Benjamin F. Mercer v. Alabama Department of Transportation

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13722
____________________
BENJAMIN F. MERCER,
Plaintiff-Appellee,
versus
ALABAMA DEPARTMENT OF TRANSPORTATION,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 2:16-cv-01204-RDP
____________________
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2 Opinion of the Court 20-13722
Before JILL PRYOR, LUCK, and BRASHER, Circuit Judges.
LUCK, Circuit Judge:
Benjamin Mercer, an African-American man, sued the Ala-
bama Department of Transportation, his former employer, under
Title VII of the Civil Rights Act for race discrimination. A jury
found that the department’s decision to fire Mercer was motivated
by race—but also found that he would have been fired for a race-
neutral reason even if the department hadn’t considered his race.
After this mixed motive verdict, the district court awarded Mercer
attorney’s fees.
The department argues on appeal that the district court
erred in overruling its objection to comparator evidence, in deny-
ing its motions for judgment as a matter of law, and in applying the
wrong legal standard to award Mercer attorney’s fees. After careful
consideration, and with the benefit of oral argument, we affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Mercer’s Employment and Termination
Mercer was hired by the department in 2008 as a transporta-
tion technologist. His duties included inspecting concrete plants,
reviewing records related to concrete production, and inspecting
concrete batching equipment, delivery trucks, and the raw materi-
als needed to make concrete, in order to ensure compliance with
the department’s standards. The concrete Mercer inspected was
used by the department to build roads, bridges, and other
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20-13722 Opinion of the Court 3
transportation-related infrastructure. The majority of Mercer’s
time was supposed to be spent inspecting concrete plants, review-
ing “mix designs” (the “recipes” for the concrete), testing concrete,
and logging the test results.
Mercer’s supervisor was Audrey Perine, who was an Afri-
can-American woman. Brian Davis, who was white, was in charge
of Mercer’s division and supervised Perine. Under the depart-
ment’s rules, insubordination, falsification of records, or “a serious
violation” of other rules, were offenses that could result in dis-
charge for the first offense. Prior to his termination, Mercer had
never been disciplined and his performance evaluations “ex-
ceed[ed] standards.” Perine described Mercer as “a very good em-
ployee.”
When Mercer conducted concrete plant inspections, he had
to fill out a checklist. Between August 2011 and March 2012, Mer-
cer was responsible for inspecting thirty-eight plants at least once a
month. The department gave Mercer a vehicle to use when in-
specting plants. This vehicle came equipped with Global Position-
ing System tracking.
Mercer didn’t always take his state vehicle to inspect the
plants. He sometimes took his personal vehicle or got rides from
workers at the plants. It generally took Mercer “four to [fifteen]
minutes” to inspect a plant. He would make sure that the raw ma-
terials for concrete weren’t comingled together by “visually eye-
ball[ing]” the bins for the sand, stone, and gravel—usually from his
truck. He would then enter the plant, get an inspection checklist,
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4 Opinion of the Court 20-13722
and fill it out. According to Mercer, he filled out an inspection
checklist only when he personally visited and inspected a plant, and
he filled out a checklist for every inspection he performed.
But there were issues with the inspection records Mercer
submitted. For example, Mercer submitted forms saying that he
inspected two plants on September 26, 2011, but he was at a con-
ference that day. Mercer also submitted forms saying that he in-
spected three plants on December 20, 2011, even though he didn’t
work that day. Mercer maintained that he “inspected those plants”
and the date on the forms “could be wrong.” He insisted that he
never falsified any records. According to William Higgins, a sub-
ordinate who worked in the concrete lab under Mercer’s supervi-
sion in 2011, Mercer once asked another subordinate to fill out a
dozen inspection forms before Mercer did the inspections.
Mercer was also responsible for testing the concrete’s
strength. He did so by taking sample cylinders of concrete from
project sites and placing them in a compression machine that broke
the cylinders, providing information about the concrete’s strength.
There were issues with the strength tests that Mercer per-
formed. Mercer authorized the employees that he supervised to
test the concrete cylinders and document the results in the depart-
ment’s concrete management system using his login information.
When an employee used Mercer’s login to record test results, the
system would say that Mercer had performed the test. Perine had
authorized Mercer to let other employees use his login to perform
tests and log the results. But one employee worked under Mercer
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20-13722 Opinion of the Court 5
at the time he was let go in 2012, and this person wasn’t certified
to perform the strength tests.
