Appellate Case: 18-6102 Document: 010110574958 Date Filed: 09/13/2021 Page: 1
`FILED
`United States Court of Appeals
`Tenth Circuit
`
`September 13, 2021
`
`Christopher M. Wolpert
`Clerk of Court
`
`PUBLISH
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE TENTH CIRCUIT
`_________________________________
`
`
`
`
`
`Nos. 18-6102 & 18-6165
`
`Defendants - Appellees/Cross-
`Appellants.
`
`DR. RACHEL TUDOR,
`
` Plaintiff - Appellant/Cross-Appellee,
`
`v.
`
`SOUTHEASTERN OKLAHOMA STATE
`UNIVERSITY; THE REGIONAL
`UNIVERSITY SYSTEM OF
`OKLAHOMA,
`
`
`
`
`------------------------------
`
`NATIONAL WOMEN’S LAW CENTER;
`A BETTER BALANCE; ALLIANCE FOR
`A JUST SOCIETY; AMERICAN
`ASSOCIATION OF UNIVERSITY
`WOMEN; AMERICAN FEDERATION
`OF TEACHERS; ATLANTA WOMEN
`FOR EQUALITY, CALIFORNIA
`WOMEN LAWYERS; COLORADO
`WOMEN’S BAR ASSOCIATION;
`COLORADO ORGANIZATION FOR
`LATINA OPPORTUNITY AND
`REPRODUCTIVE RIGHTS; DC
`COALITION AGAINST DOMESTIC
`VIOLENCE, END RAPE ON CAMPUS;
`GENDER JUSTICE; GIRLS FOR
`GENDER EQUITY; IF/WHEN/HOW:
`LAWYERING FOR REPRODUCTIVE
`JUSTICE; IN OUR OWN VOICE:
`NATIONAL BLACK WOMEN’S
`REPRODUCTIVE JUSTICE AGENDA;
`
`

`

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`LAWYERS CLUB OF SAN DIEGO;
`LEGAL AID AT WORK; LEGAL
`VOICE; NATIONAL ASIAN PACIFIC
`AMERICAN WOMEN’S FORUM;
`NATIONAL CRITTENTON; NATIONAL
`EMPLOYMENT LAWYERS
`ASSOCIATION; NATIONAL LGBTQ
`TASK FORCE; NATIONAL NETWORK
`OF ABORTION FUNDS; NATIONAL
`ORGANIZATION FOR WOMEN
`FOUNDATION; NATIONAL
`PARTNERSHIP FOR WOMEN &
`FAMILIES; NATIONAL WOMEN’S
`POLITICAL CAUCUS; OKLAHOMA
`COALITION FOR REPRODUCTIVE
`JUSTICE; SARGENT SHRIVER
`NATIONAL CENTER ON POVERTY
`LAW; SISTERREACH; THE WOMEN’S
`LAW CENTER OF MARYLAND;
`WOMEN’S LAW PROJECT; WOMEN’S
`BAR ASSOCIATION OF THE DISTRICT
`OF COLUMBIA; LAMBDA LEGAL
`DEFENSE & EDUCATION FUND, INC.,
`
`
`
`Amici Curiae.
`
`_________________________________
`
`Appeals from the United States District Court
`for the Western District of Oklahoma
`(D.C. No. 5:15-CV-00324-C)
`_________________________________
`
`Jillian T. Weiss, Law Office of Jillian T. Weiss, P.C., Brooklyn, New York (Ezra Ishmael
`Young, Law Office of Ezra Young, Brooklyn, New York; Brittany M. Novotny, National
`Litigation Law Group PLLC, Oklahoma City, Oklahoma; Marie Eisela Galindo, Law
`Office of Marie E. Galindo, Lubbock, Texas, on the briefs), for Plaintiff-Appellant.
`
`Zachary West, Assistant Solicitor General (Andy N. Ferguson, Staff Attorney, with him
`on the briefs), Office of Attorney General, Oklahoma City, Oklahoma, for Defendants-
`Appellees.
`
`Erica C. Lai, Cohen & Gresser LLP, Washington, D.C. (Emily Martin and Sunu P.
