IN THE UNITED STATES DISTRICT COURT FOR 

THE NORTHERN DISTRICT OF ILLINOIS

(EASTERN DIVISION)

Lisa Calvente )

Plaintiff, )

v. )

) No. 20–cv–3366

Salma Ghanem, and )

DePaul University )

Defendants. )

_________________________________________)

Lisa Calvente’s Response And Objection To Defendants’ Motion To 

Strike Dr. Zaeske’s Report And Testimony 

Lisa Calvente (“Dr. Calevnte”) responds and objects to the Defendants’ Motion To Strike 

Dr. Zaeske’s Report And Testimony (the “Motion”) (Docket No. 60). In support of this response, 

Dr. Calvente states as follows:

Facts and Procedural History

The College of Communication (the “College”) at DePaul University (“DePaul” or the “University”) is a small school. (Murphy Dep. 40:20–41:1, copy attached as Exhibit A.) For the better part 

of the last decade, Dr. Calvente was a tenure–track faculty member at the College. And during her 

time there, Dr. Calvente made few friends due to her advocacy for racial justice, which included (i) 

multiple complaints to administrators about racially charged conduct by tenured faculty (including 

one incident where a faculty member used the N–word as a punchline), (ii) multiple formal complaints to DePaul’s Office of Institutional Diversity and Equity (“OIDE”), and (iii) a meeting with 

the then dean, Salma Ghanem (“Dr. Ghanem”), where Dr. Calvente was so bold as to accuse Dr. 

Ghanem of playing racial politics with another professor’s career. 

Ultimately, and as this Court knows, Dr. Calvente did not receive tenure at DePaul despite 

a recommendation from an independent University board (the “UBPT”) tasked with conducting an 

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independent review (i.e., a review untainted by any of the passions that might have existed at the 

College) of Dr. Calvente’s dossier. The question in this litigation is why Dr. Calvente failed to obtain 

tenure when the UBPT’s recommendation should be rejected only in rare instances and for compelling reasons. Some of the evidence that Dr. Ghanem violated the civil rights laws includes her decision to grant tenure to white faculty members who had no record of complaining about discrimination and who the UBPT recommended not receive tenure by a vote of 6–1. But just as important is 

what happened next in Dr. Calvente’s career.

The academy has a culture and hierarchy markedly different than that of the typical American workplace. (See infra page 10.) Failing to earn tenure at a school like DePaul, a Research 2 University1 of lower rank, should have been the death knell for Dr. Calvente’s career as an academic.

(See Zaeske Dep. 129:1–7 (“I mean tenure denial or non–renewal is kind of a kiss of death. It is very, 

very hard to be hired at another institution much less a higher one than the—higher ranked and 

higher in prestige and higher in publishing expectations than one has been denied tenure at”), copy 

attached as Exhibit B.) However, after being unemployed for only a few months, Dr. Calvente was 

able to obtain a tenure–track job at the University of North Carolina—Chapel Hill (“UNC”), a highly 

ranked and highly regarded Research 1 university. That Dr. Calvente could obtain such a position 

after being denied tenure at DePaul suggests something improper happened during Dr. Calvente’s 

tenure and promotion process. 

Knowing that the culture of the academy is outside the realm of experience of most potential 

jurors, Dr. Susan Zaeske, a well–respected tenured full professor and administrator at the University 

of Wisconsin—Madison (“UW”), agreed to testify to what those in the academy would already know: 

1 The Carnegie Commission on Higher Education classifies universities according to their research 

output with Research 1 universities being more competitive and seen as better than Research 2 universities. 

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a professor who was not good enough to earn tenure at DePaul should not have been able to obtain 

a tenure–track job at UNC (which has higher standards for obtaining tenure).2 (Zaeske Dep. 70:13–

20 (“for an individual to be denied tenure at an R2 institution and to be hired at an R1 institution 

is highly irregular, and that the irregularity of it points to something having gone astray in the process 

by which the individual would be non–renewed at an institution with lesser standards and then 

hired at an institution with higher standards.”).) Why? Because being denied tenure at a school like 

DePaul carries a taint that makes it very difficult to get hired anywhere else. (Id. at 134:22–135:16.)

As Dr. Zaeske explained, “[i]n order to get hired as an institution like UNC or UW Madison 

or Indiana or whatever [R1 institution], you have to pretty much show that your chances of tenure 

are very, very high, and that you have a strong record of publication that is going to be tenurable. 

Otherwise you are not going to be hired.” (Id. at 82:21–83:3.) Why is it so important that a professor 

be tenurable at the time of hiring? Dr. Zaeske explained this, too: “It is right now because . . . budgets 

are so tight that institutions cannot make mistakes in hiring because if you do not—if someone does 

not get tenure or is not tenured or non–renewed, then a department will lose its chance, probably 

lose its chance to hire again for a long time.” (Id. at 187:10–17.) Thus, “[t]he R1s, and certainly the 

public schools like UNC, . . . they hire to tenure.”3 (Id. at 188:3–6.) Moreover, it is “difficult to get 

jobs at R1 institutions” like UNC. (Id. at 193:2–3.) There is a “huge pool of applicants,” and a 

candidate has to stand out within that pool to get hired into a tenure track position. (Id. at 193:5–

14.)

2 Dr. Zaeske has agreed to testify without compensation except for her reasonable expenses. (Zaeske 

Dep. 30:23–32:8.)

3 The one exception to this rule is that ivy–league institutions do not hire to tenure, and that it is not 

unusual for a tenure–track professor who is denied tenure at an ivy league school to obtain a tenure–track 

job at another R1 institution. (Zaeske 50:21–52:8.)

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Given the foregoing, what is Dr. Zaeske’s conclusion? That something highly unusual must 

have happened to Dr. Calvente at DePaul. Dr. Zaeske does not opine that it was racism or retaliation 

that caused Dr. Ghanem to reject the UBPT’s recommendation. (To offer such an opinion would 

be improper under the current law of evidence.) Nor does she opine that Dr. Calvente should have 

received tenure at DePaul. (To offer such an opinion would push the envelope of the current law of 

evidence.) So why is her testimony important? Because if something highly irregular happened during 

Dr. Calvente’s case, it (i) bolsters Dr. Calvente’s argument that the denial of her application was a 

pretext for retaliation or for discrimination, and (ii) diminishes the defendants’ defenses that Dr. 

Calvente’s application was denied on the merits. 

Argument

A court may permit a party to introduce expert testimony under Rule 702 of the Federal 

Rules of Evidence “if technical or specialized knowledge ‘will assist the trier of fact to understand 

the evidence or to determine a fact in issue.’” Uncommon, LLC v. Spigen, Inc., 305 F. Supp. 3d 825, 

843 (N.D. Ill. 2018) (Blakey, J.) citing Fed. R. Evid. 702. Before permitting a party to introduce expert 

testimony, the district court must serve as a gatekeeper to ensure that the “expert testimony ‘is not 

only relevant, but reliable.’” Id. quoting Kuhmo Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999). 

However, the question of whether the expert is credible or whether her theories are correct presents

a question of fact for the jury. Smith v. Ford Motor Co., 215 F.3d 713, 719 (7th Cir. 2000) (“It is not 

the trial court's role to decide whether an expert's opinion is correct. The trial court is limited to 

determining whether expert testimony is pertinent to an issue in the case and whether the methodology underlying that testimony is sound.”).

District courts are afforded great latitude in determining both how to measure the reliability 

of a proposed expert witness. Uncommon, LLC, 305 F. Supp. 3d at 843 quoting United States v. Pansier, 

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576 F.3d 726, 736 (7th Cir. 2009) (affirming admission of expert on cite drafts). Although relevant 

factors in determining reliability may include testing, peer review, error rates, and acceptance by the 

relevant expert community, the overall standard for determining reliability is necessarily flexible, 

and an expert may be qualified to render an opinion based on her experience alone. See Tudor v. Se. 

Okla. State Univ., No. 18–6102, slip. op. at 15, (10th Cir. Sep. 13, 2021) (English professor who 

participated in over 100 promotion deliberations qualified to opine on tenure standards) (copy attached as Exhibit C). See also Kuhmo Tire Co. v. Carmichael, 526 U.S. at 148–49 (“Experts of all kinds 

tie observations to conclusions through . . . ‘general truths derived from . . . specialized experience.’ 

. . . whether the specific expert testimony focuses upon specialized observations, the specialized translation of those observations into theory, a specialized theory itself, or the application of such a theory 

in a particular case, the expert's testimony often will rest ‘upon an experience confessedly foreign in 

kind to [the jury’s] own’”) (first ellipses added, all other ellipses and brackets in the original). 

The case of Tudor is a prime exemplar of a court admitting non–scientific expert testimony

in a tenure denial case. At issue in Tudor was whether the district court abused its discretion in 

permitting an expert to testify about (i) the tenure application process generally, and (ii) what strong 

and weak tenure applications look like in the field of English. Tudor, No. 18–6102 slip op. at 15. 

Holding that the district court did not abuse its discretion, the Tudor court explained first that the 

expert’s methodology was “rooted in his experience as an English professor having participated in 

over 100 promotion deliberations.” Id. Therefore, “it was reasonable for the district court to conclude that [the expert] was qualified to explain the tenure process and to recognize strong and weak 

applications[.]” Id. The Tenth Circuit also affirmed that the expert’s testimony would be helpful to 

the jury because “[m]any laypeople are likely unfamiliar with the tenure process[.]” Id.

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The case of Siring v. Or. State Bd. Of Higher Educ., 927 F. Supp. 2d 1069 (D. Or. 2013) offers 

another example of a court admitting non–scientific expert testimony in a tenure denial case. In 

Siring, a former faculty member sought to introduce expert testimony to educate the jury about tenure track review, and the evaluation and termination process in the University of Oregon system. 

Siring, 927 F. Supp. 2d at 1071. The plaintiff’s proposed expert, a 40–year veteran of the University 

of Oregon system who held various administrative posts (none of which appeared to include a deanship or associate deanship), sought to testify as to the usual practice in tenure cases at the University 

of Oregon. Id. at 1071, 1074. Denying the Daubert motion, the Siring court held that the expert’s 

professional experience “as a faculty member and member of personnel committees, many professional appointments relating to educational policy and management, and extensive scholarly activities and publications in relevant research areas qualif[ed] [her] to opine about tenure–track faculty 

evaluation and review policies and procedures in general and the specific evaluation and review of 

[the plaintiff].” Id. at 1074.

A. Dr. Zaeske is competent to testify about hiring practices in the academy.

Dr. Zaeske has served as the associate dean of the Arts and Humanities Division—which 

constitutes 16 separate departments and separate 25 centers—in the College of Letters and Science 

at UW since 2011. (Zaeske Dep. 36:20–37:20.) Thus, for the past decade, Dr. Zaeske has been involved with the hiring of every candidate who comes to Arts and Humanities at UW. (Id. at 41:12–

42:22.) Indeed, a candidate cannot even schedule an interview within any of the 16 departments or 

25 centers in the Arts and Humanities Division without Dr. Zaeske’s approval. (Id. at 41:23–42:1.) 

In her twenty–five years in the academy—including nearly two thirds of that time as an associate 

dean, a department chair, or director—Dr. Zaeske has easily reviewed the files of hundreds of people 

looking to be hired at UW. (Id. at 196:9–13. See also Zaeske CV at page 1.) Moreover, Dr. Zaeske has 

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hired away professors at other Research 1 institutions. (Id. at 192:16–17.) Dr. Zaeske has also provided an extensive resume and background information showing that she has precisely the 

knowledge to enable her to offer reliable and useful non–scientific expert testimony. Her qualifications are not materially different than the qualifications of the experts in Tudor and in Siring. Accordingly, the Court should permit her to testify at trial. 

Notwithstanding the foregoing, the defendants complain that Dr. Zaeske’s opinion is not 

supported by rigorous statistical studies as to what happens to faculty who are denied tenure. But 

experts like Dr. Zaeske, whose expertise and opinions are based principally on education and experience, do not have algorithms, double–blind studies, statistical analyses, peer–reviewed articles, or 

other test results to offer as indica of reliability. And in the context of this case, it is not surprising 

as statistical studies as to what happens to candidates who are denied tenure at schools like DePaul 

simply do not exist. (See Zaeske Dep. 129:20–130:2, 200:5–24.) Nevertheless, Dr. Zaeske attempted 

to find information to corroborate what she (and everyone else in the academy) knows based on her 

decade of experience serving as a gatekeeper for the hiring of tenure–track faculty at UW. Dr. Zaeske 

did this by looking for case studies in periodicals trusted by members of the academy, including case 

studies published in the Chronicle of Higher Education, the most well–read industry publication in 

higher education. (See id. at 199:5–20.)

The defendants also complain that Dr. Zaeske did not review Dr. Calvente’s tenure dossier. 

However, this argument comes with particularly bad grace as Dr. Zaeske was not engaged to say that 

Dr. Calvente deserved tenure at DePaul. (Dr. Calvente relies on DePaul’s UBPT as well as the fact 

that she obtained a tenure track position at a superior institution to demonstrate this.) Rather, she 

relies on Dr. Zaeske to help a jury understand how the academy works, why it is so unusual for her 

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to have obtained a tenure–track job at UNC given what happened to her at DePaul, and the prospects for faculty who fail to obtain tenure at a school like DePaul.

The defendants next complain that Dr. Zaeske did not interview anyone at UNC or review 

DePaul’s university–wide tenure guidelines. However, Dr. Zaeske did review the tenure guidelines 

from the College of Communication, which incorporate the DePaul university–wide tenure guidelines. Dr. Zaeske also reviewed the tenure guidelines from UNC and explained (in excruciating detail) that they are more rigorous than the tenure requirements at DePaul. (See id. at 201:1–203:9.) 

How are UNC’s standards more rigorous? Dr. Zaeske explained that, by their plain language, a candidate for tenure at DePaul in the College of Communication must demonstrate excellence in two 

of the three categories of teaching, research, and service.

4 (Id.) At UNC, however, a candidate must 

demonstrate excellence in teaching and research, and that service will not help a candidate obtain 

tenure at UNC. (Id.) Dr. Zaeske then compared the requirements at UNC versus the requirements 

at DePaul to conclude that it is even harder to obtain tenure at UNC than it is to obtain tenure at 

DePaul. And given that schools like UNC hire to tenure, Dr. Calvente’s ability to obtain a tenure–

track job at UNC (which requires excellence in both teaching and research) further demonstrates 

that something strange happened at DePaul (where it is possible to obtain tenure merely by demonstrating excellence in teaching or excellence in research).

In addition, the defendants complain that Dr. Zaeske does not understand how the Carnegie 

Commission determines which schools are Research 1 schools and which schools are Research 2 

schools. However, they do not explain why this is a problem. Dr. Zaeske did explain that Research 1 

4 Service is “doing something to contribute to the overall life of the university, whether it’s the student 

life, operational life, academic life, and it’s doing something that someone else doesn’t have to do. So there's 

tasks and functions that need to happen.” (Murphy Dep. 155:1–7.)

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schools are more highly regarded in the academy, and that they have higher expectations for research 

and for teaching. (Zaeske Dep. 94:10–95:2.) That Dr. Zaeske does not know the proverbial math 

does not take away from her understanding of the culture of the academy or the importance of the

Carnegie Commission’s rankings.

Finally, the defendants complain that Dr. Zaeske “assigned ‘prestige’” to each of DePaul and 

UNC. (Motion at page 6.) Dr. Zaeske did no such thing. Rather, she stated what those in the academy know so well—schools that are ranked as Research 1 schools are more highly regarded than 

Research 2 schools. Dr. Zaeske assigned nothing; to the extent “prestige” was assigned, it was assigned by her industry. By way of analogy, BigLaw firms (which start their junior attorneys at the top 

of the market with respect to salary) often prefer to hire candidates who clerked for federal district 

court judges over those who clerked for state trial court judges.

5 Given this dynamic, to say that a 

clerkship with a federal district court judge is seen in legal circles as more prestigious than a clerkship 

with a state court trial judge is not to “assign prestige.” To the extent “prestige” has been assigned, 

it has been assigned by the market.

To the extent that the Motion is based on mere disagreement with Dr. Zaeske’s opinions, 

the defendants had the ability to engage their own expert to rebut the conclusions of Dr. Zaeske. 

However, they chose not to do so, even though DePaul is a university with access to (i) hundreds of 

its own professors and administrators who could (presumably) rebut Dr. Zaeske if her analysis was 

5 Covington & Burling, LLP, for example, offers a $50,000 bonus for one year of clerking for a federal 

judge or the highest court in any state. It does not appear to offer any bonus for clerking for a trial level state 

court. https://www.cov.com/en/careers/lawyers/judicial-clerks. For avoidance of doubt, neither Dr. Calvente nor the undersigned counsel means to disparage (i) the value of a clerkship in any court, or (ii) any 

court, state or federal. Rather, the point is simply that different clerkships are viewed differently. Just so in 

the academy—R1 schools are viewed differently than R2 schools.

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flawed, and (ii) a broad network of administrators and professors at other schools who could (presumably) rebut Dr. Zaeske’s testimony if it were incorrect. (See Exhibit D.) Notwithstanding the 

foregoing, and assuming arguendo that Dr. Zaeske is incorrect in some way, shape, or form, the defendants will be able to expose any flaws in her reasoning during cross examination. The mere fact 

that the defendants would have asked Dr. Zaeske to read more materials if she were their witness 

does not mean that Dr. Zaeske is not competent to testify.

B. Dr. Zaeske’s testimony will be helpful to the jury.

Courts have held that the inner workings of the academy are outside the experience of the 

average juror. See Tudor, No. 18–6102, slip. op. at 14–16; Siring, 927 F. Supp. 2d at 1076. Just so 

here: Dr. Zaeske’s testimony is critical because she is an independent witness who can help a jury 

understand (i) how hiring within the academy works, and (ii) why Dr. Calvente’s ability to obtain a 

tenure track job at UNC is so unusual given that she was denied tenure at DePaul.

C. Dr. Zaeske’s testimony is relevant.

Evidence is relevant if it has any tendency to make a fact more or less probable than it would 

be without the evidence. See Fed. R. Evid. 401. Circumstantial evidence of discrimination or retaliation can include conduct that is so suspicious or incongruous that it gives rise to an inference that 

the stated reason for an adverse employment action is pretextual. See, e.g., Hobgood, Hobgood v. Illinois 

Gaming Bd., 731 F.3d 635, 646 (7th Cir. 2013) (“[w]here an employer’s reason for a termination is 

without factual basis or is completely unreasonable, that is evidence that an employer might be lying 

about its true motivation”). See also Hitchcock v. Angel Corps, Inc., 718 F.3d 733, 738 (7th Cir. 2013) 

(reversing summary judgment as jury could “find the explanation [for the termination] to be so ludicrous that [the employer] is not to be believed”); Loudermilk v. Best Pallet Co., LLC, 636 F.3d 312, 

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315 (7th Cir. 2011) (“. . . an employer who advances a fishy reason takes the risk that disbelief of 

the reason will support an inference that it is a pretext for discrimination”). 

In this case, Dr. Calvente failed to obtain tenure at a lower ranked school with lower tenure 

standards, but was able to obtain a tenure–track position at a more prestigious school with higher 

tenure standards. By way of analogy, that Dr. Calvente failed to obtain tenure at DePaul but obtained 

a tenure–track position at UNC is the functional equivalent of a football player who gets cut from 

his college team only to obtain a spot on an NFL roster the very next season. When such things 

happen, it gives rise to an inference that something highly questionable occurred. Dr. Zaeske is the 

witness who can explain all of this to the jury.

Notwithstanding the foregoing, the defendants complain that Dr. Zaeske’s testimony is 

worthless because she does not opine that the something that occurred at DePaul was racism or retaliation. But this argument comes with particularly bad grace because it would require Dr. Zaeske to 

testify as to Dr. Ghanem’s motive. And courts have held that expert witnesses may not testify to 

motive. Cf. DePaepe v. Gen. Motors Corp., 141 F.3d 715, 720 (7th Cir. 1998) (expert “could give an 

opinion as an engineer that reducing the padding saved a particular amount of money; he might 

testify as an engineer that GM's explanation for the decision was not sound from which the jury 

might infer that money was the real reason; but he could not testify as an expert that GM had a 

particular motive”) (cleaned up).

The defendants also cry that Dr. Zaeske’s opinion is allegedly worthless because she never 

read Dr. Calvente’s application for tenure. However, and again, Dr. Zaeske was not engaged to opine 

as to the merits of Dr. Calvente’s file. Why? Because courts have strongly advised litigants against 

asking them to re–evaluate a candidate’s tenure file. See, e.g., Blasdel v. Nw. Univ., 687 F.3d 813, 815–

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818 (7th Cir. 2012).

6 Why, then, would Dr. Zaeske read and opine on Dr. Calvente’s file knowing 

that the defendants would attack her for doing so. Cf. id.

Conclusion

Dr. Zaeske’s opinions and testimony address the customs of the academy, which are outside 

the experience of the average juror. Her testimony will help jurors understand the significance of 

obtaining a tenure track job at all, let alone the significant of obtaining one at a very highly–regarded 

university after having been denied tenure at a less well–regarded institution. Dr. Zaeske does not tell 

the jury that Dr. Calvente deserves tenure; nor does she opine on Dr. Ghanem’s state of mind. 

Because Dr. Zaeske is qualified as an expert based on her quarter century in the academy—including 

a decade as a person who hires tenure–track faculty at one of this country’s great university systems—

the Court should permit her to testify. 

Respectfully submitted,

December 23, 2021

/s/ Fitzgerald T. Bramwell

Fitzgerald T. Bramwell

LAW OFFICES OF FITZGERALD BRAMWELL

77 West Wacker, Suite 4500

Chicago, Illinois 60601

312–924–2884 (voice)

bramwell@fitzgeraldbramwell.com

6 DePaul, of course, knows this as the attorney who currently represents it was the attorney of record 

in Blasdel. Thus, it is truly strange that DePaul would complain that Dr. Zaeske never evaluated Dr. Calvente’s 

tenure dossier when, given the UBPT’s recommendation that Dr. Calvente receive tenure, the contents of 

Dr. Calvente’s tenure dossier have limited value in answering the question of whether Dr. Ghanem terminated Dr. Calvente in violation of the civil rights laws.

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Certificate of Service

The undersigned, an attorney, certifies that on December 23, 2021, he caused the foregoing 

Lisa Calvente’s Response And Objection To Defendants’ Motion To Strike Dr. Zaeske’s Report And 

Testimony to be electronically filed with the Clerk of the Court for the United States District Court 

for the Northern District of Illinois by using the CM/ECF system. Accordingly, service will be accomplished through CM/ECF on the following counsel of record:

Anneliese Wermuth, Esq.

Cozen O’Connor, P.C.

123 North Wacker Drive, Suite 1800

Chicago, Illinois 60606

awermuth@cozen.com

Counsel for Defendants

/s/ Fitzgerald T. Bramwell

Fitzgerald T. Bramwell

LAW OFFICES OF FITZGERALD BRAMWELL

77 West Wacker, Suite 4500

Chicago, Illinois 60601

312–924–2884 (voice)

bramwell@fitzgeraldbramwell.com

Case: 1:20-cv-03366 Document #: 79 Filed: 12/23/21 Page 13 of 128 PageID #:4207
Exhibit A

Case: 1:20-cv-03366 Document #: 79 Filed: 12/23/21 Page 14 of 128 PageID #:4208
Page 38

1 MR. BRAMWELL: Q The area of study has grown very

2 quickly. Can you help unpack that, please?

3 A When I started in 1998 I believe we had about

4 400 majors, 500 majors, and we had only one degree that

5 we offered, that was a general communications degree that

6 only had like maybe one journalism class, that type of

7 thing.

8 We fast forward to today, we have about 1300

9 majors, and we offer about 8 undergraduate degrees, and

10 so the amount of students that were interested in the

11 studies grew very quickly during that time.

12 Q And when you say we have 1300 majors, you're

13 talking about DePaul?

14 A The College of Communications at DePaul.

15 Q No. You -- now I'm wholly -- help me -- again,

16 I'm chuckling a little bit, not derisively. I'm laughing

17 at my own confusion here.

18 If I understood, earlier I think you mentioned

19 the college -- that communication became its own college

20 during your -- during the time of your employment.

21 You need to speak up.

22 A Right.

23 Q That was in 2011 approximately?

24 A I believe so. Yes. 2010.

25 Q The exact date isn't critical for purposes of

Page 39

1 this communication. I'm just trying to understand. So

2 there were four different majors within the College of

3 Communications or 400 majors at DePaul University?

4 A 4 --

5 MS. WERMUTH: One quick second. Objection. Vague.

6 Confusing. Compound.

7 Go ahead, Lexa.

8 MR. BRAMWELL: Q Lexa, only you need to understand

9 the question.

10 A There were about 400 when I started in the

11 communication program. There were probably about 600 to

12 800 by the time we became a college. Once we were a

13 college we had about 2,000 graduate majors. We're now

14 covering 1400.

15 Q 1400 majors just out of communication alone?

16 A Yes.

17 Q Wow. And does the College of Communication

18 offer courses that you have to take if you want to

19 graduate from DePaul? And -- that question actually

20 probably should draw an objection. That was not a

21 well-done question.

22 Let's say I want to major in chemistry at

23 DePaul. Okay?

24 A Uh-huh.

25 Q Do I have to take any courses at -- within your

Page 40

1 college?

2 A No.

3 Q So I only have to take courses in your college

4 if I want to get a degree within some sort of

5 communication field?

6 A If you want to get a degree in our college,

7 then you have to take our core courses and the

8 requirements they have.

9 Q So if I want to graduate with a degree in

10 economics, I don't ever have to set foot in the College

11 of Communications?

12 A It depends, because I believe there are some

13 programs that require within their program to take a

14 communication course. I think computer and digital

15 media, some of their programs require students to take

16 our business and professional communication course. I

17 believe accounting has it as an option, but maybe not a

18 requirement, but it would depend on their degree. It

19 wouldn't be us deciding that.

20 Q Would you characterize the College of

21 Communications as a small college?

22 A Yes.

23 Q And -- why?

24 A Just based on size.

25 Q Size of what?

Page 41

1 A Size of faculty and size of students.

2 Q Okay. Approximately how many students are in

3 the College of Communications year to year?

4 A Right now again we're hovering at about 1400.

5 Q And how many faculty?

6 A We have 52 full-time positions.

7 Q Okay. And those are all tenure positions or

8 tenure track positions?

9 A No.

10 Q Okay. How many tenure or tenure track faculty

11 do you have?

12 A I'm giving bit of an estimate because I don't

13 have the numbers in front of me, but I believe 34,

14 something like that.

15 Q Okay. And what constitutes the rest?

16 A Term faculty.

17 Q Those are what, adjuncts, lecturers? Help me

18 out. I know every school does it -- every university --

19 every university does it differently -- every college

20 does it differently. Help me out. How do you do it?

21 A We do it the way the university does it which

22 is the term faculty line is a nontenured track but

23 full-time position.

24 Q Okay. There are lecturers, there are adjunct,

25 what are they?

11 (Pages 38 - 41)

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Case: 1:20-cv-03366 Document #: 79 Filed: 12/23/21 Page 15 of 128 PageID #:4209
Page 154

1 establishing for that candidate where they -- where they

2 fall.

3 Q What about for service, how does one measure

4 whether someone is excellent versus just very good?

5 A Similarly I think they'll book at both the

6 number of activities that someone has done in terms of

7 their service contributions and then also look at how

8 substantive is that in terms of what the contributions

9 are. So is it a one-off committee or is it a particular

10 meeting that someone might be in versus a longer term and

11 a task driven committee.

12 Q Are there any objective metrics in this

13 respect?

14 A We don't have that you have to serve on X

15 number of committees, no.

16 Q The answer is no. There are no quantitative

17 metrics with respect to research?

18 A No.

19 Q And no quantitative metrics with respect to

20 service?

21 A No.

22 Q How many service hours need to be performed to

23 go -- to be excellent in service?

24 A We don't go into that kind of detail in terms

25 of legislating a certain number of hours.

Page 155

1 Q What is service?

2 A To me I think service to the university is

3 doing something to contribute to the overall life of the

4 university, whether it's the student life, operational

5 life, academic life, and it's doing something that

6 someone else doesn't have to do. So there's tasks and

7 functions that need to happen.

8 Q Like what?

9 A So let's say you're on an assessment committee,

10 an assessment committee needs to do program assessment,

11 it's very time intensive, and so you may have four or

12 five people on that committee. So while you're doing

13 that, you're serving the college and making sure that

14 that task is done, and it's something that it's a

15 mandatory kind of thing, it has to happen so you're doing

16 that it means someone else doesn't have to.

17 Q Yeah. Okay. I understand that. So service is

18 any work -- and it will draw an objection from misstating

19 your testimony -- but the question if I can get you to

20 clarify, service is any work that helps the university,

21 the college, both?

22 A Service can be broad --

23 MS. WERMUTH: I didn't know if you were done, Jerry,

24 I didn't want to interrupt.

25 I will object to the form of the question. I

Page 156

1 will object insofar as it mischaracterized her testimony

2 and/or assumes facts not of record.

3 MR. BRAMWELL: Q We live with the objection and you

4 can answer.

5 A Service can occur at local college and

6 university levels and community level.

7 Q Community level. So that's outside of DePaul?

8 A Uh-huh.

9 Q It doesn't show up on the transcript.

10 A Yes.

11 Q Working the soup kitchen could qualify as

12 service?

13 A Not according to our guidelines. Our

14 guidelines specify that you should be -- the service to

15 the community, it is drawn upon your knowledge base as an

16 academic.

17 Q Okay. So, for example, you know, communicating

18 to minority communities that the COVID vaccine is a good

19 thing to get, that could be service?

20 A That could be considered service.

21 Q Okay. How does one obtain service

22 opportunities?

23 A There's a variety of different ways that people

24 can get service opportunities. Most formally in our

25 college -- every summer we have a comprehensive list of

40 (Pages 154 - 157)

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Case: 1:20-cv-03366 Document #: 79 Filed: 12/23/21 Page 16 of 128 PageID #:4210
Exhibit B

Case: 1:20-cv-03366 Document #: 79 Filed: 12/23/21 Page 17 of 128 PageID #:4211
Page 1

· · · · IN THE UNITED STATES DISTRICT COURT

· · · ·FOR THE NORTHERN DISTRICT OF ILLINOIS

· · · · · · · · ·EASTERN DIVISION

LISA CALVENTE,· · · · · · · · ·)

· · · · · · · · · · · · · · · ·)

· · ·PLAINTIFF,· · · · · · · · )

· · · · · · · · · · · · · · · ·)

VS.· · · · · · · · · · · · · · ) NO. 1:20-CV-03366

· · · · · · · · · · · · · · · ·)

SALMA GHANEM AND DEPAUL· · · · )

UNIVERSITY,· · · · · · · · · · )

· · · · · · · · · · · · · · · ·)

· · ·DEFENDANTS.· · · · · · · ·)

· · · · · The Zoom webconference discovery

deposition of DOCTOR SUSAN ZAESKE taken by Gina

Marie Zangara, C.S.R., on July 8th, 2021, at the

hour of 10:02 a.m.

Case: 1:20-cv-03366 Document #: 79 Filed: 12/23/21 Page 18 of 128 PageID #:4212
Page 2 APPEARANCES REMOTELY VIA ZOOM:

· · ·LAW OFFICES OF FITZGERALD BRAMWELL

· · ·BY MR. FITZGERALD T. BRAMWELL

· · ·225 West Washington Street

· · ·Chicago, Illinois 60606

· · ·(312) 924-2884

· · ·bramwell@fitzgeraldbramwell.com

· · ·appeared on behalf of the Plaintiff;

· · ·COZEN O'CONNOR

· · ·BY MR. ANNELIESE WERMUTH

· · ·123 North Wacker Drive, Suite 1800

· · ·Chicago, Illinois 60606

· · ·(312) 474-7900

· · ·Awermuth@cozen.com

· · ·Appeared on behalf of the Defendants.

ALSO PRESENT:· KATHRYN STIEBER

· · · · · · · ·LISA CALVENTE

· · · · · · · · · ·I N D E X

WITNESS:· · · · · · · · · · · · · · · · PAGE:

DOCTOR SUSAN ZAESKE

· · ·Examination by Ms. Wermuth· · · · ·5, 206

· · ·Examination by Mr. Bramwell· · · 181, 207

Page 3

EXHIBITS MARKED:· · · · · · · · · · · · PAGE:

EXHIBIT 1· · · SUBPOENA· · · · · · · · · 12

EXHIBIT 2· · · ZAESKE CV· · · · · · · · ·32

EXHIBIT 3· · · ZAESKE REPORT· · · · · · ·66

EXHIBIT 3.1· · CARNEGIE· · · · · · · · ·107

EXHIBIT 3.2· · DEPAUL CRITERIA· · · · · 143

EXHIBIT 3.3· · UNC CRITERIA· · · · · · · 73

EXHIBIT 4· · · CALVENTE OFFER LETTER· · ·60

EXHIBIT 5· · · LC4086-90· · · · · · · · ·61

EXHIBIT 7· · · CARNEGIE· · · · · · · · ·100

EXHIBIT 11· · ·CARNEGIE· · · · · · · · ·114

EXHIBIT 14· · ·WASHINGTON POST· · · · · 115

EXHIBIT 15· · ·JOBS AFTER DENIAL· · · · 135

EXHIBIT 16· · ·LIFE AFTER DENIAL· · · · 132

EXHIBIT 21· · ·TEMPLATE· · · · · · · · ·140

EXHIBIT 22· · ·INSIDE HIGHER ED· · · · ·118

EXHIBIT 23· · ·CHRONICLE OF HIGHER ED· ·130

Page 4

· · · · · · · COURT REPORTER:· All parties are

aware that the witness will be sworn in remotely.

