United States of America v. Southeastern Oklahoma State University et al
MEMORANDUM OPINION AND ORDER granting in part and denying in part 279 PLAINTIFF'S MOTION for Order Reconsideration of Reinstatement or, Alternatively, Front Pay; and striking as moot Plaintiff's 280 FIRST MOTION to Supplement Motion for Reconsideration of Reinstatement or, in the Alternative, Front Pay, 281 SECOND MOTION to Supplement Motion for Reconsideration of Reinstatement or, in the Alternative, Front Pay, and 282 AMENDED MOTION to Supplement SECOND MOTION to Supplement Motion for Reconsideration of Reinstatement or, in the Alternative, Front Pay. Signed by Honorable Robin J. Cauthron on 04/13/18. (wh)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
DR. RACHEL TUDOR,
STATE UNIVERSITY and
THE REGIONAL UNIVERSITY
SYSTEM OF OKLAHOMA,
Case No. CIV-15-324-C
MEMORANDUM OPINION AND ORDER
Plaintiff brought the present action asserting that Defendants violated Title VII
during the course of her employment as an associate professor at Southeastern Oklahoma
State University (“Southeastern”). The matter was tried to a jury, which found in favor of
Plaintiff. Plaintiff filed a post-trial motion requesting reinstatement. The Court denied that
request, finding that the relationship between the parties was so fractured as to make
reinstatement infeasible. Plaintiff then filed a motion to reconsider, re-urging many of the
same arguments raised in her original motion. The Court denied that request as well.
Plaintiff has now filed yet another motion requesting reconsideration of the Court’s denial
of her request for reinstatement. Plaintiff has also filed several motions to supplement her
request. Finally, Plaintiff requests in the event reinstatement is denied that she be awarded
Defendants object to each of Plaintiff’s requests and argue that none of the evidence
presented by Plaintiff provides a basis to alter the Court’s previous determination that
reinstatement is infeasible and that Plaintiff’s request for back pay is extreme.
The primary basis for Plaintiff’s latest request for reconsideration of the Court’s
denial of reinstatement is that she has been invited to speak at Southeastern. Plaintiff
argues this clearly demonstrates that the relationship between her and the university is not
as fractured as found by the Court. Plaintiff’s argument lacks any merit. As Defendants
note, the evidence makes clear that the invitation to speak did not come from the university,
but from an independent entity which was using Southeastern’s facilities to present its
seminar. Nothing about that event offers any evidence about the relationship between
Plaintiff and Southeastern.
Plaintiff again cites an affidavit from an employee at
Southeastern and reiterates her same arguments about the feasibility of reinstatement. Each
of these arguments, and the testimony of the witness, has been thoroughly considered and
rejected by the Court on numerous occasions. Plaintiff’s request for reinstatement is
Plaintiff argues, in the event she is denied reinstatement, that she be awarded front
pay in the sum of $2,032,789.51. While the Court finds that some award of front pay is
appropriate, Plaintiff’s request stretches the bounds of reasonableness beyond recognition.
Plaintiff’s request is premised on unrealistic and unsupportable assertions about potential
future performance at Southeastern had she remained there. Indeed, much of the evidence
Plaintiff relies upon to increase the amount of “lost wages” is directly contrary to the actual
evidence of her previous work while employed at Southeastern. Regardless, Plaintiff’s
request for a multi-million dollar award of front pay fails for a more fundamental reason.
The Tenth Circuit has set forth the factors to be considered in determining when and
how much front pay should be awarded. Whittington v. Nordam Grp. Inc., 429 F.3d 986,
1002, 1001 (10th Cir. 2005). These factors are (1) work life expectancy, (2) salary and
benefits at the time of termination, (3) any potential increase in salary through regular
promotions and cost of living adjustment, (4) the reasonable availability of other work
opportunities, (5) the period within which the plaintiff may become re-employed with
reasonable efforts, and (6) methods to discount any award to net present value. In this
instance, the Court finds that items (4) and (5) dictate the proper determination of the
amount of front pay to be awarded to Plaintiff. In her Motion, Plaintiff argues that she
should be awarded front pay until age 75, essentially asserting that because of
Southeastern’s actions she will be unemployable for the remainder of her work life. The
evidence before the Court simply does not support this assertion. Following her separation
from Southeastern, Plaintiff gained employment teaching at a different college. Her pay
at that college exceeded what she had made at Southeastern. Plaintiff’s employment at
Collin College ended based upon that entity’s determination that her teaching skills were
inadequate. There is no suggestion or any evidence from which the Court could determine
that the discrimination at Southeastern, as found by the jury, ultimately led to or even
played a role in Collin College’s determination to terminate Plaintiff. Rather, that entity
determined, based on her performance there, that her teaching did not meet its
The Tenth Circuit has made clear that front pay must be calculated by “tak[ing] into
account any amount that the plaintiff could earn using reasonable efforts.” Carter v.
Sedgwick Cnty., Kan., 929 F.2d 1501, 1505 (10th Cir. 1991). Because Plaintiff gained
similar employment at Collin County, any front pay to which Plaintiff is entitled must end
with the beginning of her employment there. Plaintiff argues that the Defendants’ reliance
upon the Collin College employment is after-acquired evidence and they should be
prohibited from relying upon it because Defendants stipulated they would not rely on afteracquired evidence. Plaintiff misunderstands the doctrine of after-acquired evidence. As
Defendants explain in their brief, after-acquired evidence is a doctrine that provides an
employer with a basis to terminate an employee based on information learned after the
termination. That is simply not the case with the Collin College employment. It is not
after-acquired evidence, it is evidence of Plaintiff’s mitigation of damages and evidence
related to her employability following her separation from Southeastern. Nothing in
Defendants’ agreement not to rely on after-acquired evidence prohibits the Court from
considering that information.
Plaintiff ended her employment with Southeastern in May of 2011. She then began
employment with Collin College in August of 2012. Thus, she is entitled to front pay for
the 14 months between those jobs. Plaintiff has provided a pay analysis in her Motion
which provides information regarding her base salary, retirement benefits, and any
additional income she may have received for teaching. (See Dkt. No. 279, Ex. 8.)
Defendants do not object to the specifics of this document, not have they provided any
evidence as to Plaintiff’s pay during her tenure at Southeastern. Accordingly, the Court
will use the pay information provided in Scenario 4 as that which most closely resembles
Plaintiff’s typical teaching while at Southeastern.
That document sets Plaintiff’s
compensation at $51,463.52 per year. Dividing that by 12 renders a monthly salary of
$4,288.63. Multiplying that by the 14 months between the end of her employment at
Southeastern and the beginning of her employment at Collin College results in
compensation of $60,040.77. The Court finds this amount adequately represents the
amount of front pay to which Plaintiff is entitled and judgment will be entered in her favor
in that amount.
For the reasons set forth more fully herein, Plaintiff Dr. Rachel Tudor’s Motion in
Support of Reconsideration of Reinstatement or, Alternatively, for Front Pay (Dkt. No.
279) is GRANTED in part and DENIED in part. Plaintiff’s request for reinstatement is
DENIED; Plaintiff’s request for front pay is GRANTED in the amount of $60,040.77.
Plaintiff’s Motions to Supplement (Dkt. Nos. 280, 281, and 282) are STRICKEN as moot.
The Court considered the evidence presented in those Motions but found it does not warrant
any alteration of her request for reinstatement. A separate Judgment will issue.
IT IS SO ORDERED this 13th day of April, 2018.
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