A Recent Development published in Volume 85 and penned by Kimberly Cheeseman, Editor in Chief of Volume 86 of the Tulane Law Review, was cited this month in a writ of certiorari to the United States Supreme Court.

In the piece, Cheeseman analyzed the United States Court of Appeals for the Fifth Circuit’s holding in Smith v. Xerox Corp. “that the mixed-motive framework applies to Title VII retaliation cases and a plaintiff can present circumstantial or direct evidence to obtain a mixed-motive jury instruction.” 1 The Fifth Circuit’s analysis in Smith centered largely on whether the Supreme Court case Gross v. FBL Financial Services, Inc. applied to restrict the availability of a mixed-motive jury instruction in retaliation cases. 2 As noted by Cheeseman, the Fifth Circuit concluded that it did not because Gross dealt with the Age Discrimination in Employment Act. 3

In the writ for certiorari in University of Texas Southwestern Medical Center v. Nassar, the question presented is whether the mixed-motive framework applies to Title VII retaliation claims, as the Fifth Circuit concluded, or whether the Supreme Court’s reasoning in Gross applies to deny the framework to retaliation claims. 4

The petition notes that commentators acknowledge a circuit split with regard to the question presented. It cites to Cheeseman’s piece as one such commentator, in support of its party’s position that the Supreme Court resolve the issue. 5

Cheeseman currently clerks for Judge Martin L.C. Feldman of the United States District Court for the Eastern District of Louisiana.

  1. Kimberly Cheeseman, Recent Development, Smith v. Xerox Corp.: The Fifth Circuit Maintains Mixed-Motive Applicability in Title VII Retaliation Claims, 85 Tul. L. Rev. 1395, 1396 (2011).
  2. Smith v. Xerox Corp., 602 F.3d 320, 331-32 (5th Cir. 2010).
  3. Cheeseman, supra, note 1, at 1404-05.
  4. Petition for Writ of Certiorari, Univ. of Tex. Sw. Medical Center v. Nassar, No. 12-484 2012 WL 5195809, at *1 (U.S. Oct. 17, 2012).
  5. Id. at 17 (citing Cheesemansupra, note 1, at 1406) (noting that the Fifth Circuit’s holding creates a split with the United States Court of Appeals for the Seventh Circuit’s holding that Gross applied to retaliation claims).
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