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Click here for the full text of this decision FACTS:Susan Septimus handled business and transactional matters as assistant general counsel for the University of Houston system. In 1997, two additional assistant general counsel positions opened, one of which was for litigation and employment matters. Brian Nelson, an outside candidate, applied for the litigation and employment position, and Septimus told the system’s general counsel, Dennis Duffy, that she was interested in the other position. Duffy told Septimus that he wanted someone with managerial experience and that Septimus had otherwise not “stepped up to the plate” in her current position. Though Nelson was hired for the litigation position, he actually performed business and transactional matters. Septimus filed an internal discrimination complaint with the university in March 1998 after Duffy “harangued” Septimus in her office for two hours, with Nelson present. Septimus also filed an EEOC complaint against Duffy for creating a hostile work environment. Because other female employees had also complained about Duffy, an investigation was initiated, spearheaded by Deborah McElvaney. McElvaney concluded there was sufficient evidence that Duffy had discriminated against Septimus in hiring Nelson, and that Duffy created a hostile work environment. On the other hand, she did not find evidence that Duffy retaliated against Septimus for filing the internal discrimination complaint or for cooperating with McElvaney’s investigation. A three-person committee appointed by the university chancellor reviewed McElvaney’s report and ultimately decided that none of Septimus’ complaints had merit. The panel denied all of her internal grievances and claims. In May 1998, the chancellor offered Septimus the choice of staying in the general counsel’s office still supervised by Duffy or transferring to the contracts administration department. The chancellor added that this latter option was available only if Septimus agreed not to practice law on behalf of the university any more, which was standard policy for anyone working in that department. If she accepted, Septimus would also be required to release any claims against the university. Septimus accepted the position in the contracts administration department, where she reported to someone identified in the opinion only as “Martin.” When an interim position opened in the department, Martin refused a recommendation to promote Septimus to it, because Martin’s supervisor decided instead to combine the position with one already held by Ann Lamar. The new position included a change of title but no change in salary. Lamar became Septimus’ new boss. Septimus viewed this turn of events as being offered a promotion that was later rescinded in retaliation. In late 1999, Martin criticized Septimus for suggesting revisions to contracts without coordinating with the general counsel’s office. Consequently, Septimus resigned. Her duties were assigned to Nelson in the general counsel’s office, and he continued to report to the general counsel. In September 2000, Septimus sued the university for gender discrimination in the hiring of Nelson over her, for retaliation based on her transfer to the contracts administration department, for retaliation based on the denial of the interim position, for a hostile work environment, and for retaliation through constructive discharge. The district court granted partial summary judgment for the university on the gender discrimination, hostile work environment and retaliation claims for the denial of promotion to the interim position in the contracts administration department. The remaining two issues went to trial. The parties agreed that this was a pretext case, rather than a mixed-motive case. Therefore, after Septimus proved her prima facie case of retaliation and the university proved it had a legitimate nondiscriminatory reason for its actions, Septimus then had to prove that the university’s reason was actually a pretext for retaliation. The district court submitted a question to the jury asking if retaliation was a motivating factor in its actions toward Septimus. The university did not object to this instruction, and the jury answered “yes,” ruling for Septimus on the constructive discharge and department-transfer retaliation claim. Septimus appeals the summary judgment; the university appeals the district court judgment. HOLDING:Affirmed in part; reversed and remanded in part. The McDonnell Douglas evidentiary framework applies to Title VII retaliation claims brought under a pretext theory, the court finds. The proper standard of proof on the causation element of a Title VII retaliation claim is that the adverse employment action taken against the plaintiff would not have occurred but for her protected conduct. Furthermore, this court has consistently held that, in retaliation cases where the defendant has proffered a nondiscriminatory purpose for the adverse employment action, the plaintiff has the burden of proving that, but for the discriminatory purpose, he would not have been terminated. Consequently, it was error for the district court to use the motivating-factor language in its jury instruction. Because the university did not object or raise this issue at trial, the court determines whether the error requires reversal under the plain-error standard. Because the jury was improperly instructed, the court concludes, the case’s outcome may have been affected. “Therefore, failing to correct this fundamental error could impact the fairness of the judicial process in this case and could result in a miscarriage of justice.” The court then reviews the grant of summary judgment to the university. As for Septimus’ gender discrimination claim, she did not prove that retaliation was a pretext for the hiring of Nelson over her. The court says it is undisputed that Septimus was not qualified, and that she had not “stepped up” to assume management responsibilities in her department. There was no evidence to contradict the reasons given, and the mere fact that Nelson was hired is not enough to establish discrimination. As to Septimus’ claim that she was retaliated against by being denied the interim position eventually taken by Lamar, the court initially finds no evidence backing up Septimus’ claim that she was actually given the promotion only to have it taken away from her. Septimus was recommended for the position by a co-worker, but she was never promised the position. The ultimate decisionmaker’s awareness that Septimus had filed a discrimination complaint is not enough to establish that Septimus was discriminated against. Finally, the court agrees with the district court that Duffy’s behavior was “boorish and offensive,” but it was not severe or pervasive enough to rise to the level of a hostile work environment. OPINION:Kinkeade, J.; Wiener, Prado and Kinkeade, JJ.

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