## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 29 1998 

### PATRICK FISHER Clerk 

### PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MICHAELA A. GUDENKAUF,Plaintiff-Appellant - CrossAppellee,

v. STAUFFER COMMUNICATIONS, INC., Defendant-Appellee - CrossAppellant. No. 97-3063 & 97-3068

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, T opeka, Kansas, for Defendant-Appellee - Cross-Appellant..

Before SEYMOUR , Chief Judge, McWILLIAMS , and MURPHY , Circuit Judges.

SEYMOUR , Chief Judge.-2-

Michaela A. Gudenkauf brought this discrimination a ction against her former employer, Stauffer Communications, Inc., all eging 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 he r pregnancy, but that she would have been terminated in any event. Because o f this determination, 42 U.S.C. § 2000e-5(g)(2)(B) precluded Ms. Gudenkauf f rom an award of reinstatement, back pay, or damages, but the distri ct court held she was entitled to an award of attorney’s fees and costs. After deter mining the lodestar, the district court reduced the amount to reflect the degree of M s. 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 te rmination 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 Pregn ancy Discrimination Act, 42 U.S.C. § 2000e(k) (PDA), and disability discriminat ion 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 an d Medical Leave Act, 29 U.S.C. §§ 2601 et seq . (FMLA), and state law claims for intentional infl iction of emotional distress. The district court dismissed t he state law claims and granted-3-

Stauffer’s motion for summary judgment on the claim s under the ADA and the FMLA. Ms. Gudenkauf prevailed before the jury on h er mixed motive PDA claim and then she moved for costs and attorney’s f ees. Stauffer argued to the district court that Ms. Gudenkauf was not a prevail ing 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 Cou rt in Farrar v. Hobby , 506 U.S. 103 (1992). Stauffer also argued that Ms. Gud enkauf had failed to provide proof in support of her fee claims and that the amo unts requested were grossly excessive. The district court rejected Stauffer’s argument tha t Ms. Gudenkauf was not a prevailing party and its argument that Ms. Gudenk auf had only a nominal victory resulting in special circumstances that jus tified 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 l odestar amount under Hensley v. Eckerhart , 461 U.S. 424, 434 (1983), eliminating hours spent on unsuccessful arguments not directly relate d to the pregnancy discrimination claim, and further reducing the requ ested hours by thirty percent to account for duplicated services, background researc h, and hours in excess of the-4-

norm. The court then balanced the public policy fu rthered by the pregnancy discrimination and mixed motive statutes under whic h 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 justifyin g 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 t hat 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 exc essive 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 f or 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 district1 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 t han the United States, a reasonable attorney’s fee as part of the costs. . . . -5- court should have followed the Supreme Court’s anal ysis 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 o f 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 allegin g the denial of procedural due process. Significantly, the Court began its di scussion with the observation that “‘the basic purpose of a § 1983 damages award should be to compensate persons for injuries caused by the deprivation of c onstitutional rights.’” Id. at 112 (quoting Carey v. Piphus , 435 U.S. 247, 254 (1978)). See also id. at 114-15. The plaintiffs in Farrarhad 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, ru ling that the plaintiffs’ “technical victory” was “so insignificant . . . as to be insufficient to support-6-

prevailing party status.” Farrar , 506 U.S. at 108 (quoting Estate of Farrar v.
Cain , 941 F.2d 1311, 1315 (5th Cir. 1991)). The Suprem e Court reversed the court of appeals and held that “a plaintiff who win s 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 ent itled to an award of fees because the only reasonable fee in such circumstances “is u sually no fee at all.” Id. at 115. Central to the Court’s ruling was its assumpt ion that compensation was the primary purpose of the suit. The Court therefore h eld that in a section 1983 action, “a district court, in fixing fees, is oblig ated 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 C ourt observed that “[t]his litigation accomplished little beyond giving petiti oners ‘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 Farrarit 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.2 Justice O’Connor and the court were no doubt influe nced by the

