Gudenkauf v. Stauffer Communications, Inc.

• Decision Date: 29 September 1998
• Docket Number: Nos. 97-3063,97-3068,s. 97-3063
• Citation: 158 F.3d 1074
• Parties: 77 Fair Empl.Prac.Cas. (BNA) 1742, 74 Empl. Prac. Dec. P 45,624, 98 CJ C.A.R. 5269 Michaela A. GUDENKAUF, Plaintiff-Appellant-Cross-Appellee, v. STAUFFER COMMUNICATIONS, INC., Defendant-Appellee-Cross-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1074

158 F.3d 1074

77 Fair Empl.Prac.Cas. (BNA) 1742,

74 Empl. Prac. Dec. P 45,624, 98 CJ C.A.R. 5269

Michaela A. GUDENKAUF, Plaintiff-Appellant-Cross-Appellee, v. STAUFFER COMMUNICATIONS, INC., Defendant-Appellee-Cross-Appellant.

Nos. 97-3063, 97-3068.

United States Court of Appeals Tenth Circuit.

Sept. 29, 1998.

Alan G. Warner (Amy C. Bixler with him on the brief), Warner, Bixler & Associates, L.L.C., Topeka, Kansas, for Plaintiff-Appellant-Cross-Appellee.

Michael W. Merriam, 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 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, 113 S.Ct. 566, 121 L.Ed.2d 494 (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, 103 S.Ct. 1933, 76 L.Ed.2d 40 (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 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 § 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 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, 113 S.Ct. 566 (quoting Carey v. Piphus, 435 U.S. 247, 254, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978)). See also id. at 114-15, 113 S.Ct. 566.

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 prevailing party status." Farrar, 506 U.S. at 108, 113 S.Ct. 566 (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, 113 S.Ct. 566. Nevertheless, in a five-to-four decision without briefing on the issue, see id. at 123, 113 S.Ct. 566 (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, 113 S.Ct. 566. 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 § 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, 113 S.Ct. 566. 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, 113 S.Ct. 566 (quoting Hewitt v. Helms, 482 U.S. 755, 762, 107 S.Ct. 2672, 96 L.Ed.2d 654 (1987)).

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. 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, 113 S.Ct. 566 (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 § 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, 113 S.Ct. 566. 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, 113 S.Ct. 566, 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 § 1983 action is a Pyrrhic or technical victory precluding an award of attorney's fees under § 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, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989)....