
plaintiff serves such a purpose when she proves impermissible discrimination was
a factor in her termination.
In explaining the need to overturn the decision in Price Waterhouse, the
4
(...continued)
that the fees be reasonable requires that the two statutes be construed differently
in these two regards. We agree and conclude that the award of fees is committed
to the court’s discretion and that the fee award must be reasonable. The district
court rejected Stauffer’s argument that Ms. Gudenkauf was not entitled to any fee
because she was not a prevailing party under subsection (k), pointing out that
subsection (g)(2)(B) expressly authorizes an award of fees to one in Ms.
Gudenkauf’s position. See Gudenkauf I, 936 F. Supp. at 807-08. Stauffer wisely
does not pursue this argument on appeal. Finally, we address the subsections’
differing treatment of fees with respect to costs infra in text in our discussion of
Stauffer’s argument with respect to its settlement offer.
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legislative history of the 1991 Act states Congress’ view that “[t]he effectiveness
of Title VII’s ban on discrimination on the basis of race, color, religion, sex or
national origin has been severely undercut by” the Supreme Court’s ruling. H.R.
R EP . 102-40(I) at 45, 1991 U.S.C.C.A.N. at 583.
The Court’s holding in Price Waterhouse severely undermines
protections against intentional employment discrimination by
allowing such discrimination to escape sanction completely under
Title VII. Under this holding, even if a court finds that a Title VII
defendant has clearly engaged in intentional discrimination, that
court is powerless to end that abuse if the particular plaintiff who
brought the case would have suffered the disputed employment
action for some alternative, legitimate reason.
The impact of this decision is particularly profound because
the factual situation at issue in Price Waterhouse is a common one.
H.R. R EP . N O . 102-40(II) at 18 (1991), reprinted in 1991 U.S.C.C.A.N. at 711.
The 1991 Act “responds to Price Waterhouse by reaffirming that any reliance on
prejudice in making employment decisions is illegal.” Id. at 695.
In explaining the proposed legislation to overturn the Price Waterhouse
decision, the Committee stated
it is important to remember the dual purpose of private enforcement
of Title VII. On the one hand, the object is to make whole the
individual victims of unlawful discrimination . . . But this is only
part of it. The individual Title VII litigant acts as a “private
attorney general” to vindicate the precious rights secured by that
statute. It is in the interest of American society as a whole to assure
that equality of opportunity in the workplace is not polluted by
unlawful discrimination. Even the smallest victory advances that
interest.
H.R. R EP . N O . 102-40(I) at 46-47, 1991 U.S.C.C.A.N. at 584-85 (quoting Jane
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Lang, former General Counsel of the United States Department of Housing and
Urban Development) (emphasis added).
The legislative history also sheds light on Congressional intent with respect
to the award of attorney’s fees to successful civil rights litigants. “Both of the
statutory goals described above--encouraging private enforcement and making
victims whole--are dependent upon the ability of such victims to find and retain
competent counsel to handle their claims. Title VII’s fee-shifting provision
makes this possible.” H.R. R EP . N O . 102-40(I) at 75, 1991 U.S.C.C.A.N. at 613.
Nonetheless, the Committee observed with alarm that “[d]espite Title VII’s fee-
shifting provision, the evidence suggests that plaintiffs are encountering
substantial difficulty in obtaining legal representation.” Id.
Several recent Supreme Court decisions have contributed to
the difficulty discrimination victims currently face in finding
attorneys who will take their Title VII cases, by making the recovery
of attorneys’ fees uncertain even for the most meritorious claims. . . .
The Committee reaffirms the policy that unless discrimination
victims can find lawyers to take their cases, they cannot be made
whole for their injuries, employers will not be held responsible for
violations of the statute, and the compelling public interest in
eliminating discrimination cannot be served.
Id. at 614-15 (emphasis added).
