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The 5th U.S. Circuit Court of Appeals on Aug. 9 upheld an almost $900,000 judgment in a same-sex sexual harassment and retaliation suit brought against the University of Texas Health Sciences Center at Houston by a former professor. “We are ecstatic,” says John Zavitsanos, one of the lawyers representing Luis Mota, a former UTHSC periodontics professor who alleged in Mota v. The University of Texas Houston Health Sciences Center that his supervisor harassed him for sex and that school officials retaliated against him when he complained. “It was very important to our client to get a public opinion that documented what happened to him so that it will never happen again,” says Zavitsanos, a shareholder in Houston’s Ahmad, Zavitsanos & Anaipakos. A three-judge panel of the 5th Circuit affirmed a federal jury’s 1999 findings that the UTHSC retaliated against Mota after he complained of being sexually harassed by Dr. Raul Caffesse, head of the school’s periodontics department and a renowned periodontist. The panel also held that U.S. District Judge Vanessa Gilmore of Houston, who presided at the trial, did not abuse her discretion when she awarded Mota $194,989 in future pay after finding that then-UTHSC President M. David Low continued to engage in vindictive behavior after the trial. In its opinion, written by Circuit Judge Patrick Higginbotham, the 5th Circuit said Low told the school’s approximately 8,000 employees in an e-mail that Mota was not fired, as claimed in the suit, but failed to return from an unpaid leave. Higginbotham was joined in the opinion by Circuit Judge Fortunato Benavides and U.S. District Judge Adrian Duplantier of the Eastern District of Louisiana in New Orleans, sitting by designation. Frank Collura, the UTHSC’s chief legal officer, says the school probably won’t appeal the decision. “We do not see a strong constitutional question in there that would warrant an appeal to the U.S. Supreme Court,” Collura says. Mota sued the UTHSC in the U.S. District Court for the Southern District on April 30, 1998. The action subsequently was amended to add a defamation claim against Caffesse, who settled with Mota for $290,000 before the case went to trial, the opinion said. SOUTH OF THE BORDER A legal U.S. resident from Venezuela, Mota alleged in briefs filed in the 5th Circuit that Caffesse sexually harassed him when the two attended dental conferences between June 1996 and February 1997. He also alleged that Caffesse sexually harassed him when the two were together at the health science center. As alleged in Mota’s brief, the sexual harassment began when he shared a hotel room with Caffesse during a June 1996 conference in Monterrey, Mexico. Mota filed a detailed sexual harassment complaint against Caffesse with the UTHSC in April 1997. However, a three-member panel reported that it could not determine whether Caffesse had violated the school’s sexual harassment policy. “During the investigation, Caffesse admitted to the panel that he had sexually propositioned Mota on two trips following the Mexico trip,” Higginbotham wrote in the opinion. Caffesse testified during the trial that his suggestions to Mota that they engage in sexual activity after the Mexico trip was only a joke, but the panel never had the impression that Caffesse was joking, Mota alleged in his brief. The brief alleged that UTHSC officials left it up to Caffesse to work out an acceptable arrangement with Mota. After Mota filed a complaint with the Equal Employment Opportunity Commission, he was removed from his job as a graduate clinic coordinator, stripped of his research projects, and students were admonished not to associate with him, he alleged in the brief. Mota alleged in his brief that he was terminated by UTHSC officials when he did not return from unpaid leave in May 1998. The brief alleged Mota’s doctor would not release him to work until July 13, 1998, due to emotional duress stemming from the alleged problems with Caffesse. Collura says that minds can differ on whether the UTHSC acts that Mota alleged were committed against him amounted to retaliation. “We’re not in the business of retaliating against our faculty,” he says. Caffesse has been on administrative leave with pay since the conclusion of the trial, Collura says. Placing Caffesse on leave was determined to be best for the UTHSC based on what came out of the trial, he says. Barbara Gardner, an employment lawyer who represents Caffesse, alleges that her client is the victim in this case. “In my view, he was pretty much hung out to dry,” she says. Gardner, with Barbara Gardner & Associates in Houston, alleges that Mota initiated the encounters with Caffesse and gave Caffesse a tie tack that cost more than $500 following the trip to Mexico. Mota alleges in his brief that he bought the gift because Caffesse had arranged for him to make a seminar presentation for which he would receive a $500 honorarium. He did not want to owe Caffesse for anything, the brief alleges. Gardner says Caffesse’s side was not heard at the trial because his insurer decided to settle before the case was tried. Zavitsanos alleges that Caffesse’s former attorneys recommended that the case be settled. Teresa Valderrama, a partner in the Houston office of Baker Botts, represented Caffesse through the settlement. “It is not appropriate to draw any conclusions as to why any party settles out,” she says. Valderrama says defense costs would have been high if Caffesse had gone to trial because the facts were highly disputed and the legal questions were complex.

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