Adams, et al v. Mem Hermann, et al

United States Court of Appeals
for the Fifth Circuit

No. 19-20651

Delise Adams; Gloria Flores-Olvera; Judy Perez,

Plaintiffs—Appellants,

versus

Memorial Hermann; Chips Adams; Arnold Carrasco,

Defendants—Appellees.

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:15-CV-1270

Before Smith, Willett, and Duncan, Circuit Judges.
Jerry E. Smith, Circuit Judge:
Delise Adams (“Plaintiff Adams”), Gloria Flores-Olvera, and Judy
Perez were employed at Memorial Hermann Health System’s Southwest
Neighborhood Clinic. That clinic was closed, and the three were terminated.
They sued, alleging violations of Title VII of the Civil Rights Act and the
Family and Medical Leave Act (“FMLA”). The jury found for defendants
on all claims. Plaintiffs challenge two distinct evidentiary rulings and the jury
instructions. We affirm.
United States Court of Appeals
Fifth Circuit
FILED
August 31, 2020

Lyle W. Cayce
Clerk
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I.
Memorial Hermann Health System operates hospitals and outpatient
“Neighborhood Health Clinics.” The outpatient clinics were created to
provide affordable health care to individuals with limited or no health insur-
ance. In 2014, it operated three such clinics: the Southwest Clinic, the
Northwest Clinic, and the Northeast Clinic. Citing concerns over financial
viability and treatment standards, Memorial Hermann made the decision to
close the Southwest Clinic in July 2014.
In 2014, Helen “Chips” Adams (“Defendant Adams”) was em-
ployed by Memorial Hermann as the Associate Vice President of Outpatient
Clinics. Arnold Carrasco served as the Director for the Neighborhood
Health Clinics. Both were involved in the decision to close the Southwest
Clinic.
At the time of the decision, seven individuals worked at the Southwest
Clinic: two nurse practitioners, Plaintiff Adams and Margaret Watson, and
five medical assistants. Two medical-assistant positions were full-time and
were held by Flores-Olvera and Perez. Two were part-time, held by Rachel
Magallanes and Mary Lou Macias, and one was a supplemental position held
by Jenifer Umana. Closing the Southwest Clinic eliminated all seven
positions.
When the closure decision was made, Flores-Olvera and Perez were
out on FMLA leave after recently giving birth. Plaintiff Adams was pregnant
and preparing to take FMLA leave; by the time she was informed of the
decision, she was in the hospital after recently giving birth.
Around this time, leadership at Memorial Hermann identified em-
ployment needs at the other neighborhood clinics. Those needs included one
full-time nurse practitioner at the Northwest Clinic and one part-time medi-
cal assistant in each of the Northwest and Northeast clinics.
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The Southwest Clinic employees were notified of the closure decision
in a meeting on August 26, 2014. Human Resources representative Jacque-
line Patterson, alongside Carrasco and Defendant Adams, notified the em-
ployees that their positions at the Southwest Clinic would be terminated.
The employees were also informed that there were other positions available
within the Memorial Hermann system for which they could apply. All three
plaintiffs were out on FMLA leave when the meeting was held and were
notified by phone soon thereafter. Plaintiffs were also informed of the three
