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Transgender professor denied tenure gains reinstatement with tenure on appeal

By Brandi O. Brown, J.D.

A transgender female professor, who was denied tenure and who prevailed on her claim of sex discrimination stemming from that decision after a jury trial, was, on appeal, able to obtain additional relief in the form of reinstatement with tenure, as well as recalculation of the district court’s front pay award. The court denied the university’s cross-appeal, concluding that the jury verdict was supported by the evidence, but in response to the employee’s appeal, it reversed the lower court’s reinstatement and front pay rulings and remanded. Whether reinstatement was “appropriate and feasible” was not even a “close question” in this case, the court explained, and the clear preference for reinstatement tipped the scale (Tudor v. Southeastern Oklahoma State University, September 13, 2021, Ebel, D.).

Transitioned in 2007. Four years after earning a Ph.D. in English, the employee landed a tenure-track position at Southeastern Oklahoma State University. At the time she presented as a male. In 2007, however, she informed her employer that she planned to transition from male to female and that she would present as a woman when she returned the next semester to teach. In 2008 she submitted her tenure portfolio to a faculty committee but withdrew it after the committee voted against her.

Committee’s vote overruled. In the following school year, she submitted her portfolio again, providing evidence to support all three criteria assessed as part of the tenure-application process—scholarship, service, and teaching—and the committee recommended she receive tenure by a four-to-one vote. The department chair, who was the next step in the process, recommended tenure as well. However, in what the employee and at least one other witness described as unheard of, the Dean, the Vice President, and the President all recommended denial. Usually once the faculty committee recommends granting tenure, the administration follows suit.

Not allowed to reapply. The employee filed discrimination complaints with the faculty appellate committee, the affirmative action officer, and, ultimately, the EEOC. She also resubmitted her tenure application in the next school year, which was the last year in which she could apply. However, she was told by the Vice President that she could not reapply, even though it was not specifically proscribed by the university’s policies and procedures. She appealed to the faculty appellate committee, which determined that, under the rules, she should be permitted to reapply. Nevertheless, the administration would not back down, and she was not allowed to reapply. Her contract with the university expired and was not renewed in spring 2011. She filed another discrimination complaint with the EEOC, which referred the matter to the U.S. Department of Justice. In 2017 the university and the DOJ settled the action the latter filed based on these actions, with the employer agreeing to policy changes aimed at reducing discrimination.

Jury found for professor. However, the employee’s claims against the university continued, ultimately going before a jury. The jury found in the employee’s favor on her discrimination and retaliation claims, but in the employer’s favor on her hostile work environment claim. It awarded the employee a lump sum of $1.165 million in damages, which encompassed both backpay and compensatory damages, to which the court applied the Title VII damages cap, resulting in a $360k award. When the employee’s request for reinstatement was denied, she requested over $2 million. She was awarded only $60,000. Both parties appealed.

University’s appeal. Because of the Bostock decision, which overruled Tenth Circuit precedent, the employer conceded its arguments about transgender discrimination not constituting a Title VII violation. The court also rejected the employer’s argument that the district court abused its discretion in allowing testimony by the employee’s tenure expert and noted that an expert’s comparison of the employee’s tenure application to those of successful applicants could “shed light” for a jury of laypeople unfamiliar with the tenure process on whether the employer’s reasons for denying tenure in this case—alleged lack of scholarship and service—were disingenuous.

Regarding the lower court’s denial of the employer’s motion for judgment as a matter of law, the appeals court concluded that it was clearly sufficient for a jury to find by a preponderance of the evidence that the professor was denied tenure in 2009-10, as well as denied the opportunity to reapply, on the basis of sex, and that the employer also refused to allow her to reapply in retaliation for her Title VII complaints.

Other evidence of bias. The court noted additional pieces of evidence supporting its conclusion. Those included: statements by the Dean about the employee’s appearance; the Vice President’s statements about her lifestyle and his recommendation that she be summarily fired when he learned she was transgender; the Affirmative Action Officer’s sarcastic reference to her new identity; her expert’s testimony that she was more qualified than other professors in her department who were granted tenure; testimony from other professors that she was qualified and that they had never heard of a rule barring tenure application for tenure after a denial; and the close temporal relationship between her protected activity and the denial of her opportunity to reapply.

Additionally, the court found sufficient evidence to support her “cat’s-paw” theory of recovery, from which a jury could conclude that the President rubberstamped the Vice President’s decisions and the latter’s decisions were based on discriminatory animus.

Professor’s appeal. The professor’s appeal was more fruitful. She argued that the district court should not have denied her request for reinstatement and the appeals court agreed. Courts “must start with the strong preference for reinstatement,” the appeals court explained, and only then ask if the employer overcame that presumption by establishing that extreme hostility between the parties should prevent it. The court’s inquiry, the appeals court explained, “does not take place on a level playing field” and the hostility should be “extreme” in order to defeat the preference for reinstatement. Absolute harmony is not required, nor is the extreme hostility test a “measure of affection” between the employee, employer, and coworkers. In fact, the court noted that coworkers often do not like one another and that does not always correlate with their ability to work together. “Courts must look beyond ill feeling and instead address simply whether a productive working relationship would still be possible,” the court explained, “and they must do so through the lens of a strong preference for reinstatement.”

Extreme hostility is an objective test, the court added, and it would apply a preponderance of the evidence standard, to ask whether it was more likely than not that extreme hostility would make a productive working relationship impossible. In this regard, it also mattered which party was making the claim of extreme hostility. In this case, the employer is a large institution with resources to eliminate or ameliorate hostility from its end and the employee is affirmatively seeking reinstatement.

Reinstatement possible and preferable. Under the circumstances, the appeals court concluded, it was “manifestly unreasonable” for the lower court to conclude that extreme hostility made reinstatement impossible. The evidence so clearly weighed against a finding of extreme hostility, the court added, that this was “one of those rare instances” where the appeals court had to conclude that it was an abuse of discretion on the part of the district court to deny the employee’s request for reinstatement with tenure.

The employer’s evidence of “extreme hostility” was based on hostility that occurred during litigation and a statement by the department’s current chair that some people did not want the employee to return. Neither were sufficient. In fact, there was evidence affirmatively demonstrating why extreme hostility was unlikely: (1) the university’s settlement agreement with the DOJ, which required it to implement policy changes and hold training to reduce discrimination; (2) the fact that the primary antagonists—the President, the Vice President, and the Dean—are all no longer at the university; and (3) the insulated structure and nature of the tenured professorship itself.

With tenure. It was also appropriate, based on the jury’s findings, to reinstate the employee with tenure. The jury’s verdict in favor of the employee established that she would have been granted tenure absent discrimination. The court’s decision, therefore, restored her to the position she would have been in had the employer not discriminated against her. The employer appeared to argue for a “special rule of deference to educators,” the court noted, “but illegal decisions by educational institutions do not enjoy special sanctity.”

Front pay miscalculated. In addition to reinstatement with tenure, the court also concluded that the employee should have been awarded greater front pay than she received. The amount used by the district court for its calculation was “verifiably incorrect.” Moreover, the position she was able to secure 14 months after her termination—an untenured position at a community college—was not substantially equivalent to a tenured professorship. As a result of errors, the front pay award did not make the employee whole.

Remand. However, the appeals court affirmed the district court’s decision regarding application of the statutory damages cap, in spite of a “novel question” she raised under the Seventh Amendment. Finally, the court, in addition to remanding the decision for recalculation of front pay, also remanded to the district court to calculate and award the employee’s attorneys’ fees at both the district and appellate levels.