       IN THE UNITED STATES COURT OF APPEALS
                                                             United States Court of Appeals
                                                                      Fifth Circuit
                      FOR THE FIFTH CIRCUIT                       FILED
                            _____________________                July 19, 2012

                               No. 11-10338                     Lyle W. Cayce
                           _____________________                     Clerk

NAIEL NASSAR, MD,

            Plaintiff - Appellee Cross-Appellant

v.

UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER,

            Defendant - Appellant Cross-Appellee

                         __________________________

            Appeals from the United States District Court for the
                     Northern District of Texas, Dallas
                        __________________________

      ON PETITION FOR REHEARING AND REHEARING EN BANC

             (Opinion March 8, 2012, 5 Cir., 2012, 674 F.3d 448)


Before REAVLEY, ELROD, and HAYNES, Circuit Judges.

PER CURIAM:

      The Petition for Rehearing is DENIED and the court having been polled
at the request of one of the members of the court and a majority of the judges
who are in regular active service and not disqualified not having voted in
favor, the Petition for Rehearing En Banc is also DENIED.
     In the en banc poll, 6 judges voted in favor of rehearing (Jones, Jolly,
Smith, Garza, Clement, and Owen), and 9 judges voted against rehearing
(Davis, Stewart, Dennis, Prado, Elrod, Southwick, Haynes, Graves, and
Higginson). Judge King did not participate in consideration of the rehearing
en banc.

     Joining in Judge Smith’s dissent are Chief Judge Jones, Judge Jolly,
and Judge Clement.




ENTERED FOR THE COURT:

    /s/ Thomas M. Reavley

THOMAS M. REAVLEY

United States Circuit Judge
JENNIFER WALKER ELROD, Circuit Judge, concurring:

      I concur in the denial of rehearing en banc. I write separately to address
the waiver issue that was not necessary to the panel decision but is dispositive
of my decision to join the denial of the rehearing en banc. Before the panel, the
parties conceded that Smith v. Xerox Corporation,602 F.3d 320, 330 (5th Cir.
2010), foreclosed the University of Texas Southwestern Medical Center’s (“Texas
Medical”) objection to the district court’s motivating factor jury instruction.
Therefore, the panel did not address whether that argument was waived. Texas
Medical’s own proposed jury instruction included the motivating factor
instruction language used by the district court. On the Friday before trial, the
district court held an all-afternoon hearing to entertain objections to the jury
instructions, after which it admonished the parties: “I’m telling you now, no new
objections.” When Texas Medical raised its objection on Monday morning just
before the jury came in, the district court commented that it was
“unprofessional” and the argument was “probably . . . waived.” Moreover, Texas
Medical did not argue to the district court that Smith was incorrect after Gross
v. FBL Financial Services, Inc., 557 U.S. 167 (2009).

      I agree with the district court that Texas Medical waived the argument.
As such, Texas Medical cannot prevail on its argument at this stage of the case.
See Jimenez v. Wood Cnty, 660 F.3d 841, 846 (5th Cir. 2011) (en banc) (holding
that a party that failed to preserve jury instruction error by raising a proper
objection could not show plain error even where the objection would have been
futile in light of controlling precedent). Therefore, I concur in the denial of
rehearing en banc.
                                 No. 11-10338

JERRY E. SMITH, Circuit Judge, dissenting from the denial of rehearing en
banc:

      This court should not decide cases for undisclosed reasons or determine
dispositive issues sub silentio. Because this panel has done both, I respectfully
dissent from the denial of rehearing en banc. I dissent also because Smith v.
Xerox Corp., 602 F.3d 320 (5th Cir. 2010), is wrongly decided and presents a
question of exceptional importance in employment law. This case is a good vehi-
cle for fixing that mistake.

                                        I.

      In its initial brief on appeal, the employer, University of Texas Southwest-
ern Medical Center (“UTSW”), squarely raised the following issue: “The district
court reversibly erred in instructing the jury based on a theory of mixed-motive
retaliation.” Counsel fulfilled his duty of candor as an officer of the court by
acknowledging the following:

          The Medical School prefaces this argument by conceding that
      this Court’s majority opinion in Smith v. Xerox Corporation, 602
      F.3d 320 (5th Cir. 2010), held that a mixed motive framework can
      be appropriate for a Title VII retaliation claim. The Medical School
      respectfully disagrees with Smith and desires to reserve this point
      for further review, realizing that a panel of this Court cannot over-
      turn Smith.




                                        4
                                  No. 11-10338

That acknowledgement was followed by several paragraphs of argument.

      In his brief, the employee, Naiel Nassar, asserted that “UTSW’s jury
charge complaint has been waived.” He supported that contention with a full
page of argument that the objection was not timely and adequately raised. In its
reply brief, UTSW refuted the waiver claim in a footnote.