open positions and told that they were welcome to apply.
Carrasco and Defendant Adams were responsible for filling the open
positions. They selected Watson for the open nurse practitioner position
over Plaintiff Adams. They also selected Magallanes and Umana for the open
medical assistant positions at the Northeast and Northwest clinics, respec-
tively. Thus, all three plaintiffs and Macias were terminated. Patterson was
terminated a few months later, in February 2015, when it was discovered that
she had falsified information on her resume.
Plaintiffs sued, alleging discrimination under Title VII and retaliation
under the FMLA. Specifically, they claimed that they were terminated be-
cause of their pregnancies and in retaliation for taking leaves of absence under
the FMLA. At trial, defendants denied that the employment decisions were
made for impermissible reasons. Defendants relied on, among other things,
plaintiffs’ performance evaluations to demonstrate that the decisions were
based on legitimate factors.
Plaintiffs called Patterson as a witness in part to rebut the reliability of
the performance evaluations. Specifically, they sought to introduce testimo-
nial evidence that Patterson was instructed by Memorial Hermann’s lawyers
to search for plaintiffs’ performance evaluations and that, after engaging in
the search, she was unable to find them. At trial, the court ruled that Pat-
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terson could not “testify as to conversations she had with lawyers or things
she did at the direction of the lawyers.” It held that such testimony was
protected under either the work-product doctrine or the attorney-client
privilege.
Defendants sought to introduce former Memorial Hermann HR
Director Lisa Haneberg as a witness to provide testimonial evidence regard-
ing Patterson’s employment. The court permitted that testimony but limited
the scope of appropriate questioning to that which would either (1) contradict
unanticipated testimony by Patterson or (2) impeach Patterson for bias
against her former employer. The court permitted Haneberg to testify that
Patterson was fired because she lied on her resume and application. It then
allowed Haneberg to testify as to the details of Patterson’s fabrication.
The court instructed the jury under a but-for standard of causation for
both the Title VII and FMLA claims. The jury was thus required to deter-
mine whether plaintiffs were discriminated against because of their pregnan-
cies or because of their decisions to take FMLA leave. The jury found for
defendants on all claims.
Plaintiffs assert three errors. First, they posit that the court erred
when it limited Patterson’s testimony under either the work-product doc-
trine or attorney-client privilege. Second, plaintiffs maintain that the court
erred when it permitted Haneberg’s testimony. Plaintiffs reason that her tes-
timony amounted to extrinsic evidence attacking Patterson’s credibility in
violation of Rule 608(b) of the Federal Rules of Evidence. Finally, plaintiffs
contend that the district court erred in its instructions to the jury.
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II.
A. Exclusion of Patterson’s Testimony
Plaintiffs assert that the district court committed harmful error when
it limited Patterson’s testimony under either the work-product doctrine or
the attorney-client privilege. Because any error was harmless, we disagree.
1