narrowness of Mr. Farrar’s constitutional claim (wh ich 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 ac knowledged as “regrettably obtuse” and which awarded only one dollar and point ed to no discernible public purpose after ten years of litigation. -7- 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 fee s,” id. at 117 (O’Connor, J., concurring), and that “when the plaintiff’s success is purelytechnical 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 st ake, 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 f ees 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 dam ages in a section 1983 action is a Pyrrhic or technical victory precluding an awa rd of attorney’s fees under3 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 S upreme Court that sharply cut back on the scope and effectiveness of . . . import ant [civil rights laws that ban discrimination in employment]. H.R. REP
. N O . 102-40(II), at 2, reprinted in 1991 U.S.C.C.A.N. 694. In explaining the need for and t he purpose of the legislation, the legislative history states:

Section 2 of the legislation sets forth Congress’ f indings that the Supreme Court’s recent employment discriminatio n decisions have cut back dramatically on the scope and effecti veness of civil (continued...) -8- section 1988 onlywhen the action serves no public purpose. Furthermore, Farrarmust be applied consistently with 42 U.S.C. § 2000 e5(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 il legal discrimination was a motivating factor in the adver se employment action, see id. § 2000e-2(m), but the fact finder determines the empl oyer 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 th at gender played a motivating part in an employment decision, the defendant may a void a finding of liability only by proving that it would have made the same de cision 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 i llegal discrimination factored into his employment decision, Congress passed the C ivil Rights Act of 1991. 33 (...continued)

rights protections, and that as a result, existing protections and remedies are not adequate to deter unlawful discrim ination or to compensate victims of intentional discrimination. Section 2 of the legislation also sets forth Congre ss’s dual purposes: to respond to the Court’s recent decision s by restoring the civil rights protections that were so dramatically limited, and to strengthen existing remedies to provide more effect ive deterrence and ensure compensation commensurate with the harms suffered by victims of intentional discrimination. H.R. REP
. 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. -9- 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 impermiss ible motive played a role in the challenged action. The new subsection states: “Exc ept as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that race, color, re ligion, 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 forvictims of unlawful employment practices under section 2000e-2(m) in th ose cases where the employer proves that discriminatory motives, althou gh present, did not cause the adverse employment action. Congress thus amended 4 2 U.S.C. § 2000e-5(g) to add a new part (2)(B) providing as follows:-10- ( B ) On a claim in which an individual proves a violat ion under section 2000e-2(m) of this title and a respondent d emonstrates 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 c osts demonstrated to be directly attributable only to the pursuit of a c laim under section 2000e-2(m) of this title; and ( ii ) shall not award damages or issue an order requiri ng any admission, reinstatement, hiring, promotion, or pay ment, described in subparagraph (A). 42 U.S.C. § 2000e-5(g)(2)(B). Subparagraph A, to w hich 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 take n for a nondiscriminatory

reason. See id. § 2000e-5(g)(2)(A). “Where, as here, resolution of a question of federa l 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 i s 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 st atute 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)).4 The general fee provision applicable to actions or proceedings under

section 2000e-5 provides that “the court, in its di scretion, 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 con tain 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 la nguage 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 t o be awarded as part of the costs. The parties do not argue that the omission in subse ction (g)(2)(B) of an express reference to the court’s discretion in awar ding fees or to the requirement (continued...) -11- Indeed, the legislative history of the 1991 Act rei terated Congressional intent that the civil rights laws are to be broadly construed a nd 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. REP
. 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 o ut that “[a]s a result, Congress has been required to pass legislation to o verride these interpretations,” and that when “Congress has done so, the legislativ e history is replete with references to Congress’s intention that civil right s laws are to be broadly construed consistent with their remedial purpose.” Id. As set out above, section 2000e-5(g)(2)(B)(i) provi des that the court may grant attorney’s fees in the described circumstance s. 4 We agree with the parties4 (...continued)