`Chandy, National Women’s Law Center, Washington, D.C.; Melissa H. Maxman and
`2
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`

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`Appellate Case: 18-6102 Document: 010110574958 Date Filed: 09/13/2021 Page: 3
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`Danielle C. Morello, Cohen & Gresser LLP, Washington, D.C.; Danielle E. Perlman,
`Cohen & Gresser LLP, New York, New York, with her on the brief), for Amici Curiae
`National Women’s Law Center, et al.
`
`Gregory R. Nevins, Lambda Legal Defense and Education Fund Inc., Atlanta, Georgia,
`for Amicus Curiae Lambda Legal.
`_________________________________
`
`Before HARTZ, EBEL, and McHUGH Circuit Judges.
`_________________________________
`
`EBEL, Circuit Judge.
`
`_________________________________
`
`Dr. Rachel Tudor sued her former employer, Southeastern Oklahoma State
`
`University, under Title VII, claiming discrimination on the basis of sex, retaliation,
`
`and a hostile work environment after Southeastern denied her tenure, denied her the
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`opportunity to reapply for tenure, and ultimately terminated her from the university.
`
`A jury found in favor of Dr. Tudor on her discrimination and retaliation claims and
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`awarded her damages. The district court then applied the Title VII statutory cap to
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`reduce the jury’s award, denied Dr. Tudor reinstatement, and awarded front pay.
`
`Both parties appeal. Southeastern challenges evidentiary rulings and the jury
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`verdict. Dr. Tudor, on the other hand, attacks several of the court’s post-verdict
`
`rulings, challenging the district court’s denial of reinstatement, calculation of front
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`pay, and application of the statutory damages cap.
`
`We reject Southeastern’s challenges. But, regarding Dr. Tudor’s appeal, we
`
`hold that there was error both in denying reinstatement and in calculating front pay,
`
`although there was no error in applying the Title VII damages cap. Exercising
`
`
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`3
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`Appellate Case: 18-6102 Document: 010110574958 Date Filed: 09/13/2021 Page: 4
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`jurisdiction under 28 U.S.C. § 1291, we AFFIRM in part and REVERSE in part and
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`REMAND for further proceedings.
`
`I.
`
`BACKGROUND1
`
`A. General Background
`
`Dr. Tudor is a transgender woman who is a dual citizen of the United States
`
`and Chickasaw Nation. She earned a Ph.D. in English from the University of
`
`Oklahoma in 2000. In 2004, Dr. Tudor began working at Southeastern Oklahoma
`
`State University as a tenure-track assistant professor in the English, Humanities, and
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`Languages Department (“English Department”). Southeastern is part of the Regional
`
`University System of Oklahoma (RUSO), the other defendant in this case.
`
`When Dr. Tudor started teaching at Southeastern, she presented as a male.
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`Approximately three years later, in the spring of 2007, however, Dr. Tudor informed
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`Southeastern’s Human Resources Office that she planned to transition from male to
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`female over the summer. She returned to teaching in the next semester now
`
`presenting as a woman, Rachel Tudor.
`
`B.
`
`Tenure Applications
`
`Southeastern’s tenure application process involves review of the applicant’s
`
`portfolio by a faculty committee, the department chair, the college dean, and the vice
`
`
`1 Because the jury found in favor of Dr. Tudor on her discrimination and
`retaliation claims and because Southeastern challenges the sufficiency of the
`evidence to support that verdict, we recount the facts that were presented to the jury
`at trial in the light most favorable to Dr. Tudor. Webco Indus., Inc. v. Thermatool
`Corp., 278 F.3d 1120, 1128 (10th Cir. 2002).
`4
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`president of academic affairs. Each entity issues a recommendation to the university
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`president, who then makes the final tenure determination and seeks approval from the
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`RUSO governing board. To obtain tenure, then, Dr. Tudor needed to receive a
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`favorable recommendation from: (1) a tenure committee comprised of five faculty
`
`members; (2) the then English Department Chair, John Mischo; (3) the then Arts and
`
`Sciences dean, Lucretia Scoufos; (4) the then vice president for academic affairs,
`
`Doug McMillan; (5) the then university president, Larry Minks; and (6) RUSO’s
`
`governing board. RUSO’s governing board generally approves the recommendation
`
`given by the university president. Southeastern’s tenure-application process assesses
`
`applicants for excellence in three areas: scholarship, service, and teaching.