The parties agree not to challenge the validity

of any oath administered by the court reporter,

even if the court reporter is not physically

present with the witness and not a notary public

in the state where the witness resides.

· · · · · · · · · ·Here begins the webconference

deposition of Doctor Susan Zaeske in the matter

of Lisa Calvente versus Salma Ghanem and DePaul

University.

· · · · · · · · · ·Today's date is July 8th, 2021

and the time is 10:02 a.m.· My name is Gina

Zangara of Thompson Court Reporters.· Beginning

with the noticing party, will the parties

introduce themselves, state whom they represent

and stipulate to the swearing in of the witness

remotely.

· · · · · · · MS. WERMUTH:· This is Anna Wermuth.

I represent DePaul University and Doctor Ghanem.

· · · · · · · MR. BRAMWELL:· Good morning.· This

is Jerry Bramwell, B R A M W E L L, representing

Doctor Calvente.

· · · · · · · · · ·(Witness so sworn)

Page 5 · · · · · · · ·DOCTOR SUSAN ZAESKE:

CALLED AS A WITNESS HEREIN, HAVING BEEN FIRST

DULY SWORN, WAS EXAMINED UNDER OATH AND TESTIFIED

AS FOLLOWS:

· · · · · · · · · EXAMINATION

· · · · · · · · BY MS. WERMUTH:

· · Q.· ·Good morning, Doctor Zaeske.· I had the

presence of mind to ask Mr. Bramwell how to

pronounce your name, so hopefully I am doing that

correctly.

· · A.· ·Wonderful.· Thank you.

· · Q.· ·Okay, good.· Do you prefer that I refer

to you as Doctor Zaeske then throughout this

deposition?

· · A.· ·That would be great.

· · Q.· ·Okay, terrific.· I will do that.· You

are welcome to call me Anna if you need to refer

to me, okay?

· · A.· ·Thank you.

· · Q.· ·Can you please, as we are getting

started here, state your full name for the

record?

· · A.· ·My full name is Susan Zaeske.

· · Q.· ·Can you spell your last name for us?

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Page 6

· · A.· ·Spelled Z as in zebra, A, E as in

elephant, S as in Sam, K, E as in elephant.

· · Q.· ·Doctor Zaeske, have you ever had your

deposition taken before?

· · A.· ·No, I have not.

· · Q.· ·Okay.· So I'm going to go over just a

couple of what I'm going to call groundrules, and

you know, this is not intended to be a marathon

today.· So number one, if you need a break, just

let me know, okay, and I'll try to accommodate

that.· We are human.· We need water.· We need

food.· We need bathroom breaks.· So feel free to

let me know when you need to take a break.· Okay?

· · A.· ·Thank you.

· · Q.· ·And I'll try to accommodate your request

as quickly as possible.· One of the really

important things about today is that we get a

clean record, which means it is important that we

don't speak over one another.· I personally tend

to be slow in my presentation, and I pause, so it

will -- it is conceivable that you will start

answering before I am done asking a question.

That's also human.· It is what we do when we are

communicating with one another.

Page 7

· · · · · · · · · · · ·And so I will just let you

know if I'm not done with my question, okay?· And

that helps the court reporter because it's hard

for her to take down what I am saying if you are

also talking at the same time.· Is that fair?

· · A.· ·Absolutely.

· · Q.· ·Okay.· And in the reverse, I'm going to

do my best to allow you to fully finish your

answer before I start talking, okay?· And if you

have not finished your answer, will you please

let me know?

· · A.· ·Certainly.

· · Q.· ·Thank you.· It is also, I think in terms

of getting a clear record, it is important that

your answers are verbal.· So we often communicate

as someone who is a scholar in communication

probably knows through verbal cues.· Because we

are going to have a black and white transcript,

the court reporter can't take down uh-huhs or

nods of the head, okay?· So it will be important

for your answers to be verbal.· Does that make

sense to you?

· · A.· ·Yes.

· · Q.· ·Okay.· Terrific.· And then the last

Page 8

thing I'll add here is I do not pretend to be a

paragon of clarity.· I'm just an employment

lawyer.· So if there is something I ask you that

you don't understand, please let me know that,

and I'll do my best to ask a question that you

can answer and that you do understand.· Is that

fair?

· · A.· ·Thank you.· Yes, I'll do that.

· · Q.· ·Okay.· Terrific, good.· So we are just

going to jump in now.· I'm going to start asking

you some questions.· As you know, I represent

DePaul University.· So Doctor Zaeske, I hate to

ask these questions, but I need to do so.· Are

you on any medication today that could impair

your ability to testify accurately and honestly?

· · A.· ·No, I am not.

· · Q.· ·Thank you.· Have you consumed any drugs

or alcohol in the last 24 hours?

· · A.· ·No, I have not.

· · Q.· ·Thank you.· Where are you physically

sitting today, Doctor Zaeske?

· · A.· ·I'm sitting in my home office.· Do you

want my address in Madison?

· · Q.· ·No, that's okay.· I'm just trying to

Page 9

understand if you were on campus, if you were at

home today.· We are in this new world of doing

things remotely, so I just needed to know where

you were.

· · A.· ·Yes.

· · Q.· ·Is there anyone in the room with you?

· · A.· ·No, there is not.

· · Q.· ·Will you let us know if someone enters

the room?

· · A.· ·Certainly, yes.

· · Q.· ·Thank you.· And do you have any

documents or materials with you today?

· · A.· ·No.

· · Q.· ·Okay.· Did Mr. Bramwell send to you

yesterday a packet of potential exhibits for

today's deposition?

· · A.· ·I think he sent them yesterday. I

checked my Gmail this morning.· So I don't know

what time they arrived.

· · Q.· ·Okay.· Would you be able to access those

exhibits today if I ask you to?

· · A.· ·Yes.

· · Q.· ·Okay.· Thank you.· Other than the screen

that you are using to sort of make eye contact

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Page 10

with all of us, do you have other screens with

materials up that you are looking at?

· · A.· ·None.· There is a computer sitting

behind me, but it is closed.

· · Q.· ·Fair enough, fair enough.· So you are

not in a position right now to be able to be

looking at any materials on your computer?

· · A.· ·No.

· · Q.· ·Do you have a cell phone with you?

· · A.· ·I do have a cell phone.

· · Q.· ·Okay.· Do you agree that you will not

use it to communicate or review materials during

the course of the deposition?

· · A.· ·Yes.· I can agree to that, certainly.

· · Q.· ·Thank you.· Did you do anything to

prepare for your deposition today, Doctor Zaeske?

· · A.· ·I reread the report that I sent to the

Court, I guess, or to all of you to remember, you

know, what I had said.· And I also reviewed some

of the -- Jerry gave me some ideas of what

happens like at this moment, in this setting.· So

I looked at those notes too.

· · Q.· ·Okay.· When you say notes, are those

like handwritten notes?

Page 11

· · A.· ·They were -- yeah.· They were notes that

I took about what a deposition is about.

· · Q.· ·I understand.· So you had a meeting with

Mr. Bramwell during which time you took some

notes?

· · A.· ·Yep.

· · Q.· ·Okay.· And when did that meeting take

place?

· · A.· ·That meeting took place about 2 weeks

ago.

· · Q.· ·And that was the last time you met with

Mr. Bramwell?

· · A.· ·Yep.· I think both of us have been on

respective vacations since then.

· · Q.· ·Understood, understood.· And did that

meeting take place in person?

· · A.· ·No.· Via Zoom.

· · Q.· ·Thank you.· And how long did the 2 of

you meet?

· · A.· ·I think about 30 minutes.

· · Q.· ·Did you -- let me ask you this.· If you

could please open the file with the exhibits.

Are you able to look at that and look at the

camera at the same time?

Page 12

· · A.· ·Yeah.

· · Q.· ·Okay.

· · A.· ·So this is a message I got yesterday.

It came from Jerry yesterday.

· · Q.· ·Okay.· I have tried to have these

premarked with numbers.· So if you could please

look at Exhibit Number 1?

· · A.· ·I'll get there.· Here it is.· Subpoena?

· · Q.· ·Correct.· And by the way, forgive me.

My camera is in front of me, but my exhibits are

to the right of me, so I am occasionally going to

be turning my head.· I apologize for that.· Yes,

so Exhibit 1, you recognize that document?

· · A.· ·Yes.· Hold on.· There it is.· Yes.

· · Q.· ·Okay.· And you recognize that as the

subpoena that was served on you for documents?

Is that your understanding?

· · A.· ·Correct, right.

· · Q.· ·And you did receive a copy of the

subpoena?

· · A.· ·Yes.

· · Q.· ·Can you turn to the last page, the

Exhibit A to the subpoena?

· · A.· ·Yes.

Page 13

· · Q.· ·Did you provide Mr. Bramwell with

documents that were responsive to every single

category listed on Exhibit A?

· · A.· ·Yes.

· · Q.· ·So all of the materials that you sent to

Mr. Bramwell, you have no reason to believe they

were not sent to me?

· · A.· ·Yes.

· · Q.· ·Okay.· So you were mentioning as we were

talking about your preparation that you reviewed

the report.· So you did prepare a report in

connection with this matter, correct?

· · A.· ·Correct.

· · Q.· ·When were you first contacted about a

possible engagement as an expert in this case?

· · A.· ·It was in -- I just remember it was in

the Spring.· I don't know what month.· March,

April.

· · Q.· ·Okay.· Who contacted you?

· · A.· ·Jerry did.

· · Q.· ·Did Mr. Bramwell provide you -- strike

that.· Did you talk to Doctor Calvente about this

engagement?

· · A.· ·I first heard from Jerry, and he

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Page 14

contacted me several times, and I gave it some

thought about whether I wanted to do this, and

then I decided that I would.· And then after that

I think I was then -- then I was introduced to

Doctor Calvente on a Zoom call.

· · Q.· ·Okay.· So you have met with Doctor

Calvente?

· · A.· ·Yeah, at that one time.

· · Q.· ·Okay.· Do you recall when that meeting

was?

· · A.· ·Again, it was probably in I think maybe

April.

· · Q.· ·Was Mr. Bramwell on that -- in that

meeting with you and Doctor Calvente?

· · A.· ·Yes.· He was in that meeting with us.

· · Q.· ·Thank you.· Now, did Mr. Bramwell or

Doctor Calvente provide you with any facts, data,

documents that you considered in forming your

opinion in your report?

· · A.· ·What I was provided was sort of a

timeline of what had happened.

· · Q.· ·Verbal timeline or written timeline?

· · A.· ·A verbal, like a verbal explanation

of -- I don't know if timeline is the right word,

Page 15

but a sequence of events.

· · Q.· ·Who provided that timeline to you?

· · A.· ·Jerry provided me in requesting my --

you know, to consider the idea of serving as an

expert witness, Jerry explained what had occurred

or you know the -- like a tenure denial and then

some -- I guess some appeals, and then that was

reiterated when we met with Calvente.

· · Q.· ·How long was the meeting where Doctor

Calvente attended?

· · A.· ·I think probably about 45 minutes.

· · Q.· ·Did you take notes from the meetings

with Mr. Bramwell and/or Doctor Calvente?

· · A.· ·I took notes from the meetings with Mr.

Bramwell because I needed to know what this

involved.· Not from -- I don't think I took notes

from -- I didn't take notes.· I mean there wasn't

really much more to learn with Calvente.

· · Q.· ·Okay.· And did you provide those notes

to Mr. Bramwell in connection with the subpoena?

· · A.· ·I did not.

· · Q.· ·All right.· So I will make a request

here for those notes, and we can address that at

the conclusion of the deposition.· Okay.· Other

Page 16

than a timeline or sort of factual summary,

Doctor Zaeske, did Mr. Bramwell or Doctor

Calvente provide you with any other documents or

facts related to the issues involved in the

litigation?

· · · · · · · MR. BRAMWELL:· I'm sorry.· I had a

hiccup.· Can I ask the court reporter to read

back that question?

· · · · · · ·(Question read)

· · · · · · · THE WITNESS:· No.

BY MS. WERMUTH:

· · Q.· ·You received no documents from Mr.

Bramwell or Doctor Calvente?

· · A.· ·I did not, no.

· · Q.· ·How did you happen to obtain a copy of

the DePaul College of Communication Tenure and

Promotion Guidelines?

· · A.· ·So I asked for that subsequent to the

meeting.· I thought your last question was about

during the meeting that we had together.· I did

not receive any documents from him at that time.

But once I did agree to serve as an expert

witness, then I asked for a copy of the DePaul

standards or criteria for tenure.

Page 17

· · Q.· ·Okay.· So -- okay.· And if my question

wasn't clear, let me just -- I'll ask the

question this way.· In connection with your

engagement as an expert in this litigation, were

you provided with any facts or documents from

Doctor Calvente or Mr. Bramwell?

· · · · · · · MR. BRAMWELL:· I'm just going to

object to the grounds that the expert witness

report that was prepared is the best evidence of

this.· Go ahead.

· · · · · · · THE WITNESS:· So am I to answer

this question?

BY MS. WERMUTH:

· · Q.· ·Yes.

· · · · · · · MR. BRAMWELL:· Yes.

· · · · · · · THE WITNESS:· I received no

documents from Calvente.· I requested the

document -- in order to make a comparison of the

UNC guidelines for tenure with the DePaul

guidelines for tenure, I requested through Jerry

a copy of the DePaul guidelines for tenure, and I

was provided with a copy of them.· And that is

the only document besides the subpoena, and I

think a -- I had to sign a confidentiality

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Page 18

statement.· I think that was another document.

That was the other document.· But those would

have been the only 2.

BY MS. WERMUTH:

· · Q.· ·Okay.· And let me just ask you with

respect to what you have described as the DePaul

standards or guidelines, is it your understanding

that what you received were the standards or

guidelines published by the College of

Communication at DePaul?

· · A.· ·Yes.

· · Q.· ·Now, your report -- strike that.· In

connection with the subpoena response, I also

received from Mr. Bramwell documents related to

the offer that Doctor Calvente received from the

University of North Carolina.· Did you review

those offer letter documents in connection with

preparing your report?

· · A.· ·I know that she was sent a letter of

offer, and I knew the date of the offer, but I

didn't review the offer.

· · Q.· ·Okay.· So you were not provided with a

copy of the offer?

· · A.· ·I was not provided a copy of the offer.

Page 19

· · Q.· ·Okay.· Any other documents that you were

provided by Mr. Bramwell in connection with your

engagement?

· · A.· ·None.

· · Q.· ·Did Mr. Bramwell provide you with any

assumptions that you relied upon in making your

opinion or forming your opinion?

· · A.· ·No.· I mean my -- my -- I have been

asked to do something that is very narrow and

there was really no exchange about anything other

than essentially a comparison between UNC and

DePaul.

· · Q.· ·Okay.· Do you know Doctor Calvente?

· · A.· ·The first time I ever learned her name

was when I got a message from Attorney Bramwell.

And the first time I ever met her was in that

Zoom meeting.· So I didn't know her at all.

· · Q.· ·You were not familiar with her as a

scholar prior to this?

· · A.· ·Not at all.

· · Q.· ·Okay.· Have you reviewed the lawsuit or

what we call the complaint in this matter?

· · A.· ·I don't think I -- I don't know that I

have seen the whole complaint.· I think maybe I

Page 20

did -- Jerry -- I don't know.· I don't know that

I have seen that.

· · Q.· ·Okay.

· · A.· ·I would have to check, to be honest, to

check the email if I saw that early on when I

first agreed to do this.

· · Q.· ·Okay.· So at some point it will be

helpful for you to check to see if you did

receive other documents including legal pleadings

and the like.· That would be helpful for us to

know if you received those documents and reviewed

them in forming your opinion, okay?

· · A.· ·Yes.

· · Q.· ·Thank you.· Did you review the

protective order that was entered in this case?

· · A.· ·I don't even know what a protective

order is, so I'm sure I didn't review that, that

I know.

· · Q.· ·Thank you.· Are you aware generally of

the nature of the claims asserted by Doctor

Calvente?

· · A.· ·I'm not -- well, I suspect she is not

happy that she was denied tenure.· I have no real

understanding of what the reasons were for the

Page 21

tenure denial or what the arguments against it

are.

· · Q.· ·Okay.· So just to be clear, you don't

know the nature of the legal claims that Doctor

Calvente is asserting against DePaul University?

· · A.· ·I do not.

· · Q.· ·Do you know Doctor Calvente's race?

· · A.· ·I have no idea.

· · Q.· ·Okay.· Do you know her ethnicity?

· · A.· ·I have no idea.

· · Q.· ·Did you review her CV in connection with

preparing your report?

· · A.· ·I have never seen her CV.

· · Q.· ·Did you -- I know you had a meeting with

her.· Did you interview her and take notes of

that meeting with her in connection with that

event?

· · A.· ·No.· I didn't talk to her about the --

in connection with which event?· With the tenure

denial or --

· · Q.· ·I'm sorry.· In connection with your

engagement as an expert, did you interview her or

take notes of your meeting with her?

· · A.· ·No, I did not.· I didn't interview her.

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Page 22

I think the idea was just so she would know who I

am.· I wasn't even, to be honest, exactly sure --

I was surprised that she was at the meeting.

· · Q.· ·Understood.· Do you know how you were

identified by Doctor Calvente or Mr. Bramwell as

a potential expert?

· · A.· ·No, I really don't.· I mean I have a

sense that because -- and this happens to me a

lot, is that, you know, I'm at a top ranked

research institution, and I have an

administrative title and a lot of experience in

administration.· So I get called in a lot to do

-- this is my first expert witness, but I do a

lot of tenure case writing for institutions in

the field because they need letterhead.· They

need a letterhead like UW Madison.· They need an

experienced administrator, and I am.· And they

need someone who is an accomplished scholar.

· · · · · · · · · · · ·So I'm sort of -- I don't

want to say a target, but I get called on to do

stuff like that.· So I'm visible in the field.

So that's sort of what I thought, but I don't

know.· I don't really know.

· · Q.· ·That's fair.· Thank you.· So -- and we

Page 23

are going to come back to your experience in a

minute.· We are going to take a look at your CV.

But can you tell me when you just said that you

do a lot of, I think what you said was tenure

case writing where somebody needs a letterhead?

· · A.· ·Right.

· · Q.· ·What do you mean by that?· What is

tenure case writing?

· · A.· ·So when -- I'll give you an example.· So

the University of Illinois, let's say, is putting

someone up for tenure, okay, and they have to

make sure that as an R1 institution, as a strong

research institution, that they have external

reviewers because all tenure cases have to be

sent out for review by external referees, and

they have to be referees that are from equally or

more prestigious institutions with equal or

better records of publication, research awards,

teaching awards, and so on.

· · · · · · · · · · · ·So a lot of times

institutions, particularly if they need someone

with a strong letterhead like UW Madison, and if

they need a woman to write for them, will ask me

to be a writer, because there are only so many

Page 24

people with strong letterhead in the field of

communications with many years of experience,

with strong research records.· And it helps to

have an administrative record.· There is a dearth

of people like that.

· · · · · · · · · · · ·So I'm asked to do that

by, you know, Penn State, Indiana, UNC, and other

particularly Big 10 institutions, which is where

communication has its strongest foothold as a

field.

· · Q.· ·Okay.· So when you referred to tenure

case writing, you are talking about serving as an

external referee on tenure cases at other

institutions?

· · A.· ·That's right.

· · Q.· ·Okay.· Thank you.· Do you know when

Doctor Calvente obtained her PhD?

· · A.· ·No.· I have no idea.

· · Q.· ·Do you know which institution conferred

her doctoral degree?

· · A.· ·I think it was UNC.

· · Q.· ·How did you come to learn that?

· · A.· ·When -- well, in the course of -- what I

did was I looked at UNC, the website for UNC when

Page 25

I was looking for the tenure guidelines, and I

could see the -- I could see records of folks who

had graduated from there, and it was mentioned

there.

· · Q.· ·Is that material that you relied on in

forming your opinion?

· · A.· ·Actually the only reason -- let's see.

Well, it was interesting to me that UNC would

hire one of its own because that's really

unusual.· So that would have been the only

impact.

· · Q.· ·Okay.· So do you still have the web page

that you looked at that showed her as being a

graduate of the institution?

· · A.· ·I don't know if I have it anywhere, but

I can look for it.

· · Q.· ·You can obtain it?· Okay.

· · · · · · · MR. BRAMWELL:· Ms. Wermuth, if it

will help, we will stipulate to the fact that

Doctor Calvente obtained her PhD from UNC.

· · · · · · · MS. WERMUTH:· That's not what I'm

asking.· I'm trying to understand what Doctor

Zaeske reviewed.

· · · · · · · MR. BRAMWELL:· Never mind.· I'll

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Page 26

shut up.· Never mind.· Sorry.· I was trying to

help.· Never mind.

· · · · · · · MS. WERMUTH:· I'm trying to

understand what Doctor Zaeske knows, how she

learned it, and what material she relied on.

· · · · · · · MR. BRAMWELL:· I get it.· I'm not

trying to interfere.· I thought that was the

direction you were going.· Never mind.

BY MS. WERMUTH:

· · Q.· ·Do you know, Doctor Zaeske, about any

academic positions that Doctor Calvente held

prior to being hired into a tenure track job at

DePaul?

· · A.· ·No, I do not.

· · Q.· ·Did you know when she was hired at

DePaul?

· · A.· ·I don't, though I can imagine it has --

it must have been in the last 7 years.

· · Q.· ·And you say that because of the timing

for a case for tenure to be up for review?

· · A.· ·Right.

· · Q.· ·Okay.· Do you know anything about the

nature of the search that DePaul undertook at the

time of Doctor Calvente's hire?

Page 27

· · A.· ·No.

· · Q.· ·Do you know anything about the position

that was posted that she responded to at DePaul

University?

· · A.· ·No.

· · Q.· ·Are you familiar with her research

concentration?

· · A.· ·No.

· · Q.· ·Did you review her tenure dossier?

· · A.· ·No.

· · Q.· ·Are you familiar with her publication

record as it existed in academic year 2018, 2019?

· · A.· ·No.

· · Q.· ·Are you familiar with her service record

at DePaul?

· · A.· ·No.

· · Q.· ·Are you familiar with her teaching

record at DePaul?

· · A.· ·No.

· · Q.· ·Did you review the College of

Communications' recommendation on her tenure

case?

· · A.· ·No.

· · Q.· ·Did you review DePaul University's --

Page 28

the Dean of DePaul University's College of

Communication, did you review her recommendation?

· · A.· ·No.

· · Q.· ·On her tenure case?

· · A.· ·No.

· · Q.· ·Did you review the University Board on

Promotion and Tenure, that recommendation?

· · A.· ·No.

· · Q.· ·Did you review the Provost's decision?

· · A.· ·No.

· · Q.· ·Did you review the Appeal Board's

recommendation?

· · A.· ·No.

· · Q.· ·Did you review the President's decision?

· · A.· ·No.

· · Q.· ·You were aware, however, that she

appealed her tenure denial?

· · A.· ·Yes.

· · Q.· ·And those were facts that were supplied

to you by Mr. Bramwell?

· · A.· ·Yes.

· · Q.· ·Okay.· And you were aware that the

President then weighed in on her case?

· · A.· ·Yes.

Page 29

· · Q.· ·Okay.· And that was a fact that Mr.

Bramwell provided to you?

· · A.· ·Yes.

· · Q.· ·Okay.· And do you know prior to her

appeal at what level in the tenure review she was

-- at what levels -- I'm sorry.· I'm going to

strike that whole question.· Do you know at any

level what the recommendation was for Doctor

Calvente for or against tenure?

· · A.· ·No.· I really don't -- yeah.· I don't

really know -- I just know there were appeals and

she was at the end denied.

· · Q.· ·Have you reviewed any media, newspaper

articles, social media, petitions related to

Doctor Calvente's tenure denial?

· · A.· ·No.

· · Q.· ·Now, after you were engaged and in

connection with preparing your report, did you

review Federal Rule of Civil Procedure 26A2?

· · A.· ·I did not.

· · Q.· ·Do you understand that under the federal

rules your report must contain a complete

statement of all opinions you intend to express

in this case?

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Page 30

· · A.· ·Could you please restate the question?

· · Q.· ·Sure.· There are rules that govern civil

practice in federal courts.· Do you understand,

Doctor Zaeske, that your written report under

those rules must contain a complete statement of

all opinions you intend to express?

· · A.· ·Yes.

· · Q.· ·Okay.· So you understand that any

opinion that you intend to make in this case is

to be contained in your written report?

· · A.· ·Right.

· · Q.· ·Okay.· Thank you.· And do you also

understand that your written report must contain

all the facts and the data that you considered in

forming your opinion?

· · A.· ·Yes.

· · Q.· ·And you understand that any exhibits

that would be used to summarize your opinion are

also to be included in your report?

· · A.· ·Yes.

· · · · · · · MR. BRAMWELL:· Objection, vague.

BY MS. WERMUTH:

· · Q.· ·Now, I notice that in the materials

served on us in connection with the disclosure of

Page 31

you as an expert that you indicated you're not

being compensated for your opinion; is that

correct?

· · A.· ·That's correct.

· · Q.· ·So you received no compensation for the

preparation of the report?

· · A.· ·Correct.

· · Q.· ·Are you being compensated for your time

today appearing at this deposition?

· · A.· ·I am not.

· · Q.· ·Okay.· Okay.· And will you be

compensated for your testimony at trial if this

case proceeds to trial?

· · A.· ·I will not.

· · Q.· ·Okay.· And why is it that you decided

not to charge for your services as an expert?

· · A.· ·I saw it as similar to the work that I

mentioned earlier as, you know, a tenure

reviewer, so a service to the discipline.· That's

basically the reason.· And frankly, I was kind of

interested.· I never have gone through this

process before.· I just wanted to see what it

involves as an expert witness.

· · Q.· ·Are you charging for costs incurred?

Page 32

· · A.· ·I thought we were going to be meeting in

person in Chicago, and I would have wanted to be

compensated for mileage and hotel or something

like that.· But since that's not -- since we are

on Zoom, I am not.

· · Q.· ·Okay.· So you have not incurred any

costs to date?

· · A.· ·None.

· · Q.· ·All right.· So if you would, Doctor

Zaeske, pull up your CV, I would like to talk to

you about your background.

· · A.· ·Certainly.· Is that one of the exhibits?

· · Q.· ·Exhibit 2 in the packet.

· · A.· ·Okay.· Alrighty.

· · Q.· ·Okay.· I would like to start with your

education, which is at the bottom of page 1 and

top of page 2.· It looks to me as though you

received your Bachelor's, your Master's, and your

PhD from the University of Wisconsin Madison?

· · A.· ·Yes.

· · Q.· ·Okay.· And the Master's, is that like a

-- was that a required terminal degree, or were

you not thinking about being in a PhD program at

the time, or tell me about the Master's?

Page 33

· · A.· ·It is simply required to go into the --

to finish the PhD.· It wasn't terminal.· It was a

-- you know, you had to fulfill it to continue on

to the doctoral program.

· · Q.· ·Understood.· Okay.· So when were you

accepted into the doctoral program?

· · A.· ·It would have been in Spring of '89 when

I graduated as a Bachelor's -- with my Bachelor's

degree.

· · Q.· ·So you then entered the PhD program in

the Fall of 1989?

· · A.· ·That's right.

· · Q.· ·Thank you.· And then the Master's was

just part of what you had to do towards

completion of the doctoral program?

· · A.· ·Right.

· · Q.· ·So you had to take qualifying exams at

that point?

· · A.· ·That's right, yes.

· · Q.· ·And then you very quickly, I guess even

before your PhD was conferred, you were hired by

UW Madison in a tenure line position; is that

correct?

· · A.· ·That's right.

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Page 34

· · Q.· ·How did that come to be given that you

had not yet obtained the PhD?

· · A.· ·So a number of things happened.· One was

that the rhetoric area of my department, we had a

number of unexpected retirements in the

department.· And then actually 2 of the -- 2 of

the faculty were non-renewed in their fourth

year.· So then they -- then they left.

· · · · · · · · · · · ·I had gone on the job

market, and I had received offers from 2 other R1

institutions, as well as Wisconsin.· So I proved

that I could -- that I was marketable because I

had a number of things published, and I won

awards and things like that.· So my -- because

there was a lack of faculty in the department, I

had a heavier load even as a grad student, but

especially as a beginning professor, which

delayed my time in completing my dissertation. I

didn't end up defending my dissertation until

Spring of 1997, even though I had -- my tenure

clock began ticking in the Fall of 1996.

· · Q.· ·I see.· And it appears that you were

promoted to associate professor 6 years later in

2002?

Page 35

· · A.· ·Right.

· · Q.· ·And so -- and was that a promotion that

came with tenure?

· · A.· ·Yes.

· · Q.· ·So you were promoted and tenured in

2002?

· · A.· ·Right.

· · Q.· ·So did you go up early for promotion and

tenure?

· · A.· ·Yeah, I ended up going early even though

I -- even though my tenure clock was ticking.

· · Q.· ·Okay.· And you became full professor

then in 2007; is that correct?

· · A.· ·Yes.

· · Q.· ·And the Department of Communication Arts

sits in what academic unit?

· · A.· ·It is in the College of Letters and

Science.

· · Q.· ·And the College of Letters and Science,

is that part of a division, part of just the

greater academic environment?· Can you explain to

me sort of the hierarchy?

· · A.· ·Sure, certainly.· So the University of

Wisconsin Madison has 13 schools and colleges,

Page 36

and then there are a number of other divisions.

But there are 13 schools and colleges.· The

College of Letters and Science by far the

largest, taking up half the faculty on campus,

and you know, it is about half the campus and

half the departments and majors and so on.· So it

has got about 45 departments in it.

· · · · · · · · · · · ·And the College of Letters

and Science -- excuse me.· The Department of

Communication Arts is one of the roughly 45

departments in the College of Letters and

Science.· And the Department of Communication

Arts has 4 areas of graduate study and 2 areas of

undergraduate study.· I'm happy to say what those

are if you want.

· · Q.· ·No, that's fine.· I appreciate that.

Thank you.· I'm trying to get a sense of the

structure of the university.

· · A.· ·Right.

· · Q.· ·Because I see reference to division of

the arts, arts and humanities, and I'm trying to

understand what those units are and how they are

related or not to the College of Letters and

Science which houses the Department of

Page 37

Communications?

· · A.· ·Right.· All right.· So the -- so we have

the whole university, 13 schools of college --

all the university.· This is like a funnel,

right?· So there are 13 schools and colleges. L

and S is one of those schools and colleges, but

it is a huge one.· Comm Arts is one of the

roughly 45 departments.· But the college for

administrative purposes is divided into 4

sections.· I'll just say sections, okay.

· · · · · · · · · · · ·So there is the Arts and

Humanities -- it's actually a division.· The Arts

and Humanities Division.· I'm the Associate Dean

of the Arts and Humanities Division.· I have 16

departments and about 25 centers and institutes

that I administer in my job as Associate Dean for

Arts and Humanities.· Comm Arts is not one of

those ironically.· Even though I was the chair of

that department, I'm not the Associate Dean for

that unit.· It is not in my portfolio.

· · · · · · · · · · · ·Another division is the

Social Science division.· That's Political

Science, Sociology, Comm Arts, so on.· There is

the Mathematical, Natural and Biological Sciences

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Page 38

Division, Physics, Math, Biology, so on.· And

then there is the Computer Data Information

Sciences Division.· So there are 4 divisions of

the college.· So that's L and S.

· · · · · · · · · · · ·And then to make things

even more complicated, I'm sorry to say, Anna, is

the Division of the Arts.· And I was called in to

be an Interim Director of the Division of the

Arts for the last 2 and a half years.· And that

is a division -- it doesn't have tenure lines or

curriculum in it.· It's a part of the university

that provides an umbrella organization for the

arts because the arts are siloed in 3 separate

schools and colleges.

· · Q.· ·Got it.· Okay.· I think I have it.· So

let me ask a couple of follow-up questions.· So

the College of, is it called Letters and

Sciences?

· · A.· ·It is just Letters and Science.

· · Q.· ·So you have the College of Letters and

Science which has divisions underneath it, which

then has departments underneath the divisions or

housed within?· Do I have that sort of shell game

--

Page 39

· · A.· ·Right.

· · Q.· ·And separately there is this Division of

the Arts where it doesn't sit in one of the

colleges.· It is sort of its own unit.· And it

doesn't offer a course of study or curriculum or

degrees?

· · A.· ·Correct, right.

· · Q.· ·Okay.· Thank you.· That's super helpful.

So it looks like you were -- had leadership roles

in the Department of Communication Arts from 2006

to 2011 being Associate Chair and then Department

Chair?

· · A.· ·Yes.

· · Q.· ·Okay.· And then after that you became

Associate Dean for Advancement in the College of

Letters and Science; is that right?

· · A.· ·That's right.· But I just want to

explain that I became -- I assumed 2 Associate

Dean roles in the College of Letters and Science

at the same time.

