Furthermore, Farrar must be applied consistently with 42 U.S.C. § 2000e-5(g)(2)(B), the statute governing the award of an attorney's fee in a mixed motive case such as this one, i.e. a mixed motive case in which a plaintiff proves illegal discrimination was a motivating factor in the adverse employment action, see id. § 2000e-2(m), but the fact finder determines the employer would have taken the adverse action even absent the illegal motive. In 1989, the Supreme Court held that "once a plaintiff in a Title VII case shows that gender played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving that it would have made the same decision even if it had not allowed gender to play such a role." Price Waterhouse v. Hopkins, 490 U.S. 228, 244-45 (1989). Partly in response to the Price Waterhouse ruling, under which an employer could avoid liability altogether even if illegal discrimination factored into his employment decision, Congress passed the Civil Rights Act of 1991.(3) Section 107 of the 1991 Act overturned Price Waterhouse on this point by amending 42 U.S.C. § 2000e-2 to make clear that an employer is liable for a violation of Title VII upon proof that an impermissible motive played a role in the challenged action. The new subsection states: "Except as otherwise provided in this subchapter, 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).
Gudenkauf was an employment discrimination case based upon sex. I would argue that it is not on point with a 42 USC 1983 action, and that the issues in Churchill are more akin to those underlying in Farrar because in both cases it was found that the plaintiff was deprived a civil right (as opposed to being discriminated against as of the suspect classes in the Section 2000 actions) and awarded nominal damages, and both were decided under the attorneys' fees language of tha 1983 section of the code.
And, yes, unfortunately, the Colo. Supreme Court is a problem.
Betcha a breakfast of chipped beef on toast Naves gives Churchill a fee award of some kind.