`
`1.
`
`Application for Tenure in 2008
`
`In fall 2008, Dr. Tudor submitted her tenure portfolio to a faculty committee,
`
`the first level of review in the application process. The committee voted against
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`tenure, and Dr. Tudor withdrew the application.
`
`2.
`
`Application for Tenure in 2009-10
`
`In fall 2009, Dr. Tudor again applied for tenure, providing evidence of all
`
`three above criteria—teaching, scholarship, and service—in her portfolio. For
`
`example, her portfolio contained a regional conference presentation, two articles
`
`accepted for publication in peer-reviewed journals, a poetry book, and service on
`
`multiple committees at Southeastern.
`
`The five-faculty-member tenure committee recommended Dr. Tudor receive
`
`tenure by a 4-to-1 vote (Dr. Randy Prus, who would only later become the
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`Appellate Case: 18-6102 Document: 010110574958 Date Filed: 09/13/2021 Page: 6
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`department chair, voting against). Dr. Mischo, the then department chair, also
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`recommended tenure. Despite the faculty committee’s and department chair’s
`
`approval, Dean Scoufos, Vice President McMillan, and President Minks
`
`recommended denial of tenure. Dr. Tudor and one of her colleagues later testified
`
`that they had never heard of the administration denying an applicant tenure after the
`
`faculty committee recommended granting it.
`
`Before receiving President Minks’s denial, Dr. Tudor met with Dean Scoufos,
`
`who told her that if she withdrew her current application, she could reapply for tenure
`
`in the future. Ultimately, Dr. Tudor did not withdraw her application, and President
`
`Minks denied it. After Dr. Tudor filed grievances with the faculty appellate
`
`committee regarding the lack of any explanation for the denial, Vice President
`
`McMillan identified President Minks’s rationale as based on deficiencies in
`
`scholarship and service.
`
`In August 2010, Dr. Tudor filed discrimination complaints with the faculty
`
`appellate committee, Southeastern’s affirmative-action officer, and the U.S.
`
`Department of Education, which referred the complaint to the Equal Employment
`
`Opportunity Commission (EEOC).
`
`3.
`
`Application for Tenure in 2010-11
`
`In fall 2010, believing she could reapply for tenure, Dr. Tudor again submitted
`
`her tenure application, updated to account for her recent work. In October 2010,
`
`after the new department chair, Dr. Prus, had already begun assembling Dr. Tudor’s
`
`tenure review committee, Dr. Prus and Dr. Tudor received a memo from Vice
`6
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`Appellate Case: 18-6102 Document: 010110574958 Date Filed: 09/13/2021 Page: 7
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`President McMillan in which he stated that Southeastern’s academic policies and
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`procedures manual did not specifically proscribe a subsequent tenure application
`
`after a denial but also that the administration would not allow Dr. Tudor’s
`
`reapplication for tenure in the subsequent year following denial “in the best interests
`
`of the university.” (Tudor R. vol. 5 at 229.)2
`
`Being prevented from reapplying in her seventh year at Southeastern was
`
`highly problematic for Dr. Tudor because “[t]enure-track faculty are only given
`
`seven years to be granted tenure or else [they’re] fired.” (Tudor R. Vol. 6 at 114.)
`
`Despite the policy manual language, Dr. Tudor, who served on the faculty senate’s
`
`faculty policies and procedures committee, had never heard of a rule precluding a
`
`sixth- or seventh-year faculty member from reapplying for tenure after a denial.
`
`Dr. Tudor again appealed to the faculty appellate committee, which
`
`determined that the rules permitted Dr. Tudor to reapply. After an unprecedented
`
`impasse between the faculty appellate committee and President Minks’s designee,
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`President Minks ultimately decided that Dr. Tudor could not reapply in March 2011.
