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Case Number: 18-6102 & 18-6165
Court: United States Court of Appeals for the Tenth Circuit on appeal from the Western District of Oklahoma
Plaintiff's Attorney: 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.
Defendant's Attorney: Zachary West, Assistant Solicitor General (Andy N. Ferguson, Staff Attorney, with him
on the briefs), Office of Attorney General, Oklahoma City, Oklahoma, for Defendants-
Description: 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
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jurisdiction under 28 U.S.C. § 1291, we AFFIRM in part and REVERSE in part and
REMAND for further proceedings.
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 Because the jury found in favor of Dr. Tudor on her discrimination and
retaliation claims and because Southeastern challenges the sufficiency of the
evidence to support that verdict, we recount the facts that were presented to the jury
at trial in the light most favorable to Dr. Tudor. Webco Indus., Inc. v. Thermatool
Corp., 278 F.3d 1120, 1128 (10th Cir. 2002).
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president of academic affairs. Each entity issues a recommendation to the university
president, who then makes the final tenure determination and seeks approval from the
RUSO governing board. To obtain tenure, then, Dr. Tudor needed to receive a
favorable recommendation from: (1) a tenure committee comprised of five faculty
members; (2) the then English Department Chair, John Mischo; (3) the then Arts and
Sciences dean, Lucretia Scoufos; (4) the then vice president for academic affairs,
Doug McMillan; (5) the then university president, Larry Minks; and (6) RUSO’s
governing board. RUSO’s governing board generally approves the recommendation
given by the university president. Southeastern’s tenure-application process assesses
applicants for excellence in three areas: scholarship, service, and teaching.
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
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department chair, voting against). Dr. Mischo, the then department chair, also
recommended tenure. Despite the faculty committee’s and department chair’s
approval, Dean Scoufos, Vice President McMillan, and President Minks
recommended denial of tenure. Dr. Tudor and one of her colleagues later testified
that they had never heard of the administration denying an applicant tenure after the
faculty committee recommended granting it.
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
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President McMillan in which he stated that Southeastern’s academic policies and
procedures manual did not specifically proscribe a subsequent tenure application
after a denial but also that the administration would not allow Dr. Tudor’s
reapplication for tenure in the subsequent year following denial “in the best interests
of the university.” (Tudor R. vol. 5 at 229.)2
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.
2 Southeastern’s academic policy manual stated specifically that faculty could
apply for tenure in their “fifth, sixth, or seventh year” (as opposed to saying they
could apply in their fifth, sixth, and seventh years). (Tudor R. vol. 5 at 188
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Based on the reapplication denial, Dr. Tudor filed a discrimination and
retaliation complaint with the EEOC, which referred it to the U.S. Department of
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
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
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expert, Dr. Parker, the parties tried the case before a jury. At the close of evidence,
both parties made oral motions for judgment as a matter of law, which the court
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
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
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
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district court rejected Southeastern’s motions as untimely and, alternatively, denied
them on the merits. Southeastern timely appealed.
We consider first Southeastern’s appeal challenging evidentiary rulings and
the jury verdict, before turning to Dr. Tudor’s more substantive appeal addressing
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.” 42 U.S.C. § 2000e-2(a)(1). One of the issues
in Bostock was whether transgender discrimination constitutes Title VII
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discrimination on the basis of sex. 140 S. Ct. at 1737. The Supreme Court
determined that “it is impossible to discriminate against a person for being
homosexual or transgender without discriminating against that individual based on
sex” because “to discriminate on these grounds requires an employer to intentionally
treat individual employees differently because of their sex.” Id. at 1741–42. The
Court thus held that Title VII “prohibit[s employers] from firing employees on the
basis of homosexuality or transgender status.” Id. at 1753.
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
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a Title VII violation. (SE Supp. Br. 2.)3 We now turn to Southeastern’s arguments
that remain cognizable.4
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
3 The parties also debate whether Bostock overrules DePaula v. Easter Seals El
Mirador, 859 F.3d 957 (10th Cir. 2017). This is because Bostock held that Title VII
incorporates the “simple and traditional standard of but-for causation,” 140 S. Ct. at
1739 (internal quotation marks omitted), whereas DePaula held that a plaintiff must
prove the alleged discrimination was a “primary factor” in the defendant’s adverse
employment action, 859 F.3d at 970. The Bostock Court also observed, however,
that Congress has allowed a Title VII claim to succeed if sex was a “motivating
factor” in the decision, recognizing that the but-for standard is a “viable, if no longer
exclusive, path to relief under Title VII.” 140 S. Ct. at 1739–40 (citing 42 U.S.C. §
2000e-2(m)). Because the jury was instructed on the motivating factor standard,
which remains intact, this aspect of the case is unaffected by Bostock, and we decline
to address Bostock’s impact on DePaula. 4 Even after Bostock, Southeastern contends that Dr. Tudor impermissibly
brought her case as a female instead of as a male. We do not see the relevance of the
male/female distinction here. While this may have been relevant to establishing a
claim of sex discrimination pre-Bostock, there is no question now that Dr. Tudor’s
transgender claims are cognizable. The label given to Dr. Tudor’s sex does not
change the character of the discrimination based on her transgender identity.
