                                 United States Court of Appeals,

                                         Eleventh Circuit.

                                           No. 96-9248.

                             Johnny R. CANUP, Plaintiff-Appellant,

                                                 v.

                         CHIPMAN-UNION, INC., Defendant-Appellee.

                                           Oct. 8, 1997.

Appeal from the United States District Court for the Middle District of Georgia. (No. 3:94-CV-
100(DF), Duross Fitzpatrick, Chief Judge.

Before CARNES, Circuit Judge, and HENDERSON and GIBSON*, Senior Circuit Judges.

       FLOYD R. GIBSON, Senior Circuit Judge:

       A jury determined that Chipman-Union Incorporated ("CUI") unlawfully considered Johnny

Canup's race in its decision to terminate Canup's employment, but that CUI would have terminated

him even if his race had not been considered. After entering judgment in Canup's favor, the District

Court1 decided not to award Canup any of his attorney fees and awarded him only $6,768.43 of the

$12,553.20 in costs he requested. Canup appeals that portion of the District Court's order that

denied his claim for attorney fees, and we affirm.

                                        I. BACKGROUND

       Although the jury's verdict is not an issue on appeal, a general understanding of the facts is
important to the issue that has been raised. Canup, a white male, was employed by CUI and held

the position of Finishing Supervisor. As a supervisor, Canup's conduct was governed by, among

other materials, a Supervisor's Manual. Section G of the Supervisor's Manual is captioned "Good

Moral Behavior" and states in part as follows:

       Chipman-Union also expects its supervisors to be faithful in the marriage relationships [sic].
       A bad example is set by a supervisor who engages in an adulterous relationship. To do so

   *
    Honorable Floyd R. Gibson, U.S. Circuit Judge for the Eighth Circuit, sitting by designation.

   1
   The Honorable Duross Fitzpatrick, Chief Judge for the United States District Court for the
Middle District of Georgia.
       leads to a loss of respect from the employees of the supervisor's department. Personal
       conduct that affects the performances of the department is the Company's concern.

Canup was aware of this prohibition. Nonetheless, he began having an extramarital affair with a

subordinate, Theresa Hubbard; both Canup and Theresa were married at the time, and Theresa's

husband, Kevin, was Canup's friend.

       Kevin discovered the affair in May 1993 and attempted suicide; the attempt failed. Kevin

threatened to kill Canup, and Kevin's father also threatened Canup's life. After learning of these

death threats, Canup notified his managers about both his affair and the threats. John Osborne (Vice

President of Manufacturing) and the company president discussed the matter and decided to

terminate Canup's employment. At the time of these discussions, CUI was in the midst of a union

campaign. A black supervisor had been terminated recently,2 and there was some concern that

failure to terminate Canup's employment might create a racial issue in the union negotiations.

Consequently, although firing Canup was not a desirous outcome, Osborne and the president felt that

the best thing to do was to act consistently with past practice and terminate Canup's employment.

       Canup brought suit, alleging seven causes of action: race discrimination, retaliation, tortious

interference with contracts, bad faith and "stubborn litigiousness," defamation, and invasion of

privacy. The case ultimately went to trial on only Count I of the complaint, with Canup requesting

damages for lost wages in the amount of $590,000 and additional unspecified amounts for

compensatory and punitive damages. Following trial, the jury found that Canup's race was a factor
in CUI's decision to terminate his employment, but that CUI would have terminated Canup for his

violation of company policy even if Canup's race had not been considered. This resulted in a verdict

in Canup's favor, but by operation of law entitled him to recover no damages.

       Canup then filed a motion for attorney fees and costs, requesting fees in the amount of

$110,779.50 and costs in the amount of $12,553.20. The District Court concluded that the




   2
    This individual was terminated for financial misconduct, not for committing adultery.

                                                 2
appropriate amount of fees in this case would be no fees at all. The District Court did award costs

in the amount of $6,768.43; this aspect of the award is not appealed by either party.

                                           II. DISCUSSION

          In Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), the

Supreme Court held that in Title VII cases, once the plaintiff establishes an impermissible factor

played a motivating part in an employment decision, "the defendant may avoid a finding of liability

only by proving by a preponderance of the evidence that it would have made the same decision even

if it had not taken the [impermissible factor] into account." 490 U.S. at 258, 109 S.Ct. at 1795. In

response, Congress passed the 1991 Civil Rights Act which, inter alia, altered the effect of a finding

of liability under this subset of mixed motive cases. Now, "an unlawful employment practice is

established when the complaining party demonstrates that race, color, religion, sex or national origin

was a motivating factor for any employment practice, even though other factors also motivated the

practice." 42 U.S.C. § 2000e-2(m) (1994). However, if a defendant in such a case can also prove

that it

          would have taken the same action in the absence of the impermissible motivating factor, the
          court—

                 (i) may grant declaratory relief, injunctive relief (except as provided in clause (ii)),
                 and attorney's fees and costs demonstrated to be directly attributable only to the
                 pursuit of a claim under section 2000e-2(m) of this title; and

                 (ii) shall not award damages or issue an order requiring any admission,
                 reinstatement, hiring, promotion, or payment, described [elsewhere in this statute].

