UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

MARIE AQUILINO, Ph.D.,

Plaintiff - Appellee,

v. No. 00-3150 UNIVERSITY OF KANSAS,

Defendant - Appellant.

ORDER

Filed October 9, 2001

Before EBEL , ANDERSON , and KELLY , Circuit Judges.
Appellant’s motion to publish our order and judgment dated July 23, 2001, is granted. A copy of the published opinion is att ached. Entered for the Court Patrick Fisher, Clerk of Court By: Keith Nelson Deputy Clerk

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 23 2001 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MARIE AQUILINO, Ph.D.,

Plaintiff - Appellee,

v. No. 00-3150 UNIVERSITY OF KANSAS,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS (D.C. NO. CV-99-2231-KHV)

Submitted on the briefs: Alan V. Johnson, Sloan, Listrom, Eisenbarth, Sloan & Glassman, L.L.C., Topeka, Kansas, for appellee. Barbara L. McCloud, Special Assistant Attorney Gene ral, University of Kansas, Lawrence, Kansas, for appellant.

Before EBEL , ANDERSON , and KELLY , Circuit Judges.

ANDERSON , Circuit Judge.1 After examining the briefs and appellate record, th is panel has determined

unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. -2- This is an appeal from the district court’s denial of a motion for judgment as a matter of law. We exercise jurisdiction pursu ant to 28 U.S.C. § 1291 and reverse. 1

I. In 1991, Plaintiff Marie Aquilino was hired as an a ssistant professor in the Department of Art History at the University of Kans as (KU). After seven years on the KU faculty, she had published only a single, twelve-page article. Her teaching reviews were mixed, at best, and her appro ach with students, especially undergraduates, was described as at times abrasive. In December 1997, the faculty of the Art History De partment voted unanimously to recommend denying tenure to Dr. Aqui lino. At the same time, the faculty recommended granting tenure to two othe r candidates, one male, the other female. These recommendations, including Dr. Aquilino’s, were accepted by a supervisory committee comprising faculty and a dministrators from outside the Art History Department. In March 1998, the chancellor of the university formally denied tenure to Dr. Aquilino. He issued her a customary one-year-3-

terminal contract, ending her employment with the u niversity in May 1999. The chancellor awarded tenure to Dr. Aquilino’s two col leagues. Before her termination from the university, Dr. Aqu ilino filed a charge of discrimination with the Kansas Human Rights Commiss ion. She claimed she was denied tenure because of her sex. She later filed suit against the university. Brought under Title VII of the 1964 Civil Rights Ac t, her complaint alleged not only sex discrimination but, in addition, that the university unlawfully retaliated against her because she engaged in protected activi ty, namely the filing of the charge of discrimination. The district court granted summary judgment in favo r of the university on Dr. Aquilino’s discrimination claim, but submitted her retaliation claim to the jury. The jury awarded Dr. Aquilino compensatory d amages of $35,000, based on its findings that KU: (1) “retaliated against p laintiff for her filing of a sex discrimination claim;” and (2) would not “have take n the same employment actions concerning plaintiff even absent the unlawf ul motive of retaliation.” Appellant’s App., Vol. IV, at 940. After the verdict, the district court issued a minu te order denying KU’s motion for judgment as a matter of law, a motion ma de pursuant to Rule 50 of the Federal Rules of Civil Procedure. KU now ap peals, raising a single objection to the district court’s ruling. KU argue s that Dr. Aquilino failed to-4-

present sufficient evidence of adverse employment a ction, and hence did not present a prima facie case of retaliation.

II. We review the district court’s denial of KU’s Rule 50 motion de novo and under the same legal standard as the district court. Brown v. Gray , 227 F.3d 1278, 1285 (10th Cir. 2000). A party is entitled t o judgment as a matter of law “only if the evidence points but one way and is sus ceptible to no reasonable inferences which may support the opposing party’s position.” Tyler v. RE/MAX Mountain States, Inc. , 232 F.3d 808, 812 (10th Cir. 2000) (quotation omi tted). “[I]n reviewing the record, we will not weigh evide nce, judge witness credibility, or challenge the factual conclusions of the jury.” Hampton v. Dillard Dep’t
Stores Inc. , 247 F.3d 1091, 1099 (10th Cir. 2001) (alteration removed and internal quotation marks omitted). Judgment as a matter of law must be denied if there is any legally sufficient evidentiary basis for a claim. Id. We consider the evidence, and all inferences drawn from the evidenc e, in favor of the nonmoving party. Id. Title VII’s anti-retaliation provision prohibits anemployer from “discriminat[ing]” against an employee because thatemployee has “opposed” discrimination in the workplace, or because that employee has “participated . . . in-5-

an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). This provision applies to former emp loyees as well as current employees. Robinson v. Shell Oil Co. , 519 U.S. 337, 346 (1997). To make out a prima facie case of retaliation, a plaintiff mustshow: (1) that he or she engaged in protected activity; (2) that the employer took a n adverse employment action against the plaintiff; and (3) that there exists a causal connection between the protected activity and the adverse action. Jeffries v. Kansas , 147 F.3d 1220, 1231 (10th Cir. 1998). At trial, KU stipulated that Dr. Aquilino engaged i n protected activity, and on appeal it does not challenge the evidence showin g the causal connection between Dr. Aquilino’s protected activity and the a llegedly adverse actions the university took against her. It objects only to th e second element, the requirement of an adverse employment action. Though we accept the truth of each of her allegations, we nevertheless conclude that Dr. Aqui lino presented insufficient evidence to show that she suffered an adverse emplo yment action.