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decision to admit Dr. Parker’s testimony for abuse of discretion. United States v.
Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009). We assume without deciding that
Southeastern did not waive its challenge to Dr. Parker’s expert testimony because, in
any event, we affirm on the merits, concluding that the district court sufficiently
performed its gatekeeping role, if minimally, and did not abuse its discretion when it
permitted Dr. Parker to testify.5
a. Legal Background
Rule 702 requires an expert witness to be qualified by “knowledge, skill,
experience, training, or education,” and an expert witness’s testimony must be
helpful to the trier of fact, based on sufficient facts, and the result of “reliable
principles and methods.” Fed. R. Evid. 702; see also Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579, 593–95 (1993); Kumho Tire Co. v. Carmichael, 526
U.S. 137, 141 (1999). The district court, as gatekeeper, is therefore responsible for
ensuring expert testimony is reliable and relevant. Dodge v. Cotter Corp., 328 F.3d
1212, 1221 (10th Cir. 2003). To perform its gatekeeping role, the district court must
make specific findings on the record so that this Court can determine if it carefully
reviewed the objected-to expert testimony under the correct standard. Adamscheck,
818 F.3d at 586.
5 Dr. Tudor also argued that this challenge should not be reviewed on the
merits because Southeastern’s appendix was not sufficient, but Southeastern was
granted permission to supplement its appendix with its reply brief (the fourth brief in
this case), curing the previous omissions.
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b. Gatekeeping Role
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
In performing its gatekeeping role, the district court referenced Rule 702,
reviewed the arguments on both sides, and provided some (albeit brief) explanation.
Cf. Adamscheck, 818 F.3d at 587–88 (court failed gatekeeping role when it made off-
the-cuff decision to exclude based on one sentence by the opposition); Goebel v. Denver
& Rio Grande W. R.R. Co., 215 F.3d 1083, 1088 (10th Cir. 2000) (court failed
gatekeeping role when there was no statement on the record indicating a Daubert analysis
was performed). Where, as here, an expert’s methodology is not complex, technical,
or highly specialized, a less detailed district court ruling is sufficient. See
Storagecraft Tech. Corp. v. Kirby, 744 F.3d 1183, 1190 (10th Cir. 2014). Dr.
Parker’s methodology involved comparing Dr. Tudor’s tenure application to those of
successful applicants; this method is straightforward. On these particular facts, a
lengthy Daubert ruling was not required, and the district court’s order was minimally
sufficient to satisfy this Court that the district court performed its gatekeeping role
under Rule 702.
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c. Abuse of Discretion
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. Fed. R. Evid. 702 (listing experience as one of the ways in which an
expert can be qualified). As a result, it was reasonable for the district court to
conclude that Dr. Parker was qualified to explain the tenure application process and
to recognize strong and weak applications in the field of English, as well as for the
court to conclude that Dr. Parker’s method of comparison was reliable.6
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.
6 Although Dr. Parker had access to only a partial reconstruction of Dr.
Tudor’s 2009-10 tenure portfolio, it was not unreasonable for the district court to
determine that the hundreds of pages of documents reviewed by Dr. Parker related to
Dr. Tudor’s application provided him with an adequate foundation.
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Finally, we decline to follow the district court and out-of-circuit caselaw that
Southeastern cites to support excluding the testimony of tenure experts as irrelevant
and unreliable on the grounds that tenure decisions are inherently subjective. (SE Br.
32 (collecting cases).) These cases do not render the district court’s decision here
manifestly unreasonable because the court was not bound by them.7 Further, Dr.
Parker did not create his own, personal standards for tenure qualification but rather
relied upon, for example, Southeastern’s criteria for tenure and promotion, and
general standards for judging scholarship in the field.
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
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.
7 In addition, this Court is unwilling to find that tenure experts are
categorically unreliable. Title VII plaintiffs may have few or no other methods to
refute defendants’ proffered reasons for a tenure denial. See Carlile v. S. Routt Sch.