Higgins witnessed Mercer improperly handle the concrete
cylinders during the strength tests. For consistent results, the cyl-
inders had to be kept in a lime bath at all times to keep them moist
and within a certain temperature range. The cylinders also had to
be broken at specific times—some samples had to be tested seven
days after they were made, and some samples had to be tested after
twenty-eight days. Higgins once saw Mercer leave close to a hun-
dred cylinders exposed to the air because the lime bath was full.
Higgins also saw Mercer regularly break cylinders ahead of sched-
ule because “he wanted Fridays to be an easy day” or he wanted to
work around holidays, but Mercer would log the cylinders in the
system as having been broken when they were scheduled to be
tested.
In 2011, the department began investigating concrete used
in a rural bridge project. Some of the concrete meant for the
bridge’s columns yielded “low compressive strength tests,” so the
department launched an investigation into “the root cause of the
issue.” Andrew Waldrop and Shannon Golden, who worked for
the department’s bureau of materials and tests, traced the defective
concrete to two specific plants. They then visited the plants and
discovered “a lack of documentation” as to quality control testing.
Mercer was responsible for inspecting these two plants. Waldrop
found no indication that Mercer had inspected them.
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6 Opinion of the Court 20-13722
Waldrop then investigated eight plants that Mercer was re-
sponsible for inspecting to see if the problem was “isolated” or
“widespread.” He found that one plant hadn’t been inspected be-
tween October 2011 and February 2012. And Waldrop found prob-
lems “with all of the plants that [he] inspected.” There were miss-
ing inspection documents from October 2011 to February 2012 at
each of the eight plants that Waldrop investigated.
As a result of Waldrop and Golden’s investigation, the de-
partment decided to terminate Mercer. Davis, the head of Mercer’s
division, recommended that he be terminated. The department
held a “pre-dismissal conference” on May 11, 2012, where Mercer
responded to the accusations against him. John Cooper, the de-
partment’s director, made the final decision to fire Mercer on
June 7, 2012.
Mercer’s discharge letter, signed by Cooper, explained that
Mercer was being terminated for failing to perform his job
properly, insubordination, falsifying records, and violating the de-
partment’s testing policies. The letter said that the investigation
into Mercer showed that he falsified inspection documents and
“failed to properly inspect a number of plants.” The letter provided
examples of dates where Mercer had claimed to have inspected a
plant, but tracking records showed he had been at the plant for only
a handful of minutes or hadn’t been there at all. The letter also said
that Mercer “allowed uncertified employees to test materials and
enter the results under [his] login and password.” In Cooper’s
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20-13722 Opinion of the Court 7
view, Mercer’s misconduct was “the single-most egregious of-
fense” he had encountered as the department’s director.
Mercer’s direct supervisor, Perine, played no role in the de-
cision to fire him. Perine was the only African-American assistant
engineer under Davis. According to Perine, Davis never allowed
her to serve as acting division engineer in his absence but allowed
white assistants to do so.
Davis also was inconsistent in how he handled Perine’s rec-
ommendations to discipline employees. Perine supervised one
white employee who would often show up to work so drunk that
“he could not walk into the building.” Perine reported the em-
ployee’s inebriation to Davis, but Davis did not get back to her until
hours later after the drunk employee’s shift had already ended. In
contrast, when Perine recommended a suspension for an African-
American employee who failed to perform his job properly, left
work without permission, and falsified records, Davis suspended
him for two weeks.
Golden, one of the department employees who investigated
Mercer, had previously been disciplined for misappropriating state
property. On several occasions, Golden had taken three subordi-
nates, a department truck, and department equipment, to perform
“personal work” at his father’s house. Golden then told the em-
ployees who did the work “to lie about what they had done.”
Golden’s actions cost the state about $1,200. But Golden wasn’t
terminated for his misconduct; rather, the department only sus-
pended him for thirty days.
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8 Opinion of the Court 20-13722
Mercer’s Title VII Lawsuit
Mercer sued the department for race discrimination under
Title VII, alleging that it fired him for violating “work rules while
treating differently a similarly situated white employee.”1 Mercer
sought reinstatement, backpay, compensatory damages, declara-
tory and injunctive relief, and attorney’s fees and costs.
The department moved before trial to exclude “comparator
evidence” of Golden’s misconduct—his use of state equipment to
do work at his father’s house and his resulting thirty-day suspen-
sion. The department argued that because Golden wasn’t a valid
comparator, given the differences between Mercer’s and Golden’s
misconduct, evidence about Golden’s misconduct and punishment
was irrelevant and unfairly prejudicial. The district court disagreed
and allowed Mercer to introduce the Golden comparator evidence
at trial.