It is therefore clear that Congress’ stated purpose in enacting the statutes
governing mixed motive cases supports an award of attorney’s fees in those cases
notwithstanding the lack of a damages award. A verdict for a plaintiff in a mixed
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motive Title VII case constitutes a victory on a significant legal issue that furthers
a public goal, a goal that is advanced notwithstanding the fact that a plaintiff
recovers no damages. As Justice O’Connor acknowledged in her concurrence in
Farrar, “[w]hen construing a statute, this Court is bound by the choices Congress
has made, not the choices we might wish it had made.” Farrar, 506 U.S. at 118
(O’Connor, J., concurring). Accordingly, we conclude that recovery of damages
is not a proper factor upon which to assess the propriety of granting a fee award
in a mixed motive case. Moreover, we agree with the district court that, as under
section 2000e-5(k), a plaintiff who prevails under section 2000e-2(m) should
ordinarily “‘be awarded attorney’s fees in all but special circumstances.’”
Gudenkauf I, 936 F. Supp. at 808 (quoting Fogerty v. Fantasy, Inc., 510 U.S. 517,
535 (1994)).
III.
We now turn to Stauffer’s arguments in support of its position that the
district court erred in awarding Ms. Gudenkauf fees. Stauffer contends that the
district court should not have awarded any fee at all, and alternatively that the
court failed to require Ms. Gudenkauf to present sufficient evidence to support
her fee request, failed to address adequately the factors relevant to assessing a
reasonable fee, and failed to take account of Stauffer’s pretrial settlement offer.
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Stauffer also urges that the amount of the fee awarded was grossly excessive
under the circumstances. To the extent that these arguments are in essence a
reformulation of Stauffer’s contention that the Farrar approach is applicable and
that no fee is therefore appropriate, we reject them without further discussion.
We address Stauffer’s remaining points briefly.
In Farrar, the Court addressed a plaintiff’s failure to recover monetary
damages in the context of assessing the reasonableness of a fee award under
section 1988. Stauffer argues in addition that this factor is a special circumstance
which makes the award of any fee unjust. In so doing, Stauffer blurs the line
between these two issues when in fact they are separate inquiries. Under the
generally applicable approach to a fee request by a civil rights plaintiff, a court
must first assess whether special circumstances would make any award unjust.
This standard arose in the case of Newman v. Piggie Park Enter., Inc., 390 U.S.
400 (1968), in which the Supreme Court considered Title II, a fee statute virtually
identical to that in Title VII.
Relying primarily on the intent of Congress to cast a Title II plaintiff
in the role of “a ‘private attorney general,’ vindicating a policy that
Congress considered of the highest priority,” we held that a
prevailing plaintiff under Title II “should ordinarily recover an
attorney’s fee unless special circumstances would render such an
award unjust.”
Christiansburg Garment Co. v. Equal Employment Opportunity Comm., 434 U.S.
412, 416-17 (1978) (quoting Newman v. Piggie Park Enter., Inc., 390 U.S. 400,
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402 (1968)). Upon determining that the award of a fee is proper under Newman,
the court must then fix a reasonable fee.
In the district court and on appeal, Stauffer argued that no fee should be
awarded under this standard because Ms. Gudenkauf received at most a nominal
or moral victory. The district court rejected this contention and we agree.
Congress has clearly indicated that redress is nonetheless appropriate in these
circumstances to avoid “send[ing] a message that a little overt sexism or racism is
okay, as long as it was not the only basis for the employer’s action.” H.R. R EP .
N O . 102-40(I) at 47, 1991 U.S.C.C.A.N. at 585 (citation omitted). Title VII’s
statutory purposes are undermined when an employer is not sanctioned for his
discriminatory conduct and a victim of discrimination receives no redress. In a
mixed motive case in which the legal motive predominates, the plaintiff never
recovers monetary damages on her successful claim and often, as here, injunctive
relief will not be appropriate because the plaintiff’s employment has been
terminated. Thus, a fee award is the only form of redress available to make the
victim whole for vindicating society’s interest in a discrimination-free workplace.
Accordingly, we hold that the nature of Ms. Gudenkauf’s victory in this mixed
motive case is not a special circumstance that would make an award of fees
unjust.