Dist. RE-3J, 739 F.2d 1496, 1500 (10th Cir. 1984) (“Despite the fact that courts are
reluctant to review the merits of tenure decisions, such decisions are not exempt
under Title VII. Plaintiffs seeking to show discriminatory purposes in tenure or
reappointment decisions ought to have available the means of challenging such
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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 Fed. R. Civ. P. 50(a) and (b). This Court reviews
the district court’s Rule 50(b) ruling de novo. Mountain Dudes v. Split Rock
Holdings, Inc., 946 F.3d 1122, 1129 (10th Cir. 2019). The district court dismissed
Southeastern’s 50(b) motion as untimely and, alternatively, denied it on the merits.
Dr. Tudor also argues on appeal that the 50(b) motion was not preserved. Because
we reject Southeastern’s challenge on the merits, concluding that the jury verdict is
supported by the evidence, we can assume without deciding that its renewed motion
for judgment as a matter of law was both timely and preserved.
“Judgment as a matter of law under Rule 50 ‘is appropriate only if the
evidence points but one way and is susceptible to no reasonable inferences which
may support the nonmoving party’s position.’” Mountain Dudes, 946 F.3d at 1129
(quoting In re Cox Enters., Inc., 871 F.3d 1093, 1096 (10th Cir. 2017)). This Court
8 There might be an exception to Ortiz’s rule barring an appeal of the denial of
summary judgment after trial when there are no material facts in dispute and the issue
is purely legal. Copar Pumice Co., Inc. v. Morris, 639 F.3d 1025, 1031 (10th Cir.
2011). We decline to resolve this issue because, like in Morris, there undoubtedly
exist factual disputes in this case, and the legal questions have been resolved by
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does not make credibility determinations or weigh the evidence, and the evidence
must be viewed in the light most favorable to the nonmoving party. Id. at 1130.
Southeastern contends that the district court erroneously denied its Rule 50(b)
motion because the jury verdict in favor of Dr. Tudor on her claims of discrimination
and retaliation was not supported by sufficient evidence. After careful review of the
complete evidence in the light most favorable to Dr. Tudor, we conclude that it was
clearly sufficient for a jury to find by a preponderance of the evidence that Dr. Tudor
was denied tenure in 2009-10, as well as denied the opportunity to reapply in 2010-
11, on the basis of sex, and that Southeastern refused to allow her to reapply in 2010-
11 in retaliation for her Title VII complaints.9 In part, we rely on statements from
Dean Scoufos about Dr. Tudor’s appearance; Vice President McMillan’s statements
about Dr. Tudor’s lifestyle and his recommendation that Dr. Tudor should be
summarily fired when he learned she was transgender; Affirmative Action Officer
Stubbefield’s sarcastic reference to Dr. Tudor’s new identity; Dr. Parker’s expert
testimony that Dr. Tudor was more qualified than other professors in Dr. Tudor’s
same department who were granted tenure; Dr. Cotter-Lynch’s testimony about Dr.
Tudor’s qualifications; Dr. Mischo’s and Dr. Spencer’s testimony that Dr. Tudor’s
portfolio was “sufficient” for tenure (Tudor R. vol. 7 at 158, 210); Dr. Tudor’s, Dr.
Mischo’s and Dr. Cotter-Lynch’s testimony that they had never heard of a rule
9 The Court has carefully reviewed all the evidence but is not repeating all of it
here in detail, simply to avoid unnecessarily extending this opinion since the parties
are fully aware of the evidence.
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barring tenure reapplication after a denial; the close temporal relationship between
Dr. Tudor’s protected activity and the denial of the opportunity for her to reapply for
tenure; as well as evidence mentioned earlier in this opinion.
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–
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
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the reasons for my denial” of tenure in 2009); Tudor R. vol. 5 at 229 (Vice President
McMillan’s letter to Dr. Tudor in which he states that he (i.e., Vice President
McMillan) made the “decision as acting chief academic officer that your
application/request and portfolio will not be accepted for review for the 2010-2011
academic year”)).) Moreover, Dr. Knapp, who sat on all three of the faculty
appellate committees that heard Dr. Tudor’s grievances, testified that “[i]t seemed
that the application was stopping with Dr. McMillan.” (Tudor R. vol. 8 at 29–30.)
Further, evidence was presented at trial that Vice President McMillan told Dr. Tudor
he would recommend that President Minks deny her tenure. (SE Br. 9 (citing Tr. vol.
