IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Philip A. Brimmer

Civil Action No. 11-cv-02451-PAB-MJW

TONYA DUNLAP,

Plaintiff,

v.

SPEC PRO, INC., a foreign corporation,

Defendant.

ORDER

This matter is before the Court on Plaintiff’s Motion for Attorney Fees [Docket

No. 75] filed by plaintiff Tonya Dunlap. 

I. BACKGROUND

On September 16, 2011, Ms. Dunlap filed this action against defendant Spec

Pro, Inc. (“Spec Pro”). Docket No. 1. Pursuant to Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e, Ms. Dunlap alleged (1) discrimination on the basis of sex, (2)

retaliation for participating in protected activity, and (3) reckless and wanton gender

discrimination in violation of 42 U.S.C. § 1981a. Docket No. 1 at 2-3. Ms. Dunlap

sought damages for back pay, front pay, loss of earning capacity and future incapacity,

emotional distress, loss of enjoyment of life, and punitive damages. Id. at 3. The Court

dismissed Ms. Dunlap’s retaliation claim on summary judgment, finding: 

Given that Ms. Dunlap does not establish that Spec Pro treated her any

differently than other similarly situated employees, she does not show that

Spec Pro’s reason for her termination was pretextual. Instead, the

undisputed evidence establishes that she was given the full extent of her

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short-term disability benefits, Spec Pro transitioned her to long-term disability

because of the weight bearing restrictions, and she did not re-apply for a

position with Spec Pro. Based on the foregoing, Ms. Dunlap fails to raise

any genuine inconsistencies, incoherencies, or contradictions with Spec

Pro’s legitimate non-discriminatory reason for termination and no reasonable

jury could conclude that Ms. Dunlap’s termination was retaliatory. 

Docket No. 64 at 23 (citations omitted). On April 8-11, 2013, Ms. Dunlap’s hostile work

environment claim was tried to a jury. Docket Nos. 70-73. The jury found in favor of

Ms. Dunlap on her claim that she was subject to a hostile or abusive work environment

because of her sex based on the conduct of her co-workers. Docket No. 73-1 at 1. 

However, on Ms. Dunlap’s claim that she was subject to a hostile or abusive work

environment based on the conduct of her supervisors, the jury found in favor of Spec

Pro. Id. The jury awarded Ms. Dunlap $1.00 in nominal damages and did not award

her compensatory or punitive damages. Id. at 2. 

On April 26, 2013, Ms. Dunlap filed the instant motion. Docket No. 75. Pursuant

to 42 U.S.C. § 2000e-5(k), Ms. Dunlap seeks $70,661.70 in attorney’s fees. Id. at 2.

Spec Pro argues that, because the jury awarded Ms. Dunlap nominal damages, Ms.

Dunlap is not entitled to an award of attorney’s fees or, in the alternative, that Ms.

Dunlap’s award of attorney’s fees should be reduced accordingly. Docket No. 77 at 7. 

II. ANALYSIS

A. Ms. Dunlap’s Failure to Prove Compensatory Damages

In actions brought under Title VII of the Civil Rights Act, “the court, in its

discretion, may allow the prevailing party . . . a reasonable attorney’s fee . . . .” 42

U.S.C. § 2000e-5(k). “Congress intended to permit the . . . award of counsel fees only

when a party has prevailed on the merits of at least some of his claims.” Hanrahan v.

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The Supreme Court has generally recognized that “case law construing what is 1

a ‘reasonable’ fee applies uniformly to all” fee-shifting statutes under Title VII, e.g. §§

1988, 2000e-5(k), 7604(d). City of Burlington v. Dague, 505 U.S. 557, 562 (1992). 

3

Hampton, 446 U.S. 754, 758 (1980). “[A] plaintiff who wins nominal damages is a 1

prevailing party” for purposes of awarding attorney’s fees under Tile VII. Farrar v.

Hobby, 506 U.S. 103, 112 (1992). The “‘degree of the plaintiff’s success’ does not

affect ‘eligibility for a fee award.’” Id. at 114 (quoting Tex. State Teachers Ass’n v.

Garland Ind. Sch. Dist., 489 U.S. 782, 789 (1989)). Thus, where Ms. Dunlap achieved

a judgment in her favor for nominal damages, the Court finds that Ms. Dunlap is a

prevailing party entitled to reasonable attorney’s fees.

