Tina VARLESI, Plaintiff-Appellee, v. WAYNE STATE UNIVERSITY, et al., Defendants-Appellants.
No. 14-1862.
United States Court of Appeals, Sixth Circuit.
March 7, 2016.
Before: BATCHELDER, McKEAGUE, and STRANCH, Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge.
I.
In 2006, Tina Varlesi graduated from college with excellent grades, a degree in psychology, and aspirations of being a social worker. That fall, she enrolled at WSU to obtain an M.S. in Social Work, which is a two-year, graduate program with both classroom coursework and hands-on “field” work doing actual social work at an agency under the tutelage of a (purportedly) licensed, qualified social worker. She was not an employee, nor was she even a volunteer or an intern; she was a student paying WSU for this experience via tuition and fees.
Varlesi‘s first year performance was outstanding: excellent grades in her classes and a “satisfactory” (the highest possible grade) in both of her field placements.
That fall semester, beginning September 2007, Varlesi‘s “faculty advisor,” Carol Premo, placed her at the Veteran‘s Administration (VA) Hospital under a “field instructor” named Pamela Mackey, a placement that was problematic from the beginning, even before Varlesi discovered her pregnancy (circa September 24, 2007).2 Varlesi did not like the placement at the VA and Mackey did not like Varlesi, complaining extensively to Premo and ultimately terminating the placement early. When Varlesi accused Mackey of pregnancy discrimination, Premo summarily rejected the accusation and did not investigate. But, despite Mackey‘s scathing report, Premo did not fail Varlesi from that placement. Instead, Premo passed Varlesi and placed her at the Salvation Army Adult Rehabilitation Center (an all-male rehabilitation center for ex-convicts, drug addicts, etc.) for the spring semester, under a field instructor named Joyce Stefanski, with the expectation that Varlesi would also make up the incomplete hours from the fall semester.
Varlesi began the spring semester, her final semester in the program, on January 7, 2008, at the Salvation Army placement and Stefanski addressed her obvious pregnancy immediately, ordering her not to drive after dark or in bad weather, questioning her marital status and living arrangements, and announcing that though she had “had relations” with someone, the men at the rehab “can look but they cannot touch.” Other students were present for this uncomfortable conversation. And, within days, Stefanski was complaining to Premo about Varlesi‘s alleged underperformance, poor attendance, and bad attitude. There was also a separate problem. On January 11, 2008, another student, Amber Bergin (one of three other students Premo had placed at the Salvation Army), sent a mass email critical of the placement experience and of Stefanski personally, pointing out, among other things, that Stefanski was not a licensed social worker, or even actually a social worker, as was required by the Manual. The email infuriated Stefanski and prompted a meeting on January 14, 2008, during which Stefanski told Premo she wanted to be rid of Varlesi, and Varlesi requested to be reassigned. Premo refused. The placement continued.
Two weeks later, on January 27, 2008, there was another meeting, this one at Varlesi‘s request, attended by Varlesi, Stefanski, Premo, and Najor-Durack (Premo‘s boss, the Director of Field Education). During this meeting, Varlesi directly accused Stefanski of pregnancy discrimination. Stefanski denied any discrimination but said she had told Varlesi repeatedly to stop “rubbing her belly”
The January 27th meeting did not resolve or improve the situation. Stefanski continued to hound Varlesi, who complained to the WSU Office of Equal Opportunity, the WSU Ombudsman, and Najor-Durack. Varlesi also hired an attorney. Premo was angry at Varlesi for going over her head and scolded her about it. But Premo never criticized Varlesi‘s performance or warned her that she was failing the placement. In fact, when Varlesi sent Premo an email that she thought things were improving, Premo responded (in her only email response to Varlesi‘s many emails), on February 2, 2008, with: “You have no idea how much that pleases me. I knew I was backing a winner.” R. 196-1.
Stefanski was still complaining to Premo, but neither ever put anything in writing.