1 at 64–65; SE App. vol. 3 at 806).) Vice President McMillan’s negative
recommendation was followed by President Minks’s denial, even though the faculty
committee who reviewed Dr. Tudor’s portfolio had voted 4-to-1 in favor of granting
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
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case was that the true culprit was [Vice President] McMillan”).) The cases
Southeastern cites are all clearly distinguishable from the facts in the case before us.
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 Title VII statutory cap on damages to the jury award. We affirm the district
court’s application of the Title VII damages cap, but we reverse the denial of
reinstatement and its front pay rulings. We remand to the district court for a
recalculation of the front pay award and for an order requiring Dr. Tudor’s
reinstatement with tenure.
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 Title VII,
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[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.
42 U.S.C. § 2000e-5(g)(1). “[R]einstatement is the preferred remedy and should be
ordered whenever it is appropriate . . . .” Abuan, 353 F.3d at 1176 (emphasis added).
This clear preference for reinstatement fulfills Title VII’s purpose of providing make-
whole relief to victims of employment discrimination, and the district court’s
discretion to fashion relief is confined by this purpose. Albemarle Paper Co. v.
Moody, 422 U.S. 405, 418 (1975) (“It is also the purpose of Title VII to make
persons whole for injuries suffered on account of unlawful employment
discrimination.”); Zisumbo v. Ogden Reg’l Med. Ctr., 801 F.3d 1185, 1203 (10th Cir.
2015) (observing that the court’s exercise of discretion to fashion remedies under
Title VII “must be tied to Title VII’s twin purposes of” preventing discrimination and
making victims whole).
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
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inappropriate). Because some hostility will inevitably be present in every case, we
emphasize that the hostility must be extreme to defeat the preference for reinstatement:
“Reinstatement may not be appropriate . . . when the employer has exhibited such
extreme hostility that, as a practical matter, a productive and amicable working
relationship would be impossible.” Id. at 1172 (emphasis added) (ADEA); see also
McInnis v. Fairfield Cmtys., Inc., 458 F.3d 1129, 1145 (10th Cir. 2006) (Title VII).
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”).
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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 § 1983 context, stating, “Unless
we are willing to withhold full relief from all or most successful plaintiffs in discharge
cases, and we are not, we cannot allow actual or expected ill-feeling alone to justify
nonreinstatement” (quoting Allen v. Autauga Cnty. Bd. of Educ., 685 F.2d 1302, 1306
(11th Cir. 1982))); Fester v. Farmer Bros. Co., 49 F. App’x 785, 794 (10th Cir. 2002)
(unpublished) (citing the extreme hostility test and affirming the district court’s grant of
reinstatement despite defendant arguing that extreme hostility existed).10
10 This is not to say that subjective feelings are irrelevant. They can serve as
helpful evidence in applying the objective test and should be considered alongside all
other circumstances. See, e.g., Abuan, 353 F.3d at 1177–78 (in addition to objective
evidence of extreme hostility between the parties, plaintiff’s distrust of the employer
suggested that a working relationship was impossible); Jackson, 890 F.2d at 234 (that
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Because this is a civil case, we apply a preponderance of the evidence standard,
asking if it is more likely than not that extreme hostility would make a productive
working relationship impossible—not just difficult or imperfect. Century Sur. Co. v.
Shayona Inv., LLC, 840 F.3d 1175, 1177 (10th Cir. 2016).
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.
the plaintiff had “always sought reinstatement to his former position” was one factor
in the court’s decision that reinstatement was appropriate despite other evidence of
hostility among the parties). Subjective evidence will be more important in some
cases than in others. For example, subjective feelings should not control when the
objective evidence clearly points in the opposite direction. See Bingman, 937 F.3d
553 (affirming reinstatement despite the fact that plaintiff, who had misgivings and
concerns about returning to work, preferred front pay because other evidence showed
that the parties were on good terms).
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
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.
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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
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of reinstatement despite serious litigation hostilities, including derogatory language in the
courtroom, the burglary of plaintiff’s files from his attorney’s office, negative newspaper
comments made by defendant after trial, and threatened prosecution by the defendant of
parties related to the settlement negotiations).
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
11 To the extent that Dr. Prus’s testimony presents a hearsay problem, we do
not address it because Dr. Tudor did not adequately raise the issue. (Tudor Reply
15–16 (stating that Dr. Prus’s statements are hearsay without providing any
explanation other than one citation).)
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additional, supporting evidence that it would be impossible for those who oppose Dr.
