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Sixth Circuit: Employees Can Recover Back Pay in Title VII Cases for Lost Opportunities with Third-Party Employers

TeacherA recent Sixth Circuit Court of Appeals case may have resulted in an unfavorable outcome for one professor, but it could also provide benefits for some Tennessee employees pursuing Title VII cases in the future. The court, while rejecting this employee’s claim for back pay because it was too speculative, stated that employees could recover back pay from lost employment opportunities from third-party employers as long as the employee proved that she was entitled to the pay and offered sufficient evidence to establish the amount of lost back pay within a “reasonable certainty.”

The case the employee brought in this litigation appeared to be straightforward discrimination and retaliation. Sheryl Szeinbach was a doctor whom the Ohio State University College of Pharmacy had hired as a professor in 1999. In 2005 and 2006, Szeinbach raised complaints related to the actions of another professor, Rajesh Balkrishnan. Szeinbach accused Balkrishnan, who was of Indian origin, of discriminating in favor of Indian students and discriminating against another professor, Enrique Seoane-Vazquez, who was Spanish. Szeinbach also supported Seoane-Vazquez in his Equal Employment Opportunity Commission complaint against the university.

After these events, the employer discriminated against Szeinbach and retaliated against her, including investigating her scholarly article publication history. The professor’s case also included instances of discriminatory comments, such as Balkrishnan’s calling her a crude misogynistic term during a faculty meeting. Szeinbach ultimately sued and went to trial on her Title VII discrimination and retaliation claim. At trial, Szeinbach testified about the university’s improper leaking of its investigations into her publication history, which was a violation of a confidentiality policy. This dissemination, she argued, damaged her professional reputation in the pharmacy community and impaired her ability to get employment elsewhere.

Based upon this evidence, Szeinbach sought not only compensatory damages in the amount of $300,000 (the maximum allowed by law) but also an award for back pay in the amount of $213,368. The basis for the back pay, she claimed, was that she would have been able to secure higher-paying employment elsewhere if not for the university’s illegal conduct in violation of Title VII. The jury sided with Szeinbach and awarded her the full $513,368.

After the university filed a post-trial motion regarding damages, the trial judge reduced Szeinbach’s award to $300,000.

Szeinbach appealed. Although she lost, the Sixth Circuit’s decision does offer hope to future employees seeking to pursue similar cases. The appeals court noted that the $300,000 damages cap applies only to compensatory damages, and it does not pertain to front pay or back pay. Awards of back pay, according to the court, will generally be upheld in most situations. What’s more, the amount of back pay available to the discriminated employee is not limited to the amount she could have made with her same employer absent the discrimination. A 1993 district court ruling, which the university cited in support of its argument, was the result of that judge’s misinterpreting the law, the Sixth Circuit stated. The law requires the employer that discriminated to pay the back pay award “but says nothing about how to calculate the amount that the responsible employer must pay.”

In other words, an employee could pursue a back pay claim based upon lost financial opportunity with her same employer or other employers, as long as her case meets all the other requirements. These requirements include proving that she was entitled to the demanded back pay and proving the exact amount of lost back pay “with reasonable certainty.” This latter requirement was the undoing of Szeinbach’s back pay award. Szeinbach’s back pay case consisted solely of her own testimony about jobs with other universities and her expert witness’ testimony about the salaries at those institutions. This sparse evidence left her back pay too speculative to meet the “reasonable certainty” requirement.

Your Tennessee employment attorney can help you in many ways, including having up-to-date knowledge on recent court decisions and the opportunities or risks they may present to you as an employee or employer in a discrimination case. The experienced Tennessee employment discrimination attorneys at Mays & Kerr are here to help you assess your case and decide on a plan, utilizing a detailed understanding of your situation and the latest information about the state of the law.

To speak with one of our lawyers about your case, call 1-877-986-5529.

More blog posts:

11th Circuit: Lawyer Who Participated in Former Co-Worker’s Lawsuit Allowed to Pursue Retaliation Case, Atlanta Employment Attorneys Blog, June 21, 2016

Sixth Circuit Rules that Employee’s Evidence Raises Potential Claim for Retaliation, But Not Constructive Discharge, Atlanta Employment Attorneys Blog, June 14, 2016