42 U.S.C. § 2000e-5(g)(2)(B) (emphasis supplied). The combined effect of these amendments

creates two possible outcomes in mixed motive cases: (1) the plaintiff prevails if he or she proves

that an improper motive was a factor in the employment decision, but (2) the defendant can limit its

liability if it can prove that it would have made the same decision even if the improper factor had

not been considered. Cf. Harris v. Shelby County Bd. of Educ., 99 F.3d 1078, 1084-85 (11th

Cir.1996). In those mixed motive cases in which the defendant fails to prove that the same

employment decision would have been made, 42 U.S.C.2000e-5(k) applies and provides that a


                                                    3
"prevailing party" can recover "a reasonable attorney's fee (including expert fees) as part of the

costs."

          Canup acknowledges that we review the District Court's decision to deny attorney fees for

abuse of discretion. See Turner v. Sungard Bus. Sys., Inc., 91 F.3d 1418, 1422 (11th Cir.1996).

However, Canup contends that the District Court considered improper factors in deciding to deny

his fee request; this is a legal issue that we review de novo. See Church v. City of Huntsville, 30

F.3d 1332, 1342 (11th Cir.1994).

          Canup first argues that § 2000e-5(g)(2)(B) establishes a presumption in favor of fees

because he proved that CUI considered his race when deciding to terminate him, even though he

would have been terminated in any event. We disagree. First, the statute suggests the contrary: §

2000e-5(g)(2)(B) uses permissive language ("may grant") when discussing attorney fees, but uses

mandatory language ("shall not award") when discussing other forms of relief. The proximity of

these two phrases in the same statute is telling: had Congress wanted to require attorney fee awards,

it could have done so when it drafted other, mandatory language regarding remedies. See Sheppard

v. Riverview Nursing Ctr., Inc., 88 F.3d 1332, 1338 (4th Cir.), cert. denied, --- U.S. ----, 117 S.Ct.

483, 136 L.Ed.2d 377 (1996).

          Canup also finds supports in § 2000e-5(k), which provides for attorney fees to the

"prevailing party" in other Title VII cases. Canup contends that he would have been considered a
"prevailing party" under § 2000e-5(k), and he therefore should be entitled to fees. However, Canup

would not fare well under § 2000e-5(k). Recovery of fees under that provision initially depends

upon achieving a favorable result—be it monetary or equitable relief—that alters the relationship

between the parties. E.g., Farrar v. Hobby, 506 U.S. 103, 111, 113 S.Ct. 566, 573, 121 L.Ed.2d 494

(1992) ("[T]o qualify as a prevailing party, a civil rights plaintiff must obtain at least some relief on

the merits of his claim.... Whatever relief the plaintiff secures must directly benefit him at the time

of the judgment or settlement."); see also Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933,

1939, 76 L.Ed.2d 40 (1983). Canup received nothing more than a judgment; no monetary or


                                                   4
equitable relief was obtained. This case is thus very similar to Walker v. Anderson Elec.

Connectors, 944 F.2d 841 (11th Cir.1991), cert. denied, 506 U.S. 1078, 113 S.Ct. 1043, 122 L.Ed.2d

352 (1993). There, the plaintiff proved that she had been subjected to sexual harassment, but the

jury did not award any damages. (There was no instruction regarding nominal damages, so not even

a dollar was awarded to the plaintiff.). We rejected the plaintiff's argument that the favorable jury

verdict, standing alone, entitled her to an award of fees. Walker, 944 F.2d at 847. Canup has not

achieved as much, and perhaps has achieved less, than the plaintiff in Walker, and would not be

entitled to fees under § 2000e-5(k). Cf. Farrar, 506 U.S. at 114-16, 113 S.Ct. at 574-576 (affirming

denial of attorney fees for plaintiff who proved violation of his constitutional rights but recovered

only nominal damages). Thus, to the extent that § 2000e-5(k) (and other fee shifting statutes)

provide guidance, Canup's failure to obtain any real relief deprives him of any right to recover

attorney fees.3

       Canup acknowledges that he recovered no damages, but contends recovery of damages

should not be an important consideration because Congress has decreed that damages are not

available. He suggests a different analysis for considering fee requests under 42 U.S.C. § 2000e-

5(g)(2)(B); an analysis that does not consider success on the merits but instead starts with the

presumption that Congress intended for fees to be awarded and considers (1) whether there was

direct evidence of discrimination, (2) whether injunctive relief was appropriate and, if so, whether
it was granted, (3) evidence that non-monetary goals were accomplished, and (4) the existence of

declaratory relief. This framework is inappropriate.

