“Serious error and “unnecessary circuit split”: Dissent by 5th Circuit Judge argues for en banc review

The best clue as to whether a lawyer should seek U.S. Supreme Court review of a federal appellate court decision may come when a judge basically tells a party to do just that.

In so many words, that’s what 5th U.S. Circuit Court of Appeals Judge Jerry Smith (pictured) is saying in a dissent to a denial of en banc review of a Title VII employment-discrimination case.

On July 19, the 5th Circuit denied en banc review in Naiel Nassar MD v. University of Texas Southwestern Medical Center, leaving in place a March 8 panel decision that vacated a district court’s judgment that the defendant was liable for constructive discharge, affirming a judgment that the defendant was liable for retaliation and remanding the case for further consideration.

Smith complained in his dissent to the denial of en banc review that the failure to hear the case again was “serious error.” He explained that the 5th Circuit was passing on the chance to reverse another 2010 5th Circuit decision in Smith v. Xerox Corp., which he believes is “wrongly decided and presents a question of exceptional importance in employment law.”

The issue in both cases is whether a trial court errs when instructing a jury based on a theory of mixed motives in a Title VII retaliation claim.

“The panel decision in Smith should be overruled. It is an erroneous interpretation of the statute and controlling caselaw and created an unnecessary circuit split,” Smith wrote.

Daryl Joseffer, a partner in the Washington, D.C., office of King & Spalding who represents UT Southwestern, says no decision has been made on whether to take the case to the high court.

Brian Lauten, a partner in Dallas’ Sawicki & Lauten who represents Nassar, is glad the 5th Circuit is not hearing the case en banc.

“We believe that the panel and a majority of judges on the 5th Circuit correctly interpreted Title VII’s remedial purpose in protecting victims of discrimination,” Lauten says.

--- John Council 

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