that the fees be reasonable requires that the two s tatutes be construed differently in these two regards. We agree and conclude that t he award of fees is committed to the court’s discretion and that the fee award mu st be reasonable. The district court rejected Stauffer’s argument that Ms. Gudenka uf was not entitled to any fee because she was not a prevailing party under subsec tion (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. -12- 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 opini on in Farrar recognizes that recovery may be had even where actu al damages are minimal or nonexistent if plaintiff succeeds in serving an imp ortant public purpose. An examination of the language and legislative history of section 2000e-2(m) and subsection 2000e-5(g)(2)(B) clearly demonstrates Co ngress’ conclusion that a plaintiff serves such a purpose when she proves imp ermissible discrimination was a factor in her termination. In explaining the need to overturn the decision in Price Waterhouse , the-13-

legislative history of the 1991 Act states Congress ’ view that “[t]he effectiveness of Title VII’s ban on discrimination on the basis o f race, color, religion, sex or national origin has been severely undercut by” the Supreme Court’s ruling. H.R.
REP . 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 discrimi nation by allowing such discrimination to escape sanction completely under Title VII. Under this holding, even if a court fin ds that a Title VII defendant has clearly engaged in intentional discri mination, that court is powerless to end that abuse if the particu lar plaintiff who brought the case would have suffered the disputed e mployment action for some alternative, legitimate reason. The impact of this decision is particularly profoun d because the factual situation at issue in Price Waterhouse is a common one.
H.R. REP
. 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 pri vate enforcement of Title VII. On the one hand, the object is to ma ke whole the individual victims of unlawful discrimination . . . But this is only part of it. The individual Title VII litigant acts as a “privat e 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 no t polluted by unlawful discrimination. Even the smallest victoryadvances that interest.
H.R. REP
. N O . 102-40(I) at 46-47, 1991 U.S.C.C.A.N. at 584-85 ( quoting Jane-14-

Lang, former General Counsel of the United States D epartment of Housing and Urban Development) (emphasis added). The legislative history also sheds light on Congres sional intent with respect to the award of attorney’s fees to successful civil rights litigants. “Both of the statutory goals described above--encouraging privat e enforcement and making victims whole--are dependent upon the ability of su ch victims to find and retain competent counsel to handle their claims. Title VI I’s fee-shifting provision makes this possible.” H.R. REP
. 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 feeshifting provision, the evidence suggests that plai ntiffs are encountering substantial difficulty in obtaining legal represent ation.” Id.

Several recent Supreme Court decisions have contrib uted to the difficulty discrimination victims currently fac e in finding attorneys who will take their Title VII cases, by m aking the recovery of attorneys’ fees uncertain even for the most meri torious claims. . . . The Committee reaffirms the policy that unless disc rimination 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 publi c 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 ver dict for a plaintiff in a mixed-15-

motive Title VII case constitutes a victory on a si gnificant legal issue that furthers a public goal, a goal that is advanced notwithstand ing the fact that a plaintiff recovers no damages. As Justice O’Connor acknowled ged 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 conclu de that recovery of damages is not a proper factor upon which to assess the pro priety of granting a fee award in a mixed motive case. Moreover, we agree with th e 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 i ts position that the district court erred in awarding Ms. Gudenkauf fees . Stauffer contends that the district court should not have awarded any fee at a ll, and alternatively that the court failed to require Ms. Gudenkauf to present su fficient evidence to support her fee request, failed to address adequately the f actors relevant to assessing a reasonable fee, and failed to take account of Stauf fer’s pretrial settlement offer.-16-