The case then proceeded to trial. The department moved
for judgment as a matter of law at the close of Mercer’s case, argu-
ing that Mercer failed to prove that race influenced its decision to
fire him. The district court denied the motion, concluding that a
reasonable jury could find that Mercer’s discharge was discrimina-
tory. The department then renewed its motion after it rested. The
department argued that Mercer had offered no evidence showing
1
Mercer also brought a Title VII retaliation claim against the department. The
district court granted summary judgment for the department as to the retalia-
tion claim, and Mercer has not appealed the summary judgment.
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20-13722 Opinion of the Court 9
that it was motivated to fire him because of racial discrimination.
The district court again denied the motion, concluding that there
were “clearly some decisions for the jury to make” as to Mercer’s
discrimination claim.
The jury found that Mercer had shown that his race was a
motivating factor in the department’s decision to fire him. But the
jury also found that the department had shown it would have ter-
minated Mercer for race-neutral reasons even if it had not taken his
race into account when firing him.
After the verdict, the department renewed its motion for
judgment as a matter of law. The district court denied the motion
and instructed the parties to brief the question of what relief Mer-
cer was entitled to following the jury’s “mixed motive” verdict.
Mercer moved for declaratory and injunctive relief, attorney’s fees,
and costs. The department, in turn, argued that an award of attor-
ney’s fees was inappropriate under the circumstances because it
“could have fired [Mercer] for his misconduct regardless of any im-
proper consideration.”
The district court denied Mercer’s request for declaratory
and injunctive relief but granted him $165,091.50 in attorney’s fees
and $7,261.96 in costs. The district court explained that it had the
discretion to award attorney’s fees in a “mixed motive” case and,
in determining whether to do so, it had to consider the “degree of
success obtained by the plaintiff,” “the facts of the given case,” and
the “severity of the [d]efendant’s wrongdoing.” The district court
wrote that attorney’s fees were appropriate here because “[t]his
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10 Opinion of the Court 20-13722
was a hard fought case” and the mixed motive verdict for Mercer
was “a victory on a significant legal issue that further[ed] a public
goal.” The jury found after a lengthy trial that Mercer’s “race was
a substantial motivating factor in his discharge” and, “[i]n the
court’s view, the jury was right.” The district court reasoned that,
“[u]nder the unique circumstances of this case,” it would “decline[]
to send the message that any degree of racism is okay, as long as
the employer happens to have also considered other reasons.”
DISCUSSION
The department argues that the district court erred in: (1)
allowing the jury to consider comparator evidence of Golden’s mis-
conduct and thirty-day suspension; (2) denying its motions for
judgment as a matter of law because there was insufficient evi-
dence that race was a motivating factor in Mercer’s termination;
and (3) awarding Mercer attorney’s fees and costs. We address
each argument in turn.
Comparator Evidence of Golden’s Misconduct
The department argues that the district court erred in allow-
ing Mercer to introduce comparator evidence about Golden. Its
“treatment of Golden, standing alone,” could not “provide the jury
a reasonable inference of discrimination,” the department argues,
because Golden was not “a similarly situated comparator.” See
Lewis v. City of Union City, 918 F.3d 1213, 1218 (11th Cir. 2019)
(en banc) (holding that a plaintiff asserting a race discrimination
claim “must demonstrate” at summary judgment “that she and her
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20-13722 Opinion of the Court 11
proffered comparators were ‘similarly situated in all material re-
spects’”). Mercer responds that the comparator evidence was ad-
missible as part of a mosaic of discrimination and to show that race
was a motivating factor in his discharge.
“We review for abuse of discretion a district court’s eviden-
tiary rulings.” Sabal Trail Transmission, LLC v. 3.921 Acres of
Land in Lake Cnty. Fla., 947 F.3d 1362, 1368 (11th Cir. 2020). Irrel-
evant evidence is inadmissible. Fed. R. Evid. 402. And a district
court may exclude otherwise relevant evidence if its probative
value is substantially outweighed by a danger of unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence. Fed. R. Evid.
403.
Rule 403 “is an extraordinary remedy, which should be used
only sparingly,” and the balance “should be struck in favor of ad-
missibility.” United States v. Smith, 459 F.3d 1276, 1295 (11th Cir.
2006) (cleaned up). In “reviewing issues under [r]ule 403, we look
at the evidence in a light most favorable to its admission, maximiz-
ing its probative value and minimizing its undue prejudicial im-
pact.” United States v. Brown, 441 F.3d 1330, 1362 (11th Cir. 2006).
