DR. RACHEL TUDOR, Plaintiff - Appellant/Cross-Appellee, v. SOUTHEASTERN OKLAHOMA STATE UNIVERSITY; THE REGIONAL UNIVERSITY SYSTEM OF OKLAHOMA, Defendants - Appellees/Cross-Appellants.
Nos. 18-6102 & 18-6165
United States Court of Appeals for the Tenth Circuit
September 13, 2021
PUBLISH
Amici Curiae.
Appeals from the United States District Court for the Western District of Oklahoma (D.C. No. 5:15-CV-00324-C)
Jillian T. Weiss, Law Office of Jillian T. Weiss, P.C., Brooklyn, New York (Ezra Ishmael Young, Law Office of Ezra Young, Brooklyn, New York; Brittany M. Novotny, National Litigation Law Group PLLC, Oklahoma City, Oklahoma; Marie Eisela Galindo, Law Office of Marie E. Galindo, Lubbock, Texas, on the briefs), for Plaintiff-Appellant.
Zachary West, Assistant Solicitor General (Andy N. Ferguson, Staff Attorney, with him on the briefs), Office of Attorney General, Oklahoma City, Oklahoma, for Defendants-Appellees.
Erica C. Lai, Cohen & Gresser LLP, Washington, D.C. (Emily Martin and Sunu P. Chandy, National Women’s Law Center, Washington, D.C.; Melissa H. Maxman and
Gregory R. Nevins, Lambda Legal Defense and Education Fund Inc., Atlanta, Georgia, for Amicus Curiae Lambda Legal.
Before HARTZ, EBEL, and McHUGH Circuit Judges.
EBEL, Circuit Judge.
Dr. Rachel Tudor sued her former employer, Southeastern Oklahoma State University, under Title VII, claiming discrimination on the basis of sex, retaliation, and a hostile work environment after Southeastern denied her tenure, denied her the opportunity to reapply for tenure, and ultimately terminated her from the university. A jury found in favor of Dr. Tudor on her discrimination and retaliation claims and awarded her damages. The district court then applied the Title VII statutory cap to reduce the jury’s award, denied Dr. Tudor reinstatement, and awarded front pay.
Both parties appeal. Southeastern challenges evidentiary rulings and the jury verdict. Dr. Tudor, on the other hand, attacks several of the court’s post-verdict rulings, challenging the district court’s denial of reinstatement, calculation of front pay, and application of the statutory damages cap.
We reject Southeastern’s challenges. But, regarding Dr. Tudor’s appeal, we hold that there was error both in denying reinstatement and in calculating front pay, although there was no error in applying the Title VII damages cap. Exercising
I. BACKGROUND1
A. General Background
Dr. Tudor is a transgender woman who is a dual citizen of the United States and Chickasaw Nation. She earned a Ph.D. in English from the University of Oklahoma in 2000. In 2004, Dr. Tudor began working at Southeastern Oklahoma State University as a tenure-track assistant professor in the English, Humanities, and Languages Department (English Department). Southeastern is part of the Regional University System of Oklahoma (RUSO), the other defendant in this case.
When Dr. Tudor started teaching at Southeastern, she presented as a male. Approximately three years later, in the spring of 2007, however, Dr. Tudor informed Southeastern’s Human Resources Office that she planned to transition from male to female over the summer. She returned to teaching in the next semester now presenting as a woman, Rachel Tudor.
B. Tenure Applications
Southeastern’s tenure application process involves review of the applicant’s portfolio by a faculty committee, the department chair, the college dean, and the vice
1. Application for Tenure in 2008
In fall 2008, Dr. Tudor submitted her tenure portfolio to a faculty committee, the first level of review in the application process. The committee voted against tenure, and Dr. Tudor withdrew the application.
2. Application for Tenure in 2009-10
In fall 2009, Dr. Tudor again applied for tenure, providing evidence of all three above criteria—teaching, scholarship, and service—in her portfolio. For example, her portfolio contained a regional conference presentation, two articles accepted for publication in peer-reviewed journals, a poetry book, and service on multiple committees at Southeastern.
The five-faculty-member tenure committee recommended Dr. Tudor receive tenure by a 4-to-1 vote (Dr. Randy Prus, who would only later become the
Before receiving President Minks’s denial, Dr. Tudor met with Dean Scoufos, who told her that if she withdrew her current application, she could reapply for tenure in the future. Ultimately, Dr. Tudor did not withdraw her application, and President Minks denied it. After Dr. Tudor filed grievances with the faculty appellate committee regarding the lack of any explanation for the denial, Vice President McMillan identified President Minks’s rationale as based on deficiencies in scholarship and service.
In August 2010, Dr. Tudor filed discrimination complaints with the faculty appellate committee, Southeastern’s affirmative-action officer, and the U.S. Department of Education, which referred the complaint to the Equal Employment Opportunity Commission (EEOC).
3. Application for Tenure in 2010-11
In fall 2010, believing she could reapply for tenure, Dr. Tudor again submitted her tenure application, updated to account for her recent work. In October 2010, after the new department chair, Dr. Prus, had already begun assembling Dr. Tudor’s tenure review committee, Dr. Prus and Dr. Tudor received a memo from Vice
Being prevented from reapplying in her seventh year at Southeastern was highly problematic for Dr. Tudor because [t]enure-track faculty are only given seven years to be granted tenure or else [they’re] fired. (Tudor R. Vol. 6 at 114.) Despite the policy manual language, Dr. Tudor, who served on the faculty senate’s faculty policies and procedures committee, had never heard of a rule precluding a sixth- or seventh-year faculty member from reapplying for tenure after a denial.