`
`The faculty senate asked him to reverse the decision, but he declined. As a result,
`
`Dr. Tudor’s employment contract with Southeastern expired, and Southeastern did
`
`not renew it. Dr. Tudor left Southeastern in spring 2011.
`
`
`2 Southeastern’s academic policy manual stated specifically that faculty could
`apply for tenure in their “fifth, sixth, or seventh year” (as opposed to saying they
`could apply in their fifth, sixth, and seventh years). (Tudor R. vol. 5 at 188
`(emphasis added).)
`
`
`
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`Based on the reapplication denial, Dr. Tudor filed a discrimination and
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`retaliation complaint with the EEOC, which referred it to the U.S. Department of
`
`Justice (DOJ).
`
`C.
`
`Collin College Position
`
`Fourteen months after leaving Southeastern, Dr. Tudor obtained an English
`
`teaching position on an untenured, one-year contract basis at Collin College, a two-
`
`year community college in Texas. After Dr. Tudor taught at Collin College for four
`
`years, that college declined to renew Dr. Tudor’s contract, citing negative evaluations
`
`and poor-quality teaching. She has since looked for work but has remained
`
`unemployed.
`
`D.
`
`DOJ Complaint
`
`The DOJ filed a complaint against Southeastern in March 2015, alleging sex
`
`discrimination and retaliation in violation of Title VII. Dr. Tudor intervened in this
`
`action with her own complaint in May 2015, bringing claims of discrimination,
`
`retaliation, and hostile work environment. In August 2017, Southeastern and the
`
`DOJ settled, resulting in the dismissal of the DOJ complaint. As part of the
`
`Southeastern/DOJ Settlement Agreement, Southeastern agreed to certain policy
`
`changes aimed at reducing discrimination at the university.
`
`E.
`
`Trial and Judgment
`
`The litigation between Dr. Tudor and Southeastern proceeded. After the
`
`district court rejected Southeastern’s motion for summary judgment and various other
`
`pre-trial motions, including a motion to exclude the testimony of Dr. Tudor’s tenure
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`expert, Dr. Parker, the parties tried the case before a jury. At the close of evidence,
`
`both parties made oral motions for judgment as a matter of law, which the court
`
`denied.
`
`The jury found in Dr. Tudor’s favor on her discrimination and retaliation
`
`claims, but in Southeastern’s favor on Dr. Tudor’s hostile work environment claim.
`
`Using the court’s general verdict form (to which neither party objected), the jury
`
`awarded Dr. Tudor a lump sum of $1.165 million in damages, encompassing both
`
`backpay and compensation for physical or mental distress.
`
`After the verdict, the district court requested additional briefing from the
`
`parties on the equitable issues of reinstatement and front pay. Dr. Tudor filed a
`
`motion for reinstatement, but the district court denied that request. She then moved
`
`for reconsideration and, in the alternative, requested $2,032,789.51 in front pay. The
`
`district court declined reconsideration and awarded Dr. Tudor $60,040.77 in front
`
`pay. Dr. Tudor lastly moved for reconsideration of the front pay award, which the
`
`court denied.
`
`Finally, the court requested briefing on the jury award and the Title VII
`
`damages cap. It ultimately applied that $300,000 cap to the $1.165 million jury
`
`award, resulting in an award of $360,040.77. This amount reflected $60,040.77 that
`
`the court attributed to uncapped backpay and $300,000 in capped compensatory
`
`damages.
`
`The court entered judgment and Dr. Tudor timely appealed. Southeastern then
`
`renewed its motion for judgment as a matter of law and moved for a new trial. The
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`district court rejected Southeastern’s motions as untimely and, alternatively, denied
`
`them on the merits. Southeastern timely appealed.
`
`II. DISCUSSION
`
`We consider first Southeastern’s appeal challenging evidentiary rulings and
`
`the jury verdict, before turning to Dr. Tudor’s more substantive appeal addressing
`
`post-verdict rulings.
`
`A.
