Septimus v. University of Houston, 03-20992.
| Decision Date | 02 February 2005 |
| Docket Number | No. 03-20992.,03-20992. |
| Citation | 399 F.3d 601 |
| Parties | Susan SEPTIMUS, Plaintiff-Appellee-Cross-Appellant, v. The UNIVERSITY OF HOUSTON; The University of Houston System, Defendants-Appellants-Cross-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Andrew S. Golub (argued), Dow, Golub, Berg & Beverly, Joseph Y. Ahmad, Ahmad, Zavitsanos & Anaipakos, Houston, TX, for Septimus.
William T. Deane, Asst. Atty. Gen. (argued), Austin, TX, for Defendants-Appellants-Cross-Appellees.
Appeals from the United States District Court for the Southern District of Texas.
Before WIENER and PRADO, Circuit Judges, and KINKEADE, District Judge.1
Susan Septimus ("Septimus") filed claims for gender discrimination, retaliation, and hostile work environment against the University of Houston and the University of Houston System (collectively, "the University"). Septimus's discrimination and hostile work environment claims and one of her retaliation claims were dismissed on summary judgment. Because Septimus failed to establish a genuine issue of material fact regarding the pretext elements of her gender discrimination claim and one of her retaliation claims, summary judgment on these claims was proper. Septimus's hostile work environment claim was also properly dismissed, because she failed to set forth sufficient evidence that the alleged harassment was severe or pervasive. Septimus's remaining retaliation claims proceeded to trial. With regard to these claims, the court holds that they were subject to a "but for" causation standard rather than the "motivating factor" standard used in the trial court's charge to the jury. The trial court's grant of partial summary judgment is AFFIRMED, the judgment on Septimus's two retaliation claims that went to trial is REVERSED due to the erroneous jury charge, and the case is REMANDED for further proceedings consistent with this opinion.
Septimus was an Assistant General Counsel for the University who handled business and transactional matters. In December 1997, after the resignation of Associate General Counsel Bonnie Weisman, the University posted an open Associate General Counsel ("AGC") position for litigation and employment matters. In early 1998, AGC Joseph Williams (who held a "business counsel" position) also resigned from the University, which left open two AGC positions. Brian Nelson, an outside candidate, was interviewed for the litigation and employment AGC position on January 9, 1998.
Later that day, Septimus told the University's General Counsel Dennis Duffy that she was interested in being promoted to the AGC position responsible for business matters. Duffy responded that he would not consider her for promotion because he wanted someone with management experience. Duffy further told Septimus that she had not "stepped up to the plate" in her current position to assume management responsibilities. Nelson was ultimately hired by Duffy as an AGC. Although the University contends that Nelson was hired for the employment and litigation counsel position formerly held by Weisman, the record reflects that Nelson actually handled business and contractual matters. Septimus admits she was not seeking the employment and litigation counsel position, but she claims that Nelson was actually hired for the business counsel position vacated by Williams. She thus contends that Duffy's decision to hire Nelson instead of her for that position was rooted in gender discrimination.
On March 10, 1998, Duffy spent two hours in Septimus's office "haranguing" her while they discussed work matters. Nelson watched and Septimus sobbed uncontrollably. Nelson described this incident as intimidating and inappropriate. Septimus filed an internal discrimination complaint with the University later that month. She also filed an EEOC charge of discrimination regarding the denied promotion. Septimus further alleged in her EEOC charge that Duffy created a hostile work environment.
Because other female employees in the Office of the General Counsel ("OGC") had also complained about Duffy, the University engaged attorney Deborah McElvaney to investigate. In her report dated April 16, 1998, McElvaney concluded there was sufficient evidence that Duffy had discriminated against Septimus in hiring Nelson and that he created a hostile work environment. She also thought that the evidence did not support Septimus's claim that Duffy retaliated against her for filing her internal complaint of discrimination and for her participation in the investigation.
