Nassar v. Univ. of Texas Southwestern Med. Ctr.

• Decision Date: 08 March 2012
• Docket Number: No. 11–10338.,11–10338.
• Citation: 279 Ed. Law Rep. 34,114 Fair Empl.Prac.Cas. (BNA) 986,674 F.3d 448,95 Empl. Prac. Dec. P 44440
• Parties: Naiel NASSAR, MD, Plaintiff–Appellee/Cross–Appellant, v. UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER, Defendant–Appellant/Cross–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

114 Fair Empl.Prac.Cas. (BNA) 986

279 Ed. Law Rep. 34

674 F.3d 448

95 Empl. Prac. Dec. P 44,440

Naiel NASSAR, MD, Plaintiff–Appellee/Cross–Appellant,

v.UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER, Defendant–Appellant/Cross–Appellee.

No. 11–10338.

United States Court of Appeals, Fifth Circuit.

March 8, 2012.

Brian Patrick Lauten, Sawicki & Lauten, L.L.P., Dallas, TX, for Plaintiff–Appellee Cross–Appellant.

Myrna Salinas Baumann, King & Spalding, L.L.P., Lars Hagen, Asst. Atty. Gen., Austin, TX, Michael Wayne Johnston, King & Spalding, L.L.P., Atlanta, GA, Daryl Langdon Joseffer, King & Spalding, L.L.P., Washington, DC, for Defendant–Appellant Cross–Appellee.

Appeals from the United States District Court for the Northern District of Texas.

Before REAVLEY, ELROD and HAYNES, Circuit Judges.

REAVLEY, Circuit Judge:

Dr. Naiel Nassar, the Appellee, was a member of the faculty at Appellant University of Texas Southwestern Medical Center (“UTSW”). UTSW is affiliated with Parkland Hospital, where UTSW faculty make up most of the physician staff. Nassar served as a clinician at Parkland's Amelia Court Clinic, which specializes in HIV/AIDS treatment. Nassar claimed and a jury found that he was constructively discharged from his UTSW faculty position because of racially motivated harassment by a superior. The jury also found that UTSW retaliated against Nassar by preventing him from obtaining a position at Parkland after he resigned from UTSW. Although there was sufficient evidence to support the jury's verdict on the retaliation claim, there was insufficient evidence of constructive discharge. We therefore VACATE in part, AFFIRM in part, and REMAND the case for reconsideration of Nassar's monetary recovery and attorneys' fees.

I. FACTUAL AND PROCEDURAL BACKGROUND

Dr. Naiel Nassar, who is of Middle Eastern descent, came to UTSW in 1995 to work in Parkland's Amelia Court Clinic. After three years at the Clinic, Nassar pursued additional training at the University of California at Davis. In 2001 he returned to UTSW as an Assistant Professor of Internal Medicine and Infectious Diseases and Associate Medical Director of the Clinic. 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.

Upon being hired, Levine began inquiring about Nassar's productivity and billing practices. In late 2005, when referring to another doctor of Middle Eastern descent, Levine said in Nassar's presence, “Middle Easterners are lazy.” In the spring of 2006, in reference to the hiring of that same doctor, Levine said they have “hired another one” in Keiser's presence. Keiser interpreted this comment as indicating that Parkland had hired another “dark skin[ ] Muslim like Nassar,” and Keiser told Nassar what Levine had said. Keiser also informed Nassar that Levine scrutinized Nassar's productivity more than that of other doctors. When Keiser presented Levine with objective data demonstrating Nassar's high productivity, Levine began criticizing Nassar's billing practices. Her criticism did not take into account that Nassar's salary was funded by a Federal grant that precluded billing for most of his services.

During this same period, Levine suggested to Nassar that he consider applying for a promotion to become an Associate Professor. Nassar started the application process. While Nassar was soliciting recommendations for his promotion, Levine told Nassar that he was unlikely to be promoted because Dr. Mumford did not like him. Nassar later found out that Mumford was not on the Promotions and Tenure Committee (“the Committee”) nor did he oppose Nassar being promoted. At another point, Levine told Nassar that he would need to switch from UTSW's “clinical scholars track” to its “clinician track” in order to be promoted. Nassar did this. In reviewing Nassar's promotion application, the Committee and UTSW made a number of billing and productivity inquiries about Nassar and his work, which came back relatively positive but with a few criticisms about Nassar's frequent speaking engagements on behalf of pharmaceutical companies. Levine also asked Keiser why Nassar wanted to stay at UTSW instead of moving back to California, where his family was. Levine did, however, sign letters of recommendation composed by Keiser in support of Nassar's promotion. On March 1, 2006, the Committee decided to promote Nassar, effective September 1, 2006.