Once plaintiff has “crossed the ‘statutory threshold’ of prevailing party status,” a

district court must ensure that an award of attorney’s fees is warranted. Tex. State

Teachers Ass’n, 489 U.S. at 789-90. The “‘technical’ nature of a nominal damages

award . . . does bear on the propriety of fees awarded.” Farrar, 506 U.S. at 114. In the

Tenth Circuit, a district court’s discretion to entirely deny attorney’s fees to a prevailing

party is narrow. Phelps v. Hamilton, 120 F.3d 1126, 1131 (10th Cir. 1997). However,

the prevailing party’s award request for attorney’s fees must be evaluated based upon:

“(1) the difference between the judgment recovered and the recovery sought; (2) the

significance of the legal issue on which the plaintiff prevailed; and (3) the public

purpose of the litigation.” Id. (citing Farrar, 506 U.S. at 121-22 (O’Connor, J.,

concurring)). “When a plaintiff recovers only nominal damages because of his failure to

prove an essential element of his claim for monetary relief, . . . the only reasonable fee

is usually no fee at all.” Id. at 115. 

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The Court first turns to the “‘degree of success obtained,’” which is “‘the most

critical factor’ in determining the reasonableness of a fee award.” Farrar, 506 U.S. at

114 (quoting Hensley, 461 U.S. at 436). Where, as here, plaintiff’s claims for relief

were based upon a common set of facts and “related legal theories,” the district court

should “focus on the significance of the overall relief obtained by the plaintiff in relation

to the hours reasonably expended on the litigation.” Hensley, 461 U.S. at 435. Ms.

Dunlap’s complaint did not make a specific monetary demand, although she requested

back pay, front pay, loss of earning capacity and future incapacity, emotional distress,

loss of enjoyment of life, and punitive damages. See Docket No. 1 at 3. The dismissal

of Ms. Dunlap’s retaliation claim eliminated her request for back pay and front pay,

leaving the jury to consider whether Ms. Dunlap proved non-economic and punitive

damages. See Docket No. 64 at 23. The fact that the jury ultimately awarded only

$1.00 in nominal damages suggests that some reduction in the requested attorney’s

fees is appropriate, especially where Ms. Dunlap’s retaliation claim did not survive

summary judgment. 

However, the Tenth Circuit has recognized that a lack of success in proving

damages is not dispositive where other interests are implicated. See, e.g., Phelps, 120

F.3d at 1132 (finding that, where plaintiffs prevailed on only one of four claims,

declaratory judgment in plaintiffs’ favor overturning state statute as unconstitutionally

vague “does not weigh in favor of characterizing the plaintiffs’ victory as merely

technical or de minimis”); Koopman v. Water Dist. No. 1 of Johnson Cnty., Kan, 41 F.3d

1417, 1421 (10th Cir. 1994) (reversing denial of attorney’s fees because plaintiff’s

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nominal damages award benefitted other employees by placing defendant on notice

that its termination proceedings were constitutionally inadequate). The Court finds that

this is just such a case. At trial, there was significant testimony describing the general

nature of the work environment at Spec Pro. Spec Pro’s human resources investigator

said of Ms. Dunlap’s workplace, “everyone was voluntarily participating in unwelcome

conduct or misconduct.” Docket No. 80 at 7, p. 412:20-21. The evidence presented at

trial suggested that this environment persisted for a significant period of time before

Spec Pro took corrective action. Spec Pro claims that, by failing to prevail on her claim

of supervisor sexual harassment, Ms. Dunlap did not show that Spec Pro’s

management level employees contributed to the hostile work environment. Docket No.

77 at 5-6. The jury’s verdict on Ms. Dunlap’s supervisor sexual harassment claim, while

rejecting a claim that her supervisors sexually harassed her, does not indicate that the

jury found that Spec Pro’s management level employees were unaware of the existence

of a hostile work environment. See Docket No. 73-2 at 12. Rather, by finding in Ms.

Dunlap’s favor on her claim of co-worker sexual harassment, the jury necessarily found

that management level employees knew or should have known of the hostile work

environment present at Spec Pro and failed to take prompt and appropriate corrective

action. See id. at 10. Although Spec Pro claims that the work environment was

eventually corrected, Ms. Dunlap’s victory benefits future employees by placing Spec

Pro on notice that it must maintain a workplace free from sexual harassment. 

Moreover, this case was filed and tried to a jury in less than two years and, as such,

was not unnecessarily protracted in relation to the relief obtained. See Brandau v.

State of Kan., 168 F.3d 1179, 1182 (10th Cir. 1999); cf. Farrar, 506 U.S. at 116

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(O’Connor, J., concurring) (noting that 10 years of litigation and two appeals yielding

one dollar in damages was unnecessarily protracted litigation). The Court finds that this

factor is neutral. 

