5TH CIRCUIT OVERTURNS JURY RULING ON CONSTRUCTIVE DISCHARGE

by Art Gutman Ph.D., Professor, Florida Institute of Technology

The case is Nassar v. University of Southwestern Texas Medical Center (UTSW), decided on March 8, 2012 by a three-judge panel of the 5th Circuit [2012 U.S. App. LEXIS 4874]. At the district court, a jury awarded Dr. Naiel Nassar $438,167.66 in back pay and benefits and $3,187,500.00 in compensatory damages for constructive discharge and retaliation. The compensatory damages were reduced to the Title VII statutory limit ($300,000), but $500,000 was added for attorney fees. The 5th Circuit upheld on retaliation but reversed on constructive discharge. Retaliation is of lesser interest because the 5th Circuit upheld the jury’s ruling that Nassar’s application for a new position was blocked because he complained about being harassed in his prior position. However, the reversal on constructive illustrates a key difference between this concept and hostile environment harassment.

The facts of the case are that Nassar, a Muslim from the Middle East, was hired by UTSW in 2001 as an Assistant Professor of Internal Medicine and Infectious Diseases. Then, in 2004, UTSW hired Dr. Beth Levine as Chief of Infectious Disease Medicine. Nassar alleged that Levine routinely harassed him, questioning his productivity and billing practices and making derogatory remarks such as “Middle Easterners are lazy” and the hospital “hired another one.” There was other evidence of harassment. Interestingly though, Levine ultimately recommended Nassar for promotion even though there were apparent attempts on her part to interfere with the promotion process. Nevertheless, to get away from Levine, Nassar applied for a hospital staff position, telling Levine’s supervisor (Dr. Gregory Fitz) in a letter that the harassment was the reason for his desire to change jobs. Nassar was told he had to resign his professorship before applying for the new position, and he did so. However, he was not hired and he filed his lawsuit.

On the issue of constructive discharge, the 5th Circuit quoted verbatim from the Supreme Court’s ruling in Pennsylvania State Police v. Suders (2004) [542 U.S. 129], requiring Nassar to prove that his “working conditions were so intolerable that a reasonable employee would feel compelled to resign.” The 5th Circuit also cited seven factors to support a constructive discharge claim, including:


(1) demotion; (2) reduction in salary; (3) reduction in job responsibility; (4) reassignment to menial or degrading work; (5) reassignment to work under a younger supervisor; (6) badgering harassment, or humiliation by the employer calculated to encourage the employee’s resignation; or (7) offers of early retirement or continued employment on terms less favorable than the employee’s former status



According to the 5th Circuit, “Nassar proved none of these factors with the possible exception of ‘badgering, harassment, and humiliation’”, and that what he did prove was no more than the “minimum required to prove a hostile work environment.”

The moral for employees who feel they are being harassed is to complain to upper level management. If the harassment continues, and there is no further recourse, that would be sufficient for a reasonable person quit. The moral for employers is to have a policy that corrects and quickly prevents harassment from occurring, thereby putting the onus on victims of harassment to take reasonable care to use the policy. Had that happened in this case, the subsequent events (the need to apply for another job and subsequent retaliation) could have been avoided.

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