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Supreme Court to determine the availability of “mixed motive” claim in Title VII case

January 24th, 2013  |  Deborah Hammonds

The Supreme Court has agreed to resolve another question of workplace discrimination. In University of Texas Southwestern Medical Center v Nassar, the Court will determine whether a plaintiff is required to prove but-for causation or only prove that the employer had a mixed motive for an employment action.

Racially motivated harassment. Nassar, a physician of Middle Eastern descent, was a faculty member at the University of Texas Southwestern Medical Center (UTSW). He filed suit under Title VII alleging that he was constructively discharged because of racially motivated harassment by a superior. There was evidence his superior monitored his productivity and billing practices closer than other doctors and had made negative remarks about Middle Easterners. Nassar also claimed that UTSW retaliated against him by preventing him from obtaining a position at a clinic after his resignation.

After a trial, the jury awarded Nassar over $436,000 in back pay and more than $3 million in compensatory damages. UTSW filed a renewed motion for judgment as a matter of law, a motion for new trial, and motion for remittitur. The district court denied UTSW’s motions for judgment as a matter of law and for a new trial. The district court did, however, grant UTSW’s motion for remittitur because of Title VII’s compensatory damages cap, which required reducing the compensatory damage award to $300,000. The physician sought attorneys’ fees and was awarded $489,927 in fees plus court costs. Both parties appealed.

Constructive discharge. After suggesting numerous aggravating factors that would support the physician’s constructive discharge claim, the Fifth Circuit found Nassar failed to prove any of those factors with the possible exception of “badgering, harassment, and humiliation.” UTSW had actually approved Nassar’s promotion to a position with a higher salary and more preferable employment terms, the court pointed out. With respect to the harassment, when viewed in the light most favorable to the jury’s verdict, Nassar proved that his superior racially harassed him, but his proof was no more than the “‘minimum required to prove a hostile work environment.’” When considering the aggravating factors, the appeals court did not find sufficient proof to show that Nassar’s “working conditions were so intolerable that a reasonable employee would feel compelled to resign.”

Retaliation claim. Nassar contended that his superior’s immediate supervisor (the department chair) blocked his attempt to become a staff physician at a clinic that had an affiliation agreement with UTSW because of his complaints about being harassed by his superior. UTSW argued the supervisor thwarted the prospective employment as a routine application of the employer’s rights under the affiliation agreement.

When viewing the evidence in the light most favorable to the jury’s verdict, there was sufficient evidence that the supervisor invoked UTSW’s putative rights under the affiliation agreement in order to punish Nassar for his complaints about his superior. The clinic’s director testified that the chair told him that Nassar’s complaints in his resignation letter were his reason for blocking the position. While there was testimony that the chair made his decision before receiving the letter and that he regarded the matter as a routine application of the affiliation agreement, after the jury considered the evidence, it resolved the conflict in Nassar’s favor. “Since ‘[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge,’” the appeals court found no basis to upset the jury’s verdict that UTSW retaliated against the physician.

Damages. Remanding the case for recalculation of damages, the appeals court noted that the jury’s verdict on the constructive discharge claim was insufficiently supported and, because the damage award did not separate the damages awarded for the retaliation claim and the damages awarded for the constructive discharge claim, the case must be remanded. Nonetheless, the parties presented legal issues relating to the physician’s monetary recovery that had to be resolved.

UTSW sought to change the back pay award, arguing that back pay should have been determined by comparing Nassar’s compensation at UTSW and his compensation at his current job in California and not, as the district court allowed, by comparing his compensation at the clinic and his compensation at his current job. Rejecting that argument, the Fifth Circuit wrote that by retaliating against the physician and blocking his job with the clinic, UTSW deprived him of the pay he otherwise would have earned there. Therefore, to make the physician whole, the back pay ought to be measured against what he would have made at the clinic.

However, the court agreed with UTSW’s argument that it was error for the jury to have been able to consider honoraria the physician claimed he lost since he no longer had a UTSW affiliation (approximately $100,000 less per year) as a part of its award of back pay. Although Nassar would not have been able to obtain the honoraria without his job at UTSW, they were paid by third parties for services that were not required under the terms of his UTSW employment. Therefore, they were not akin to salary, wages, or benefits, the normal components of back pay. Compensatory damages available in a Title VII case cannot include back pay or front pay. Nassar’s lost honoraria income was thus awardable as compensatory damages to the extent the loss was caused by UTSW’s blocking his position at the clinic rather than his decision to resign from UTSW. That factual question was to be resolved on remand.

The appeals court did not address the issue of front pay because the case was being remanded for reconsideration of monetary compensation in light of the court’s findings of insufficient evidence to support a constructive discharge verdict and that honoraria should not have been considered part of back pay.

Petition for certiorari. UTSW filed a petition for certiorari (Dkt No 12-484) on October 17, 2012 and High Court granted cert on January 18, 2013. The issue before the Court is: Whether the retaliation provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), and similarly worded statutes require a plaintiff to prove but-for causation (i.e., that an employer would not have taken an adverse employment action but for an improper motive), or instead require only proof that the employer had a mixed motive (i.e., that an improper motive was one of multiple reasons for the employment action).