201 F.3d 672 (5th Cir. 2000)
DAVID C. GARCIA, PLAINTIFF-APPELLANT, CROSS-APPELLEE,v.CITY OF HOUSTON, DEFENDANT-APPELLEE, CROSS-APPELLANT.
No. 98-20943, No. 98-21099
U.S. Court of Appeals, Fifth Circuit
February 09, 2000

[Copyrighted Material Omitted]
Appeals from the United States District Court for the Southern District of Texas.
Before FARRIS* Wiener and Stewart, Circuit Judges.

Carl E. Stewart, Circuit Judge

1
This is a consolidated appeal of a final judgment in a Title VII employment race discrimination action 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 even 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

2
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, obstacle course, and written test           with essay. The top finishers from the objective 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 finalists, but the four SWAT positions were awarded to two white officers, and two black officers.           Garcia 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 alleging 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 national origin 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 the same employment decision           even if the City had not considered Garcia's race. Finally, the jury found that Garcia should not be 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

3
Garcia argues that the district court erred by entering judgment in the City's favor based on the jury verdict.           Specifically, Garcia contends that 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 (5th 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.


4
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, 104L.Ed. 2d 268 (1989).1 In Price Waterhouse, the Court held           that an employer would not be held liable2 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. See 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. Id. at 252           (emphasis added). The legitimate reason must have been present at the time the decision was made. Id. 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 decision. Id. The           employer must prove the mixed-motive defense by a preponderance of the evidence. Id. at 253.


5
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. See 42 U.S.C.  2000e-2(m); Buchanan v. City of San Antonio, 85 F.3d           196, 200 (5th 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)).


6
In the present case, Garcia presented evidence that race was a motivating factor in HPD's decision not to           promote 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 officers admitted that among the group of           candidates who were qualified they considered it to be "a bonus" to transfer some black officers to SWAT.           Therefore, because the city used race as a motivating factor 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.


7
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 and 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.


8
Garcia claims that this evidence, however, is insufficient to sustain a mixed-motive defense under the Price           Waterhouse standard. 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 (8th 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 plaintiff's negative employment evaluations. Id. This           objective evidence was enough to sustain the jury's finding that the employer proved its mixed-motive defense.


9
In the present case, the City did present objective evidence regarding Garcia's evaluation that included race           neutral reasons 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 written tests but           also evaluations by the officer's current supervisors, interviews with SWAT team leaders, and psychological           testing. The process also included a "final evaluation" in which it was stated that the new SWAT team members           would be chosen based on how well they performed throughout the "entire process." This evidence demonstrates           that in 1992 the City did not intend for the 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 to transfer black officers was not the only reason           the City considered factors other than test scores.


10
Lieutenant Headley testified 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 detriment to his promotion to SWAT. At the           time of the selection 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 file was that 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

11
The district court awarded Garcia $13, 603 in attorneys' fees and $4,917 in costs. The City argues that the           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 aTitle VII case should be measured by the           plaintiff's success and that the district court 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. Brady v. Fort Bend County, 145 F.3d 691, 716 (5th Cir.           1998) (citations omitted).


12
Title VII provides that in a case in which the plaintiff 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, the employer's success in its mixed-motive defense does           not in itself bar an award of attorneys' fees.


13
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 (4th Cir. 1996). In Sheppard, 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.


14
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 proportional to the           plaintiff's success. Id. In Farrar, 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. See 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.


15
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 its statutory discretion in awarding attorneys' fees. Id.           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 plaintiff's behavior. Id. Several other           circuits 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 (9th 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 (7th Cir. 1998) (affirmingdistrict court's           denial of fees to employee and employer); Canup v. Chipman-Union, 123 F.3d 1440, 1442-43 (11th Cir. 1997)           (affirming district court's denial of attorneys' fees to employee who jury found would have been fired for having           an affair with a subordinate).


16
One circuit has disagreed with the Fourth Circuit's reasoning in Sheppard. The Tenth Circuit in Gudenkauf v.           Stauffer Communications, 158 F.3d 1074 (10th 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 plaintiff fails to recover           damages or injunctive relief. Gudenkauf, 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 permitted in most Title VII           cases where an impermissible factor was used in an employment decision because Title 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 the smallest victory can advance that interest, and           therefore in mixed-motive cases a plaintiff should be awarded attorneys' fees in all but special circumstances. Id.


17
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 injunction           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 Sheppard factors the district court properly weighed these factors and did not abuse its           discretion. Furthermore, the district court noted the instruction of Farrar and Sheppard that an award should be           proportional to the plaintiff's success, and based on that consideration awarded Garcia only one fourth of the 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 plaintiff's role in helping to           end unlawful discrimination in the workplace be weighed heavily.

Conclusion

18
We affirm the jury's finding that the City met its burden of proof to establish its mixed motive defense. We also           affirm the district court's award of attorneys' fees to Garcia.


19
AFFIRMED.



Notes:


*
 Circuit Judge of the Ninth Circuit, sitting by designation.


1
 The City also utilizes the McDonell Douglas 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 applicable. See Wilkerson v. Columbus Separate School District, 985           F.2d 815, 817 (5th Cir. 1993); Browning v. President Riverboat Casino, 139 F.3d 631, 635 (5th Cir. 1998).


2
  As discussed later in this section, the portion 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.


3
 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 that black officers were needed in SWAT to help infiltrate black           neighborhoods in undercover operations. 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.


4
 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. Sheppard,           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.


5
 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.