`
`Southeastern’s Cross-Appeal
`
`Southeastern challenges the district court’s decision to deny its motion to
`
`exclude Dr. Tudor’s tenure expert, Dr. Parker, its motion for summary judgment, and
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`its motion for judgment as a matter of law. None of these challenges have merit, and
`
`we affirm in each instance. Before turning to Southeastern’s claims, we first discuss
`
`the impact of the Supreme Court’s recent decision in Bostock v. Clayton County, 140
`
`S. Ct. 1731 (2020).
`
`1.
`
`Bostock Arguments
`
`While these appeals were pending, the Supreme Court decided Bostock and the
`
`parties here submitted additional briefing on that case. We apply Bostock in
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`resolving this appeal. See SEC v. Mick Stack Assocs., Inc., 675 F.2d 1148, 1149
`
`(10th Cir. 1982).
`
`Title VII makes it unlawful for an employer to “fail or refuse to hire or to
`
`discharge any individual, or otherwise to discriminate against any individual . . .
`
`because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). One of the issues
`
`in Bostock was whether transgender discrimination constitutes Title VII
`10
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`discrimination on the basis of sex. 140 S. Ct. at 1737. The Supreme Court
`
`determined that “it is impossible to discriminate against a person for being
`
`homosexual or transgender without discriminating against that individual based on
`
`sex” because “to discriminate on these grounds requires an employer to intentionally
`
`treat individual employees differently because of their sex.” Id. at 1741–42. The
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`Court thus held that Title VII “prohibit[s employers] from firing employees on the
`
`basis of homosexuality or transgender status.” Id. at 1753.
`
`Bostock overrules this Court’s previous holdings in Etsitty v. Utah Transit
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`Authority, 502 F.3d 1215 (10th Cir. 2007), that transgender persons “are not a
`
`protected class under Title VII,” that “discrimination against a [transgender person]
`
`based on the person’s status as a [transgender person] is not discrimination because
`
`of sex under Title VII,” and that a defendant “may not claim protection under Title
`
`VII based upon her [transgender status] per se.” Id. at 1220, 1221, 1224. As a result,
`
`Etsitty is no longer valid precedent to the extent that it conflicts with Bostock.
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`United States v. Brooks, 751 F.3d 1204, 1209 (10th Cir. 2014).
`
`In the wake of Bostock, it is now clear that transgender discrimination, like
`
`that complained of by Dr. Tudor, is discrimination “because of sex” prohibited under
`
`Title VII. Accordingly, Southeastern concedes that Bostock invalidates its arguments
`
`in reliance on Etsitty that transgender discrimination is not enough alone to make out
`
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`a Title VII violation. (SE Supp. Br. 2.)3 We now turn to Southeastern’s arguments
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`that remain cognizable.4
`
`2.
`
`Tenure Expert
`
`Southeastern first challenges the district court’s denial of its motion to exclude
`
`the testimony of Dr. Tudor’s tenure expert, Dr. Parker, arguing that the district court
`
`abandoned its gatekeeping role and that, even if the court performed this role, it
`
`should have excluded the expert testimony as unreliable, subjective, and
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`methodologically unsound. Dr. Tudor disputed Southeastern’s argument on its
`
`merits, but also argued that Southeastern waived this challenge.
`
`This Court reviews de novo whether the district court performed its
`
`gatekeeping role. Adamscheck v. Am. Fam. Mut. Ins. Co., 818 F.3d 576, 586 (10th
`
`Cir. 2016). If the district court performed its gatekeeping role, this Court reviews the
`
`
`3 The parties also debate whether Bostock overrules DePaula v. Easter Seals El
`Mirador, 859 F.3d 957 (10th Cir. 2017). This is because Bostock held that Title VII
`incorporates the “simple and traditional standard of but-for causation,” 140 S. Ct. at
`1739 (internal quotation marks omitted), whereas DePaula held that a plaintiff must
`prove the alleged discrimination was a “primary factor” in the defendant’s adverse
`employment action, 859 F.3d at 970. The Bostock Court also observed, however,
`that Congress has allowed a Title VII claim to succeed if sex was a “motivating
`factor” in the decision, recognizing that the but-for standard is a “viable, if no longer
`exclusive, path to relief under Title VII.” 140 S. Ct. at 1739–40 (citing 42 U.S.C. §
`2000e-2(m)). Because the jury was instructed on the motivating factor standard,
`which remains intact, this aspect of the case is unaffected by Bostock, and we decline
`to address Bostock’s impact on DePaula.
