* Circuit Judge of the Ninth Circuit, sitting by designation. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-20943

No. 98-21099

DAVID C. GARCIA,

Plaintiff-Appellant, Cross-Appellee,

versus

CITY OF HOUSTON,

Defendant-Appellee, Cross-Appellant.

Appeals from the United States District Court

for the Southern District of Texas

February 9, 2000

Before FARRIS * , WIENER and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

This is a consolidated appeal of a final judgment in a Title VII employment race discrimination

actio n against the City of Houston (“City”)for its promotion process in selecting SWAT team

members for the Houston Police Department (“HPD”). Plaintiff, David Garcia (“Garcia”) appeals

the jury verdict which found that the City had considered race in its transfer process, but that even2

without the use of this factor Garcia would not have received the promotion. The City appeals the

district court’s award of attorneys’ fees to Garcia. For the following reasons we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Garcia began working for HPD in 1979. For most of his years with HPD Garcia was

assigned to the Public Information Office’s Community Services Division. In 1992, Garcia applied

for a transfer to the HPD SWAT detail. There were both objective and subjective criteria used to

select the new members of the SWAT team. The objective portion of the selection process included

a physical fitness test , o bst acle co urse, and written test with essay. The top finishers from the

o bjective portion of the process were to then be given psychological screening, background

investigations, and personal interviews with SWAT supervisors. Garcia was selected as one of the

11 finalist s, but the four SWAT positions were awarded to two white officers, and two black officers.

Garci a felt that the selection process had been skewed to favor the black applicants, and that his

evaluations in the objective and subjective tests were more favorable than those given to one of the

white officers and both black officers who were ultimately selected. In 1993, Garcia filed a complaint

with the EEOC all eging race and national origin discrimination in the HPD transfer process. The

EEOC concluded that Garcia was better qualified than three of the non-Hispanics selected, and that

HPD had used race and nat io nal o rigin as a selection criteria for SWAT team positions. Garcia

brought suit against the City and the case culminated in a jury trial in April 1998. The jury found that

race and national origin were motivating factors in the City’s decision not to transfer Garcia to the

SWAT detail. The jury also found that the City would have made t he same employment decision

even if the City had not considered Garcia’s race. Finally, the jury found that Garcia should not be1 The City also utilizes the M cDonell Dougla s v. Green , 411 U.S. 792, 93 S.Ct. 1817, 36

L.Ed. 2d 668 (1973) analysis in their brief. However, the present case is a mixed-motive case and

thus the burden-shifting analysis of McDonnell Douglas is not ap plicable. S ee Wilkerson v.

Columbus Separate School Distric t

, 985 F.2d 815, 817 (5 th Cir. 1993); Browning v. President

Riverboat Casino , 139 F.3d 631, 635 (5 th Cir. 1998).

3 awarded compensatory damages. Garcia sought judgment as a matter of law on the “mixed motive

question”, and requested $61,888 in attorneys’ fees and $5,095.88 in costs. The district court denied

Garcia’s motion for judgment as a matter of law and awarded him a substantially reduced attorneys’

fee award of $13, 603, and $4,917.03 in costs.

DISCUSSION

I. Mixed-Motive Defense

Garcia argues that the district court erred by entering judgment in the City’s favor based on

the jury verdict. Specifically, Garcia cont ends t hat the City did not meet its burden of proof to

establish by a preponderance of the evidence that Garcia would have been denied a transfer to the

SWAT team even without the impermissible consideration of race. We give great deference to a

jury’s verdict when evaluating the sufficiency of the evidence. See Hiltgen v. Sumrall

, 47 F.3d 695,

699-700 (5 th Cir. 1995). Under this highly deferential standard this court will view all evidence in the

light most favorable to the verdict and reverse the jury’s verdict only if the evidence points so strongly

to one party that reasonable jurors could not arrive at any contrary conclusion. Id.

The Supreme Court established what has become known as the mixed-motive defense in Price

Waterhouse v. Hopkins

, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed. 2d 268 (1989). 1 In P rice2 As discussed later in this section, the porti on of the Price Waterhouse holding which found

that employer’s would not be held liable if they established mixed-motive was abrogated by the Civil

Rights Act of 1991.