Stauffer also argues that Ms. Gudenkauf did not submit sufficient evidence
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to support her requested hourly rates or to allow the district court to properly
assess the number of reasonable hours. We have reviewed the record on appeal in
light of these contentions and find them to be without merit. “The establishment
of hourly rates in awarding attorney’s fees is within the discretion of the trial
judge who is familiar with the case and the prevailing rates in the area.” Lucero
v. City of Trinidad, 815 F.2d 1384, 1385 (10th Cir. 1987). A court “may turn to
her own knowledge of prevailing market rates as well as other indicia of a
reasonable market rate.” Metz v. Merrill Lynch, Pierce, Fenner & Smith, 39 F.3d
1482, 1493 (10th Cir. 1994) (quoting Bee v. Greaves, 910 F.2d 686, 689 n.4 (10th
Cir. 1990). The district court here properly assessed the prevailing market rates
as well as “the experience, skill, reputation and performance of the plaintiff’s
attorneys,” in setting the hourly rates. Gudenkauf II, 953 F. Supp. at 1241.
Stauffer contends that Ms. Gudenkauf’s time records were inadequate to
allow the court to separate out hours spent on unrelated claims, or to weed out
duplicated effort. The district court ruled to the contrary, stating that it had “no
difficulty identifying and estimating certain billed hours as simply not attributable
to the prosecution of the plaintiff’s mixed-motive pregnancy claim.” Id. at 1242.
After carefully scrutinizing Ms. Gudenkauf’s time entries, the court stated that
“[r]ather than going through the billing statement and identifying each of the
instances of the billing of excessive hours, the billing for duplicative services and
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the billing for background research, the court will reduce the requested hours by
thirty percent.” Id. at 1244. We have expressly approved this practice if the
district court provides sufficient reasons for the general reduction. See Mares,
801 F.2d at 1203. The court here explained in some detail its reasons for the
reduction and we find no abuse of discretion in its method of determining a
reasonable number of billable hours.
We likewise find no merit in Stauffer’s assertion that the court abused its
discretion in failing to address specifically each of the factors set out in Johnson
v. Georgia Highway Express, Inc., 488 F.2d 714, 718 (5th Cir. 1974), and
intended by Congress to govern the fee determination, see Blum, 465 U.S. at 893-
94. The district court clearly understood that the Johnson factors were to guide
its fee determination and stated that its “analysis . . . incorporates implicitly most
of the other Johnson factors relevant in adjusting a fee award.” Gudenkauf II,
953 F. Supp. at 1245. We have never held that a district court abuses its
discretion by failing to specifically address each Johnson factor. To the contrary,
we have stated that not all of them need be considered. See Cooper v. Singer, 719
F.2d 1496, 1500 n.6 (10th Cir. 1983) (citing Francia v. White, 594 F.2d 778 (10th
Cir. 1979)).
“[W]hile the factors set out in Johnson are useful, some are seldom
applicable, and none is self-actuating: ‘Simply to articulate those
twelve factors . . . does not itself conjure up a reasonable dollar
figure in the mind of a district judge. A formula is necessary to
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translate the relevant factors into terms of dollars and cents.”
Ramos v. Lamm, 713 F.2d 546, 552 (10th Cir. 1983) (quoting Copeland v.
Marshall, 641 F.2d 880, 890 (D.C. Cir. 1980)). The district court here followed
the formula set out in Ramos, which incorporates many of the Johnson factors and
which this circuit intended to “provide guidance in assessing and applying the
relevant factors to produce a monetary award.” Id.
Finally, we address Stauffer’s complaint that the district court did not
reduce the fee award on the basis of Stauffer’s pretrial settlement offer of $7,500.
In rejecting Stauffer’s argument, the court stated:
Contrary to the defendant’s opinion, this is not a case where the
plaintiff went to trial knowing that she was “very likely to receive
nothing.” As stated before, the evidence was conflicting on the
relevant issues, and there was more than enough evidence for the jury
to return a pretext verdict for the plaintiff. The defendant has not
persuaded the court that its settlement offer was reasonable
considering the costs and fees that the plaintiff had already incurred
in litigating her claims.
Gudenkauf II, 953 F. Supp. at 1245.