Dr. Tudor again appealed to the faculty appellate committee, which determined that the rules permitted Dr. Tudor to reapply. After an unprecedented impasse between the faculty appellate committee and President Minks’s designee, President Minks ultimately decided that Dr. Tudor could not reapply in March 2011. The faculty senate asked him to reverse the decision, but he declined. As a result, Dr. Tudor’s employment contract with Southeastern expired, and Southeastern did not renew it. Dr. Tudor left Southeastern in spring 2011.
C. Collin College Position
Fourteen months after leaving Southeastern, Dr. Tudor obtained an English teaching position on an untenured, one-year contract basis at Collin College, a two-year community college in Texas. After Dr. Tudor taught at Collin College for four years, that college declined to renew Dr. Tudor’s contract, citing negative evaluations and poor-quality teaching. She has since looked for work but has remained unemployed.
D. DOJ Complaint
The DOJ filed a complaint against Southeastern in March 2015, alleging sex discrimination and retaliation in violation of Title VII. Dr. Tudor intervened in this action with her own complaint in May 2015, bringing claims of discrimination, retaliation, and hostile work environment. In August 2017, Southeastern and the DOJ settled, resulting in the dismissal of the DOJ complaint. As part of the Southeastern/DOJ Settlement Agreement, Southeastern agreed to certain policy changes aimed at reducing discrimination at the university.
E. Trial and Judgment
The litigation between Dr. Tudor and Southeastern proceeded. After the district court rejected Southeastern’s motion for summary judgment and various other pre-trial motions, including a motion to exclude the testimony of Dr. Tudor’s tenure
The jury found in Dr. Tudor’s favor on her discrimination and retaliation claims, but in Southeastern’s favor on Dr. Tudor’s hostile work environment claim. Using the court’s general verdict form (to which neither party objected), the jury awarded Dr. Tudor a lump sum of $1.165 million in damages, encompassing both backpay and compensation for physical or mental distress.
After the verdict, the district court requested additional briefing from the parties on the equitable issues of reinstatement and front pay. Dr. Tudor filed a motion for reinstatement, but the district court denied that request. She then moved for reconsideration and, in the alternative, requested $2,032,789.51 in front pay. The district court declined reconsideration and awarded Dr. Tudor $60,040.77 in front pay. Dr. Tudor lastly moved for reconsideration of the front pay award, which the court denied.
Finally, the court requested briefing on the jury award and the Title VII damages cap. It ultimately applied that $300,000 cap to the $1.165 million jury award, resulting in an award of $360,040.77. This amount reflected $60,040.77 that the court attributed to uncapped backpay and $300,000 in capped compensatory damages.
The court entered judgment and Dr. Tudor timely appealed. Southeastern then renewed its motion for judgment as a matter of law and moved for a new trial. The
II. DISCUSSION
We consider first Southeastern’s appeal challenging evidentiary rulings and the jury verdict, before turning to Dr. Tudor’s more substantive appeal addressing post-verdict rulings.
A. Southeastern’s Cross-Appeal
Southeastern challenges the district court’s decision to deny its motion to exclude Dr. Tudor’s tenure expert, Dr. Parker, its motion for summary judgment, and its motion for judgment as a matter of law. None of these challenges have merit, and we affirm in each instance. Before turning to Southeastern’s claims, we first discuss the impact of the Supreme Court’s recent decision in Bostock v. Clayton County, 140 S. Ct. 1731 (2020).
1. Bostock Arguments
While these appeals were pending, the Supreme Court decided Bostock and the parties here submitted additional briefing on that case. We apply Bostock in resolving this appeal. See SEC v. Mick Stack Assocs., Inc., 675 F.2d 1148, 1149 (10th Cir. 1982).
Title VII makes it unlawful for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s . . . sex.
Bostock overrules this Court’s previous holdings in Etsitty v. Utah Transit Authority, 502 F.3d 1215 (10th Cir. 2007), that transgender persons are not a protected class under Title VII, that discrimination against a [transgender person] based on the person’s status as a [transgender person] is not discrimination because of sex under Title VII, and that a defendant may not claim protection under Title VII based upon her [transgender status] per se. Id. at 1220, 1221, 1224. As a result, Etsitty is no longer valid precedent to the extent that it conflicts with Bostock. United States v. Brooks, 751 F.3d 1204, 1209 (10th Cir. 2014).
In the wake of Bostock, it is now clear that transgender discrimination, like that complained of by Dr. Tudor, is discrimination because of sex prohibited under Title VII. Accordingly, Southeastern concedes that Bostock invalidates its arguments in reliance on Etsitty that transgender discrimination is not enough alone to make out
2. Tenure Expert
Southeastern first challenges the district court’s denial of its motion to exclude the testimony of Dr. Tudor’s tenure expert, Dr. Parker, arguing that the district court abandoned its gatekeeping role and that, even if the court performed this role, it should have excluded the expert testimony as unreliable, subjective, and methodologically unsound. Dr. Tudor disputed Southeastern’s argument on its merits, but also argued that Southeastern waived this challenge.
This Court reviews de novo whether the district court performed its gatekeeping role. Adamscheck v. Am. Fam. Mut. Ins. Co., 818 F.3d 576, 586 (10th Cir. 2016). If the district court performed its gatekeeping role, this Court reviews the
a. Legal Background
In this case, the district court rejected Southeastern’s challenges to Dr. Parker’s testimony—that it was unreliable, inherently subjective, lacking in expertise, irrelevant, and unhelpful to the jury—in a four-page order. Although that order includes minimal specificity and detail, we conclude that the gatekeeping role was satisfied.
