WASHINGTON, D.C. - (Mealey's) A Title VII of
the Civil Rights Act of 1964 retaliation claim must prove but-for causation,
the attorney representing the University of Texas Southwestern Medical Center
(UTSW) argued before the U.S. Supreme Court April 24. (University of Texas
Southwestern Medical Center v. Naiel Nassar, No. 12-484, U.S. Sup.) (lexis.com
subscribers may access Supreme Court briefs for this case).
"In the 1991 amendments . . . Congress authorized mixed
motive treatment only for Title VII claims that challenge . . . discrimination
based on membership in a protected class, not for retaliation claims," attorney
Daryl L. Joseffer of King & Spalding in Washington told the justices. As a
result, the court must follow the guidelines established in Gross v. FBL
Financial Services Inc., 557 U.S. 167 (2009) [an enhanced version of this opinion is available to lexis.com
subscribers], Joseffer argued.
But Brian P. Lauten of Sawicki & Lauten in Dallas,
representing respondent Dr. Naiel Nassar, countered that "[i]t does not make
any sense at all for Congress to have created two causation standards under the
same statute in 1991 without saying anything about it at all." Instead,
he said, Congress already believed retaliation was encompassed within
discrimination based on the U.S. Supreme Court's ruling in Sullivan v. Little
Hunting Park Inc., 396 U.S. 229 (1969) [enhanced version], and Congress believed retaliation
was a much broader provision that went beyond conditions in the workplace based
on the U.S. Supreme Court's ruling in Burlington Northern & Santa Fe
Railway Co. v. White, 548 U.S. 53 (2006) [enhanced version].
Nassar, who is of Middle Eastern descent, was hired by
UTSW in 1995 to work in Parkland
Hospital's Amelia Court
Clinic. After three years, Nassar pursued additional training at the University of California
In 2001, Nassar returned to UTSW as an assistant
professor of internal medicine and infectious diseases and associate medical
director of the clinic. Dr. Beth Levine was hired in June 2004 as chief
of infectious disease medicine. She oversaw the Amelia Clinic but did not
work there on a daily basis. Almost immediately, Levine began inquiring
about Nassar's productivity and billing practices. In late 2005, when
referring to another doctor of Middle Eastern descent, Levine said in Nassar's
presence, "Middle Easterners are lazy."
In the spring of 2006, in reference to the hiring of that
same doctor, Levine said they have "hired another one" in the presence of Dr.
Phillip Keiser, Nassar's immediate supervisor. Keiser told Nassar what
Levine had said and also informed Nassar that Levine scrutinized Nassar's
productivity more than that of other doctors. When Keiser had presented
Levine with objective data demonstrating Nassar's high productivity, Levine
began criticizing Nassar's billing practices. Levine's criticism did not
take into account that Nassar's salary was funded by a federal grant that
precluded billing for most of his services.
Around the same time, Levine suggested that Nassar
consider applying for a promotion to become an associate professor.
Nassar was promoted March 1, 2006, effective Sept. 1, 2006.
Despite the promotion, Nassar claimed that Levine's
harassment continued, and he began to look for a way to continue working at the
clinic without being a UTSW faculty member subject to Levine's
supervision. On June 3, 2006, Parkland offered Nassar a job as a staff
physician on Parkland's payroll, starting July
10, 2006. Nassar resigned from UTSW on July 3. Dr. Gregory Fitz,
UTSW's chair of Internal Medicine and Levine's immediate supervisor, opposed Parkland's hiring Nassar. He claimed that UTSW had
a right to fill Parkland doctor positions with
Fitz's opposition prompted Parkland
to withdraw its offer. Nassar then accepted a position at a smaller
HIV/AIDS clinic in Fresno, Calif.
In August 2008, Nassar sued UTSW in the U.S. District
Court for the Northern District of Texas, alleging that UTSW had constructively
discharged him and retaliated against him in violation of Title VII of the
Civil Rights Act of 1964. The jury trial was bifurcated into a liability
phase and a damages phase. At the close of Nassar's case in the liability
phase, UTSW moved for judgment as a matter of law pursuant to Federal Rule of
Civil Procedure 50(a), which the District Court denied.
