Aquilino v. University of Kansas

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 23, 2001
• Docket: 00-3150
• Status: Published

Opinion

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MARIE AQUILINO, Ph.D.,

Plaintiff - Appellee, v. No. 00-3150 UNIVERSITY OF KANSAS,

Defendant - Appellant.

ORDER Filed October 9, 2001

Before EBEL , ANDERSON , and KELLY , Circuit Judges.

Appellant’s motion to publish our order and judgment dated July 23, 2001,

is granted. A copy of the published opinion is attached.

Entered for the Court Patrick Fisher, Clerk of Court

By: Keith Nelson Deputy Clerk F I L E D United States Court of Appeals Tenth Circuit PUBLISH JUL 23 2001 UNITED STATES COURT OF APPEALS PATRICK FISHER Clerk TENTH CIRCUIT

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS (D.C. NO. CV-99-2231-KHV)

Submitted on the briefs:

Alan V. Johnson, Sloan, Listrom, Eisenbarth, Sloan & Glassman, L.L.C., Topeka, Kansas, for appellee.

Barbara L. McCloud, Special Assistant Attorney General, University of Kansas, Lawrence, Kansas, for appellant.

ANDERSON , Circuit Judge. This is an appeal from the district court’s denial of a motion for judgment

as a matter of law. We exercise jurisdiction pursuant to 28 U.S.C. § 1291

and reverse. 1

I.

In 1991, Plaintiff Marie Aquilino was hired as an assistant professor in the

Department of Art History at the University of Kansas (KU). After seven years

on the KU faculty, she had published only a single, twelve-page article. Her

teaching reviews were mixed, at best, and her approach with students, especially

undergraduates, was described as at times abrasive.

In December 1997, the faculty of the Art History Department voted

unanimously to recommend denying tenure to Dr. Aquilino. At the same time,

the faculty recommended granting tenure to two other candidates, one male, the

other female. These recommendations, including Dr. Aquilino’s, were accepted

by a supervisory committee comprising faculty and administrators from outside

the Art History Department. In March 1998, the chancellor of the university

formally denied tenure to Dr. Aquilino. He issued her a customary one-year

1 After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

-2- terminal contract, ending her employment with the university in May 1999. The

chancellor awarded tenure to Dr. Aquilino’s two colleagues.

Before her termination from the university, Dr. Aquilino filed a charge of

discrimination with the Kansas Human Rights Commission. She claimed she was

denied tenure because of her sex. She later filed suit against the university.

Brought under Title VII of the 1964 Civil Rights Act, her complaint alleged not

only sex discrimination but, in addition, that the university unlawfully retaliated

against her because she engaged in protected activity, namely the filing of the

charge of discrimination.

The district court granted summary judgment in favor of the university on

Dr. Aquilino’s discrimination claim, but submitted her retaliation claim to the

jury. The jury awarded Dr. Aquilino compensatory damages of $35,000, based

on its findings that KU: (1) “retaliated against plaintiff for her filing of a sex

discrimination claim;” and (2) would not “have taken the same employment

actions concerning plaintiff even absent the unlawful motive of retaliation.”

Appellant’s App., Vol. IV, at 940.

After the verdict, the district court issued a minute order denying KU’s

motion for judgment as a matter of law, a motion made pursuant to Rule 50

of the Federal Rules of Civil Procedure. KU now appeals, raising a single

objection to the district court’s ruling. KU argues that Dr. Aquilino failed to

-3- present sufficient evidence of adverse employment action, and hence did not

present a prima facie case of retaliation.

II.

We review the district court’s denial of KU’s Rule 50 motion de novo and

under the same legal standard as the district court. Brown v. Gray , 227 F.3d

1278, 1285 (10th Cir. 2000). A party is entitled to judgment as a matter of law

“only if the evidence points but one way and is susceptible to no reasonable

inferences which may support the opposing party’s position.” Tyler v. RE/MAX

Mountain States, Inc. , 232 F.3d 808, 812 (10th Cir. 2000) (quotation omitted).

“[I]n reviewing the record, we will not weigh evidence, judge witness credibility,

or challenge the factual conclusions of the jury.” Hampton v. Dillard Dep’t

Stores Inc. , 247 F.3d 1091, 1099 (10th Cir. 2001) (alteration removed and internal

quotation marks omitted). Judgment as a matter of law must be denied if there is

any legally sufficient evidentiary basis for a claim. Id. We consider the

evidence, and all inferences drawn from the evidence, in favor of the nonmoving

party. Id.

Title VII’s anti-retaliation provision prohibits an employer from

“discriminat[ing]” against an employee because that employee has “opposed”

discrimination in the workplace, or because that employee has “participated . . . in

-4- an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C.

§ 2000e-3(a). This provision applies to former employees as well as current

employees. Robinson v. Shell Oil Co. , 519 U.S. 337, 346 (1997). To make out

a prima facie case of retaliation, a plaintiff must show: (1) that he or she engaged

in protected activity; (2) that the employer took an adverse employment action

against the plaintiff; and (3) that there exists a causal connection between the

protected activity and the adverse action. Jeffries v. Kansas , 147 F.3d 1220, 1231

(10th Cir. 1998).