· · Q.· ·I see that.

· · A.· ·And then one has continued, and then one

has -- I built this office of communication and

development and fundraising.· Then it has got too

Page 40

big, and then I stepped off of that Associate

Dean role.· So I had those concurrently for a

while until 2018.

· · Q.· ·I see.· So the Associate Dean for

Advancement is a fundraising sort of type of a

role, right?

· · A.· ·Yeah, fundraising communications.

· · Q.· ·And then Associate Dean for Arts and

Humanities was the sort of academic position?

· · A.· ·Is, yes.

· · Q.· ·So you still have that position now?

· · A.· ·That's correct.

· · Q.· ·Are you still currently among the

faculty in the communication -- or Department of

Communication Arts?

· · A.· ·I am still -- I still hold a

professorship in that department, but I have not

been participating in departmental governance

since 2011.· So I don't sit on the executive

committee, and I don't vote, you know.· I don't

vote.· I really don't know what is going on in

terms of departmental politics.· I do not have an

office.· I haven't had an office there since

2011.

Page 41

· · Q.· ·So let me ask you that question.

Beginning in 2011, you then no longer

participated in governance in the Department of

Communication Arts?

· · A.· ·Yes, correct.

· · Q.· ·So that would include participation in

tenure cases?

· · A.· ·Right.

· · Q.· ·Okay.· And that would include

participation in hiring decisions as well?

· · A.· ·Correct.

· · Q.· ·Okay.· And so did you in your role as

Associate Dean for Arts and Humanities in the

College of Letters and Science have any role in

tenure cases at a different level?

· · A.· ·Yes.· So my role -- I have a lot of

roles in tenure cases and in hiring.· So every

single person who is brought in for a campus

interview in Arts and Humanities, or if it is

Social Sciences, if there is some Humanities,

they are related to Humanities, or their work is

in Humanities, I meet with them and interview

them.· I have to actually approve requests for

campus interviews before they are even allowed to

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Page 42

interview.

· · · · · · · · · · · ·So then I interview -- I

interview them.· Departments make their hiring

requests to me, and then I have to decide whether

I want to advance it.· And then I advance it to

the Dean and to what is called the Senior Staff

of the college.· And every Monday, we discuss

hiring during the hiring season.· And then all of

the Associate Deans weigh in on hiring.· So I

weigh in on hiring biologists and computer

scientists and mathematicians, political

scientists, as well as English professors, and

Comm Arts professors, and history and so on.

· · · · · · · · · · · ·And then I'm responsible

for overseeing the annual review process for all

of the Humanities and Arts faculty, and sometimes

this crosses over into the Social Sciences.· That

means reviewing all of their annual reviews and

making a recommendation to the Dean as to whether

they should be reappointed or not.· And then I'm

also responsible for overseeing and mentoring of

our probationary faculty.

· · Q.· ·I would imagine in connection with the

annual review process that you do not uniformly

Page 43

recommend or approve renewals?

· · A.· ·I have non-renewed 2 faculty in the last

3 months.

· · Q.· ·Tenure line?

· · A.· ·Correct.· We only have -- we only have

-- if you're faculty, you're tenure staff.· We do

not -- it is not tenure.

· · Q.· ·Okay.· So you don't have like a

nontenure cadre of teachers?

· · A.· ·Yes, we have a nontenure cadre of

teachers, but they are not called faculty or

professor.

· · Q.· ·I understand.· Okay.· So in this -- just

in this past review cycle, you non-renewed 2

faculty members?

· · A.· ·Right.

· · Q.· ·Meaning that in your estimation, they

were not ultimately going to be capable of

contributing to the academic environment at the

university at the level that the university

expected?

· · A.· ·Correct.

· · Q.· ·So these were 2 probationary faculty

pre-tenure?

Page 44

· · A.· ·Yes.

· · Q.· ·Okay.· Were you involved in the hire of

those 2 individuals that you just non-renewed?

· · A.· ·I was involved in the one, in one of

them.· It was during a time when I was Associate

Dean.· The other was hired before I became

Associate Dean.

· · Q.· ·Okay.· And I'm assuming that at the time

that you were involved in the hiring of the one,

that you did anticipate that that individual

would meet the criteria ultimately for tenure?

· · A.· ·Right.· That was -- I mean the whole

purpose when I meet with candidates is to assess

their tenurability.· That's my job.

· · Q.· ·And sometimes you get that right and

sometimes you don't get that right?

· · A.· ·Yes.

· · Q.· ·Okay.· And then how are you involved in

tenure decisions in your role as Associate Dean

for Arts and Humanities?

· · A.· ·So UW Madison is a very -- sorry.· There

is a giant garbage truck going by.

· · Q.· ·I can't hear it, but I understand why it

is distracting.· I have a lot of noise outside my

Page 45

window.

· · A.· ·Okay.· It is gone.· UW Madison has a

strong shared governance ethic, practice.· So we

have what is called the divisional committees,

and those are committees of faculty who review

the tenure dossiers and they make decisions.· So

major decisions about tenure are made in

departmental executive committees and divisional

committees.

· · · · · · · · · · · ·Deans and Associate Deans,

and even the Provost tend to be involved in --

only when there is like a tie, you know, a tie or

there is not a clear decision made.· And there is

rarely major intervention, right?· But you know,

like in these cases that I mentioned, you know, I

made it clear in my review of the annual review

letters that the department was not strict enough

in its warnings to the faculty member, and that

they were not meeting expectations, the

expectations of the college.

· · · · · · · · · · · ·So my -- as an Associate

Dean and then in conjunction with the Dean, the

interventions come at those annual review times,

right?· But it is very difficult -- the major

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Page 46

decisions again are made by the executive

committee and the divisional committee.

· · Q.· ·Okay.· And so then is there an approval

process for the Dean and the Provost, or does the

decision stop with the divisional committee

unless there is something unusual about the case?

· · A.· ·It goes -- so the divisional committee,

technically it is a recommendation to the Dean,

but the Dean rarely overturns the divisional

committee recommendation, but he or she can.· And

then the Dean makes a recommendation to either

the -- I think the Provost.· It is either the

Provost or the Chancellor.· And then it goes to

the Board of Regents.

· · Q.· ·Right, as a public institution?

· · A.· ·Right.

· · Q.· ·Okay.· So when you say the divisional

committee's recommendation goes to the Dean,

that's not you, correct?

· · A.· ·Correct.· It is the overall Dean of the

College.· So I'm the Associate Dean of one of the

divisions of the college, but there is the Dean

that is, you know, over the whole college.

· · Q.· ·I understand.· Okay.· I understand.· So

Page 47

it sounds to me, you can tell me if I'm wrong,

that your involvement in connection with the

advancement of probationary faculty really takes

place at the review -- the probationary review

period; is that right?

· · A.· ·Right.

· · Q.· ·Okay.· Okay.· Now, it sounds to me that

you are a proponent of faculty governance?

· · A.· ·Yes.

· · Q.· ·Okay.· And you would probably then agree

with me that the peer review process that is

attendant to tenure is an important process?

· · A.· ·Yes.

· · Q.· ·Okay.· And that -- I'm assuming that you

understand that that review is largely

qualitative?

· · A.· ·I think it is qualitative, but there are

clear criteria and clear expectations.

· · Q.· ·Okay.· But you would agree that the

decisionmaking process involves the exercise of

academic judgment?

· · A.· ·Absolutely.

· · Q.· ·By peers?

· · A.· ·Yes.

Page 48

· · Q.· ·And that -- and it sounds to me like at

least at your process, your institution, where

you have been your entire academic career, that

many faculty participate in the decisionmaking

process?

· · A.· ·Yes.

· · Q.· ·And because there are so many individual

assessments involved, it is at least conceivable

that there will be different opinions along the

review process?

· · A.· ·Yes.

· · Q.· ·I'm assuming you would also agree that

the grant of tenure is a privilege?

· · A.· ·Absolutely.

· · Q.· ·Not a right or an entitlement?

· · A.· ·Exactly.

· · Q.· ·Okay.· And you would probably agree with

me that is probably among the most important

decisions that a college or university makes?

· · A.· ·Yes.

· · Q.· ·And because it's a critical decision,

the institution should be absolutely sure that

the case warrants tenure?

· · · · · · · MR. BRAMWELL:· Objection to the

Page 49

extent that you are asking about -- you're

deviating from the criteria.· Go ahead.

BY MS. WERMUTH:

· · Q.· ·You can answer.

· · A.· ·I'm sorry.· Now I lost what the question

was.

· · · · · · · MS. WERMUTH:· I'm sorry.· Gina, can

you read that back for Doctor Zaeske, please?

· · · · · · ·(Question read).

· · · · · · · THE WITNESS:· Yes, absolutely.

BY MS. WERMUTH:

· · Q.· ·So another way to say that would be if

there is any doubt about a case, tenure should be

denied?

· · · · · · · MR. BRAMWELL:· Objection to the

extent that it is vague and best evidence.· Go

ahead.

· · · · · · · THE WITNESS:· If there is any

doubt?· It makes it sound like a murder case. I

think yes.

BY MS. WERMUTH:

· · Q.· ·Have you ever voted to deny tenure?

· · A.· ·Yes.

· · Q.· ·To a probationary faculty member?

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Page 50

· · A.· ·Yes.

· · Q.· ·More than once?

· · A.· ·Well, so I was the -- another thing that

is on my CV is I was the chair of the divisional

committee.· I served on it for 3 years, and I

chaired it.· So during that time I voted against

tenuring people.· And I also, as I mentioned, you

know, just in the last -- so I didn't have a vote

in these 2 non-renewals.· One was a non-tenure,

one was a non-renewal just this last year. I

essentially drove the non-tenuring and

non-renewing of at least 4 other faculty members

in the last 5 years.

· · Q.· ·How many?· Did you say 4 in addition to

the 2 you already mentioned?

· · A.· ·Let me just -- let me think.· Let's say

3 for sure.

· · Q.· ·In addition to the 2 you already

mentioned?

· · A.· ·Right.· So a total of 5.

· · Q.· ·Thank you.· Have you ever in connection

with your hiring responsibilities been presented

with a candidate who has been denied tenure at

another institution?

Page 51

· · A.· ·Yes.· Just in the last 3 years, we hired

a philosopher who had been denied tenure at Yale.

· · Q.· ·Any others you can think of?

· · A.· ·I'm trying to think of any.· I'm sure

there are some.· I can't think of any right at

the moment.

· · Q.· ·Okay.

· · A.· ·Oh, yeah.· Actually I can think of

another one.· Also Yale.

· · Q.· ·So you can think of 2 candidates that UW

Wisconsin hired who had been denied tenure at

Yale?

· · A.· ·Right.

· · Q.· ·Okay.· Yale is an R1 school?

· · A.· ·Well, not only is Yale an R1, but it is

an Ivy.· And Ivy's routinely -- you know, you are

kind of like -- you know that if you accept an

assistant professorship at an Ivy that your

chances of actually being tenured there are slim,

and that you are going to have to likely go

elsewhere, but it happens -- it happens over and

over.· So it is not actually that unusual.

· · · · · · · · · · · ·It would be unusual for

another Ivy to hire someone who was not tenured

Page 52

by a Ivy, but it is not unusual for a public

institution to hire someone who was not tenured

by an Ivy.

· · Q.· ·Can you think of any candidates that at

least disclosed to you, any candidates from a

non-Ivy school, that disclosed in the hiring

process that they had been denied tenure?

· · A.· ·No.

· · Q.· ·Okay.· So the only 2 you can think of

were the 2 from Yale?

· · A.· ·Yes.

· · Q.· ·Are you familiar with the concept of

credit for years?

· · A.· ·Sure.

· · Q.· ·Okay.· And what do you understand that

to be?

· · A.· ·So what I think you mean by credit for

years would be if someone -- this is how it goes

at UW Madison.· If you have served in a tenure

track position at another institution for a

number of years, then when you begin your

appointment here, you can be given credit on your

tenure clock for those years served.· And that

has to be an agreement with the individual, the

Page 53

department chair, and the Associate Dean, and the

Dean for that credit.

· · · · · · · · · · · ·It does not -- if you are

just serving as a post-doc or something like

that, it doesn't warrant that kind of credit.· It

has to be in the tenure track.

· · Q.· ·Understood.· And that would mean that

the individual would be eligible for tenure -- so

if UW Madison were to hire someone who was in a

tenure line position at another institution and

credit them for some number of years of service,

they can go up for tenure earlier than the

unusual timeline?

· · A.· ·Yes.

· · Q.· ·You see that as a job benefit?

· · A.· ·Well, it cuts both ways, and, you know,

people negotiate it differently.· Some people,

and again I especially expect this in the

post-pandemic, are anxious about meeting the

tenure requirements.· They want the longest

tenure clock possible, and they do not want

credit for -- it is not considered credit.· It is

actually considered debit.· And so they don't ask

for that.

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Page 54

· · · · · · · · · · · ·And some are so confident

that they are going to get tenure, and what they

are most anxious about is not being tenured and

promoted and getting a salary increase and

getting a title change because they are confident

that they are going to get their -- usually it's

their book out, and then they want to be

promoted.· So they look for credit and a shorter

clock.· So it goes both ways.

· · Q.· ·Okay.· Understood.· And has -- so UW

Madison does in fact engage in this practice of

occasionally awarding years of credit?

· · A.· ·Right.· But again, it has to be

negotiated and agreed upon by sort of all

parties, because sometimes people have, you know,

maybe more ambitious or positive assessments of

their ability to get tenured than their

department -- you know, they just don't know how

hard it can be.· So they might want to have 3

years, and it is only a maximum of 3 years, but

we say no, we want you to take the full tenure

clock, and if you are able to, we will put you up

earlier.

· · · · · · · · · · · ·I mean that can be -- it

Page 55

can break the negotiations when you are trying to

recruit someone.· But we wouldn't want to bring

someone in on a short clock, and then they not

get tenure, because that's a waste of investment.

· · Q.· ·Understood.· Okay.· Can we go back to

Exhibit 2?· Do you still have that in front of

you, Doctor Zaeske?

· · A.· ·Yes.

· · Q.· ·So I would like to look at your

research?

· · A.· ·Sure.

· · Q.· ·Which I think begins on page 2; is that

right?

· · A.· ·Yes.

· · Q.· ·Okay.· So it appears to me that you have

one book, one manuscript, right?

· · A.· ·Yes.

· · Q.· ·And that was published just after you

obtained tenure it appears to me?

· · A.· ·Right.

· · Q.· ·It was probably forthcoming at the time

of your tenure?

· · A.· ·Yes, yeah.

· · Q.· ·And then what follows are articles, book

Page 56

chapters, and reference work entries?

· · A.· ·Yes.

· · Q.· ·And it looks like your most current --

these are all peer reviewed?

· · A.· ·Yes.· Well, yeah.· Well, I don't know

that anything I have done is not peer reviewed.

Right.

· · Q.· ·Okay.· So it looks like your most recent

peer reviewed publication then was from 2014?

· · A.· ·That's right.

· · Q.· ·Okay.· You do have some works in

progress I see?

· · A.· ·Yes.

· · Q.· ·Understood.· Okay.· So tell me what your

area of research is?

· · A.· ·So in the field of -- so I'm in the --

I'm in the field of communication, but I am also

-- you know, my book was published basically in a

history series, and I have a number of reprints

in history.· So I operate in history to a certain

degree.· I operate in political science.· Some of

those publications, particularly about

petitioning, are in -- and also conference papers

that I have given are in political science.

Page 57

· · · · · · · · · · · ·But in the area of -- in

the communication field, I'm known at a

rhetorician, the field of rhetoric, or rhetoric

and public culture.· And I tend to do very

historical -- very historical work in the 19th

century.· So I don't know if you want more than

that.

· · Q.· ·No, that's helpful.· I appreciate that.

So let me just ask you some questions about -- I

mean obviously you have been in administration

for some period of time.· You have been involved

as you described for us in hiring practices, in

tenure practices.· But just to be clear, you have

not published in the area of good or bad tenure

processes?

· · A.· ·I have not published papers on good or

bad tenure processes, no.

· · Q.· ·Okay.· And you have not published any

peer reviewed papers on the topic of academic

governance?

· · A.· ·No.

· · Q.· ·Okay.· And you have not -- well, let me

ask you this.· You don't cite any literature in

your report that is peer reviewed publications on

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Page 58

the topics of tenure or faculty governance; is

that fair?

· · A.· ·Yes.· That is fair.· No, I did not.

· · Q.· ·Okay.· Thank you.· And with respect to

studying or researching the topic of tenure

denial and where faculty go once they have been

denied tenure, you have not performed personally

any studies on that topic; is that right?

· · A.· ·No, I have not.

· · Q.· ·Okay.· And you don't cite any peer

reviewed literature in your report on that topic;

is that right?

· · A.· ·That's correct.

· · Q.· ·Okay.· Are you familiar with any peer

reviewed studies on any of the topics we just

discussed?· Tenure processes, faculty governance,

tenure denial cases?

· · A.· ·You know, I think I have read some in

passing in the past, but I did not delve deeply

into those.· I mean I have more than a decade of

experience of doing this stuff at a huge

university, so I don't really think it is

necessary.

· · Q.· ·Okay.· And I'm just asking for purposes

Page 59

of your report preparation.· You didn't -- to the

extent you were aware of any peer reviewed

literature on those topics, you did not rely on

that literature in forming your opinion?

· · A.· ·No, no.

· · · · · · · MS. WERMUTH:· By the way I just

noticed that Kathy Stieber joined us.· She is the

General Counsel of DePaul University.· I just

wanted folks to know who that was and why she was

here.

· · Q.· ·Okay.· So when I received materials from

Mr. Bramwell in connection with the response to

the subpoena, I received a copy of Doctor

Calvente's offer letter from the University of

North Carolina.· So when I received that, I had

understood that that was something you relied on.

But I just want to be clear, you did not review

her physical offer letter from the University of

North Carolina?

· · A.· ·What I remember is seeing the date of

the offer letter because I asked whether she

truly had -- because I went to the website for

UNC, and there was -- she wasn't on the website.

So I said is she really -- does she really have

Page 60

an offer?

· · · · · · · · · · · ·And I believe that I saw

the -- just that there was a letter and there was

a -- that it was dated.· I don't remember that I

-- I mean maybe I received the letter.· I have to

say I don't remember.

· · Q.· ·Okay.· Let me go back to the concept of

credit, years credit for service.· When would you

typically see something like that?· Where there

was a long period of service in a tenure line

position, is that where you would typically see

credit for service?

· · A.· ·So you would get credit for service if

there is a period of time on the tenure clock at

a comparable institution.· So where you have

students who are -- you know, similar in the

teaching experience that is going to be similar,

and, you know, similar research expectations.

· · Q.· ·Okay.· And you don't know how much time

Doctor Calvente spent at DePaul University?· Do I

understand that correctly?

· · A.· ·No.· Yeah.

· · Q.· ·So I'm going to ask you to look at

Exhibit 4 from the documents that we sent to Mr.

Page 61

Bramwell yesterday.

· · A.· ·Okay.

· · Q.· ·So does this refresh your memory as to

whether or not you actually received a copy of

this letter in connection with the materials

provided to you for purposes of preparing your

report?

· · A.· ·I have to -- I just simply don't -- I

simply don't remember because my goal was to know

whether or not she had received the offer, and

you know, what -- I didn't even remember the date

here.· March 8th.

· · Q.· ·Okay.· So you just don't recall one way

or the other?

· · A.· ·I honestly don't.· I'm sorry.

· · Q.· ·Okay.· So can I have you look at Exhibit

5 from the packet of materials that was sent?

· · A.· ·Certainly.· Okay.

· · Q.· ·In looking at that, does that refresh

your memory as to whether or not you saw these

materials?

· · A.· ·So this is an email.· No.· I have never

seen this.

· · Q.· ·Okay.· So if you scroll down to the

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Page 62

bottom where there is an attachment, is that

something you recall reviewing in connection with

preparing your report?

· · A.· ·No.

· · Q.· ·Okay.· And I'm looking at the last 2

pages.· So the pages -- do you see there is a

little marking in the lower right where it starts

with LC?

· · A.· ·Yes.

· · Q.· ·I'm looking at 4089 and 4090.

· · A.· ·I have not --

· · Q.· ·Okay.

· · A.· ·I have not seen this.

· · Q.· ·Okay.· Did you make assumptions, any

assumptions about the nature of the offer that

Doctor Calvente received?

· · A.· ·None.· Again, I just wanted to know

whether she had truly been offered a position or

not, and the specifics of it, you know.· I didn't

think about or know about it.

· · Q.· ·Okay.· So you didn't think about whether

the offer was for the position of assistant

professor?

· · A.· ·Well, I asked whether it was a tenure

Page 63

track position, and it was confirmed to me that

she received an appointment for a tenure track

position.· I just can't remember whether Jerry

confirmed that -- that a letter of offer had been

sent, and if he did that verbally, or if I was

sent a copy of the letter, because I have no -- I

honestly just don't remember anything beyond the

fact that she received an offer for a tenure

track position.

· · Q.· ·Okay.

· · A.· ·I don't even know when she is starting.

· · Q.· ·Okay.· And you also then don't know what

the term of her appointment is, the length of it

for example?

· · A.· ·No.

· · Q.· ·Okay.

· · A.· ·Well, if it is a tenure track position,

it is a -- she has the opportunity to get tenure,

and it would be an ongoing position, if that's

what you mean by term of it.· If it is only a 2

year position or something like that, it is not a

tenure track position.· Then it would be an

adjunct position.

· · Q.· ·Well, let me ask you this.· We will look

Page 64

at the UNC guidelines about terms for

probationary faculty in a moment, because that is

something you reviewed, right, the UNC guidelines

on promotion?

· · A.· ·Yes.

· · Q.· ·Okay.· So do you know -- were you

provided with any information about whether UNC

had advertised or posted for the position that

Doctor Calvente was offered?

· · A.· ·No.· I don't know how they did their

hiring process.

· · Q.· ·Okay.· And so you don't know, for

example, whether there were multiple positions

open in the Department of Communications?

· · A.· ·No, I don't.

· · Q.· ·Okay.· And you don't know for example if

the position was created specifically for Doctor

Calvente?

· · A.· ·I don't know.

· · Q.· ·Okay.· And you don't know whether there

was a competitive search for the position?

· · A.· ·I don't know.

· · Q.· ·And you don't know how many candidates,

if it were a competitive search, how many

Page 65

candidates may have also applied for the

position?

· · A.· ·No.· I have no idea.· And I think -- I

don't even know if that's public knowledge.

· · Q.· ·Okay.· But that's not something that you

investigated, correct?

· · A.· ·No, I don't know.

· · Q.· ·Okay.· So you didn't interview anyone at

the University of North Carolina I'm assuming?

· · A.· ·No.

· · Q.· ·And did you review any materials that

Doctor Calvente submitted to the University of

North Carolina in connection with the potential

for hire there?

· · A.· ·No.

· · Q.· ·Do you know whether she notified the

University of North Carolina that she had been

denied tenure?

· · A.· ·I have no idea.

· · Q.· ·Do you know whether she was credited for

any years of service at the University of North

Carolina?

· · A.· ·I don't know.

· · Q.· ·Do you know if Doctor Calvente was

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Page 66

provided with the opportunity to have her case

reviewed for tenure upon hire at the University

of North Carolina?

· · A.· ·I don't know.

· · Q.· ·You would imagine that the University of

North Carolina can do that, correct?

· · A.· ·That they -- an institution would --

yes, they would have the prerogative to hire with

tenure.

· · Q.· ·Okay.· And does the absence of that

process here mean that they did not view her file

as being tenurable in the moment?

· · A.· ·I would imagine that would be the case

because she is not at a peer institution.

· · Q.· ·All right.· Let's take a look at your

report, which is Exhibit 3 in the packet that was

sent to you?

· · A.· ·Okay.

· · Q.· ·Do you recognize that document, Doctor

Zaeske?

· · A.· ·Yes.

· · Q.· ·And what do you recognize it to be?

· · A.· ·The expert witness report that I

prepared for this case.

Page 67

· · Q.· ·And on the final page, that is your

signature?

· · A.· ·Yes.

· · Q.· ·Give me just a moment.· I'm sorry.· I'm

having a little technical difficulty in this

moment.· Can we take a super quick break so I can

try to resolve this technical difficulty?

· · · · · · · MR. BRAMWELL:· Sure.

· · · · · · · THE WITNESS:· Certainly.

· · · · · · · MS. WERMUTH:· Jerry, what do you

want?· 5 minutes, 10 minutes?

· · · · · · · MR. BRAMWELL:· 5 minutes is fine.

Come back at 11:24?

· · · · · · · MS. WERMUTH:· Perfect.· Thank you.

· · ·(Off the record at 11:21 to 11:26)

· · · · · · · MS. WERMUTH:· Gina, we will go back

on the record.

· · Q.· ·Doctor Zaeske, we were talking a little

bit about the search process at UNC in connection

with the offer made to Doctor Calvente.· And I

would like to point you to the second page of

your report, the second full paragraph, the big

one.· About 4 lines down you say -- well, 3 lines

down, "Calvente's record was of such excellence

Page 68

that it rose to the top of the application pool

in the fierce competition for a tenure track job

at an R1 university."· Do you see that?

· · A.· ·Uh-huh.

· · · · · · · MR. BRAMWELL:· I'm going to object

because that misstates the entire sentence.

BY MS. WERMUTH:

· · Q.· ·Did the portion of the sentence I read,

is that consistent with what you wrote, Doctor

Zaeske?

· · A.· ·Let me just make sure I see it in the

context of the overall paragraph.

· · Q.· ·Sure.

· · A.· ·So Calvente's -- my understanding is

this is your question.· Did I write "Calvente's

record was of such excellence that it rose to the

top of the application pool in a fierce

competition for a tenure track job at an R1

university"?· Yes.· That is what I wrote.

· · Q.· ·And what is the basis for that

statement?

· · A.· ·That is -- so search processes at

universities, whether they are -- I mean the

usual process is that there is a -- you know, a

Page 69

posting.· Applications come in, and they are

reviewed.· And getting a position at an R1

university, there are very few because of --

there is a lot -- especially the past few years

because there have been hiring freezes.· So there

is a fierce competition for positions.

· · · · · · · · · · · ·And this is true whether

you are doing a full and open search or even if

you are doing -- I mean there are many ways of

doing searches.· One is the open and posted

search, and then there is also targeted searches.

Institutions can do targeted searches.· But there

is a fierce competition to be the target of a

targeted search.· You have to rise to the top to

be recruited in that way.

· · Q.· ·But to be clear, you do not know

anything about the search process for the

position that was offered to Doctor Calvente in

March of this year?

· · A.· ·No.· But I know how search processes are

conducted.

· · Q.· ·Right.· But you don't know how it was

conducted in this particular instance?

· · A.· ·I do not, no.

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Page 70

· · · · · · · MR. BRAMWELL:· Objection, asked and

answered.

BY MS. WERMUTH:

· · Q.· ·And you don't know what the applicant

pool looked like in connection with the job that

was offered to Doctor Calvente?

· · A.· ·Not per se.· But again, to be hired at

an institution like UNC, it would have to be a

strong -- it would have to be a strong pool.

· · Q.· ·Can you identify the opinion that you

are offering in this case?

· · A.· ·Yes.· So the -- so the opinion that I'm

offering is that for an individual to be denied

tenure at an R2 institution and to be hired at an

R1 institution is highly irregular, and that the

irregularity of it points to something having

gone astray in the process by which the

individual would be non-renewed at an institution

with lesser standards and then hired at an

institution with higher standards.

· · Q.· ·So the underpinnings of your opinion

then are -- well, strike that.· Let me just

clarify your opinion.· On page 1 of your report,

the first paragraph is your statement of opinion?

Page 71

· · A.· ·That's right.

· · Q.· ·And the last sentence provides "that a

more prestigious institution with higher tenure

expectations than DePaul has invested in hiring

Calvente because they assess her as tenurable

renders DePaul's decision to deny her tenure

highly questionable."

· · A.· ·Correct.

· · Q.· ·Would you say that's the summation of

your opinion?

· · A.· ·Yes.

· · Q.· ·When you use the phrase highly

questionable, or I think on page 5 you say calls

into question, what do you mean by that?

· · A.· ·It seems that the -- the justification

for doing that is unclear.· It is questionable.

Again, where a higher, more prestigious

institution with higher tenure expectations would

assess the record as strong, and that a lesser

institution or less prestigious institution with

less stringent tenure practices would assess it

as weak, it makes no sense.

· · Q.· ·Now, you testified a moment ago that in

your view, something went astray in the tenure

Page 72

process at DePaul University.· Did I fairly

summarize what you testified to a moment ago?

· · A.· ·Yes.· The conclusion -- yes, because the

conclusion makes no sense.· Something happened.

· · Q.· ·Okay.· But you are not opining in your

report on what that something is, correct?

· · A.· ·Yes.· I have no idea what it is.

· · Q.· ·Okay.· And are you familiar with Title 7

of the Civil Rights Act of 1964?

· · A.· ·In passing.· Not you know -- I haven't

read it recently.

· · Q.· ·Okay.· You don't have any specialized

training or expertise in that law?

· · A.· ·No.

· · Q.· ·Okay.· And same question with respect to

Section 1981 of the Civil Rights Act?

· · A.· ·No.

· · Q.· ·No specialized training or experience or

expertise?

· · A.· ·No.

· · Q.· ·Okay.· So you understand that Doctor

Calvente was appointed to the rank of assistant

professor at UNC?

· · A.· ·The tenure track position, right.

Page 73

· · Q.· ·Right.· At the rank of assistant

professor?

· · A.· ·I don't know what -- I don't know what

rank she was appointed at.

· · Q.· ·Okay.· You do understand it is an

initial appointment though, correct?

· · A.· ·Yes.

· · Q.· ·So now you had attached to your report

as Exhibit 3 to your report UNC -- hang on one

second.· Let me make sure I have the title right.

UNC College of Arts and Sciences Department of

Communication Policies on Faculty Personnel

Actions.· Do you see that?

· · A.· ·Yes.

· · Q.· ·It is attached as Exhibit 3 to your

report.· I think it has like a number 3.3 on it

or some such?

· · A.· ·Yes.

· · Q.· ·Okay.· How did you obtain this document?

· · A.· ·I Googled it.

· · Q.· ·So you didn't reach out to anyone at

UNC's Department of Communication?

· · A.· ·No.· I found it online so I didn't have

to contact them.

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Page 74

· · Q.· ·Okay.

· · A.· ·I was delighted to see that it was dated

March of 2021.

· · Q.· ·Right.· Do you know -- you were

delighted to see that because of why?

· · A.· ·Because otherwise I would have to either

ask Jerry to ask them, I guess, or I would have

to ask them.· So I didn't have to contact them.

· · Q.· ·And do you know like the exact date in

March that this was published?

· · A.· ·No, I do not.

· · Q.· ·Okay.· So you don't know if it comes

before or after the offer made to Doctor

Calvente?

· · A.· ·I do not.

· · Q.· ·Okay.· Now, I see on pages 1 and 2 of

this document that there are reference to a

variety of other university publications that

Exhibit 3.3 is subject to, and those publications

are lettered A through G.· Do you see that?

· · A.· ·Right, yes.

· · Q.· ·Okay.· And just above that list of

publications the policy reads "the department's

policies are subject to those set forth in the

Page 75

following university publications".· Do you see

that?

· · A.· ·Yep.

· · Q.· ·Okay.· Did you then -- it looks like

these are hyperlinks.· Did you go and obtain

copies of all these other documents?

· · A.· ·Yes.· So I read those because it is very

common and the same at UW Madison.· You have --

you have overall university tenure expectations

that govern all the divisions of knowledge, again

whether it is neuroscience or classics.· So

that's to make sure there is consistency at the

highest level of the institution.· And then you

have them usually by the division of knowledge.

And then you have them specific to a given

department or a college of, you know, let's say

in terms of the -- something smaller like our --

like a smaller college, like the communications

at DePaul or human ecology at UW Madison.

· · · · · · · · · · · ·So it makes sense that the

departmental level, the departmental level has to

reflect the overall standards of the institution

so it all floats down.· But you also have to look

up to make sure there is consistency.· So knowing

Page 76

that, that's what I did.

· · Q.· ·So to answer my question, you did in

fact pull all of those?

· · A.· ·Yes.

· · Q.· ·Is there any reason you didn't provide

those to Mr. Bramwell in connection with the

subpoena?

· · A.· ·Because they are hyperlinked in the

document.

· · Q.· ·So is it your position that anything

hyperlinked in any of the documents you provided

to me or to Mr. Bramwell to provide to me are

documents that you reviewed?

· · A.· ·Yeah, especially in this situation. I

mean it is part of the document -- what the

College of Arts and Sciences and the Department

of Communication are relying on, and what they

are saying are their procedures are the

procedures of the institution, which are

hyperlinked in this document.· So those

hyperlinks are part of this document, and then

this document itself.

· · Q.· ·So my question is this.· There are a

number of documents that were provided to me by

Page 77

Mr. Bramwell in connection with the subpoena.

Many of those documents, some are articles, some

are publications from universities, have

hyperlinks in them.· My question is to you, in

every single document that was provided to me by

Mr. Bramwell that has a hyperlink in it, am I to

assume that you then clicked on all those

hyperlinks?

