Tina Varlesi v. Wayne State University

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 16a0130n.06

Case No. 14-1862

UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Mar 07, 2016
DEBORAH S. HUNT, Clerk
TINA VARLESI, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
WAYNE STATE UNIVERSITY, et al., ) DISTRICT OF MICHIGAN
)
Defendants-Appellants. )
)

Before: BATCHELDER, McKEAGUE, and STRANCH, Circuit Judges.

ALICE M. BATCHELDER, Circuit Judge. Tina Varlesi was a graduate student in the

School of Social Work at Wayne State University (WSU). After receiving a failing grade and

being denied a degree from the social work program, she brought suit in federal court, against

WSU, her faculty advisor, Carol Premo, the WSU Director of Field Education, Anwar Najor-

Durack, and the Dean of the WSU School of Social Work, Phyllis Vroom, claiming, among

other things, pregnancy discrimination in violation of Title IX and Michigan’s Elliott-Larson

Civil Rights Act (ELCRA), and retaliation for her complaining about that discrimination.1

A jury found the defendants liable, and awarded Varlesi $848,690 in damages. The defendants

appeal the judgment and the denial of certain motions. We AFFIRM.

In 2006, Tina Varlesi graduated from college with excellent grades, a degree in

psychology, and aspirations of being a social worker. That fall, she enrolled at WSU to obtain an

M.S. in Social Work, which is a two-year, graduate program with both classroom coursework
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and hands-on “field” work doing actual social work at an agency under the tutelage of a

(purportedly) licensed, qualified social worker. She was not an employee, nor was she even a

volunteer or an intern; she was a student paying WSU for this experience via tuition and fees.

Varlesi’s first year performance was outstanding: excellent grades in her classes and a

“satisfactory” (the highest possible grade) in both of her field placements. Apparently, one

agency even offered her a job, to commence after she obtained her degree. But during the

intervening summer, Varlesi became pregnant, although she was not married, and during her

placement in the fall semester of her second year, the trouble started (though her classroom

grades remained excellent).

That fall semester, beginning September 2007, Varlesi’s “faculty advisor,” Carol Premo,

placed her at the Veteran’s Administration (VA) Hospital under a “field instructor” named

Pamela Mackey, a placement that was problematic from the beginning, even before Varlesi

discovered her pregnancy (circa September 24, 2007).2 Varlesi did not like the placement at the

VA and Mackey did not like Varlesi, complaining extensively to Premo and ultimately

terminating the placement early. When Varlesi accused Mackey of pregnancy discrimination,

Premo summarily rejected the accusation and did not investigate. But, despite Mackey’s

scathing report, Premo did not fail Varlesi from that placement. Instead, Premo passed Varlesi

and placed her at the Salvation Army Adult Rehabilitation Center (an all-male rehabilitation

center for ex-convicts, drug addicts, etc.) for the spring semester, under a field instructor named

1
Other defendants named in this action obtained summary judgment. Those judgments are not appealed.
2
According to the WSU “School of Social Work Field Education Manual,” a “faculty advisor” and a “field
instructor” each has specific, defined authority, roles, and responsibilities:
The faculty advisor “provides assistance and feedback to the student at the [field placement] agency and mediates
placement related issues, including any that might occur between the student and the field instructor,” but more
importantly, “monitors and grades the student’s field work performance.” R. 56-3 at 11 (Manual), Pg ID# 1284.
Correspondingly: “A field instructor is a Licensed Masters Social Worker (LMSW) with 2 years post-MSW
experience and [an] agency staff member who supervises students at the field placement agency. The field
instructor also evaluates students and provides feedback to the faculty advisor for grading.” Id.
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Joyce Stefanski, with the expectation that Varlesi would also make up the incomplete hours from

the fall semester.

