Jottings By An Employer's Lawyer

Wednesday, February 02, 2005

Using "Motivating Factor" Not "But For" Instruction - Plain Error According to 5th Circuit


When a party fails to object in the trial court, the appellate court is limited to reviewing a mistake for "plain error." In the 5th Circuit that means they must show:

1) that an error occurred; 2) that the error was plain, which means clear or obvious; 3) the plain error must affect substantial rights; and 4) not correcting the error would seriously impact the fairness, integrity, or public reputation of judicial proceedings. The plain error exception is designed to prevent a miscarriage of justice where the error is clear under current law.

What that usually means is -- you lose. But not always. And today's decision in Septimus v. University of Houston (5th Cir. 2/2/05) [pdf] is such a case.

Refereeing a dispute that erupted within the UH's General Counsel's office, the 5th Circuit reversed a jury verdict in favor of a former in house attorney who claimed she had been retaliated against for engaging in protected conduct. The reason for the reversal? The Court utilized a "motivating factor" rather than a "but for" standard in the jury instruction on retaliation. If anyone doubted that "motivating factor" was an easier test for plaintiffs, today's decision puts that to rest, at least as viewed from the 5th Circuit's perspective:

This court has consistently required a “but for” standard for proving causation on a Title VII retaliation claim brought under the pretext framework. Thus, the disputed jury instruction amounts to plain error that should have been clear or obvious. Even when the jury instructions are viewed in their entirety, the substitution of the phrase “motivating factor” for “but for” causation causes us to doubt substantially whether the jury was properly guided in its deliberations. Septimus was held to a lower standard in proving the causation element of her retaliation claims – the ultimate question in this case – and therefore substantial rights of the University were prejudiced.

And to just really ruin Septimus' day, the Court also affirmed the trial court's grant of summary judgment on her non-retaliation claims.

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