The second factor examines the “extent to which the plaintiff[] succeeded on

[her] theory of liability.” Phelps, 120 F.3d at 1132. Although Ms. Dunlap’s retaliation

claim did not survive summary judgment, she succeeded on her hostile work

environment claim. See Brandau, 168 F.3d at 1182 (“although [plaintiff] lost her

retaliation and constructive discharge claims,” verdict in plaintiff’s favor on sexual

harassment claim was significant legal issue on which the plaintiff prevailed). Spec Pro

argues that Ms. Dunlap’s failure to prevail on her claim of supervisor sexual harassment

indicates only minimal success. Docket No. 77 at 5. Nonetheless, the jury concluded

that a hostile work environment existed at SpecPro. The Court finds that this factor

weighs in Ms. Dunlap’s favor. 

The third factor “considers the public purpose served by the plaintiff[’s] success.” 

Phelps, 120 F.3d at 1132. Of particular significance is whether “the judgment

vindicates important rights and deters future lawless conduct as opposed to merely

‘occupying the time and energy of counsel, court, and client.’” Id. at 1132 (quoting

Farrar, 506 U.S. at 121-22 (O’Connor, J., concurring). Ms. Dunlap presented evidence

that reporting harassing conduct to supervisors was frowned upon and often ineffective. 

Docket No. 78 at 76-77, pp. 76:8-77:7. Spec Pro argues that it corrected such conduct

prior to litigation such that the jury verdict will not deter or alter future unlawful behavior. 

Docket No. 77 at 6. However, although Spec Pro’s management level employees may

not have encouraged or participated in such behavior, the jury found that management

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level employees were aware, or should have been aware, of a work environment where

sexually harassing comments were commonplace and that Spec Pro failed to take

appropriate corrective action. See Docket No. 73-2 at 10. The Court finds that Ms.

Dunlap’s success on her hostile work environment claim will benefit current and future

employees by further underscoring Spec Pro’s obligation to maintain and enforce an

effective sexual harassment policy. See Brandau, 168 F.3d at 1182-83 (“Plaintiff’s

victory put [defendant] on notice that it should reform its sexual harassment policies and

that it is proceeding at its peril if it declines to do so.”). The Court finds that this factor

weighs in Ms. Dunlap’s favor. 

Defendant argues that this is a case where “special circumstances would render

such an award unjust.” Phelps, 120 F.3d at 1129 (internal quotations marks omitted). 

However, the Tenth Circuit has held that “the district court’s discretion to deny fees to a

prevailing plaintiff is quite narrow,” Wilson v. Stocker, 819 F.2d 943, 951 (10th Cir.

1987), and, in light of the three Phelps factors, defendant fails to show that such special

circumstances are present in this case. Thus, the Court finds that Ms. Dunlap’s victory

was not technical or de minimis and that Ms. Dunlap should be permitted an award of

reasonable attorney’s fees. 

B. Lodestar Amount

The Court turns to the issue of calculating a reasonable award of attorney’s fees

given that Ms. Dunlap achieved only limited success. Although Spec Pro seeks a

reduction in Ms. Dunlap’s request for attorney’s fees, Spec Pro offers no suggestion as

to how the Court should reduce such an award. Docket No. 77 at 7. In the Tenth

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“In determining what is a reasonable time in which to perform a given task,” an 2

attorney submitting billing entries should consider the following factors: (1) the

complexity of the case; (2) the number of reasonable strategies pursued; (3) the

responses necessitated by the maneuvering of the other side; and (4) “the potential

duplication of services” caused by the presence of multiple attorneys when one would

suffice. Ramos, 713 F.2d at 554. 

8

Circuit, even where a plaintiff’s fee request includes fees incurred litigating claims that

do not reach the jury, a court must first calculate the lodestar amount: “‘the total number

of hours reasonably expended multiplied by a reasonable hourly rate-and then adjust

the lodestar upward or downward to account for the particularities of the suit and its

outcome.’” Zinna v. Congrove, 680 F.3d 1236, 1239, 1242 (10th Cir. 2012) (quoting

Phelps, 120 F.3d at 1131). 

Attorney Michael Waters claims that he spent a total of 256.9 hours litigating Ms.

Dunlap’s case. Docket No. 75 at 3. In determining the reasonableness of the hours

expended, a court considers several factors. First, it considers whether the fees pertain

to tasks that would ordinarily be billed to a client. See Ramos v. Lamm, 713 F.2d 546,

554 (10th Cir. 1983), overruled on other grounds by Penn. v. Del. Valley Citizens’

Council for Clean Air, 483 U.S. 711, 717 n. 4 (1987). Plaintiff must demonstrate that

her counsel used “billing judgment” in winnowing down the hours actually spent to those

reasonably expended. Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1257 (10th Cir.

