Nassar v. University of Texas South-Western Medical Center
674 F.3d 448
5th Cir.2012Background
- Nassar, a physician of Middle Eastern descent, was UTSW faculty employed through Parkland’s Amelia Court Clinic (HIV/AIDS).
- Levine, UTSW’s infectious disease chief, made racially charged remarks and scrutinized Nassar’s productivity more than others.
- Nassar pursued promotion; he was ultimately promoted on March 1, 2006, effective Sept. 1, 2006, but Levine’s harassment continued.
- Nassar resigned from UTSW on July 3, 2006 after Parkland’s hiring offer was conditioned by Parkland and Fitz’s opposition.
- Parkland withdrew the July 10 start date after Fitz opposed hiring, leading Nassar to accept a Fresno clinic position.
- Nassar sued in August 2008 in the Northern District of Texas for constructive discharge and retaliation under Title VII; the jury found both liability and damages, but the district court remitted compensatory damages to $300,000 and awarded attorneys’ fees; on appeal the court vacated the constructive-discharge finding, affirmed retaliation, and remanded for recalculation of damages and fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there was sufficient evidence of constructive discharge. | Nassar showed intolerable harassment and bias. | No aggravating factors established; promotion-related actions contradict constructive-discharge. | Insufficient evidence; constructive-discharge vacated. |
| Whether there was sufficient evidence of retaliation. | Fitz blocked Parkland hiring in response to complaints about harassment. | Blocking was a routine application of affiliation agreement. | Sufficient evidence; retaliation affirmed. |
| How back pay should be calculated in this Title VII case. | Back pay should reflect Parkland wages (not Parkland-to-CCFMG comparison). | Back pay tied to UTSW-derived earnings or generic loss; Parkland method improper. | Back pay measured against Parkland wages; remand needed to adjust for damages. |
| Whether honoraria may be included in back pay. | Honoraria lost due to retaliation should count as back pay. | Honoraria are third-party, not salary; not back pay. | Honoraria not back pay; may be compensatory damages if caused by Parkland’s blocking; remand. |
| What is the status of front pay and attorneys’ fees on remand? | Remand to reconsider front pay and attorney’s fees consistent with this opinion. |
Key Cases Cited
- Aryain v. Wal-Mart Stores Tex., L.P., 534 F.3d 473 (5th Cir.2008) (constructive-discharge aggravating factors required; hostility alone insufficient)
- Dediol v. Best Chevrolet, Inc., 655 F.3d 435 (5th Cir.2011) (hostile environment plus aggravating factors necessary for constructive discharge)
- Brown v. Kinney Shoe Corp., 237 F.3d 556 (5th Cir.2001) (constructive-discharge requires greater severity/pervasiveness than hostile environment)
- DeCorte v. Jordan, 497 F.3d 433 (5th Cir.2007) (retaliation analysis does not require strict prong-by-prong proof where pretext shown)
- Sellers v. Delgado Community College, 839 F.2d 1132 (5th Cir.1988) (back pay must place employee in position as if discrimination had not occurred)
- Robinson v. Shell Oil Co., 519 U.S. 337 ( Supreme Court 1997) (back-pay framework for unlawful retaliation)
- Neill v. Diamond M. Drilling Co., 426 F.2d 487 (5th Cir.1970) (remittitur and damages remand guidance in Title VII cases)
- Hitt v. Connell, 301 F.3d 240 (5th Cir.2002) (remand appropriate for fee awards when mixed issues exist)
- Smith v. Xerox Corp., 602 F.3d 320 (5th Cir.2010) (upholds mixed-motive/retaliation instructions where applicable)