At trial, KU stipulated that Dr. Aquilino engaged in protected activity, and

on appeal it does not challenge the evidence showing the causal connection

between Dr. Aquilino’s protected activity and the allegedly adverse actions the

university took against her. It objects only to the second element, the requirement

of an adverse employment action. Though we accept the truth of each of her

allegations, we nevertheless conclude that Dr. Aquilino presented insufficient

evidence to show that she suffered an adverse employment action.

III.

Dr. Aquilino rests on five acts by the university, each of which, she said,

amounted to an adverse employment action. These include: (1) her removal,

during her terminal-year contract, from graduate student Diane Boze’s

dissertation committee; (2) three separate denials by the university of her repeated

-5- requests, supported by her students and at least two academic departments outside

the Art History Department, for an ad hoc appointment to the graduate faculty;

and (3) the denial of her request to become an adjunct research associate with

a university foundation.

A. Boze Dissertation Committee

Diane Boze was a graduate student in the Department of Art History.

Dr. Aquilino co-chaired her dissertation committee. Two days after testifying at

a hearing convened by the Kansas Human Rights Commission in support of her

charge of discrimination, Dr. Aquilino was removed as co-chair of Diane Boze’s

dissertation committee. At the time, Dr. Aquilino was still an employee of the

university, serving out her terminal-year contract. Dr. Aquilino argues that

her removal from the dissertation committee harmed her future employment

prospects.

We conclude that the removal of Dr. Aquilino from the dissertation

committee six months before the expiration of her contract, but after the tenure

decision, is simply not an adverse employment action. The Supreme Court has

explained that “[a] tangible employment action constitutes a significant change

in employment status, such as hiring, firing, failing to promote, reassignment with

significantly different responsibilities, or a decision causing a significant change

-6- in benefits.” Burlington Indus., Inc. v. Ellerth , 524 U.S. 742, 761 (1998).

Although this circuit liberally defines “adverse employment action,” it still must

be done on a case-by-case basis after “examining the unique factors relevant

to the situation at hand.” Sanchez v. Denver Pub. Sch. , 164 F.3d 527, 532

Dr. Aquilino’s claim is that she suffered an adverse employment action

based upon her removal from Ms. Boze’s dissertation committee because that

action would harm her future employment opportunities. But the “unique factor”

in this case is that Dr. Aquilino had been denied tenure after several years of non-

publication and adverse student comments. Because Dr. Aquilino had already

been denied tenure, she certainly had no right to be on a dissertation committee.

Given Dr. Aquilino’s tenure situation, her removal from the committee had, at

best, a de minimis effect on her future employment opportunities. Moreover, her

removal from the committee is a normal incident of the denial of tenure. Finally,

her removal merely altered her job responsibilities by eliminating her dissertation

committee assignment in her last months of employment. Thus, the removal falls

within the category of actions that do not constitute an adverse employment

action. Sanchez , 164 F.3d at 532 (“we will not consider a mere inconvenience or

an alteration of job responsibilities to be an adverse employment action”)

(internal quotation omitted).

-7- Against this background, this case does not fit in our “future employment

opportunities” cases. The action taken by the university is entirely different from

those taken by the defendants in Rutherford v. American Bank of Commerce ,

565 F.2d 1162, 1164-65 (10th Cir. 1977), and Berry v. Stevinson Chevrolet ,

74 F.3d 980, 986 (10th Cir. 1996). Before Dr. Aquilino’s removal from the

committee, the university’s tenure decision had already significantly impaired

her ability to obtain employment. This case is also distinguishable because the

university did not publicize Dr. Aquilino’s removal from Ms. Boze’s dissertation

committee (at Ms. Boze’s request) or communicate with Dr. Aquilino’s

prospective employers. Instead, the university made an internal decision to

remove Dr. Aquilino from the committee. Additionally, the connection

between Dr. Aquilino’s future employment opportunities and her removal from

Ms. Boze’s dissertation committee is totally different from referring trumped-up

criminal charges or a negative reference letter. Cf. Berry , 74 F.3d at 986 (stating

that criminal prosecution of plaintiff at his former employer’s behest would, like

a negative reference letter, have an “obvious impact”).

It is one thing to hold that a criminal complaint or negative reference letter

is an adverse employment action. It is an entirely different matter to hold that any

action taken by a plaintiff’s employer (after an employee has a termination date)

that may affect the plaintiff’s future employment opportunities is an

-8- adverse employment action. In this case, an employee who is terminated for

non-discriminatory reasons should not be placed in a better position than one who

has not when it comes to making a retaliation claim based upon a slight duty

change occurring during the departure period. This is true despite the testimony

by Dr. Aquilino and Professor Lubensky about the harmful affects of not being on

the dissertation committee. While that may be so, not being on the dissertation

committee and not securing a coterie of graduate students may be the natural

consequence of the denial of tenure and Dr. Aquilino’s transition from a faculty

member to an ex-faculty member.