In performing its gatekeeping role, the district court referenced
The district court did not abuse its discretion when it denied Southeastern’s motion and permitted Dr. Parker to testify. Dr. Parker’s methodology was rooted in his experience as an English professor having participated in over 100 promotion deliberations. It is well established that expert testimony can be based on such experience.
Southeastern’s arguments that Dr. Parker was unqualified because he had no experience in the specific areas of English studied by the applicants, nor any experience working at Southeastern or in Oklahoma, are unconvincing.
It was also reasonable for the district court to conclude that Dr. Parker’s testimony would be relevant and helpful to the jury. Many laypeople are likely unfamiliar with the tenure process, and a comparison of Dr. Tudor’s application to those of successful applicants could shed light on whether Southeastern’s reasons for the tenure denial—lack of scholarship and service—were disingenuous.
To the extent that Southeastern had valid concerns regarding Dr. Parker’s methodology, such as sample size and failure to consider denied applications, these were appropriate topics for cross-examination. See Daubert, 509 U.S. at 596. District courts are given broad discretion in expert witness determinations, Dodge, 328 F.3d at 1223, and we cannot say that the district court abused that discretion in this case.
3. Summary Judgment
Next, because a jury trial has already occurred, we reject Southeastern’s challenge to the district court’s denial of its motion for summary judgment. Ortiz v. Jordan, 562 U.S. 180, 184 (2011) (Once the case proceeds to trial, the full record developed in court supersedes the record existing at the time of the summary judgment motion.).8 Even if we did consider Southeastern’s challenge, it has no merit in light of Bostock, 140 S. Ct. 1731.
4. Judgment as a Matter of Law
Southeastern lastly appeals the district court’s denial of its motion for judgment as a matter of law under
Judgment as a matter of law under
Southeastern contends that the district court erroneously denied its
Southeastern asserts that President Minks was the relevant decision-maker, and Dr. Tudor failed to present any evidence that he discriminated against Dr. Tudor when he denied her tenure. (SE Br. 45–46.) Dr. Tudor does not dispute President Minks is the ultimate decisionmaker; instead, she invokes the cat’s-paw theory of recovery. Under a cat’s-paw theory of recovery (also known as subordinate bias or rubber stamp theory), an employer who acts without discriminatory intent can be liable for a subordinate’s discriminatory animus if the employer uncritically relies on the biased subordinate’s reports and recommendations in deciding to take adverse employment action. Thomas v. Berry Plastics Corp., 803 F.3d 510, 514 (10th Cir. 2015). Here, Dr. Tudor contends she presented evidence from which a jury could conclude that President Minks rubberstamped Vice President McMillan’s decisions, and the latter’s decisions were based on discriminatory animus. (Tudor Reply 71–72.)
Evidence supporting this theory includes that President Minks delegated the responsibility to Vice President McMillan to provide the administration’s official rationale for Dr. Tudor’s tenure denial in 2009-10, and he did the same for the administration’s official decision to bar her tenure reapplication in 2010-11. (Id. at 72 (citing Tudor R. vol. 6 at 31 (President Minks’s letter in which he informs Dr. Tudor that he delegated the responsibility to Dr. McMillan for providing you with
Southeastern also contends Dr. Tudor did not raise the cat’s paw theory below, and the jury was not instructed on it, so it is waived. (SE Reply 22.) But by Southeastern’s own repeated and very explicit admissions, this was precisely the theory Dr. Tudor presented to the jury. Southeastern asserts: Dr. Tudor’s theory at trial was that the discrimination and retaliation originated with [Vice President] McMillan. During closing, [Dr. Tudor’s] attorney claimed that ‘[a]ll of this, it all went back to Doug McMillan’ and that ‘[Vice President] McMillan pulled the puppet strings to push Rachel out of that university.’ (SE Br. 20 (emphases added) (quoting Tr. vol. 5 at 837, 841); see also id. at 46 (stating Dr. Tudor’s entire theory of the
For all these reasons, we affirm the district court’s denial of Southeastern’s renewed motion for judgment as a matter of law.
B. Dr. Tudor’s Appeal
We now turn to Dr. Tudor’s appeal, which challenges several of the district court’s post-verdict remedy holdings. Dr. Tudor appeals the district court’s denial of her request for reinstatement, the district court’s front pay award, and its application of the
1. Reinstatement
After prevailing at trial, Dr. Tudor requested reinstatement with tenure. The district court denied that request, finding that “reinstatement is simply not feasible in this case.” (Tudor R. vol. 4 at 128.) This Court reviews the district court’s decision to deny reinstatement for abuse of discretion. Abuan v. Level 3 Commc’ns, Inc., 353 F.3d 1158, 1176 (10th Cir. 2003). We reverse, concluding on this record that Dr. Tudor is entitled to reinstatement with tenure.
a. Legal Background
Under
[i]f the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may . . . order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay . . . , or any other equitable relief as the court deems appropriate.
A court’s inquiry into whether reinstatement is appropriate after a jury verdict of discrimination and retaliation in plaintiff’s favor therefore does not take place on a level playing field. Instead, courts must start with the strong preference for reinstatement, and then ask if the defendant has overcome this presumption by establishing the existence of extreme hostility between the parties. See EEOC v. Prudential Fed. Sav. & Loan Ass’n, 763 F.2d 1166, 1173 (10th Cir. 1985) (remanding ADEA case where district court awarded front pay without explaining in the first instance why reinstatement was
To clarify, this test does not require complete harmony among the plaintiff, the employer, and other employees—a certain amount of hostility and friction among workers is to be tolerated and expected, especially following litigation. That there is some hostility, then, will not be enough to justify a denial of the preferred remedy of reinstatement. Put another way, the extreme hostility test is not a measure of affection between an employee, employer, and colleagues. The fondness, or lack thereof, that they feel for one another does not necessarily correlate with their ability to work together. There are plenty of workarounds and solutions making reinstatement possible in cases where some animosity exists, such as a remote office, a new supervisor, or a clear set of workplace guidelines. And, as discussed further below, some positions such as higher education teaching and scholarship are inherently fairly insulated from the adverse sentiments of colleagues. Courts must look beyond ill feeling and instead address simply whether a productive working relationship would still be possible, and they must do so through the lens of a strong preference for reinstatement. See Bingman v. Natkin & Co., 937 F.2d 553, 558 (10th Cir. 1991) (reinstatement should be granted in “all but special instances of unusual work place hostility”).