III. Dr. Aquilino rests on five acts by the university, each of which, she said, amounted to an adverse employment action. These in clude: (1) her removal, during her terminal-year contract, from graduate student Diane Boze’s dissertation committee; (2) three separate denials by the university of her repeated-6-

requests, supported by her students and at least tw o academic departments outside the Art History Department, for an ad hoc appointme nt to the graduate faculty; and (3) the denial of her request to become an adju nct research associate with a university foundation.

A. Boze Dissertation Committee Diane Boze was a graduate student in the Departmentof Art History. Dr. Aquilino co-chaired her dissertation committee. Two days after testifying at a hearing convened by the Kansas Human Rights Commi ssion in support of her charge of discrimination, Dr. Aquilino was removed as co-chair of Diane Boze’s dissertation committee. At the time, Dr. Aquilino was still an employee of the university, serving out her terminal-year contract. Dr. Aquilino argues that her removal from the dissertation committee harmed her future employment prospects. We conclude that the removal of Dr. Aquilino from t he dissertation committee six months before the expiration of her c ontract, but after the tenure decision, is simply not an adverse employment actio n. The Supreme Court has explained that “[a] tangible employment action cons titutes a significant change in employment status, such as hiring, firing, faili ng to promote, reassignment with significantly different responsibilities, or a deci sion causing a significant change-7-

in benefits.” Burlington Indus., Inc. v. Ellerth , 524 U.S. 742, 761 (1998). Although this circuit liberally defines “adverse employment action,” it still must be done on a case-by-case basis after “examining th e unique factors relevant to the situation at hand.” Sanchez v. Denver Pub. Sch. , 164 F.3d 527, 532 (10th Cir. 1998). Dr. Aquilino’s claim is that she suffered an advers e employment action based upon her removal from Ms. Boze’s dissertationcommittee because that action would harm her future employment opportuniti es. But the “unique factor” in this case is that Dr. Aquilino had been denied t enure after several years of nonpublication and adverse student comments. Because Dr. Aquilino had already been denied tenure, she certainly had no right to b e on a dissertation committee. Given Dr. Aquilino’s tenure situation, her removal from the committee had, at best, a de minimis effect on her future employment opportunities. Moreover, her removal from the committee is a normal incident of the denial of tenure. Finally, her removal merely altered her job responsibilities by eliminating her dissertation committee assignment in her last months of employme nt. Thus, the removal falls within the category of actions that do not constitute an adverse employment action. Sanchez , 164 F.3d at 532 (“we will not consider a mere inc onvenience or an alteration of job responsibilities to be an adve rse employment action”) (internal quotation omitted).-8-

Against this background, this case does not fit in our “future employment opportunities” cases. The action taken by the univ ersity is entirely different from those taken by the defendants in Rutherford v. American Bank of Commerce , 565 F.2d 1162, 1164-65 (10th Cir. 1977), and Berry v. Stevinson Chevrolet , 74 F.3d 980, 986 (10th Cir. 1996). Before Dr. Aqui lino’s removal from the committee, the university’s tenure decision had alr eady significantly impaired her ability to obtain employment. This case is als o distinguishable because the university did not publicize Dr. Aquilino’s removal from Ms. Boze’s dissertation committee (at Ms. Boze’s request) or communicate wi th Dr. Aquilino’s prospective employers. Instead, the university made an internal decision to remove Dr. Aquilino from the committee. Additional ly, the connection between Dr. Aquilino’s future employment opportunit ies and her removal from Ms. Boze’s dissertation committee is totally differ ent from referring trumped-up criminal charges or a negative reference letter. Cf. Berry , 74 F.3d at 986 (stating that criminal prosecution of plaintiff at his forme r employer’s behest would, like a negative reference letter, have an “obvious impac t”). It is one thing to hold that a criminal complaint o r negative reference letter is an adverse employment action. It is an entirely different matter to hold that any action taken by a plaintiff’s employer (after an employee has a termination date) that may affect the plaintiff’s future employment o pportunities is an-9-

adverse employment action. In this case, an employ ee who is terminated for non-discriminatory reasons should not be placed in a better position than one who has not when it comes to making a retaliation claim based upon a slight duty change occurring during the departure period. This is true despite the testimony by Dr. Aquilino and Professor Lubensky about the harmful affects of not being on the dissertation committee. While that may be so, not being on the dissertation committee and not securing a coterie of graduate st udents may be the natural consequence of the denial of tenure and Dr. Aquilin o’s transition from a faculty member to an ex-faculty member.