· · · · · · · · · · · ·And whether it was from

the U.S. News and World Report or whether it was

from the Chronicle of Higher Education, or

whether it was from one of these policy

documents, am I to assume that everywhere there

has been a hyperlink in a document provided to

me, that you reviewed and relied on that

information in forming your opinion?

· · · · · · · MR. BRAMWELL:· I'm going to object

to that question as vague and compound.· If you

have questions about a specific document, please

ask that.· But the way you have asked your

question is unanswerable by anyone.

· · · · · · · MS. WERMUTH:· Okay.· You're

coaching the witness.

· · · · · · · MR. BRAMWELL:· I'm not coaching the

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Page 78

witness.· Absolutely not.

BY MS. WERMUTH:

· · Q.· ·Okay.· You can answer.

· · A.· ·I would assume that you clicked on these

links.· That you know that I clicked on these

links in this document because the policy of the

department incorporates the policy of the

institution.· I don't know about the other

documents -- I can't remember about the other

documents.· I can't -- I don't know.· I mean I

can't remember every little link in the -- you

know, in the various articles.

· · Q.· ·Do you have a file that you created in

connection with your preparation of this report,

whether it's an electronic file or physical file

or both?

· · A.· ·Just the downloads of the -- actually I

think I just sent the links.· I just sent the

links.· And then I think Jerry forwarded them on

to you.

· · Q.· ·So my question is do you have a physical

or electronic file that you have maintained in

connection with your engagement as an expert in

this case?

Page 79

· · A.· ·Yes.· I mean I have downloaded the

various documents that were sent to me and the

report.· So yes.

· · Q.· ·So your file contains what?· Just so I'm

clear.

· · A.· ·Well, it contains my report.· It

contains the subpoena.· Probably some of the

articles that I downloaded.· I don't know. I

would have to look.

· · Q.· ·Is there anything in this document,

Exhibit 3.3, that you -- strike that.· Is there

anything in your report that relies upon the

hyperlinks at A, B, C, D, E, F, or G, on pages 2

-- 1 and 2 of Exhibit 3 to your report?

· · A.· ·I do not think so.· The only -- let me

just -- no.· All the quotations and all the

assessments of what the standards were for --

for tenure are from this document itself.

· · Q.· ·I'm going to ask you to look at Exhibit

4 again, please?

· · A.· ·Okay.

· · Q.· ·So this is the offer letter that Mr.

Bramwell sent to me in connection with the

subpoena response.· So I'm going to point you to

Page 80

just a couple of pieces of information on here.

In the first paragraph, I think you will note

that she was being recommended for appointment as

assistant professor.· Do you see that?

· · A.· ·Yes.

· · Q.· ·And then if you look at the second

paragraph, she -- Doctor Calvente is notified

that the tenure track assistant professor

appointment will be for a term of 4 years.· Do

you see that?

· · A.· ·Yes.

· · Q.· ·With the possibility of reappointment

for 3 more years.· Do you see that?

· · A.· ·Yes.

· · Q.· ·All right.· So please go back to Exhibit

3.3 which are the UNC guidelines, if you would?

· · A.· ·Okay.

· · Q.· ·All right.· And if you would go with me

please to page 7.· Let me know when you are

there.

· · A.· ·Yes.

· · Q.· ·Okay.· There is a section roman numeral

3, entitled criteria for specific personnel

actions.· Do you see that?

Page 81

· · A.· ·Yes.

· · Q.· ·And so for example, if you scroll down

to the next page, item C is associate professor

personnel actions, right?

· · A.· ·Right.

· · Q.· ·And then if you scroll back up to B, you

have assistant professor personnel actions?

· · A.· ·Right.

· · Q.· ·When you look at section 3B, it says

that the rank of assistant professor denotes a

tenure track position.· Do you see that?

· · A.· ·Yes.

· · Q.· ·And it says like we saw in the letter

with an initial appointment for 4 years.· Do you

see that?

· · A.· ·Yes.

· · Q.· ·Along with the possibility of

reappointment for 3 additional years.· Do you see

that?

· · A.· ·Yes.

· · Q.· ·And along with a review for the

conferral of tenure and promotion?

· · A.· ·Yes.

· · Q.· ·So at the time -- well, then if you go

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Page 82

on to B-1, so we are now at roman numeral 3, B-1,

the college sets forth the standards for an

initial appointment to assistant professor,

right?

· · A.· ·Yes.

· · Q.· ·Which is what Doctor Calvente received

an offer of right?

· · A.· ·Right.

· · Q.· ·Okay.· So she didn't receive an offer of

reappointment, right?

· · A.· ·Yes.

· · Q.· ·Okay.· And so the standard at this point

in time for initial appointment is the clear

promise of excellence in teaching and

scholarship.· Do you see that?

· · A.· ·Yes.

· · Q.· ·So at the point of time of an initial

appointment to assistant professor, the

individual need not yet have established a record

of excellence or achievement of excellent, right?

· · A.· ·In order to get hired as an institution

like UNC or UW Madison or Indiana or whatever,

you have to pretty much show that your chances of

tenure are very, very high, and that you have a

Page 83

strong record of publication that is going to be

tenurable.· Otherwise you are not going to be

hired.

· · Q.· ·Okay.· But here is my question, right?

You relied on the UNC College of Communication

Guidelines in forming your opinion, correct?

· · A.· ·Right.

· · Q.· ·Okay.

· · A.· ·Well -- yes, right.

· · Q.· ·Okay.· In fact you do a comparison of

those guidelines against DePaul's guidelines,

right?

· · A.· ·Right.

· · Q.· ·According to UNC's own guidelines, the

individual who is being appointed as an assistant

professor in connection with an initial

appointment has to show promise of excellence,

right?· That's what the guidelines state?

· · · · · · · MR. BRAMWELL:· Objection, asked and

answered.

BY MS. WERMUTH:

· · Q.· ·I'm sorry.· What was your answer?

· · A.· ·They have to show -- they have to

demonstrate tenurability, that they are

Page 84

tenurable.

· · Q.· ·Here is what the guideline states --

· · · · · · · MR. BRAMWELL:· The best evidence --

I'm just going to object.

· · · · · · · MS. WERMUTH:· You are interrupting.

I didn't even finish my question, Jerry.

· · · · · · · MR. BRAMWELL:· I can't hear

anything when you address me as Jerry.· The best

evidence of the guidelines is the guidelines.· So

go ahead.

· · · · · · · MS. WERMUTH:· Okay.· It is clear on

the record that Mr. Bramwell interrupted me

before my question was finished.· It is clear on

the record that he is coaching the witness by

providing answers.· And I'm going to ask the

question, and i expect that I'll get an answer to

the question.

· · Q.· ·I'm talking now, Doctor Zaeske, just

about what the guidelines provide, right?· So

according to UNC's College of Communication

Guidelines, as written in the document attached

to your report, the initial appointment of

assistant professor requires the promise of

excellence in teaching and scholarship, correct?

Page 85

· · · · · · · MR. BRAMWELL:· Objection, best

evidence.

BY MS. WERMUTH:

· · Q.· ·You can answer.

· · A.· ·So what you look for is that the --

there is a record of accomplishment in research

and teaching and to some degree outreach that is

going to project into tenurability, to getting

tenure.

· · Q.· ·I'm asking you what the guidelines

provide in writing --

· · A.· ·Right.

· · Q.· ·-- to a newly appointed assistant

professor, that the standards are such that there

is -- that the appointment requires the promise

of excellence in teaching and scholarship.· Is

that correct or is that not correct?

· · · · · · · MR. BRAMWELL:· Objection, best

evidence.· Best evidence.· Ms. Wermuth, we have

been through this now 3 times.· You have asked

the question 3 times.· The best evidence is the

document.· Nobody is arguing as to what the

document says.· The document is the document.

Please move along.

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Page 86

· · · · · · · MS. WERMUTH:· I'm not -- I am

entitled to an answer to the question. I

continue to object to your coaching the witness

on how to answer the question --

· · · · · · · MR. BRAMWELL:· I am not coaching

the witness.

· · · · · · · MS. WERMUTH:· Let me finish. I

allowed you.· I have not yet received an answer

as to whether or not this is what the guidelines

that Doctor Zaeske relied on in her report

actually provide.· What she keeps telling me is

what the institution would do.· I'm not asking

that question.· I'm asking what the guidelines

that she relied on provide.· That's my question.

· · · · · · · MR. BRAMWELL:· I'm not coaching the

witness -- are you finished?

· · · · · · · MS. WERMUTH:· Yes.

· · · · · · · MR. BRAMWELL:· Okay.· I am not

coaching the witness.· I object to that

characterization.· I find it offensive.· If you

believe I'm coaching the witness, I'll invite you

to call the Judge.· His telephone number is

312-435-6054, at least according to his website.

I'm not coaching the witness.· You have asked the

Page 87

question multiple times.· The witness has

answered to the best of her ability.

· · · · · · · · · · · ·Nobody is arguing as to

what -- you have the document in front of you.

She is answering your question.· If you don't

like the answer, ask another question, ask it

another way.· But you are now at the point where

you are starting to badger.

· · · · · · · MS. WERMUTH:· I'm entitled to an

answer to a very specific question.

· · Q.· ·Let me ask you this, Doctor Zaeske.· You

relied on the UNC College of Communication

Guidelines in forming your opinion, did you not?

· · A.· ·Yes.

· · Q.· ·And in fact, you quote several sections

of the guidelines specifically in your report,

correct?

· · A.· ·Yes.

· · Q.· ·You do not quote from the Section 3-B-1.

Am I right about that?

· · A.· ·I don't know because I would have to

look through my whole report to see if I quoted

from that section or not.

· · Q.· ·Okay.· So you're -- am I incorrect when

Page 88

I state that the guidelines that you relied on in

your report from UNC provide that an initial

appointment of assistant professor requires the

clear promise of excellence in teaching and

research?

· · · · · · · MR. BRAMWELL:· Objection, asked and

answered, and objection, best evidence.

BY MS. WERMUTH:

· · Q.· ·You can answer.

· · A.· ·The document itself states "the

standards for initial appointment are clear

promise of excellence in teaching and

scholarship," and etcetera.· I think the key

thing to understand is what is meant by clear

promise and what that -- of excellence, and what

that looks like in practice.

· · Q.· ·Okay.· But you don't refer to that --

well, strike that.· You didn't interview anybody

at the University of North Carolina, correct?

· · A.· ·No.

· · Q.· ·Okay.· And looking at Section 3-B, again

the tenure track position of assistant professor

comes with the possibility of reappointment,

correct?

Page 89

· · A.· ·Yes.· That's a standard -- that's

standard.

· · Q.· ·Okay.· Meaning that it is not guaranteed

that you will be reappointed, correct?

· · A.· ·Correct.

· · Q.· ·And it is not guaranteed that you will

achieve tenure either, correct?

· · A.· ·Correct.

· · Q.· ·In fact, you testified earlier today

that just in the last couple of months, you

non-renewed probationary faculty -- 2

probationary faculty because even though you

believed they had the promise of excellence at

the time of their hire, they did not achieve the

standards of the University of Wisconsin,

correct?

· · A.· ·That's correct.

· · Q.· ·All right.· Now, if you go to page 8?

· · A.· ·Page 8?

· · Q.· ·Yes.· Scroll to the next page.

· · · · · · · MR. BRAMWELL:· Page 8 of what, Ms.

Wermuth?

· · · · · · · MS. WERMUTH:· I'm sorry.· Thank you

for asking that question.· The UNC Department of

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Page 90

Communication Promotion and Tenure Guidelines,

3.3.

· · · · · · · MR. BRAMWELL:· Okay, thanks.

BY MS. WERMUTH:

· · Q.· ·So the same document we were looking at,

just the following page, Doctor.· Are you with

me?

· · A.· ·Yep.

· · Q.· ·Okay.· So at UNC, a faculty member could

come in from another institution with an initial

appointment at the rank of associate professor;

is that right?

· · · · · · · MR. BRAMWELL:· Objection, best

evidence.

· · · · · · · THE WITNESS:· It is true at any

institution.

BY MS. WERMUTH:

· · Q.· ·Okay.· But these guidelines provide

that, correct?

· · A.· ·Yes.

· · · · · · · MR. BRAMWELL:· Asked and answered.

Best evidence.

BY MS. WERMUTH:

· · Q.· ·So -- and that could come without

Page 91

tenure, right?· You could be appointed to

initially at UNC to associate professor without

tenure, according to these guidelines?

· · A.· ·I don't know that to be the case.· It

certainly -- that's not the case at my

institution, and at most strong research

institutions, because tenure and rank are not

desegregated.

· · Q.· ·But let's look at what --

· · · · · · · MR. BRAMWELL:· I'm sorry.· Were you

finished with your answer?

· · · · · · · THE WITNESS:· Yes.

BY MS. WERMUTH:

· · Q.· ·So looking at Exhibit 3.3, section C,

the first sentence says "initial appointment to a

rank of associate professor may be with or

without tenure."· Do you see that?

· · A.· ·Right.

· · Q.· ·So according to UNC's College of

Communication, they can bring in and appoint a

faculty member at the rank of associate professor

without tenure?

· · · · · · · MR. BRAMWELL:· Objection, best

evidence.

Page 92

· · · · · · · THE WITNESS:· Correct.

BY MS. WERMUTH:

· · Q.· ·And that was not what was offered to

Doctor Calvente, correct?

· · A.· ·Apparently based on the letter that you

showed me.

· · Q.· ·And in that same section, that first

paragraph under Subsection C, the last sentence

of the first paragraph indicates this.· "A

recommendation for promotion and/or tenure by the

department chair requires a careful assessment

informed by outside references about the

qualifications of the candidate and the

professional judgment of the assembled full

professors.· The professional judgment of the

tenured associate professors is also considered."

Do you see that?

· · A.· ·Yes.

· · Q.· ·So even in the College of Communication

at the University of North Carolina, there is a

peer review process for tenure, correct?

· · A.· ·Yes.

· · Q.· ·Okay.· And that peer review process

requires careful assessment, correct?

Page 93

· · A.· ·Yes.

· · Q.· ·By people within and outside of the

institution, correct?

· · A.· ·Yes.

· · Q.· ·So there is no guarantee at the time of

hire that an individual will in fact be tenured

at the University of North Carolina, correct?

· · A.· ·That's correct.

· · Q.· ·Okay.· Okay.· Now, at several points in

your report, Doctor Zaeske, you make assertions

about the job prospects of faculty denied tenure

at what you refer to at R2 schools?

· · A.· ·R2 schools, yes.

· · Q.· ·So we have been talking about R1 and R2

today, but I don't think for the record we have

clarified what that means.· So let's take a

moment to do that, okay?· What is -- when you say

R1 and R2, what are you referring to?

· · A.· ·Actually I think in the report I do

pretty clearly explain what that is -- what those

are and how those categories are determined, and

then I provided an exhibit that provides a

listing, as I recall.· So I think those are

pretty clearly defined.· But R1 --

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Page 94

· · Q.· ·But --

· · · · · · · MR. BRAMWELL:· I'm sorry, Ms.

Wermuth.· Do not cut my expert off as she is

speaking.

· · · · · · · MS. WERMUTH:· I'm sorry, Jerry.

· · · · · · · MR. BRAMWELL:· I'm sorry.· I can't

hear anything when you address me by my first

name.

BY MS. WERMUTH:

· · Q.· ·Please finish your answer, Doctor

Zaeske.

· · A.· ·So Exhibit 1 is R1 and R2 Carnegie

Classifications.· I'm just looking at my report.

So those were provided.· And then there is a

section in the report where I explain the

difference.· But the bottomline is that R1

institutions have higher expectations and higher

-- for research, and also really for teaching

standards, though there is usually less teaching.

And then they have more research expenditures and

tend to be more prestigious institutions in the

United States.

· · · · · · · · · · · ·R2 institutions have

lesser research expectations, generally have

Page 95

higher teaching loads, and tend to be less

prestigious institutions in the United States.

And then I provided a list of those from the --

this is the Carnegie Classifications.

· · Q.· ·So here is my question.· You and I have

been using R1 and R2 throughout the course of the

deposition.· So my question was for purposes of

the deposition, we need to clarify what we are --

what we mean when we use those classifications or

when we use those terms, R1 and R2.

· · · · · · · · · · · ·So let me ask you this.

You just said R2 institutions are less

prestigious than R1 institutions.· Are you

telling me that you think Dartmouth is a less

prestigious university than the University of

North Carolina?

· · A.· ·Well, Dartmouth has been reclassified in

the R1, if that's what you're getting at.· It was

demoted to an R2.· It was considered a loss of

prestige by Dartmouth.· Then they increased their

research expenditures, and they are back in the

R1 classification.· So it was absolutely

considered a loss of prestige for Dartmouth.

· · Q.· ·My question is when Dartmouth was an R2

Page 96

classification, did you understand that to be a

less prestigious institution than the University

of North Carolina?

· · A.· ·Yes.

· · Q.· ·Okay.· So the Carnegie Classifications,

that's what we are talking about when we refer to

R1 and R2?

· · A.· ·Correct.

· · Q.· ·Who administers the Carnegie

Classifications?

· · A.· ·They had been administered in the past

by Carnegie, but now they are administered

through the university of -- through a part of

the education school at the University of

Indiana.

· · Q.· ·And what is the methodology that the

University of Indiana uses -- I think it is

actually Indiana University, uses to classify

schools under the Carnegie Classifications?

· · A.· ·They have a number of criteria, but the

major one has to do with research expenditures,

or in other words, the amount of money generated

by research, by research grants, and spent on

research.· That's the major -- that's the major

Page 97

metric that's used.

· · Q.· ·Okay.· So one of the metrics is how much

the institution actually spends on research,

right?

· · A.· ·Right.

· · Q.· ·Another metric is how many research

doctorates are conferred?

· · A.· ·Right.

· · Q.· ·Another metric is the number of

non-faculty research staff at the institution,

correct?

· · A.· ·Right.

· · Q.· ·Those are the metrics that are used; is

that right?

· · A.· ·Right.

· · Q.· ·Okay.· So Carnegie does not measure

volume of scholarly output, correct?

· · A.· ·I don't think they -- no.· No.· They

don't do that per se like academic analytics or a

product like that.

· · Q.· ·So they don't measure the quality of the

scholarly output either?

· · A.· ·I would say not directly, but indirectly

once -- the ability to get particularly Federal

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Page 98

grants is a measure of the quality of the

research.

· · Q.· ·Okay.· But we are talking about R1 and

R2 classifications, right?· So when Indiana

University is pulling data every 3 years to come

up with who -- which institution is ranking

where, it is not looking at the quality of

scholarly output, correct?

· · · · · · · MR. BRAMWELL:· Objection, asked and

answered.

· · · · · · · THE WITNESS:· Yes.· As I said,

there is an indirect measure by -- in order to

get an NIH, NSF, ACLS grant, you have to have

high quality scholarship, and they are peer

reviewed, and it is competitive, and quality is

assessed in that way.· So those are measures of

quality.

BY MS. WERMUTH:

· · Q.· ·Are the researchers at Indiana

University who compute the data for purposes of

the Carnegie Classifications looking at the

content and substance of grants, grant awards, or

scholarly output?

· · · · · · · MR. BRAMWELL:· Objection,

Page 99

foundation, and objection, asked and answered.

· · · · · · · THE WITNESS:· So they are not

looking directly, but they are looking at the

success of those grants in generating dollars.

BY MS. WERMUTH:

· · Q.· ·Okay.· Carnegie does not measure

educational outcomes for students, correct?

· · A.· ·Correct.

· · Q.· ·All right.· So I would like to look at

your report again, not the exhibit, but going to

page 1 of your report, and the paragraph that

reads basis for opinion as a header.· Tell me

when you are there.

· · · · · · · MR. BRAMWELL:· I'm sorry.· Can you

help me with the page, Ms. Wermuth?

· · · · · · · MS. WERMUTH:· Page 1

· · · · · · · MR. BRAMWELL:· Page 1.· Thank you.

· · · · · · · THE WITNESS:· Okay.

BY MS. WERMUTH:

· · Q.· ·Are you there?

· · A.· ·Yes.

· · Q.· ·Okay.· Great.· So that big paragraph at

the bottom of the second half of the page.· About

halfway down, there is a sentence that begins "R2

Page 100

universities have high research activity."· Do

you see that?

· · A.· ·Page 2 --

· · Q.· ·No.· Page 1.

· · A.· ·Page 1.· Sorry.

· · Q.· ·Second paragraph, halfway down that

second paragraph, the sentence --

· · A.· ·Right, okay.· Yeah, yeah.

· · Q.· ·You are with me?

· · A.· ·Yes, yes.

· · Q.· ·So it says "R2 universities have high

research activity, but they expect professors to

be teachers first."· Do you see that?

· · A.· ·Yes.

· · Q.· ·What is the source -- well, strike that.

Would you look please at Exhibit 7 in the -- let

me just make sure I have the right exhibit.

Yeah.· Exhibit 7 in the packet that was sent

yesterday.

· · A.· ·Yes.

· · Q.· ·Okay.· This was material that was

produced to me in connection with the subpoena

served on you, okay?· So this is something that

you looked at in preparing the report?

Page 101

· · A.· ·Yes.

· · Q.· ·Is there anything in here that says R2

universities expect their professors to be

teachers first?

· · A.· ·Well, I don't know about this article

per se -- well, first of all, look, these

articles are, you know, I wanted you to see that

my professional knowledge is not -- it's not just

me.· So there are other sources that are saying

this.

· · · · · · · · · · · ·But either in this article

or others that I have provided, it is clear that,

and it is stated directly that at R2

institutions, the teaching load -- what we mean

when we say here expected to be a teacher first,

your teaching load might be 4-4, 4 courses a

semester in the Fall and Spring, or sometimes

they are on quarter systems, or whatever, or 3-3.

Whereas at an R1 institution, you are considered

and you are asked to be a researcher first.· So

your teaching load is going to be something like

2-2 or even 2-1 or 1-1 because teaching --

because research is first.· That's what is meant.

· · Q.· ·So I have a couple of follow-up

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Page 102

questions.· First of all, do you know what Doctor

Calvente's expected teaching load will be at the

University of North Carolina?

· · A.· ·No, I don't.

· · Q.· ·Do you know what her teaching load was

at DePaul University?

· · A.· ·No.

· · Q.· ·So you referred to Exhibit 7 as an

article, but let me just clarify for the record

what I think this is.· This is a download from

the website where the Carnegie Classifications

are described.· Am I right about that?

· · A.· ·That's right.

· · Q.· ·So this is a publication from the folks

who do the Carnegie Classifications, correct?

· · A.· ·Correct.

· · Q.· ·So it is not really an article?

· · A.· ·Right.

· · Q.· ·Okay.· Fair enough.· And am I correct

though that there is nothing in how Carnegie

describes their descriptions of classifications

or methodology that indicates that an R2 school

requires -- I'm sorry, expects professors to be

teachers first?

Page 103

· · A.· ·No.· They are not focused on that.

· · Q.· ·Okay.· And then if you would look at

Exhibit 8 in the packet sent to you last night?

· · A.· ·Yes.

· · Q.· ·Okay.· Can you tell me what this is?

· · A.· ·It looks like the Carnegie

Classification for DePaul.

· · Q.· ·And this is something that you looked at

in preparing your opinion?

· · A.· ·Probably I did, yes.· I don't remember.

· · Q.· ·Okay.· I'll just represent that it was

produced to me by Mr. Bramwell in connection with

the subpoena served on you, okay?

· · A.· ·Okay.

· · Q.· ·So in looking at this document, I see

that it is -- I'm looking at the second page of

it.

· · A.· ·Uh-huh.

· · Q.· ·And there is like a chart that says

classification and then category with 2 columns.

Do you see that?

· · A.· ·Right.

· · Q.· ·Okay.· And so under the column that says

classification, there is a line for basic.· Do

Page 104

you see that?

· · A.· ·Yes.

· · Q.· ·And it says doctoral -- category is

doctoral universities high research activity?

· · A.· ·Yes.

· · Q.· ·So high research activity is R2?

· · A.· ·Right.

· · Q.· ·Very high is R1?

· · A.· ·Yes.

· · Q.· ·But nevertheless, high research

activity, correct?

· · A.· ·Yes, but -- yes.· The differences are

significant.

· · Q.· ·Okay.· There doesn't -- I don't see

anything in here that suggests that this is an

institution that expects professors to be

teachers first.· Do you see anything in here that

says that?

· · · · · · · MR. BRAMWELL:· Objection, best

evidence.· Go ahead.

· · · · · · · THE WITNESS:· I don't know how it

compares to the other -- well, the Carnegie

classifications, the IU classifications, again,

they are about research.

Page 105

BY MS. WERMUTH:

· · Q.· ·Right.· Thank you.· And then when you

look at the undergraduate profile on this page,

do you see that?

· · A.· ·Yes.

· · Q.· ·It says 4 year, full-time, selective,

higher transfer-in.· Do you see that?

· · A.· ·Yes.

· · Q.· ·So it is categorized as a selective

undergraduate profile, right?

· · A.· ·Yes.

· · Q.· ·Meaning the students are high quality?

It is a selective institution?

· · · · · · · MR. BRAMWELL:· Objection, form.

Objection, foundation.· Objection, assumes facts

not in evidence.

BY MS. WERMUTH:

· · Q.· ·You can answer.

· · A.· ·So I don't know how the other

institutions -- I mean it might be the same

arguably as the research where there is high

research activity and very high research

activity.· It might be selective or very

selective.· So I don't know.

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Page 106

· · Q.· ·You don't know.· Okay.· Can you look at

Exhibit 6, please?

· · A.· ·Do we know how many doctorates DePaul

produces every year?

· · Q.· ·Do you know the answer to that question?

· · A.· ·I don't know, but I think that's a good

question.

· · Q.· ·It is not something you looked up for

purposes of forming your opinion, correct?

· · A.· ·Yeah, but you are making me think that

it would have been a good thing.· You want me to

look at number 9?

· · Q.· ·No.· Number 6, please.

· · A.· ·News and announcements?

· · Q.· ·Yes.· This is another download from the

Carnegie Classifications website?

· · A.· ·Right.

· · Q.· ·This was produced to me by Mr. Bramwell

in connection with the response to the subpoena.

I'm just curious how did this document -- how did

you rely on this in forming your opinion?

· · A.· ·I think I wanted to know the -- how

recent the classifications had been updated and

also to establish that, you know, I thought the

Page 107

statement that said the Carnegie classification

has been the leading framework, so on, was

explanatory and helpful.

· · Q.· ·Well, it says "it has been the leading

framework for recognizing and describing

institutional diversity in the U.S. higher

education for the past 4 and a half decades." So

what about that sentence helped you form the

basis of your opinion?

· · · · · · · MR. BRAMWELL:· Objection as to

form.· Objection as to format.· Objection as to

misstates her testimony.· Objection, assumes

facts not in evidence.

· · · · · · · THE WITNESS:· So the bottomline is

I wanted to show that I was looking at updated

information.

BY MS. WERMUTH:

· · Q.· ·Okay.· So let's take a look then, you

said that -- so this is Exhibit 3.1.· You said

that you attached to your report the listing of

R1 and R2 research classifications.· Is that

right?

· · A.· ·Right.· Correct.

· · Q.· ·Are you with me there?

Page 108

· · A.· ·Yes, correct.· Yes.

· · Q.· ·So where -- so this was produced to me

as -- it was attached to your report as a Word

document.· So is this a document that you

personally created?

· · A.· ·I think I might have just block copied

it and dropped it into a Word doc, because I

couldn't figure out otherwise how to get it

preserved in a document form.

· · Q.· ·Where did you find this?

· · A.· ·I think -- isn't the URL right on there?

· · Q.· ·I don't see it.· Can you tell me where

you see it?

· · A.· ·Exhibit 3?

· · Q.· ·Point 1.

· · A.· ·Okay.· I guess I did not include the

URL, but I think I took it from the website of

the -- the IU website.

· · Q.· ·Okay.· Can you confirm for me that

everything in the left column is an R1 school and

everything in the right column is an R2 school?

· · A.· ·I trust the source that I have used, so

yes.

· · Q.· ·Okay.· And that would follow through all

Page 109

of the pages?· So page 2, page 3, page 4,

everything on the left side of the sheet is R1

and everything on the right side of the sheet is

R2, correct?

· · A.· ·Yes.

· · Q.· ·Now, earlier we had talked about Yale

being an R1 school.· I don't see Yale -- oh,

wait.· I see it as an R2 school on page 3.· Is

that consistent with your knowledge of --

· · A.· ·Actually earlier you said Yale was an R1

school, and I said no, Yale is an Ivy League

school.

· · Q.· ·Okay.· So you -- it is your

understanding that Yale is not an R1 school?

· · A.· ·I find that surprising, but apparently.

· · Q.· ·What about are you familiar with the

University of Chicago?

· · A.· ·Yes.

· · Q.· ·And according to the document that you

produced, the University of Chicago also is an R2

school?

· · A.· ·Surprising.

· · · · · · · MR. BRAMWELL:· I'm sorry, Ms.

Wermuth.· I apologize.· What page?

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Page 110

· · · · · · · MS. WERMUTH:· 2.· It is not

numbered.· It is at the very top of the right

column.

· · · · · · · MR. BRAMWELL:· I'm sorry.· I see

it.

BY MS. WERMUTH:

· · Q.· ·Do you think that's accurate, Doctor

Zaeske?

· · A.· ·I think it is surprising, but I don't

know why it would be wrong on this list.· I don't

see Chicago.

· · Q.· ·Page 2?

· · A.· ·Is it under University of Chicago?

· · Q.· ·Correct.

· · · · · · · MR. BRAMWELL:· It may be easier to

share your screen.

BY MS. WERMUTH:

· · Q.· ·Go to the second page of the document.

Don't look alphabetically.· For whatever reason

these are not in alphabetical order.

· · A.· ·Okay.· That's probably why.· Oh yes,

yes, I do see it.· That is strange.

· · Q.· ·Are you familiar with Northwestern

University?

Page 111

· · A.· ·Certainly.

· · Q.· ·Do you see Northwestern appearing under

the R1 or R2 list on that document that you

provided?

· · A.· ·I do not.

· · Q.· ·So according then to your theory since

Northwestern is not an R1 nor an R2 school, it

would be less prestigious than DePaul University

which is an R2 school?· Is that fair?

· · A.· ·I would not agree with that.

· · Q.· ·And okay.· Isn't your theory premised on

R2 schools being less prestigious than R1

schools?

· · A.· ·Well, you are making a leap in logic

here from the inclusivity of a list to what my

argument is.· You know, there is -- I'm surprised

that Northwestern is not on this list, and I

don't know -- I don't know why, and I can't

explain that.· But that doesn't mean that I

wouldn't -- I mean if we looked at the research

expenditures of Northwestern and the number of

doctorates produced and compared that to DePaul,

I think we would have data to indicate that there

is a prestige difference there.

Page 112

· · Q.· ·Based on research dollars?

· · A.· ·Based on research dollars.

· · Q.· ·Even though Northwestern doesn't show up

on your list of R1 or R2 schools?

· · · · · · · MR. BRAMWELL:· Objection to the

characterization of it as her list.

· · · · · · · THE WITNESS:· Yeah.· It is this

list.

BY MS. WERMUTH:

· · Q.· ·Well, this is a list that you said that

you cut and pasted, right?

· · A.· ·From a website, yeah.· I will find out

what the source was.

· · Q.· ·Yeah.· I'm going to ask for that URL

because I'm not sure that this is an accurate

document.

· · · · · · · MR. BRAMWELL:· Are you accusing my

client -- not my client.· Are you accusing my

expert of producing inaccurate information, Ms.

Wermuth?

· · · · · · · MS. WERMUTH:· With Yale and

University of Chicago being listed as R2 and

Northwestern being excluded, I think if I went on

the Carnegie Classification website and looked at

Page 113

their data spreadsheets, I think I would see

something different.· That's what I'm saying.

I'm not saying it is intentional.· I don't know

the source of this document.· That's why I'm

asking these questions.· I'm not accusing anyone

of anything.· I'm trying to ask questions about

documents that were produced to me in response to

a subpoena that were allegedly relied upon by the

expert in preparing her opinion.· That's what I'm

asking, Jerry.

· · · · · · · MR. BRAMWELL:· I'm sorry, Anna. I

have asked you multiple times to give me the

courtesy --

· · · · · · · MS. WERMUTH:· Mr. Bramwell.

· · · · · · · MR. BRAMWELL:· Thank you.

· · · · · · · MS. WERMUTH:· You can call me Anna

any time.· I'm not offended.

· · Q.· ·Go ahead, Doctor.

· · A.· ·So this listing really was just to

provide a sense of what these -- what R1 and R2,

you know, classifications look like.· They did

not I would say inform my decision.· I mean it is

really about the general understanding of an R1

and R2 institution as opposed to the overall

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Page 114

inclusivity of a list.

· · Q.· ·But you did attach it to your report,

Doctor?

· · A.· ·Yes.

· · Q.· ·All right.· I just want to finish out

some discussion about the Carnegie

Classifications.· So if you would please look at

Exhibit 11?

· · A.· ·Okay.

· · Q.· ·Okay.· This is the publication that you

list among the facts and data considered in

forming your opinion in your report.· Okay?

· · A.· ·Right.

· · Q.· ·What is this publication?· I can't

really tell from what was provided to me.

