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Szeinbach v. The Ohio State Univ., No. 15-3016 (6th Cir. Apr. 20, 2016)

The Sixth Circuit holds, in an opinion that potentially expands remedies for Title VII claimants, that a back-pay award may include amounts that an employee could have earned from alternative employment, had the employer not engaged in discrimination or retaliation. Nonetheless, the court holds that the employee in this particular case failed to prove that she suffered such damages.

Szeinbach v. The Ohio State Univ., No. 15-3016 (6th Cir. Apr. 20, 2016): The availability of back pay (as a form of make-whole relief) is critical for Title VII claimants - because, unlike other forms of Title VII monetary relief, back pay is not capped at $300,000 (for the largest employers) under 42 U.S.C. § 1981a(b)(3). Back pay is typically awarded in cases where a plaintiff is separated from employment and loses income, though his case demonstrates that back pay can be awarded in other circumstances.

The plaintiff was a doctor on faculty at the defendant university. She alleged that she observed a colleague in her department, Dr. Balkrishnan, discriminate in favor of Indian students and against a doctor of Spanish origin (Dr. Seoane). Dr. Szeinbach took her complaints to the dean of the College of Pharmacy (COP).

Dr. Balkrishnan allegedly took reprisals against Dr. Szeinbach by, among other things, publishing a letter in a professional journal claiming "that an article that Szeinbach had published in the journal was nearly identical to an earlier article that Szeinbach had published in an other journal in 2005, and that Szeinbach had failed to follow professional norms by neglecting to cite the earlier article." Dr. Balkrishnan circulated the critical letter to the Dean, the COP faculty, and professors at other institutions. As a result, Dr. Szeinbach was subjected to a professional inquiry (which concluded without action against the plaintiff).

Despite the challenge of working on the same faculty as Dr. Balkrishnan, the plaintiff did not quit and was not terminated. She did testify, though, that she was unable to focus on other opportunities outside of COP because of the controversy. An expert witness testified, based on an analysis of comparable programs, that the plaintiff might have earned $213,368 more at a different school over the same period.

The plaintiff filed a Title VII action, alleging - among other things - that Dr. Balkrishnan's campaign "harmed her reputation in the scientific community" and cost her employment opportunities at other universities that would have been more remunerative than her position at the COP.

"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."

Notwithstanding the verdict, the district court judge vacated the back-pay award. While the university did not take an appeal from the liability finding, the plaintiff appealed the remittitur of the back-pay relief.

The district court believed that back pay "could not be based on an amount that an employer other than the discriminating defendant itself would have paid." But the Sixth Circuit rejects that limitation as inconsistent with the plain language of the act:

"The statute provides that an award of back pay shall be 'payable by the employer . . . responsible for the unlawful employment practice,' but says nothing about how to calculate the amount that the responsible employer must pay. Hence, even though the culpable employer itself must indeed pay the appropriate amount of back pay, nothing in the statute forecloses the possibility that the amount might depend on what the plaintiff could have earned while working for a different employer."

Thus, a plaintiff may argue that an act of discrimination or retaliation that "resulted in the withdrawal of [an] offer" from a competing institution creates Title VII liability for the lost difference between what the plaintiff earned and what she could have earned elsewhere.

Nonetheless, in this case the panel holds that Dr. Szeinbach failed to prove such losses at trial. Because "a plaintiff must establish the amount of back pay with reasonable certainty," a court may not award amounts based on speculation that the plaintiff might have obtained a higher-paying job.

Here, "Szeinbach said that she considered pursuing jobs at the University of Arkansas in 2006 and at the University of Kentucky in 2011," yet she not apply or interview to work at either school. The other institutions enjoyed "discretion in their hiring decisions, and nothing in the record indicates that Szeinbach had any legitimate basis to believe that she would likely be employed by either of them." And the expert testimony did not advance her claim, because it too was based on "conjecture and speculation about [plaintiff's ] future job opportunities."

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