Gwenn Okruhlik v. Univ. of Arkansas , 395 F.3d 872 ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 03-2721
___________
Gwenn Okruhlik, *
*
Plaintiff/Appellant, *
*
v. *
*
University of Arkansas, *
*
Defendant/Appellee, * Appeal from the United States
* District Court for the
Donald O. Pederson, in his Official * Western District of Arkansas.
Capacity; Bernard Madison, in his *
Individual and Official Capacity; Mark *
Cory, in his Individual and Official *
Capacity; Adnan Haydar, in his *
Individual and Official Capacity; *
Mounir Farah, in his Individual and *
Official Capacity; Steven Neuse, in his *
Individual and Official Capacity; *
Donald Kelley, in his Individual and *
Official Capacity; Jeff Ryan, in his *
Individual and Official Capacity; Todd *
Shields, in his Individual and Official *
Capacity; Conrad Waligorski, in his *
Individual and Official Capacity, *
*
Defendants, *
*
Randall Woods, in his Official and *
Individual Capacity, *
*
Defendant/Appellee. *
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Submitted: April 15, 2004
Filed: January 24, 2005
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Before WOLLMAN, McMILLIAN, and RILEY, Circuit Judges.
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WOLLMAN, Circuit Judge.
Gwen Okruhlik appeals from the district court’s1 grant of judgment as a matter
of law to the University of Arkansas and Randall Woods following the jury’s verdict
in her favor on her claims of retaliation and hostile work environment based on sexual
harassment. We affirm.2
I.
We state the facts in the light most favorable to the verdict. Okruhlik was
offered a tenure-track position in the political science department of the Fulbright
College of Arts and Sciences at the University of Arkansas, Fayetteville, beginning
in 1995. In addition, she was hired to participate in the cross-disciplinary Middle
East Studies Program (the “Program”), established with a $20 million donation from
Saudi Arabia to the University. Okruhlik became extensively involved in trying to
develop the program, but soon experienced tension with some of the program’s male
faculty administrators and felt intentionally closed out of participation in its further
1
The Honorable Jimm Larry Hendren, United States District Judge for the
Western District of Arkansas.
2
We deny defendants’ motion for sanctions, but express our displeasure over
and our frustration with the lack of candor displayed by Appellant’s counsel during
oral argument. We expect, particularly in complicated, fact-intensive cases, that
counsel will aid our understanding of the record, not confuse or hinder it.
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development. She and three other faculty members (two women and one man)3
expressed their concerns about the management of the program to the then dean,
Bernard Madison, who initiated an investigation by a special committee. The
committee developed a report that formed the basis for restructuring the program.
Okruhlik’s relationship with male faculty members remained tense, both in her
department and in the program. In early 1998, prior to her third-year review, an
important milestone on the way to tenure-review in the sixth year, she began to
overhear conversations in the office adjacent to hers, which was occupied by Steve
Neuse, who became the chair of the political science department the following year.
The conversations, which occurred over several months, included dirty jokes and
negative comments about Okruhlik, deriding her work and expressing a desire to get
rid of her. Okruhlik told only her husband about the conversations until after they had
stopped. She then mentioned the conversations to Vice Chancellor for Academic
Affairs, Donald Pederson, who immediately took her to the Office of Affirmative
Action.
The results of Okruhlik’s third-year review were mixed, but she was
reappointed by Dean Madison for a fourth year. Okruhlik’s emotional and
psychological state deteriorated to the point that she found it necessary to take sick
leave in the spring of 1999, followed by research leave for an additional year.
Okruhlik filed an EEOC complaint in the fall of 1998, alleging discrimination and
harassment by a number of individual professors involved in the Middle East Studies
Program and her third-year review. She received a right to sue letter in April 1999,
but waited to file suit until May 2000. Randal Woods had succeeded Madison as
dean of Fulbright College in 1999. After Okruhlik filed the lawsuit, Woods became
concerned about how Okruhlik’s tenure review should be conducted and sent her a
3
One of her colleagues, Linda Schilcher, is the plaintiff in a separate lawsuit in
which we recently addressed questions of qualified immunity. Schilcher v. Univ. of
Arkansas, 387 F.3d 959 (8th Cir. 2004).
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letter detailing proposed changes in the process to ensure that the defendants named
in her lawsuit would not participate. Okruhlik observed that Woods became “cold”
towards her and would not help her prepare a strong tenure file, telling her that the
lawsuit had changed their relationship.