But the situation had not actually improved, and Varlesi requested yet another meeting, which occurred on March 17, 2008, and comprised Varlesi, Stefanski, Premo, and Gary Gillow (Stefanski‘s boss). Stefanski again complained about Varlesi‘s rubbing her belly, wearing tight clothing, and stimulating the men with her pregnancy; Premo again supported Stefanski. When Varlesi again raised the pregnancy discrimination, and her complaints about it, Premo scolded her again and instructed her that she was not to talk to Najor-Durack or others about pregnancy discrimination. But no one criticized Varlesi‘s work quality and, oddly, they even discussed where she wanted to work when she completed her degree. When Varlesi worried about Stefanski‘s malevolence, Premo assured her that she (Varlesi) was “doing great,” that Stefanski had no authority to fail her, and in fact, Stefanski had never given anyone a failing evaluation. Nonetheless, Stefanski continued to hound Varlesi about her belly, her cloth-
On April 15, 2008, Stefanski gave Varlesi a failing evaluation. Moreover, as the district court noted, “WSU admit[ted] that Stefanski‘s evaluation of [Varlesi] was the worst evaluation any WSU social worker student ha[d] ever received.” R. 81 at 9 n. 4.4 Prior to and during the eventual trial, Varlesi‘s attorney established that this evaluation was procedurally deficient and much of it was unsubstantiated, biased, and substantively untrue. At the time of the evaluation, Varlesi had complained to Premo, Najor-Durack, and others that it was untrue, unfair, and based on discrimination, but her complaints fell on deaf ears. She emailed, called, and wrote a lengthy point-by-point rebuttal for Premo, who ignored her and the rebuttal. On April 29, 2008, Premo gave Varlesi a failing grade in the placement, thus preventing her from obtaining the degree from the social work program.
That same day, Varlesi filed a formal discrimination charge with WSU, which WSU rejected on the basis that the School of Social Work had already investigated and dismissed it. At trial, however, Dean Vroom confirmed that there had been no such investigation. Meanwhile, Najor-Durack provided information to Vroom to oppose Varlesi‘s grade appeal and, relying on that information, Vroom denied the appeal and denied Varlesi‘s request for readmission to the program. Eventually, at trial, Varlesi‘s counsel established that Najor-Durack had skewed or fabricated the information against Varlesi, that Vroom had not followed the School‘s procedures, and that the approach and the harsh result were unique in the history of the program.
Varlesi brought this action in federal court, claiming pregnancy discrimination and retaliation in violation of Title IX and Michigan‘s ELCRA, among other things. She named the four defendants already discussed herein as well as Stefanski, the Salvation Army, and three WSU panel members who had denied her reinstatement. The parties filed numerous motions with the district court and have appealed the court‘s decisions as to several of those motions.
During discovery, the defendants sought an independent medical examination (IME) of Varlesi, in order to challenge Varlesi‘s claim of damages based on emotional harm. The court denied the motion, explaining that Varlesi was not invoking an expert or asserting any medical harm, she was just claiming “garden variety” emotional harm resulting from the ordeal. This is typical of almost every tort case, and every tort case does not necessitate an IME. Here, the court determined that an IME was not clearly necessary at that still-early stage of discovery, denied it without prejudice, and specifically allowed that the defendants could refile the motion, if no later than 90 days before trial. R. 53 at 6; PgID 558. The defendants never refiled the motion.
The defendants moved for summary judgment. The court granted summary judgment to the Salvation Army upon finding that it is not an educational institution subject to Title IX or Michigan‘s ELCRA counterpart, R. 81 at 15; nor was the
[Varlesi] easily creates a fact issue on the question of whether the WSU Defendants’ proffered reason—namely, performance issues—was the true reason for the failing grade, in light of Premo‘s statement to [Varlesi] a mere two weeks before Stefanski issued her review of [Varlesi][,] that [Varlesi] was “doing great.” Premo Dep. at 353. The WSU Defendants are hard pressed to rely on performance deficiencies when [Varlesi]‘s ultimate evaluator—Premo—told [Varlesi] as the semester was nearing an end that she was “doing great.” Nothing catastrophic happened between the time of that statement and the issuance of her final grade.