The balancing of rule 403’s factors “is largely committed to the dis-
cretion of the district court, which has far more experience in evi-
dentiary matters and is better equipped to decide them than an ap-
pellate court,” and we will find an abuse of discretion under rule
403 “in only the rarest of situations.” United States v. Lopez, 649
F.3d 1222, 1247 (11th Cir. 2011).
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12 Opinion of the Court 20-13722
Here, the district court concluded that the comparator evi-
dence of Golden’s misconduct was relevant, and its probative value
wasn’t substantially outweighed by the risk of unfairly prejudicing
the department, confusing the issues, misleading the jury, or wast-
ing time. This conclusion wasn’t an abuse of discretion.
There are “a variety of ways” that “a plaintiff asserting an
intentional[]discrimination claim under Title VII” can “make a suf-
ficient factual showing to permit a reasonable jury to rule in [his]
favor.” Lewis, 918 F.3d at 1217. One way “is by navigating the
now-familiar three-part burden-shifting framework established by
the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 93 S. Ct. 1817, 36 L.Ed.2d 668 (1973).” Id. “Under that
framework, the plaintiff bears the initial burden of establishing a
prima facie case of discrimination by proving, among other things,
that [he] was treated differently from another ‘similarly situated’
individual—. . . a ‘comparator.’” Id. (quoting Tex. Dep’t of Cmty.
Affs. v. Burdine, 450 U.S. 248, 258–59 (1981)). “[A] plaintiff assert-
ing an intentional[] discrimination claim under McDonnell Doug-
las must demonstrate that [he] and [his] proffered comparators
were ‘similarly situated in all material respects.’” Id. at 1218.
Another way is to “demonstrate a ‘convincing mosaic’ of cir-
cumstantial evidence that warrants an inference of intentional dis-
crimination.” Id. at 1220 n.6 (citation omitted). “A ‘convincing
mosaic’ may be shown by evidence that demonstrates, among
other things . . . systematically better treatment of similarly situ-
ated employees . . . .” Lewis v. City of Union City, 934 F.3d 1169,
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20-13722 Opinion of the Court 13
1185 (11th Cir. 2019) (citation omitted). Importantly, under a “con-
vincing mosaic” theory, the plaintiff “do[es] not [have to] meet this
Circuit’s strict definition of similarly situated comparators.” Id. at
1187. Even where the comparator had “altogether different condi-
tions,” he was disciplined “years apart,” and he was subject “to al-
together different personnel policies,” Lewis, 918 F.3d at 1230, a
reasonably jury could find the better treatment of a similar em-
ployee “not irrelevant,” Lewis, 934 F.3d at 1187.
Here, under a mosaic theory, evidence of Golden’s miscon-
duct and how the department addressed his misconduct was “not
irrelevant” to whether the department intentionally discriminated
against Mercer on the basis of race. Like Mercer, Golden was a
department supervisor. And like Mercer, Golden’s misconduct
was not insubstantial—he repeatedly had department employees
perform labor at his father’s house with department equipment
and then instructed them to lie about this misappropriation of state
resources. Although Golden’s misconduct occurred on multiple
occasions and involved deceit, he was not fired; instead, he was
merely suspended for thirty days. A reasonable jury could infer
from these facts that the department intentionally discriminated
against Mercer because, as the district court put it, it was “evidence
that [the department] suspended but did not terminate a white em-
ployee for arguably worse conduct.”
Because evidence of Golden’s misconduct and punishment
was relevant to show the department’s discriminatory intent—the
ultimate issue at trial—the district court did not abuse its discretion
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14 Opinion of the Court 20-13722
in letting the jury hear about it. “This is not one of those rarest of
situations” where we will second guess the district court’s balanc-
ing of the rule 403 factors. See Lopez, 649 F.3d at 1248.
Judgment as a Matter of Law
The department also argues that the district court erred in
denying its motions for judgment as a matter of law. This was er-
ror, the department maintains, because there was no evidence sup-
porting the jury’s verdict that race was a motivating factor in its
decision to terminate Mercer.
We review de novo the district court’s ruling on a Federal
Rule of Civil Procedure 50 motion for judgment as a matter of law
and apply the same standard as the district court. Cleveland v.
Home Shopping Network, Inc., 369 F.3d 1189, 1192 (11th Cir.