The extreme hostility inquiry is not prone to a mechanistic approach of keywords or checklists. It instead requires the court to review the specific factual situation before it and ask if the relationship can be made productive and workable for the plaintiff-employee to return to the work environment.
In addition, the extreme hostility test is an objective one, wherein the district court assesses how the working relationship could function in practice under workable safeguards and parameters. Were it otherwise, the test would be rendered unworkable because the parties would essentially be given veto power to prevent reinstatement simply based on their own, subjective views about future hostility. In other words, if the subjective feelings of the employee or employer were controlling, the “extreme hostility” exception would swallow the rule preferencing reinstatement. See Jackson v. City of Albuquerque, 890 F.2d 225, 234 (10th Cir. 1989) (in the
One other factor we consider is whether the extreme hostility argument is being asserted by the plaintiff or defendant. Often, as in this case, the defendant is a large institution that should have sufficient resources to eliminate or otherwise ameliorate any hostility on its side toward the plaintiff. And when, as here, the plaintiff affirmatively seeks reinstatement, we can typically assume that the plaintiff is not asserting she would confront extreme hostility after reinstatement.
In summary, the extreme hostility defense faces a significant presumption in favor of reinstatement. Under the facts before us, it was manifestly unreasonable for the district court to conclude that extreme hostility made a productive working relationship between Dr. Tudor and Southeastern impossible. The evidence here so clearly weighs against a finding of extreme hostility that this case is one of those rare instances where we must conclude that it was an abuse of discretion to deny Dr. Tudor’s request for reinstatement with tenure.
b. Factual Application
Although the extreme hostility test considers the perspectives of both the employer and the employee, in this case we need not spend much time examining Dr. Tudor’s viewpoint because she has unequivocally stated that she “desire[s] to be reinstated as an Associate Professor with tenure” at Southeastern. (Tudor R. vol. 4 at 186.) As there is no evidence that this desire is not genuine, we take her at her word, which clearly weighs in favor of the preferred remedy of reinstatement. See Jackson, 890 F.2d at 234 (reversing denial of reinstatement in part because the plaintiff had “always sought reinstatement to his former position”). The only issue in contention, then, is whether Southeastern has established that extreme hostility would make it impossible for it to reestablish a productive working relationship with Dr. Tudor.
Southeastern fails to establish extreme hostility, for two primary reasons: 1) Southeastern’s evidence in favor of finding extreme hostility is insufficient on its own; and 2) regardless, the unique circumstances presented here (discussed below) point squarely towards a low likelihood of extreme hostility, far outweighing the evidence to the contrary.
i. Evidence in favor of extreme hostility
Southeastern attempted to prove extreme hostility in this case by pointing to 1) hostility within the litigation context, and 2) a statement by Dr. Prus, the current English Department chair, that some people in the department did not want Dr. Tudor to return. Both are insufficient.
To start, Southeastern cites examples of hostility during the course of the litigation, including Dr. Tudor engaging in what Southeastern contends were unfair litigation practices, such as releasing expedited trial transcripts online and leaking settlement discussion emails. But evidence of litigation hostility falls far short of demonstrating the requisite extreme hostility.
As an initial matter, litigation-based animosity will be present in nearly every case, and thus, if it alone could establish extreme hostility, the clear preference for reinstatement would be rendered meaningless in practice. See EEOC v. Century Broad. Corp., 957 F.2d 1446, 1462 (7th Cir. 1992) (“‘[H]ostility common to litigation [should] not become an excuse to avoid ordering reinstatement on a general basis.’ If ‘hostility common to litigation’ would justify a denial of reinstatement, reinstatement would cease to be a remedy except in cases where the defendant felt like reinstating the plaintiff.” (second alteration in original) (citation omitted) (quoting Coston v. Plitt Theatres, Inc., 831 F.2d 1321, 1331 (7th Cir. 1987), vacated on other grounds, 486 U.S. 1020 (1988))).
Further, hostility within the litigation context does little to demonstrate the likelihood of hostility in the entirely different work-environment context. In litigation, for example, much of the communication is filtered by lawyers and takes place in the courtroom, where hostility is commonplace, rather than in the classroom or office. We accordingly give the litigation-hostility evidence in this case little weight. Cf. Abuan, 353 F.3d at 1178 (affirming denial of reinstatement when, among other things, hostility occurred outside the confines of litigation, including between plaintiff’s counsel and defendant executives in his neighborhood); Jackson, 890 F.2d at 231 (reversing the denial
In addition to evidence of litigation hostility, Southeastern proffers the testimony of Dr. Prus, the current English Department chair, as evidence that reinstatement is infeasible. Dr. Prus testified at trial that he did not “think it would be a good thing for [the English] department if Dr. Tudor came back to work there now,” nor did he think it would be a good thing for the students or for the university. (Tudor R. vol. 8 at 6.) Dr. Prus further testified that he spoke with his colleagues and they were “split at best” about the possibility of Dr. Tudor’s return, with a few “who would object to it for a variety of reasons.” (Id. at 9.) In a post-trial declaration, he elaborated that “at least half of the faculty oppose Dr. Rachel Tudor’s possible return to work” at Southeastern and thus reinstatement would be “detrimental to department functioning and collegiality.” (SE App. vol. 2 at 479.)11
In substance, Dr. Prus’s testimony simply says that some (unnamed) individuals do not want Dr. Tudor to return, not that she would necessarily face extreme hostility from those individuals if she were to return. This distinction matters. Co-workers who dislike one another work professionally in the same environment all the time. Without
As a matter of law, these facts do not constitute the extreme hostility needed to overcome the law’s preference for reinstatement. And even if we did find them persuasive, they are outweighed by the contrary evidence discussed below.
