Two appeals reviewing jury trials in Title VII cases came down today. In the first, the plaintiff – a physician – wins two claims at trial (retaliation and constructive discharge, centered on claims of racial discrimination), but loses the latter claim on appeal, necessitating a remand for recalculation of damages. In the second, the plaintiff lost her sex discrimination and retaliation trial, but the Seventh Circuit vacates and remands, criticizing the unnecessarily complicated and inaccurate jury verdict and instruction forms.
Nassar v. Univ. of Texas Southwestern Med. Ctr., No. 11-10338 (5th Cir. Mar 8, 2012): Nassar, a doctor of Middle Eastern descent, worked as an Assistant Professor at a university hospital. “His immediate supervisor was Dr. Phillip Keiser, Professor of Internal Medicine and the Clinic’s Medical Director. Keiser’s supervisor at UTSW was Dr. Beth Levine, whom UTSW hired in June 2004 as Chief of Infectious Disease Medicine. Levine oversaw the Amelia Clinic, but she did not work There on a daily basis.” Levine made slurs about Nassar’s ethnicity. She discouraged him from seeking promotion and challenged his billing practices.
Despite eventually obtaining a desired promotion to Associate Professor, Nassar found working with Levine to be stressful and requested a transfer to a different hospital within the same university system. He also submitted a letter of resignation stressing his feelings of harassment:
“The primary reason of my resignation is the continuing harassment and discrimination against me by the Infectious Diseases division chief, Dr. Beth Levine. . . . I have been threatened with denial of promotion, loss of salary support and potentially loss of my job[.] . . . [This treatment] stems from [Levine’s] religious, racial and cultural bias against Arabs and Muslims that has resulted in a hostile work environment.”
There was evidence at trial that the chair of the internal medicine, Dr. Gregory Fitz, took umbridge on the attack on Levine and blocked Nassar’s transfer. Nassar eventually moved out of state to locate lower-paying work at an HIV/AIDS clinic.
A jury held that Nassar’s Title VII rights were violated, both discrimination (that he was construtively discharged from his first hospital) and retaliation (because he was blocked from commencing work in the second hospital). The jury awarded Nassar $436,167.66 in back pay and over three million dollars in compensatory damages.
On appeal, the Fifth Circuit affirms the retaliation judgment but orders entry of judgment as a matter of law on the constructive discharge claim. As to the latter, the panel finds that the racial slurs created a hostile work environment but not enough to make resignation a fitting response.
“Constructive discharge claims like the one Nassar brought are essentially hostile work environment claims but more extreme. We Therefore have required plaintiffs advancing constructive discharge claims to prove the existence of an aggravating factor . . . . Nassar proved . . . [no such] factors with the possible exception of ‘badgering, harassment, and humiliation.’ In fact, UTSW approved Nassar’s promotion to a position with a higher salary and more preferable employment terms.”
Because the constructive discharge claim carried a substantial back-pay remedy, and the jury’s award was vacated, the panel remanded for a new hearing on damages. Interestingly, the panel approved setting back pay by comparing his employment to the lost opportunity at the second hospital, Parkland, rather than the first. “By retaliating against Nassar and blocking his job with Parkland, UTSW deprived Nassar of the pay he otherwise would have earned There. Therefore, to make Nassar whole, the back pay ought to be measured against what Nassar would have made at Parkland.” The court also holds that lost honouraria income is not recoverable as back pay, because it was not (strictly speaking) income, but it could be recovered under 42 U.S.C. § 1981a(b)(2), as “future pecuniary losses.”
Cook v. IPC Int’l Corp., No. 11-2502 (7th Cir. Mar. 8, 2012): This case involved a dispute over the employee’s termination:
“The defendant provided security for a mall in Alton, Illinois, and employed the plaintiff as a security at the mall. She presented evidence that her immediate supervisor, a man named Spann, made sexually offensive comments to There women in her presence, said he wanted to have an all-male staff, and exhibited favoritism toward his male subordinates. The plaintiff complained to him repeatedly about his behavior. He refused to change his ways, and instead began giving her negative evaluations and accusing her in communications to the defendant’s headquarters of serious misconduct, including theft; the jury could have found that the accusations were fabrications.”
The regional manager (and Spann’s immediate superior), named Colburne, eliminated her job with Spann and sought to repost her to another shopping center, but before she could commence working at that new post, Spann fired her from the Alton job. Plaintiff sued over the termination.
The district court charged the jury that it was required to identify “the decision maker,” which under these facts was understandably confusing. The jury even sent a note to the judge for clarification about whether There could be more than one decision maker. Eventually, the jury found on the verdict form that the plaintiff had been fired by the employer, but that Spann was not “the” decision maker. The judge, on a motion for a new trial, held that the employee had the burden – in the absence of “cat’s paw”-type evidence – to prove that Spann was the “sole decision maker.”
The Seventh Circuit reverses. In a brief opinion signed by Judge Richard Posner, the panel holds that the district court erred by charging the jury with an instruction both confusing and legally inaccurate. The judge believed that a case such as this, where two different supervisors were involved, must be funnelled through a “cat’s paw” framework per Staub v. Proctor Hospital, 131 S. Ct. 1186(2011), or else the employee must prove the existence of a “sole decision maker.”
The opinion sorts out why this wrong:
“The ‘cat’s paw’ doctrine can be thought of as an application of the ‘motivating factor’ doctrine; the [subordinate’s] malevolent intent is imputed to the employer. So if the employer can’t show that the . . .supervisor, who did the actual firing (or took some There adverse employment action), had a lawful motive uncontaminated by the [subordinate] that would have led the supervisor to fire the employee even without the [subordinate]’s interference, the employee is entitled to damages. See Staub v. Proctor Hospital, supra, 131 S. Ct. at 1192. But ‘motivating factor’ is another irrelevance in this case. There’s no evidence that had Spann not been in the picture the plaintiff would have been fired anyway. The defendant did not try to prove that-it denied having fired her.”
The panel also bemoans the confusion often sown in Title VII trials when judges unnecessarily seek to charge juries directly with legal concepts of causation:
“From a legal as distinct from a factual standpoint, the case was simple and should have been presented in all its simplicity to the jury. Jurors are unlikely to understand legal concepts that judges have difficulty understanding. . . .”