4 Waterhouse , the Court held that an employer would not be held liable 2 if the employer could prove

that even if it had not taken into account the impermissible factor of gender, the employer would have

come to the same decision. S ee Price Waterhouse

, 490 U.S. at 242, 109 S.Ct at 1786. In order to

prove a mixed-motive defense the employer should be able to present some objective proof that the

same decision would have been made. I d. at 252 (emphasis added). The legitimate reason must have

been present at the time the decision was made. I d. It is not enough for the employer to demonstrate

that the same decision would have been justified, but instead the employer must show that its

legitimate reason standing alone would have produced the same d ecision. I d. The employer must

prove the mixed-motive defense by a preponderance of the evidence. Id. at 253.

In 1991, Congress amended the holding in Price Waterhouse through passage of the Civil

Rights Act of 1991. Currently, under Title VII an unlawful employment practice is established when

the complaining party establishes that race, color, national origin, or sex was a motivating factor for

any employment practice, even though other factors also motivated the practice. S ee 42 U.S.C. §

2000e-2(m); Buchanan v. City of San Antonio

, 85 F.3d 196, 200 (5 th Cir. 1990). If an employer can

demonstrate that it would have taken the same action in the absence of the impermissible motivating

factor, the plaintiff’s relief is limited to injunctive and declaratory relief, costs, and attorneys’ fees.

See Buchanan, 85 F.3d at 200 (citing 42 U.S.C. § 2000e-5(g)(2)(B)(I)).

In the present case, Garcia presented evidence that race was a motivatin g factor i n HPD’s

decision not to prom ote him. During the trial, two of the defense witnesses, SWAT team supervisors

Headley and Walker, both admitted that race was a factor in the selection process. These officers3 During Garcia’s initial grievance proceedings in 1995 before the Equal Employment

Opportunity Commission (“EEOC”) the City attempted to establish an affirmative defense of hiring

black officers as a bona fide occupational qualification (“BFOQ”), stating tha t black officers were

needed in SWAT to help infiltrate black neighborhoods in undercover ope rations. The EEOC

rejected the BFOQ defense stating that it is not recognized in cases of race discrimination. During

trial the City also put forth evidence that needing black officers for undercover work was a non-race

based reason for not hiring Garcia.

5 admitted that among the group of candidates who were qualified they considered it to be “a bonus”

to tr ansfer some black officers to SWAT. Therefore, because the city used race as a motivating

f act o r in their transfer process, the City had the burden to demonstrate by a preponderance of the

evidence, that in 1992 even if the department had not considered race they would have denied

Garcia’s transfer.

At trial the City claimed that a reason that Garcia was denied the transfer, even without the

consideration of race, was that Garcia had insufficient frontline an d tactical police experience to

justify a transfer to the SWAT detail. 3 Garcia had served as a community service officer for ten years

and had made few arrests during that period. The black officers who were selected both testified that

they had experience in tactical work such as undercover assignments and the narcotics division.

Garcia claims that this evidence, however, is insufficient to sustain a mixed-motive defense

under the Price Waterhouse stan dard. First, Garcia argues that the City did not produce

contemporary, objective evidence of its legitimate motive. Garcia contends that all of the proof put

forth by the City was post hoc and subjective. In Foster v. University of Arkansas

, 938 F.2d 111,

113 (8 th Cir. 1991) our sister circuit found that objective evidence is “necessary” to establish that an

employer would have made the same decision. The court found that the employer did put forth this

type of objective evidence, including the employer’s policy that allowed employees to be fired for any

reason with sixty days notice, and the plaint iff’s negative employment evaluations. I d. This objective6

evidence was enough to sustain the jury’s finding that the employer proved its mixed-motive defense.

In the present case, the City did present objective evidence regarding Garcia’s evaluation that

included race neutr al reaso ns for not promoting him. Garcia argues that the objective evidence,

namely the test scores, demonstrate that he was better qualified than the two black officers who were

transferred, thus making race the only factor in denying his transfer. However, the qualifications for

the SWAT team were posted prior to the acceptance of applications. The eight-step selection process

included not only the physical and writ t en t est s but also evaluations by the officer’s current

supervisors, interviews with SWAT team leaders, and psychological testing. The pro cess also

included a “final evaluatio n” in which it was stated that the new SWAT team members would be

chosen based on how well they performed throughout the “ ent ire process.” This evidence

demonstrates that in 1992 the City did not in t end for t he physical and written tests to be the only

considerations in the selection of SWAT team members. It is also important to note that Garcia also

performed better on the objective tests than one of the white officers who was selected. Therefore

the transfer of a lower scoring white officer to SWAT was additional evidence before the jury to

show that the desire t o t ransfer black officers was not the only reason the City considered factors

other than test scores.