The jury found that Nassar's resignation from UTSW was
the result of constructive discharge and that UTSW blocked Parkland
from hiring Nassar in retaliation for Nassar's statements in the July 3
letter. Nassar moved for front pay to be included as part of his
recovery. The District Court denied that motion and proceeded with the
damages phase of the trial. The jury awarded Nassar $436,167.66 in back
pay and over $3 million in compensatory damages.
UTSW then filed a renewed motion for judgment as a matter
of law, a motion for new trial and a 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. Nassar then moved for
attorney fees, and the District Court awarded him $489,927.50 in fees plus
court costs. UTSW appealed. Nassar cross-appealed, challenging the
District Court's denial of front pay.
Liability For Discharge
The Fifth Circuit panel vacated the District Court's
judgment regarding UTSW's liability for constructive discharge but affirmed the
court's judgment regarding liability for retaliation. It remanded for
reconsideration of Nassar's monetary recovery and the award of attorney fees.
UTSW petitioned the U.S. Supreme Court.
Assistant to the Solicitor General Melissa A. Sherry
presented oral arguments to the Supreme Court on behalf of the United States
and in support of Nassar. "There is not a single statute that Petitioner
can point to and not a single statute that I am aware of where Congress has
ever expressly adopted two different causation standards with respect to intentional
discrimination under the same statute," she told the justices.
Joseffer of King & Spalding in Washington, D.C.,
represents UTSW. Lauten of Sawicki & Lauten in Dallas represents Nassar.
H. Christopher Bartolomucci of Bancroft PLLC in Washington filed an amicus
brief on behalf of American Council on Education and Six Other Higher Education
Organizations. Solicitor General John J. Bursch in Lansing,
Mich., filed an amicus brief on behalf
and 11 other states. Michael Foreman of Civil Rights Appellate Clinic in University Park, Pa.,
filed an amicus brief on behalf of National Employment Lawyers
Association, The Leadership Conference on Civil and Human Rights, et al.
Charlotte Garden of Seattle University School of Law in Seattle filed an amicus brief on
behalf of Committee of Interns and Residents SEIU, Doctors Council SEIU and
Korean American Medical Association.
Gregory G. Garre of Latham & Watkins in Washington filed an amicus brief on behalf of
Chamber of Commerce of the United States of
America and the Retail Litigation
Goldfarb of Washington filed an amicus brief on behalf of Washington
Lawyers Committee for Civil Rights and Urban Affairs, the Employment Justice
Center and Employment Litigators. Jon M. Greenbaum of Lawyers' Committee
for Civil Rights Under Law in Washington
filed an amicus brief on behalf of Lawyers' Committee for Civil Rights
Under Law. David J. Hacker of Alliance Defending Freedom in Folsom, Calif., filed an amicus
brief on behalf of Foundation for Individual Rights in Education and Alliance
Samer B. Korkor of Cadwalader, Wickersham & Taft in Washington filed an amicus
brief on behalf of American-Arab Anti-Discrimination Committee, et al.
Francisco M. Negron Jr. of National School Boards Association in Alexandria, Va.,
filed an amicus brief on behalf of National School Boards
Association. Aaron M. Nisenson of American Association of University
Professors in Washington
filed an amicus brief on behalf of American Association of University
Professors. Alice M. O'Brien of National Education Association in Washington filed an amicus
brief on behalf of National Education Association. Benjamin G. Robbins of
New England Legal Foundation filed an amicus brief on behalf of New
England Legal Foundation.
Mary M. Ross of DRI in Bloomfield Hills, Mich.,
filed an amicus brief on behalf of DRI-The Voice of the Defense
Bar. Assistant to the Solicitor General Melissa A. Sherry and Solicitor
General Donald B. Verrilli Jr. in Washington
filed an amicus brief on behalf of the United States. Sandra F.
Sperino of the University of Cincinnati College of Law in Cincinnati filed an amicus brief on
behalf of Employment Law Professors. Rae T. Vann of Norris, Tysse,
Lampley & Lakis in Washington
filed an amicus brief on behalf of Equal Employment Advisory Council,
National Federation of Independent Business Small Business Legal Center and
American Hospital Association.
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