       The presumption that Canup seeks would create a very unusual situation. Under his

formulation, Canup's eligibility for fees would be greater than the plaintiffs in Walker and


   3
    In some cases, the presence of a minor, inconsequential victory is the basis for denying a
plaintiff "prevailing party" status; in others, the plaintiff is deemed a prevailing party but the
low level of success is relied upon to hold that the appropriate amount of fees is nothing. The
point at which this issue is considered is irrelevant. "[E]ven if the exclusion's location is
debatable, its effect is not: When the plaintiff's success is purely technical or de minimis, no fees
can be awarded." Farrar, 506 U.S. at 117, 113 S.Ct. at 576 (O'Connor, J., concurring).

                                                  5
Farrar—cases in which the plaintiffs' civil rights were violated and the defendants could not justify

their actions on legitimate grounds. There is no reason to believe that Congress wanted to make it

easier for Canup—who would have been fired anyway—to recover fees than for Farrar—whose due

process rights were violated—or for Walker—who endured sexual harassment. We would expect

Congress to speak more clearly if it intended such a radical change in the application and

understanding of its fee shifting statutes. Canup seeks to minimize his failure to obtain any relief

by arguing it was not available. We do not believe Congress meant to encourage plaintiffs to seek

judgments but not relief.

       In all civil litigation, the judicial decree is not the end but the means. At the end of the
       rainbow lies not a judgment, but some action (or cessation of action) by the defendant that
       the judgment produces—the payment of damages, or some specific performance, or the
       termination of some conduct. Redress is sought through the court, but from the defendant.
       This is no less true of a declaratory judgment suit than of any other action. The real value
       of the judicial pronouncement—what makes it a proper judicial resolution of a "case or
       controversy" rather than an advisory opinion—is in the settling of some dispute which affects
       the behavior of the defendant towards the plaintiff.

Hewitt v. Helms, 482 U.S. 755, 761, 107 S.Ct. 2672, 2676, 96 L.Ed.2d 654 (1987).4

       Finally, we are troubled by Canup's suggestion that the District Court should have considered

some of the facts of this case—namely, the existence of direct evidence—and ignore other

facts—here, Canup's own misconduct. Canup contends he was penalized for his misconduct when

the jury concluded he would have been fired anyway. Now, he contends, it is appropriate to punish

CUI for its actions by making it pay his attorney fees. The jury's decision does not reflect approval
or disapproval of Canup's actions; it could have been completely unbothered by Canup's violation

of rules yet still convinced that CUI would have fired him for this nondiscriminatory reason. The


   4
    We also disagree with Canup's contention that the jury verdict constituted declaratory relief.
As the quoted passage from Hewitt explains, declaratory relief will change the relationship
between plaintiff and defendant; the jury's verdict in this case did not. Cf. Rhodes v. Stewart,
488 U.S. 1, 4, 109 S.Ct. 202, 204-05, 102 L.Ed.2d 1 (1988). As in Hewitt, "[t]he only "relief'
[Canup] received was the moral satisfaction of knowing that a federal court concluded that his
rights had been violated." 482 U.S. at 762, 107 S.Ct. at 2676. This does not constitute
declaratory relief. See id. at 762-63, 107 S.Ct. at 2676-77. It is for this same reason that Canup's
private, non-monetary goals (which are not defined in the record) cannot serve as "relief"
sufficient to entitle him to an award of fees.

                                                 6
jury is not asked to compare fault or assess blame. Furthermore, it seems that CUI has been

penalized by virtue of the verdict against it and the obligation to pay Canup's costs. We agree with

the Fourth Circuit's discussion about this matter:

        Some mixed-motive cases will evidence a widespread or intolerable animus on the part of
        a defendant; others will illustrate primarily the plaintiff's unacceptable conduct which, by
        definition, will have justified the action taken by the defendant. The statute allows district
        courts to distinguish among cases that are in reality quite different.

Sheppard, 88 F.3d at 1336.

        We hold that the starting point for considering fee requests under § 2000e-5(g)(2)(B) must

be the degree of success obtained by the plaintiff. It is true that Congress has determined that

monetary damages are not available; however, Congress has decreed that equitable relief is

available except in certain circumstances. Injunctive or declaratory relief may not be available in

a given case (such as Canup's), but it will be available in some situations.5 The fact that relief is not

always available does not justify ignoring this factor in order to make fee awards more prevalent;

had Congress wanted to prohibit courts from considering what has historically been a common

factor in fee requests in order to make fee awards in same-decision cases more common, it could

have drafted a statute that clearly stated this intent. See Sheppard, 88 F.3d at 1336.