Okruhlik went through the multi-layered tenure process in early 2001.4
Okruhlik’s process differed slightly from the normal review process in that a
specially-formed personnel policy committee performed an independent evaluation
and that all of the defendants in the lawsuit, including Neuse, then chair of the
department, were precluded from voting on Okruhlik’s candidacy for tenure.
4
Tenure candidates in the political science department at the University of
Arkansas, Fayetteville, generally participate in the following process. Three external
evaluators within the political science discipline at other institutions evaluate the
candidate’s credentials. Department of Political Science Personnel Document,
section III(C)(2) (Department Policy); see also Fulbright College Personnel
Document § V(A) (Fulbright Policy). The chair of an elected personnel policy
committee (PPC) convenes a meeting with the tenured faculty in the department about
the candidate and produces a report. Department Policy § III(C)(2). The department
chair makes a separate written assessment, and both reports are sent to the dean. Id.
If either report is negative, the candidate may withdraw or appeal for reconsideration;
on reconsideration, the department chair and the faculty reassess the application,
along with any additional evidence. Id. The dean then submits all materials to an
elected college personnel committee (here the Fulbright Committee) which reviews
the case and makes a recommendation to the dean. Fulbright Policy § V(D). The
dean makes a recommendation and allows the candidate an opportunity to withdraw
or appeal for reconsideration before forwarding it on to the Vice Chancellor for
Academic Affairs. Id. The vice chancellor reviews the materials and makes a
recommendation. See Evaluative Criteria, Procedures and General Standards, §
III(B). If the vice chancellor’s recommendation is negative, the candidate may
request review by the Faculty Senate Committee on Appointment, Promotion and
Tenure, which performs an independent evaluation and makes a recommendation to
the chancellor. Id. The chancellor then makes a final recommendation to the
President and the Board of Trustees. Id. The President makes the final tenure
decision. Board Policy 405.1 § IV(A).
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Although Okruhlik received a positive recommendation from the special personnel
policy committee, she received a negative recommendation from the Fulbright
Personnel Committee, and Dean Woods ultimately recommended denial of tenure.
Okruhlik appealed Woods’s decision, and upon reconsideration, all parties reiterated
their prior conclusions. Woods forwarded his recommendation to Provost and Vice
Chancellor for Academic Affairs Bob Smith, who also issued a negative
recommendation, stating that “Dean Woods and the Fulbright College Personnel
Committee provide compelling arguments about the modest quality and unfocused
nature of your scholarship. These views are supported by the outside reviewers and
made more powerful by the absence of a publishable book-length manuscript.”
Appellant’s App. at 342. Okruhlik did not request further review upon receiving
Smith’s negative recommendation, so her candidacy was never considered by the
chancellor or the president. Because the probationary period for a tenure-track
faculty member may not extend beyond seven years, Board Policy 405.1 § IV(A)(4),
Okruhlik received a terminal appointment for her seventh year at the University.
Okruhlik’s lawsuit proceeded. After various pleadings and rulings, including
one by this court on matters unrelated to the current claims, Okruhlik v. Univ. of Ark.,
255 F.3d 615 (8th Cir. 2001) (addressing an 11th Amendment immunity issue),
Okruhlik filed a second amended complaint in March 2002, alleging that her tenure
process had been tainted by discriminatory animus. The district court granted the
defendants’ motion for summary judgment on some claims, D. Ct. Order of Oct. 2,
2002, but permitted the case to proceed to trial on the remaining claims.
At the conclusion of Okruhlik’s evidence, the defendants moved for judgment
as a matter of law. The district court granted the motion as to some of the defendants,
but allowed the trial to proceed on the remaining claims. The district court again
denied a similar motion at the close of the remaining defendants’ evidence and
submitted the case to the jury with specific interrogatories on Okruhlik’s disparate
treatment, Title VII retaliation, First Amendment retaliation, and hostile work
environment claims. The jury returned a verdict for the University on the disparate
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treatment claim, finding that gender was not a motivating factor in the decision not
to award tenure to Okruhlik. The jury found for Okruhlik and against the University
and Woods on the retaliation and hostile work environment claims, however, and
awarded damages totalling $353,000. It made the following findings by a
preponderance of the evidence in response to interrogatories presented by the court:
. . . that the University of Arkansas made a decision not to award Dr.
Okruhlik promotion and tenure and that the fact that Dr. Okruhlik
engaged in statutorily-protected activity was a motivating factor in that
decision.
. . . that Dean Randall Woods took adverse employment action against
Dr. Okruhlik because she made statements critical of the administration
of the Middle East Studies program or because she filed this lawsuit.
Appellant’s App. at 62-68.