The court did not abuse its discretion by denying a reduction on the basis of
the settlement offer, particularly in light of the language of the statute and the
discussion of settlement offers in the legislative history of the 1991 Act. Rule 68
of the Federal Rules of Civil Procedure provides that if a defendant makes a
pretrial settlement offer which the plaintiff rejects, and the plaintiff thereafter
prevails on the merits but recovers less than the amount of the settlement offer,
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the plaintiff must pay the costs incurred after the offer was made. As we pointed
out supra n.2, subsection (g)(2)(B) of Title VII, added in 1991, provides that a
court may award attorney’s fees and costs, while subsection (k) states that fees
are to be awarded as part of the costs.
The legislative history of the 1991 Act indicates that Congress’ decision to
separate costs and fees was deliberate and intended to further its Title VII goals.
As the legislative history points out, “statutes which refer to fees as part of costs
have been interpreted to deprive many successful plaintiffs of such fees incurred
after rejecting a pretrial offer of judgment made by the defendant. In contrast,
statutes which provide for fees separate from costs have been interpreted to allow
plaintiffs to recover such fees.” H.R. R EP . N O . 102-40(I) at 82, 1991
U.S.C.C.A.N. at 620. In fact, the Supreme Court held in Marek v. Chesney, 473
U.S. 1 (1985), that under Rule 68, a successful civil rights plaintiff could be
denied attorney’s fees otherwise available under subsection (k). The legislative
history of the 1991 Act specifically disapproved of the Marek decision and
proposed to amend subsection (k) to avoid its application. “Marek is particularly
problematic in the context of Title VII, because it may impede private actions,
which Congress has relied upon for enforcement of the statute’s guarantees and
advancement of the public’s interest.” H.R. R EP . N O . 102-40(I) at 82, 1991
U.S.C.C.A.N. at 620. Although subsection (k) ultimately remained unchanged in
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this regard, the proposed amendment was adopted in the language of subsection
(g)(2)(B). Congress therefore clearly did not intend a district court to reduce a
mixed motives plaintiff’s fee award on the basis of a rejected pretrial settlement.
IV.
Finally, we address Ms. Gudenkauf’s cross-appeal in which she claims it
was error for the district court to reduce the amount of the fee award by fifty
percent based on an assessment of the degree of her overall success on her mixed
motive PDA claim. Ms. Gudenkauf contends that section 2000e-5(g)(2)(B)
contains a built-in limitation on attorney’s fees in a mixed motive case where a
plaintiff fails to prove that the discrimination caused her termination by providing
that only those fees and costs “demonstrated to be directly attributable . . . to the
pursuit” of the mixed motive claim are to be awarded. She then asserts that
because of this statutory limitation, a “proportionality” analysis based on degree
of success should not be applied to reduce the award further. See Hensley v.
Eckerhart, 461 U.S. 424, 435-36 (1983). We are not persuaded.
At trial, Ms. Gudenkauf claimed that even if there were mixed motives at
work in her termination, she was fired because of the discriminatory motive, a
claim which the jury rejected. She was therefore not fully successful on her
section 2000e-2(m) claim and we find nothing in subsection (g)(2)(B) to indicate
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that Congress did not intend for fees to be awarded based on degree of success on
the entire section 2000e-2(m) claim, as they would be had the plaintiff convinced
the jury that she was terminated because of the discrimination. 5 See Hensley, 461
U.S. at 436 (degree of success critical factor in determining reasonable attorney’s
fee award); id. at 441 (Brennan, J., dissenting) (same).