`4 Even after Bostock, Southeastern contends that Dr. Tudor impermissibly
`brought her case as a female instead of as a male. We do not see the relevance of the
`male/female distinction here. While this may have been relevant to establishing a
`claim of sex discrimination pre-Bostock, there is no question now that Dr. Tudor’s
`transgender claims are cognizable. The label given to Dr. Tudor’s sex does not
`change the character of the discrimination based on her transgender identity.
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`decision to admit Dr. Parker’s testimony for abuse of discretion. United States v.
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`Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009). We assume without deciding that
`
`Southeastern did not waive its challenge to Dr. Parker’s expert testimony because, in
`
`any event, we affirm on the merits, concluding that the district court sufficiently
`
`performed its gatekeeping role, if minimally, and did not abuse its discretion when it
`
`permitted Dr. Parker to testify.5
`
`a.
`
`Legal Background
`
`Rule 702 requires an expert witness to be qualified by “knowledge, skill,
`
`experience, training, or education,” and an expert witness’s testimony must be
`
`helpful to the trier of fact, based on sufficient facts, and the result of “reliable
`
`principles and methods.” Fed. R. Evid. 702; see also Daubert v. Merrell Dow
`
`Pharms., Inc., 509 U.S. 579, 593–95 (1993); Kumho Tire Co. v. Carmichael, 526
`
`U.S. 137, 141 (1999). The district court, as gatekeeper, is therefore responsible for
`
`ensuring expert testimony is reliable and relevant. Dodge v. Cotter Corp., 328 F.3d
`
`1212, 1221 (10th Cir. 2003). To perform its gatekeeping role, the district court must
`
`make specific findings on the record so that this Court can determine if it carefully
`
`reviewed the objected-to expert testimony under the correct standard. Adamscheck,
`
`818 F.3d at 586.
`
`
`
`
`5 Dr. Tudor also argued that this challenge should not be reviewed on the
`merits because Southeastern’s appendix was not sufficient, but Southeastern was
`granted permission to supplement its appendix with its reply brief (the fourth brief in
`this case), curing the previous omissions.
`13
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`b.
`
`Gatekeeping Role
`
`In this case, the district court rejected Southeastern’s challenges to Dr.
`
`Parker’s testimony—that it was unreliable, inherently subjective, lacking in expertise,
`
`irrelevant, and unhelpful to the jury—in a four-page order. Although that order
`
`includes minimal specificity and detail, we conclude that the gatekeeping role was
`
`satisfied.
`
`In performing its gatekeeping role, the district court referenced Rule 702,
`
`reviewed the arguments on both sides, and provided some (albeit brief) explanation.
`
`Cf. Adamscheck, 818 F.3d at 587–88 (court failed gatekeeping role when it made off-
`
`the-cuff decision to exclude based on one sentence by the opposition); Goebel v. Denver
`
`& Rio Grande W. R.R. Co., 215 F.3d 1083, 1088 (10th Cir. 2000) (court failed
`
`gatekeeping role when there was no statement on the record indicating a Daubert analysis
`
`was performed). Where, as here, an expert’s methodology is not complex, technical,
`
`or highly specialized, a less detailed district court ruling is sufficient. See
`
`Storagecraft Tech. Corp. v. Kirby, 744 F.3d 1183, 1190 (10th Cir. 2014). Dr.
`
`Parker’s methodology involved comparing Dr. Tudor’s tenure application to those of
`
`successful applicants; this method is straightforward. On these particular facts, a
`
`lengthy Daubert ruling was not required, and the district court’s order was minimally
`
`sufficient to satisfy this Court that the district court performed its gatekeeping role
`
`under Rule 702.
`
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`c.