2004). Judgment as a matter of law is appropriate “when there is
no legally sufficient evidentiary basis for a reasonable jury to find
for that party on that issue.” Id. (citing Fed. R. Civ. P. 50). We
view the trial record in the light most favorable to the nonmoving
party, draw all reasonable inferences in that party’s favor, and ig-
nore all evidence favorable to the moving party that the jury need
not believe. Id. at 1192–93 (citing Reeves v. Sanderson Plumbing
Prods., 530 U.S. 133, 148–51 (2000)).
Here, there was legally sufficient evidence supporting the
jury’s finding that race was a motivating factor in Mercer’s termi-
nation. We reach this conclusion based on four inferences from
the trial evidence.
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20-13722 Opinion of the Court 15
First, there was evidence that the department treated
Golden better than Mercer for, as the district court put it, “arguably
worse conduct.” Golden misappropriated state workers and equip-
ment for a personal task, told his subordinates to lie about it, and
was only suspended for thirty days. Mercer, on the other hand,
was fired for his misconduct.
Second, Mercer offered evidence that Davis, the division
head who made the initial recommendation to fire Mercer and en-
couraged Cooper—the department director—to fire him, had a his-
tory of treating white and African-American employees differently.
For example, Davis did nothing to discipline a white employee who
showed up to work so drunk he could barely walk, yet he sus-
pended an African-American employee for two weeks for not do-
ing his job properly, leaving work without permission, and falsify-
ing records. Davis would also allow white engineers to serve as
acting division engineer when he was gone, but wouldn’t allow
Perine, the only African-American engineer, to do the same.
Third, although Perine was Mercer’s direct supervisor, she
was cut out of the decision to terminate him. Unlike the other su-
pervisors involved in Mercer’s termination who were white, Perine
was African American.
Fourth, there was evidence that Mercer consistently re-
ceived favorable performance evaluations even when he was sup-
posedly not doing his job. Mercer had never been disciplined by
the department before but nevertheless received the harshest dis-
cipline possible.
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16 Opinion of the Court 20-13722
This was sufficient evidence to support Mercer’s ultimate
burden of persuading the jury that he had been the victim of inten-
tional discrimination.” See Lewis, 934 F.3d at 1185 (“[C]ircumstan-
tial evidence that would allow a jury to infer intentional discrimi-
nation,” includes “(1) suspicious timing, ambiguous statements
. . . , and other bits and pieces from which an inference of discrimi-
natory intent might be drawn, (2) systematically better treatment
of similarly situated employees, and (3) that the employer’s justifi-
cation is pretextual.” (quotations omitted)). Because the jury’s
finding that the department had a discriminatory intent was sup-
ported by legally sufficient evidence, the district court did not err
in denying the department’s motions for judgment as a matter of
law.
The Award of Attorney’s Fees
Finally, the department contends that the district court erred
in awarding Mercer attorney’s fees. The district court abused its
discretion in doing so, the department argues, because it failed to
apply the legal standard required by our decision in Canup v. Chip-
man-Union, Inc., 123 F.3d 1440 (11th Cir. 1997).
We review the district court’s ruling on a motion for attor-
ney’s fees for an abuse of discretion. Id. at 1442. “[A] district court
abuses its discretion if it fails to apply the proper legal standard or
to follow proper procedures in making the determination to award
attorney’s fees[.]” Gray ex rel. Alexander v. Bostic, 720 F.3d 887,
899 (11th Cir. 2013) (citing ACLU of Ga. v. Barnes, 168 F.3d 423,
427 (11th Cir. 1999)). We review de novo whether the district
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20-13722 Opinion of the Court 17
court relied on incorrect factors in making its decision. Canup, 123
F.3d at 1442.
An employee establishes “an unlawful employment prac-
tice” if he demonstrates that race “was a motivating factor” for the
employment practice, “even though other factors also motivated
the practice.” 42 U.S.C. § 2000e–2(m). This is known as a “mixed
motive” case. Canup, 123 F.3d at 1442. Where an employer estab-
lishes in a mixed motive case that it “would have taken the same
action in the absence of the impermissible motivating factor,” the
district court may grant declaratory relief, injunctive relief, and at-
torney’s fees and costs. 42 U.S.C. § 2000e–5(g)(2)(B)(i). But the
district court cannot award damages or issue an order requiring the
employee’s reinstatement. Id. § 2000e–5(g)(2)(B)(ii).
In deciding whether to award attorney’s fees in a mixed mo-
tive case, a district court must consider three factors: (1) “the de-
gree of success obtained by the plaintiff,” (2) “the facts of the given
case,” and (3) “the severity of the defendant’s wrongdoing.”
