WASHINGTON, D.C. - (Mealey's) Retaliation claims filed
under Title VII of the Civil Rights Act of 1964 must prove but-for causation, a
split U.S. Supreme Court ruled June 24, rejecting the lessened causation test
outlined in 42 U.S. Code Section 2000e-2(m) [an annotated version of this statute is available to lexis.com
subscribers] (University of Texas
Southwestern Medical Center v. Naiel Nassar, No. 12-484, U.S. Sup.; See May
2013, Page 27) (lexis.com subscribers may access Supreme Court briefs and the opinion for this case).
"Title VII defines the term 'unlawful employment
practice' as discrimination on the basis of any of seven prohibited
criteria: race, color, religion, sex, national origin, opposition to
employment discrimination, and submitting or supporting a complaint about
employment discrimination. The text of §2000e-2(m) mentions just the first five
of these factors, the status-based ones; and it omits the final two, which deal
with retaliation. When it added §2000e-2(m) to Title VII in 1991, Congress
inserted it within the section of the statute that deals only with those same
five criteria, not the section that deals with retaliation claims or one of the
sections that apply to all claims of unlawful employment practices. And while
the Court has inferred a congressional intent to prohibit retaliation when
confronted with broadly worded antidiscrimination statutes, Title VII's
detailed structure makes that inference inappropriate here. Based on these
textual and structural indications, the Court now concludes as follows:
Title VII retaliation claims must be proved according to traditional principles
of but-for causation, not the lessened causation test stated in §2000e-2(m). This
requires proof that the unlawful retaliation would not have occurred in the
absence of the alleged wrongful action or actions of the employer," Justice
Anthony M. Kennedy wrote for the majority.
Chief Justice John G. Roberts Jr. and Justices Antonin
Scalia, Clarence Thomas and Samuel Anthony Alito Jr. joined in the opinion.
Justice Ruth Bader Ginsburg filed a dissenting opinion,
saying the majority erred in finding that a stricter standard must be met for a
retaliation claim. "In so reining in retaliation claims, the Court
misapprehends what our decisions teach: Retaliation for complaining about
discrimination is tightly bonded to the core prohibition and cannot be
disassociated from it. Indeed, this Court has explained again and again that
'retaliation in response to a complaint about [proscribed] discrimination is
discrimination' on the basis of the characteristic Congress sought to
immunize against adverse employment action. Jackson v. Birmingham Bd.
of Ed., 544 U. S.
167, 179, n. 3 (2005) (emphasis added; internal quotation marks omitted) [an enhanced version of this opinion is available to lexis.com
"The Court shows little regard for the trial judges who
will be obliged to charge discrete causation standards when a claim of
discrimination 'because of,' e.g., race is coupled with a claim of
discrimination 'because' the individual has complained of race discrimination. And
jurors will puzzle over the rhyme or reason for the dual standards. Of graver
concern, the Court has seized on a provision, §2000e-2(m), adopted by Congress
as part of an endeavor to strengthen Title VII, and turned it into a measure
reducing the force of the ban on retaliation," she wrote.
Justices Stephen G. Breyer, Sonia Sotomayor and Elena
Kagan joined in the dissenting opinion.
Naiel 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 spring 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 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 UTSW faculty.
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 more than $3 million in
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. Oral arguments
were held April 24.
Daryl L. Joseffer of King & Spalding in Washington, D.C.,
represents UTSW. Brian P. Lauten of Sawicki & Lauten in Dallas represents Nassar.
H. Christopher Bartolomucci of Bancroft in Washington filed an amicus
curiae 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 of Michigan
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 the
U.S. Chamber of Commerce and the Retail
Litigation Center. Neal 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
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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