        We also think it important to consider the facts of the given case. As suggested above, an

"innocent" employee whose conduct played no role in his termination (e.g., reduction in force cases)

stands in a different situation than one who engages in misconduct. Furthermore, misconduct
manifests itself with varying degrees, so the severity of the defendant's wrongdoing can be

considered in determining whether the defendant should be obligated to pay the plaintiff's attorney




   5
    Consider a case in which a company-wide policy that violates Title VII contributed to a
plaintiff's termination—yet, the jury still believed the termination would have occurred
notwithstanding the discriminatory policy. No damages would be awarded, but injunctive relief
might be appropriate. In that case, the public purpose for the suit is greater, and affirmative
relief would have been obtained—even though the plaintiff could not be benefitted because the
District Court would lack the power to order reinstatement.

                                                   7
fees. The District Court is in the best position to evaluate the effect the facts of a given case should

have on the fee request.6

           After reviewing the District Court's order, we conclude that its analysis was proper and did

not constitute an abuse of discretion. The court considered the degree of Plaintiff's success and

noted that "the results obtained by Plaintiff's attorney did not substantially benefit her client. This

case provided only a pyrrhic victory for Plaintiff." The court also noted "[t]hat this was not a case

of egregious discrimination, and it did not require the award of declaratory or injunctive relief. Thus

the Court sees no reason for an award of attorney's fees." Finally, the District Court took note of the

equities of the case when it observed "[a]n award would be appropriate when declaratory or

injunctive relief is awarded or where intentional discrimination is so blatant and egregious that

failure to award attorneys' fees to Plaintiff would constitute an injustice. This, however, is not such

a case."

       The District Court also mentioned the fact that Canup received and rejected an offer to settle

for $20,000. Canup contends that it was improper for the District Court to consider the settlement

offer because the offer failed to include attorney fees as part of the costs as required by Federal Rule

of Civil Procedure 68.7 Any discussion about Rule 68 would be purely academic, as CUI did not

intend its offer to be a Rule 68 offer of settlement. With that caveat, we are not persuaded by

Canup's argument. "[W]here the underlying statute defines "costs' to include attorney's fees, we are
satisfied such fees are to be included as costs for purposes of Rule 68." Marek v. Chesny, 473 U.S.



   6
    We do not intend for this to become a factor in fee requests governed by § 2000e-(5)(k) (or,
for that matter, in any other fee shifting statute). A request governed by § 2000e-5(g)(2)(B) is
necessarily preceded by a jury's determination that the employment decision would have been
made absent the consideration of illegal factors. However, a fee request governed by §
2000e-(5)(k) is not preceded by this determination; in fact, the jury may have specifically
rejected this argument. Therefore, consideration of nondiscriminatory reasons for the
employment decision leads to reconsideration of the jury's verdict which, of course, is improper.
   7
    Rule 68 provides that under certain circumstances a rejected offer of judgment will permit a
defendant to recover cost from a prevailing plaintiff if the plaintiff did not recover more than the
amount contained in the offer.

                                                    8
1, 9, 105 S.Ct. 3012, 3016, 87 L.Ed.2d 1 (1985). Although § 2000e-2(g)(B) allows for attorney fees,

it does not allow for them as a part of costs.

       In expressly distinguishing attorney's fees from "costs," Congress was aware that it was
       deviating from the language in § 1988, and that under Marek, the Rule 68 implications
       depend upon the precise wording of the fee-enabling statute. This explicit congressional
       recognition, coupled with Marek 's emphasis on the exact language of the particular
       attorney's fee provision, makes clear that fees granted under § 2000e-5(g)(2)(B) are not part
       of "costs" subject to Rule 68.

Sheppard, 88 F.3d at 1337 (citation omitted). We thus reject Canup's contention that Marek bars

consideration of CUI's offer. Nonetheless, we are concerned that any settlement offer—regardless

of how slight it may be—will appear overwhelming in a case in which Congress has decreed that

no damages may be awarded. Therefore, although rejection of a settlement offer may be considered,

we do not believe that it should ordinarily be a controlling factor in assessing a fee request. We have

reviewed the District Court's order and conclude that it did not place inordinate weight on Canup's

rejection of the settlement offer; the District Court was primarily concerned about the relative lack

of success achieved and the technical nature of his victory.

                                        III. CONCLUSION

       In light of the lack of success achieved and the facts of this case, we conclude that the

District Court did not abuse its discretion when it declined to award any fees to the plaintiff in this

case. Accordingly, the District Court is AFFIRMED.




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