Varlesi began the spring semester, her final semester in the program, on January 7, 2008,

at the Salvation Army placement and Stefanski addressed her obvious pregnancy immediately,

ordering her not to drive after dark or in bad weather, questioning her marital status and living

arrangements, and announcing that though she had “had relations” with someone, the men at the

rehab “can look but they cannot touch.” Other students were present for this uncomfortable

conversation. And, within days, Sefanski was complaining to Premo about Varlesi’s alleged

underperformance, poor attendance, and bad attitude. There was also a separate problem. On

January 11, 2008, another student, Amber Bergin (one of three other students Premo had placed

at the Salvation Army), sent a mass email critical of the placement experience and of Stefanski

personally, pointing out, among other things, that Stefanski was not a licensed social worker, or

even actually a social worker, as was required by the Manual. The email infuriated Stefanski and

prompted a meeting on January 14, 2008, during which Stefanski told Premo she wanted to be

rid of Varlesi, and Varlesi requested to be reassigned. Premo refused. The placement continued.

Two weeks later, on January 27, 2008, there was another meeting, this one at Varlesi’s

request, attended by Varlesi, Stefanski, Premo, and Najor-Durack (Premo’s boss, the Director of

Field Education). During this meeting, Varlesi directly accused Stefanski of pregnancy

discrimination. Stefanski denied any discrimination but said she had told Varlesi repeatedly to

stop “rubbing her belly” and to wear looser clothing, and said that the men at the facility were

being “turned on by her pregnancy.” Neither Premo nor Najor-Durack considered any of that

discriminatory. They considered it reasonable under the circumstances and told Varlesi to wear
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looser clothing.3 They also told Varlesi that she could or should drop out of the program because

of her pregnancy.

The January 27th meeting did not resolve or improve the situation. Stefanski continued

to hound Varlesi, who complained to the WSU Office of Equal Opportunity, the WSU

Ombudsman, and Najor-Durack. Varlesi also hired an attorney. Premo was angry at Varlesi for

going over her head and scolded her about it. But Premo never criticized Varlesi’s performance

or warned her that she was failing the placement. In fact, when Varlesi sent Premo an email that

she thought things were improving, Premo responded (in her only email response to Varlesi’s

many emails), on February 2, 2008, with: “You have no idea how much that pleases me. I knew

I was backing a winner.” R. 196-1. Stefanski was still complaining to Premo, but neither ever

put anything in writing.

But the situation had not actually improved, and Varlesi requested yet another meeting,

which occurred on March 17, 2008, and comprised Varlesi, Stefanski, Premo, and Gary Gillow

(Stefanski’s boss). Stefanski again complained about Varlesi’s rubbing her belly, wearing tight

clothing, and stimulating the men with her pregnancy; Premo again supported Stefanski. When

Varlesi again raised the pregnancy discrimination, and her complaints about it, Premo scolded

3
Stefanski reenacted this “belly rubbing” during her trial testimony, R. 176 at 11-12, and while the written
transcript leaves much to the imagination, it does not appear from the context that this rubbing was sexual or
provocative. In fact, Stefanski at one point testified that she thought the belly rubbing was due to discomfort,
indicative of a medical problem with Varlesi or the baby. But she nonetheless insisted that it could have been
sexually suggestive, R. 176 at 69, and Premo testified that Stefanski’s problem with the belly rubbing was that it was
sexually “stimulating” the men, R. 175 at 18. Apparently, only Stefanski ever saw it; Premo denied ever seeing any
belly rubbing and Najor-Durack was only present for the one meeting, at which there was no belly rubbing.
Stefanski’s boss at the Salvation Army, Gary Gillow, denied ever seeing belly rubbing.
Apparently, only Stefanski thought that Varlesi’s clothing–which was maternity clothing–was too tight.
Stefanski testified that Varlesi wore slacks and sweaters (one that wrapped around like a robe) and never showed too
much skin. For her part, Premo testified that she never saw Varlesi wearing clothing that was too tight, but simply
relied on Stefanski’s statements. Nor did Gary Gillow ever see Varlesi wearing inappropriate clothing.
Finally, the accusation that Varlesi’s pregnancy was sexually stimulating the men was not thoroughly
developed or explained. Apparently, Stefanski and Premo (and perhaps Najor-Durack) harbored a belief that
pregnancy itself is sexually arousing to all or certain men, though at trial the defendants offered no expert testimony
to substantiate such an opinion nor did any of the men testify to actually having been “turned on” or aroused.
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her again and instructed her that she was not to talk to Najor-Durack or others about pregnancy

discrimination. But no one criticized Varlesi’s work quality and, oddly, they even discussed

where she wanted to work when she completed her degree. When Varlesi worried about

Stefanski’s malevolence, Premo assured her that she (Varlesi) was “doing great,” that Stefanski

had no authority to fail her, and in fact, Stefanski had never given anyone a failing evaluation.

