Middle Eastern University Physician Retaliated Against By Blocking Hiring is Entitled to Back Pay

A physician of Middle Eastern descent brought a Title VII action, alleging that he was constructively discharged from a university faculty position because of racially motivated harassment by a superior, and that the university retaliated against him by preventing him from obtaining a position at an affiliated hospital after he resigned.


On the constructive discharge claim, the Fifth Circuit held the physician's proof that his superior at the university hospital racially harassed him because of his Middle Eastern background was no more than the minimum required to prove hostile work environment, and did not amount to the kind of badgering, harassment, and humiliation required to establish a constructive discharge. In fact, the university approved the physician's promotion to a position with higher salary and more preferable employment terms.


On the retaliation claim, the Fifth Circuit held there was sufficient evidence to support the jury's finding that the university hospital retaliated against the physician for his complaints about the superior's racial harassment and by preventing him from obtaining a position at an affiliated hospital after he resigned from the university.


For the back pay award, as damages for the retaliation that prevented the physician from obtaining a position at an associated hospital after he resigned, the award was determined by comparing the physician's prospective compensation at the affiliated hospital and his compensation at the clinic which hired him, rather than by comparing the physician's compensation at the university hospital and his compensation at the clinic. The court reasoned that by retaliating against the physician and blocking his job with the affiliated hospital, the university deprived the physician of pay he otherwise would have earned there.


Also regarding the back pay award and lost honoraria, the Fifth Circuit held the award did not include a decrease in the honoraria the physician received at his new post for attending conferences and other speaking engagements as the honoraria were paid by third parties for services that were not required under the terms of the physician's employment, and therefore were not akin to salary, wages, or benefits. However, the honoraria lost by the physician, by being denied a position at the affiliated hospital after his resignation, was awardable as compensatory damages for retaliation, to the extent the loss was caused by the university blocking the physician's position at the affiliated hospital rather than the physician's decision to resign from the university hospital. See: Nassar v. University of Tex. Southwestern Medical Center, 2012 WL 745296 (5th Cir.(Tex.) Mar 08, 2012) (not designated for publication).