The Appellate Record : Texas Appellate Lawyer & Attorney Kendall Gray for Fifth Circuit & Supreme Court Appeals

Three days have passed this week, and in all three days the Mighty Fifth Circuit has released published opinions of interest to civil practitioners.  Today the Fifth Circuit released Smith v. Xerox Corp. (pdf) involving jury instructions in a Title VII retaliation case and the standard for punitive damages under the statute.  Judge Reavley wrote the opinion.  Oddly, the Panel released a separate, unpublished opinion (pdf) to explain why the evidence was sufficient to support the retaliation claim.

A divided panel held that the trial court properly inquired of the jury whether Smith's EEOC charge was a "motivating factor in Xerox's termination decision" and then whether "Xerox would have made the same termination decision even if it had not considered Smith's EEOC charge."  The extended statutory analysis is definitely worth your time if you handle employment matters with regularity. 

The Panel Majority concluded that, although the evidence was sufficient to find that retaliation was a motivating factor in the termination, the punitive damages award based on malice or reckless indifference to federal rights could not stand as the requisite mental states had not been established.

Judge Jolly dissented, intimating at a potential circuit split:

First, the majority effectively creates an unnecessary split in the circuits by failing properly to apply the Supreme Court’s ruling in Gross v. FBL Financial Services, Inc. As the Seventh Circuit has correctly reasoned, without statutory language indicating otherwise, the mixed-motive analysis is no longer applicable outside of Title VII discrimination, and consequently does not apply to this retaliation case. Second, the majority errs in treating this case as a mixed-motive case. This case is pretext, pure and simple: it was tried as a pretext case and relies on pretext evidence.

If the Court would take a breather from all this opinion writing, your most humble and obedient blog servant might have time to think deep thoughts about all these developments and commit them to print.  If the Court releases no opinions on Saturdays and Sundays, I still have a chance.

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Well, it's been a quiet week in the United States Court of Appeals for the Fifth Circuit, my home Circuit. 

Actually, the Court has been handing down opinions with such regularity, the sister circuits are starting to take offense because the Mighty Fifth is making them look slothful by comparison.

Yesterday, the court handed down three published opinions, two of which might have interest to civil practitioners.  Very briefly:

• In Carmona v. Southwest Airlines Co. (pdf), the Court reversed the district court's decision to grant judgment as a matter of law on a flight attendant's ADA claim.  The flight attendant's psoriatic arthritis had caused the employee to miss work.  The jury had found in favor of the employee on his ADA claim but had rejected his claim under Title VII.  Judge Garwood wrote the opinion.
• And my personal favorite, Wells v. Smithkline Beecham (pdf).  The Plaintiff brought a products liability claim under Texas law and argued that Smithkline Beecham ought to have warned him that Requip would cause compulsive gambling, resulting in millions of dollars of gambling losses.  The Court affirmed the trial court's Daubert ruling finding that the expert testimony linking compulsive gambling to Requip was not up to snuff.  Judge Higginbotham wrote the opinion.   

 Daubert is one of my favs, so watch this space for some further analysis--unless the Mighty Fifth keeps up this pace, in which case there will be insufficient time!

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