Nonetheless, Stefanski continued to hound Varlesi about her belly, her clothing, and her

pregnancy, and to threaten a failing evaluation.

On April 15, 2008, Stefanski gave Varlesi a failing evaluation. Moreover, as the district

court noted, “WSU admit[ted] that Stefanski’s evaluation of [Varlesi] was the worst evaluation

any WSU social worker student ha[d] ever received.” R. 81 at 9 n.4. 4 Prior to and during the

eventual trial, Varlesi’s attorney established that this evaluation was procedurally deficient and

much of it was unsubstantiated, biased, and substantively untrue. At the time of the evaluation,

Varlesi had complained to Premo, Najor-Durack, and others that it was untrue, unfair, and based

on discrimination, but her complaints fell on deaf ears. She emailed, called, and wrote a lengthy

point-by-point rebuttal for Premo, who ignored her and the rebuttal. On April 29, 2008, Premo

gave Varlesi a failing grade in the placement, thus preventing her from obtaining the degree from

the social work program.

That same day, Varlesi filed a formal discrimination charge with WSU, which WSU

rejected on the basis that the School of Social Work had already investigated and dismissed it.

At trial, however, Dean Vroom confirmed that there had been no such investigation. Meanwhile,

Regardless, this peculiar accusation, in the context of this lawsuit, appears to be an accusation against pregnant
women in general (not Varlesi in particular) and is plainly discriminatory.
4
Recall that Varlesi wasn’t a poor student; she wasn’t even an average student; she was an excellent
student who had received top grades in her coursework and top evaluations in her first two placements and even a
job offer. None of the men in recovery at the Salvation Army ever complained about her and even Gary Gillow
(Stefanski’s boss) had a favorable opinion of her. Given the extremity of the review, in light of these other
circumstances, its legitimacy was immediately suspicious. And it was proven illegitimate via other evidence.
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Najor-Durack provided information to Vroom to oppose Varlesi’s grade appeal and, relying on

that information, Vroom denied the appeal and denied Varlesi’s request for readmission to the

program. Eventually, at trial, Varlesi’s counsel established that Najor-Durack had skewed or

fabricated the information against Varlesi, that Vroom had not followed the School’s procedures,

and that the approach and the harsh result were unique in the history of the program.

Varlesi brought this action in federal court, claiming pregnancy discrimination and

retaliation in violation of Title IX and Michigan’s ELCRA, among other things. She named the

four defendants already discussed herein as well as Stefanski, the Salvation Army, and three

WSU panel members who had denied her reinstatement. The parties filed numerous motions

with the district court and have appealed the court’s decisions as to several of those motions.

During discovery, the defendants sought an independent medical examination (IME) of

Varlesi, in order to challenge Varlesi’s claim of damages based on emotional harm. The court

denied the motion, explaining that Varlesi was not invoking an expert or asserting any medical

harm, she was just claiming “garden variety” emotional harm resulting from the ordeal. This is

typical of almost every tort case, and every tort case does not necessitate an IME. Here, the

court determined that an IME was not clearly necessary at that still-early stage of discovery,

denied it without prejudice, and specifically allowed that the defendants could refile the motion,

if no later than 90 days before trial. R. 53 at 6; PgID 558. The defendants never refiled the

motion.

The defendants moved for summary judgment. The court granted summary judgment to

the Salvation Army upon finding that it is not an educational institution subject to Title IX or

Michigan’s ELCRA counterpart, R. 81 at 15; nor was the Salvation Army subject to ELCRA as

either Varlesi’s employer, R.81 at 23, or a place of public accommodation, R. 81 at 27. The

court granted summary judgment to Stefanski on the same basis, among others. R. 81 at 29. The
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court also granted summary judgment on Varlesi’s other claims against the WSU defendants

(i.e., marital status discrimination, R. 81 at 39; sexual harassment, R. 81 at 48; and due process,

via qualified immunity, R. 81 at 53, which eliminated the three reviewing WSU panel members).