ii. Evidence in favor of reinstatement
Not only do the shortcomings in the evidence above demonstrate that Southeastern has provided little proof that extreme hostility will be likely, other evidence affirmatively demonstrates why it is, in fact, not likely. This evidence includes: 1) Southeastern’s Settlement Agreement with the DOJ, 2) the fact that almost all primary antagonists have left Southeastern, and 3) the insulated nature of tenured professorships. The district court’s observation below that “Plaintiff’s only evidence in favor of reinstatement was the testimony of Dr. Meg Cotter-Lynch” overlooks the realities present in this case. (Tudor R. vol. 4 at 129.)
First, Southeastern previously entered into a Settlement Agreement with the DOJ, resolving the
Next, almost all the primary antagonists in this case have left Southeastern. Jackson, 890 F.2d at 232 (reversing denial of reinstatement in part because “most of those making complaint against plaintiff are no longer employed by [the defendant]”). President Minks, Vice President McMillan, and Dean Scoufos—all the administrators who denied Dr. Tudor tenure and denied her the opportunity to reapply for tenure—are no longer at Southeastern. Additional administrators who handled Dr. Tudor’s complaints also no longer work at Southeastern, including Charles Babb, the general counsel; Claire Stubblefield, the affirmative action officer; and Cathy Conway, the human resources director.
The only potential antagonist still remaining is Dr. Prus, the current English Department chair, who has made it clear that he opposes Dr. Tudor’s reinstatement.12
Third, the structure and nature of a tenured professorship insulates such professors from ordinary hostilities among contemporaries. In other words, a tenured university professor holds an insular position that can effectively operate without the need for extensive collaboration with colleagues or school administrators. Indeed, tenure was designed to promote academic freedom by insulating professors from conflicting opinions. In a small, team-focused, or cooperative workplace, we might worry more about hostility among coworkers. Here, however, we give less weight to hostility from Dr. Tudor’s colleagues who will need to interact with her on only a minimal basis. While Southeastern counters that, even if Dr. Tudor will not need to interact frequently with coworkers, she will certainly interact with students, there is no evidence that Dr. Tudor will not be able to maintain positive relationships with her students, who were not involved in and indeed may not even know about her prior dispute with the university.
c. Southeastern’s Objections to Reinstatement with Tenure
Southeastern advances several objections to reinstatement that are worth addressing, particularly given that Dr. Tudor’s reinstatement is with tenure, creating a long-term relationship between the parties. Most significantly, Southeastern raises concerns about this Court’s involvement in its academic decisions and educational processes. This Court is not a school board and we agree with Southeastern that courts should not make education decisions. Villanueva v. Wellesley Coll., 930 F.2d 124, 129 (1st Cir. 1991) (“[I]t is not the function of the courts to sit as ‘super-tenure’ committees.”). We therefore do not take lightly our decision to grant Dr. Tudor reinstatement with tenure.
This is not, however, a situation where we are giving Dr. Tudor something that she would not have earned absent Southeastern’s unlawful discrimination. To the contrary, in addition to requiring that the discrimination be a motivating factor in the employment decisions, the jury instructions directed the jury that, as to Dr. Tudor’s claim of
Given the jury verdict in favor of Dr. Tudor, it is established—and we cannot now question—that Dr. Tudor would have been granted tenure in 2009-10 absent the discrimination. Thus, in granting Dr. Tudor reinstatement with tenure, we do not serve as a super-tenure committee making academic decisions for Southeastern. We are instead restoring Dr. Tudor to the position she would have been in had Southeastern not engaged in prohibited discrimination against her. Such an approach is consistent with the purposes of
Southeastern appears to be arguing for a special rule of deference to educators, but illegal decisions by educational institutions do not enjoy special sanctity. In fact, Congress specifically removed the previous
The jury found discrimination in this case, and we have already determined that that verdict is clearly supported by sufficient evidence. We cannot now abandon our obligation to provide Dr. Tudor with the make-whole relief to which she is entitled under
Finally, Southeastern argues that it would be improper for this Court to grant Dr. Tudor reinstatement with tenure because it has concerns about her scholarship and teaching and believes she is not qualified. For the reasons already discussed, this argument is foreclosed by the jury verdict. The jury found that Dr. Tudor would have received tenure in 2009-10 if not for the discrimination.
* * *
For all these reasons, we reverse the district court’s denial of reinstatement, holding that Dr. Tudor is entitled to reinstatement with tenure.
2. Front Pay
Although we grant Dr. Tudor reinstatement, she is also entitled to monetary damages for the period that she would have worked at Southeastern as a tenured professor had she been granted tenure when she applied in 2009-10 until the time of her reinstatement (subject, of course, to mitigation obligations and cutoffs). Front pay and reinstatement are not mutually exclusive, as the Supreme Court made clear in Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 846 (2001) (defining front pay as “money awarded for lost compensation during the period between judgment and reinstatement or in lieu of reinstatement” (emphasis added)). In other words, even when reinstatement is granted, front pay should also be awarded until that reinstatement can be accomplished.
