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Court Denies Mixed Motive Rehearing in Racial Harassment Case

By Robyn Hagan Cain on July 20, 2012 | Last updated on March 21, 2019

The Fifth Circuit Court of Appeals rejected a rehearing in a retaliation and constructive discharge lawsuit this week.

While that may not seem like big news, rehearing would have been an opportunity to reexamine the court's 2010 Smith v. Xerox Corporation ruling. In Smith, the court held that a plaintiff could use a mixed motives theory in a Title VII retaliation case.

Here's a brief review of the facts in the case.

Dr. Naiel Nassar was a member of the faculty at University of Texas Southwestern Medical Center (UTSW), which is affiliated with Parkland Hospital. Nassar served as a clinician at Parkland's Amelia Court Clinic, which specializes in HIV/AIDS treatment.

A jury found that Nassar was constructively discharged from his UTSW faculty position because of racially-motivated harassment by a superior, and that UTSW retaliated against Nassar by preventing him from obtaining a position at Parkland after he resigned from UTSW. UTSW was ordered to pay $3.6 million to Nassar, who is of Middle Eastern descent, based on racial and religious discrimination.

In March, the Fifth Circuit Court of Appeals found that there was sufficient evidence to support the jury's verdict on the retaliation claim, but there was insufficient evidence of constructive discharge.

Nassar's constructive discharge claim was essentially an extreme hostile work environment claim. In such cases, the Fifth Circuit requires a plaintiff to prove an aggravating factor. Example can include demotion, salary reduction, responsibility reduction, reassignment to menial or degrading work, assignment to work under a younger supervisor, badgering, harassment, or humiliation calculated to encourage the employee's resignation, or offers of early retirement or continued employment on terms less favorable than the employee's former status.

Here, Nassar proved none of these factors with the possible exception of "badgering, harassment, and humiliation." And while he may have proven racial harassment, his proof was no more than the "minimum required to prove a hostile work environment" instead of the heightened constructive discharge proof.

Both Nassar and UTSW requested rehearing.

Judge Jerry Smith -- of Eric Holder homework assignment fame -- dissented from the rehearing denial, unequivocally stating "Smith v. Xerox Corp. is wrongly decided and presents a question of exceptional importance in employment law. This case is a good vehicle for fixing that mistake."

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