2005). If not, a court should take extra care to ensure that an attorney has not 2

included unjustified charges in his billing statement. Id. A court should also consider

whether the amount of time spent on a particular task appears reasonable in light of the

complexity of the case, the strategies pursued, and the responses necessitated by an

opponent’s maneuvering. Id. Ultimately, the Court’s goal is to fix a fee that would be

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equivalent to what the attorney would reasonably bill for those same services in an

open market and fees will be denied for excessive, redundant, and otherwise

unnecessary expenses. Ramos, 713 F.2d at 553. The burden is on the party

requesting fees to prove that its counsel exercised proper billing judgment. Case v.

Unified Sch. Dist. No. 233, Johnson Cnty., Kan., 157 F.3d 1243, 1250 (10th Cir. 1998)

(“Counsel for the party claiming the fees has the burden of proving hours to the district

court by submitting meticulous, contemporaneous time records that reveal, for each

lawyer for whom fees are sought, all hours for which compensation is requested and

how those hours were allotted to specific tasks.”). 

Mr. Waters’ billing records raise multiple issues. First, Mr. Waters claims that his

billing records erroneously indicate that two other attorneys expended time in this case,

see Docket No. 75-2 at 11, but that all tasks listed in the records were actually

completed by him. He states that the other attorneys’ initials have not been corrected

because counsel knows the attorneys referenced in the billing documents were not

involved in the case. Docket No. 75-1 at 1. The Court accepts Mr. Waters’ explanation

of this error. Second, Mr. Waters’ billing records indicate that 0.8 hours were expended

by Kaye Reis. Docket No. 75-2. Because Mr. Waters provides no information as to

Kaye Reis’ title, identity, or qualifications, the Court will subtract the 0.8 hours billed by

Kaye Reis. Third, Mr. Waters’ records reflect a 3.0 hour charge for Jeffrey A. Garcia,

who “Attended pretrial hearing with Mike Waters (No charge).” Docket No. 75-2 at 10. 

However, the 3.0 hours that Mr. Garcia spent attending the hearing were added to the

total submitted by Mr. Waters. Id. at 11. Mr. Waters does not explain whether the

addition of Mr. Garcia’s time was in error. The Court will subtract the 3.0 hours billed by

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Mr. Garcia. The Court has reviewed the remainder of Mr. Waters’ billing records and is

otherwise satisfied that, given the nature of Ms. Dunlap’s claims, Mr. Waters used

proper billing judgment in the 253.1 hours expended on Ms. Dunlap’s case. 

Mr. Water’s hourly rate is $275. Mr. Waters indicates that he has over 30 years

of experience practicing law in Colorado and has tried cases in a variety of practice

areas. In order to satisfy her burden, Ms. Dunlap must produce “satisfactory evidence –

in addition to the attorney’s own affidavits – that the requested rates are in line with

those prevailing in the community for similar services by lawyers of reasonably

comparable skill, experience and reputation.” Blum v. Stenson, 465 U.S. 886, 895 n.

11 (1984). Because Ms. Dunlap has not provided any additional evidence in support of

the proposed rate, the Court can adjust the rate based on its own familiarity with the

range of prevailing rates in the Denver market. See generally Guides, Ltd. v. Yarmouth

Grp. Prop. Mgmt., Inc., 295 F.3d 1065, 1079 (10th Cir. 2002) (“where a district court

does not have before it adequate evidence of prevailing market rates, the court may

use other relevant factors, including its own knowledge, to establish the rate”).

However, in this case the Court finds that Mr. Waters’ hourly rate of $275 is reasonable. 

See James v. Fenske, No. 10-cv-02591-WJM-CBS, 2013 WL 656821, at *2 (D. Colo.

Feb. 22, 2013) (finding customary rate in Denver legal market for two employment law

partners to be $275 and $300 based on their experience); Lopez v. Suncor Energy

(U.S.A.) Inc., No. 11-cv-00081-LTB-BNB, 2012 WL 695143, at *2 (D. Colo. March 5,

2012) (finding reasonable rate in employment discrimination case was $364.50 for

attorney with 19 years experience and $274.50 for attorney with ten years experience).

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The Tenth Circuit has suggested that the proper approach to analyzing a 3

request for attorney’s fees in this situation may be “first assess[ing] whether special

circumstances would make any award unjust . . . then fix[ing] a reasonable fee.” Barber

v. T.D. Williamson, Inc., 254 F.3d 1223, 1229-30 (10th Cir. 2001) (quoting Gudenkauf v.