· · A.· ·It is a center that -- you know, a lot

of institutions have centers that focus on

educational -- educational studies and

educational politics and educational policies, I

should say.· And this is a publication by an

expert in higher ed about the Carnegie.

· · Q.· ·Okay.· And do you know what school the

James G. Martin Center for Academic Renewal is

associated with?

Page 115

· · A.· ·I cannot recall.

· · Q.· ·This is not a peer reviewed paper,

correct?

· · A.· ·No.· It is in an industry journal or an

industry, you may call it a magazine as opposed

to a journal.

· · Q.· ·You would agree with me that this author

actually points out the problems with relying on

the Carnegie Classifications?

· · A.· ·Yes.

· · Q.· ·And then Exhibit 14, if you can look at

that with me, please?

· · A.· ·Okay.

· · Q.· ·This is another article that was listed

among the facts and data considered by you in

preparing your report.· Are you familiar with

this article?

· · A.· ·Yes.

· · Q.· ·And this is an article from the

Washington Post, right?· So that's a newspaper?

· · A.· ·Correct.

· · Q.· ·So this is a news article about

Dartmouth falling out of the R1 classification?

· · A.· ·Right.· It is excellent evidence of the

Page 116

importance of the Carnegie Classifications in the

prestige of an institution.

· · Q.· ·You call a newspaper article excellent

evidence of what?· I'm sorry.

· · A.· ·So the prestige of an institution which

drives the -- so there is multiple ways that

there is prestige of institutions.· There is

prestige within the academic community itself,

and there is also the prestige with potential --

with alumni and also with potential applicants to

an institution, right?· And when Dartmouth fell

out of the Carnegie R1's, there was, you know,

ripples.· There were ripples in the academic

community.· There were ripples among alumni.

There were concerns in the institution about

enrollments.· There were concerns about whether

or not a Dartmouth degree was as worthwhile as it

has been in the past.

· · · · · · · · · · · ·So this is an article that

just illustrates that even in public, in the

lighter public opinion, that this change in the

Carnegie ranking was -- it is a big deal.

· · Q.· ·Are you familiar with Kevin Kinser?

· · A.· ·No I'm not.

Page 117

· · Q.· ·Well, according to Kevin Kinser who is

quoted in this article in the first page, and

according to the article, which, again, is a news

article, "he is an associate professor of

Educational Administration and Policy Studies at

the State University of New York at Albany.· He

is on the advisory board of the Carnegie

Initiative.· He is quoted as saying "the label

should not be viewed as ranking or rating, but

merely a description based on data."· Yes?

· · A.· ·Well, he said it should not be viewed,

but that's because it is viewed.

· · Q.· ·He goes on to say that "For Dartmouth or

any other school to fall out of R1 category

shouldn't be considered some deficiency in the

institution."· Do you see that?

· · A.· ·Right.· He needed to say that.

· · Q.· ·The basis for your statement?

· · A.· ·Well, I can tell you right now I am

hiring a professor away from Dartmouth who

doesn't want to be there because it doesn't have

graduate education, and it is really focused on

undergraduate education, and it is not a strong

research institution.· It is back in the R1, but

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Page 118

it is on the edge.

· · Q.· ·Do you know where Dartmouth ranks under

U.S. News World and Report as compared to

University of North Carolina?

· · A.· ·They are different -- well, there are

many different rankings in U.S. News and World

Report.· Dartmouth is known as a very -- as a

very good undergraduate school.· It is not a

great place if you are a researcher.

· · Q.· ·But you did rely on U.S. News World and

Report general rankings, right, for purposes of

forming your opinion?· In those general rankings,

do you know where Dartmouth falls as compared to

UNC?

· · A.· ·I do not.

· · Q.· ·So I think just to make sure this is

clear on the record, the Washington Post article

is not a peer reviewed publication, right?

· · A.· ·It is not, which I think is irrelevant.

· · Q.· ·Okay.· Okay.· Exhibit 22, please?

· · A.· ·Exhibit 22?

· · Q.· ·Yes.

· · A.· ·Okay.

· · Q.· ·All right.· So this article is from

Page 119

Inside Higher Ed.· Do you see that?

· · A.· ·Yes.

· · Q.· ·Which again is just sort of like an

industry magazine type, right?· It is not a peer

reviewed publication?

· · A.· ·Right.

· · Q.· ·Okay.· And this article seems to be

explaining that there is a new sort of

professional doctoral categorization that

Carnegie will be using, correct?

· · A.· ·Right.

· · Q.· ·Okay.· And according to this article,

this new category will mean that a small handful

of universities will move up to R1 designation?

· · A.· ·Right.

· · Q.· ·All right.· So let's go back to Exhibit

3, your report.· And by the way, I know it is

12:30.· I'm happy to keep going, but I'm happy to

break if folks need 15, 20, 30 minutes.· Gina, I

know your fingers are working hard.· So if folks

need a break, I'm happy to take a break.· Just

tell me if now is the right time and how much

time people would like.

· · · · · · ·THE WITNESS:· I'm doing fine.· It

Page 120

depends on what others say.

· · · · · · ·MS. WERMUTH:· Gina, do you need a

break?

· · · · · · ·COURT REPORTER:· If I could have

like 15 minutes, that would be perfect.

· · · · · · · MR. BRAMWELL:· Since we are at the

noon hour, and the court reporter obviously is

the most important person in the room, did you

want to take a half hour for lunch?· Is that

enough time, Doctor Zaeske?

· · · · · · · THE WITNESS:· Yes, that's fine.

· (Break taken from 12:32 to 1:03)

BY MS. WERMUTH:

· · Q.· ·So Doctor Zaeske, I'll just remind you

that even though we broke, you are still under

oath.· You understand that?

· · A.· ·Thank you, yes.

· · Q.· ·Okay.· So we were going to start or

return to your report.· So if you would go to

Exhibit 3 with me for a moment, I would

appreciate that.

· · A.· ·Yes.

· · Q.· ·Couple of things I just wanted to ask

you about on page 1 in the second paragraph, near

Page 121

the end.· So there is a sentence about a third of

the way up from the bottom that begins with

"moreover, as a member of the advisory board of

the Carnegie Initiative."· Do you see that?

· · A.· ·Yes.

· · Q.· ·And then you go on to say that this

person explained that R1 institutions are

considered to be, and then there is quotation

marks, "the pinnacle of higher education".· So it

looks like that is a quote, but I don't see

attribution here.· So I don't know who this

person is and where this statement was made.· Do

you have that information?

· · A.· ·Right.· So it is a quote, and it is in

one of the articles that I cited in the -- in the

list of documents and data considered here.· I an

could back and let you know if it is in the

Mendenhall or the Anderson.· It is probably one

or the other of those.

· · Q.· ·Or perhaps in the Washington Post

article?

· · A.· ·Or perhaps in that one, yeah.

· · Q.· ·All right.· And then you go on to talk

about rankings by College Factual and rankings by

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Page 122

U.S. News and World Report.· Do you see that?

· · A.· ·Yes.

· · Q.· ·So what is College Factual?

· · A.· ·So these -- okay.· So these are commonly

-- both U.S. News and World Report and College

Factual are rankings of institutions that are

highly available to the public, as opposed to

let's say the NRC rankings, which are rankings of

doctoral institutions and doctoral programs, or

academic analytics, which are more available to

academic administrators and academics.

· · · · · · · · · · · ·So I provided these

frankly because I thought they would be more

accessible to the court.

· · Q.· ·Okay.· So you chose to use the

publically available ones as opposed to the

sources that are used in the academic community?

· · A.· ·Right.

· · Q.· ·Okay.

· · A.· ·Well, also DePaul doesn't have a

doctoral program in communications, so it

wouldn't even be considered.· It wouldn't even be

included, so it is not possible to use that.

· · Q.· ·Okay.· And so as you testified earlier,

Page 123

U.S. News and World Report has a variety of

different types of rankings, right?

· · A.· ·Yes.

· · Q.· ·For your proposition here, UNC is ranked

28 as compared to DePaul's 124, what ranking

group were you looking at?

· · A.· ·So I was looking at the rankings of --

well, as it says "U.S. News and World Report

ranking of colleges offering a communications

major".· So I'm not looking at the overall

ranking of DePaul and the overall ranking of UNC.

I'm looking at the ranking of them within

institutions that offer a communication major.

· · Q.· ·Okay.· And do you know the methodology

that U.S. News and World Report uses to make the

rankings it makes or publishes the rankings it

makes?

· · A.· ·So it makes a number of different

rankings as I mentioned.· So its overall

institutional rankings, there are many things

included in overall rankings of institutions.· It

has to do with number of -- it has to do with

number of applications to attend the institution

and number of students admitted.· It has to do

Page 124

with -- it does have to do with research and

ranking of research programs.· It also includes

things such as number of living alumni who have

made contributions to an institution.· You know,

so there are a lot of different factors that U.S.

News and World Report include in their

assessment.

· · · · · · · · · · · ·And you know, it's largely

reputational, as opposed to again, like the NRC,

or academic analytics, which is -- these really

look at the number of articles and books

published and the venues in which they are

published and the number of awards that are

garnered through research and so on.· So it is a

very different kind of ranking.

· · Q.· ·Right.· So there is a fair amount of

subjectivity, you call it reputational, but

subjectivity that goes into that particular

ranking?

· · A.· ·I would disagree with that.· It is not

about subjectivity.· It is about using different

metrics for making an assessment.· They are

measuring different things.

· · Q.· ·Okay.· Including things like feedback

Page 125

from folks who use the service, right?

· · A.· ·Feedback from folks who use which

service?

· · Q.· ·The ranking service.

· · A.· ·You mean the U.S. News and World Report

rankings?· Oh, you mean feedback about the

institutions themselves?

· · Q.· ·Well, when I -- so do you know whether

or not the U.S. News and World Report uses -- I

should say employs user feedback in its ranking

methodology?

· · A.· ·I don't know.

· · Q.· ·Okay.· Do you know whether it uses

discussions with schools in its ranking

methodology?

· · A.· ·I'm not aware.

· · Q.· ·Okay.· Now, there are a number, Doctor

Zaeske, a number of places in your report where

you talk about the job prospects for faculty

denied tenure from Carnegie Classification R2

schools, correct?

· · A.· ·Yes.

· · Q.· ·Okay.· So for example, on page 1 in the

first paragraph, you say "professors who are

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Page 126

denied tenure at R2 universities such as DePaul

almost never are hired at R1 universities such as

UNC because their record has been assessed as

untenurable."· Do you see that?

· · A.· ·Yes.

· · Q.· ·You go on to say "faculty denied tenure

at R2 universities typically find employment at

institutions with less rigorous tenure standards

such as community colleges, technical schools,

and high schools, or they leave the academy".· So

for those 2 sentences that I just read, can you

tell me the source of your data here?

· · A.· ·Sure.· So I am speaking from

professional experience and a number of examples

that I know from both R2 and R1s.· But then I

also, you know, provided -- I thought it would be

helpful to see that it is not just me talking

from my experience, so provided a number of

articles that backed up that claim that talked

about experience of individuals who were denied

tenure at R2 and R1 universities.

· · Q.· ·Okay.· So you are talking about some of

the feature stories that you attached to your

report or referenced in your report; is that

Page 127

right?

· · A.· ·Right.

· · Q.· ·Which are primarily anecdotal stories

from individuals who actually experienced tenure

denial, right?

· · A.· ·Right.

· · Q.· ·Some of those articles don't say whether

or not the individual was denied tenure at an R2

school.· Would you agree with that?

· · A.· ·Right.

· · Q.· ·And many say that tenure denial helped

them actually find the career that they

preferred, right?

· · A.· ·Right, right, which was not at an R1

institution.

· · Q.· ·Okay.· Although for those who went to

other institutions into tenure track positions,

in those articles, I didn't see one article where

that happened and the individual identified

whether the school they were denied tenure at or

the school where they landed was an R1 or an R2;

am I correct on --

· · · · · · · MR. BRAMWELL:· Objection.

· · · · · · · MS. WERMUTH:· I didn't finish the

Page 128

question.

· · Q.· ·Or am I misreading those?

· · · · · · · MR. BRAMWELL:· Objection as to

vague, and objection, Counsel was testifying.

BY MS. WERMUTH:

· · Q.· ·Did I misread any of those articles?

· · A.· ·So all the articles that I provided, and

all the articles that I found, were examples of

individuals who had been denied tenure at R1 or

R2 institutions, and they were unable to be hired

at an R1 institution, and I think none of them,

as I recall, were hired into tenure track

positions.

· · · · · · · · · · · ·And yes, there was the one

article by -- her last name -- either her first

name or last name was Grace, talked about finding

out that she was happier at a non -- in a

non-tenure track job, though she was continuing

to strive for a tenure job position.· But I can

-- you know, I have at least a handful if not

more examples of individuals who were denied

tenure even at an R1 institution and have not

been able to find tenure track positions at R2s

or anywhere.

Page 129

· · · · · · · · · · · ·I mean tenure denial or

non-renewal is kind of a kiss of death.· It is

very, very hard to be hired at another

institution much less a higher one than the --

higher ranked and higher in prestige and higher

in publishing expectations than one has been

denied tenure at.

· · Q.· ·So I just want to be clear then because

you make some assertions that say things like

"almost never", "almost never are hired at R1

universities".· "They typically find employment

at institutions with less rigorous tenure".· Very

rarely able to land".· Generally move to lower

ranked universities".

· · · · · · · · · · · ·I just want to make clear

that those assertions are not based on any

statistics or data that you have either compiled

or reviewed in connection with preparing your

report?

· · A.· ·So first of all, the conclusion is based

on my experience and the examples I have seen,

and then examples I was available to find.· And

these happen to be anecdotal because I could find

no data on post-employment after tenure denial.

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Page 130

So you know, I certainly looked for statistics on

that, but it is not out there.

· · Q.· ·Okay.· So I would like to look at the

articles that you cited though because I'm

struggling -- well, let me ask you this.· Can you

look at Exhibit 23, please?

· · A.· ·Okay.

· · Q.· ·Can you tell me if there is anything in

this -- well, strike that.· This is an article

that comes from the Chronicle of Higher

Education, right?

· · A.· ·Yes.

· · Q.· ·Which again is not a peer reviewed

publication, correct?

· · A.· ·That is correct.

· · Q.· ·Okay.· And I don't see anything -- so if

I'm wrong, please tell me, because I would like

to know.· Is there anything in here that talks

about what is the fate of an individual -- or I'm

sorry, what is the fate of a faculty member who

is denied tenure at an R2 school?

· · A.· ·I would have to take a moment to, you

know, look at it conclusively.· And this, you

know, goes back to your question about, you know,

Page 131

the language -- you know, I'm careful in what I'm

going to say yes or no to.· So I'm not going to

make a sweeping statement in my report like in

all cases, someone who is denied tenure is going

to do this or that.· I'm going to say typically

or almost always or whatever.

· · · · · · · · · · · ·So I think that's

responsible because we don't -- it is not helpful

to speak in universals.· I can't know every

single case.· But in most cases, or typically

that is what has happened.· And you just asked me

to, you know, make a very precise statement about

something that I would have to look at closely,

which I'm happy to do, but I would need a little

time here to read it through.

· · · · · · · MR. BRAMWELL:· And we will count

that against your time.

BY MS. WERMUTH:

· · Q.· ·Well, look, we can -- you can take the

opportunity -- I just want to make sure I

understand.· I mean I know that you read this.

You cite this article as something you relied on

or considered in forming your opinion.· And so

your opinion is that it is very rare for folks,

Page 132

for faculty denied tenure at an R2 to get hired

at an R1.· And I want to make sure I understand

where -- what your source data is.· And I don't

know if this article is source data for that

specific proposition.

· · A.· ·All right.· So this is an article about

-- so the mindset and moving on from, appealing,

and doing the next thing, and what a person might

do after getting tenure denial.· So there aren't

a lot of articles or data out there about what

people do after tenure denial, so I looked at

what I could find.· I was asked to provide you

with information or documentation of what I

looked at, and I looked at this, so I have

provided it.

· · Q.· ·Would you agree that this Exhibit 23 is

really more of like an advice column?

· · A.· ·I think it is about sharing experiences

and yeah, and some guidance.

· · Q.· ·Okay.· Can you look at Exhibit 16?

· · · · · · · MR. BRAMWELL:· I'm sorry.· 1, 5 or

1, 6?

· · · · · · · MS. WERMUTH:· 1, 6.

· · · · · · · THE WITNESS:· Okay.

Page 133

BY MS. WERMUTH:

· · Q.· ·This is another article that you relied

on in forming your opinion.· Do I understand that

correctly?

· · A.· ·Yes.

· · Q.· ·Okay.· And this is also from the

Chronicle of Higher Education, correct?

· · A.· ·Correct.

· · Q.· ·And as I understand it, Peter Ellenbogen

is a pseudonym of someone that doesn't otherwise

want to be identified.· Do you understand that as

well?

· · A.· ·Yes.

· · Q.· ·According to Peter's story, he was

denied tenure at a private institution and then

did find a tenure line job at a public

institution, right?

· · A.· ·You know, again, I would have to look at

it for a minute here because there were a lot of

articles.· Well, I don't think it is a tenure

track position.· "I now work at a public

university."· I'm not sure it is a tenure track

position.

· · Q.· ·Okay.· So it is not clear one way or the

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Page 134

other if he obtained a tenure track position,

right?

· · A.· ·Right.· It is not clear.· And in fact, I

think a key thing here is that he indicates "I

had no illusion that the administration would

rubberstamp the decision to hire a faculty member

who had been denied tenure by a university that

rarely does so".

· · Q.· ·That's his personal experience, right?

· · A.· ·Right.

· · Q.· ·And we don't know if his tenure denial

was from an R2 school, correct?

· · A.· ·Right.· And if it was from an R1 school,

even more so the case.

· · Q.· ·But from this article, we can't tell

what type of institution he was denied tenure

from, correct?

· · A.· ·Correct.

· · Q.· ·And we can't tell what type of

institution he found subsequent employment with,

correct?

· · A.· ·Right.· But the point is that whether

one is denied tenure from an R1 or an R2

institution, it carries a taint, and it makes it

Page 135

very hard to get hired.· So again, in the absence

of, you know, like statistical data, what I'm

providing is first of all, I have 11 years of

experience or more than that even, if I include

being a department chair, with cases like this.

And we are looking at available anecdotal

information, a number of case studies that have

been provided.

· · · · · · · · · · · · You see basically a

restatement of my assessment that once you are

denied tenure whether it is by an R1 or R2

institution, it is very difficult to get a job.

You carry that, like this guy said.· He was

afraid that he would not get hired.· And even,

you know, spoke it out loud to the dean that he

was a hiring risk, because he was.

· · · · · · · MS. WERMUTH:· Gina, can you read my

question back, please?

· · · · · · ·(Previous question read).

· · · · · · · THE WITNESS:· Correct.

BY MS. WERMUTH:

· · Q.· ·Okay.· That was my question.· Thank you.

Exhibit 15, please?

· · A.· ·15, right?

Page 136

· · Q.· ·Yes.· 1, 5.· Thank you.

· · A.· ·All right.· Thank you.· All right.

· · Q.· ·What is this article?

· · A.· ·What is this article?

· · Q.· ·Yeah.· What is Chron?

· · A.· ·Again, it is a higher ed -- it is a

higher ed publication.· It is like -- it is not

the same as the Chronicle, but it is similar to

the Chronicle.· It is an industry publication.

· · Q.· ·Are you sure?

· · · · · · · MR. BRAMWELL:· I'm sorry.· What?

· · · · · · · MS. WERMUTH:· I'm just asking if

she is sure.

· · · · · · · THE WITNESS:· It is an industry

publication.

BY MS. WERMUTH:

· · Q.· ·It is not the Houston Chronicle

newspaper?

· · A.· ·Well, the Houston Chronicle newspaper

does a section like many newspapers about hiring

and college, and it usually coincides with the

applications cycle for undergraduate students.

But it's a report, it is a higher ed report, that

is specific to, you know, to universities.

Page 137

· · Q.· ·And what is the name of this report that

the Houston Chronicle publishes?

· · · · · · · MR. BRAMWELL:· I'm sorry,

objection.· It has not been identified as an

article published by the Houston Chronicle.

BY MS. WERMUTH:

· · Q.· ·You can answer.

· · A.· ·So it is an article about higher

education in a section, like the New York Times

does a section about higher education usually in,

I think it is in the Spring.· The Post does one.

The Houston Chronicle does one.· The LA Times

does one.

· · · · · · · · · · · ·So it is -- usually they

have reporters who have expertise in higher

education put together these sections.

· · Q.· ·Okay.· So is this from the Houston

Chronicle?

· · A.· ·It is a higher education section, and it

is published by the Chronicle.

· · Q.· ·The Houston Chronicle?

· · A.· ·It is a publication that is devoted to

higher education.

· · Q.· ·I'm sorry.· When you say it is the

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Page 138

Chronicle, the Houston Chronicle?· Are we talking

about the same publication?

· · A.· ·Yes.

· · Q.· ·And do you know this author, Robin

Elizabeth Margolis?

· · A.· ·I do not.

· · Q.· ·Do you know if she is a specialist in

higher education reporting?

· · A.· ·I do not.

· · Q.· ·Now, you also referred in your report to

a manuscript Presumed Incompetent.· Mr. Bramwell

was gracious enough to send me a copy of the

book, but it is a book, and so I'm curious about

what portions of the book you relied upon in

reaching your conclusions?

· · A.· ·So there is one -- so you can see these

articles, what I'm trying to do is share with you

a number of cases and case studies.· And it is

fine that they are -- they are individual

anecdotes, some of them published in the

Chronicle of Higher Ed, some of them published in

other publications, in which people tell their

individual stories about what has -- what

happened to them after they were denied tenure.

Page 139

So there is a chapter in that, I think the editor

is Neiman (phonetic) I think.

· · · · · · · · · · · ·Okay.· So there is a

chapter in that book that I just mentioned by, I

think it is Grace Park, and it is about like what

I -- what happened after my tenure denial.· So

because I was looking for, you know, information,

whether it is statistical data or individual case

studies of people who had been denied tenure and

what they did, the chapter on my tenure denial

came up in my search.

· · · · · · · · · · · ·So that is the -- so then

I used that book, but I used just the my tenure

denial chapter because that is what was germane

to the -- to what I was looking at.· I believe

that's the one in which the individual said that

after tenure denial, she was -- she had a really

hard time -- and I think even at the time of the

publication of that book, was still trying to get

a stable job, a tenure track job, or even an

adjunct job that lasted more than a year or more

than a short term period.

· · · · · · · · · · · ·But she did say that even

though she did not have job stability and many of

Page 140

the things that she had as a tenure track faculty

member, so felt like in many ways better.· She

felt better about what she was doing.

· · Q.· ·Okay.· So I'm looking at the book and

there is a chapter in Section 5, Chapter 26,

called My Tenure Denial by Grace Park.· Is that

the chapter you are referring to?

· · A.· ·Yes.

· · Q.· ·So that's another anecdotal story about

her tenure denial and moving on from that?

· · A.· ·Right, correct.

· · Q.· ·Okay.· I would like to turn to Exhibit

3.3.· We have looked at this before.· We are

coming back to it.· These are the UNC College of

Communication guidelines?

· · A.· ·Okay.

· · Q.· ·And interestingly, and I have to ask

this question.· So I got that copy in connection

with your report.· So it was attached as an

exhibit to your report.· In response to the

subpoena I sent to you, Mr. Bramwell also sent me

Exhibit 21.· Will you take a look at that?

· · A.· ·Okay.

· · Q.· ·And this document has the title -- I'm

Page 141

sorry.· Let me start over.· This PDF file has a

title that says Template Task Force Personnel

Procedures Corrected 4.26

(00058788-3).docs-communication 1-1.· Do you see

that?

· · · · · · · MR. BRAMWELL:· I'm sorry, I don't.

I apologize.· We are looking at 22?

· · · · · · · MS. WERMUTH:· 21.

· · · · · · · MR. BRAMWELL:· Oh, I'm sorry.· That

would explain my confusion.

· · · · · · · THE WITNESS:· Yes.

BY MS. WERMUTH:

· · Q.· ·So that is the title of the PDF file as

it looked when it was sent to me by Mr. Bramwell.

Do you understand what that document title is?

Is that something that -- let me just strike

that.· Did you title this particular document

with that title?

· · A.· ·I did not.

· · Q.· ·Okay.

· · A.· ·I don't even know what those numbers --

I don't know what those numbers are.

· · Q.· ·Okay, okay.· So you don't know what this

reference to corrected 4.26 is?

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Page 142

· · A.· ·No.

· · Q.· ·So this is not the document that you

relied on in forming your opinion?

· · A.· ·So what you are trying to do is point

out a difference between 21 and 3.3?· Is that it?

· · Q.· ·I'm not trying to do that.· I'm trying

to find out -- both of these documents were

produced to me in connection with the subpoena.

· · A.· ·Right.

· · Q.· ·So I don't understand -- I'm trying to

understand what the 2 documents are.· One was

attached to your report.· So I'm assuming you

relied on the one attached to your report,

correct?

· · A.· ·Yes.· I mean I don't know that there is

a difference between the 2.· So it's hard for me

to know without looking at them closely.

· · Q.· ·Yeah.· I haven't asked that question.

I'm just wondering like if you know what this

document with this title Template Task Force

Personnel Procedures -- like is that a document

you ever seen before?

· · A.· ·I have not seen that document title

before.

Page 143

· · Q.· ·Okay.· So would it be safe to use

Exhibit 3.3, which was attached to your report as

the UNC College of Communication -- I'm sorry,

Department of Communication Promotion Guidelines?

· · A.· ·Yes.

· · Q.· ·Okay.· Thank you.· I won't look at 21

anymore.

· · A.· ·Okay.

· · Q.· ·Okay.· So we are going to go back to

Exhibit 3.3 then.· I just needed clarification on

what that other document was because I don't

think we know.· Okay.· Actually let me go quickly

-- I'm sorry to do this to you, to Exhibit 3.2

which are the DePaul guidelines?

· · A.· ·Okay.

· · Q.· ·I'm sorry.· I should say the DePaul

College of Communication Guidelines?

· · A.· ·Alrighty.

· · Q.· ·And to be clear, these were -- these

were not guidelines that you sourced on your own

on the internet like you did with UNC?

· · A.· ·Correct.

· · Q.· ·These were provided to you by Mr.

Bramwell?

Page 144

· · A.· ·Yes.

· · Q.· ·And I see that there is like bates

labeling confidential at the bottom of the page,

and then there is this other labeling that says

Calvente-DePaul with some numbers that follow.

Do you see that?

· · A.· ·Yes.

· · Q.· ·And you said you signed a

confidentiality order?

· · A.· ·Yes.

· · Q.· ·Or I'm sorry, a confidentiality

agreement?

· · A.· ·Yes.

· · Q.· ·And can you tell me what that requires

of you?

· · A.· ·That I don't talk about this case with

anyone.· I can talk about it with Jerry -- well,

you.

· · Q.· ·Understood.· Thank you.· Okay.· Now, I

see here on Exhibit 3.2 in the first paragraph,

in the middle of it, it says "the standards set

forth are consistent with the current university

faculty handbook in making tenure and promotion

recommendations."· Do you see that?

Page 145

· · A.· ·Yes.

· · Q.· ·Did you, like you did with the UNC

guidelines, did you reference DePaul University's

faculty handbook?

· · A.· ·I don't know that I was able to find the

DePaul faculty handbook.· So it wasn't right in

the document, so I did not.

· · Q.· ·Okay.· All right.· And I'm sorry because

we are going to be -- and I will leave it to you

to figure out how you want to manage this, but we

are going to be looking at your report, DePaul

College of Communication Guidelines, and UNC

Guidelines sort of variously.· I am going to be

jumping from document to document.· It is going

to be a little clunky.· Bear with me.· I only can

get one up at a time myself.· I just wanted to

give you fair warning.

· · · · · · · · · · · ·I would like you to go

back to your report for the moment.

· · A.· ·Okay.

· · Q.· ·And to look at page 3.

· · A.· ·Okay.

· · Q.· ·So in the first half of this page, tell

me if I'm wrong, you compare what you refer to as

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Page 146

2 parallel provisions or sections of UNC's

College of -- Department of Communication

Guidelines and DePaul's College of Communication

Guidelines?

· · A.· ·Yes.

· · Q.· ·And you say, it is your premise, I

believe, that UNC's Department of Communication

tenure expectations are more demanding than

DePaul's.· Is that right?

· · A.· ·Yes.

· · Q.· ·You say that that is apparent just on

the face of the 2 documents, the 2 policy

guidances, right?

· · A.· ·Yes.

· · Q.· ·And you refer specifically to a

provision in the DePaul guidelines on page 4

where the criteria of scholarship is elaborated

upon, right?

· · A.· ·Uh-huh.

· · Q.· ·Yes?

· · A.· ·Yes.

· · Q.· ·Okay.· And you point specifically to

this -- these 2 sentences, "scholarship, research

and/or creative activities are expected of each

Page 147

faculty member within the College of

Communication.· Faculty members should be able to

demonstrate success at completing projects and

disseminating the results of these projects in

academic and artistic arenas beyond DePaul."· Do

you see that?

· · A.· ·Yes.

· · Q.· ·You would agree with me that completing

and disseminating projects beyond DePaul is a way

of saying getting published or producing

scholarship?· You would agree with that?

· · A.· ·It is a way -- it is a base minimum of

completing, yes, completing scholarship -- you

could be -- they could be published in the

Washington Post or the Houston Chronicle.· It

doesn't talk about excellence, or, you know, like

the UNC talks about a programmatic, for example,

and it uses the expectation of excellence, which

is absent in the DePaul criteria.

· · Q.· ·Okay.· So hang on.· So my first question

was would you agree that completing projects and

disseminating them beyond DePaul is another way

of saying producing scholarship?· That's my only

question.· I didn't ask you about excellence. I

Page 148

just want to know would you say that completing

and disseminating outside of DePaul is another

way of saying producing scholarship?

· · · · · · · MR. BRAMWELL:· Objection, beyond

the scope of the expert retention.· Go ahead.

· · · · · · · THE WITNESS:· So as I said before,

one could complete a project and disseminate it

outside of DePaul, but it could be a pamphlet

that is thrown into the lake.· I mean

disseminating it beyond DePaul, it's a very --

frankly it was very unusual, but it doesn't

necessarily mean it is scholarly.· It just means

it is done and it appears somewhere other than in

internal communications.

BY MS. WERMUTH:

· · Q.· ·Well, except that the guidelines do go

on to identify the types of acceptable

production, correct?

· · A.· ·That's true.

· · Q.· ·It doesn't say that you can get tenure

if you complete a pamphlet and throw it in the

lake, does it?

· · A.· ·It does not.

· · Q.· ·Right.· It doesn't say you can get

Page 149

tenured if you write an article for the

Washington Post, right?

· · · · · · · MR. BRAMWELL:· I'm going to object

to this line of questioning on best evidence

grounds.

BY MS. WERMUTH:

· · Q.· ·You can answer.

· · A.· ·That's a very -- that's a very freighted

question given recent developments in higher ed

about publication in newspaper and so on.· But it

does not say that.

· · Q.· ·You again say there is no reference to

excellence in this particular provision.· Is that

right?· In DePaul's guidelines, right?

· · A.· ·Correct.

· · Q.· ·Okay.· Now, I would like for you to look

at UNC's guidelines, which is 3.3?

· · A.· ·Yes.

· · Q.· ·Go to page 4.· This is the part that you

cite regarding expectations for research for

tenure and promotion, right?

· · A.· ·Correct.

· · Q.· ·All right.· And so when you look at page

4, the general standards, which precedes that

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Page 150

same -- precedes the section on research, right?

· · A.· ·Yes.

· · Q.· ·Are you with me?· Okay.· According to

the general standards, there is basically 3

categories of criteria that are considered,

right?

· · A.· ·Yes.

· · Q.· ·The first being research or scholarship,

yes?

· · A.· ·Yes.

· · Q.· ·The second being teaching, correct?

· · A.· ·Yes.

· · Q.· ·And the third being service, right?

· · A.· ·Yes.

· · Q.· ·And so with respect to these 3

categories, UNC requires excellence in 2 of them,

right, research and teaching?

· · A.· ·Right.

· · Q.· ·And not necessarily excellence in

service, right?

· · A.· ·Well, they say service is not a

substitute for excellence in research and

excellence in teaching, but you know, service to

the department, the university committee, and

Page 151

state, it is not going to be the thing that an

individual does not get tenure, based on that if

they are strong in the other 2 areas.· But

strength in service, you know, whether UNC or

other R1 institutions is certainly an

expectation.

· · Q.· ·So here is my question.· You point to

the absence of the word excellence in the one

piece of DePaul's criteria that you quote in your

report, right, as meaning they don't require

excellence, right?· Yes?

· · A.· ·No.· I think there is an overall lack of

expectation of excellence articulated in the

DePaul criteria.

· · Q.· ·We will come back to that.· You mention

on page 3 of your report the provision of

DePaul's guidelines, College of Communication

Guidelines, right, and say -- and you point --

you quote that because there is an absence of a

requirement of excellence articulated in that

provision, right?

· · A.· ·In research.

· · Q.· ·In research, right, okay.· So would you

agree with me that there is no specific reference

Page 152

to excellence in section C on page 4 of UNC's

guidelines under general standards?

