Szeinbach v. Ohio State Univ.

• Decision Date: 20 April 2016
• Docket Number: No. 15–3016.,15–3016.
• Citation: 820 F.3d 814
• Parties: Sheryl L. SZEINBACH, Plaintiff–Appellant, v. The OHIO STATE UNIVERSITY, Defendant–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

820 F.3d 814

Sheryl L. SZEINBACH, Plaintiff–Appellant

v.The OHIO STATE UNIVERSITY, Defendant–Appellee.

No. 15–3016.

United States Court of Appeals, Sixth Circuit.

April 20, 2016.

ON BRIEF: Eric Rosenberg, Rosenberg & Ball Co. LPA., Granville, Ohio, for Appellant. Amy Nash Golian, Michael C. McPhillips, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

Before: MERRITT, BATCHELDER, and GILMAN, Circuit Judges.

OPINION

RONALD LEE GILMAN, Circuit Judge.

Dr. Sheryl Szeinbach sued The Ohio State University (OSU) for discrimination and retaliation under Title VII of the Civil Rights Act of 1964. After a three-week trial, the jury returned a verdict awarding her $513,368 in damages. The first $300,000 of the award represented compensatory damages for emotional suffering, harm to her professional reputation, and other losses; the remaining $213,368 represented back pay to account for the higher income that Szeinbach allegedly would have earned in the absence of OSU's illegal conduct.

OSU moved for a remittitur of the award on the ground that it was excessive in relation to the evidence of damages that Szeinbach had put forward at trial. The district court denied the motion with respect to the compensatory damages but granted the motion with respect to the jury's award of back pay. Accordingly, the court reduced Szeinbach's damages by $213,368.

Szeinbach now appeals, arguing that she had adequately proved her entitlement to back pay. Because we conclude that the evidence she submitted on this issue was wholly speculative, we AFFIRM the judgment of the district court.

I. BACKGROUND

A. Szeinbach's hiring and allegations of discrimination

OSU hired Szeinbach in January 1999 as a full professor with tenure in the College of Pharmacy (COP). Szeinbach has remained in that position without interruption since her initial hiring. She is specifically employed as a professor within the COP's Division of Pharmacy Practice and Administration. Until recently, that division also included doctors Enrique Seoane–Vazquez (who is of Spanish origin) and Rajesh Balkrishnan (who is of Indian origin).

In 2005 and 2006, Szeinbach allegedly observed Balkrishnan and others in the COP discriminate against Seoane by, among other things, preparing an unfavorable employment evaluation. She also claims that, on several occasions, Balkrishnan discriminated in favor of Indian students.

Szeinbach raised her concerns about Balkrishnan in a 2005 email to the dean of the COP, stating that the evaluation of Seoane had been “intentionally very biased.” In addition, Szeinbach allegedly continued to observe discriminatory conduct that left her convinced that “people were really trying to sabotage” Seoane's research. These concerns brought Szeinbach into conflict with Balkrishnan. The two argued and traded insults at staff meetings, and they each complained about the other to fellow members of the COP faculty.

During this time, Seoane filed both an internal complaint and an Equal Employment Opportunity Commission (EEOC) charge against OSU, contending that he had been the victim of discrimination. Szeinbach later alleged that she had supported Seoane's efforts by listening to his concerns and providing him with a copy of her earlier email to the COP dean. She also filed her own internal complaint against Balkrishnan and other specific members of the OSU faculty, alleging that they had retaliated against her for supporting Seoane.

The conflict between Szeinbach and Balkrishnan escalated in April 2007, when Balkrishnan sent a letter to the editor of the Primary Care Respiratory Journal. His letter claimed that an article that Szeinbach had published in the journal was nearly identical to an earlier article that Szeinbach had published in another journal in 2005, and that Szeinbach had failed to follow professional norms by neglecting to cite the earlier article. Balkrishnan then sent similar correspondence to the dean of the COP and to a group of professors at other universities.

The next month, Balkrishnan filed an internal complaint against Szeinbach on the basis of the same allegations. This resulted in the formation of a Committee of Initial Inquiry to review Balkrishnan's claims. The Committee concluded that Szeinbach's use of and failure to cite her earlier 2005 article demonstrated the “poorest of scholarly practices” and warranted further investigation. Subsequently, however, OSU changed its internal standards regarding the research-misconduct review process. Szeinbach's conduct did not warrant scrutiny under the new standards, which caused OSU to close its investigation.