But, on Varlesi’s claims of pregnancy discrimination and retaliation, the court denied summary

judgment, finding that she had made a prima facie case and identified evidence for a jury

determination as to whether the defendants’ explanation (inadequate performance) was pretext:

[Varlesi] easily creates a fact issue on the question of whether the WSU
Defendants’ proffered reason—namely, performance issues—was the true reason
for the failing grade, in light of Premo’s statement to [Varlesi] a mere two weeks
before Stefanski issued her review of [Varlesi][,] that [Varlesi] was ‘doing great.’
Premo Dep. at 353. The WSU Defendants are hard pressed to rely on performance
deficiencies when [Varlesi]’s ultimate evaluator—Premo—told [Varlesi] as the
semester was nearing an end that she was ‘doing great.’ Nothing catastrophic
happened between the time of that statement and the issuance of her final grade.

R. 81 at 38-39; see also R. 81 at 45. Thus, the two claims proceeding to trial were pregnancy

discrimination and retaliation, against Premo, Najor-Durack, Vroom, and WSU.

The defendants moved in limine to exclude certain evidence from trial, including

Varlesi’s testimony about her emotional damages. The court granted that motion in part;

allowing Varlesi to testify but disallowing any expert statement or hearsay. R. 118 at 5. The

defendants sought to exclude certain other evidence as irrelevant, including: (1) discriminatory

statements by Salvation Army employees, (2) violations of the Field Education Manual, and

(3) that a WSU employee told Varlesi to omit accusations of discrimination from her application

for reinstatement. The court found this evidence relevant and denied the motion. Meanwhile,

Varlesi moved to exclude evidence of her 2002 hospitalization and the termination of her marital

engagement in 2007. The court found this evidence relevant to Varlesi’s claims of emotional

distress, but nonetheless excluded the evidence as too prejudicial, unless Varlesi “open[ed] the

door in her testimony about how she ha[d] been damaged emotionally.” R. 118 at 10.
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Following a 13-day trial, the jury ruled for Varlesi, finding the defendants liable and

awarding $848,690 in damages ($148,690 economic; $200,000 future; and $500,000 non-

economic). The district court entered judgment according to that verdict.

The defendants moved for judgment as a matter of law, a new trial, and a remittitur of the

damages award, claiming that (1) the verdict was contrary to the evidence, (2) the damages were

excessive, (3) the trial was unfair, (4) the court erred in certain evidentiary rulings, (5) the jury

instructions were improper, and (6) Varlesi’s counsel committed some unarticulated misconduct.

R. 169 at 2. The district court denied the motion in its entirety. The defendants appeal.

II.

Because we review most of these claims for abuse of discretion and because most of the

defendants’ arguments here are that the district court abused its discretion by misconstruing facts

or evidence, we begin with this standard of review. “The district court abuses its discretion when

it applies an erroneous legal standard, misapplies the proper legal standard, or relies on clearly

erroneous facts.” E.E.O.C. v. Peoplemark, Inc., 732 F.3d 584, 590 (6th Cir. 2013) (emphasis

added). Otherwise, an “[a]buse of discretion is defined as a definite and firm conviction that the

trial court committed a clear error of judgment.” Id. (quotation marks omitted). And “the trial

judge’s exercise of discretion is entitled to substantial deference, especially when the rationale

for the [decision] was predominantly fact-driven.” Id. (editorial and quotation marks omitted).

The defendants claim that the district court abused its discretion by excluding certain

evidence about Varlesi’s 2002 hospitalization for mental health issues and the termination of her

marital engagement in the summer of 2007. Specifically, the defendants argue that Varlesi

“opened the door” to admission of this evidence of possible other causes of her emotional
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distress with her testimony about her ongoing emotional distress. The court found the evidence

relevant but much more prejudicial than probative and held that Varlesi did not open the door.