· · A.· ·I would not agree.· The word appears

twice.· Excellence appears twice.· And what it

says, what it says is, you know, this is again

standard at research institutions, your work

effort and the way you're assessed in your tenure

is basically 60 percent on your research, 40

percent, 30 or 40 percent on your teaching, and

then like 10 percent on your service.

· · · · · · · · · · · ·So what it says is you

can't be just excellent on service because it is

not the key thing.· They expect excellence in

research and teaching.· And service, you know,

excellence is important or it is key, but it

doesn't count as much.· It is not going to carry

the day.· And that's why it mentions excellence

twice in that point.

· · Q.· ·So okay.· I have a couple of questions

here.· So what this provision C in the first

sentence says is that service is a further

additional consideration in the overall

assessment, right?

· · A.· ·Yes.

Page 153

· · Q.· ·But is not a substitute for excellence

in the other 2 areas?

· · A.· ·Right.

· · Q.· ·Okay.· And by the way, when you just

gave me this breakdown of 60, 30, 10, there is

nothing in these guidelines that provide for that

sort of waiting.· Would you agree with me?

· · A.· ·They are not -- well, I think that there

are -- the percentages aren't baked in there, but

it is how it is basically understood because it

has to do with your teaching load and the amount

of time that you have available for research, and

therefore you have only, you know, 2-2 or a 2-1.

And sometimes letter of appointment include those

percentages.· Sometimes tenure documents at R1

institutions actually tell the tenure reviewer

what the breakdown is.· It's usually again, it's

like 60 percent research, 60, 30, 10.· It is a

very common breakdown.

· · Q.· ·UNC's guidelines do not provide that

breakdown, correct?

· · A.· ·They do not.

· · Q.· ·All right.· Can you go to Exhibit 3.2

which is the DePaul College of Communication

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Page 154

Tenure and Promotion Guidelines?

· · A.· ·Okay.

· · Q.· ·And could you go to page 16, please --

well, strike that.· Go to page -- first, let's go

to page 4.

· · A.· ·Okay.

· · Q.· ·Okay.· And so page 4, under the piece

that says criteria for scholarship research

and/or creative activities, do you see that

section?

· · A.· ·Right.

· · Q.· ·And that first paragraph is what you

quote from for purposes of your report, correct?

· · A.· ·Yes.

· · Q.· ·Okay.· And then you will see that the

section actually goes on for 6 pages or so,

correct?

· · A.· ·Right.

· · Q.· ·So it goes on to identify, for example,

on page 5, that scholarship is original

discovery.· It is integration of the development

of knowledge.· It is the application of

knowledge.· Do you see that?

· · A.· ·Yes.

Page 155

· · Q.· ·And it goes on to say that scholarship

is going to be evaluated on its originality,

right?

· · A.· ·Uh-huh.

· · Q.· ·It's contribution to knowledge, right?

· · A.· ·Yes.

· · Q.· ·Its conceptual sophistication, right?

Its intellectual river, correct?

· · A.· ·Right.

· · · · · · · MR. BRAMWELL:· Objection, best

evidence.

BY MS. WERMUTH:

· · Q.· ·Its application of knowledge to address

world problems or human problems, yes?

· · A.· ·Yes.

· · Q.· ·And then it goes on to identify the

types of scholarship that is considered, correct?

· · A.· ·Yes.

· · Q.· ·And so the section on research goes on

for 6 pages?

· · A.· ·Yes.

· · Q.· ·Okay.· Now, if you would go to page 16

with me for a moment.· So this section -- I'm

sorry.· I'm going to take you to page 14 so we

Page 156

know what section we are in.· So this is the

section of the guidelines relating to formal

review, personnel committee reports, and voting.

Do you see that?

· · A.· ·Yes.

· · Q.· ·So now we are in a portion of that

guidelines that puts some meat on the bones with

respect to process.· Would you agree?

· · A.· ·Yes.

· · · · · · · MR. BRAMWELL:· Objection to the

characterization of meat on the bones.

BY MS. WERMUTH:

· · Q.· ·That was a yes?

· · A.· ·This section is about formal review.

· · Q.· ·Well, it goes beyond formal review.

Let's look at page 16.

· · A.· ·I'm at 16.

· · Q.· ·Okay.· And the last sentence on that

page, could you read that, please?

· · A.· ·The last sentence, "no ranking should be

below very good during this review, but the

tenure review -- by the tenure review of faculty

members performance should be excellent in at

least 2 of these areas, and very good in the

Page 157

third.

· · Q.· ·So there is a requirement of excellence

in at least 2 categories at the of tenure under

DePaul's guidelines, yes?

· · A.· ·"No ranking should be below very good.

· · Q.· ·So --

· · · · · · · MR. BRAMWELL:· I'm sorry.· My

witness is still speaking, Ms. Wermuth.

· · · · · · · MS. WERMUTH:· I'm just asking about

the last sentence.

· · · · · · · MR. BRAMWELL:· She is still

speaking.

BY MS. WERMUTH:

· · Q.· ·Please proceed.

· · A.· ·The last sentence says by the tenure

review.· So by the end of the tenure review,

there is an expectation of excellence.· That's

still -- okay.· So yes, at the end of the tenure

whereas at UNC there is an expectation in hiring

that there is evidence of excellence.· Clear

promise which means clear evidence of excellence

throughout.

· · · · · · · · · · · ·So you know, you are

asking these very precise questions, but the main

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Page 158

point still stands.· That there is a much higher

expectation of excellence throughout the hiring

and annual review and tenure process at UNC.· It

also -- there is a requirement for a programmatic

-- a program of research that interrogates

enduring and significant questions.

· · Q.· ·I don't see anything in the UNC

guidelines that talks about interrogation of

enduring and significant questions.· Can you

point me to that, please?

· · A.· ·Yeah.· It is right at the beginning.· It

talks about the -- it is on page 4.· You see

general standards is at the top of the page.

Standards of Research.· "The Department of

Communications expects its faculty to be actively

involved throughout their careers in achieving

scholarly research excellence and/or its

equivalent form in creative artistic activity.

The Department of Communications requires

sustained, programmatic, that is scholarship that

coheres around and investigates thematically one

or more clearly defined research problematics,

production of scholarship."· And then so on.

· · · · · · · · · · · ·So it is about -- so

Page 159

that's a big thing that you look at when you are

hiring someone and then when you are coaching

them to -- when you are mentoring them toward

tenure and in the tenure process is whether they

have a programmatic coherent program of research,

or whether it is just a bunch of articles on

different topics, boutique topics of their

interests scattered around.

· · · · · · · · · · · ·So that's why it is really

important.

· · · · · · · MS. WERMUTH:· Gina, can you read my

question back, please?

· · · · · · · THE WITNESS:· Your question was

does --

· · · · · · · MS. WERMUTH:· Hang on one second.

· · · · · · · MR. BRAMWELL:· Do not cut my

witness off.

· · · · · · · MS. WERMUTH:· When the court

reporter has received an instruction, she cannot

take down the record.· I wanted the witness to

stop talking so we can get what she had to say on

the record.· Because I had asked Gina a question,

we needed to all stop talking because Gina cannot

go back and read my question if somebody is

Page 160

talking.

· · Q.· ·Doctor Zaeske, I do want to hear what

you have to say.· In this moment though, I need

the court reporter to read my question back.

· · ·(Question read back)

BY MS. WERMUTH:

· · Q.· ·I was asking you whether there was a

reference to enduring and significant questions

being interrogated in the guidelines.· Do I

understand you are pointing me to this language

on page 4 in response?

· · A.· ·Right.· The language I pointed to was

sustained and programmatic.

· · Q.· ·Okay.· Returning to page 3 of your

report, Doctor Zaeske.

· · A.· ·Okay.

· · Q.· ·I think what you're saying at the bottom

of page 3 -- well, strike that.· Why don't you

tell me what distinction you are trying to make

where you start with "another important point of

comparison," through the bottom of the page?

· · · · · · · MR. BRAMWELL:· I'm sorry.· Where

are you?· Oh, I'm looking at the wrong document.

My apologies.

Page 161

· · · · · · · MS. WERMUTH:· Page 3 of the report.

Actually strike that question.

· · Q.· ·So at the top of page 4, so your

analysis which follows the quoted sections, let

me take you there.

· · A.· ·Okay.

· · Q.· ·So you -- at the bottom of page 3, you

quote distinct sections from each of the

guidelines, right?

· · A.· ·Yes.

· · Q.· ·Okay.· And then at the top of page 4,

you provide that "DePaul expects only teaching

effectiveness where UNC expects proven

excellence, right?

· · A.· ·Yes.

· · Q.· ·And again, this is at the tenure review

stage that UNC expects proven excellence in

teaching?

· · A.· ·Yes.

· · Q.· ·Okay.· Now, you will agree with me that

UNC also though in its guidelines describes the

teaching requirement as teaching effectiveness?

· · A.· ·UNC uses language about teaching

effectiveness, yes.

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Page 162

· · Q.· ·Right.· Okay.· And as we pointed out,

DePaul at the time of tenure review requires

excellence in 2 of the 3 criteria, right?

· · A.· ·Right.

· · Q.· ·And one of that criteria is teaching,

right?

· · A.· ·Right.

· · Q.· ·Okay.· One of those criterion I should

have said.· That's singular.

· · A.· ·Yes.

· · Q.· ·So let's look at page 5 of 3.3, which

are the UNC guidelines.

· · A.· ·Page 5 of the UNC guidelines, right?

· · Q.· ·Yes.· I think that's the right page.

Give me a minute.

· · A.· ·That's standards of teaching is point B.

· · Q.· ·Yeah, hang on.· Let me make sure that's

where I want to take you.· No.· I'm sorry.· Page

9.

· · A.· ·I'm there.

· · Q.· ·This is specifically in connection with

the guidelines for promotion -- with promotion to

associate professor with tenure, right?

· · A.· ·I believe so, yes.

Page 163

· · Q.· ·Okay.· So if you look at page 8, you

would see that.· It is Subsection C, associate

professor.

· · A.· ·Okay.

· · Q.· ·So on page 9, so I guess we are at

Subsection big C, little b, on page 9.

· · A.· ·"Demonstrated commitment to"?

· · Q.· ·Correct.· So this is the requirement of

-- "demonstrated commitment to and achievement of

teaching excellence at the time of tenure,"

right?

· · A.· ·Right.

· · Q.· ·And then it goes on in this paragraph to

explain what a demonstration of teaching

excellence includes, right?

· · A.· ·Right.

· · Q.· ·Okay.· So according to this document,

"teaching excellence includes the development and

teaching of a range of courses at the

undergraduate and graduate levels," right?

· · A.· ·Uh-huh.

· · Q.· ·Yes?

· · A.· ·Yes.

· · Q.· ·Okay.· Sorry.· We need verbal answers.

Page 164

· · A.· ·Yeah.· I understand.· Sorry.

· · Q.· ·"Strong instructor evaluations from both

students and peer observers"?

· · A.· ·Yes.

· · Q.· ·"And where appropriate, the publication

of pedagogical material"?

· · A.· ·Yes.

· · Q.· ·So that's how UNC defines teaching

excellence, right?

· · A.· ·I would say that those are some

examples.· You know, when it says includes, you

know, it would probably be like includes but is

not limited to.· There are other ways of

demonstrating pedagogical excellence.

· · Q.· ·But these are the ones that get

published?

· · A.· ·You mean in the guidelines?

· · Q.· ·Yeah.

· · A.· ·Right.

· · Q.· ·So in the document that the up and

coming probationary faculty member sees and is

going to rely on, right, those are the criteria

set forth?· Those are the examples of how to

achieve teaching excellence?

Page 165

· · A.· ·Those are -- they are examples.

· · Q.· ·Okay.· All right.· So now, if we go to

DePaul's guidelines, Exhibit 2.2?

· · · · · · · MR. BRAMWELL:· 3.2?

· · · · · · · MS. WERMUTH:· I'm sorry.· 3.2.

Thank you.

· · · · · · · MR. BRAMWELL:· No worries.

· · · · · · · MS. WERMUTH:· Let me figure out

what page.· Oh, page 1, look at that.

· · Q.· ·So on page 1, there is a section called

Criteria for Teaching.· Do you see that?

· · A.· ·Oh, sorry, yes.· I see it.

· · Q.· ·All right.· And then there is a -- there

is the first sentence, and then there is the

second sentence which gives examples of what

teaching effectiveness is at DePaul, right?

· · A.· ·Right.

· · Q.· ·Okay.· And there is a variety of

examples given, but I would like to direct your

attention to the sentence that begins with

"additionally".· So it is 3 lines up from the

bottom of the page?

· · A.· ·Uh-huh.

· · Q.· ·Okay.· So it says "additionally,

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Page 166

teaching is assessed by considering the range of

courses taught by the faculty member," right?

· · A.· ·Uh-huh.

· · · · · · · MR. BRAMWELL:· Objection, best

evidence.

BY MS. WERMUTH:

· · Q.· ·I'm sorry.· Your answer was?· Because we

need verbal.

· · A.· ·You asked me if I see what you are

referring to, and yes, I do.

· · Q.· ·And that's similar to at least one of

the examples that UNC gives for excellence?

· · A.· ·No.· Again, I don't see these as -- I

don't see these as similar.· First, I note as you

did that teaching is listed first, which is a

confirmation that R2 institutions place teaching

first and not research.· And that's a difference

in the standards of -- for tenure standards.

· · · · · · · · · · · ·So that's one thing.· And

then, you know, the list of things here that are

considered, I think a number of them are assumed

that the person wouldn't be in a classroom in a

place like UNC.· Like command of materials.· Why

would you put someone in a classroom if they are

Page 167

not in command of materials.

· · · · · · · · · · · ·So I see a different, you

know, there is -- it's a different level.· There

is a different level here.· And the other thing

is that there are -- the graduate -- there is a

very strong -- there are multiple graduate

programs at UNC, and I'm not aware of -- I don't

think there are graduate programs or strong

graduate programs at DePaul.

· · · · · · · · · · · ·So the faculty members at

DePaul are not engaging in graduate education and

growing doctorally trained communication

scholars.

· · Q.· ·Well, there is reference in this very

paragraph to the very last 2 words,

"supervision", and on to the next page, "of

graduate thesis projects and graduate student

teaching", right?

· · A.· ·Yes.· But I said a doctoral program. I

don't think it is a doctoral program.· It may be

a professional program at DePaul in a Master's,

but I don't think that they have a PhD in

communication.

· · Q.· ·Did you in doing your analysis here,

Page 168

looking at one document from the College of

Communications at DePaul and looking at a variety

of documents from the University of North

Carolina, did you look at all at like DePaul's

mission statement?· Did you give any

consideration to DePaul's mission?

· · A.· ·I think I looked on the website, but I

don't see how that is relevant, because the point

is to compare the criteria by which someone would

be hired, you know, and what the expectations

were, and if -- I mean DePaul has more of a, as I

understand it, sort of a mission that is sort of

like a teaching mission and serving a community.

That is different from the research mission of an

R1 institution.

· · Q.· ·So going back to your report, page 4 of

Exhibit 3?

· · A.· ·Yes.

· · Q.· ·Okay.· The second full paragraph which

begins with "there are also significant

differences." Do you see that?

· · A.· ·Yes.

· · Q.· ·And then the second sentence there says

"the DePaul policy document on tenure and

Page 169

promotion provides no explanation of what an

assistant professor is expected to do in terms of

research in order to gain tenure."

· · A.· ·Yes.

· · Q.· ·Okay.· And you stand by that statement?

· · A.· ·Yes.

· · Q.· ·So when I take you back to Exhibit 3.2,

and I take you to page 5?

· · A.· ·Uh-huh.

· · Q.· ·Are you there?

· · A.· ·Yes.

· · Q.· ·Do you then take the position that

telling faculty in the College of Communication

at DePaul that their scholarship must be

original, must contribute to knowledge, must be

conceptually sophisticated, must be

intellectually rigorous, that that provides no

guidance to the faculty member as to what they

need to do in terms of research?· Is that your

position?

· · · · · · · MR. BRAMWELL:· Objection, misstates

the report.· Go ahead.

· · · · · · · THE WITNESS:· Yes, that is my

position.· It is not clear what the faculty

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Page 170

member is supposed to do.· By contrast, the UNC

document provides like, you know, depending on

the subdiscipline of each -- you know, they have

multiple subdisciplines in their department.

It's a department, not a whole college.

· · · · · · · · · · · ·So what is it that DePaul

wants the probationary faculty member to do?

Like this is the core of mentoring individuals to

tenure.· They want to know what is it that you

want me to do?· So originality, what does that

mean?· Or contributing to knowledge?· Or having

intellectual rigor?· Or applying a theory or

something?· So do you want me to write a book?

Do you want me to write 16 articles?· Do you want

me to do a play or multiple plays, or you know,

make a feature length film, short films?

· · · · · · · · · · · ·So usually tenure

requirements actually have some articulation of

like the actual product or products that are

expected by the faculty member, the probationary

faculty member, in order to obtain tenure.· And

my point is simply that UNC says what is expected

for research and teaching, but particularly

focusing on research.· I could not find that. I

Page 171

could not find that in the DePaul criteria.

· · Q.· ·When you look at page 6 of the document

that we are looking at where it lists at length

for 2 pages the types of outlets and where --

what people should do, publish a book, publish

peer review journal articles, publish edited

books, and so on.· So you're saying that this

doesn't give -- that this is the absence of

articulation of what sort of products the scholar

is expected to produce?

· · A.· ·Yes, I'm saying that.· Because what this

page says is if books are produced, they are

evaluated in this way.· If peer reviewed articles

are produced, they are evaluated this way.· If

edited books are produced -- that's different

from saying what is it that you're expected to

produce to get tenure at DePaul.

· · Q.· ·So in looking then at page 4 of your

report, back to Exhibit 3?

· · A.· ·I'm there.

· · Q.· ·Sorry to go back and forth.

· · A.· ·That's okay.· I'm there.

· · Q.· ·You quote from the UNC guidelines, page

8 of the UNC guidelines, the publication of a

Page 172

single authored monograph.· Do you see that.

· · A.· ·Yep.

· · Q.· ·And just above that you say "most

relevant to this case is the following

enumeration of publication expectations for

probationary faculty in communication at UNC."

Do you see that?

· · A.· ·Yes.

· · Q.· ·Why do you say that this particular

passage is most relevant to this case?

· · · · · · · MR. BRAMWELL:· Objection, misstates

the report.

· · · · · · · THE WITNESS:· So in the paragraph

above, I say "there are also significant

differences in the specific criteria," and then I

mention something.· And then I just -- you know,

there are a number of things that I mention.· But

what I wanted to point out specifically was just

specifically was this lack of publication

expectations.

· · · · · · · · · · · ·To me, that seemed like a

huge difference between the level of like

excellence in research and the -- I mean, and

this is common.· It's a common difference between

Page 173

R1 and R2 institutions.· At R1 institutions, you

are expected to publish a single authored

monograph with a highly respective academic press

and at least 3 substantial articles in peer

reviewed journals and to have significant

progress on a second monograph for tenure.

· · · · · · · · · · · ·That is sort of the basic

thing across the board, whether it is UNC,

Wisconsin, Indiana, Minnesota, or wherever.· And

that is very different than most, if not all R2

institutions, where you can be tenured without

writing a book.· That's the big difference.· You

can be tenured without writing a book, or writing

a book that is published by like a trade press or

a much lesser press, or having articles in

journals that are not highly cited, that don't

have a high citation, or don't have a high

rejection rate.

BY MS. WERMUTH:

· · Q.· ·So here was my question.· On page 4 of

your report you write this sentence.· "Most

relevant to this case is the following

enumeration of publication expectations for

probationary faculty in communication at UNC."

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Page 174

And then you quote a passage.· Why is that

particular passage most relevant to this case?

· · A.· ·Again, because the significant

difference between an R1 institution and how you

hire, and who you are going to hire, and how you

tenure people, is the ability to produce a single

authored monograph that is -- as well as the peer

reviewed essays.· That is really very different

from how you hire folks at R2 institutions and

how they are tenured at R2 institutions.

· · · · · · · · · · · ·That expectation of, you

know, publishing at -- publishing with a major

academic press a single authored book and then

having another one well underway just doesn't

exist at R2s.

· · Q.· ·You do see from the DePaul guidelines

that the greatest weight is given to a single

authored monograph at tenure review, right?

· · A.· ·I don't think it said that.

· · Q.· ·Okay.

· · A.· ·That was -- it had a list of all the

different -- like different ways one could

disseminate research, and then it said how it was

evaluated.· But again, as you see here with UNC,

Page 175

and again this is a really standard way of R1

saying it, it is a single authored book, at least

3 peer reviewed articles of substantial length in

a prestigious journal, and then evidence of

progress on a second book.

· · · · · · · · · · · ·It is a mantra.· It is

like practically tattooed on the forehead of a

probationary faculty member.

· · Q.· ·But the UNC guidelines don't say at

least 3 articles of substantial length in

addition to the book.· In fact, the UNC

guidelines say this is not a quantitative --

there is no quantitative algorithm that we apply

to tenure cases?

· · · · · · · MR. BRAMWELL:· Objection to best

evidence, and objection, Counsel is testifying.

· · · · · · · THE WITNESS:· But as I quoted in my

report, "the publication of a single authored

monograph with a highly regarded university or

academic press is required.· The monograph stands

at the centerpiece of the candidate's tenure and

promotion file, accompanied by a number of peer

reviewed essays and/or book chapters."· And then

it says the monograph has to be original and has

Page 176

to be different from the dissertation.

· · · · · · · · · · · ·So that is what I said.

So you know, a number of peer reviewed essays or

book chapters.· 3 is usually the number that is

expected if it's of substantial length, peer

reviewed.· And that can be sort of nuanced if you

book chapters that may be even longer than

articles.· So it goes back and forth.· And that's

why it is not a clear algorithm.

BY MS. WERMUTH:

· · Q.· ·You had one book that came after your

tenure review, right?

· · A.· ·My -- the book that was published was

fully under contract and forthcoming before I

went up for tenure.

· · Q.· ·But you didn't have a second one in the

works at that time?

· · A.· ·No.· I did.· And it formed the basis of

one of the articles that I published that was

included in my tenure dossier, and I included a

full outline of the book.· And then I was awarded

a year-long fellowship at Harvard to work on the

book.

· · Q.· ·A second book?

Page 177

· · A.· ·Yes, a second book.

· · Q.· ·What is your second book?· I didn't see

it in your CV.

· · A.· ·I didn't publish the book because I got

sucked into administration.

· · Q.· ·I see.· Fair enough.· Was your book work

from your dissertation?

· · A.· ·The book that was the basis of my tenure

dossier?

· · Q.· ·Yes.

· · A.· ·So it was -- my dissertation was the

basis of that -- of that book.· What you

typically need to do -- not typically.· It's

absolutely required.· You can't get credit, like

double credit for the same thing, right?· So you

get the PhD based on one piece of work, the

dissertation.· And then tenure committees

particularly at the -- beyond the department,

they look very carefully to see how much

difference there is between the dissertation and

the book manuscript.

· · · · · · · · · · · ·So I did a tremendous

amount of additional research and wrote

additional chapters, which again, you know, I

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Page 178

certainly had to report the differences in

percentages, like how many new chapters do you

have, and what percentage difference is each

chapter than the dissertation, so you don't get

credit twice for the same piece of work.

· · Q.· ·Understood.· Understood.· And you then

completed that book in the 5 or 6 years post

conferral of the PhD?

· · A.· ·That's right.

· · Q.· ·Which is would you say about what you

would expect a faculty member to do for a single

authored monograph?

· · A.· ·Absolutely, especially for the first

book.· You know, sometimes the second book, if it

is more ambitious, and it involves a lot of

international travel, that might take more than 5

years, and you are not under the tenure gun.

· · Q.· ·Now, the last point I think you make in

your report in terms of comparison of the 2 sets

of guidelines is that UNC expects continuing

achievements and DePaul does not, right?

· · A.· ·Yes.

· · Q.· ·Now, if you look at the DePaul

guidelines, Exhibit 3.2?

Page 179

· · A.· ·Okay.

· · Q.· ·Page 20.· In the paragraph, Tenure and

Promotion to Associate Professor.· Are you with

me?

· · A.· ·Yes.

· · Q.· ·The middle of that paragraph, there is a

sentence that begins "the candidate must

demonstrate."· Do you see that?

· · A.· ·Yep.

· · · · · · · MR. BRAMWELL:· I'm sorry.· Can you

help me out here?

· · · · · · · MS. WERMUTH:· Sure.· Page 20, first

paragraph, which is a big one.· Right in the

middle --

· · · · · · · MR. BRAMWELL:· Got it.· Got it.

BY MS. WERMUTH:

· · Q.· ·"Continued capacity to contribute to

DePaul's mission of academic excellence."· Do you

see that?

· · A.· ·Yes.

· · Q.· ·So there is an expectation at DePaul for

continued excellent contributions, yes?

· · · · · · · MR. BRAMWELL:· Objection.

· · · · · · · THE WITNESS:· Again, it is not

Page 180

foregrounded in a way that UNC is, and again,

research institutions, they hire -- they hire

fast racehorses.· They are supposed to continue

to race and race and race and to be productive.

I mean -- I mean it is interesting that it says

continued capacity to contribute.· That's very

sort of back off, back off, in a way that you see

at, you know, in UNC and in other R1s,

expectation of productivity throughout the

career.

· · Q.· ·So when you say racehorses, you are

talking about faculty who demonstrate capacity to

churn out a high level of high quality

scholarship?· Is that what you mean by racehorse?

· · A.· ·Yeah.

· · Q.· ·Would you say that working -- like

working on a book, but not having it published

within the first 10 years, is that person a

racehorse?

· · A.· ·It depends on -- again, like what the --

if someone is doing a study that, you know,

involves multiple languages, or you know, has

just a tremendous number of archives, and has,

let's say, run into difficulties, that would --

Page 181

so that could be a qualification.· But you would

expect research productivity, yeah, a book to be

published within 7 years.

· · · · · · · MS. WERMUTH:· Okay.· All right.· If

we can take a quick break, I may have just a

couple of follow-up questions.· Can we do that?

· · · · · · · MR. BRAMWELL:· Sure.· Come back at

what time?· 2:27, 2:28?

· · · · · · · MS. WERMUTH:· How about 2:30?

· · · · · · · MR. BRAMWELL:· 2:30, okay.

· · ·(Off the record at 2:24 to 2:33)

· · · · · · · MS. WERMUTH:· So back on the

record.· At this point in time, I have no further

questions for you.

· · · · · · · MR. BRAMWELL:· I have a few.· And

first of all, I just received a text that you

might not be able to see me.· Is my video on?

· · · · · · · THE WITNESS:· I can see.

· · · · · · · · · EXAMINATION

· · · · · · · · BY MR. BRAMWELL:

· · Q.· ·Doctor Zaeske, just a few questions

based on the questions that Ms. Wermuth asked

you.· I understand before we went on break, Ms.

Wermuth, and I won't get the question exactly

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Page 182

right, but she asked you something like if you

would be expected to publish a book within 10

years.· Am I understanding that question

correctly?

· · A.· ·I think the question was is it

reasonable to expect publication of a book within

10 years I think of -- well, I answered it both

in terms of being an assistant professor and

being a post-tenure.· But publishing a book,

let's say the first book on the tenure track, R1

institutions, you know, balance the research,

teaching obligation to give lesser teaching in

order that faculty can focus on publication.

· · · · · · · · · · · ·So it is the expectation

that a book would be published within, you know,

the -- within the tenure window, certainly within

10 years.· If someone has a higher teaching load,

which is often and usually the case at R1s --

excuse me, at R2 universities, then they would

have less time available for doing research

because the focus is on teaching.· And then

taking more than, you know, 10 years or more to

publish a book would be reasonable because you

don't -- you have a much heavier teaching load

Page 183

and you don't have as much time for research.

· · Q.· ·All right.· Remember that Ms. Wermuth

asked you some questions about various schools

and where they fell in the Carnegie

Classifications?

· · A.· ·Yes.

· · Q.· ·I'm going to share my screen, or at

least I'm going to try to share my screen.· I'm

sorry.· Let me just turn this phone off.· Doctor

Zaeske, I hope I have done this correctly. I

have pulled up a website called

Carnegieclassifications.IU.EDU/lookup/lookup.PHP.

Is that what is showing up on your screen?

· · A.· ·Yes.

· · Q.· ·Are you familiar with this website?

· · A.· ·Yes.

· · Q.· ·How are you familiar with it?

· · A.· ·Well, I looked at it when I was, you

know, trying to explain what Carnegie -- explain

to others in a more general sense what the

Carnegie Classifications are, for the report, for

the report for this proceeding.

· · Q.· ·Now, does this website permit you to

enter in an institution's name and determine

Page 184

whether they are R1s or R2s?

· · A.· ·Yes, that's what it does.

· · Q.· ·This is a website that is easy to

access?

· · A.· ·Yes.

· · Q.· ·And you as an academic would rely on

this website in determining what is an R1 and

what is not an R1 -- strike that.· You as an

academic would use this website to determine what

is an R1 and what is an R2?

· · A.· ·Right, yes, correct.

· · Q.· ·I think that Ms. Wermuth asked you about

Yale being an R1?

· · A.· ·Yes.

· · Q.· ·I search -- I put Yale into a search by

institution name.· Is that how you would

determine --

· · A.· ·Yes.

· · Q.· ·So if I put Yale in, I see now a web

page that goes -- shows me an institution Yale

University with a hyperlink?

· · A.· ·Yes.

· · Q.· ·If I click on that hyperlink, would this

give me -- would this take me to a page that

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shows me the Carnegie Classification for Yale?

· · A.· ·Right.· This is similar to another one

that was in my report.

· · Q.· ·Now, this shows Yale as an R1.· Would

you agree that Yale is an R1?

· · A.· ·Yes.

· · Q.· ·Let's start over.· Ms. Wermuth asked you

about Northwestern University; is that right?

· · A.· ·Yes.

· · Q.· ·If I type Northwestern, there is a bunch

of things that pop up.· One of them is

Northwestern University in Evanston, Illinois?

· · A.· ·Yes.

· · Q.· ·If I click on that hyperlink, what does

it say its Carnegie Classification is?

· · A.· ·Very high, R1.

· · Q.· ·That means it is an R1?

· · A.· ·Yes.

· · Q.· ·Let's start over again.· We also have

the University of Chicago?

· · A.· ·Yes.

· · Q.· ·We got the University of Chicago, a

private not-for-profit institution in Chicago,

Illinois?

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· · A.· ·Yes.

· · Q.· ·Click on the hyperlink.· Does that say

what its Carnegie Classification is?

· · A.· ·Yes, very high, R1.· That makes it an

R1.

· · Q.· ·If we were to use this website that I

pulled up earlier that I just showed you, would

that tell you what is an R1 and R2?

· · A.· ·Yes, it would.

· · Q.· ·Just for fun, let's click on DePaul.

When I type DePaul in, I see DePaul University.

And I click on that, what does it show?

· · A.· ·High research activity, so that's R2.

· · Q.· ·Okay.· Ms. Wermuth asked you some

questions, which at least I interpreted as

suggesting that she may believe that UNC hired

Doctor Calvente as a favor to her.· Now, she

doesn't need to say whether she believes that or

not.· That's how I interpreted those questions.

Do you have an opinion as to whether UNC hired

Doctor Calvente as a favor to her?

· · · · · · · MS. WERMUTH:· Objection to the form

of the question.· The narrative portion in

particular that preceded the question ought to be

Page 187

stricken as narrative and argument.· And I object

to form.

· · · · · · · MR. BRAMWELL:· You can file any

motion you want to strike.

· · Q.· ·Doctor Zaeske, feel free to answer.

· · A.· ·So I -- you know, I won't opine -- I

really try not to -- I'm not opining on anything

on the tenure denial or the hiring.· But what I

can say is general -- how things work, how things

work in higher ed.· All right.· It is right now

because, and really always, and certainly in the

last 10 years, budgets are so tight that

institutions cannot make mistakes in hiring

because if you do not -- if someone does not get

tenure or is not tenured or non-renewed, then a

department will lose its chance, probably lose

its chance to hire again for a long time.

· · · · · · · · · · · ·Also a tremendous amount

of money is invested in getting research programs

started up, even in the humanities, you know,

much less like in the lab sciences.· And also it

affects morale.· It takes a tremendous amount of

time to mentor.· So other than those Ivy's that I

mentioned in my report, like Harvard, Yale, and

Page 188

Princeton, all 3 of them in particular, they hire

not to tenure.

· · · · · · · · · ·`The R1s, and certainly the

public schools like UNC, and even Northwestern,

it isn't public, but even at Northwestern, they

hire to tenure.· They would not take -- they

would not just do someone a favor.· They have to

hire people that have a clear record of

productivity established that shows that they

will -- that they will be able to gain tenure.

And again, that's the key thing that you look at

when you are -- as a department when you are

interviewing people before you extend them an

over, the deans look at it.

· · · · · · · · · · · ·And you know, I'll just

also add this as personal experience.· You know,

when I was asked about my CV, again, you said it

is okay to call you Anna.

· · · · · · · MS. WERMUTH:· Of course.