      Issue was thus properly joined on whether UTSW waived its objection to
the mixed-motive charge. Despite having been presented with the waiver ques-
tion, however, the panel ignored it, dispensing with the mixed-motive issue on
the merits in a footnote that observed only that the issue was foreclosed by
Smith. See Nassar v. Univ. of Tex. Sw. Med. Ctr., 674 F.3d 448, 454 n.16 (5th
Cir. 2012). There is no way to tellSSbecause the panel does not saySSwhether
it (1) overlooked the waiver question or (2) decided there was no waiver and
therefore addressed the merits or (3) determined that waiver did not matter
because the substantive issue was foreclosed by Smith.

      UTSW filed a petition for panel rehearing and a petition for rehearing
en banc. At the court’s direction, Nassar filed a response to the en banc petition
in which, in two pages, he once again claimed that “UTSW’s jury charge com-
plaint has been waived.” UTSW obtained leave to reply and, in three pages,
explained its view that there was no waiver.

      In its order denying panel rehearing and rehearing en banc, the panel
gives no clue whether it has even considered the thoroughly briefed waiver
claim. That remains a secret. To her credit, Judge Elrod now takes a position
on the waiver question, stating in a panel concurrence that she views the issue

                                        5
                                          No. 11-10338

as having been waived and that that is the reason she opposes en banc rehear-
ing. The rest of the panel is silent.

       Judge Elrod says that the reason the panel opinion did not address waiver
was that it “was not necessary” because the question is foreclosed anyway. That
is not completely accurate. The reason the panel needed (and still needs) to
decide waiver is that UTSW specifically announced its desire to preserve the
mixed-motive issue “for further review,” meaning review by the en banc court
(which could and should overrule Smith) or by the Supreme Court (which could
do the same). Because UTSW is not entitled to raise a waived claimSSeven just
to preserve itSSit very much matters whether there was waiver, and both Nassar
and UTSW are entitled to have this court decide the waiver question. For what-
ever reason, however, the panel has declined that opportunity, and the court has
unwisely rejected the request to rehear the case en banc.

       Even in the wake of a failed en banc poll, the waiver issue can be fixed.
The panel is presented with a petition for panel rehearing and could use that
vehicle to deny panel rehearing but, in the process, to declare whether the issue
was waived or whether, instead, UTSW has preserved it “for further review.”
The panel does not explain why it declines that opportunity.1

       1
        I respectfully part company with Judge Elrod’s careful conclusion that UTSW waived
the mixed-motive issue. At least, UTSW presents a strong argument for why it was not waived.

         As UTSW points out, under Federal Rule of Civil Procedure 51(b) and (c), an objection to
a jury instruction is properly made and preserved by presenting it to the district court on the
record, before the instructions are read to the jury, and before closing arguments. UTSW did so.
It notified the district court of its objection to the mixed-motive instruction before the jury charge
and arguments. The court then resolved UTSW’s objection on the record.
                                                                                         (continued...)

                                                  6
                                         No. 11-10338

                                                II.

       The panel decision in Smith should be overruled. It is an erroneous inter-
pretation of the statute and controlling caselaw and created an unnecessary cir-
cuit split. The problems wrought by the Smith panel majority are convincingly
explained in Judge Jolly’s panel dissent, to which I defer. See Smith v. Xerox
Corp., 602 F.3d 320, 336-40 (5th Cir. 2010) (Jolly, J., dissenting). Unfortunately,
shortly after the panel issued its majority opinion and dissent, and before a peti-
tion for en banc rehearing was filed, the parties settled. That mooted the case
and deprived the en banc court of the chance to correct the error in the panel’s
misapplication of Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009).

       1
         (...continued)
        Moreover, along with its proposed instruction, UTSW emphasized its objection to a
mixed-motive instruction by including a detailed presentation on the conflicting state of the law,
citing authority supporting a but-for causation standard. Having lodged that objection, UTSW’s
attorneys, as officers of the court, also complied with Smith by tendering a jury instruction that
treated but-for causation as an affirmative defense.

        UTSW raised its objection during both portions of the charge conference. During the first
portion, on Friday, it argued that “the plaintiff must show that [retaliation] is the sole motive of
the defendant.” The court then acknowledged that UTSW took “the position it’s a but-for”
standard and that, if a mixed-motive analysis were not the correct state of the law, the mixed-
motive instruction the court later gave to the jury would be incorrect.

       The parties further considered the issue during the continuation of the charge conference
on Monday. Although the court questioned whether the issue had been raised during the Friday
conference, the court ruled on the merits, not on waiver, and relied on this court’s analysis in
Smith.

        The waiver question is not by itself worthy of en banc consideration. The main point now
is not whether there was waiver, but whether the panel should have addressed it. I present
UTSW’s arguments opposing waiver for the purpose of showing that it is a substantial, threshold
question that the panel should have decidedSSand still has the option to decideSS one way or the
other.

                                                 7
                                 No. 11-10338

      This court’s refusal now to reconsider Smith en banc is confounding. We
will never knowSSbecause the court does not saySSwhether that refusal is
because the waiver issue is seen as distracting from the enbancworthy mixed-
motive question. In any event, the failure to take the case en banc is serious
error from which I respectfully dissent.




                                       8