Dr. Tudor challenges the district court’s award of $60,040.77 in front pay as insufficient and erroneously calculated. Although Dr. Tudor’s claim that she is entitled to front pay for her remaining work-life expectancy will now be mooted by
We review the district court’s front pay award for an abuse of discretion. Abuan, 353 F.3d at 1177. In so doing, we agree with Dr. Tudor that the amount used by the court as the front pay annual compensation rate was verifiably incorrect and that her untenured position at Collin College was not substantially equivalent to a tenured professorship at Southeastern. We reverse the district court’s $60,040.77 front pay award and remand for a recalculation consistent with this opinion.
a. Legal Background
i. Front Pay Timeline
Dr. Tudor’s arguments relate only to front pay, but, in addressing the start of front pay eligibility, we must consider the time period covered by both front pay and backpay because those awards represent compensation for lost wages over a continuum of time; the only meaningful difference between the two is the time period for which they are awarded. See Pollard, 532 U.S. at 849. We endeavor to clarify the line between back and front pay because the district court’s calculation, which used a period of time from the backpay period as a basis to select a reasonable length of time for the front pay award, was confusing on this point and should be clarified.14
In this case, where reinstatement has been granted, front pay ends at the time of reinstatement. Pollard, 532 U.S. at 846. Both awards, however, are subject to earlier termination based on, for example, failing to mitigate damages or obtaining substantially equivalent employment. Ford Motor Co. v. EEOC, 458 U.S. 219, 231–32, 236 (1982).
ii. Front Pay Calculation
The Tenth Circuit has identified several factors to be considered in determining a front pay award:
(1) work life expectancy, (2) salary and benefits at the time of termination, (3) any potential increase in salary through regular promotions and cost of living adjustment, (4) the reasonable availability of other work opportunities, (5) the period within which the plaintiff may become re-employed with reasonable efforts, and (6) methods to discount any award to net present value.
McInnis, 458 F.3d at 1146 (numbers added) (quoting Whittington v. Nordam Grp. Inc., 429 F.3d 986, 1000–01 (10th Cir. 2005)). Although the district court has discretion to calculate front pay based on these factors, Whittington, 429 F.3d at 1000, it must do so with the aim to make plaintiffs whole without creating a windfall. Carter v. Sedgwick County, 36 F.3d 952, 957 (10th Cir. 1994). After considering these factors and calculating an appropriate amount of compensation, courts must then subtract any mitigation that reasonably could be obtained. See Davoll v. Webb, 194 F.3d 1116, 1143 (10th Cir. 1999).
In this case, the district court considered two factors to be determinative: the reasonable availability of other work opportunities, and the period within which Dr. Tudor could become re-employed with reasonable efforts. In light of these factors, the court limited Dr. Tudor’s eligibility for front pay to fourteen months, because that was how long it took Dr. Tudor to obtain a teaching job at Collin College after leaving Southeastern. Based on Dr. Tudor’s previous ability to find work within
However, for a potential reemployment opportunity to terminate Southeastern’s front pay obligations entirely—as opposed merely to mitigating the amount of front pay owed—it must be “substantially equivalent” to the withheld position. Ford Motor Co., 458 U.S. at 236. We emphasize that the test is one of substantial equivalence. Some courts have morphed this test into a tougher standard, holding that two jobs are substantially equivalent if they offer “virtually identical promotional opportunities, compensation, job responsibilities, working conditions, and status.” Sellers v. Delgado Cmty. Coll., 839 F.2d 1132, 1138 (5th Cir. 1988).15 We, too, consider the same factors listed by those circuits, but we do not adopt the narrower “virtually identical” standard. Virtual identity is an unrealistic expectation—almost no two jobs will be virtually identical—and it is unfaithful to the original, and less exacting, “substantially equivalent” language to which we adhere.
In considering whether substantially equivalent job opportunities are reasonably available, courts should first and foremost consider compensation. See McInnis, 458 F.3d at 1146 (reversing denial of front pay where plaintiff “ha[d] absolutely no prospects of attaining a pay level equivalent to the pay she received”
b. Analysis
The district court found Dr. Tudor’s yearly compensation at Southeastern to be $51,463.52 (a figure that appears in Dr. Tudor’s compensation table (Tudor Mot. for Front Pay Ex. 8 (“Ex. 8”) at 6 (Tudor R. vol. 4 at 221))). Extending that compensation over a fourteen-month period (the time frame in which the court expected Dr. Tudor to find a new job), the district court arrived at its $60,040.77 front pay award. In reviewing, and ultimately reversing, the district court’s front pay calculation, we consider both the $51,463.52 amount utilized as the front pay annual compensation as well as the fourteen-month period for which it provided that compensation.
The district court‘s front pay award was premised upon an annual compensation of $51,463.52. This figure is clearly erroneous, and it was reversible error to rely on it.16
It is true that the district court‘s $51,463.52 figure comes from Dr. Tudor‘s own compensation table submitted to the district court with her motion for front pay. (Ex. 8 at 6.) But that table makes clear that this amount represents Dr. Tudor‘s total compensation (salary and benefits) had she been employed at Southeastern with tenure for only a roughly 8.5-month period between November 20, 2017—the close of trial—and July 31, 2018. (Id.) The $51,463.52 amount is thus a prorated compensation only over that 8.5-month period, and construing it as a yearly compensation, as the district court did, was clearly erroneous. (Id.) This is made even more obvious when comparing the first line of the table, containing the $51,463.52 figure, to the lines immediately following in the same chart, in which Dr. Tudor‘s annual compensation jumps sharply up to $75,164.16—undoubtedly because
Below, in denying Dr. Tudor‘s motion for reconsideration of front pay, the district court responded that “the evidence presented to the Court does not support [Dr. Tudor‘s] current argument” for a higher annual compensation, citing to a stipulation made by Dr. Tudor. (Tudor R. vol. 5 at 81.) That stipulation, contained in an affidavit submitted by Dr. Tudor with her motion for front pay, reads: “During the last year of my employment at Southeastern, I was paid approximately $51,279 in salary.” (Tudor R. vol. 4 at 194 ¶ 6.) The district court therefore pointed to evidence that it thought supported an annual compensation of around $51,000 and stated that, given the use of the term “approximately,” it “elected to use the slightly higher salary listed” in Dr. Tudor‘s compensation table—the $51,463.52 figure. (Tudor R. vol. 5 at 81.)