Tudor’s reinstatement to work productively in the same department as her, Dr. Prus’s
conclusory statement that department functioning would be negatively affected falls far
short of establishing extreme hostility. There is also no evidence regarding how or why
students and the university would be negatively impacted by Dr. Tudor’s return, despite
what Dr. Prus claimed. If one person speculating in a general and conclusory manner
could be enough to establish extreme hostility, defendant-employers could avoid
reinstatement—and therefore prevent successful plaintiffs from obtaining make-whole
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.)
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First, Southeastern previously entered into a Settlement Agreement with the DOJ,
resolving the Title VII Complaint filed by the United States in relation to the same facts
of this case. In that settlement, Southeastern agreed to hold mandatory Title VII training
and implement policy changes, among other things, in order to reduce discrimination.
These procedural changes target the very discrimination faced by Dr. Tudor and make it
less likely to reoccur. This is a powerful indicator that Dr. Tudor’s return to work at
Southeastern is feasible.
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
12 In its briefing, Southeastern additionally argues that Dr. Bryon Clark, who
Dr. Tudor testified “made up new rules” against her, remained at Southeastern as the
Vice President for Academic Affairs. (SE Br. 60 (quoting Tudor R. vol. 6 at 124).)
This Court, however, takes judicial notice that Dr. Clark has since retired. Dr. Bryon
Clark Retiring After 30 Years at Southeastern, Se. Okla. State Univ. (Apr. 23, 2020),
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But Dr. Prus never participated in any of the Title VII violations and was even called by
Dr. Tudor to testify at trial. Even though he voted against tenure while serving on Dr.
Tudor’s faculty committee in 2009-10, he testified that he stood by the committee’s
decision to grant it, and that he thought Dr. Tudor’s 2010-11 tenure application would
have merited tenure. This behavior suggests that Dr. Prus would be able to set his
personal feelings or reservations aside and work with Dr. Tudor in a productive and
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.
U.S. v. Burch, 169 F.3d 666, 671 (10th Cir. 1999) (“Judicial notice may be taken at
any time, including on appeal.”).
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Ultimately, whether reinstatement is appropriate and feasible in this case is not a
close question, but even if it were, the clear preference for reinstatement serves as an
additional weight on the scale, tipping it further in favor of reinstatement. Thus, starting
with this presumption and considering Southeastern’s almost complete lack of evidence
demonstrating extreme hostility—made even more unpersuasive by the countervailing
evidence in favor of reinstatement—it was an abuse of discretion for the district court to
deny Dr. Tudor reinstatement. We reverse and grant Dr. Tudor reinstatement at
Southeastern with tenure.
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
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discrimination based on her tenure denial in 2009-10, “[i]n order to succeed on the
discrimination claim, [Dr. Tudor] must persuade you by a preponderance of the evidence
that were it not for gender discrimination, she would have been granted tenure in 2009-
10.” (Tudor R. vol. 2 at 49, 55–56.) And, so instructed, the jury came back with a
verdict for Dr. Tudor on that claim. (Id. at 71.)13 Thus, as to the 2009-10 academic year,
we have a jury finding that Dr. Tudor would have been granted tenure had she not been
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 Title VII and the familiar functions of the judiciary. See Brousard-Norcross
v. Augustana Coll. Ass’n, 935 F.2d 974, 975–76 (8th Cir. 1991) (“While Title VII
unquestionably applies to tenure decisions, judicial review of such decisions is limited to
whether the tenure decision was based on a prohibited factor.”); Jiminez v. Mary
Washington Coll., 57 F.3d 369, 377 (4th Cir. 1995) (“Our review [of tenure decisions] is
13 As to Dr. Tudor’s claim of discrimination based on the reapplication denial in
2010-11, the jury instructions stated that Dr. Tudor must persuade the jury by a
preponderance of the evidence that “were it not for gender discrimination, she would
have been granted . . . the opportunity to re-apply for tenure in 2010-11.” (Id. at 55–56.)
The jury found for Dr. Tudor on this second discrimination claim. (Id. at 72.)
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narrow, being limited to determining ‘whether the appointment or promotion was denied
because of a discriminatory reason.’” (quoting Smith v. Univ. of N.C., 632 F.2d 316, 346
(4th Cir. 1980))).
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 Title VII exemption for educational
institutions in 1972, making them unquestionably subject to Title VII’s general
prohibitions. Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, 86 Stat.
103, codified at 42 U.S.C. § 2000e-1 (1988); Univ. of Penn. v. EEOC, 493 U.S. 182, 190
(1990) (“The effect of the elimination of this exemption was to expose tenure
determinations to the same enforcement procedures applicable to other employment
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
Title VII solely because Southeastern is an educational institution. See Kunda v.
