Case: 12-60938      Document: 00512480468         Page: 1    Date Filed: 12/23/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit

                                                                                    FILED
                                      No. 12-60938                          December 23, 2013
                                                                               Lyle W. Cayce
                                                                                    Clerk


ALBERT BROWN,

                                          Plaintiff−Appellee
                                          Cross Appellant,

versus

MISSISSIPPI DEPARTMENT OF HEALTH,

                                          Defendant−Appellant
                                          Cross Appellee.




                  Appeals from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:11-CV-146




Before SMITH, PRADO, and ELROD, Circuit Judges.
PER CURIAM: *


       Albert Brown sued his employer, the Mississippi Department of Health


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 12-60938     Document: 00512480468     Page: 2   Date Filed: 12/23/2013



                                  No. 12-60938
(“MDH”), under Title VII for race discrimination and retaliation. At trial, the
district court granted a directed verdict in favor of MDH on the discrimination
claim; the jury then returned a verdict for Brown on retaliation, awarding back
pay and compensatory damages. The court then granted in part MDH’s motion
for remittitur. Further, the court denied Brown’s request for reinstatement to
the position to which he claimed he has been wrongfully denied but granted in
part his motion for front pay and denied his motion for compensation to offset
additional tax liabilities from the award.
      MDH appeals the judgment to the extent it is adverse. Brown does not
challenge the directed verdict on the discrimination claim but cross-appeals
the denial of a tax offset and the temporal limitation on the award of future
wages.
      We have reviewed the briefs and applicable law and the pertinent por-
tions of the record and have heard the arguments of counsel. There is no rever-
sible error on the appeal or cross-appeal.
      A few weeks after briefing was completed, the Supreme Court decided
University of Texas Southwestern Medical Center v. Nassar, 

(2013), which announced a but-for test instead of a mixed-motive test for retal-
iation claims. Although neither party called that decision to our attention, we
requested letter briefs on the significance, if any, of Nassar to this case. With-
out opining on what result might obtain here under Nassar, we determine that
its applicability is waived by MDH’s failure to raise that test in the district
court, either by proffered jury questions or otherwise, not to mention the fail-
ure to raise it on appeal until we asked for letter briefs. There is no reversible
error here under the mixed-motive rubric.
      The judgment is in all respects AFFIRMED.




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