On appeal, the defendants cite Maday v. Public Libraries, 480 F.3d 815 (6th Cir. 2007),

as support for their proposition that “[e]vidence of alternative sources of emotional distress, such

as concurrent psychiatric illnesses or marital problems, should be admitted at trial.” Apt. Br. at

43 (emphasis added). First, it is a stretch to say that Maday stands for any such proposition and

there are numerous reasonable arguments that it does not. See Maday, 480 F.3d at 821 (holding

that the plaintiff had waived any purported social-worker-client-confidentiality privilege by

putting her emotional state at issue in the case). But, even accepting the proposition as

defendants state it, “should” is not “must,” and neither the defendants nor Maday suggest that

Federal Rule of Evidence 403 does not apply or that the court misapplied Rule 403 when it

balanced the relevance against the prejudice.

Instead, the defendants disagree with the court’s weighing of the evidence, contending

that when Varlesi testified about her ongoing emotional harm, the evidence of her 2002 mental

health and 2007 relationship turmoil “outweigh[ed] any prejudice because it directly rebut[ted]

[her] allegations” that she was “harmed only by Defendants.” Apt. Br. at 46. Varlesi points out

that the court excluded only two specific things: (1) her psychiatric hospitalization in 2002 and

(2) the “reason” for the termination of her marital engagement in 2007. The defendants could,

and did, raise (and question Varlesi and others about) alternative sources of emotional distress,

including: that Varlesi’s fiancé and father of her child left her, her mother’s significant health

issues, the deaths of close family and friends, the birth of her son and her being a single mother,

and the rigors of the litigation in this case. That is, the defendants did present significant

evidence to rebut any suggestion that Varlesi was “harmed only by Defendants.”
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On the whole, the court did not rely on any clearly erroneous facts; it relied on the record

facts and its decision is entitled to substantial deference. See Peoplemark, 732 F.3d at 590. We

find no abuse of discretion in this determination.

The defendants claim that the district court abused its discretion by withholding until the

close of evidence the formal admission into evidence of certain letters, thus preventing the use of

the letters during testimony at trial. The defendants argue that these letters show (1) that

Varlesi’s performance problems predated the discrimination and retaliation and (2) that Premo

had supported Varlesi initially even though she knew Varlesi was pregnant and had complained

about discrimination. The defendants do not cite any cases to support this claim of error, but cite

only Federal Rule of Evidence 901 (authentication of evidence), and that only in passing.

The two letters in question were written by Pamela Mackey, the field instructor at the VA

Hospital where Varelsi did her fall 2007 semester placement; were very critical of Varlesi’s

performance at that placement; and were sent to Premo as attachments to an email. But the

letters themselves were undated. Moreover, Mackey testified that she might have written the

letters after Premo had already failed Varlesi, and this revelation was exacerbated when Najor-

Durack testified that, after failing Varlesi, Najor-Durack had solicited negative information from

Mackey about Varlesi to justify the failing. Thus the district court had concerns that the letters

were after-the-fact fabrications rather than contemporaneous reports that would have justified

Premo’s decision at the time, and withheld admission until the defendants produced the dated

email correspondence that established when Mackey had actually sent the letters to Premo.

Even assuming these letters were relevant (and that is questionable, given that Premo

passed Varlesi in that fall 2007 placement despite these letters and Mackey’s opinion should

have had no bearing on the grade for the spring 2008 Salvation Army placement), this was
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merely an exercise of the court’s Federal Rule of Evidence 901 authority. The court did not rely

on any clearly erroneous facts; it relied on the accurate record facts and its decision is entitled to

substantial deference. See Peoplemark, 732 F.3d at 590. On these facts and this record, there

was no abuse of discretion in this determination.

The defendants argue that, by allowing the jury to award future damages, the district

court abused its discretion, first because any award of future damages would be too speculative

as a matter of law due to Varlesi’s young age; and second, because Varlesi did not prove that she

had mitigated her damages. Neither of these arguments has merit.

The defendants cite several cases as support for their proposition that Varlesi’s young age

necessarily rendered any future damages unavailable as a matter of law, but none of those cases

actually holds (or even suggests) that her “young age” is determinative. And that is not the law.

The law requires that, because future damages (a.k.a. front pay) are “often speculative,” the

district court must have “flexibility and wide discretion” in crafting such a remedy. Shore v.