`
`Abuse of Discretion
`
`The district court did not abuse its discretion when it denied Southeastern’s
`
`motion and permitted Dr. Parker to testify. Dr. Parker’s methodology was rooted in
`
`his experience as an English professor having participated in over 100 promotion
`
`deliberations. It is well established that expert testimony can be based on such
`
`experience. Fed. R. Evid. 702 (listing experience as one of the ways in which an
`
`expert can be qualified). As a result, it was reasonable for the district court to
`
`conclude that Dr. Parker was qualified to explain the tenure application process and
`
`to recognize strong and weak applications in the field of English, as well as for the
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`court to conclude that Dr. Parker’s method of comparison was reliable.6
`
`Southeastern’s arguments that Dr. Parker was unqualified because he had no
`
`experience in the specific areas of English studied by the applicants, nor any
`
`experience working at Southeastern or in Oklahoma, are unconvincing.
`
`It was also reasonable for the district court to conclude that Dr. Parker’s
`
`testimony would be relevant and helpful to the jury. Many laypeople are likely
`
`unfamiliar with the tenure process, and a comparison of Dr. Tudor’s application to
`
`those of successful applicants could shed light on whether Southeastern’s reasons for
`
`the tenure denial—lack of scholarship and service—were disingenuous.
`
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`6 Although Dr. Parker had access to only a partial reconstruction of Dr.
`Tudor’s 2009-10 tenure portfolio, it was not unreasonable for the district court to
`determine that the hundreds of pages of documents reviewed by Dr. Parker related to
`Dr. Tudor’s application provided him with an adequate foundation.
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`Finally, we decline to follow the district court and out-of-circuit caselaw that
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`Southeastern cites to support excluding the testimony of tenure experts as irrelevant
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`and unreliable on the grounds that tenure decisions are inherently subjective. (SE Br.
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`32 (collecting cases).) These cases do not render the district court’s decision here
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`manifestly unreasonable because the court was not bound by them.7 Further, Dr.
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`Parker did not create his own, personal standards for tenure qualification but rather
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`relied upon, for example, Southeastern’s criteria for tenure and promotion, and
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`general standards for judging scholarship in the field.
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`To the extent that Southeastern had valid concerns regarding Dr. Parker’s
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`methodology, such as sample size and failure to consider denied applications, these
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`were appropriate topics for cross-examination. See Daubert, 509 U.S. at 596.
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`District courts are given “broad discretion” in expert witness determinations, Dodge,
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`328 F.3d at 1223, and we cannot say that the district court abused that discretion in
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`this case.
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`3.
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`Summary Judgment
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`Next, because a jury trial has already occurred, we reject Southeastern’s
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`challenge to the district court’s denial of its motion for summary judgment. Ortiz v.
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`7 In addition, this Court is unwilling to find that tenure experts are
`categorically unreliable. Title VII plaintiffs may have few or no other methods to
`refute defendants’ proffered reasons for a tenure denial. See Carlile v. S. Routt Sch.
`Dist. RE-3J, 739 F.2d 1496, 1500 (10th Cir. 1984) (“Despite the fact that courts are
`reluctant to review the merits of tenure decisions, such decisions are not exempt
`under Title VII. Plaintiffs seeking to show discriminatory purposes in tenure or
`reappointment decisions ought to have available the means of challenging such
`decisions.”).
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`Jordan, 562 U.S. 180, 184 (2011) (“Once the case proceeds to trial, the full record
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`developed in court supersedes the record existing at the time of the summary-
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`judgment motion.”).8 Even if we did consider Southeastern’s challenge, it has no
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`merit in light of Bostock, 140 S. Ct. 1731.
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`4.
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`Judgment as a Matter of Law
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`Southeastern lastly appeals the district court’s denial of its motion for
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`judgment as a matter of law under Fed. R. Civ. P. 50(a) and (b). This Court reviews
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`the district court’s Rule 50(b) ruling de novo. Mountain Dudes v. Split Rock
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`Holdings, Inc., 946 F.3d 1122, 1129 (10th Cir. 2019). The district court dismissed
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`Southeastern’s 50(b) motion as untimely and, alternatively, denied it on the merits.