Muhlenberg Coll., 621 F.2d 532, 550 (3d Cir. 1980) (“The fact that the discrimination in
this case took place in an academic rather than commercial setting does not permit the
court to abdicate its responsibility to insure the award of a meaningful remedy.”). Not
only that, but a tenure decision is often the most important point in a professor’s career.
It would not make sense for courts to subject such a significant determination to less
scrutiny than other, less important education decisions.
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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
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he grant of reinstatement, we still analyze the district court’s front pay award as it
relates to Dr. Tudor’s entitlement to front pay from the time of judgment until she is,
in fact, reinstated with tenure.
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
14 In its front pay order, the court initially seemed to grant front pay for the
fourteen-month time frame occurring during the backpay period between when Dr.
Tudor was terminated from Southeastern and when she obtained employment at
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Backpay starts at the time of deprivation and ends when the evidence is
submitted to the factfinder at the close of trial. Zisumbo, 801 F.3d at 1203. Front
pay, on the other hand, typically begins at the time of judgment. Pollard, 532 U.S. at
846. Here, however, the case was submitted to the jury in November 2017, but the
court did not enter judgment until June 2018. The law is clear that front pay begins
at judgment, id., yet the Tenth Circuit has stated that courts must strive to provide
make-whole relief. Zisumbo, 801 F.3d at 1203. Therefore, in a case where there is a
gap between when backpay ends and front pay begins, as here, it is the district
court’s responsibility under its equitable power and discretion to add an additional
amount to the front pay award beginning at the close of evidence when backpay
ceased, to account for that gap.
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).
Collin College. The Court later clarified that it “is aware that front pay is an award
for future damages, not compensation for the period between the end of employment
and the trial.” (Tudor R. vol. 5 at 80.) The front pay award, then, did not actually
compensate for lost wages prior to trial, but instead used the fourteen-month period
during which Dr. Tudor previously found work at Collin College as an objective
measure of when she could reasonably be predicted to find reemployment in the
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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
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fourteen months, the district court predicted that, moving forward, she could do so
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
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”
15 See also Rasimas v. Mich. Dep’t of Mental Health, 714 F.2d 614, 624 (6th
Cir. 1983); Graefenhain v. Pabst Brewing Co., 870 F.2d 1198, 1203 (7th Cir. 1989).
Weaver v. Casa Gallardo, Inc., 922 F.2d 1515, 1527 (11th Cir. 1991), superseded by
statute on other grounds, Pub. L. No. 102-166, 105 Stat. 1071.
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while working for the defendant). Although economic factors will often
predominate, other, noneconomic factors must also be considered and will vary in
type and importance from case to case. See Davoll, 194 F.3d at 1145 (“Because the
purpose of front pay is to make each plaintiff whole, the district court must look at
the individualized circumstances of each plaintiff.”). Here, relevant factors in
addition to compensation include availability of tenure and promotion, academic
opportunities, prestige, job responsibilities, subject matter taught, and so on—we do
not intend to be exhaustive. Courts must consider and balance the wide variety of
factors relevant to the particular job at issue, comparing the positions as a whole.
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
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i. Annual Compensation Amount
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
16 Dr. Tudor has adequately raised and preserved her argument that the
$51,463.52 salary was erroneous. First, she brought the error to the district court’s
attention below in her motion for reconsideration of front pay. (Tudor R. vol. 5 at 53
(“[T]he $51,463.52 figure, which the front pay order identifies as Tudor’s ‘yearly
compensation,’ is actually the pro-rated projected 2017-18 term salary over a 253-
day period . . . not annual salary.”).) After this motion was denied and the district
court entered judgment, Dr. Tudor again adequately raised this argument before this
Court on appeal. (Tudor Br. 30–31, 58 (“It appears that the [$51,463.52] rate’s
genesis is a misreading of Dr. Tudor’s front pay calculation table. The court mistook
the . . . pro-rated figures to be full year earnings . . . .”).)
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on this very next line an entire year of salary and benefits had Dr. Tudor not been
wrongfully denied tenure are being accounted for. (Id.)
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
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
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employed at Southeastern, whereas Dr. Tudor’s table accounts for the tenure
promotion the jury found she should have earned, (Tudor R. vol. 4 at 171 (“Tudor’s
front pay base salary and benefits should be calculated as if Tudor had not been
denied tenure and promotion rather than based upon what Tudor was paid at the time
of her termination in May 2011.”)); and 3) the stipulation refers to Dr. Tudor’s salary
in 2010-11, whereas the table calculates the salary Dr. Tudor would have earned in
2017-18 and beyond, including, presumably, taking into account raises in those
intervening years, (id. at 217 (showing that Dr. Tudor’s salary calculation added
amounts for degree, rank, and experience to her but-for compensation)). Confusing
the prorated $51,463.52 figure in Dr. Tudor’s table (representing the tenured
compensation—including benefits—she would have received at Southeastern for only 8.5
months of the 2017-18 academic year had she been granted tenure earlier in 2009-10)
with the $51,279 figure in Dr. Tudor’s stipulation (representing the untenured annual
salary—not including benefits—that Dr. Tudor actually received in her last year working
at Southeastern in 2010-11), was therefore comparing apples to oranges.