R. 81 at 38-39; see also R. 81 at 45. Thus, the two claims proceeding to trial were pregnancy discrimination and retaliation, against Premo, Najor-Durack, Vroom, and WSU.
The defendants moved in limine to exclude certain evidence from trial, including Varlesi‘s testimony about her emotional damages. The court granted that motion in part; allowing Varlesi to testify but disallowing any expert statement or hearsay. R. 118 at 5. The defendants sought to exclude certain other evidence as irrelevant, including: (1) discriminatory statements by Salvation Army employees, (2) violations of the Field Education Manual, and (3) that a WSU employee told Varlesi to omit accusations of discrimination from her application for reinstatement. The court found this evidence relevant and denied the motion. Meanwhile, Varlesi moved to exclude evidence of her 2002 hospitalization and the termination of her marital engagement in 2007. The court found this evidence relevant to Varlesi‘s claims of emotional distress, but nonetheless excluded the evidence as too prejudicial, unless Varlesi “open[ed] the door in her testimony about how she ha[d] been damaged emotionally.” R. 118 at 10.
Following a 13-day trial, the jury ruled for Varlesi, finding the defendants liable and awarding $848,690 in damages ($148,690 economic; $200,000 future; and $500,000 noneconomic). The district court entered judgment according to that verdict.
The defendants moved for judgment as a matter of law, a new trial, and a remittitur of the damages award, claiming that (1) the verdict was contrary to the evidence, (2) the damages were excessive, (3) the trial was unfair, (4) the court erred in certain evidentiary rulings, (5) the jury instructions were improper, and (6) Varlesi‘s counsel committed some unarticulated misconduct. R. 169 at 2. The district court denied the motion in its entirety. The defendants appeal.
II.
Because we review most of these claims for abuse of discretion and because most of the defendants’ arguments here are that the district court abused its discretion by
A.
The defendants claim that the district court abused its discretion by excluding certain evidence about Varlesi‘s 2002 hospitalization for mental health issues and the termination of her marital engagement in the summer of 2007. Specifically, the defendants argue that Varlesi “opened the door” to admission of this evidence of possible other causes of her emotional distress with her testimony about her ongoing emotional distress. The court found the evidence relevant but much more prejudicial than probative and held that Varlesi did not open the door.
On appeal, the defendants cite Maday v. Public Libraries, 480 F.3d 815 (6th Cir. 2007), as support for their proposition that “[e]vidence of alternative sources of emotional distress, such as concurrent psychiatric illnesses or marital problems, should be admitted at trial.” Apt. Br. at 43 (emphasis added). First, it is a stretch to say that Maday stands for any such proposition and there are numerous reasonable arguments that it does not. See Maday, 480 F.3d at 821 (holding that the plaintiff had waived any purported social-worker-client-confidentiality privilege by putting her emotional state at issue in the case). But, even accepting the proposition as defendants state it, “should” is not “must,” and neither the defendants nor Maday suggest that
Instead, the defendants disagree with the court‘s weighing of the evidence, contending that when Varlesi testified about her ongoing emotional harm, the evidence of her 2002 mental health and 2007 relationship turmoil “outweigh[ed] any prejudice because it directly rebut[ted] [her] allegations” that she was “harmed only by Defendants.” Apt. Br. at 46. Varlesi points out that the court excluded only two specific things: (1) her psychiatric hospitalization in 2002 and (2) the “reason” for the termination of her marital engagement in 2007. The defendants could, and did, raise (and question Varlesi and others about) alternative sources of emotional distress, including: that Varlesi‘s fiance and father of her child left her, her mother‘s significant health issues, the deaths of close family and friends, the birth of her son and her being a single mother, and the rigors of the litigation in this case. That is, the defendants did present significant evidence to rebut any suggestion that Varlesi was “harmed only by Defendants.”
On the whole, the court did not rely on any clearly erroneous facts; it relied on the record facts and its decision is entitled to substantial deference. See Peoplemark, 732 F.3d at 590. We find no abuse of discretion in this determination.
B.
