Here’s an update on the October 2018 jury verdict in our firm’s tenure case against American University. On February 5, 2019, Judge Rankin denied defendant’s post-trial motion . AU made three primary arguments, each of which the court rejected. Some excerpts follow (emphasis added) –
The University moves for judgment notwithstanding the verdict on plaintiff’s age discrimination claim, arguing that no reasonable jury could have found in favor of plaintiff on her claim based on the evidence presented at trial. According to the University, only limited evidence presented at trial supports that claim: (1) the expert testimony of statistician Dr. Bridget Bly; (2) comparator evidence; and (3) the statement, “old SIS 2006 book”, written by President Kerwin on a meeting agenda. Def. Mem. at 2. Defendant further argues that-not only did plaintiff fail to present sufficient evidence-but that the evidence that was presented points overwhelming in the other direction. Id. at 3.
First, as to the statistical evidence, the court explained that au could have cross-examined the expert statistician on the disputed points (such as not including lateral candidates, or stopping the analysis in 2015), and/or presented its own rebuttal evidence, but it chose not to do so:
The court is not persuaded by the University’s argument with respect to Dr. Bly’s testimony. The University disagrees with the scope of decisions that Dr. Bly included in her analysis-not how she conducted the analysis itself. If the University believed that another set of statistics was necessary to present an alternative theory, it should have presented such evidence in its defense. Moreover, the decision to include certain candidates and not others in statistical analysis is the sort of subject ripe for cross examination. However, the exclusion of lateral candidates for arguably thoughtful reasons, i.e., that their journey to tenure was procedurally different than tenure-track professors, does not make Dr. Bly’s methods unreliable.
Second, as to the comparator evidence, the court explained that if AU had concerns with how the plaintiff selected the comparators (who received tenure without having published a book or otherwise with lesser qualifications), then AU should have cross-examined that evidence:
Whether “two employees are similarly situated ordinarily presents a question of fact for the jury[.]” burton v. district of columbia, 153 f. supp. 3d 13, 67 (d.d.c. 2015). the court should only decide whether they are similarly situated as a matter of law “if a reasonable jury would be unable to find that the plaintiff and the comparator were similarly situated[.]” id. here, plaintiff presented sufficient evidence as to each proposed comparator from which a reasonable juror could find that he or she is similarly situated to plaintiff. specifically, plaintiff named nine comparators, each of whom was younger than plaintiff and had been awarded tenure. plaintiff argued that those tenure candidates were similarly situated to her with respect to their qualifications for tenure-if not less qualified-and that they were awarded tenure, while plaintiff was not. although plaintiff may have highlighted certain comparators, or certain facts within their application for tenure, it was the university’s obligation to cross-examine the evidence. the university’s argument that plaintiff did not highlight, in their opinion, the right facts, is not compelling.
Third, as to a handwritten note reflecting a meeting between the then-provost and the then-president, where the phrase “old sis” was written next to plaintiff’s name, the court rejected au’s argument that the note had another non-discriminatory meaning, since it was up to the jury to weigh the evidence:
Lastly, the University argues that no reasonable jury could have found the note presented by plaintiff, with the writing “Old SIS”, sufficient to support a finding of age discrimination. Specifically, the University contends that “Dr. Kerwin provided explanations for the note which had nothing to do with age, and he testified that he and Dr. Bass never discussed [plaintiff’s] age.” See Def. Mem. at 17. But this type of dispute is exactly the type of factual issue to be decided by a jury. Multiple explanations for the note were presented at trial, and it was for the jury to weigh the evidence and credibility of the witnesses to resolve that dispute.
When viewing the evidence in the light most favorable to plaintiff, and giving her the benefit of every reasonable inference, it is apparent that a reasonable juror could have found in plaintiff’s favor as to age discrimination. Although the evidence was prone to different interpretations, it is for the jury to weigh the evidence and credibility of the witnesses. Thus, the instant motion for judgment as a matter of law is denied.
Accordingly, it is this 5th day of February, 2019 hereby:
ORDERED, that defendant’s motion for judgment as a matter of law, or in the alternative, for a new trial is DENIED.