1. Standard of Review
We review the district court’s application of both the attorney-client
privilege and the work-product doctrine for clear error.
2
We review ques-
tions of controlling law de novo. Taylor Lohmeyer Law Firm P.L.L.C. v. United
States, 957 F.3d 505, 509 (5th Cir. 2020); Ecuadorian Plaintiffs, 619 F.3d
at 377.
Evidentiary rulings are reviewed under a “deferential abuse of dis-
cretion standard,” Williams v. Manitowoc Cranes, L.L.C., 898 F.3d 607, 615
(5th Cir. 2018), and are subject to the harmless-error doctrine, Heinsohn v.
Carabin & Shaw, P.C., 832 F.3d 224, 233 (5th Cir. 2016). Therefore, even if
the district court has abused its discretion, “the ruling will be reversed only
if it affected the substantial rights of the complaining party.” Nunez v. All-
state Ins. Co., 604 F.3d 840, 844 (5th Cir. 2010).

1
Defendants assert that plaintiffs failed to preserve this issue by making a sufficient
offer of proof under Rule 103(a)(2) of the Federal Rules of Evidence. To the contrary,
plaintiffs adequately informed the court of the “substance of the evidence,” comporting
with the requirements of Rule 103. United States v. Kay, 513 F.3d 432, 455 (5th Cir. 2007);
Fed. R. Evid. 103(a)(2). Regardless, because we find no harmful error, we need not
address this issue.
2
United States v. Edwards, 303 F.3d 606, 618 (5th Cir. 2002) (“Because the appli-
cation of the attorney-client privilege is a fact question to be determined in light of the
purpose of the privilege and guided by judicial precedents, we review the district court’s
finding for clear error only.”); Ecuadorian Plaintiffs v. Chevron Corp., 619 F.3d 373, 377 (5th
Cir. 2010) (applying the same standard of review to the work-product doctrine).
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2. The Attorney-Client Privilege
Claims of privilege in federal courts are governed by the “common
law—as interpreted by United States courts in light of reason and experi-
ence.” Fed. R. Evid. 501. “The attorney-client privilege is the oldest of
the privileges for confidential communications known to the common law.”
Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). It protects both “the
giving of professional advice to those who can act on it” and “the giving of
information to the lawyer to enable him to give sound and informed advice.”
Id. at 390.
“[T]he attorney-client privilege attaches to corporations as well as to
individuals.” CFTC v. Weintraub, 471 U.S. 343, 348 (1985). Communication
between employees and the corporation’s attorney is privileged if it is made
“at the direction of corporate superiors in order to secure legal advice from
counsel” concerning “matters within the scope of the employees’ corporate
duties.” Upjohn, 449 U.S. at 394.
Even still, the attorney-client privilege “only protects disclosure of
communications; it does not protect disclosure of the underlying facts.” Id.
at 395. Thus, a fact is not privileged “merely because [a client] incorporated
a statement of such fact into his communication to his attorney.” Id. at 396.
3. The Work-Product Doctrine
Established in Hickman v. Taylor, 329 U.S. 495 (1947), “the work-
product doctrine is distinct from and broader than the attorney-client privi-
lege.” United States v. Nobles, 422 U.S. 225, 238 n.11 (1975). The work-
product doctrine “insulates a lawyer’s research, analysis of legal theories,
mental impressions, notes, and memoranda of witnesses’ statements from an
opposing counsel’s inquiries.” Dunn v. State Farm Fire & Cas. Co., 927 F.2d
869, 875 (5th Cir. 1991). It protects materials prepared in anticipation of liti-
gation, whether those materials were prepared by the attorney or by agents
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of the attorney. In re Grand Jury Proceedings, 601 F.2d 162, 171 (5th Cir.
1979).
The doctrine articulated in Hickman was later partially codified as
Rule 26(b)(3) in the Federal Rules of Civil Procedure: “Ordinarily, a party
may not discover documents and tangible things that are prepared in antici-
pation of litigation or for trial by or for another party or its representative.”
3

Despite the language of Rule 26, the work-product doctrine protects both
“tangible and intangible” work product.
4
Like the attorney-client privilege,
the work-product doctrine “protects only the [attorney’s work product] and
not the underlying facts.” In re Int’l Sys. & Controls Corp. Sec. Litig., 693 F.2d
1235, 1240 (5th Cir. 1982).
4. Analysis
As the parties’ divergent briefing illustrates, the district court was less
than clear as to whether it based its evidentiary ruling on the work-product
doctrine or the attorney-client privilege. Its initial order stated that “any tes-
timony concerning Patterson’s conversation with Defendants’ lawyers will
not be permitted at trial.” That seems to invoke attorney-client privilege. At