Fed. Express Corp., 42 F.3d 373, 378 (6th Cir. 1994). And there are certain factors that must

guide the award of future damages, including mitigation of damages, “the availability of

employment opportunities, the period within which one by reasonable efforts may be re-

employed, the employee’s work and life expectancy, [and] the discount tables to determine the

present value of future damages,” among others. Roush v. KFC Nat’l Mgmt. Co., 10 F.3d 392,

399 (6th Cir. 1993). Varlesi provided evidence about, and the district court considered, these

factors, including her mitigation efforts, her inability to enroll in other graduate programs after

her failure at WSU, her job search and the prior job offer, and Bureau of Labor statistics.

As for mitigation, it was defendants’ burden to prove that Varlesi did not mitigate, see

Maden v. Chattanooga City Wide Serv. Dep’t, 549 F.3d 666, 680 (6th Cir. 2008), and they failed
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to persuade the district court or the jury. Given that the record does contain evidence of

Varlesi’s mitigation efforts, this is yet another argument about the weighing of the evidence.

The court did not rely on any clearly erroneous facts; it relied on the record facts and its

decision is entitled to substantial deference. See Peoplemark, 732 F.3d at 590. We find no abuse

of discretion in this determination.

The defendants argue that the district court abused its discretion by denying their motion

for remittitur because: (1) the amount is so excessive that it shocks the conscience, (2) Varlesi

could invest the award and receive interest from that investment in perpetuity, and (3) Varlesi’s

evidence did not justify the award. The defendants cite several cases, but none is persuasive or

even clearly applicable. This is just another disagreement about the weighing of the evidence.

This award does not shock the conscience. Remittitur “should be granted only if the

award clearly exceeds the amount which, under the evidence in the case, was the maximum that

a jury could reasonably find to be compensatory for the plaintiff’s loss.” Roush, 10 F.3d at 397

(emphasis in the original; quotation marks omitted). The evidence here demonstrates that the

defendants’ discrimination and retaliation deprived Varlesi of the opportunity for employment in

her chosen field by denying her a graduate degree and denying her the ability to obtain that

degree elsewhere, thus causing actual damages and foreseeable emotional harm. This award

does not necessitate remittitur.

The defendants’ second argument—that Varlesi could invest the award at 5% interest and

receive dividends in perpetuity—is irrelevant and wholly frivolous. How a litigant might spend,

save, or invest an award has no bearing on the propriety of that award.

Finally, Varlesi produced evidence that the jury ultimately believed and found

informative in its calculation of damages. The defendants disagree with the weight of that
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evidence and they had their opportunity to counter it at trial. They failed to do so and their

continued disagreement does not mean the court abused its discretion.

The court did not rely on any clearly erroneous facts; it relied on the record facts and its

decision is entitled to substantial deference. See Peoplemark, 732 F.3d at 590. Again, we find

no abuse of discretion.

The defendants claim that the district court abused its discretion by admitting (1) the

School of Social Work Field Manual and the defendants’ failure to abide by it, and (2) certain

pregnancy-related derogatory statements made to Varlesi by Salvation Army employees. Just to

be clear, the district court admitted the former as evidence that the defendants’ post-hoc

explanation was simply pretext and the latter as proof that the defendants were fully aware of the

discrimination.

The defendants argue that the evidence was misleading, irrelevant, and prejudicial; that

the potential for prejudice and confusion outweighed the probative value. But the defendants

offer no reason (or even argument) that the court was obligated or required to exclude this

evidence. This is, at best, another disagreement with the district court’s weighing of the

evidence. The court did not rely on any clearly erroneous facts; it relied on the record facts and

its decision is entitled to substantial deference. See Peoplemark, 732 F.3d at 590. The court did

not abuse its discretion in this evidentiary determination.

The defendants claim the district court abused its discretion by refusing to give certain

requested jury instructions because they were correct statements of the law. To be sure, one

factor in a court’s determination of the propriety of a requested jury instruction is that it is a

correct statement of the law. See Williams v. Eau Claire Pub. Sch., 397 F.3d 441, 445 (6th Cir.
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2005) (citation omitted). But, even when that is so, it is nonetheless improper for a court “to

instruct the jury on an issue when there has been insufficient evidence presented to support a jury

finding on that issue.” Tuttle v. Metro. Gov’t of Nashville, 474 F.3d 307, 322 (6th Cir. 2007).