Stauffer also urges that the amount of the fee awar ded 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 the m without further discussion. We address Stauffer’s remaining points briefly.
In Farrar , the Court addressed a plaintiff’s failure to reco ver monetary damages in the context of assessing the reasonableness of a fee award under section 1988. Stauffer argues in addition that thi s factor is a special circumstance which makes the award of anyfee unjust. In so doing, Stauffer blurs the line between these two issues when in fact they are sepa rate inquiries. Under the generally applicable approach to a fee request by a civil rights plaintiff, a court must first assess whether special circumstances wou ld 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 T itle II, a fee statute virtually identical to that in Title VII. Relying primarily on the intent of Congress to casta Title II plaintiff in the role of “a ‘private attorney general,’ vindi cating a policy that Congress considered of the highest priority,” we he ld that a prevailing plaintiff under Title II “should ordinar ily recover an attorney’s fee unless special circumstances would r ender such an award unjust.” Christiansburg Garment Co. v. Equal Employment Oppo rtunity Comm. , 434 U.S. 412, 416-17 (1978) (quoting Newman v. Piggie Park Enter., Inc. , 390 U.S. 400,-17-

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 argue d that no fee should be awarded under this standard because Ms. Gudenkauf r eceived at most a nominal or moral victory. The district court rejected this contention and we agree. Congress has clearly indicated that redress is none theless 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. REP
. N O . 102-40(I) at 47, 1991 U.S.C.C.A.N. at 585 (citati on omitted). Title VII’s statutory purposes are undermined when an employer is not sanctioned for his discriminatory conduct and a victim of discriminati on receives no redress. In a mixed motive case in which the legal motive predomi nates, the plaintiff never recovers monetary damages on her successful claim a nd often, as here, injunctive relief will not be appropriate because the plaintif f’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. Gudenka uf’s victory in this mixed motive case is not a special circumstance that woul d make an award of fees unjust. Stauffer also argues that Ms. Gudenkauf did not sub mit sufficient evidence-18-

to support her requested hourly rates or to allow t he district court to properly assess the number of reasonable hours. We have rev iewed the record on appeal in light of these contentions and find them to be with out merit. “The establishment of hourly rates in awarding attorney’s fees is with in the discretion of the trial judge who is familiar with the case and the prevail ing rates in the area.” Lucero v. City of Trinidad, 815 F.2d 1384, 1385 (10th Cir. 1987). A court “m ay turn to her own knowledge of prevailing market rates as wel l 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 asses sed the prevailing market rates as well as “the experience, skill, reputation and p erformance 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 unre lated claims, or to weed out duplicated effort. The district court ruled to the contrary, stating that it had “no difficulty identifying and estimating certain bille d 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 e ntries, 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 bi lling for duplicative services and-19-

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 t hat 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 determinatio n, 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 di strict 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 conside red. 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 r easonable dollar figure in the mind of a district judge. A formula is necessary to-20-

translate the relevant factors into terms of dollar s 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 distric t 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 d istrict court did not reduce the fee award on the basis of Stauffer’s pre trial 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 confl icting on the relevant issues, and there was more than enough evi dence for the jury to return a pretext verdict for the plaintiff. The defendant has not persuaded the court that its settlement offer was r easonable considering the costs and fees that the plaintiff h ad already incurred in litigating her claims. Gudenkauf II, 953 F. Supp. at 1245. The court did not abuse its discretion by denying areduction 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 th at if a defendant makes a pretrial settlement offer which the plaintiff rejec ts, and the plaintiff thereafter prevails on the merits but recovers less than the a mount of the settlement offer,-21-

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 19 91, 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 t hat Congress’ decision to separate costs and fees was deliberate and intended to further its Title VII goals. As the legislative history points out, “statutes wh ich refer to fees as part of costs have been interpreted to deprive many successful pl aintiffs of such fees incurred after rejecting a pretrial offer of judgment made b y the defendant. In contrast, statutes which provide for fees separate from costs have been interpreted to allow plaintiffs to recover such fees.” H.R. REP
. N O . 102-40(I) at 82, 1991 U.S.C.C.A.N. at 620. In fact, the Supreme Court he ld in Marek v. Chesney , 473 U.S. 1 (1985), that under Rule 68, a successful civ il rights plaintiff could be denied attorney’s fees otherwise available under su bsection (k). The legislative history of the 1991 Act specifically disapproved of the Marek

