820 F.3d 814
6th Cir.2016Background
- Dr. Sheryl Szeinbach, a tenured pharmacy professor at Ohio State University (OSU), sued OSU under Title VII for discrimination and retaliation tied to her support of a colleague and for dissemination of an investigation into her publication practices.
- A jury awarded Szeinbach $513,368: $300,000 in compensatory damages (maximum under 42 U.S.C. § 1981a(b)(3)) and $213,368 as back pay (alleged lost earnings relative to comparable professors elsewhere).
- OSU moved for remittitur; the district court reduced the award to $300,000, concluding (1) the expert’s back-pay methodology was flawed and (2) back pay should be limited to what the plaintiff would have earned from the discriminating employer.
- On appeal, the Sixth Circuit rejected the district court’s categorical rule that back pay must be measured only against the defendant-employer, holding third-party offers can inform back-pay calculations in appropriate circumstances.
- The Sixth Circuit affirmed the district court’s remittitur on the separate ground that Szeinbach failed to prove entitlement to back pay with reasonable certainty: she had no job offers, no interviews, and voluntarily ceased job searches; her evidence was therefore speculative.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether back pay may be measured by what the plaintiff would have earned from a third-party employer | Back pay can be based on lost earnings from jobs plaintiff would have obtained absent defendant’s conduct (e.g., higher-paying universities) | Back pay must be limited to what the discriminating employer would have paid | Court: Third-party offers can be the proper comparator; district court erred to the extent it barred such a measure |
| Whether Szeinbach proved entitlement to $213,368 back pay with reasonable certainty | Expert testimony comparing OSU salaries to other universities plus plaintiff’s testimony about recruitment contacts sufficed | Evidence was speculative: no offers, no interviews, plaintiff stopped pursuing positions; expert methodology flawed | Court: Evidence was too speculative; plaintiff failed to prove back pay with reasonable certainty; remittitur affirmed |
Key Cases Cited
- Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843 (2001) (front pay is equitable and not subject to Title VII compensatory cap)
- Reeb v. Ohio Dep’t of Rehab. & Corr., 435 F.3d 639 (6th Cir. 2006) (back pay is an equitable remedy)
- Howe v. City of Akron, 801 F.3d 718 (6th Cir. 2015) (methodology for calculating back pay and remedy purpose)
- Denhof v. City of Grand Rapids, 494 F.3d 534 (6th Cir. 2007) (standard for remittitur review)
- McMahon v. Libbey-Owens-Ford Co., 870 F.2d 1073 (6th Cir. 1989) (back pay must be proved with reasonable certainty)
- Nassar v. Univ. of Texas Sw. Med. Ctr., 674 F.3d 448 (5th Cir. 2012) (back pay may be measured by what plaintiff would have earned from third-party employer)