In the meantime, Szeinbach published a correction in the Primary Care Respiratory Journal where she acknowledged that she was “remiss” in not citing her earlier article. The journal also included a note in which the journal's editors chastised Szeinbach and explained that her conduct did not conform to the standards of professionalism that the journal expected of its authors.

In August 2007, Balkrishnan sent an email link to the editors' note to the entire COP faculty, adding that the matter was one “of great shame and disrepute” to the COP. He also continued to argue with Szeinbach and, at a September 2007 faculty meeting, he lost his temper, shouted at Szeinbach, and called her a “bitch.”

Szeinbach responded to these events by filing a charge of discrimination and retaliation with the EEOC. She subsequently received a right-to-sue letter and filed the current lawsuit.

B. Szeinbach's claims, the trial, and the jury award

Szeinbach's complaint alleged that OSU discriminated and retaliated against her because of her support for Seoane. She specifically identified (1) the investigation into her publication history, and (2) Balkrishnan's outburst at the September 2007 faculty meeting as incidents of discriminatory and retaliatory conduct. In addition, she alleged that the emails that Balkrishnan sent to COP faculty members and to professors at other universities were part of a “Retaliation Plan” that was specifically designed to punish Szeinbach for her support of Seoane.

The case eventually proceeded to a jury trial in June 2014, at which time Szeinbach testified about the alleged effects of OSU's conduct. She contended that the dissemination of information about the investigation of her publication history violated the university's confidentiality policy and that this dissemination harmed her reputation in the scientific community.

Szeinbach also addressed her continued employment with OSU and her pursuit of other job opportunities. She said that, in 2006, she had briefly explored an alleged opening with the University of Arkansas, but acknowledged that she had received no offer of employment for the position. Later, she stated that she gave a seminar at the University of Kentucky in 2011, but that she had little to no contact with that university following her presentation. Finally, she stated that she had “not really looked for a job” after the investigation into her publication history because she preferred to get “this [controversy] taken care of according to Ohio State's own policy.”

The jury also heard testimony from Szeinbach's expert witness, Dr. Stephen Schondelmeyer. He compared the salary that Szeinbach earned while working at OSU to the salaries paid to professors of pharmacy at other universities. To do so, he relied on statistics collected by the American Association of Colleges of Pharmacy. These statistics allowed him to calculate the median salary for pharmacy professors, taking into account factors such as the professors' status (tenured, visiting, etc.) and research productivity. He accordingly explained that he was able to compare Szeinbach's salary at OSU to the salary of similarly situated professors at other major universities. In the end, Schondelmeyer concluded that Szeinbach had been paid less at OSU than she would have been paid at one of these other institutions. He calculated the salary differential over the relevant time period as $213,368.

During closing arguments, Szeinbach's attorney asked the jury to award two kinds of damages. He first requested an award of $300,000, representing the maximum compensatory damages allowed under 42 U.S.C. § 1981a(b)(3). Second, he requested a back-pay award in an amount sufficient to compensate Szeinbach for the alleged salary differential between OSU and other comparable universities. He argued that this latter award was appropriate because the reputational harm associated with OSU's conduct had prevented Szeinbach from obtaining a position with a higher-paying employer. In support of this claim, counsel cited Schondelmeyer's testimony and urged the jury to award approximately $213,000 as “the number that [Szeinbach] has lost since 2007 because she can't go to a job somewhere else.”

Ultimately, the jury returned a verdict in favor of Szeinbach on the ground that OSU was responsible for Balkrishnan's discriminatory and retaliatory actions. The jury awarded Szeinbach a total of $513,368 in damages.

C. Post-trial proceedings

In July 2014, OSU moved for a new trial or, in the alternative, for a remittitur. The district court denied the motion for a new trial, see Szeinbach v. Ohio State Univ., No. 2:08–CV–822, 2014 WL 7741404, at *24 (S.D.Ohio Dec. 12, 2014), and that decision is not part of the present appeal. With regard to the motion for a remittitur, however, the court reduced the jury award down to the $300,000 cap set forth in 42 U.S.C. § 1981a(b)(3). Id. at *25–27.

In opposing this reduction, Szeinbach argued that the $213,368 excess was exempt from the § 1981a(b)(3) cap because the excess constituted an award “for lost back pay opportunities.” Id. at *25. The district court rejected this argument on two grounds. First, it concluded that Szeinbach had not presented an adequate factual basis for the excess. It noted that Szeinbach relied on Schondelmeyer's testimony to support her arguments, but the court then concluded that...