decision and proposed to amend subsection (k) to avoid its appli cation. “ Marek is particularly problematic in the context of Title VII, because it may impede private actions, which Congress has relied upon for enforcement of t he statute’s guarantees and advancement of the public’s interest.” H.R. REP
. N O . 102-40(I) at 82, 1991 U.S.C.C.A.N. at 620. Although subsection (k) ultim ately remained unchanged in-22-

this regard, the proposed amendment was adopted in the language of subsection (g)(2)(B). Congress therefore clearly did not inte nd 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 amou nt of the fee award by fifty percent based on an assessment of the degree of heroverall success on her mixed motive PDA claim. Ms. Gudenkauf contends that sect ion 2000e-5(g)(2)(B) contains a built-in limitation on attorney’s fees i n a mixed motive case where a plaintiff fails to prove that the discrimination ca used 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 awarde d. She then asserts that because of this statutory limitation, a “proportion ality” analysis based on degree of success should not be applied to reduce the awar d further. See Hensley v. Eckerhart , 461 U.S. 424, 435-36 (1983). We are not persuade d. At trial, Ms. Gudenkauf claimed that even if there were mixed motives at work in her termination, she was fired because of t he discriminatory motive, a claim which the jury rejected. She was therefore n ot fully successful on her section 2000e-2(m) claim and we find nothing in sub section (g)(2)(B) to indicate5 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) p rovides that “an unlawful employment practice is established when the complai ning 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 discriminat ory motive will be determined to have caused the adverse employment ac tion. A plaintiff who fails to establish causation should not in most cases be rewarded to the same extent as one who does. -23- 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 dis crimination. 5 See Hensley , 461 U.S. at 436 (degree of success critical factor in d etermining 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 p rior to Price Waterhouse in cases such as Bibbs v. Block, 778 F.2d 1318 (8th Cir. 1985) (en banc), which th e House Report specifically cited. See H.R. REP
. 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 adver se employment decision, “[a] defendant’s showing that the plaintiff would not ha ve gotten the job anyway does not extinguish liability. It simply excludes the r emedy of retroactive promotion or6 While we essentially agree with the district court’ s analysis of the

proportionality inquiry, we emphasize that the Civi l Rights Act of 1991 makes it clear that a plaintiff serves an important public p urpose any time she establishes that improper discrimination played a role in an ad verse 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 discriminati on cases. -24- reinstatement.” Id. at 1323. The court remanded the case for determin ation of a reasonable attorney’s fee and said that “in determi ning a reasonable fee, an adjustment based on the extent to which Bibbs has s ucceeded will be appropriate.” Id. at 1324. We are persuaded that Congress did not intend to pl ace “mixed-motive plaintiffs in a more favorable position than plaint iffs 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 trad itional proportionality inquiry used when a plaintiff is awarded some damag es. The statute does not preclude a mixed-motive plaintiff from rec overing fees, but it does preserve a court’s discretion to factor in the degree of a plaintiff’s success. . . . [T]he proportionality in quiry in a mixedmotive case expands to consider [how much] the verd ict serves public purposes, [6] as in cases which “evidence a widespread or intolerable animus” by the employer as opposed to c ases which “illustrate primarily the plaintiff’s unacceptable conduct.” In other words, the court must assess how successful the pla intiff was in proving “that an employer’s discrimination, and notthe employee’s own misconduct, drove the employment decision.” Th is inquiry7 Although the district court relied heavily in formu lating 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 n o other relief is granted on the claim. As discussed above, such a result is in consistent both with Justice O’Connor’s concurrence in Farrar and with the Civil Rights Act of 1991. -25- should also encompass the extent to which the mixed -motive verdict may have served one or more of the plaintiff’s legi timate purposes for filing the suit and pursuing the litigation thr ough 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 discr imination, 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 percen t reduction entered by the district court fails appropriately to reflect h er overall degree of success on the entire mixed motive claim, and given that she faile d to establish that discriminatory motives caused her termination, we f ind no indication that the district court based the reduction on an impermissi ble 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 fe es to Ms.-26-

Gudenkauf based on a fifty percent reduction to ref lect the overall success of her claim.