                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        May 31, 2006
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 SH EILA G . K EELA N ,

               Plaintiff - Appellee,                     No. 05-1400
          v.                                             D. Colorado
 DENVER M ERCHANDISE M ART, a                (D.C. No. 00-CV -2303 EW N-CB S)
 Colorado corporation,

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before L UC ER O, PO RFILIO, and HA RTZ, Circuit Judges.


      Sheila Keelan filed suit against her former employer, the Denver

M erchandise M art (the M art), alleging claims of gender discrimination in her

termination from employment and in the terms and conditions of her employment.

A jury ruled against her on both claims and awarded no damages. On the

termination claim it found that gender was a motivating factor in her termination

but that she would have been terminated anyway. The district court awarded

M s. Keelan a portion of her attorney fees based on the finding of a discriminatory


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
motive. See 42 U.S.C. § 2000e-5(g)(2)(B) (attorney fees may be awarded in

employment-discrimination case even when employer proves the action would

have occurred absent the discriminatory motive). The M art appeals the award of

attorney fees, contending that (1) fees should have been denied because no

damages were awarded, and (2) the district court should have considered the

M art’s pretrial offer of judgment in calculating the fees. W e have jurisdiction

under 28 U.S.C. § 1291. Because the M art’s arguments are foreclosed by this

court’s decision in Gudenkauf v. Stauffer Communications, Inc., 158 F.3d 1074

(10th Cir. 1998), w e affirm the judgment of the district court.

      M s. Keelan’s employment w ith the M art was terminated on April 13, 1999.

She filed a gender-discrimination suit under Title VII in the United States District

Court for the D istrict of Colorado. After the M art’s motion for sum mary

judgment was denied, it made an offer of judgment under Fed. R. Civ. P. 68 in

the amount of $50,000, which M s. Keelan declined. The jury rendered a verdict

in favor of the M art.

      Following this verdict, M s. Keelan contended that she was entitled to

attorney fees because the jury had found that gender w as a motivating factor in

her termination. She requested fees in the amount of $161,283.72. The district

court agreed that some award of fees was appropriate, and granted her

$64,513.49.




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      The M art makes several arguments why the district court erred in awarding

attorney fees. Each is directly contradicted by Gudenkauf. First, the M art

contends that M s. Keelan’s total lack of success required a denial of fees, citing

in support both Farrar v. Hobby, 506 U.S. 103, 115 (1992) (“W hen 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.” (internal citation omitted)), and Barber v. T.D. Williamson, Inc., 254 F.3d

1223 (10th Cir. 2001). In Gudenkauf, however, we found the same contention

“inconsistent with the proper reading of Farrar and inconsistent with the Civil

Rights Act of 1991.” 158 F.3d at 1077. W e held in Gudenkauf that not only did

Farrar not foreclose an award of fees in financially unsuccessful mixed-motive

cases, id. at 1080, but that a plaintiff who establishes a discriminatory motive,

despite recovering no damages, “should ordinarily be awarded attorney’s fees in

all but special circumstances,” id. at 1081 (internal quotation marks omitted). A s

for Barber, it was not a mixed-motive case and, rather than limiting Gudenkauf, it

reaffirmed it. See 254 F.3d at 1229-30. Additionally, to the extent that the M art

relies on the approach of other circuits to attorney fees in mixed-motive cases,

particularly the Fourth Circuit’s opinion in Sheppard v. Riverview Nursing

Center, Inc., 88 F.3d 1332 (4th Cir. 1996), we are bound by Gudenkauf. See

Gudenkauf, 158 F.3d at 1080 (“we disagree with . . . [the Shepard decision of] the

Fourth Circuit Court of A ppeals . . . .”).

                                              -3-
      Finally, the M art contends that the district court erred in not reducing the

fee award based upon the offer of judgment. This argument was also specifically

rejected by Gudenkauf, 158 F.3d at 1084 (“Congress . . . did not intend a district

court to reduce a mixed motives plaintiff’s fee award on the basis of a rejected

pretrial settlement.”).

      The M art conceded at oral argument that most of its contentions would be

more appropriate for en banc review. That is indeed the case. Gudenkauf

controls on each of the arguments the M art has raised. See United States v.

Chanthadara, 230 F.3d 1237, 1260 (10th Cir. 2000) (“Absent an intervening

change in the law . . . or en banc review, we cannot review the judgment of

another panel of this court.”).

      W e AFFIRM the judgment of the district court.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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