The opinion of the court was delivered by: MARILYN L. HUFF
Plaintiff Ronald F. Reiss is a former civilian employee of the Marine Corps Recruit Depot in San Diego, California. He brought the above-captioned Title VII action against the Secretary of the Navy alleging that his discharge from his former federal employment constituted unlawful discrimination on the bases of his sex and in reprisal for protected EEO activity.
After a week of trial, the court submitted Plaintiff's claims to the jury with a special "mixed motive" verdict form requesting that the jury answer whether Plaintiff's sex was a motivating factor in his discharge and, if so, whether Defendant would have fired Plaintiff even absent consideration of Plaintiff's sex. The special verdict form also directed the jury to answer whether retaliation for protected EEO activity was a motivating factor in Plaintiff's discharge and, if so, whether Defendant would have fired Plaintiff regardless of such retaliation.
On the sex discrimination claim, the jury found that Plaintiff's sex was not a motivating factor in his discharge. On the retaliation claim, the jury found that reprisal for protected EEO activity was a motivating factor but that Defendant would have fired Plaintiff even absent this unlawful consideration. Plaintiff now moves the court for an order for payment of attorney's fees and costs.
Plaintiff argues he is entitled to attorney's fees and costs pursuant to 42 U.S.C. § 2000e-5(g)(2)(B) (Section 107(b) of the 1991 Civil Rights Act) and 42 U.S.C. § 2000e-5(k) (Section 706(k) of the Civil Rights Act of 1964). The court considers each argument in turn.
A. Section 107(b) of the 1991 Civil Rights Act
Plaintiff first argues that the jury's finding entitles him to attorney's fees and costs under 42 U.S.C. § 2000e-5(g)(2)(B). The court disagrees.
Section 2000e-5(g)(2)(B) states in part:
On a claim in which an individual proves a violation under section 2000e-2(m) of this title1 and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court --
(i) may grant declaratory relief, injunctive relief . . . and attorney's fees and costs demonstrated to be directly attributable only to the pursuit of a claim under 2000e-2(m) of this title. . . .
42 U.S.C. § 2000e-5(g)(2)(B) (1992) (emphasis added).
Section 107(b) is the remedy Section to Section 107 of the Civil Rights Act of 1991. Congress enacted Section 107 in response to the Supreme Court's decision in Price Waterhouse v. Hopkins, 490 U.S. 228, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989). See Civil Rights Act of 1991, Pub. L. No. 102-166, 1991 U.S.C.C.A.N. (105 Stat.) 549, 583-587. The Price Waterhouse Court held that a Title VII plaintiff can show unlawful disparate treatment by proving either that the employer's challenged decision stemmed from a ...