The defendants claim that the district court abused its discretion by with-
The two letters in question were written by Pamela Mackey, the field instructor at the VA Hospital where Varlesi did her fall 2007 semester placement; were very critical of Varlesi‘s performance at that placement; and were sent to Premo as attachments to an email. But the letters themselves were undated. Moreover, Mackey testified that she might have written the letters after Premo had already failed Varlesi, and this revelation was exacerbated when Najor-Durack testified that, after failing Varlesi, Najor-Durack had solicited negative information from Mackey about Varlesi to justify the failing. Thus the district court had concerns that the letters were after-the-fact fabrications rather than contemporaneous reports that would have justified Premo‘s decision at the time, and withheld admission until the defendants produced the dated email correspondence that established when Mackey had actually sent the letters to Premo.
Even assuming these letters were relevant (and that is questionable, given that Premo passed Varlesi in that fall 2007 placement despite these letters and Mackey‘s opinion should have had no bearing on the grade for the spring 2008 Salvation Army placement), this was merely an exercise of the court‘s
C.
The defendants argue that, by allowing the jury to award future damages, the district court abused its discretion, first because any award of future damages would be too speculative as a matter of law due to Varlesi‘s young age; and second, because Varlesi did not prove that she had mitigated her damages. Neither of these arguments has merit.
The defendants cite several cases as support for their proposition that Varlesi‘s young age necessarily rendered any future damages unavailable as a matter of law, but none of those cases actually holds (or even suggests) that her “young age” is determinative. And that is not the law. The law requires that, because future damages (a.k.a. front pay) are “often speculative,” the district court must have “flexibility and wide discretion” in crafting such a remedy. Shore v. Fed. Express Corp., 42 F.3d 373, 378 (6th Cir. 1994). And there are certain factors that must guide the award of future damages, including mitigation of damages, “the availability of employment opportunities, the period within which one by reasonable efforts may be reemployed, the employee‘s work and life expectancy, [and] the discount tables to determine the present value of future damages,” among others. Roush v. KFC Nat‘l Mgmt. Co., 10 F.3d 392, 399 (6th Cir. 1993). Varlesi provided evidence about, and the district court considered, these factors, including her mitigation efforts, her inability
As for mitigation, it was defendants’ burden to prove that Varlesi did not mitigate, see Madden v. Chattanooga City Wide Serv. Dep‘t, 549 F.3d 666, 680 (6th Cir. 2008), and they failed to persuade the district court or the jury. Given that the record does contain evidence of Varlesi‘s mitigation efforts, this is yet another argument about the weighing of the evidence.
The court did not rely on any clearly erroneous facts; it relied on the record facts and its decision is entitled to substantial deference. See Peoplemark, 732 F.3d at 590. We find no abuse of discretion in this determination.
D.
The defendants argue that the district court abused its discretion by denying their motion for remittitur because: (1) the amount is so excessive that it shocks the conscience, (2) Varlesi could invest the award and receive interest from that investment in perpetuity, and (3) Varlesi‘s evidence did not justify the award. The defendants cite several cases, but none is persuasive or even clearly applicable. This is just another disagreement about the weighing of the evidence.
This award does not shock the conscience. Remittitur “should be granted only if the award clearly exceeds the amount which, under the evidence in the case, was the maximum that a jury could reasonably find to be compensatory for the plaintiff‘s loss.” Roush, 10 F.3d at 397 (emphasis in the original; quotation marks omitted). The evidence here demonstrates that the defendants’ discrimination and retaliation deprived Varlesi of the opportunity for employment in her chosen field by denying her a graduate degree and denying her the ability to obtain that degree elsewhere, thus causing actual damages and foreseeable emotional harm. This award does not necessitate remittitur.
The defendants’ second argument—that Varlesi could invest the award at 5% interest and receive dividends in perpetuity—is irrelevant and wholly frivolous. How a litigant might spend, save, or invest an award has no bearing on the propriety of that award.