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
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stipulation that plainly referred to completely different circumstances. We next
consider the district court’s decision to terminate front pay after fourteen months. In
doing so, we assume that Dr. Tudor’s annual compensation at Southeastern would
have been much higher than what the district court found below.17
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,
17 We leave this ultimate calculation to the district court on remand but
observe for the purposes of comparing Southeastern to Collin College in the
following section that Dr. Tudor’s actual yearly compensation at Southeastern from
November 20, 2017, to November 20, 2018, had she not been denied tenure would
have been closer to $74,000.
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however, the Southeastern and Collin College earnings are not comparable. The
salary Dr. Tudor should have been earning at Southeastern had she not wrongfully
been denied tenure at the beginning of the front pay period (around $67,000 after
deducting benefits from her total compensation) was about 30 percent higher than Dr.
Tudor’s starting salary at Collin College and about 15 percent higher than her highest
salary at Collin College—even without accounting for raises at Southeastern during
that same four-year period. That is not a substantially equivalent salary.
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
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fourteen-month period until Dr. Tudor obtained an untenured teaching position at
Collin College as a benchmark for the time in which she could be expected to obtain
other substantially equivalent employment in the future, because the Collin College
position was not substantially equivalent to a tenured teaching position at
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
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court. We leave it to the court’s discretion to decide whether to reopen the record or
to hold the parties to the record already created.
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. 42 U.S.C. § 1981a(a)(1),
(b)(3)(D). The statute excludes from the cap “backpay, interest on backpay, or any
other type of relief authorized under section 706(g) of the Civil Rights Act of 1964.”
Id. § 1981a(b)(2). In addition to the explicit exclusion of backpay, it is well
established by Supreme Court and Tenth Circuit precedent that the Title VII cap also
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does not apply to front pay. Pollard, 532 U.S. at 852 (“[F]ront pay is excluded from the
statutory cap.”); Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 556 (10th Cir. 1999).
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
42 U.S.C. § 1981a(b)(3)(D) applies to this case.” (SE App. vol. 2 at 335.) This
stipulation controls over the pleadings. Wilson v. Muckala, 303 F.3d 1207, 1215
(10th Cir. 2002). The Title VII cap was in effect.18
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.” U.S. Const. amend.
18 Dr. Tudor also argues that the cap should not apply because Southeastern did
not object to the general jury verdict form, which made it impossible for the district court
to know for certain how much of the jury’s award was intended for the capped
compensatory damages as opposed to uncapped backpay. See Pals v. Schepel Buick &
GMC Truck, Inc., 220 F.3d 495, 499–501 (7th Cir. 2000) (refusing to apply Title
VII’s damages cap where the defendant-employer failed to object to similar jury verdict
form). But Dr. Tudor also failed to raise the ambiguity of the verdict form below, and
this precludes her from making this argument now. See Okland Oil Co. v. Conoco Inc.,
144 F.3d 1308, 1319 (10th Cir. 1998) (“[A] party who fails to bring to the trial court’s
attention . . . ambiguities . . . may not seek to take advantage of such ambiguities on
appeal.”) We are not bound by Pals’ contrary result, and regardless Pals is
distinguishable, because the record shows that Dr. Tudor was aware of the cap at trial.
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VII. Because the district court’s application of the damages cap did not violate the
Seventh Amendment, we affirm.
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
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persuaded” that even that amount had been given based on the evidence.19 (Tudor R.
vol. 5 at 82.) Having calculated the amount of backpay, the court set aside that
uncapped amount ($60,040.77) and applied the $300,000 cap to the remaining
$1,104,959.23 in capped compensatory damages, resulting in a total jury award of
$360,040.77—$300,000 in capped compensatory damages and $60,040.77 in
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
19 This backpay award presumably suffers from the same inaccuracies as the
identical front pay award, but we do not address them here nor remand for a
recalculation of backpay because regarding backpay Dr. Tudor challenges only the
constitutionality of the district court’s allocation between capped and uncapped
damages, not the numerical calculation involved in that allocation.