B. Denial of Ad Hoc Faculty Status After her termination from the university, and at t he urging of her students, Dr. Aquilino sought “ad hoc” appointment—an unpaid, non-benefit-eligible position–to KU’s graduate faculty. The university rejected her repeated applications for appointment. Dr. Aquilino sought this volunteer status to allow her to continue working with five of her graduate students (not including D iane Boze), of whom several were in the Art History Department, one was in the History Department, and another was connected with the Latin American Studi es Program. Faculty members in both the History Department and the Lati n American Studies Program-10-

recommended approval of Dr. Aquilino’s request. Th e Art History Department voted against making such a recommendation. The fi nal decision in all three cases was made by a university dean, who told juror s that he denied the appointments because, in his estimation, such a rol e for Dr. Aquilino was inconsistent with KU’s earlier decision to deny hertenure. KU argues that since the ad hoc status Dr. Aquilino sought was unpaid, and since the various appointments would have commencedafter her termination, its refusal to grant the appointments did not alter the terms and conditions of Dr. Aquilino’s employment. As a result, the universitycontends, Dr. Aquilino suffered no “demonstrable impact on [her] current e mployment.” Appellant Br. at 34. Dr. Aquilino maintains that the university’s d ecision to deny her ad hoc status effectively stripped her of her remaining gr aduate students, thereby causing additional harm to her future employment prospects. Echoing her position with regard to Diane Boze, she points to her testimony i n which she told jurors that this harm included diminution of her professional r eputation as well as the personal embarrassment and humiliation she experien ced at the loss of her students. She also testified that prospective empl oyers would infer that her students were taken away because of wrongdoing on h er part. Our reasoning with respect to Dr. Aquilino’s remova l from Ms. Boze’s dissertation committee guides our analysis here. W e see little or no difference-11-

between the harms she allegedly suffered, on the on e hand, by her removal from the Boze dissertation committee and, on the other, her inability—due to the university’s refusal to grant her ad hoc faculty st atus—to continue working with other graduate students. Both spring from the comm on claim that the removal of Dr. Aquilino’s graduate students constitutes an adv erse employment action because it adversely affected her future employmentprospects. We have rejected that argument with respect to Ms. Boze; we do so ag ain with respect to KU’s refusal to make Dr. Aquilino an ad hoc member of it s graduate faculty.

C. Denial of Research Associate Position In May of her terminal year, just days before the e nd of her employment at KU, Dr. Aquilino learned that she had been awarded a prestigious research grant from the American Association of University Women. It was unclear at the time whether she would have to retain some sort of unive rsity affiliation to accept the grant. She immediately began discussions with offi cials from KU’s Hall Center for the Humanities in an effort to secure an appointment there as an adjunct research associate. Several weeks after her termin ation, the Hall Center formally asked a university provost to grant Dr. Aquilino th e unpaid, non-benefit-eligible appointment. The provost rejected the Hall Center’ s request, relying in large part on the same reason given for denying Dr. Aquilino a d hoc membership on the-12-

graduate faculty, that is, any such appointment wou ld have been inconsistent with the university’s decision to deny her tenure. Dr. Aquilino again argues that this denial constitutes an adverse employment action because it harmed her future empl oyment prospects. She points to her trial testimony, which detailed how the denial of any university affiliation deprived her of the opportunity to purs ue an alternative career path as a private scholar, one in which she could support h erself by attracting scholarly grants and other awards. She testified that the un iversity’s refusal limited the number of national grants for which she is eligible , since many government agencies and private foundations require universityaffiliation as a condition of any grant. KU argues that Dr. Aquilino presented n o evidence for these claims apart from her own conclusory opinion. We agree with the university. Dr. Aquilino’s alternative-career-path theory rests on little more than her own, untested belief that she could remake herself as a private academic. Speculative harm does not cons titute adverse employment action. See Trimmer v. United States Dep’t of Labor , 174 F.3d 1098, 1103-04 (10th Cir. 1999) (in a case arising under a federal whistle blower statute, holding that employee’s evidence concerning future employme nt harm was too speculative to constitute adverse employment action). Dr. Aqui lino offered no expert testimony supporting her alternate-career-path theo ry, nor did she present-13-

evidence showing that other academics had successfu lly continued their scholarly careers in her proposed manner, particularly after they were denied tenure. In short, she did not demonstrate that it was the univ ersity’s denial of the research associate position—rather than the tenure denial—th at dashed her hopes of becoming a private academic. Furthermore, there is no indication in the record that Dr. Aquilino lost any grant because of the uni versity’s decision. Indeed, it appears that despite the lack of university affiliation, she retained even the grant from the American Association of University Women. The district court’s denial of the University of Kansas’s Rule 50 motion is REVERSED and the case is REMANDED for entry of judg ment as a matter of law in favor of the University of Kansas.