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`Dr. Tudor also argues on appeal that the 50(b) motion was not preserved. Because
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`we reject Southeastern’s challenge on the merits, concluding that the jury verdict is
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`supported by the evidence, we can assume without deciding that its renewed motion
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`for judgment as a matter of law was both timely and preserved.
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`“Judgment as a matter of law under Rule 50 ‘is appropriate only if the
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`evidence points but one way and is susceptible to no reasonable inferences which
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`may support the nonmoving party’s position.’” Mountain Dudes, 946 F.3d at 1129
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`(quoting In re Cox Enters., Inc., 871 F.3d 1093, 1096 (10th Cir. 2017)). This Court
`
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`8 There might be an exception to Ortiz’s rule barring an appeal of the denial of
`summary judgment after trial when there are no material facts in dispute and the issue
`is purely legal. Copar Pumice Co., Inc. v. Morris, 639 F.3d 1025, 1031 (10th Cir.
`2011). We decline to resolve this issue because, like in Morris, there undoubtedly
`exist factual disputes in this case, and the legal questions have been resolved by
`Bostock.
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`does not make credibility determinations or weigh the evidence, and the evidence
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`must be viewed in the light most favorable to the nonmoving party. Id. at 1130.
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`Southeastern contends that the district court erroneously denied its Rule 50(b)
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`motion because the jury verdict in favor of Dr. Tudor on her claims of discrimination
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`and retaliation was not supported by sufficient evidence. After careful review of the
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`complete evidence in the light most favorable to Dr. Tudor, we conclude that it was
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`clearly sufficient for a jury to find by a preponderance of the evidence that Dr. Tudor
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`was denied tenure in 2009-10, as well as denied the opportunity to reapply in 2010-
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`11, on the basis of sex, and that Southeastern refused to allow her to reapply in 2010-
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`11 in retaliation for her Title VII complaints.9 In part, we rely on statements from
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`Dean Scoufos about Dr. Tudor’s appearance; Vice President McMillan’s statements
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`about Dr. Tudor’s lifestyle and his recommendation that Dr. Tudor should be
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`summarily fired when he learned she was transgender; Affirmative Action Officer
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`Stubbefield’s sarcastic reference to Dr. Tudor’s new identity; Dr. Parker’s expert
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`testimony that Dr. Tudor was more qualified than other professors in Dr. Tudor’s
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`same department who were granted tenure; Dr. Cotter-Lynch’s testimony about Dr.
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`Tudor’s qualifications; Dr. Mischo’s and Dr. Spencer’s testimony that Dr. Tudor’s
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`portfolio was “sufficient” for tenure (Tudor R. vol. 7 at 158, 210); Dr. Tudor’s, Dr.
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`Mischo’s and Dr. Cotter-Lynch’s testimony that they had never heard of a rule
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`9 The Court has carefully reviewed all the evidence but is not repeating all of it
`here in detail, simply to avoid unnecessarily extending this opinion since the parties
`are fully aware of the evidence.
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`barring tenure reapplication after a denial; the close temporal relationship between
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`Dr. Tudor’s protected activity and the denial of the opportunity for her to reapply for
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`tenure; as well as evidence mentioned earlier in this opinion.
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`Southeastern asserts that “President Minks was the relevant decision-maker,”
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`and Dr. Tudor failed to present any evidence that he discriminated against Dr. Tudor
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`when he denied her tenure. (SE Br. 45–46.) Dr. Tudor does not dispute President
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`Minks is the ultimate decisionmaker; instead, she invokes the “cat’s-paw” theory of
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`recovery. “Under a cat’s-paw theory of recovery (also known as ‘subordinate bias’
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`or ‘rubber stamp’ theory), an employer who acts without discriminatory intent can be
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`liable for a subordinate’s discriminatory animus if the employer uncritically relies on
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`the biased subordinate’s reports and recommendations in deciding to take adverse
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`employment action.” Thomas v. Berry Plastics Corp., 803 F.3d 510, 514 (10th Cir.
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`2015). Here, Dr. Tudor contends she presented evidence from which a jury could
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`conclude that President Minks rubberstamped Vice President McMillan’s decisions,
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`and the l