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entire $1.165 million could theoretically have been intended as uncapped damages.
That presents a novel question under the Seventh Amendment.
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
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permissibly applied the cap to the remainder. Dr. Tudor’s reexamination argument
therefore misses the mark.
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 Fed. R. Civ. P.
39(c))). Although there was no objection in this case to submitting backpay to the
jury, in fact the jury did not make any specific findings of backpay, as already
discussed. Instead, it issued only a general damages award. Thus, there can be no
doubt about the judge’s ultimate authority to allocate what portion of this damages
award should be considered backpay because this determination falls within her
equitable authority to decide backpay and it does not conflict with any express jury
finding. See Bartee v. Michelin N. Am., Inc., 374 F.3d 906, 913 (10th Cir. 2004).
In addition, our conclusion makes sense when considering the reality that
judges constitutionally adjust or even reverse jury verdicts in other contexts.
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Remittitur20 and judgment as a matter of law are two well-established examples.
Prager v. Campbell Cnty. Mem’l Hosp., 731 F.3d 1046, 1061 n.8 (10th Cir. 2013)
(remittiturs are constitutional); Neely v. Martin K. Eby Const. Co., 386 U.S. 317, 321
(1967) (Rule 50(b) is constitutional). In fact, Dr. Tudor’s Reexamination Clause
argument seems more akin to a typical remittitur challenge that the district court
abused its discretion in reducing the jury award by the amount that it did (in this
case, allocating $60,040.77 to backpay when it could have theoretically determined
the entire award was attributable to backpay). See Prager, 731 F.3d at 1061 (“We
review the trial court’s decision regarding remittitur for an allegedly excessive
damages award for an abuse of discretion.” (quoting Palmer v. City of Monticello, 31
F.3d 1499, 1508 (10th Cir. 1994))).21 Learning from the remittitur context, Dr. Tudor
could have challenged—but didn’t—the district court’s calculation of backpay as an
abuse of discretion, arguing for a higher amount to be allocated to uncapped
20 Dr. Tudor refers to the district court’s application of the cap as a remittitur,
but she seems to do so only in the sense that the district court reduced the damages
award as part of its application of the damages cap. Rather than “substitute its own
evaluation of the evidence regarding damages for the jury’s factual findings”—a
remittitur—the district court simply “determine[ed] that the law does not permit the
[jury] award” as per the statutory cap. Cartel Asset Mgmt. v. Ocwen Fin. Corp., 249
F. App’x 63, 80–81 (10th Cir. 2007) (unpublished) (quoting Corpus v. Bennett, 430
F.3d 912, 917 (8th Cir. 2005)). 21 While our analogy between remittiturs and the district court’s application of
the cap is admittedly imperfect because, in order to be consistent with the Seventh
Amendment, judges must offer plaintiffs the choice between remittitur and a new
trial, Sloan v. State Farm Mut. Auto. Ins. Co., 360 F.3d 1220, 1225 (10th Cir. 2004),
there is nonetheless no doubt that remittitur represents a similar instance in which a
judge may permissibly examine the jury verdict. Whether the plaintiff chooses
remittitur or a new trial, the original jury award will not stand.
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damages, rather than challenging the constitutional application of the cap under the
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. 42
U.S.C. § 2000e-5(g)(1). That backpay is a form of equitable relief, traditionally
under the judge’s discretion, supports our conclusion that the district court’s own
calculation of backpay and subsequent application of the cap under these
circumstances, where the jury did not explicitly find backpay, was constitutional.
See Zisumbo, 801 F.3d at 1203 (observing that “[d]istrict courts possess considerable
discretion to devise appropriate remedies for Title VII violations” in the context of
reviewing district court’s backpay calculation); see also Galloway v. United States,
319 U.S. 372, 392 (1943) (“[T]he [Seventh] Amendment was designed to preserve
the basic institution of jury trial in only its most fundamental elements, not the great
mass of procedural forms and details.”).
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
22 The availability of such a challenge will prevent arbitrary or clearly
erroneous allocations between capped and uncapped damages.
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the district court’s application of the cap to the jury award after setting aside backpay
damages was constitutional. We reject Dr. Tudor’s final challenge and affirm the
jury award of $360,040.77.
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. 42 U.S.C. § 2000e-5(k); see also Christiansburg Garment
Co. v. EEOC, 434 U.S. 412, 417 (1978). We find that Dr. Tudor is the prevailing
party below and on both appeals. We therefore remand for the district court to
calculate and award Dr. Tudor attorneys’ fees at both the district and appellate levels.
Outcome: 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.
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