Lieutenant Head ley t est ified that one reason Garcia was not promoted was his lack of

frontline tactical police experience. Garcia himself testified that for the past ten years he had been

assigned to community service division where his primary duties were giving presentations to civic

groups and schools. His only patrol experience during those years was doing overtime patrol work.

The City presented contemporary, objective proof that Garcia’s assignment to the community service

division was considered as a det riment to his promotion to SWAT. At the time of the selection7

process it was noted in written records that Garcia’s community service assignment was “not deemed

as an asset.” The City also introduced evidence that the one white and two black officers who had

lower test scores all had previously been assigned to frontline tactical units such as the narcotics

division, special operations, and tactical operations unit. The City also produced evidence that Garcia

had applied for a transfer to SWAT twice before and been denied. Also noted in Garcia’s evaluation

fi le was t hat his answers tended to wander during his interview and that he received a mediocre

evaluation from his supervisor. Therefore, based on the contemporary, objective evidence presented

by the City about the overall process for selection and Garcia’s lack of frontline tactical experience

the evidence is sufficient to support the jury’s verdict.

II. Attorneys’ fees

The district court awarded Garcia $13, 603 in attorneys’ fees and $4,917 in costs. The City

argue s t hat t he district court erred in awarding Garcia attorneys’ fees because Garcia received no

damages and was denied an injunction. The City further contends that an award of fees in a Title VII

case should be measured by the plaint iff’s success and that the district cour t failed to consider the

degree of Garcia’s success in its attorneys’ fees determination. We review an award of attorneys’

fees for abuse of discretion, and we accept the factual findings upon which the district court bases

its award of fees. B rady v. Fort Bend County

, 145 F.3d 691, 716 (5 th Cir. 1998) (citations omitted).

Title VII provides that in a case in which the plaint iff proves that race was a motivating factor

in the employer’s decision, but the employer successfully demonstrates that it would have taken the

same action in the absence of the impermissible factor, the court “may grant declaratory judgment,

injunctive relief...and attorney’s fees and costs.” 42 U.S.C. § 2000e-5(g)(2)(B)(I). Therefore, the4 The Supreme Court’s decision in Farrar

, specifically addressed fee awards under 42 U.S.C.

§ 1988. The court concluded that the differences between §1988 and Title VII did not justify

disregarding Farrar

. S heppard

, 88 F.3d at 1336. One important distinction, however, between §1988

and Title VII mixed-motive cases is that damages are statutorily prohibited in mixed-motive cases.

Therefore, while in Farrar the Supreme Court heavily weighed the amount of damages awarded, in

the present case the absence of a damage award should not be dispositive.

8 employer’s success in its mixed-motive defense does not in itself bar an award of attorneys’ fees.

Among the circuits that have decided this issue all agree that in mixed-motive cases the award

of attorneys’ fees is a matter left to the discretion of the district court. The most influential case on

this question is the Fourth Circuit’s decision in Sheppard v. Riverview Nursing Center

, 88 F.3d 1332

(4 th Cir. 1996). In S heppard

, the Fourth Circuit considered whether an employee should be awarded

attorneys’ fees in her pregnancy discrimination claim after the jury found mixed-motive and the court

denied the employee injunctive relief. The district court granted the employee $40,000 in fees which

the Fourth Circuit reversed. Sheppard , 88 F.3d at 1335.

The Fourth Circuit found that based on the Supreme Court’s decision in Farrar v. Hobby

, 506

U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992), an award of attorneys’ fees in Title VII cases

should be proporti onal to the plaint iff’s success. Id. In F arrar

, the Supreme Court discussed attorney

fees awards in civil rights litigation under 42 U.S.C. § 1988. 4 The Court concluded that attorneys’

fees should be awarded to “prevailing parties” who have received some relief on the merits of their

claim. S ee Farrar

, 506 U.S. at 109-11. The Court also found that the reasonableness of a fee award

should be measured by the degree of success obtained by the party who is requesting the fee award.