The University and Woods once again moved for judgment as a matter of law
on all claims. The district court granted the motion, finding that one of the elements
of the retaliation claims could not be met because Okruhlik was never officially
denied tenure by the University; she had not completed all the levels of the tenure
review process and did not receive a final decision by the University’s president. The
district court found that the completion of the process was “necessary in order to
reach the point of an ‘adverse employment action’ which would support an
employment discrimination claim.” D.Ct. Order of May 27, 2003, at 7. Okruhlik
therefore received a terminal appointment by operation of the policy because her
probationary period had expired.
II.
We review de novo the district court’s decision to grant a motion for judgment
as a matter of law. Walsh v. Nat’l Computer Sys., 332 F.3d 1150, 1158 (8th Cir.
2003). We “draw all reasonable inferences in favor of the nonmoving party, and [ ]
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may not make credibility determinations or weigh the evidence.” Kipp v. Mo.
Highway & Transportation Comm’n, 280 F.3d 893, 896 (8th Cir. 2002) (quoting
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)). Judgment as
a matter of law is appropriate “when all the evidence points one way and is
susceptible of no reasonable inferences sustaining the position of the nonmoving
party.” Mouser v. Caterpillar, Inc., 336 F.3d 656, 662 (8th Cir. 2003) (citation
omitted). An inference is reasonable if it “may be drawn from the evidence without
resort to speculation.” McGreevy v. Daktronics, Inc., 156 F.3d 837, 840-41 (8th Cir.
1998) (citation omitted). The court may not substitute its own judgment for that of
the jury, but it may, in considering the whole record, give credence to the moving
party’s “uncontradicted and unimpeached [evidence], at least to the extent that that
evidence comes from disinterested witnesses.” Kinserlow v. CMI Corp., Bid-Well
Div., 217 F.3d 1021, 1025 (8th Cir. 2000) (citing Reeves, 530 U.S. at 151).
A.
Okruhlik contends that the district court erred in overturning the jury verdict
in her favor on her Title VII and First Amendment retaliation claims. The substance
of both claims is virtually identical, but they rest on different legal grounds inasmuch
as Title VII may serve as a basis for suit only against the University, whereas
Okruhlik’s First Amendment claim was brought under 42 U.S.C. § 1983 against
Woods in his individual capacity. See Lenhardt v. Basic Inst. of Technology, 55 F.3d
377, 381 (8th Cir. 1995) (stating that Title VII “liability for unlawful discrimination
in the workplace [is] imposed only on the employing entity”). To state a retaliation
claim, consisting of the same elements under Title VII and the First Amendment, a
plaintiff must prove that: (1) she engaged in a protected activity; (2) that the employer
took an adverse employment action against her, and (3) that the two situations are
causally connected. Kipp, 280 F.3d at 896 (Title VII); Duffy v. McPhillips, 276 F.3d
988, 991 (8th Cir. 2002) (First Amendment).
Defendants argue that the district court correctly found that Okruhlik could not
have established a prima facie retaliation case because she did not suffer an adverse
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employment action. Okruhlik argues that Dean Woods’s recommendation in fact
resulted in her failure to achieve tenure and that further internal appeals beyond the
vice chancellor would have been futile. She contends that the policy operating to
issue her a terminal appointment when she declined to appeal the vice-chancellor’s
negative recommendation constitutes an adverse employment action.5
We are mindful of the singular nature of academic decision-making, and we
lack the expertise to evaluate tenure decisions or to pass on the merits of a candidate’s
scholarship. We have said that “[w]hile 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.” Brousard-Norcross v. Augustana College Assoc.,
935 F.2d 974, 976 (8th Cir. 1991). The Supreme Court has made it clear that “[w]hen
judges are asked to review the substance of a genuinely academic decision, . . . they
should show great respect for the faculty’s professional judgment.” Regents of Univ.
5
Okruhlik also argues that the district court’s grant of judgment as a matter of
law was procedurally flawed because the defendants failed to specify in their pre-
verdict motion the grounds that they later argued in their post-trial motion. See Fed.
R. Civ. P. 50(b). We disagree. Although it is true that a post-trial motion for
judgment as a matter of law may not raise additional grounds that the party did not
raise in a pre-verdict motion, Walsh, 332 F.3d at 1158, the grounds are considered to
be sufficiently raised if the district court and the nonmoving party are apprised of the
basis for the motion. Lawrence v. CNF Transp., Inc., 340 F.3d 486, 491 n.2 (8th Cir.
2003). Technical precision in stating the grounds for the motion is not necessary.
Jarvis v. Sauer Sundstrand Co., 116 F.3d 321, 323 n.4 (8th Cir. 1997).