It was clear error to rely on Dr. Tudor‘s stipulation to justify the selection of a $51,463.52 annual compensation amount in light of this documtary evidence. As Dr. Tudor makes clear in her stipulation—and as the district court also explicitly recognizes in its denial of reconsideration—the $51,279 stipulated-to figure represented the salary Dr. Tudor earned in her last year working at Southeastern (2010-11). That salary, then, was an inappropriate comparison to the compensation in Dr. Tudor‘s table for three reasons: 1) the stipulation refers only to salary, whereas the compensation in Dr. Tudor‘s table accounts for both salary and benefits combined; 2) the stipulation refers to Dr. Tudor‘s untenured salary while she was last
Although Dr. Tudor does not disavow her stipulation on appeal, she does not have to. The stipulation was accurate. The problem here lies not in the stipulation itself but in applying the stipulated-to salary to a very different scenario. That the two numbers are nearly the same is a mere coincidence. Dr. Tudor‘s table and her stipulation were clearly noncomparable.
Accordingly, it was an abuse of discretion to rely on a clearly erroneous annual compensation rate and, further, by justifying the use of that rate with a
ii. Front Pay Cutoff
The district court held that Dr. Tudor was entitled to front pay (at the erroneous $51,463.52 yearly rate) for a period of fourteen months given its prediction that Dr. Tudor could reasonably obtain “similar employment” within that time. (Tudor R. vol. 5 at 48.) The court based this prediction on Dr. Tudor‘s ability to successfully obtain a teaching position at Collin College within fourteen months after her termination from Southeastern.
In determining that the fourteen-month period should represent the time in which Dr. Tudor could reasonably be expected to find new, substantially equivalent employment—cutting off front pay entirely—the district court relied on the fact that Dr. Tudor‘s “pay at that college exceeded what she had made at Southeastern.” (Id. at 47.) Dr. Tudor‘s salary at Collin College ranged between $51,184 and $58,022 (after yearly raises) during her time there. This was higher than Dr. Tudor‘s Southeastern salary as erroneously calculated below. Given our findings above,
Salary aside, the district court also did not adequately consider significant noneconomic differences between the two positions, most notably that Collin College did not offer tenure and that it was a two-year community college as compared to a four-year public university. In its front pay order, there was no acknowledgement of these differences. Rather, the order only mentioned that both positions involved teaching college-level English and (erroneously) that Dr. Tudor earned more at Collin College. It was error to fail to consider the entirety of the circumstances and omitted notable differences from its analysis. Indeed, in the academic context, we think the availability or lack of tenure is significant, as tenure is arguably the most important point in a professor‘s career.
Looking at the two positions as a whole, we are convinced that, as a matter of law, Dr. Tudor‘s positions at Southeastern and Collin College were not substantially equivalent. Collin College paid less than Southeastern, did not offer tenure, and, as a two-year community college, lacked a similar level of prestige and academic opportunities. It was thus an abuse of discretion in calculating front pay, to use the
To be sure, although not substantially equivalent, the Collin College position—and any other position Dr. Tudor might reasonably obtain—remains relevant to mitigation on remand. EEOC v. Sandia Corp., 639 F.2d 600, 627 (10th Cir. 1980); Davoll, 194 F.3d at 1143. We leave it to the district court to calculate an appropriate length of front pay on remand aided by the guidance in this opinion.
* * *
We review the district court‘s front pay award “with considerable deference,” Abuan, 353 F.3d at 1177, yet we are again certain that this is one of those rare instances in which we find clear error in the calculation, to Dr. Tudor‘s prejudice, resulting in a manifestly unreasonable front pay award. Title VII‘s command, as stated by this Court, is clear: make victims of discrimination whole. Carter, 36 F.3d at 957. This error resulted in a front pay award that has not made Dr. Tudor whole in this case. Accordingly, we reverse the $60,040.77 front pay award and remand for the district court to recalculate front pay consistent with this opinion including the annual compensations amount, the cutoff date and any other matters in mitigation. In recalculating front pay on remand, additional evidence may be helpful to the district
3. Title VII Statutory Cap
Dr. Tudor lastly challenges the district court‘s application of the Title VII statutory damages cap to the $1.165 million in damages awarded by the jury, which resulted in a reduced award for damages of $360,040.77 ($300,000 in capped compensatory damages and $60,040.77 in uncapped back pay). Dr. Tudor argues that Southeastern waived the cap, or else that the district court‘s application of the cap violated the Seventh Amendment‘s Reexamination Clause. We find no waiver. We review de novo whether the district court‘s application of the cap violated the Seventh Amendment, Patton v. TIC United Corp., 77 F.3d 1235, 1245 (10th Cir. 1996), and we find no Seventh Amendment violation. Accordingly, we affirm.
a. Legal Background
The Title VII statutory cap limits “the sum of the amount of compensatory damages awarded . . . for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses” to $300,000 for a company the size of Southeastern.