The first requested instruction was the same-actor-inference instruction; i.e., the same

actor (Premo) passed Varlesi in the fall 2007 semester but failed her in spring 2008, despite

Varlesi’s pregnancy and discrimination claims in both terms, so the jury could infer that after

first giving Varlesi a passing grade, Premo would not have discriminated or retaliated against her

four months later. But Premo’s attitude and the surrounding circumstances changed markedly

during this period. When Premo passed Varlesi in her VA Hospital placement (fall 2007

semester), Premo was unsure of exactly what had occurred there, or whom to believe. And while

Varlesi had raised accusations of pregnancy discrimination, she had not filed any formal

complaints and she certainly had not directly disobeyed Premo’s order that she not complain to

Najor-Durack. By the end of spring 2008, however, after four intense months of pregnancy

discrimination, accusations, meetings, discrimination complaints, and threats, Premo was—by

her own admission—fed up with Varlesi. Simply put, the evidence did not support the giving of

this instruction.

The second requested instruction was the presumption-of-regularity instruction; i.e., the

jury could presume that the defendants had regularly performed their duties. But the evidence

was to the contrary. The defendants did not perform their duties according to the written policies

contained in the School of Social Work Field Manual. In clear violation of, or disregard for, the

policies, Premo conducted her duties as “faculty advisor” to Varlesi without any plan, structure,

or consistency; kept no notes or records; did almost nothing to alleviate a very problematic

situation involving Varlesi’s pregnancy, instead condoning and joining the discrimination;

ordered Varlesi—in direct contravention of the Manual and the law—to stop raising
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discrimination complaints to Premo’s superiors; and then, by Premo’s own admission, failed

Varlesi in retaliation for making those complaints. Najor-Durack joined in the pregnancy

discrimination (ordering Varlesi to wear looser maternity clothing and advising her to drop out of

the program because she was pregnant), and then fabricated evidence to support the failing grade

and prevent a fair grade appeal or reinstatement review. Vroom ignored the Manual and rubber-

stamped the failing grade without any investigation; she also agreed with the dismissal of the

discrimination complaint despite knowing that no actual investigation or inquiry had ever been

undertaken. There is no “regularity” in any of that.

The third requested instruction was the business-judgment instruction, i.e., WSU had

discretion over its business judgments, even if they were wrong. But the decision to discriminate

and retaliate against a student, and then cover it up, is not a business judgment.

As the district court found, the evidence did not support these requested instructions. The

court did not rely on any clearly erroneous facts; it relied on the record facts and its decision is

entitled to substantial deference. See Peoplemark, 732 F.3d at 590. We find no abuse of

discretion in these determinations.

The defendants argue that the district court used the wrong standard of causation for the

retaliation claim, based on University of Texas Southwest Medical Center v. Nassar, 133 S. Ct.

2517, 2526, 2533 (2013), which held that “Title VII retaliation claims must be proved according

to traditional principles of but-for causation.” That is, the defendants argue that Varlesi was

required to prove that Premo gave her the failing grade “because of” her complaining to Premo’s

superiors about the discrimination; it is not enough that the complaining (i.e., protected activity)

was merely a “motivating” or “substantial” factor influencing the failing grade (i.e., retaliatory

action).
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Tina Varlesi v. Wayne State University, et al.

The defendants’ contend that the court instructed the jury that Varlesi had only to prove

that the protected activity was a “significant factor” motivating Premo’s retaliatory act. See Apt.

Br. at 58-59. Two of the court’s actual instructions are pertinent here:

Federal and state law also prohibit an educational institution from retaliating
against a student because the student has engaged in a protected activity.

R. 186 at 185, lines 7-10; PgID 8848 (emphasis added).

To establish a causal connection [for retaliation], Plaintiff must demonstrate that
her participation in a protected activity was a significant factor in Defendants’
adverse decisions.