Id . at 114.

In Sheppard

, the Fourth Circuit found that based on the Supreme Court’s reasoning in Farrar

there are several factors that should inform a district court’s exercise of it s statutory discreti on i n5 The Ninth Circuit stated that although the considerations outlined in Sheppard are useful,

they are neither comprehensive, exclusive, nor required in each case. Norris , 191 F.3d at 1043.

9 awarding attorneys’ fees. I d. These factors are: 1) reasons why injunctive relief was or was not

granted, 2) the public purposes served by resolving the dispute, and 3) whether the mixed-motive case

demonstrated a “widespread or intolerable” animus on the part of a defendant, or were the employer’s

actions justified by the plaint iff’s behavior. I d. Several other circuit s have applied the factors set

forth by the Fourth Circuit and have agreed hat Farrar analysis is applicable in Title VII mixed-motive

cases. See Norris v. Sysco Corporation , 191 F.3d 1043, 1905-52 (9 th Cir. 1999) (affirming district

court’s award of fees to employee although employee received no injunctive or declaratory relief) 5 ;

Akrabawai v. Carnes Company

, 152 F.3d 688, 695-96 (7 th Cir. 1998) (affirming district court’s denial

of fees to employee and emp l oyer); Canup v. Chipman-Union

, 123 F.3d 1440, 1442-43 (11 th Cir.

1997) (affirming district court’s denial of attorneys’ fees t o employee who jury found would have

been fired for having an affair with a subordinate).

One circuit has disagreed with the Fourth Circuit’s reasoning in Sheppard

. The Tenth Circuit

in Gudenkauf v. Stauffer Communications

, 158 F.3d 1074 (10 th Cir. 1998), found that it was

inappropriate to apply Farrar to Title VII cases in a manner which denies all but nominal fee

recoveries on the basis that a plaint iff fails to recover damages or injunctive relief. G udenkauf

, 158

F.3d at 1080. The Tenth Circuit reviewed the legislative history of the Civil Rights Act of 1991 and

concluded that Congress intended fee awards to be p ermitted in most Title VII cases where an

impermissible factor was used in an employment decision becau se Tit le VII serves the interest of

American society by ridding the workplace of the pollutant of employment discrimination. Id. (citing

H.R. Rep. No. 102-40). The court found that Congress felt that even t he smallest victory can10

advance that interest, and therefore in mixed-motive cases a plaintiff should be awarded attorneys’

fees in all but special circumstances. Id.

First, in the present case it is important to note that in its order awarding attorneys’ fees the

district court acknowledged the Sheppard factors and applied them to the facts of the present case.

See Norris

, 191 F.3d at 1052 (suggesting that district court’s consideration of Sheppard factors was

an indication that district court did not abuse its discretion). As to the first Sheppard factor Garcia

was not awarded a prospective injunctio n because there was no continuing harm. Garcia did not

reapply for SWAT detail or ask that his transfer application be reconsidered. However, Garcia does

meet the second Sheppard factor because his suit did serve the public purpose of proving that race

was a consideration in HPD transfer policies, and this included getting approval to sue HPD from the

EEOC. Finally, the City’s successful mixed-motive defense was not based on any inappropriate or

negative behavior by Garcia. See e.g. Canup, 123 F.3d at 1442 (finding that employer’s legitimate

reason for firing the employee was the employee ’s affair with a subordinate). Therefore, in its

application of

the S hepp ard fact o rs the district court properly weighed these factors and did not

abuse its discretion. Furthermore, the district court noted the instruction of F arrar and Sheppard that

an award should be proporti onal to the plaint iff’s success, and based on that consideration awarded

Garcia only o ne fo urt h o f t he fees he requested. Finally, Garcia’s case also satisfies the Tenth

Circuit’s requirements in Gudenkauf

, that attorneys’ fees be awarded in mixed-motive cases in all but

special circumstances, and that the plaintif f’s role in helping to end unlawful discrimination in the

workplace be weighed heavily.

Conclusion

We affirm the jury’s finding that the City met its burden of proof to establish its mixed11

motive defense. We also affirm the district court’s award of attorneys’ fees to Garcia.

AFFIRMED.