b. Waiver
Dr. Tudor first argues that Southeastern waived the cap because it failed to plead it in its answer. But the parties stipulated in their joint pretrial report that “[b]ased on the number of Defendants’ total employees, the $300,000 damage cap at
c. Reexamination Clause
Dr. Tudor next argues that the district court‘s application of the cap violated the Seventh Amendment‘s Reexamination Clause. The Reexamination Clause states that “no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”
i. Background
The jury awarded Dr. Tudor $1.165 million in damages. This amount potentially included compensation for backpay as well as physical or mental distress, including “mental anguish, emotional pain and suffering, inconvenience, loss of enjoyment of life, damage to professional reputation, or other non-pecuniary losses.” (Tudor R. vol. 2 at 61–62 (jury instructions).) Because of the way the verdict form was structured—asking only for a single number representing “the amount of damages to which Plaintiff is entitled to compensate her for her injuries“—it is impossible to know what amount should be attributed to each category of damages. (Id. at 72 (verdict form).) This created problems because the backpay award is indisputably not subject to the $300,000 cap, whereas the remainder of the damages encompassed by the jury award is.
After finding that the Title VII cap applied, the district court resolved this tension by attempting to separate the backpay award from the remainder of the total damages award. Although it had no way of knowing how much the jury attributed to backpay, the court calculated the highest amount of backpay damages that it believed the jury could have reasonably awarded, $60,040.77, observing that it was “not
It is clearly established that the application of a statutory damages cap to a jury award does not violate the Reexamination Clause. Est. of Sisk v. Manzanares, 270 F. Supp. 2d 1265, 1277–78 (D. Kan. 2003); Schmidt v. Ramsey, 860 F.3d 1038, 1045 (8th Cir. 2017). The Title VII cap is no exception. See, e.g., Madison v. IBP, Inc., 257 F.3d 780, 804 (8th Cir. 2001), vacated on other grounds, 536 U.S. 919 (2002); Hemmings v. Tidyman‘s, Inc., 285 F.3d 1174, 1201–02 (9th Cir. 2002).
Dr. Tudor‘s Seventh Amendment argument, however, is based not merely on the district court‘s decision to apply a cap to the jury award, but on that court‘s decision to determine what portion of the jury award could be attributed to backpay not subject to the cap. She argues that because the jury award was ambiguous as to capped versus uncapped damages, the court was not permitted to apply the cap, as the
ii. Analysis
We conclude that the district court constitutionally applied the Title VII cap when it allocated $60,040.77 of the jury award to backpay and capped the remainder of the award at $300,000. In attempting to prove a Seventh Amendment violation, Dr. Tudor argues that, in a mixed damages award like this one with a single, unallocated amount of damages, where it is impossible to tell what amounts are capped versus uncapped, the district court cannot constitutionally apply the cap at all since in doing so it necessarily and impermissibly reexamines uncapped damages. She cites no cases in support.
Here, the jury was not asked to allocate its damages award between uncapped and capped damages and did not make any specific finding as to backpay. As a result, there existed no decision by the jury in the first instance for the court to reexamine when it allocated the award between capped and uncapped damages. See Cap. Traction Co. v. Hof, 174 U.S. 1, 13 (1899) (“[W]hen a trial by jury has been had in an action at law, . . . the facts there tried and decided cannot be re-examined in any court of the United States.” (emphasis added)). The jury decided only total damages, and a portion of this figure was subject to a constitutional statutory cap. After determining the highest amount the jury could have reasonably awarded in uncapped damages—something the jury did not itself decide as part of the verdict—the court
Backpay is viewed as equitable relief in a Title VII case to be decided by the judge, Albemarle Paper Co., 422 U.S. at 416 (stating that the court‘s discretion to award backpay is “equitable in nature“); Whatley v. Skaggs Cos., 707 F.2d 1129, 1138 (10th Cir. 1983) (“Title 42 U.S.C. § 2000e-5(g) leaves to the discretion of the trial court the amount of back pay to be awarded a successful plaintiff in an employment discrimination action.“), unless the parties have consented otherwise, Pals, 220 F.3d at 501 (“[A]n issue may be tried to the jury ‘with the consent of both parties’ even if the issue is ‘not triable of right by a jury.‘” (quoting
In addition, our conclusion makes sense when considering the reality that judges constitutionally adjust or even reverse jury verdicts in other contexts.
It is worth emphasizing that while it is common practice to leave the backpay calculation to the jury, 2 Kent Spriggs, Representing Plaintiffs in Title VII Actions § 30.03 (2d ed. 2004), Title VII clearly identifies backpay as equitable relief.
The court was careful to give the jury award its full effect by setting aside the highest amount of uncapped damages that it believed was possible for the jury to have intended prior to applying the Title VII cap. Given the constitutionality of statutory caps, that the jury made no specific determination of uncapped damages, and the wide discretion afforded courts in equitable damages decisions, we hold that
C. Attorneys’ Fees
Dr. Tudor requested attorneys’ fees if she prevails in this appeal. Title VII allows this Court, in its discretion, to grant a prevailing party‘s application for reasonable attorneys’ fees.
III. CONCLUSION
For these reasons, we AFFIRM the district court‘s ruling on each issue in Southeastern‘s cross-appeal. As to Dr. Tudor‘s appeal, we AFFIRM the damages cap ruling but REVERSE the district court‘s reinstatement and front pay rulings. Finally, we REMAND to the district court for an order determining the terms and conditions of Dr. Tudor‘s reinstatement, a recalculation of the front pay award consistent with this opinion, and a determination of attorneys’ fees to which Dr. Tudor is entitled.