B. Denial of Ad Hoc Faculty Status

After her termination from the university, and at the urging of her students,

Dr. Aquilino sought “ad hoc” appointment—an unpaid, non-benefit-eligible

position–to KU’s graduate faculty. The university rejected her repeated

applications for appointment.

Dr. Aquilino sought this volunteer status to allow her to continue working

with five of her graduate students (not including Diane Boze), of whom several

were in the Art History Department, one was in the History Department, and

another was connected with the Latin American Studies Program. Faculty

members in both the History Department and the Latin American Studies Program

-9- recommended approval of Dr. Aquilino’s request. The Art History Department

voted against making such a recommendation. The final decision in all three

cases was made by a university dean, who told jurors that he denied the

appointments because, in his estimation, such a role for Dr. Aquilino was

inconsistent with KU’s earlier decision to deny her tenure.

KU argues that since the ad hoc status Dr. Aquilino sought was unpaid, and

since the various appointments would have commenced after her termination, its

refusal to grant the appointments did not alter the terms and conditions of Dr.

Aquilino’s employment. As a result, the university contends, Dr. Aquilino

suffered no “demonstrable impact on [her] current employment.” Appellant Br. at

34. Dr. Aquilino maintains that the university’s decision to deny her ad hoc

status effectively stripped her of her remaining graduate students, thereby causing

additional harm to her future employment prospects. Echoing her position with

regard to Diane Boze, she points to her testimony in which she told jurors that

this harm included diminution of her professional reputation as well as the

personal embarrassment and humiliation she experienced at the loss of her

students. She also testified that prospective employers would infer that her

students were taken away because of wrongdoing on her part.

Our reasoning with respect to Dr. Aquilino’s removal from Ms. Boze’s

dissertation committee guides our analysis here. We see little or no difference

-10- between the harms she allegedly suffered, on the one hand, by her removal from

the Boze dissertation committee and, on the other, her inability—due to the

university’s refusal to grant her ad hoc faculty status—to continue working with

other graduate students. Both spring from the common claim that the removal of

Dr. Aquilino’s graduate students constitutes an adverse employment action

because it adversely affected her future employment prospects. We have rejected

that argument with respect to Ms. Boze; we do so again with respect to KU’s

refusal to make Dr. Aquilino an ad hoc member of its graduate faculty.

C. Denial of Research Associate Position

In May of her terminal year, just days before the end of her employment at

KU, Dr. Aquilino learned that she had been awarded a prestigious research grant

from the American Association of University Women. It was unclear at the time

whether she would have to retain some sort of university affiliation to accept the

grant. She immediately began discussions with officials from KU’s Hall Center

for the Humanities in an effort to secure an appointment there as an adjunct

research associate. Several weeks after her termination, the Hall Center formally

asked a university provost to grant Dr. Aquilino the unpaid, non-benefit-eligible

appointment. The provost rejected the Hall Center’s request, relying in large part

on the same reason given for denying Dr. Aquilino ad hoc membership on the

-11- graduate faculty, that is, any such appointment would have been inconsistent with

the university’s decision to deny her tenure.

Dr. Aquilino again argues that this denial constitutes an adverse

employment action because it harmed her future employment prospects. She

points to her trial testimony, which detailed how the denial of any university

affiliation deprived her of the opportunity to pursue an alternative career path as

a private scholar, one in which she could support herself by attracting scholarly

grants and other awards. She testified that the university’s refusal limited the

number of national grants for which she is eligible, since many government

agencies and private foundations require university affiliation as a condition of

any grant. KU argues that Dr. Aquilino presented no evidence for these claims

apart from her own conclusory opinion.

We agree with the university. Dr. Aquilino’s alternative-career-path theory

rests on little more than her own, untested belief that she could remake herself as

a private academic. Speculative harm does not constitute adverse employment

action. See Trimmer v. United States Dep’t of Labor , 174 F.3d 1098, 1103-04

(10th Cir. 1999) (in a case arising under a federal whistle blower statute, holding

that employee’s evidence concerning future employment harm was too speculative

to constitute adverse employment action). Dr. Aquilino offered no expert

testimony supporting her alternate-career-path theory, nor did she present

-12- evidence showing that other academics had successfully continued their scholarly

careers in her proposed manner, particularly after they were denied tenure. In

short, she did not demonstrate that it was the university’s denial of the research

associate position—rather than the tenure denial—that dashed her hopes of

becoming a private academic. Furthermore, there is no indication in the record

that Dr. Aquilino lost any grant because of the university’s decision. Indeed, it

appears that despite the lack of university affiliation, she retained even the grant

from the American Association of University Women.

The district court’s denial of the University of Kansas’s Rule 50 motion is

REVERSED and the case is REMANDED for entry of judgment as a matter of

law in favor of the University of Kansas.

-13-