Stauffer Commc’ns, Inc., 158 F.3d 1074, 1082 (10th Cir. 1998). However, the Tenth

Circuit also noted Justice O’Connor’s observation that “‘[w]hile that exception to fee

awards has often been articulated separately from the reasonableness inquiry,

sometimes it is bound up with reasonableness.’” Barber, 254 F.3d at 1230 (quoting

Farrar, 506 U.S. at 118 (O’Connor, J., concurring)). The Court finds that this is just

such a case. 

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Having concluded that the lodestar amount in this case is $69,602.50, the Court

must now modify the award to reflect the particularities and outcome of Mr. Dunlap’s

case. Zinna, 680 F.3d at 1242. A court must make “qualitative comparisons among 3

substantive claims before adjusting the lodestar either for excellent results or limited

success.” Jane L. v. Bangerter, 61 F.3d 1505, 1511 (10th Cir. 1995). District courts

may modify an award of attorney’s fees “by simply reducing the award to account for

the limited success of the plaintiff” or “by attempting to identify specific hours that

should be eliminated.” Tex. State Teachers Ass’n, 489 U.S. at 789-90. The latter

approach carries significant difficulties in this case where Ms. Dunlap’s hostile work

environment and retaliation claims were based upon common issues of fact and law. In

situations where plaintiff’s claims for relief were based upon a common set of facts and

“related legal theories,” the district court should “focus on the significance of the overall

relief obtained by the plaintiff in relation to the hours reasonably expended on the

litigation.” Hensley, 461 U.S. at 435.

Ms. Dunlap’s two claims were based upon the same set of facts, although only

her hostile work environment claim ultimately succeeded on the issue of liability. 

Distinguishing between the hours spent on Ms. Dunlap’s two claims is nearly impossible

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given that both claims required nearly identical fact investigation. Nonetheless, Ms.

Dunlap’s counsel expended time defending her retaliation claim on summary judgment. 

Thus, because Ms. Dunlap’s retaliation claim did not survive summary judgment, the

Court finds that reducing Ms. Dunlap’s award by 15% is warranted. With respect to

reducing Ms. Dunlap’s award based upon her limited success on her hostile work

environment claim, the Court considers the three Phelps factors. Courts have

exercised broad discretion to reduce attorney’s fees awards in similar situations. See

Diaz-Rivera v. Rivera-Rodriguez, 377 F.3d 119, 127-28 (1st Cir. 2004) (affirming 33%

reduction where plaintiffs were awarded nominal damages on claim for due process

violation); Brandau, 168 F.3d at 1183 (affirming award of $41,598.13 in attorney’s fees

where plaintiff sought more than $50,000 and recovered $1.00); Sanchez v. Matta,

2005 WL 2313621, at *7 (D.N.M. July 29, 2005) (reducing attorney’s fees by 10%

where plaintiff won nominal damages); Bell v. Bd. of Cnty. Comm’rs of Jefferson Cnty.,

2005 WL 361510, *2, *6 (D. Kan. Feb. 15, 2005) (reducing lodestar amount by 90%

where plaintiff sought $1.4 million in damages but court vacated damages award of

$90,000); Mercer v. Duke Univ., 301 F. Supp. 2d 454, 469 (M.D.N.C. 2004) (finding that

20% reduction in Title IX case was appropriate where plaintiff failed to prove

compensatory damages). Ms. Dunlap succeeded in proving that a hostile work

environment existed at Spec Pro and in placing Spec Pro on notice of its obligation to

maintain and enforce an effective sexual harassment reporting policy. However, the

degree of success obtained carries the most weight in this analysis and, although Ms.

Dunlap did not request a specific amount in damages, the Court finds that Ms. Dunlap’s

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failure to prove actual damages warrants reducing her award of attorney’s fees by an

additional 35%. Thus, after reducing the lodestar amount of $69,602.50 by a total of

50%, Ms. Dunlap is entitled to attorneys’ fees of $34,801.25.

III. CONCLUSION

For the foregoing reasons, it is 

ORDERED that Plaintiff’s Motion for Attorney Fees [Docket No. 75] is GRANTED

in part and DENIED in part as indicated in this Order. It is further

ORDERED that plaintiff TONYA DUNLAP shall be awarded $34,801.25 in

attorney’s fees.

DATED March 18, 2014.

BY THE COURT:

 s/Philip A. Brimmer 

PHILIP A. BRIMMER

United States District Judge

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