· · · · · · · THE WITNESS:· When Anna asked me

about my CV, you noted my degrees are from UW

Madison.· It was very unusual that I was hired at

the institution where I earned by PhD, and I had

to pass a higher bar to be hired, and I had to

Page 189

meet higher expectations to be hired.· So for

example, I had to have offers from 2 other R1

institutions on the table to show the dean when I

was hired at Wisconsin to convince them that my

department wasn't just trying to hire me because

I was one of their own.

· · · · · · · · · · · ·They also -- 2 of my

faculty had been non-renewed and then 2 retired,

so there was no fear of duplicating, you know,

like I was duplicating my existing faculty.· So

you know, there had to be other circumstances.

And finally the dean said you have to go

somewhere else at some point, you know, fairly

early in your career, which drove me to go to

Harvard.· You know, it is one of the reasons to

get an idea of what another school was like.

· · · · · · · · · · · ·So I'm saying that

institutions that end up hiring their own don't

do it lightly.· The other thing is it is also

different if you hire someone who has been away

for a number of years.· So this year, I have an

example, we are hiring a historian who has been

at the University of Iowa for 5 or 6 years, and

we felt that it was okay to hire him at UW

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Page 190

Madison.· But the thing was he had put some space

between his time as a graduate student here and

the time he would be a faculty member.

· · · · · · · · · · · ·So those are all

considerations, but it is not done lightly.· It

is not considered an ideal practice.· So it would

have to be -- there would have to be good reason.

But beyond that, I will not opine.

BY MR. BRAMWELL:

· · Q.· ·All right.· Ms. Wermuth spoke a little

bit about years of credit.· Do you recall that

line of questioning?

· · A.· ·Yes.

· · Q.· ·Okay.· Would you give years of credit at

the University of Wisconsin if the faculty member

that you were seeking to hire came from DePaul?

· · A.· ·No.· We do not -- if someone has tenure

service -- years of tenure at an institution of,

you know, like an R1, because we are an R1, we

would give them -- we would give them years of

credit.· We would not give years of credit for an

R2, and especially not, you know, we certainly

wouldn't give 3 years.· Maybe one, but maybe not.

· · · · · · · · · · · ·So no.· And I'll tell you

Page 191

right now, faculty members are asking for more

years, and we have automatic -- on their tenure

clock.· And during the pandemic, we have an

across the board if someone asks for a year or

even 2 years extension on the tenure clock, we

have been granting it.· So institutions are

lengthening the tenure clock right now.· They are

not shortening the tenure clock.

· · · · · · · · · · · ·And again, we don't -- we

also would not really give a lot of credence to

teaching evaluations at an institution that is so

different from UW Madison.· Like if someone were

teaching at Carlton College, small liberal arts

school, it is so different.· It is so different

than teaching at UW Madison.· So the teaching

evaluations that they brought in would only be so

predictive, and we would expect a lot more data

to be gathered, you know, with our students.

· · Q.· ·All right.· Who are University of

Wisconsin's peer schools?· Would you consider

North Carolina a peer school?

· · · · · · · MS. WERMUTH:· Objection, relevance.

· · · · · · · THE WITNESS:· I mean it's an R1.

BY MR. BRAMWELL:

Page 192

· · Q.· ·You touched on this a little bit, but

can you provide a little more color as to why you

need to be able to demonstrate tenurability to be

hired at an R1?

· · A.· ·You just don't hire people that you

don't think are going to make it through the

process.· You have to be convinced that they are

-- that they are going to meet the criteria for

tenure.· And that means there has to be a strong

body of publication, and it's usually like -- you

know, it is much easier to see and to assess

publication -- publication record and the

likelihood of continuing a publication record

than it is to assess teaching, unless it is at a

peer institution.

· · · · · · · · · · · ·So if I'm hiring someone

away from Iowa like we just did.· We hired this

fellow away from Iowa.· He won teaching awards at

Iowa.· There is not that much difference down the

road, at the R1 down the road.· But the key thing

is that we have to see indicators of things that

have already been accomplished.· You know, we

hire graduate students who already have book

manuscripts that are finished, right, and who

Page 193

have, you know, multiple articles published.· So

there has to be -- and that's because it is so

difficult to get jobs at R1 institutions.· It is

so competitive.

· · · · · · · · · · · ·And that's another reason

why -- you know, the institutions like UNC, they

have a huge pool of people to hire from because

hiring particularly in the humanities, and you

know, communication sort of sits between

humanities and social sciences, but really both,

there has been so little hiring.· So it is a very

competitive, a very competitive pool.· It is very

hard to get hired.· That's why you have to stand

out with your record.

· · Q.· ·Okay.· I believe Ms. Wermuth asked you

if there was a qualitative aspect to the tenure

process, and I think your answer was yes.· Am I

remembering that correctly?

· · A.· ·Yes.

· · Q.· ·Is there also a quantitative element?

· · A.· ·Yes.· Even again in humanities and

certainly in the social sciences and the

biological and mathematical and physical

sciences, there are qualitative.· So most tenure

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Page 194

cases in humanities, and I think, you know,

Calvente is in humanities.· I haven't seen the

CV.· It is the one book by a prestigious press

and then evidence of, you know, significant work

on, and a concept for the second book.· And then

they look at articles, all right.

· · · · · · · · · · · ·So one of the first things

is you look at the number of articles.· So that's

a quantitative.· So then the next thing you look

at after the number of articles is how long are

the articles.· Are they 3 pages long?· 5 pages

long?· That's kind of nothing frankly unless you

are a philosopher.· Are they more substantial

like 20 pages long or even 40 pages long?

· · · · · · · · · · · ·Then the next thing you

look at is the rejection rate of the journals.

These are included in the tenure dossier, in the

report written up by the department.· So does

everyone get published in the journal that the

prospective -- that the probationary faculty

member has published in, or is it really hard to

get published?· You know, what you want to do is

you want to publish in journals, peer reviewed

journals that are really, really hard to get,

Page 195

that the acceptance rate is 1 percent, 1 or 2

percent.· Those are the most prestigious.· So we

check those.

· · · · · · · · · · · ·The other thing they will

check is the citation -- the citation rating of

an individual faculty member.· That's how many

times the book or articles that they have in

publication has been cited by other scholars.· So

that's data.· Sometimes institutions use a thing,

it is a product, it has a vendor, it is called

academic analytics.· That records all the

publications of a faculty member and also their

awards, the awards they get, whether they are

like a book award or a grant award or a

fellowship award.

· · · · · · · · · · · ·So those are all, you

know, in answer to your question, that's data,

numerical data, quantitative data.

· · Q.· ·And that's for generally obtaining

tenure at an R1?

· · A.· ·That's correct.

· · Q.· ·Okay.· You would expect an institution

in all of your years in academia and

administration, you would expect an institution

Page 196

to follow its own, abide by its own policies and

procedures, correct?

· · A.· ·Yes.

· · · · · · · MS. WERMUTH:· Objection to the

question on relevance grounds.· This goes beyond

her opinion, which she has clearly identified her

sole opinion in the report.

BY MR. BRAMWELL:

· · Q.· ·And when you evaluate a -- you have

obviously evaluated would you say hundreds of

files for people looking to be hired and looking

to obtain tenure?

· · A.· ·Yes.

· · · · · · · MS. WERMUTH:· Objection, relevance.

BY MR. BRAMWELL:

· · Q.· ·And do you ever deviate from your

institution's policies and procedures?

· · · · · · · MS. WERMUTH:· Objection, relevance.

· · · · · · · THE WITNESS:· No, I would be in a

world of hurt if I did that.· I do not.

BY MR. BRAMWELL:

· · Q.· ·Why would you be in a world of hurt?

· · A.· ·Because shared governance is so strong

here.· Another thing is if I were to do that,

Page 197

let's say when I was on an executive committee in

my department, other people would argue against

it, and probably call me out for violating

faculty policies and procedures.· So that would

have been at that level.

· · · · · · · · · · · ·On the divisional

committee, we would have other members of the

committee would be sort of policing -- policing

one another.· And then as an Associate Dean,

there would be oversight by the Dean and the

other Associate Deans, and also the other faculty

members, like if there -- I have been grieved. I

have been grieved several times, and I have had

these cases appealed, you know.· We have gone

through appeals that go out to many levels.

· · · · · · · · · · · ·I think it is much better

to stick to the faculty policies and procedures

than to violate them and end up having to go

through a very lengthy appeal process, and also

to lose the confidence of colleagues because

you're violating faculty policies and procedures.

· · Q.· ·Ms. Wermuth asked you some questions

about some journals that you referenced.· I just

want to go through them fairly quickly.· You are

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an academic and administrator, correct?

· · A.· ·Correct.

· · Q.· ·Do academics and administrators pay

attention to the Carnegie rankings?

· · A.· ·Yes.

· · · · · · · MS. WERMUTH:· Objection, vague.

BY MR. BRAMWELL:

· · Q.· ·Same question with respect to the U.S.

News and World Report rankings?

· · · · · · · MS. WERMUTH:· Objection,

foundation, vague.

· · · · · · · THE WITNESS:· So I can tell you

that routinely the Chancellor and the Provost,

Department Chairs, and Deans, University

Communications, and Alumni Publications, and

local newspapers publish the various rankings,

including, you know, of the -- how UW Madison and

its programs fair in those rankings, you know, in

world rankings as well as U.S. News.

BY MR. BRAMWELL:

· · Q.· ·Do you ever have discussions with

colleagues of other universities about U.S. News

and World Report rankings?

· · A.· ·I think I have had -- yeah, I think, you

Page 199

know, in general.· But actually to be honest we

talk about NRC rankings more because that's the

hard core -- but those are just for graduate

programs, doctoral programs.

· · Q.· ·What about the Chronicle of Higher

Education?· What is that and do faculty and

administrators generally care about it?

· · · · · · · MS. WERMUTH:· Objection, relevance,

foundation.

BY MR. BRAMWELL:

· · Q.· ·You can answer.

· · A.· ·So the Chronicle of Higher Education is

the most well read publication of the, you know,

higher ed as an industry.· It is the most well

read industry publication.· I can tell you in the

Dean's reception area it sits right there.· It

sits in the Provost's reception area.· I haven't

been in the Chancellor's that much recently, but

it is highly read by academic administrators and

faculty too.

· · Q.· ·Ms. Wermuth asked you about anecdotal

evidence.· Is that another way of saying a case

study?

· · · · · · · MS. WERMUTH:· Objection to the form

Page 200

of the question.· Misstates my question and is

argumentative.

BY MR. BRAMWELL:

· · Q.· ·You can answer.

· · A.· ·Okay.· So what I -- I did rephrase the

anecdotal evidence into case studies because as I

mentioned, I did try to find statistical data on,

you know, how many faculty are non-renewed or

non-tenured and what happens to them after that,

and I did not find that.· So what I tried to do

is find examples of what happens.

· · · · · · · · · · · ·So I know -- I have a

number of cases, you know.· I can give you some

examples if you wish of people who have not been

tenured at this R1 institution and what they

ended up doing.· But I also wanted to find case

studies and examples of people that tell their

story and say what they have been doing and

consequences for their employability and what

happened after they were denied tenure.· And I

think that that's hopeful for folks to see those

case studies, in addition to the, you know, years

of experience that I bring in in all the cases

that I'm aware of.

Page 201

· · Q.· ·Ms. Wermuth asked you, she spent a lot

of time on Exhibit 3.2, if you remember?

· · A.· ·Yes.

· · · · · · · MS. WERMUTH:· Objection to the

narrative of the question.

BY MR. BRAMWELL:

· · Q.· ·I'm just going to pull it up here to

page 16.· I'm going to highlight the last

sentence.· You see that up there?

· · A.· ·Yes.

· · Q.· ·And the last sentence reads "by the

tenure review, a faculty member's performance

should be excellent in at least 2 of 3 areas and

very good in a third." Do you see that there?

· · A.· ·Yes.

· · Q.· ·And the 3 areas are teaching, research,

and service?

· · A.· ·Yes.

· · Q.· ·So I would have thought this would have

been obvious, but since you got a lot of

questions on it, maybe I'll just delve into it a

little bit.· This tells you that you can receive

tenure at DePaul without excellence in research,

correct?

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Page 202

· · · · · · · MS. WERMUTH:· I'm going to object

to the form of the question, and I really object

to the way Counsel is characterizing my

examination which is uncivil and unprofessional

and argumentative.

BY MR. BRAMWELL:

· · Q.· ·You can answer.

· · A.· ·I'm going to just answer based on what I

have seen here.· This sentence says that you can

get tenure if 2 areas are excellent and a third

is very good.

· · Q.· ·Right.· So you don't need to demonstrate

excellence -- you don't need to demonstrate

excellence in research to obtain tenure at

DePaul?

· · A.· ·It does not say that you do.

· · Q.· ·You don't need to demonstrate excellence

in teaching to obtain tenure at DePaul?

· · · · · · · MS. WERMUTH:· Objection, misstates

the record of evidence.

BY MR. BRAMWELL:

· · Q.· ·You can answer.

· · A.· ·So this sentence just says you have to

be excellent in 2 of 3 areas.· So one you don't

Page 203

have to be excellent in.· It could be teaching,

it could be research, it could be service, based

on what is said here.

· · Q.· ·And at North Carolina, you need to

demonstrate excellence in both teaching and

research, right?

· · A.· ·Right.· And then it says that service

won't get you there.· Service won't get you

tenure.

· · Q.· ·Looking at -- let's see if I can find it

here.· Here it is.· Remember when Ms. Wermuth

showed you on page 7 of Exhibit 3.3, I think

there was a lot of time spent discussing the

clear promise of excellence in teaching and

scholarship and/or equivalent creative artistic

activity and completion of all requirements for

the doctorate or other terminal degree.

· · · · · · · MS. WERMUTH:· I'm going to object

to the form the question, especially insofar as

it mischaracterizes the examination and

improperly characterizes the examination.

BY MR. BRAMWELL:

· · Q.· ·So Doctor Zaeske, what does this

sentence mean to you with respect to what it

Page 204

takes to be hired at UNC?

· · A.· ·And I said this a few minutes ago, and

that is, you know, clear promise means there is a

record, a clear record of publication and

scholarly productivity that shows that the person

is tenurable, and they are not going to be hired

at a place like Wisconsin or UNC without showing

that they are highly productive because they are

not going to get tenure.

· · · · · · · · · · · ·And also as I said, right

now there is so much competition for positions

that in order to stand out, you have to be highly

productive.· You have to show that you -- that

you're going to generate a lot of articles and

enough articles for sure to get tenure, and that

you have strong promise of finishing that book.

You are turning the dissertation into a book and

getting it published, and that you even have --

usually when I'm talking to people I'm

interviewing, I ask them where do you think --

what are their presses that they want to get

published with?· If they tell me they are going

to get published at Rutledge or something like

that, I'm going to think no, this is not a good

Page 205

candidate.· I want to see them getting published

at a university press, a prestigious university

press.

· · · · · · · · · · · ·Then I ask them what they

are going to be -- what they are likely to work

on as their second project.· This is even as they

are interviewing, you know, for an assistant

professorship.· So they have to clearly

demonstrate that they have -- that they know what

it takes, that they have progressed

significantly, they have stuff in the pipeline,

and that they are tenurable.· That's what is

meant by clear promise.

· · Q.· ·Okay.· Anything else you would like to

share with us this afternoon?

· · · · · · · MS. WERMUTH:· Objection to the form

of the question.

BY MR. BRAMWELL:

· · Q.· ·You can answer.

· · A.· ·I think that's it.

· · · · · · · MR. BRAMWELL:· All right.· I'll

pass you back to Ms. Wermuth and see if she has

anything else.

· · · · · · · MS. WERMUTH:· I do.

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Page 206

· · · · · · · FURTHER EXAMINATION

· · · · · · · · ·BY MS. WERMUTH:

· · Q.· ·Doctor Zaeske, Mr. Bramwell took you

through the website at the Indiana University

Carnegie Classification?

· · A.· ·Right.

· · Q.· ·In that exercise, the 2 of you

demonstrated that Yale is in fact an R1

institution, right?

· · A.· ·Right.

· · Q.· ·And the 2 of you demonstrated that

University of Chicago is in fact an R1

institution, right?

· · A.· ·Right.

· · Q.· ·And the 2 of you demonstrated that

Northwestern University is in fact an R1

institution, right?

· · A.· ·Correct.

· · Q.· ·Okay.· So that would then tell us that

the exhibit that you attached as Exhibit 1 to

your report, Exhibit 3.1, is an inaccurate

listing; is that fair?

· · A.· ·It is, yes.

· · Q.· ·Thank you.· Just to close this out, you

Page 207

have not reviewed Doctor Calvente's record of

scholarship, correct?

· · A.· ·No.

· · · · · · · MS. WERMUTH:· I have nothing

further.

· · · · · · · MR. BRAMWELL:· Just one other

thing.

· · · · · · · · FURTHER EXAMINATION

· · · · · · · · · BY MR. BRAMWELL:

· · Q.· ·You know that University of North

Carolina Chapel Hill is an R1?

· · A.· ·Yes.

· · · · · · · MR. BRAMWELL:· Okay.· That's it.

We will reserve signature.

(Off the record at 3:07 p.m.)

Page 208 STATE OF ILLINOIS· )

· · · · · · · · · ·)· SS.

COUNTY OF McHENRY· )

· · ·I, GINA MARIE ZANGARA, C.S.R., do hereby

certify that DOCTOR SUSAN ZAESKE was by me first

duly sworn, to testify the truth, the whole

truth, and nothing but the truth, and that the

above deposition, pages 4 through 207, inclusive,

was recorded by me and reduced to typewriting by

me.

· · ·I FURTHER CERTIFY that the foregoing

transcript of the said deposition is a true and

correct transcript of the testimony given by the

said witness at the time and place specified

hereinbefore.

· · ·I FURTHER CERTIFY that I am not a relative

or employee or attorney for counsel of any of the

parties, nor a relative or employee of such

attorney or counsel, or financially interested

directly or indirectly in this action.

· · ·IN WITNESS WHEREOF, I have hereunto set my

hand at Crystal Lake, Illinois, this 20th day of

July, 2021.

· · · · · · · ________________________

· · · · · · · Gina Marie Zangara

· · · · · · · Certified Shorthand Reporter

· · · · · · · McHenry County, IL

· · · · · · · CSR License No. 084-003242.

Page 209 · · · · · · · · · ·ERRATA SHEET

Deposition of DOCTOR SUSAN ZAESKE on 7-8-21

·Page· · · · ·Line· · · · · Correction

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_________________________________________________

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_________________________________________________

_________________________________________________

_________________________________________________

_________________________________________________

_________________________________________________

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_________________________________________________

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_________________________________________________

_________________________________________________

_________________________________________________

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Exhibit C

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PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

DR. RACHEL TUDOR, 

 Plaintiff - Appellant/Cross-Appellee, 

v. 

SOUTHEASTERN OKLAHOMA STATE 

UNIVERSITY; THE REGIONAL 

UNIVERSITY SYSTEM OF 

OKLAHOMA, 

 Defendants - Appellees/Cross-

 Appellants. 

------------------------------ 

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; 

Nos. 18-6102 & 18-6165 

FILED 

United States Court of Appeals 

Tenth Circuit 

September 13, 2021

Christopher M. Wolpert 

Clerk of Court

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2 

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 DefendantsAppellees. 

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 

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3 

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 

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 

awarded her damages. The district court then applied the Title VII statutory cap to 

reduce the jury’s award, denied Dr. Tudor reinstatement, and awarded front pay. 

Both parties appeal. Southeastern challenges evidentiary rulings and the jury 

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 

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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4 

jurisdiction under 28 U.S.C. § 1291, we AFFIRM in part and REVERSE in part and 

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 

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. 

Approximately three years later, in the spring of 2007, however, Dr. Tudor informed 

Southeastern’s Human Resources Office that she planned to transition from male to 

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). 

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5 

president of academic affairs. Each entity issues a recommendation to the university 

president, who then makes the final tenure determination and seeks approval from the 

RUSO governing board. To obtain tenure, then, Dr. Tudor needed to receive a 

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 

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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6 

department chair, voting against). Dr. Mischo, the then department chair, also 

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 

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7 

President McMillan in which he stated that Southeastern’s academic policies and 

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, 

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 

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 twoyear 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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9 

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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10 

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 

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 

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 

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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 

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 

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. 

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 

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 

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. 

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. 

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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 offthe-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 

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. 

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 

Southeastern cites to support excluding the testimony of tenure experts as irrelevant 

and unreliable on the grounds that tenure decisions are inherently subjective. (SE Br. 

32 (collecting cases).) These cases do not render the district court’s decision here 

manifestly unreasonable because the court was not bound by them.7

 Further, Dr. 

Parker did not create his own, personal standards for tenure qualification but rather 

relied upon, for example, Southeastern’s criteria for tenure and promotion, and 

general standards for judging scholarship in the field. 

To the extent that Southeastern had valid concerns regarding Dr. Parker’s 

methodology, such as sample size and failure to consider denied applications, these 

were appropriate topics for cross-examination. See Daubert, 509 U.S. at 596. 

District courts are given “broad discretion” in expert witness determinations, Dodge, 

328 F.3d at 1223, and we cannot say that the district court abused that discretion in 

this case. 

3. Summary Judgment 

Next, because a jury trial has already occurred, we reject Southeastern’s 

challenge to the district court’s denial of its motion for summary judgment. Ortiz v. 

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 

developed in court supersedes the record existing at the time of the summaryjudgment motion.”).8

 Even if we did consider Southeastern’s challenge, it has no 

merit in light of Bostock, 140 S. Ct. 1731. 

4. Judgment as a Matter of Law 

Southeastern lastly appeals the district court’s denial of its motion for 

judgment as a matter of law under Fed. R. Civ. P. 50(a) and (b). This Court reviews 

the district court’s Rule 50(b) ruling de novo. Mountain Dudes v. Split Rock 

Holdings, Inc., 946 F.3d 1122, 1129 (10th Cir. 2019). The district court dismissed 

Southeastern’s 50(b) motion as untimely and, alternatively, denied it on the merits. 

Dr. Tudor also argues on appeal that the 50(b) motion was not preserved. Because 

we reject Southeastern’s challenge on the merits, concluding that the jury verdict is 

supported by the evidence, we can assume without deciding that its renewed motion 

for judgment as a matter of law was both timely and preserved. 

“Judgment as a matter of law under Rule 50 ‘is appropriate only if the 

evidence points but one way and is susceptible to no reasonable inferences which 

may support the nonmoving party’s position.’” Mountain Dudes, 946 F.3d at 1129 

(quoting In re Cox Enters., Inc., 871 F.3d 1093, 1096 (10th Cir. 2017)). This Court 

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 

must be viewed in the light most favorable to the nonmoving party. Id. at 1130. 

Southeastern contends that the district court erroneously denied its Rule 50(b) 

motion because the jury verdict in favor of Dr. Tudor on her claims of discrimination 

and retaliation was not supported by sufficient evidence. After careful review of the 

complete evidence in the light most favorable to Dr. Tudor, we conclude that it was 

clearly sufficient for a jury to find by a preponderance of the evidence that Dr. Tudor 

was denied tenure in 2009-10, as well as denied the opportunity to reapply in 2010-

11, on the basis of sex, and that Southeastern refused to allow her to reapply in 2010-

11 in retaliation for her Title VII complaints.9 In part, we rely on statements from 

Dean Scoufos about Dr. Tudor’s appearance; Vice President McMillan’s statements 

about Dr. Tudor’s lifestyle and his recommendation that Dr. Tudor should be 

summarily fired when he learned she was transgender; Affirmative Action Officer 

Stubbefield’s sarcastic reference to Dr. Tudor’s new identity; Dr. Parker’s expert 

testimony that Dr. Tudor was more qualified than other professors in Dr. Tudor’s 

same department who were granted tenure; Dr. Cotter-Lynch’s testimony about Dr. 

Tudor’s qualifications; Dr. Mischo’s and Dr. Spencer’s testimony that Dr. Tudor’s 

portfolio was “sufficient” for tenure (Tudor R. vol. 7 at 158, 210); Dr. Tudor’s, Dr. 

Mischo’s and Dr. Cotter-Lynch’s testimony that they had never heard of a rule 

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 

Dr. Tudor’s protected activity and the denial of the opportunity for her to reapply for 

tenure; as well as evidence mentioned earlier in this opinion. 

Southeastern asserts that “President Minks was the relevant decision-maker,” 

and Dr. Tudor failed to present any evidence that he discriminated against Dr. Tudor 

when he denied her tenure. (SE Br. 45–46.) Dr. Tudor does not dispute President 

Minks is the ultimate decisionmaker; instead, she invokes the “cat’s-paw” theory of 

recovery. “Under a cat’s-paw theory of recovery (also known as ‘subordinate bias’ 

or ‘rubber stamp’ theory), an employer who acts without discriminatory intent can be 

liable for a subordinate’s discriminatory animus if the employer uncritically relies on 

the biased subordinate’s reports and recommendations in deciding to take adverse 

employment action.” Thomas v. Berry Plastics Corp., 803 F.3d 510, 514 (10th Cir. 

2015). Here, Dr. Tudor contends she presented evidence from which a jury could 

conclude that President Minks rubberstamped Vice President McMillan’s decisions, 

and the latter’s decisions were based on discriminatory animus. (Tudor Reply 71–

72.) 

Evidence supporting this theory includes that President Minks delegated the 

responsibility to Vice President McMillan to provide the administration’s official 

rationale for Dr. Tudor’s tenure denial in 2009-10, and he did the same for the 

administration’s official decision to bar her tenure reapplication in 2010-11. (Id. at 

72 (citing Tudor R. vol. 6 at 31 (President Minks’s letter in which he informs Dr. 

Tudor that he “delegated the responsibility to Dr. McMillan for providing you with 

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the reasons for my denial” of tenure in 2009); Tudor R. vol. 5 at 229 (Vice President 

McMillan’s letter to Dr. Tudor in which he states that he (i.e., Vice President 

McMillan) made the “decision as acting chief academic officer that your 

application/request and portfolio will not be accepted for review for the 2010-2011 

academic year”)).) Moreover, Dr. Knapp, who sat on all three of the faculty 

appellate committees that heard Dr. Tudor’s grievances, testified that “[i]t seemed 

that the application was stopping with Dr. McMillan.” (Tudor R. vol. 8 at 29–30.) 

Further, evidence was presented at trial that Vice President McMillan told Dr. Tudor 

he would recommend that President Minks deny her tenure. (SE Br. 9 (citing Tr. vol. 

1 at 64–65; SE App. vol. 3 at 806).) Vice President McMillan’s negative 

recommendation was followed by President Minks’s denial, even though the faculty 

committee who reviewed Dr. Tudor’s portfolio had voted 4-to-1 in favor of granting 

her tenure. 

Southeastern also contends Dr. Tudor did not raise the cat’s paw theory below, 

and the jury was not instructed on it, so it is waived. (SE Reply 22.) But by 

Southeastern’s own repeated and very explicit admissions, this was precisely the 

theory Dr. Tudor presented to the jury. Southeastern asserts: Dr. Tudor’s “theory at 

trial was that the discrimination and retaliation originated with [Vice President] 

McMillan. During closing, [Dr. Tudor’s] attorney claimed that ‘[a]ll of this, it all 

went back to Doug McMillan’ and that ‘[Vice President] McMillan pulled the puppet 

strings to push Rachel out of that university.’” (SE Br. 20 (emphases added) (quoting 

Tr. vol. 5 at 837, 841); see also id. at 46 (stating Dr. Tudor’s “entire theory of the 

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case was that the true culprit was [Vice President] McMillan”).) The cases 

Southeastern cites are all clearly distinguishable from the facts in the case before us. 

For all these reasons, we affirm the district court’s denial of Southeastern’s 

renewed motion for judgment as a matter of law.

B. Dr. Tudor’s Appeal 

We now turn to Dr. Tudor’s appeal, which challenges several of the district 

court’s post-verdict remedy holdings. Dr. Tudor appeals the district court’s denial of 

her request for reinstatement, the district court’s front pay award, and its application 

of the Title VII statutory cap on damages to the jury award. We affirm the district 

court’s application of the Title VII damages cap, but we reverse the denial of 

reinstatement and its front pay rulings. We remand to the district court for a 

recalculation of the front pay award and for an order requiring Dr. Tudor’s 

reinstatement with tenure.

1. Reinstatement 

After prevailing at trial, Dr. Tudor requested reinstatement with tenure. The 

district court denied that request, finding that “reinstatement is simply not feasible in 

this case.” (Tudor R. vol. 4 at 128.) This Court reviews the district court’s decision 

to deny reinstatement for abuse of discretion. Abuan v. Level 3 Commc’ns, Inc., 353 

F.3d 1158, 1176 (10th Cir. 2003). We reverse, concluding on this record that Dr. 

Tudor is entitled to reinstatement with tenure. 

a. Legal Background 

Under Title VII, 

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[i]f the court finds that the respondent has intentionally 

engaged in or is intentionally engaging in an unlawful 

employment practice charged in the complaint, the court 

may . . . order such affirmative action as may be appropriate, 

which may include, but is not limited to, reinstatement or 

hiring of employees, with or without back pay . . . , or any 

other equitable relief as the court deems appropriate. 

42 U.S.C. § 2000e-5(g)(1). “[R]einstatement is the preferred remedy and should be 

ordered whenever it is appropriate . . . .” Abuan, 353 F.3d at 1176 (emphasis added). 

This clear preference for reinstatement fulfills Title VII’s purpose of providing makewhole relief to victims of employment discrimination, and the district court’s 

discretion to fashion relief is confined by this purpose. Albemarle Paper Co. v. 

Moody, 422 U.S. 405, 418 (1975) (“It is also the purpose of Title VII to make 

persons whole for injuries suffered on account of unlawful employment 

discrimination.”); Zisumbo v. Ogden Reg’l Med. Ctr., 801 F.3d 1185, 1203 (10th Cir. 

2015) (observing that the court’s exercise of discretion to fashion remedies under 

Title VII “must be tied to Title VII’s twin purposes of” preventing discrimination and 

making victims whole). 

A court’s inquiry into whether reinstatement is appropriate after a jury verdict of 

discrimination and retaliation in plaintiff’s favor therefore does not take place on a level 

playing field. Instead, courts must start with the strong preference for reinstatement, and 

then ask if the defendant has overcome this presumption by establishing the existence of 

extreme hostility between the parties. See EEOC v. Prudential Fed. Sav. & Loan Ass’n, 

763 F.2d 1166, 1173 (10th Cir. 1985) (remanding ADEA case where district court 

awarded front pay without explaining in the first instance why reinstatement was 

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inappropriate). Because some hostility will inevitably be present in every case, we 

emphasize that the hostility must be extreme to defeat the preference for reinstatement: 

“Reinstatement may not be appropriate . . . when the employer has exhibited such 

extreme hostility that, as a practical matter, a productive and amicable working 

relationship would be impossible.” Id. at 1172 (emphasis added) (ADEA); see also 

McInnis v. Fairfield Cmtys., Inc., 458 F.3d 1129, 1145 (10th Cir. 2006) (Title VII). 

To clarify, this test does not require complete harmony among the plaintiff, the 

employer, and other employees—a certain amount of hostility and friction among 

workers is to be tolerated and expected, especially following litigation. That there is 

some hostility, then, will not be enough to justify a denial of the preferred remedy of 

reinstatement. Put another way, the extreme hostility test is not a measure of affection 

between an employee, employer, and colleagues. The fondness, or lack thereof, that they 

feel for one another does not necessarily correlate with their ability to work together. 

There are plenty of workarounds and solutions making reinstatement possible in cases 

where some animosity exists, such as a remote office, a new supervisor, or a clear set of 

workplace guidelines. And, as discussed further below, some positions such as higher 

education teaching and scholarship are inherently fairly insulated from the adverse 

sentiments of colleagues. Courts must look beyond ill feeling and instead address simply 

whether a productive working relationship would still be possible, and they must do so 

through the lens of a strong preference for reinstatement. See Bingman v. Natkin & Co., 

937 F.2d 553, 558 (10th Cir. 1991) (reinstatement should be granted in “all but special 

instances of unusual work place hostility”). 

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The extreme hostility inquiry is not prone to a mechanistic approach of keywords 

or checklists. It instead requires the court to review the specific factual situation before it 

and ask if the relationship can be made productive and workable for the plaintiffemployee to return to the work environment. 

In addition, the extreme hostility test is an objective one, wherein the district court 

assesses how the working relationship could function in practice under workable 

safeguards and parameters. Were it otherwise, the test would be rendered unworkable 

because the parties would essentially be given veto power to prevent reinstatement 

simply based on their own, subjective views about future hostility. In other words, if the 

subjective feelings of the employee or employer were controlling, the “extreme hostility” 

exception would swallow the rule preferencing reinstatement. See Jackson v. City of 

Albuquerque, 890 F.2d 225, 234 (10th Cir. 1989) (in the § 1983 context, stating, “Unless 

we are willing to withhold full relief from all or most successful plaintiffs in discharge 

cases, and we are not, we cannot allow actual or expected ill-feeling alone to justify 

nonreinstatement” (quoting Allen v. Autauga Cnty. Bd. of Educ., 685 F.2d 1302, 1306 

(11th Cir. 1982))); Fester v. Farmer Bros. Co., 49 F. App’x 785, 794 (10th Cir. 2002) 

(unpublished) (citing the extreme hostility test and affirming the district court’s grant of 

reinstatement despite defendant arguing that extreme hostility existed).10 

10 This is not to say that subjective feelings are irrelevant. They can serve as 

helpful evidence in applying the objective test and should be considered alongside all 

other circumstances. See, e.g., Abuan, 353 F.3d at 1177–78 (in addition to objective 

evidence of extreme hostility between the parties, plaintiff’s distrust of the employer 

suggested that a working relationship was impossible); Jackson, 890 F.2d at 234 (that 

(continued) 

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Because this is a civil case, we apply a preponderance of the evidence standard, 

asking if it is more likely than not that extreme hostility would make a productive 

working relationship impossible—not just difficult or imperfect. Century Sur. Co. v. 