In this case, the defendants raised challenges to all the claims at issue here pre-
verdict, both after Okruhlik’s evidence and after their evidence. The defendants
discussed the issue of adverse employment action and the district court was aware
that they were questioning both the existence of an adverse employment action and
the existence of causation on the retaliation claims. In their final pre-verdict motion,
the defendants reiterated the same arguments. Immediately after the verdict was
entered, the defendants stated that they intended to submit both judgment-as-a-matter-
of-law and Rule 59 motions, and then proceeded to do so. Accordingly, we conclude
that the relevant grounds were sufficiently preserved.
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of Mich. v. Ewing, 474 U.S. 214, 225 (1985) (footnote omitted); see also Board of
Curators, Univ. of Mo. v. Horowitz, 435 U.S. 78, 90 (1978).
A plaintiff suffers an adverse employment action when the action results in a
“material employment disadvantage” such as “‘[t]ermination, reduction in pay or
benefits, and changes in employment that significantly affect an employee’s future
career prospects.’” Duncan v. Delta Consol. Indus., 371 F.3d 1020, 1026 (8th Cir.
2004) (quoting Spears v. Mo. Dep’t of Corrs. & Human Res., 210 F.3d 850, 853 (8th
Cir. 2000)). An official denial of tenure is an adverse employment action for
purposes of evaluating a retaliation claim. See, e.g., Abramson v. William Patterson
Coll., 260 F.3d 265, 288 (3d Cir. 2001). The academic setting and complex nature
of tenure decisions, however, distinguishes them from employment decisions
generally. See Dobbs-Weinstein v. Vanderbilt University, 185 F.3d 542, 545 (6th
Cir. 1999). We adopt these principles and believe it is appropriate for us to defer to
campus policy in determining when an official decision on tenure has been made,
particularly in light of the many intermediate recommendations involved in the
process. See id. at 545-46. We do not want to turn the tenure process into potentially
endless litigation over each intermediate step, and believe that a university should
have the opportunity to correct errors through its complete internal appeals process
that precedes its final decision. See id. at 546. “[W]here the tenure decision was
following the chain of appeal, each decision along the way is not actionable. Only
the final decision is the ultimate act.” Howze v. Virginia Polytechnic Inst. and State
Univ., 901 F. Supp. 1091, 1097 (W.D. Va. 1995).
A candidate may only challenge the entire process once she has utilized the
prescribed process of tenure review and obtained a final university decision. At that
point, a negative evaluation that became part of an employee’s file, although it does
not itself constitute an adverse employment action, see Jones v. Fitzgerald, 285 F.3d
705, 714 (8th Cir. 2002), may be sufficient to show discrimination or retaliation if it
served as the basis for the adverse employment action. Intermediate decisions in a
promotion process are similar; they do not constitute independent adverse
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employment actions unless they directly influence the decision-maker’s choice to
terminate the individual’s employment. See Abramson, 260 F.3d at 286. A jury may
reasonably “conclude that an evaluation at any level, if based on discrimination,
influenced the decisionmaking process and thus allowed discrimination to infect the
ultimate decision.” Id. (quoting Roebuck v. Drexel Univ., 852 F.2d 715, 727 (3d Cir.
1988)). The jury may not even consider that evidence and no recovery is possible,
however, if there is not an ultimate decision to review.
In contrast to Abramson, where the college’s president and the Board of
Trustees officially denied Abramson tenure according to the school's policies, see
Abramson, 260 F.3d at 268, 272, here the president never reviewed Okruhlik’s
candidacy because Okruhlik declined to seek review of the vice chancellor’s negative
recommendation. The University of Arkansas policy establishes that a final decision
on tenure has not been made until the president has issued his decision. This
conclusion does not automatically apply to all tenure cases and we will take a case-
by-case approach, looking at the specifics of each school’s policies. In this case, the
president is the only official authorized to grant tenure.6 The president, however,
“will not consider awarding tenure to a faculty member in a probationary status
without the prior recommendation of the faculty member’s departmental faculty,
chairperson, dean, chief academic officer, and the chief executive officer of the
campus concerned.” Board Policy 405.1 § IV(A)(7) (emphasis added).
A faculty candidate at the University of Arkansas, therefore, must ensure that
the president receives all of the requisite recommendations in order to be officially
considered for tenure. If the recommendations below are positive, the policy dictates
6
In defining “tenure,” Board Policy 405.1 § I states that “[t]enure is the right
of continuous appointment. It is awarded by the President to eligible members of the
faculty upon successful completion by each of a probationary period.” The policy
clearly differentiates tenure from other employment decisions, such as reappointment
for non-tenured faculty members, for which the final decision is made by the dean and
the vice chancellor for academic affairs. Board Policy 405.1 § IV(B).
