Nassar v. University of Texas Southwestern Medical Center
688 F.3d 211
5th Cir.2012Background
- UT Southwestern Medical Center conceded Smith v. Xerox Corp. foreclosed its objection to the district court's motivating-factor jury instruction.
- The panel did not address waiver because it deemed the issue unnecessary to the panel decision.
- The district court held an all-afternoon hearing on jury instructions and warned the parties: no new objections.
- Texas Medical raised its objection on Monday morning, just before the jury entered, and the court suggested the argument was unprofessional and probably waived.
- Texas Medical did not press Smith after Gross v. FBL Financial Services, undermining its waiver position.
- The concurrence agrees the argument was waived and supports the denial of rehearing en banc.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver of the jury instruction objection | UTSW contends objection was preserved on the record. | Nassar contends the objection was waived by timing and conduct. | Waiver supported; objection not preserved. |
| Whether Smith forecloses the mixed-motive objection | Smith forecloses the mixed-motive challenge to the jury instruction. | Smith was wrongly decided and overruling it is warranted on en banc review. | Smith forecloses the argument. |
Key Cases Cited
- Nassar v. Univ. of Tex. Southwestern Med. Ctr., 674 F.3d 448 (5th Cir.2012) (waiver-related discussion in panel and en banc context)
- Gross v. FBL Financial Servs., Inc., 557 U.S. 167 (U.S. 2009) (mixed-motive framework and causation standards referenced)
- Smith v. Xerox Corp., 602 F.3d 320 (5th Cir.2010) (controls on mixed-motive retaliation framework)
- Jimenez v. Wood Cty., 660 F.3d 841, 660 F.3d 841 (5th Cir.2011) (en banc preservation requirement for jury instruction error)