Finally, Varlesi produced evidence that the jury ultimately believed and found informative in its calculation of damages. The defendants disagree with the weight of that evidence and they had their opportunity to counter it at trial. They failed to do so and their continued disagreement does not mean the court abused its discretion.
The court did not rely on any clearly erroneous facts; it relied on the record facts and its decision is entitled to substantial deference. See Peoplemark, 732 F.3d at 590. Again, we find no abuse of discretion.
E.
The defendants claim that the district court abused its discretion by admitting (1) the School of Social Work Field Manual and the defendants’ failure to abide by it, and (2) certain pregnancy-related derogatory statements made to Varlesi by Salvation Army employees. Just to be clear, the district court admitted the former as evidence that the defendants’ post-hoc explanation was simply pretext and the latter as proof that the defendants were fully aware of the discrimination.
The defendants argue that the evidence was misleading, irrelevant, and prejudicial; that the potential for prejudice and confusion outweighed the probative value. But
F.
The defendants claim the district court abused its discretion by refusing to give certain requested jury instructions because they were correct statements of the law. To be sure, one factor in a court‘s determination of the propriety of a requested jury instruction is that it is a correct statement of the law. See Williams v. Eau Claire Pub. Sch., 397 F.3d 441, 445 (6th Cir. 2005) (citation omitted). But, even when that is so, it is nonetheless improper for a court “to instruct the jury on an issue when there has been insufficient evidence presented to support a jury finding on that issue.” Tuttle v. Metro. Gov‘t of Nashville, 474 F.3d 307, 322 (6th Cir. 2007).
The first requested instruction was the same-actor-inference instruction; i.e., the same actor (Premo) passed Varlesi in the fall 2007 semester but failed her in spring 2008, despite Varlesi‘s pregnancy and discrimination claims in both terms, so the jury could infer that after first giving Varlesi a passing grade, Premo would not have discriminated or retaliated against her four months later. But Premo‘s attitude and the surrounding circumstances changed markedly during this period. When Premo passed Varlesi in her VA Hospital placement (fall 2007 semester), Premo was unsure of exactly what had occurred there, or whom to believe. And while Varlesi had raised accusations of pregnancy discrimination, she had not filed any formal complaints and she certainly had not directly disobeyed Premo‘s order that she not complain to Najor-Durack. By the end of spring 2008, however, after four intense months of pregnancy discrimination, accusations, meetings, discrimination complaints, and threats, Premo was—by her own admission—fed up with Varlesi. Simply put, the evidence did not support the giving of this instruction.
The second requested instruction was the presumption-of-regularity instruction; i.e., the jury could presume that the defendants had regularly performed their duties. But the evidence was to the contrary. The defendants did not perform their duties according to the written policies contained in the School of Social Work Field Manual. In clear violation of, or disregard for, the policies, Premo conducted her duties as “faculty advisor” to Varlesi without any plan, structure, or consistency; kept no notes or records; did almost nothing to alleviate a very problematic situation involving Varlesi‘s pregnancy, instead condoning and joining the discrimination; ordered Varlesi—in direct contravention of the Manual and the law—to stop raising discrimination complaints to Premo‘s superiors; and then, by Premo‘s own admission, failed Varlesi in retaliation for making those complaints. Najor-Durack joined in the pregnancy discrimination (ordering Varlesi to wear looser maternity clothing and advising her to drop out of the program because she was pregnant), and then fabricated evidence to support the failing grade and prevent a fair grade appeal or reinstatement review. Vroom ignored the Manual and rubber-stamped the failing grade without any investigation; she also agreed with the dismissal of the discrimination complaint despite knowing that no actual investigation or inquiry had ever been un-
The third requested instruction was the business-judgment instruction, i.e., WSU had discretion over its business judgments, even if they were wrong. But the decision to discriminate and retaliate against a student, and then cover it up, is not a business judgment.
As the district court found, the evidence did not support these requested instructions. The court did not rely on any clearly erroneous facts; it relied on the record facts and its decision is entitled to substantial deference. See Peoplemark, 732 F.3d at 590. We find no abuse of discretion in these determinations.
G.