The legislative history of the Civil Rights Act of 1991 indicates that
Congress intended to restore the law that applied prior to Price Waterhouse in
cases such as Bibbs v. Block, 778 F.2d 1318 (8th Cir. 1985) (en banc), which the
House Report specifically cited. See H.R. R EP . N O . 102-40(I) at 48, 1991
U.S.C.C.A.N. at 586. In Bibbs, the Eighth Circuit held that where a plaintiff
proved race discrimination was a factor in an adverse employment decision, “[a]
defendant’s showing that the plaintiff would not have gotten the job anyway does
not extinguish liability. It simply excludes the remedy of retroactive promotion or
5
42 U.S.C. § 2000e-5(g)(2)(B) specifically provides that a mixed motive
plaintiff who does not demonstrate that the illegal motive caused her termination
should receive costs and fees “attributable only to pursuit of a claim under section
2000e-2(m) of this title.” 42 U.S.C. § 2000e-2(m) provides that “an unlawful
employment practice is established when the complaining party demonstrates that
race, color, religion, sex, or national origin was a motivating factor for any
employment practice, even though other factors also motivated the practice.” The
statutes, therefore, do not by their terms account for degree of overall success
because in some mixed motive cases, the discriminatory motive will be
determined to have caused the adverse employment action. A plaintiff who fails
to establish causation should not in most cases be rewarded to the same extent as
one who does.
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reinstatement.” Id. at 1323. The court remanded the case for determination of a
reasonable attorney’s fee and said that “in determining a reasonable fee, an
adjustment based on the extent to which Bibbs has succeeded will be
appropriate.” Id. at 1324.
We are persuaded that Congress did not intend to place “mixed-motive
plaintiffs in a more favorable position than plaintiffs for whom discrimination is
the sole cause of an adverse employment decision.” Sheppard, 88 F.3d at 1338.
As such, we agree in part with the district court’s formulation of the
proportionality analysis in a mixed motive case:
In tailoring an award of fees, the court’s inquiry into a mixed-motive
plaintiff’s degree of success is not . . . the traditional proportionality
inquiry used when a plaintiff is awarded some damages. The statute
does not preclude a mixed-motive plaintiff from recovering fees, but
it does preserve a court’s discretion to factor in the degree of a
plaintiff’s success. . . . [T]he proportionality inquiry in a mixed-
motive case expands to consider [how much] the verdict serves
public purposes, [6] as in cases which “evidence a widespread or
intolerable animus” by the employer as opposed to cases which
“illustrate primarily the plaintiff’s unacceptable conduct.” In other
words, the court must assess how successful the plaintiff was in
proving “that an employer’s discrimination, and not the employee’s
own misconduct, drove the employment decision.” This inquiry
6
While we essentially agree with the district court’s analysis of the
proportionality inquiry, we emphasize that the Civil Rights Act of 1991 makes it
clear that a plaintiff serves an important public purpose any time she establishes
that improper discrimination played a role in an adverse employment action taken
against her. As such, the proportionality inquiry may take account of the degree
to which the plaintiff achieves a public purpose by applying the reasonableness
analysis governing fee awards in other discrimination cases.
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should also encompass the extent to which the mixed-motive verdict
may have served one or more of the plaintiff’s legitimate purposes
for filing the suit and pursuing the litigation through trial.
Gudenkauf II, 953 F.Supp. at 1239 n.1. 7 This inquiry simply reflects that all
mixed motive claims, like all other claims of discrimination, are not created equal
and not every proven mixed motive claim warrants an award based on the full
extent of attorney time devoted to it.
Ms. Gudenkauf does not assert that the fifty percent reduction entered by
the district court fails appropriately to reflect her overall degree of success on the
entire mixed motive claim, and given that she failed to establish that
discriminatory motives caused her termination, we find no indication that the
district court based the reduction on an impermissible factor or otherwise abused
its discretion in determining the fee Ms. Gudenkauf should be awarded for
prevailing on her mixed motive claim.
IV.
We AFFIRM the district court’s ruling awarding attorney’s fees to Ms.
7
Although the district court relied heavily in formulating this test on the
Fourth Circuit’s analysis in Sheppard, we reiterate that the district court did not,
and we do not here, adopt Sheppard for the proposition that a mixed motive
plaintiff who does not prove discrimination caused the adverse employment action
may be granted a nominal fee award merely because no other relief is granted on
the claim. As discussed above, such a result is inconsistent both with Justice
O’Connor’s concurrence in Farrar and with the Civil Rights Act of 1991.
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Gudenkauf based on a fifty percent reduction to reflect the overall success of her
claim.
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