Sixth Circuit Affirms Jury Verdict Against Professor's Retaliation Claim

Dr. Elizabeth Nelson sued her employer, a federally funded Tennessee college called Christian Brothers University, after she was denied tenure in 2003. In her complaint she alleged that CBU's decision was in retaliation for her criticism of CBU's sexual assault policy and advocacy for female student who had charged a male classmate with sexual assault.

CBU moved for summary judgment, but the district court held that Nelson's allegations would, if proven, satisfied the legal standard for actionable retaliation under Title IX. It then became up to the jury to decide whether the facts Nelson alleged were true.

To this end, the parties presented their cases to a jury. After hearing all the evidence, the jury received the following instruction:

Under the law to be applied in this case, an employer, such as defendant ... has the right to promote or not promote an employee, such as plaintiff ... for a good reason, a bad reason, or no reason at all, as long as the decision not to promote is not motivated by the employee's protected Title IX activity. If you find that the defendant's decision to not promote the plaintiff in this case was not motivated by the plaintiff's alleged protected Title IX activity, then you must render a verdict for the defendant, even though you might feel that the defendant's actions were unreasonable, arbitrary, or unfair. You are not to focus on the soundness of the defendant's business judgment or to second guess its business decisions.

The jury returned a verdict in favor of CBU. Nelson then appealed to the 6th Circuit Court of Appeals, challenging the jury instruction and arguing that the verdict should be overturned as contrary to the weight of evidence. Last week, the 6th Circuit rejected both arguments (as well as a third argument pertaining to a separate breach of contract claim) and affirmed the verdict against Nelson. It held that the jury instruction sufficiently instructed the jury to take into consideration Nelson's right not penalized for advocating against conduct by the school that might violate Title IX. It focused on the language emphasized above, and concluded that it clearly explained the retaliation exception to an otherwise employment-at-will standard.

As for the weight of the evidence, the court held that there was sufficient evidence before the jury to support its decision that the CBU's decision not to promote Nelson was not about her objections to the sexual assault policy. Rather, the jury could have plausibly found that the tenure committee members "were not upset that Dr. Nelson challenged the sexual assault policies at the school, but were dismayed by the way that she chose to challenge them." In particular, the court explained,

The record clearly demonstrates that faculty members were surprised by the lack of professional judgment that Dr. Nelson displayed in putting two current students on parade in a case study, effectively revealing their identities, raising false and unsubstantiated allegations about one student, and not presenting a fully researched position.

As the court noted, this case emphasizes the importance of the factfinders role in discrimination cases. Even though a plaintiff may establish a prima facie case against the employer, it is the jury's prerogative to find as a matter of fact that the employer's decision was motivated by permissible considerations rather than unlawful discrimination.

The case is: Nelson v. Christian Brothers University, 2007 WL 764025 (6th Cir. Mar. 14, 2007).