Mixed Motive retaliation lives

A divided Fifth Circuit panel has ruled that a mixed motive instruction in a Title VII retaliation case is appropriate, does not require direct evidence to support it, and is not inconsistent with the Supreme Court's decision in Gross v. FBL Financial Services, Inc., 129 S. Ct. 23 43 (2009). The majority opinion (Reavely and Wiener) is a must read for practitioners in the Fifth Circuit. It presents the past and present law of the Circuit in a straightforward, understandable opinion. The dissent (Jolly) notes the decision conflicts with the Seventh Circuit's ruling in Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 961 (7th Cir. 2010).