3
Fed. R. Civ. P. 26(b)(3)(A). The rule has an exception for “otherwise discov-
erable” materials in cases of “substantial need,” which neither party asserts is relevant
here. Fed. R. Civ. P. 26(b)(3)(A)(i)–(ii).
4
Nobles, 422 U.S. at 237; see also 8 Charles A. Wright, Arthur R. Mil-
ler & Richard L. Marcus, Federal Practice & Procedure
§ 2024, at 494–
95 (3d ed. 2010) (“Rule 26(b)(3) itself provides protection only for documents and tangible
things . . . . Nonetheless, Hickman v. Taylor continues to furnish protection for work
product within its definition that is not embodied in tangible form . . . .”); United States v.
Deloitte, LLP, 610 F.3d 129, 136 (D.C. Cir. 2010) (“Thus Hickman provides work-product
protection for intangible work product independent of Rule 26(b)(3).”); In re Seagate Tech.,
LLC, 497 F.3d 1360, 1376 (Fed. Cir. 2007), abrogated on other grounds by Halo Elecs., Inc. v.
Pulse Elecs., Inc., 136 S. Ct. 1923 (2016); In re Cendant Corp. Sec. Litig., 343 F.3d 658, 662
(3d Cir. 2003); United States v. One Tract of Real Prop., 95 F.3d 422, 427 (6th Cir. 1996).
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trial, however, the court expanded that ruling. It determined that Patterson
could not “testify as to conversations she had with lawyers or things she did at
the direction of the lawyers” (emphasis added). That seems to invoke both the
attorney-client privilege and the work-product doctrine.
Regardless, we need not discern the particular doctrine on which the
court rested its conclusion (nor whether that conclusion was correct). That
is so because any error was harmless.
An error is “harmless” if it does not “affect[] the substantial rights of
the complaining party.” Nunez, 604 F.3d at 844. Plaintiffs sought to estab-
lish that the performance evaluations were “shams.” Patterson was allowed
ample testimony on that theory, and the jury rejected it. It is unlikely that
this additional fact would have swayed the jury.
Specifically, Patterson was allowed to state (1) that she had never seen
the documents; (2) that until trial—when she was shown the alleged “sham”
evaluations—she had never seen any performance evaluations on which the
names were hand-written; (3) that performance evaluations were supposed
to include a location, which was absent from those offered into evidence; and
(4) that during her employment she had never seen a performance evaluation
that lacked a designated location. The jury, therefore, had ample opportunity
to adopt plaintiffs’ theory that the performance evaluations were “shams.”
Moreover, the evaluations were but one piece of evidence bearing on
the overall legitimacy of the employment decisions. The jury’s decision to
reject plaintiffs’ theory is supported by Memorial Hermann’s additional
evidence that the employment decisions were legitimate. For example, the
jury heard witness testimony regarding the qualifications and exemplary per-
formance of the employees who were selected for the open positions. In con-
trast, it heard testimony describing plaintiffs’ disciplinary actions and their
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general lackluster workplace performance. In short, the jury had sufficient
information to determine that the employment decisions were legitimate.
Limiting Patterson’s testimony did not, therefore, affect plaintiffs’
substantial rights. Nunez, 604 F.3d at 844. Because any mistake was harm-
less, the district court did not commit reversible error when it limited Patter-
son’s testimony under either the work-product doctrine or the attorney-
client privilege.
B. Inclusion of Haneberg’s Testimony
Plaintiffs aver that the district court erred by admitting Haneberg’s
testimony regarding specific incidents attacking Patterson’s credibility in
violation of Rule 608(b) of the Federal Rules of Evidence. We disagree.
1. Standard of Review
As discussed above, evidentiary rulings are reviewed under a “defer-
ential abuse of discretion standard,” Williams, 898 F.3d at 615, and are sub-
ject to the harmless-error doctrine, Heinsohn, 832 F.3d at 233. Therefore,
even if the district court has abused its discretion, “the ruling will be reversed
only if it affected the substantial rights of the complaining party.” Nunez,
604 F.3d at 844.
2. Applicable Law
“[E]xtrinsic evidence is not admissible to prove specific instances of
a witness’s conduct in order to attack or support the witness’s character for
truthfulness.” Fed. R. Evid. 608(b). The rule “is limited to instances
where the evidence is introduced to show a witness’s general character for
truthfulness.” United States v. Farias-Farias, 925 F.2d 805, 811 (5th Cir.
1991) (per curiam). “It in no way affects the admission of evidence of such
prior acts for other purposes.” Id.
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Rule 608 does not prohibit the introduction of extrinsic evidence used
to attack the credibility of a witness where “the evidence tends to show bias
or motive for the witness to testify untruthfully.” United States v. Thorn,
917 F.2d 170, 176 (5th Cir. 1990). Further, evidence that may be inadmissible
under Rule 608 if used to attack the witness’s general character for truthful-
ness may nonetheless be admitted if offered for another purpose.
5

3. Analysis
Plaintiffs do not contest that the district court admitted Haneberg’s
testimony for the purpose of impeaching Patterson’s credibility on account
of bias. Instead, they assert only that the court failed appropriately to limit
the testimony to effect that purpose.
Plaintiffs’ quibble is unpersuasive. Plaintiffs assert that the court
erred by permitting Haneberg to testify regarding Patterson’s falsified
resume. That falsification resulted in her termination, which served as defen-
dants’ foundation for Patterson’s alleged bias. It was squarely within the
court’s broad discretion to permit the jury to hear the details and context
surrounding an occurrence properly introduced as extrinsic evidence to show
a witness’s bias.
6

“[C]ourts of appeals afford broad discretion to a district court’s evi-
dentiary rulings” out of “deference to a district court’s familiarity with the