Despite the eventual promotion decision, Levine's harassment led Nassar to look for a way to continue working at the Clinic without being a UTSW faculty member subject to Levine's supervision. In 2005, Nassar began discussions with the Hospital about continuing his work in the Clinic as a Parkland staff physician rather than as UTSW faculty. On a number of occasions before April, 2006, Nassar met with Dr. Gregory Fitz, UTSW's Chair of Internal Medicine and Levine's immediate superior, and complained that Levine and the Committee scrutinized his productivity and billing more than that of other doctors.

UTSW presented evidence indicating that longstanding practice and UTSW and Parkland's affiliation agreement obliged Parkland to fill its staff physician posts with UTSW faculty. Nassar disputed that interpretation of the agreement and contended that some of the Parkland doctors he worked with at the Amelia Clinic were not UTSW faculty. In any event, Parkland staff told Nassar that if he would resign from his post at UTSW then Parkland would be able to hire him to work at the Amelia Clinic. On June 3, 2006, Parkland offered Nassar a job as a staff physician on Parkland's payroll, starting on July 10, 2006. Nassar resigned from UTSW on July 3, 2006, with a letter to Fitz and other UTSW faculty. In the letter, Nassar wrote:

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.

Fitz opposed Parkland's hiring Nassar, asserting that UTSW had a right to fill Parkland doctor positions with UTSW faculty. The jury heard conflicting evidence regarding the timing and motivation of Fitz's opposition. There was some evidence that Fitz made his decision in April 2006. But Keiser testified that he spoke with Fitz two or three days after Nassar's resignation letter. According to Keiser, the letter shocked Fitz. Fitz felt that Levine should be publicly exonerated, so he resolved to stop Parkland from hiring Nassar. Whatever the terms of the affiliation agreement, Fitz's opposition prompted Parkland to withdraw the offer giving Nassar the July 10 start date. Nassar then accepted a position at a smaller HIV/AIDS clinic in Fresno, California.

In August 2008, Nassar filed suit in the Northern District of Texas claiming that UTSW had constructively discharged and retaliated against him, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The jury trial was bifurcated into a liability phase and a damages phase. At the close of Nassar's case in the liability phase, UTSW moved for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(a), which the district court denied. The jury found that Nassar's resignation from UTSW was the result of constructive discharge, and that UTSW blocked Parkland from hiring Nassar in retaliation for Nassar's statements in the July 3 letter. Nassar moved for front pay to be included as part of his recovery. The district court denied that motion and proceeded with the damages phase of the trial.

Nassar's resignation from UTSW took effect September 1, 2006, and he took up his new position at the clinic in Fresno. That clinic is run by Central California Faculty Medical Group (“CCFMG”), whose physicians are given faculty appointments at the University of California San Francisco. In the following years his salary at CCFMG has varied from $180,000 to $165,000. Nassar was making $155,095 per year (including benefits) as a UTSW Assistant Professor. If he had stayed on through the effective date of his promotion, he would have made $166,395 (including benefits). As a staff physician on Parkland's payroll, Nassar's compensation would have been approximately $240,500 per year (including benefits). The jury awarded Nassar $436,167.66 in back pay and over three million dollars in compensatory damages.

UTSW filed a renewed motion for judgment as a matter of law, a motion for new trial, and motion for remittitur.¹ The district court denied UTSW's motions for judgment as a matter of law and for a new trial. The district court did, however, grant UTSW's motion for remittitur because of Title VII's compensatory damages cap, which required reducing the compensatory damage award to $300,000.² Nassar moved for attorneys' fees pursuant to 42 U.S.C. § 2000e–5(k), and the district court granted awarded $489,927.50 in fees plus court costs. UTSW timely appealed, raising challenges to the sufficiency of the evidence, the jury instructions, the back pay and compensatory damages awards, and the award of attorneys' fees. Nassar timely filed a cross-appeal challenging the district court's denial of front pay.

II. DISCUSSION

A. Sufficiency of the Evidence

We review de novo the denial of a motion for judgment as a matter of law, applying the same standard as the district court. Travelers Casualty & Surety Co. of America v. Ernst & Young LLP.³ If the case has been tried to a jury, a motion for judgment as a matter of law “is a challenge to the legal sufficiency of the...