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.
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
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:
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.
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.
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.
UTSW claims that there was insufficient evidence for the jury to have found for Nassar on either his constructive discharge claim or his retaliation claim.
To succeed on a constructive discharge claim, Nassar is required to show "`working conditions ... so intolerable that a reasonable person in the employee's position would have felt compelled to resign.'" Aryain v. Wal-Mart Stores Tex. LP.
Nassar proved none of these 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. With respect to the harassment, when viewed in the light most favorable to the jury's verdict, Nassar proved that Levine racially harassed him, but his proof was no more than the "minimum required to prove a hostile work environment."
The required proof for a Title VII retaliation claim is less demanding than constructive discharge. "It goes without saying that, when a race-discrimination claim has been fully tried, as has this one, this court need not parse the evidence into discrete segments corresponding to a prima facie case, an articulation of a legitimate, nondiscriminatory reason for the employer's decision, and a showing of pretext." DeCorte v. Jordan.
Nassar's claim is that Fitz blocked his move to become a Parkland staff physician because he complained about harassment by Levine. UTSW has argued here and at trial that Fitz thwarted Nassar's prospective employment at Parkland as a routine application of UTSW's rights under the UTSW-Parkland affiliation agreement. Viewing the evidence in the light most favorable to the jury's verdict, Nassar offered sufficient proof that Fitz invoked UTSW's putative rights under the agreement in order to punish Nassar for his complaints about Levine. Keiser testified that Fitz told him that Nassar's complaints in the resignation letter were his reason for blocking the Parkland position. UTSW put on testimony indicating that Fitz made his decision before the letter and that he regarded the matter as a routine application of the agreement. The jury considered both parties' evidence and resolved the conflict against UTSW. Since "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge," we find no basis to upset the jury's verdict that UTSW retaliated against Nassar because of his complaints of racial discrimination.
UTSW challenges the award of back pay and compensatory damages, and Nassar challenges the denial of front pay. All of these decisions are reviewed for abuse of discretion.
UTSW argues that back pay should have been determined by comparing
Nassar testified that he has suffered a decrease in his income in honoraria he receives for attending conferences and other speaking engagements. At his new post, his honoraria income is approximately one hundred thousand dollars less per year than when he had a UTSW affiliation. Nassar claimed that he lost approximately one hundred thousand dollars per year in honoraria. UTSW argues that it was error for the jury to have been able to consider honoraria as a part of its award of back pay. We agree. "Pay," used as a noun, means "something paid for a purpose and especially as a salary or wage."
Compensatory damages available in a Title VII case cannot include back pay or front pay, 42 U.S.C. § 1981a(b)(2), but they do cover "future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses." Id. at § 1981a(b)(3). Nassar's lost honoraria income is thus awardable as compensatory damages to the extent the loss was caused by UTSW's blocking Nassar's position at Parkland rather than Nassar's decision to resign from UTSW. That factual question must be resolved on remand.
We will not address the front pay issue because we must remand for reconsideration of Nassar's monetary compensation in light of our findings that there was insufficient evidence to support constructive discharge and that honoraria should not have been considered part of back pay. We believe that "it is prudent to remand the
For the foregoing reasons, we VACATE the district court's judgment regarding UTSW's liability for constructive discharge, we AFFIRM the district court's judgment regarding liability for retaliation, and we REMAND the case for reconsideration, consistent with this opinion, of Nassar's monetary recovery and the award of attorneys' fees.