Tudor v. Se. Okla. State Univ.
| Decision Date | 13 September 2021 |
| Docket Number | Nos. 18-6102,18-6165,s. 18-6102 |
| Parties | Dr. Rachel TUDOR, Plaintiff - Appellant/Cross-Appellee, v. SOUTHEASTERN OKLAHOMA STATE UNIVERSITY; The Regional University System of Oklahoma, Defendants - Appellees/Cross-Appellants. National Women's Law Center; A Better Balance; Alliance for a Just Society ; American Association of University Women ; American Federation of Teachers ; Atlanta Women for Equality, California Women Lawyers; Colorado Women's Bar Association ; Colorado Organization for Latina Opportunity and Reproductive Rights; DC Coalition Against Domestic Violence, End Rape on Campus; Gender Justice ; Girls for Gender Equity; If/When/How: Lawyering for Reproductive Justice; In Our Own Voice: National Black Women's Reproductive Justice Agenda; Lawyers Club of San Diego; Legal Aid at Work; Legal Voice; National Asian Pacific American Women's Forum; National Crittenton ; National Employment Lawyers Association; National LGBTQ Task Force; National Network of Abortion Funds; National Organization for Women Foundation ; National Partnership for Women & Families; National Women's Political Caucus; Oklahoma Coalition for Reproductive Justice; Sargent Shriver National Center on Poverty Law; Sisterreach; The Women's Law Center of Maryland ; Women's Law Project; Women's Bar Association of the District of Columbia; Lambda Legal Defense & Education Fund, Inc., Amici Curiae. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Jillian T. Weiss, Law Office of Jillian T. Weiss, P.C., Brooklyn, New York (Ezra Ishmael Young, Law Office of Ezra Young, Brooklyn, New York; Brittany M. Novotny, National Litigation Law Group PLLC, Oklahoma City, Oklahoma; Marie Eisela Galindo, Law Office of Marie E. Galindo, Lubbock, Texas, on the briefs), for Plaintiff-Appellant.
Zachary West, Assistant Solicitor General (Andy N. Ferguson, Staff Attorney, with him on the briefs), Office of Attorney General, Oklahoma City, Oklahoma, for Defendants-Appellees.
Erica C. Lai, Cohen & Gresser LLP, Washington, D.C. (Emily Martin and Sunu P. Chandy, National Women's Law Center, Washington, D.C.; Melissa H. Maxman and Danielle C. Morello, Cohen & Gresser LLP, Washington, D.C.; Danielle E. Perlman, Cohen & Gresser LLP, New York, New York, with her on the brief), for Amici Curiae National Women's Law Center, et al.
Gregory R. Nevins, Lambda Legal Defense and Education Fund Inc., Atlanta, Georgia, for Amicus Curiae Lambda Legal.
Before HARTZ, EBEL, and McHUGH Circuit Judges.
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 jurisdiction under 28 U.S.C. § 1291, we AFFIRM in part and REVERSE in part and REMAND for further proceedings.
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.
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 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.
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.
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 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).
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 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.
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 Justice (DOJ).
Fourteen months after leaving Southeastern, Dr. Tudor obtained an English teaching position on an untenured, one-year contract basis at Collin College, a two-year community college in Texas. After Dr. Tudor taught at Collin College for four years, that college declined to renew Dr. Tudor's contract, citing negative evaluations and poor-quality teaching. She has since looked for work but has remained unemployed.
The DOJ filed a complaint against Southeastern in March 2015, alleging sex...
To continue reading
Request your trial
-
Miller v. CNH Indus. Am.
... ... Tudor v ... Se. Okla. State Univ. , 13 F.4th 1019, 1029 (10th Cir ... ...
-
United States ex rel. Barrick v. Parker-Migliorini Int'l
...was untenable. PMI cited in support an email exchange proposing a jury instruction on front pay but not reinstatement. Relying on Tudor,[13] the district court found even reinstatement may be difficult, PMI's argument that Mr. Barrick showed reinstatement was untenable did not rise to extre......
-
Fed. Trade Comm'n v. Nudge LLC
... ... harmonize “state regulation of consumer sales practices ... with the policies ... 1992) (unpublished) ... [ 74 ] See Tudor v. Se. Oklahoma State ... Univ. , 13 F.4th 1019, 1029 (10th Cir ... ...
-
ClearOne, Inc. v. PathPartner Tech.
... ... [the witness's] disclosure must state: (i) the subject ... matter on which the witness is expected to ... Dist. LEXIS 261067, at *14-15 ... (W.D. Okla. Dec. 11, 2020) (“[H]ere, a proper summary ... of the facts ... testimony can be based on experience, see Tudor v. Se ... Okla. State Univ. , 13 F.4th 1019, 1030 (10th Cir. 2021), ... ...