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that they will automatically proceed to the next level; if they are negative, the
candidate must in several instances affirmatively seek further review by requesting
reconsideration of the recommendation. For example, if the candidate receives a
negative recommendation from the personnel policy committee chair or the
department chair, she “may request that the tenure application be terminated” or may
appeal for reconsideration, after which the recommendation is transmitted to the dean.
See Department Policy § III(c)(2)(b). In addition, as occurred in this case, if the
candidate receives a negative recommendation from the vice chancellor, she may
either choose not to seek further review or may request review by the University’s
Faculty Senate Committee on Appointment, Promotion and Tenure, which would
perform an independent evaluation of her tenure file, including all the prior
recommendations, and would make a recommendation to the chancellor. See
Evaluative Criteria, Procedures and General Standards § III(B).
Because Okruhlik failed to pursue the additional levels of review available to
her after she received the negative recommendation from the vice chancellor, A.A.
342, we do not know whether the president would have decided to award tenure. We
conclude that Okruhlik's decision not to appeal the vice chancellor’s recommendation
therefore served as a withdrawal from the tenure-review process. She did receive a
terminal contract for her seventh year at the University, but that was due to the
operation of the clearly established term of employment for tenure-track professors
that the probationary period for such positions may not to extend beyond seven years.
Board Policy 405.1 § IV(A)(4). Okruhlik did not suffer an adverse employment
action for purposes of her complaint in this case, and thus we affirm the district
court’s grant of judgment as a matter of law on the retaliation claims.
B.
Okruhlik also contends that the district court erred in overturning the jury
verdict in her favor on her hostile work environment sexual harassment claim. She
alleges that she suffered harassment in both the Middle East Studies Program and the
Political Science department. She presented evidence that she was marginalized from
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decision-making in the program and that several men in her department participated
in conversations in the office next to hers that ranged from negative and offensive
statements about her to crude statements generally. To establish a prima facie case
for a hostile work environment based on sexual harassment, Okruhlik must show (1)
that she belongs to a protected group; (2) that she was subjected to unwelcome sexual
harassment; (3) that the harassment was based on sex; and (4) that the harassment
affected a term, condition or privilege of her employment. Henthorn v. Capitol
Communications, Inc., 359 F.3d 1021, 1026 (8th Cir. 2004).
The University properly preserved a challenge to the hostile work environment
claim on the applicability of the affirmative defense established in Faragher v. Boca
Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742(1998). If no tangible employment action for which an employer may be held strictly
liable has occurred, the employer is liable for sexual harassment by its employees
only “if it knew or should have known about the conduct and failed to stop it.”
Ellerth, 524 U.S. at 759; see also Faragher, 524 U.S. at 807. A defendant may
therefore assert the defense by proving the following two elements: “(1) that the
employer exercised reasonable care to prevent and correct promptly any sexually
harassing behavior, and (2) that the plaintiff employee unreasonably failed to take
advantage of any preventative or corrective opportunities provided by the employer
or to avoid harm otherwise.” Pa. State Police v. Suders, 124 S. Ct. 2342, 2349
(2004). The defendant bears the burden of showing that the victim unreasonably
failed to take available steps to reduce the harm. Id. at 2354.
Although Okruhlik experienced conflict with several of her colleagues, the
University responded to Okruhlik’s harassment concerns as soon as they came to
light. Most of Okruhlik’s conflicts with her colleagues appear to have involved
disagreements over the management of academic programs. When Okruhlik went to
see Dean Madison about mismanagement in the Middle East Studies Program, he
responded with concern, and initiated an investigation that resulted in a restructuring
of the program. The heart of Okruhlik’s harassment claim, however, related to the
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conversations she overheard from the adjacent office that consisted of negative and
even conspiratorial references to her work and job. Although the University
maintains an Office of Affirmative Action (OAA), where Okruhlik could have
initiated a grievance procedure to put the University on notice of the alleged
harassment, she failed to do so, choosing instead not to inform anyone at the
University of the conversations until after they had ended. The conversations ceased
in April 1998, and it was not until the next month that Okruhlik complained to Vice-
Chancellor Pederson, who then personally accompanied Okruhlik to the OAA and
arranged for her to meet with the assistant director of that office. In light of these
facts, we conclude that the University was entitled to the benefit of its affirmative
defense, and we thus affirm the district court’s grant of judgment as a matter of law
on the hostile work environment claim.
The judgment is affirmed.
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