The defendants argue that the district court used the wrong standard of causation for the retaliation claim, based on University of Texas Southwest Medical Center v. Nassar, — U.S. —, 133 S. Ct. 2517, 2526, 2533, 186 L.Ed.2d 503 (2013), which held that “Title VII retaliation claims must be proved according to traditional principles of but-for causation.” That is, the defendants argue that Varlesi was required to prove that Premo gave her the failing grade “because of” her complaining to Premo‘s superiors about the discrimination; it is not enough that the complaining (i.e., protected activity) was merely a “motivating” or “substantial” factor influencing the failing grade (i.e., retaliatory action).
The defendants’ contend that the court instructed the jury that Varlesi had only to prove that the protected activity was a “significant factor” motivating Premo‘s retaliatory act. See Apt. Br. at 58-59. Two of the court‘s actual instructions are pertinent here:
Federal and state law also prohibit an educational institution from retaliating against a student because the student has engaged in a protected activity.
R. 186 at 185, lines 7-10; PgID 8848 (emphasis added).
To establish a causal connection [for retaliation], Plaintiff must demonstrate that her participation in a protected activity was a significant factor in Defendants’ adverse decisions.
R. 186 at 187, lines 21-24; PgID 8850 (emphasis added).
But Nassar, a Title VII case, went to some lengths to differentiate Title VII from Title IX with regard to prohibitions on retaliation. See Nassar, 133 S. Ct. at 2530-31. Moreover, this trial predated the Court‘s issuance of Nassar by about five months, so the difference between “because” and “significant factor” was not meaningful at the time and, in fact, “significant factor” was actually the law. And the jury verdict form was framed as an express question that used “because” and not “significant factor“:
Question 2
Do you find that any one of, or more than one of the Defendants ... retaliated against Plaintiff by awarding her a grade of “unsatisfactory“, dismissing her from the Wayne State University and/or failing to reinstate her because she complained about pregnancy discrimination?
R. 128 (emphasis added). The jury voted yes.
The Fourth Circuit considered a similar situation and rejected the employer‘s argument that Nassar‘s change in the law warranted a new trial, explaining:
[D]espite the improper instructions, it is not clear that the jury actually determined [the defendant]‘s liability under the incorrect standard. The jury‘s verdict sheet may constitute “evidence to
the contrary” of our typical assumption that the jury followed the district court‘s instruction on this claim. On its verdict sheet, the jury found that [the plaintiff] had proven “he was terminated from his employment by the defendant because of his opposition to activity made unlawful under Title VII.” Under Nassar, the use of “because of” indicates the existence of a but-for causal relationship. . . . The jury‘s finding that there was no lawful reason for [the plaintiff]‘s termination indicates that it could have concluded retaliation was a but-for cause of the adverse employment action.
E.E.O.C v. A.C. Widenhouse, Inc., 576 Fed.Appx. 227, 231-32 (4th Cir. 2014) (editorial marks, citations, and certain quotation marks omitted). Notably, like Nassar, Widenhouse was a Title VII case, whereas the present case is a Title IX discrimination and retaliation case.
But the basic premise holds: the jury here found expressly that the defendants retaliated against Varlesi because she complained, “because” means “but-for” under Nassar, and the defendants have not shown that the outcome would have been different had the court consistently used “because” instead of “significant factor” in its oral instructions. Therefore, even assuming that Nassar applies to Title IX claims, we conclude as the Fourth Circuit did in Widenhouse that the defendants cannot demonstrate prejudice from this perceived error and it is consequently not reversible.
H.
The defendants claim that the district court erred by refusing a directed verdict based on insufficient evidence.
I.
The defendants argue that the district court should have granted them summary judgment, for the reasons “discussed in Defendants’ Motion for Summary Judgment.” Apt. Br. at 60. But “a losing party may not appeal an order denying summary judgment after a full trial on the merits.” Hill v. Homeward Residential, Inc., 799 F.3d 544, 549-50 (6th Cir. 2015).
This claim is frivolous.
For all of the foregoing reasons, we AFFIRM the judgment of the district court.