Canup, 123 F.3d at 1444. We conclude that the district court
properly considered the three Canup factors.
First, the district court considered the degree of success Mer-
cer obtained at trial. The district court explained that the jury’s
finding that race was a motivating factor in the department’s deci-
sion was a “victory” for Mercer “on a significant legal issue that
furthers a public goal.” The district court wrote that this success
weighed in favor of “exercis[ing] its discretion to approve an award
of attorney’s fees and costs.” But the district court recognized that
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18 Opinion of the Court 20-13722
the degree of Mercer’s success wasn’t absolute, given the jury’s
finding that the department would have fired him for race-neutral
reasons even if it hadn’t considered his race. The district court con-
cluded that although declaratory and injunctive relief were availa-
ble to Mercer, it would exercise its discretion to not grant that re-
lief. Because the district court considered the degree of Mercer’s
success at trial, it took the first Canup factor into account in award-
ing him attorney’s fees.
The district court also considered the facts of the case, as re-
quired by the second Canup factor. The district court found that
“[t]his was a hard fought case” that lasted “for the better part of a
week.” The district court explained that it was awarding Mercer
attorney’s fees only “[a]fter careful consideration of the record” and
“the unique circumstances” of the case. The district court also said
that the jury found that race was a substantial motivating factor in
Mercer’s discharge. “In the court’s view,” the district court opined,
“the jury was right.” The record shows that the district court con-
sidered the facts elicited at trial, the jury’s verdict, and its agree-
ment with that verdict based on its own view of the evidence. The
district court’s analysis therefore satisfied the Canup test’s second
factor.
Finally, the district court considered the severity of the de-
partment’s wrongdoing. The district court agreed with the jury’s
finding that the department took Mercer’s race into account in fir-
ing him. “[S]ubstantial” racial animus, the district court concluded,
played a role in Mercer’s termination and—as required by Canup—
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20-13722 Opinion of the Court 19
considered this misconduct in weighing Mercer’s request for attor-
ney’s fees.
In short, Canup requires a district court to consider three
factors in deciding whether to award attorney’s fees in a mixed mo-
tive case, and the district court considered those three factors. We
said in Canup that the district court “is in the best position to eval-
uate the effect the facts of a given case should have on the fee re-
quest.” Id. at 1444. Here, the district court considered the degree
of Mercer’s success, the facts of the case, and the severity of the
department’s wrongdoing in taking Mercer’s race into account.
Because the district court’s “analysis was proper” and applied the
right legal standard, its grant of attorney’s fees to Mercer “did not
constitute an abuse of discretion.” See id.The department argues that the district court abused its dis-
cretion because it applied the wrong legal standard. In its order
awarding fees, the district court cited to the Tenth Circuit’s deci-
sion in Gudenkauf v. Stauffer Communications, Inc., 158 F.3d
1074, 1082 (10th Cir. 1998) for the proposition that some redress
for Mercer was appropriate to avoid sending “a message that a little
overt sexism or racism is okay, as long as it was not the only basis
for the employer’s action.” This was error, the department main-
tains, because in Canup we said that there was no presumption that
a plaintiff in a mixed motive case should get attorney’s fees, 123
F.3d at 1442–44, while the Tenth Circuit in Gudenkauf concluded
that a plaintiff in a mixed motive case should ordinarily get attor-
ney’s fees in all but special circumstances, 158 F.3d at 1081. The
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20 Opinion of the Court 20-13722
department contends that we should reverse because the district
court failed to apply the Canup standard and instead applied the
Tenth Circuit’s presumption of attorney’s fees.
We disagree. The district court recognized that it was bound
by the Canup test and applied the three Canup factors to Mercer’s
request for attorney’s fees. Although the district court cited to
Gudenkauf for the proposition that Mercer had won a victory on a
“significant” legal issue and that it would not condone even a “lit-
tle” racism, the district court did not apply the Tenth Circuit’s
standard, did not presume that Mercer was entitled to fees, and did
not fail to apply the standard provided by Canup. Rather, its award
of attorney’s fees was based on “the unique circumstances of this
case”—consistent with the three-factor analysis required by Canup
in a mixed motive case.
In sum, the district court applied the correct legal standard,
weighed the three Canup factors, and concluded that those factors
weighed in favor of awarding attorney’s fees. We have no basis on
this record to disturb or redo that weighing. Finding no abuse of
discretion, we affirm the district court’s award of attorney’s fees.
AFFIRMED.