After McElvaney provided her report to University President/System Chancellor Art Smith, he formed a committee of three University administrators to review McElvaney's work. Ultimately, the committee decided that none of Septimus's complaints had merit and denied her internal grievance on all of her claims — gender discrimination, hostile work environment and retaliation.
On May 29, 1998, Smith offered Septimus the choice of remaining in the OGC (supervised by Duffy) or transferring to the position of Director of Contracts Administration ("DCA"), where she would work under a different management group. Smith's offer to move Septimus to contracts administration was conditioned on the requirement that she discontinue practicing law on behalf of the University. Smith's policy was that employees who did not report to the OGC could not practice law. Additionally, Smith conditioned the transfer offer on Septimus's providing a release of her claims against the University. Septimus initially refused the transfer, but eventually accepted it after Smith dropped the requirement that she sign a release.
Septimus began her new job as DCA in July 1998, reporting to John Martin. In her new position, Septimus was required to work with the OGC on any legal issues, relying upon the expertise and judgment of the lawyers in the OGC. She was not permitted to negotiate, modify or draft contracts.
In early March 1999, Ron Miller, another employee who reported to Martin, announced his retirement. Miller's title was Director of Procurement and Campus Services. Prior to leaving, Miller suggested to Martin that Septimus serve as his interim replacement. Despite that recommendation, Septimus was denied the interim position, because Martin's supervisor Randy Harris decided to combine Miller's former position with that of Ann Lamar. That change caused no additional salary expense since Lamar was already earning the salary of an interim division director. Lamar was appointed to the retitled position of Interim Executive Director of Procurement and Auxiliary Services. Septimus views these events as a promotion she received, but that was later rescinded, and claims that the University retaliated against her by awarding the position to Lamar instead. After Lamar's appointment to Interim Director, she became Septimus's supervisor and Septimus no longer reported directly to Martin.
Although Septimus was then reporting to Lamar, Martin criticized her in late 1999 for suggesting revisions to contracts without coordinating her advice with that of the OGC. Septimus was upset at the criticism and resigned from the University in December 1999. After Septimus left, her responsibilities were given to Nelson in addition to his duties as an AGC. In this new role, Nelson continued reporting to the OGC.
Septimus sued the University in September 2000, alleging 1) gender discrimination related to the hiring of Nelson instead of her for the AGC position; 2) retaliation based upon her transfer to the DCA position; 3) retaliation based upon being denied the Interim Director position; 4) hostile work environment; and 5) retaliation through constructive discharge. The district court granted partial summary judgment in favor of the University on Septimus's claims for gender discrimination, hostile work environment, and the retaliation claim related to the Interim Director position awarded to Lamar. On Septimus's claims of retaliatory transfer and constructive discharge, the district court found that genuine issues of material fact existed in the summary judgment record, and denied summary judgment.
The case proceeded to trial on the remaining retaliation claims related to her transfer to the DCA position and her alleged constructive discharge. The jury found for Septimus on these claims and awarded damages. The University now appeals the judgment entered for Septimus, and Septimus cross-appeals the district court's grant of partial summary judgment.
The University appeals the jury's verdict on these claims, arguing that the district court incorrectly instructed the jury regarding the applicable standard of proof for Septimus's retaliation claims.
The University did not object to the jury instructions in the district court, and its position was not made clear to the court in some other manner. Accordingly, this court's consideration of the issue is limited to plain error review.2 For an appellant to prevail under the plain error standard, it must show 1) that an error occurred; 2) that the error was plain, which means clear or obvious; 3) the plain error must affect substantial rights; and 4) not correcting the error would seriously impact the fairness, integrity, or public reputation of judicial proceedings.3 The plain error exception is designed to prevent a miscarriage of justice where the error is clear under current law.4
In determining whether a particular jury instruction was erroneous, we consider the jury charge as a whole.5 "An inadequate instruction merits reversal when `the charge as a whole leaves us with the substantial and ineradicable doubt whether the jury has been properly guided in its deliberations.'"6
The parties agree that this case was litigated and tried as a "prete...
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