5
United States v. Abel, 469 U.S. 45, 56 (1984) (“It would be a strange rule of law
which held that relevant, competent evidence which tended to show bias on the part of a
witness was nonetheless inadmissible because it also tended to show that the witness was a
liar.”).
6
See Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008); cf. Old Chief
v. United States, 519 U.S. 172, 187 (1997) (Evidence thus has force beyond any linear scheme
of reasoning, and as its pieces come together a narrative gains momentum . . . .”); FDIC v.
Fid. & Deposit Co. of Md., 45 F.3d 969, 980 n.6 (5th Cir. 1995) (affirming admission of
evidence that “define[d] and ‘elucidate[d] the nature of the transaction’”).
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details of the case and its greater experience in evidentiary matters.” Men-
delsohn, 552 U.S. at 384. The district court applied the proper legal standard
by admitting extrinsic evidence for the purpose of showing Patterson’s bias.
Thorn, 917 F.2d at 176. The scope of the testimony it permitted to accom-
plish that purpose did not abuse its “broad discretion.” Mendelsohn, 552 U.S.
at 384.
C. Jury Instructions
Plaintiffs contend that the district court erred by failing to offer the
jury a motivating-factor instruction on the Title VII discrimination and
FMLA retaliation claims. Again, we disagree.
1. Standard of Review
“Jury instructions are reviewed for abuse of discretion.” Janvey v.
Dillon Gage, Inc. of Dall., 856 F.3d 377, 388 (5th Cir. 2017). We reverse “only
when the charge as a whole leaves the court with substantial and ineradicable
doubt whether the jury was properly guided in its deliberations.” Nester v.
Textron, Inc., 888 F.3d 151, 156 (5th Cir. 2018) (cleaned up). Any error is
subject to harmless-error review, such that we will not reverse unless the
erroneous instructions “affected the outcome of the case.”
7

2. Applicable Law
The text of the FMLA does not specify a standard of causation for
retaliation claims. The relevant section states only that “[i]t shall be unlawful
for any employer to discharge or in any other manner discriminate against
any individual for opposing any practice made unlawful by this subchapter.”
29 U.S.C. § 2615(a)(2). The Department of Labor, per its regulatory author-

7
Janvey, 856 F.3d at 388; see also United States v. Cessa, 785 F.3d 165, 185 (5th Cir.
2015) (“Any error [in instructing the jury] is subject to harmless-error review.”).
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ity, has interpreted that provision to provide for both a but-for causation stan-
dard and a mixed-motive standard.
8

Unlike the FMLA, Title VII plainly provides for both a but-for causa-
tion standard and a mixed-motive standard. It prohibits various adverse em-
ployment actions “because of” an individual’s protected status. 42 U.S.C.
§ 2000e–2(a). In contrast, Section 2000e–2(m) provides that “an unlawful
employment practice is established when the complaining party demon-
strates that [a protected status] was a motivating factor for any employment
practice, even though other factors also motivated the practice.” Id.
§ 2000e–2(m). Proof of causation under the “motivating factor” standard is
generally viewed as an alternative to the but-for standard.
9

Both sides agree that, when both alternatives are available, it is the
duty of the district court to discern the correct standard. Smith v. Xerox
Corp., 602 F.3d 320, 333 (5th Cir. 2010), abrogated on other grounds by Univ.
of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013). A court “may give a
mixed-motive instruction” if it “has before it substantial evidence that both
a legitimate and an illegitimate (i.e., more than one) motive may have played
a role in the challenged employment action.” Id.
3. Analysis
As an initial matter, it is unclear whether a mixed-motive causation
standard is ever proper for FMLA retaliation claims.
10
To be sure, in