R. 186 at 187, lines 21-24; PgID 8850 (emphasis added).

But Nassar, a Title VII case, went to some lengths to differentiate Title VII from Title IX

with regard to prohibitions on retaliation. See Nassar, 133 S. Ct. at 2530-31. Moreover, this

trial predated the Court’s issuance of Nassar by about five months, so the difference between

“because” and “significant factor” was not meaningful at the time and, in fact, “significant

factor” was actually the law. And the jury verdict form was framed as an express question that

used “because” and not “significant factor”:

Question 2

Do you find that any one of, or more than one of the Defendants . . . retaliated
against Plaintiff by awarding her a grade of ‘unsatisfactory’, dismissing her from
the Wayne State University and/or failing to reinstate her because she complained
about pregnancy discrimination?

R. 128 (emphasis added). The jury voted yes.

The Fourth Circuit considered a similar situation and rejected the employer’s argument

that Nassar’s change in the law warranted a new trial, explaining:

[D]espite the improper instructions, it is not clear that the jury actually determined
[the defendant]’s liability under the incorrect standard. The jury’s verdict sheet
may constitute ‘evidence to the contrary’ of our typical assumption that the jury
followed the district court’s instruction on this claim. On its verdict sheet, the
jury found that [the plaintiff] had proven ‘he was terminated from his employment
by the defendant because of his opposition to activity made unlawful under Title
VII.’ Under Nassar, the use of ‘because of’ indicates the existence of a but-for
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Tina Varlesi v. Wayne State University, et al.

causal relationship. . . . The jury’s finding that there was no lawful reason for [the
plaintiff]’s termination indicates that it could have concluded retaliation was a
but-for cause of the adverse employment action.

E.E.O.C v. A.C. Widenhouse, Inc., 576 F. App’x 227, 231-32 (4th Cir. 2014) (editorial marks,

citations, and certain quotation marks omitted). Notably, like Nassar, Widenhouse was a Title

VII case, whereas the present case is a Title IX discrimination and retaliation case.

But the basic premise holds: the jury here found expressly that the defendants retaliated

against Varlesi because she complained, “because” means “but-for” under Nassar, and the

defendants have not shown that the outcome would have been different had the court consistently

used “because” instead of “significant factor” in its oral instructions. Therefore, even assuming

that Nassar applies to Title IX claims, we conclude as the Fourth Circuit did in Widenhouse that

the defendants cannot demonstrate prejudice from this perceived error and it is consequently not

reversible.

The defendants claim that the district court erred by refusing a directed verdict based on

insufficient evidence. Fed. R. Civ. P. 50 (providing that the court may grant a judgment as a

matter of law if “a reasonable jury would not have a legally sufficient evidentiary basis to find

for the party”). In reviewing the district court’s order, we must view the evidence in the light

most favorable to the party against whom the motion is made, giving that party the benefit of all

reasonable inferences. The motion should be granted, and the district court reversed, only if

reasonable minds could not come to a conclusion other than one favoring the movant. See K & T

Enters., Inc., v. Zurich Ins. Co., 97 F.3d 171, 175-76 (6th Cir. 1996). Simply put, Varlesi

produced evidence that Premo joined or enabled Stefanski’s discrimination against her due to her

pregnancy and also retaliated against her (via a failing grade in her placement and failing her

from the program) for complaining about that discrimination; Najor-Durack joined in the
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Tina Varlesi v. Wayne State University, et al.

pregnancy discrimination (ordering Varlesi to wear looser maternity clothing and advising her to

drop out because she was pregnant), then solicited evidence to support Premo’s failing grade and

prevent a fair grade appeal or reinstatement review; and Vroom ignored the Manual, approved

the failing grade without investigation, and agreed with the dismissal of the discrimination

complaint despite knowing that no actual investigation or inquiry had ever been undertaken.

A reasonable jury could point to this evidence as a basis for its verdict.

The defendants argue that the district court should have granted them summary judgment,

for the reasons “discussed in Defendants’ Motion for Summary Judgment.” Apt. Br. at 60. But

“a losing party may not appeal an order denying summary judgment after a full trial on the

merits.” Hill v. Homeward Residential, Inc., 799 F.3d 544, 549-50 (6th Cir. 2015).

This claim is frivolous.

III.

For all of the foregoing reasons, we AFFIRM the judgment of the district court.