8
See 29 C.F.R. § 825.220(a)(3) (2013) (but-for standard); id. § 825.220(c) (mixed-
motive standard).
9
See Autry v. Fort Bend Ind. Sch. Dist., 704 F.3d 344, 347 (5th Cir. 2013) (discussing
disjunctively the “pretext alternative” and the “mixed-motives alternative”).
10
See Ion v. Chevron USA, Inc., 731 F.3d 379, 389–90 (5th Cir. 2013)
(acknowledging Fifth Circuit precedent applying the motivating-factor standard but calling
that precedent into question); see also Wheat v. Fla. Par. Juvenile Justice Comm’n, 811 F.3d
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Richardson v. Monitronics International, Inc., we endorsed that standard as one
option a district court may apply.
11
But Richardson’s viability (and, along with
it, the Department of Labor’s regulatory interpretation) are dubious in light
of the Supreme Court’s more recent decisions in Nassar and Gross v. FBL
Financial Services, Inc., 557 U.S. 167 (2009).
In Gross, the Court determined that a plaintiff asserting a disparate-
treatment claim under the Age Discrimination in Employment Act
(“ADEA”) must establish but-for causation. Id. at 180. In Nassar, 570 U.S.
at 362, the Court held the same as it applies to Title VII retaliation claims.
To be sure, the statutory language in the FMLA is not identical to the rele-
vant portions of the ADEA or Title VII.
12
Nonetheless, the Court’s rejection
of a mixed-motive causation standard in those claims places in serious doubt

702, 710 (5th Cir. 2016) (“[I]t [sic] unclear whether the ‘causal link’ requirement for
FMLA retaliation claims involves the same ‘but for’ analysis required for Title VII retalia-
tion claims.”).
11
434 F.3d 327, 333 (5th Cir. 2005) (“The mixed-motive framework applies to
[FMLA retaliatory discharge] cases in which the employee concedes that discrimination
was not the sole reason for her discharge, but argues that discrimination was a motivating
factor in her termination.”). We are aware, as was the district court, of Garcia v. Penske
Logistics, 631 F. App’x. 204, 210 (5th Cir. 2015) (per curiam), stating that “FMLA retaila-
tion claims are analyzed solely by determining whether the discrimination was a motivating
factor in the adverse employment decision.” But because that statement was dictum in an
unpublished decision, we are doubly unbound to it. See, e.g., Netsphere, Inc. v. Baron,
799 F.3d 327, 333 (5th Cir. 2015) (discussing the non-binding effect of dictum); Gate Guard
Servs., L.P. v. Perez, 792 F.3d 554, 560 n.3 (5th Cir. 2015) (“Unpublished opinions are not
binding on this court.”).
12
We note, however, that the gulf is not all that great. The relevant distinction is
that the provisions at issue in Nassar and Gross use the word “because,” while the relevant
provision here uses “for.” Compare 42 U.S.C. § 2000e-3(a) and 29 U.S.C. § 623(b) with
29 U.S.C. § 2615(a)(2). Whether that distinction is material is a question we leave for
another day.
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the viability of that standard as applied to retaliation claims brought under
the FMLA.
We need not confront that question directly, however, because Rich-
ardson does not categorically foreclose the use of the but-for causation stan-
dard for FMLA retaliation claims. It states only that a court ought to apply
“the mixed-motive framework in appropriate cases.” Richardson, 434 F.3d
at 334 (emphasis added). Such cases exist when “the district court has before
it substantial evidence supporting a conclusion that both a legitimate and an
illegitimate (i.e., more than one) motive may have played a role in the chal-
lenged employment action.” Smith, 602 F.3d at 333.
13
Thus, assuming
mixed-motive and but-for instructions are available for both the Title VII and
FMLA claims, the district court was tasked with discerning which causation
standard was appropriate, given the state of the evidence.
The district court stated that it “did not have before it substantial
evidence supporting a conclusion that both a legitimate and an illegitimate
(i.e., more than one) motive may have played a role in the challenged em-
ployment action.” In the context of the FMLA claim, the court determined
that plaintiffs “were terminated either in retaliation for taking FMLA leave .
. . or because their clinic closed and they failed to find employment elsewhere
within the Memorial Hermann system”—in other words, the plaintiffs were
terminated for the retaliatory reason or the non-retaliatory reason, but not
both. Likewise, for the Title VII claim, the court determined that plaintiffs
“were terminated either because they had been pregnant or because their
clinic closed and they did not secure employment elsewhere.” Therefore,

13
Nassar did not disturb the general rule, applied in Smith, that a court may instruct
the jury only on matters supported by the evidence. Accord 9C Charles A. Wright
& Arthur R. Miller, Federal Practice & Procedure § 2556, at 133 (3d ed.
2008).
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the court asked “whether [this] particular case involve[d] mixed motives,”
id., and answered that it did not. In so doing, it did not abuse its discretion.
AFFIRMED.
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