Shayona Inv., LLC, 840 F.3d 1175, 1177 (10th Cir. 2016). 

One other factor we consider is whether the extreme hostility argument is being 

asserted by the plaintiff or defendant. Often, as in this case, the defendant is a large 

institution that should have sufficient resources to eliminate or otherwise ameliorate any 

hostility on its side toward the plaintiff. And when, as here, the plaintiff affirmatively 

seeks reinstatement, we can typically assume that the plaintiff is not asserting she would 

confront extreme hostility after reinstatement. 

In summary, the extreme hostility defense faces a significant presumption in favor 

of reinstatement. Under the facts before us, it was manifestly unreasonable for the 

district court to conclude that extreme hostility made a productive working relationship 

between Dr. Tudor and Southeastern impossible. The evidence here so clearly weighs 

against a finding of extreme hostility that this case is one of those rare instances where 

we must conclude that it was an abuse of discretion to deny Dr. Tudor’s request for 

reinstatement with tenure. 

the plaintiff had “always sought reinstatement to his former position” was one factor 

in the court’s decision that reinstatement was appropriate despite other evidence of 

hostility among the parties). Subjective evidence will be more important in some 

cases than in others. For example, subjective feelings should not control when the 

objective evidence clearly points in the opposite direction. See Bingman, 937 F.3d 

553 (affirming reinstatement despite the fact that plaintiff, who had misgivings and 

concerns about returning to work, preferred front pay because other evidence showed 

that the parties were on good terms). 

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b. Factual Application 

Although the extreme hostility test considers the perspectives of both the employer 

and the employee, in this case we need not spend much time examining Dr. Tudor’s 

viewpoint because she has unequivocally stated that she “desire[s] to be reinstated as an 

Associate Professor with tenure” at Southeastern. (Tudor R. vol. 4 at 186.) As there is 

no evidence that this desire is not genuine, we take her at her word, which clearly weighs 

in favor of the preferred remedy of reinstatement. See Jackson, 890 F.2d at 234 

(reversing denial of reinstatement in part because the plaintiff had “always sought 

reinstatement to his former position”). The only issue in contention, then, is whether 

Southeastern has established that extreme hostility would make it impossible for it to 

reestablish a productive working relationship with Dr. Tudor. 

Southeastern fails to establish extreme hostility, for two primary reasons: 1) 

Southeastern’s evidence in favor of finding extreme hostility is insufficient on its own; 

and 2) regardless, the unique circumstances presented here (discussed below) point 

squarely towards a low likelihood of extreme hostility, far outweighing the evidence to 

the contrary. 

i. Evidence in favor of extreme hostility

Southeastern attempted to prove extreme hostility in this case by pointing to 1) 

hostility within the litigation context, and 2) a statement by Dr. Prus, the current English 

Department chair, that some people in the department did not want Dr. Tudor to return. 

Both are insufficient. 

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To start, Southeastern cites examples of hostility during the course of the 

litigation, including Dr. Tudor engaging in what Southeastern contends were unfair 

litigation practices, such as releasing expedited trial transcripts online and leaking 

settlement discussion emails. But evidence of litigation hostility falls far short of 

demonstrating the requisite extreme hostility. 

As an initial matter, litigation-based animosity will be present in nearly every case, 

and thus, if it alone could establish extreme hostility, the clear preference for 

reinstatement would be rendered meaningless in practice. See EEOC v. Century Broad. 

Corp., 957 F.2d 1446, 1462 (7th Cir. 1992) (“‘[H]ostility common to litigation [should] 

not become an excuse to avoid ordering reinstatement on a general basis.’ If ‘hostility 

common to litigation’ would justify a denial of reinstatement, reinstatement would cease 

to be a remedy except in cases where the defendant felt like reinstating the plaintiff.” 

(second alteration in original) (citation omitted) (quoting Coston v. Plitt Theatres, Inc., 

831 F.2d 1321, 1331 (7th Cir. 1987), vacated on other grounds, 486 U.S. 1020 (1988))). 

Further, hostility within the litigation context does little to demonstrate the 

likelihood of hostility in the entirely different work-environment context. In litigation, 

for example, much of the communication is filtered by lawyers and takes place in the 

courtroom, where hostility is commonplace, rather than in the classroom or office. We 

accordingly give the litigation-hostility evidence in this case little weight. Cf. Abuan, 

353 F.3d at 1178 (affirming denial of reinstatement when, among other things, hostility 

occurred outside the confines of litigation, including between plaintiff’s counsel and 

defendant executives in his neighborhood); Jackson, 890 F.2d at 231 (reversing the denial 

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of reinstatement despite serious litigation hostilities, including derogatory language in the 

courtroom, the burglary of plaintiff’s files from his attorney’s office, negative newspaper 

comments made by defendant after trial, and threatened prosecution by the defendant of 

parties related to the settlement negotiations). 

In addition to evidence of litigation hostility, Southeastern proffers the testimony 

of Dr. Prus, the current English Department chair, as evidence that reinstatement is 

infeasible. Dr. Prus testified at trial that he did not “think it would be a good thing for 

[the English] department if Dr. Tudor came back to work there now,” nor did he think it 

would be a good thing for the students or for the university. (Tudor R. vol. 8 at 6.) Dr. 

Prus further testified that he spoke with his colleagues and they were “split at best” about 

the possibility of Dr. Tudor’s return, with a few “who would object to it for a variety of 

reasons.” (Id. at 9.) In a post-trial declaration, he elaborated that “at least half of the 

faculty oppose Dr. Rachel Tudor’s possible return to work” at Southeastern and thus 

reinstatement would be “detrimental to department functioning and collegiality.” (SE 

App. vol. 2 at 479.)11 

In substance, Dr. Prus’s testimony simply says that some (unnamed) individuals 

do not want Dr. Tudor to return, not that she would necessarily face extreme hostility 

from those individuals if she were to return. This distinction matters. Co-workers who 

dislike one another work professionally in the same environment all the time. Without 

11 To the extent that Dr. Prus’s testimony presents a hearsay problem, we do 

not address it because Dr. Tudor did not adequately raise the issue. (Tudor Reply 

15–16 (stating that Dr. Prus’s statements are hearsay without providing any 

explanation other than one citation).) 

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additional, supporting evidence that it would be impossible for those who oppose Dr. 

Tudor’s reinstatement to work productively in the same department as her, Dr. Prus’s 

conclusory statement that department functioning would be negatively affected falls far 

short of establishing extreme hostility. There is also no evidence regarding how or why 

students and the university would be negatively impacted by Dr. Tudor’s return, despite 

what Dr. Prus claimed. If one person speculating in a general and conclusory manner 

could be enough to establish extreme hostility, defendant-employers could avoid 

reinstatement—and therefore prevent successful plaintiffs from obtaining make-whole 

relief—with ease. 

As a matter of law, these facts do not constitute the extreme hostility needed to 

overcome the law’s preference for reinstatement. And even if we did find them 

persuasive, they are outweighed by the contrary evidence discussed below. 

ii. Evidence in favor of reinstatement 

Not only do the shortcomings in the evidence above demonstrate that Southeastern 

has provided little proof that extreme hostility will be likely, other evidence affirmatively 

demonstrates why it is, in fact, not likely. This evidence includes: 1) Southeastern’s 

Settlement Agreement with the DOJ, 2) the fact that almost all primary antagonists have 

left Southeastern, and 3) the insulated nature of tenured professorships. The district 

court’s observation below that “Plaintiff’s only evidence in favor of reinstatement was 

the testimony of Dr. Meg Cotter-Lynch” overlooks the realities present in this case. 

(Tudor R. vol. 4 at 129.) 

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First, Southeastern previously entered into a Settlement Agreement with the DOJ, 

resolving the Title VII Complaint filed by the United States in relation to the same facts 

of this case. In that settlement, Southeastern agreed to hold mandatory Title VII training 

and implement policy changes, among other things, in order to reduce discrimination. 

These procedural changes target the very discrimination faced by Dr. Tudor and make it 

less likely to reoccur. This is a powerful indicator that Dr. Tudor’s return to work at 

Southeastern is feasible. 

Next, almost all the primary antagonists in this case have left Southeastern. 

Jackson, 890 F.2d at 232 (reversing denial of reinstatement in part because “most of those 

making complaint against plaintiff are no longer employed by [the defendant]”). 

President Minks, Vice President McMillan, and Dean Scoufos—all the administrators 

who denied Dr. Tudor tenure and denied her the opportunity to reapply for tenure—are 

no longer at Southeastern. Additional administrators who handled Dr. Tudor’s 

complaints also no longer work at Southeastern, including Charles Babb, the general 

counsel; Claire Stubblefield, the affirmative action officer; and Cathy Conway, the 

human resources director. 

The only potential antagonist still remaining is Dr. Prus, the current English 

Department chair, who has made it clear that he opposes Dr. Tudor’s reinstatement.12 

12 In its briefing, Southeastern additionally argues that Dr. Bryon Clark, who 

Dr. Tudor testified “made up new rules” against her, remained at Southeastern as the 

Vice President for Academic Affairs. (SE Br. 60 (quoting Tudor R. vol. 6 at 124).) 

This Court, however, takes judicial notice that Dr. Clark has since retired. Dr. Bryon 

Clark Retiring After 30 Years at Southeastern, Se. Okla. State Univ. (Apr. 23, 2020), 

(continued) 

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But Dr. Prus never participated in any of the Title VII violations and was even called by 

Dr. Tudor to testify at trial. Even though he voted against tenure while serving on Dr. 

Tudor’s faculty committee in 2009-10, he testified that he stood by the committee’s 

decision to grant it, and that he thought Dr. Tudor’s 2010-11 tenure application would 

have merited tenure. This behavior suggests that Dr. Prus would be able to set his 

personal feelings or reservations aside and work with Dr. Tudor in a productive and 

professional manner. 

 Third, the structure and nature of a tenured professorship insulates such professors 

from ordinary hostilities among contemporaries. In other words, a tenured university 

professor holds an insular position that can effectively operate without the need for 

extensive collaboration with colleagues or school administrators. Indeed, tenure was 

designed to promote academic freedom by insulating professors from conflicting 

opinions. In a small, team-focused, or cooperative workplace, we might worry more 

about hostility among coworkers. Here, however, we give less weight to hostility from 

Dr. Tudor’s colleagues who will need to interact with her on only a minimal basis. While 

Southeastern counters that, even if Dr. Tudor will not need to interact frequently with 

coworkers, she will certainly interact with students, there is no evidence that Dr. Tudor 

will not be able to maintain positive relationships with her students, who were not 

involved in and indeed may not even know about her prior dispute with the university. 

https://www.se.edu/2020/04/dr-bryon-clark-retiring-after-30-years-at-southeastern; 

U.S. v. Burch, 169 F.3d 666, 671 (10th Cir. 1999) (“Judicial notice may be taken at 

any time, including on appeal.”). 

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 Ultimately, whether reinstatement is appropriate and feasible in this case is not a 

close question, but even if it were, the clear preference for reinstatement serves as an 

additional weight on the scale, tipping it further in favor of reinstatement. Thus, starting 

with this presumption and considering Southeastern’s almost complete lack of evidence 

demonstrating extreme hostility—made even more unpersuasive by the countervailing 

evidence in favor of reinstatement—it was an abuse of discretion for the district court to 

deny Dr. Tudor reinstatement. We reverse and grant Dr. Tudor reinstatement at 

Southeastern with tenure. 

c. Southeastern’s Objections to Reinstatement with Tenure

Southeastern advances several objections to reinstatement that are worth 

addressing, particularly given that Dr. Tudor’s reinstatement is with tenure, creating a 

long-term relationship between the parties. Most significantly, Southeastern raises 

concerns about this Court’s involvement in its academic decisions and educational 

processes. This Court is not a school board and we agree with Southeastern that courts 

should not make education decisions. Villanueva v. Wellesley Coll., 930 F.2d 124, 129 

(1st Cir. 1991) (“[I]t is not the function of the courts to sit as ‘super-tenure’ 

committees.”). We therefore do not take lightly our decision to grant Dr. Tudor 

reinstatement with tenure. 

This is not, however, a situation where we are giving Dr. Tudor something that she 

would not have earned absent Southeastern’s unlawful discrimination. To the contrary, 

in addition to requiring that the discrimination be a motivating factor in the employment 

decisions, the jury instructions directed the jury that, as to Dr. Tudor’s claim of 

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discrimination based on her tenure denial in 2009-10, “[i]n order to succeed on the 

discrimination claim, [Dr. Tudor] must persuade you by a preponderance of the evidence 

that were it not for gender discrimination, she would have been granted tenure in 2009-

10.” (Tudor R. vol. 2 at 49, 55–56.) And, so instructed, the jury came back with a 

verdict for Dr. Tudor on that claim. (Id. at 71.)13 Thus, as to the 2009-10 academic year, 

we have a jury finding that Dr. Tudor would have been granted tenure had she not been 

discriminated against. 

Given the jury verdict in favor of Dr. Tudor, it is established—and we cannot now 

question—that Dr. Tudor would have been granted tenure in 2009-10 absent the 

discrimination. Thus, in granting Dr. Tudor reinstatement with tenure, we do not serve as 

a super-tenure committee making academic decisions for Southeastern. We are instead 

restoring Dr. Tudor to the position she would have been in had Southeastern not engaged 

in prohibited discrimination against her. Such an approach is consistent with the 

purposes of Title VII and the familiar functions of the judiciary. See Brousard-Norcross 

v. Augustana Coll. Ass’n, 935 F.2d 974, 975–76 (8th Cir. 1991) (“While Title VII 

unquestionably applies to tenure decisions, judicial review of such decisions is limited to 

whether the tenure decision was based on a prohibited factor.”); Jiminez v. Mary 

Washington Coll., 57 F.3d 369, 377 (4th Cir. 1995) (“Our review [of tenure decisions] is 

13 As to Dr. Tudor’s claim of discrimination based on the reapplication denial in 

2010-11, the jury instructions stated that Dr. Tudor must persuade the jury by a 

preponderance of the evidence that “were it not for gender discrimination, she would 

have been granted . . . the opportunity to re-apply for tenure in 2010-11.” (Id. at 55–56.) 

The jury found for Dr. Tudor on this second discrimination claim. (Id. at 72.) 

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narrow, being limited to determining ‘whether the appointment or promotion was denied 

because of a discriminatory reason.’” (quoting Smith v. Univ. of N.C., 632 F.2d 316, 346 

(4th Cir. 1980))). 

Southeastern appears to be arguing for a special rule of deference to educators, but 

illegal decisions by educational institutions do not enjoy special sanctity. In fact, 

Congress specifically removed the previous Title VII exemption for educational 

institutions in 1972, making them unquestionably subject to Title VII’s general 

prohibitions. Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, 86 Stat. 

103, codified at 42 U.S.C. § 2000e-1 (1988); Univ. of Penn. v. EEOC, 493 U.S. 182, 190 

(1990) (“The effect of the elimination of this exemption was to expose tenure 

determinations to the same enforcement procedures applicable to other employment 

decisions.”). 

The jury found discrimination in this case, and we have already determined that 

that verdict is clearly supported by sufficient evidence. We cannot now abandon our 

obligation to provide Dr. Tudor with the make-whole relief to which she is entitled under 

Title VII solely because Southeastern is an educational institution. See Kunda v. 

Muhlenberg Coll., 621 F.2d 532, 550 (3d Cir. 1980) (“The fact that the discrimination in 

this case took place in an academic rather than commercial setting does not permit the 

court to abdicate its responsibility to insure the award of a meaningful remedy.”). Not 

only that, but a tenure decision is often the most important point in a professor’s career. 

It would not make sense for courts to subject such a significant determination to less 

scrutiny than other, less important education decisions. 

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Finally, Southeastern argues that it would be improper for this Court to grant Dr. 

Tudor reinstatement with tenure because it has concerns about her scholarship and 

teaching and believes she is not qualified. For the reasons already discussed, this 

argument is foreclosed by the jury verdict. The jury found that Dr. Tudor would have 

received tenure in 2009-10 if not for the discrimination. 

* * * 

For all these reasons, we reverse the district court’s denial of reinstatement, 

holding that Dr. Tudor is entitled to reinstatement with tenure. 

2. Front Pay 

Although we grant Dr. Tudor reinstatement, she is also entitled to monetary 

damages for the period that she would have worked at Southeastern as a tenured 

professor had she been granted tenure when she applied in 2009-10 until the time of 

her reinstatement (subject, of course, to mitigation obligations and cutoffs). Front 

pay and reinstatement are not mutually exclusive, as the Supreme Court made clear in 

Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 846 (2001) (defining front 

pay as “money awarded for lost compensation during the period between judgment 

and reinstatement or in lieu of reinstatement” (emphasis added)). In other words, 

even when reinstatement is granted, front pay should also be awarded until that 

reinstatement can be accomplished. 

Dr. Tudor challenges the district court’s award of $60,040.77 in front pay as 

insufficient and erroneously calculated. Although Dr. Tudor’s claim that she is 

entitled to front pay for her remaining work-life expectancy will now be mooted by 

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the grant of reinstatement, we still analyze the district court’s front pay award as it 

relates to Dr. Tudor’s entitlement to front pay from the time of judgment until she is, 

in fact, reinstated with tenure. 

We review the district court’s front pay award for an abuse of discretion. 

Abuan, 353 F.3d at 1177. In so doing, we agree with Dr. Tudor that the amount used 

by the court as the front pay annual compensation rate was verifiably incorrect and 

that her untenured position at Collin College was not substantially equivalent to a 

tenured professorship at Southeastern. We reverse the district court’s $60,040.77 

front pay award and remand for a recalculation consistent with this opinion. 

a. Legal Background 

i. Front Pay Timeline 

Dr. Tudor’s arguments relate only to front pay, but, in addressing the start of 

front pay eligibility, we must consider the time period covered by both front pay and 

backpay because those awards represent compensation for lost wages over a 

continuum of time; the only meaningful difference between the two is the time period 

for which they are awarded. See Pollard, 532 U.S. at 849. We endeavor to clarify 

the line between back and front pay because the district court’s calculation, which 

used a period of time from the backpay period as a basis to select a reasonable length 

of time for the front pay award, was confusing on this point and should be clarified.14

14 In its front pay order, the court initially seemed to grant front pay for the 

fourteen-month time frame occurring during the backpay period between when Dr. 

Tudor was terminated from Southeastern and when she obtained employment at 

(continued) 

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Backpay starts at the time of deprivation and ends when the evidence is 

submitted to the factfinder at the close of trial. Zisumbo, 801 F.3d at 1203. Front 

pay, on the other hand, typically begins at the time of judgment. Pollard, 532 U.S. at 

846. Here, however, the case was submitted to the jury in November 2017, but the 

court did not enter judgment until June 2018. The law is clear that front pay begins 

at judgment, id., yet the Tenth Circuit has stated that courts must strive to provide 

make-whole relief. Zisumbo, 801 F.3d at 1203. Therefore, in a case where there is a 

gap between when backpay ends and front pay begins, as here, it is the district 

court’s responsibility under its equitable power and discretion to add an additional 

amount to the front pay award beginning at the close of evidence when backpay 

ceased, to account for that gap. 

In this case, where reinstatement has been granted, front pay ends at the time 

of reinstatement. Pollard, 532 U.S. at 846. Both awards, however, are subject to 

earlier termination based on, for example, failing to mitigate damages or obtaining 

substantially equivalent employment. Ford Motor Co. v. EEOC, 458 U.S. 219, 231–

32, 236 (1982). 

Collin College. The Court later clarified that it “is aware that front pay is an award 

for future damages, not compensation for the period between the end of employment 

and the trial.” (Tudor R. vol. 5 at 80.) The front pay award, then, did not actually 

compensate for lost wages prior to trial, but instead used the fourteen-month period 

during which Dr. Tudor previously found work at Collin College as an objective 

measure of when she could reasonably be predicted to find reemployment in the 

future. 

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ii. Front Pay Calculation 

The Tenth Circuit has identified several factors to be considered in 

determining a front pay award: 

(1) work life expectancy, (2) salary and benefits at the time 

of termination, (3) any potential increase in salary through 

regular promotions and cost of living adjustment, (4) the 

reasonable availability of other work opportunities, (5) the 

period within which the plaintiff may become re-employed 

with reasonable efforts, and (6) methods to discount any 

award to net present value. 

McInnis, 458 F.3d at 1146 (numbers added) (quoting Whittington v. Nordam Grp. 

Inc., 429 F.3d 986, 1000–01 (10th Cir. 2005)). Although the district court has 

discretion to calculate front pay based on these factors, Whittington, 429 F.3d at 

1000, it must do so with the aim to make plaintiffs whole without creating a windfall. 

Carter v. Sedgwick County, 36 F.3d 952, 957 (10th Cir. 1994). After considering 

these factors and calculating an appropriate amount of compensation, courts must 

then subtract any mitigation that reasonably could be obtained. See Davoll v. Webb, 

194 F.3d 1116, 1143 (10th Cir. 1999). 

 In this case, the district court considered two factors to be determinative: the 

reasonable availability of other work opportunities, and the period within which Dr. 

Tudor could become re-employed with reasonable efforts. In light of these factors, 

the court limited Dr. Tudor’s eligibility for front pay to fourteen months, because that 

was how long it took Dr. Tudor to obtain a teaching job at Collin College after 

leaving Southeastern. Based on Dr. Tudor’s previous ability to find work within 

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fourteen months, the district court predicted that, moving forward, she could do so 

again. 

However, for a potential reemployment opportunity to terminate 

Southeastern’s front pay obligations entirely—as opposed merely to mitigating the 

amount of front pay owed—it must be “substantially equivalent” to the withheld 

position. Ford Motor Co., 458 U.S. at 236. We emphasize that the test is one of 

substantial equivalence. Some courts have morphed this test into a tougher standard, 

holding that two jobs are substantially equivalent if they offer “virtually identical 

promotional opportunities, compensation, job responsibilities, working conditions, 

and status.” Sellers v. Delgado Cmty. Coll., 839 F.2d 1132, 1138 (5th Cir. 1988).15 

We, too, consider the same factors listed by those circuits, but we do not adopt the 

narrower “virtually identical” standard. Virtual identity is an unrealistic 

expectation—almost no two jobs will be virtually identical—and it is unfaithful to 

the original, and less exacting, “substantially equivalent” language to which we 

adhere. 

In considering whether substantially equivalent job opportunities are 

reasonably available, courts should first and foremost consider compensation. See 

McInnis, 458 F.3d at 1146 (reversing denial of front pay where plaintiff “ha[d] 

absolutely no prospects of attaining a pay level equivalent to the pay she received” 

15 See also Rasimas v. Mich. Dep’t of Mental Health, 714 F.2d 614, 624 (6th 

Cir. 1983); Graefenhain v. Pabst Brewing Co., 870 F.2d 1198, 1203 (7th Cir. 1989). 

Weaver v. Casa Gallardo, Inc., 922 F.2d 1515, 1527 (11th Cir. 1991), superseded by 

statute on other grounds, Pub. L. No. 102-166, 105 Stat. 1071. 

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while working for the defendant). Although economic factors will often 

predominate, other, noneconomic factors must also be considered and will vary in 

type and importance from case to case. See Davoll, 194 F.3d at 1145 (“Because the 

purpose of front pay is to make each plaintiff whole, the district court must look at 

the individualized circumstances of each plaintiff.”). Here, relevant factors in 

addition to compensation include availability of tenure and promotion, academic 

opportunities, prestige, job responsibilities, subject matter taught, and so on—we do 

not intend to be exhaustive. Courts must consider and balance the wide variety of 

factors relevant to the particular job at issue, comparing the positions as a whole. 

b. Analysis 

The district court found Dr. Tudor’s yearly compensation at Southeastern to be 

$51,463.52 (a figure that appears in Dr. Tudor’s compensation table (Tudor Mot. for 

Front Pay Ex. 8 (“Ex. 8”) at 6 (Tudor R. vol. 4 at 221))). Extending that 

compensation over a fourteen-month period (the time frame in which the court 

expected Dr. Tudor to find a new job), the district court arrived at its $60,040.77 

front pay award. In reviewing, and ultimately reversing, the district court’s front pay 

calculation, we consider both the $51,463.52 amount utilized as the front pay annual 

compensation as well as the fourteen-month period for which it provided that 

compensation. 

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i. Annual Compensation Amount 

The district court’s front pay award was premised upon an annual 

compensation of $51,463.52. This figure is clearly erroneous, and it was reversible 

error to rely on it.16

It is true that the district court’s $51,463.52 figure comes from Dr. Tudor’s 

own compensation table submitted to the district court with her motion for front pay. 

(Ex. 8 at 6.) But that table makes clear that this amount represents Dr. Tudor’s total 

compensation (salary and benefits) had she been employed at Southeastern with 

tenure for only a roughly 8.5-month period between November 20, 2017—the close 

of trial—and July 31, 2018. (Id.) The $51,463.52 amount is thus a prorated 

compensation only over that 8.5-month period, and construing it as a yearly 

compensation, as the district court did, was clearly erroneous. (Id.) This is made 

even more obvious when comparing the first line of the table, containing the 

$51,463.52 figure, to the lines immediately following in the same chart, in which Dr. 

Tudor’s annual compensation jumps sharply up to $75,164.16—undoubtedly because 

16 Dr. Tudor has adequately raised and preserved her argument that the 

$51,463.52 salary was erroneous. First, she brought the error to the district court’s 

attention below in her motion for reconsideration of front pay. (Tudor R. vol. 5 at 53 

(“[T]he $51,463.52 figure, which the front pay order identifies as Tudor’s ‘yearly 

compensation,’ is actually the pro-rated projected 2017-18 term salary over a 253-

day period . . . not annual salary.”).) After this motion was denied and the district 

court entered judgment, Dr. Tudor again adequately raised this argument before this 

Court on appeal. (Tudor Br. 30–31, 58 (“It appears that the [$51,463.52] rate’s 

genesis is a misreading of Dr. Tudor’s front pay calculation table. The court mistook 

the . . . pro-rated figures to be full year earnings . . . .”).) 

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on this very next line an entire year of salary and benefits had Dr. Tudor not been 

wrongfully denied tenure are being accounted for. (Id.) 

Below, in denying Dr. Tudor’s motion for reconsideration of front pay, the 

district court responded that “the evidence presented to the Court does not support 

[Dr. Tudor’s] current argument” for a higher annual compensation, citing to a 

stipulation made by Dr. Tudor. (Tudor R. vol. 5 at 81.) That stipulation, contained 

in an affidavit submitted by Dr. Tudor with her motion for front pay, reads: “During 

the last year of my employment at Southeastern, I was paid approximately $51,279 in 

salary.” (Tudor R. vol. 4 at 194 ¶ 6.) The district court therefore pointed to evidence 

that it thought supported an annual compensation of around $51,000 and stated that, 

given the use of the term “approximately,” it “elected to use the slightly higher salary 

listed” in Dr. Tudor’s compensation table—the $51,463.52 figure. (Tudor R. vol. 5 

at 81.) 

It was clear error to rely on Dr. Tudor’s stipulation to justify the selection of a 

$51,463.52 annual compensation amount in light of this documtary evidence. As Dr. 

Tudor makes clear in her stipulation—and as the district court also explicitly 

recognizes in its denial of reconsideration—the $51,279 stipulated-to figure 

represented the salary Dr. Tudor earned in her last year working at Southeastern 

(2010-11). That salary, then, was an inappropriate comparison to the compensation 

in Dr. Tudor’s table for three reasons: 1) the stipulation refers only to salary, whereas 

the compensation in Dr. Tudor’s table accounts for both salary and benefits 

combined; 2) the stipulation refers to Dr. Tudor’s untenured salary while she was last 

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employed at Southeastern, whereas Dr. Tudor’s table accounts for the tenure 

promotion the jury found she should have earned, (Tudor R. vol. 4 at 171 (“Tudor’s 

front pay base salary and benefits should be calculated as if Tudor had not been 

denied tenure and promotion rather than based upon what Tudor was paid at the time 

of her termination in May 2011.”)); and 3) the stipulation refers to Dr. Tudor’s salary 

in 2010-11, whereas the table calculates the salary Dr. Tudor would have earned in 

2017-18 and beyond, including, presumably, taking into account raises in those 

intervening years, (id. at 217 (showing that Dr. Tudor’s salary calculation added 

amounts for degree, rank, and experience to her but-for compensation)). Confusing 

the prorated $51,463.52 figure in Dr. Tudor’s table (representing the tenured 

compensation—including benefits—she would have received at Southeastern for only 8.5 

months of the 2017-18 academic year had she been granted tenure earlier in 2009-10) 

with the $51,279 figure in Dr. Tudor’s stipulation (representing the untenured annual 

salary—not including benefits—that Dr. Tudor actually received in her last year working 

at Southeastern in 2010-11), was therefore comparing apples to oranges. 

Although Dr. Tudor does not disavow her stipulation on appeal, she does not 

have to. The stipulation was accurate. The problem here lies not in the stipulation 

itself but in applying the stipulated-to salary to a very different scenario. That the two 

numbers are nearly the same is a mere coincidence. Dr. Tudor’s table and her 

stipulation were clearly noncomparable. 

Accordingly, it was an abuse of discretion to rely on a clearly erroneous 

annual compensation rate and, further, by justifying the use of that rate with a 

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stipulation that plainly referred to completely different circumstances. We next 

consider the district court’s decision to terminate front pay after fourteen months. In 

doing so, we assume that Dr. Tudor’s annual compensation at Southeastern would 

have been much higher than what the district court found below.17 

ii. Front Pay Cutoff 

The district court held that Dr. Tudor was entitled to front pay (at the 

erroneous $51,463.52 yearly rate) for a period of fourteen months given its prediction 

that Dr. Tudor could reasonably obtain “similar employment” within that time. 

(Tudor R. vol. 5 at 48.) The court based this prediction on Dr. Tudor’s ability to 

successfully obtain a teaching position at Collin College within fourteen months after 

her termination from Southeastern. 

In determining that the fourteen-month period should represent the time in 

which Dr. Tudor could reasonably be expected to find new, substantially equivalent 

employment—cutting off front pay entirely—the district court relied on the fact that 

Dr. Tudor’s “pay at that college exceeded what she had made at Southeastern.” (Id. 

at 47.) Dr. Tudor’s salary at Collin College ranged between $51,184 and $58,022 

(after yearly raises) during her time there. This was higher than Dr. Tudor’s 

Southeastern salary as erroneously calculated below. Given our findings above, 

17 We leave this ultimate calculation to the district court on remand but 

observe for the purposes of comparing Southeastern to Collin College in the 

following section that Dr. Tudor’s actual yearly compensation at Southeastern from 

November 20, 2017, to November 20, 2018, had she not been denied tenure would 

have been closer to $74,000. 

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however, the Southeastern and Collin College earnings are not comparable. The 

salary Dr. Tudor should have been earning at Southeastern had she not wrongfully 

been denied tenure at the beginning of the front pay period (around $67,000 after 

deducting benefits from her total compensation) was about 30 percent higher than Dr. 

Tudor’s starting salary at Collin College and about 15 percent higher than her highest 

salary at Collin College—even without accounting for raises at Southeastern during 

that same four-year period. That is not a substantially equivalent salary. 

Salary aside, the district court also did not adequately consider significant 

noneconomic differences between the two positions, most notably that Collin College 

did not offer tenure and that it was a two-year community college as compared to a 

four-year public university. In its front pay order, there was no acknowledgement of 

these differences. Rather, the order only mentioned that both positions involved 

teaching college-level English and (erroneously) that Dr. Tudor earned more at 

Collin College. It was error to fail to consider the entirety of the circumstances and 

omitted notable differences from its analysis. Indeed, in the academic context, we 

think the availability or lack of tenure is significant, as tenure is arguably the most 

important point in a professor’s career. 

Looking at the two positions as a whole, we are convinced that, as a matter of 

law, Dr. Tudor’s positions at Southeastern and Collin College were not substantially 

equivalent. Collin College paid less than Southeastern, did not offer tenure, and, as a 

two-year community college, lacked a similar level of prestige and academic 

opportunities. It was thus an abuse of discretion in calculating front pay, to use the 

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fourteen-month period until Dr. Tudor obtained an untenured teaching position at 

Collin College as a benchmark for the time in which she could be expected to obtain 

other substantially equivalent employment in the future, because the Collin College 

position was not substantially equivalent to a tenured teaching position at 

Southeastern. 

To be sure, although not substantially equivalent, the Collin College 

position—and any other position Dr. Tudor might reasonably obtain—remains 

relevant to mitigation on remand. EEOC v. Sandia Corp., 639 F.2d 600, 627 (10th 

Cir. 1980); Davoll, 194 F.3d at 1143. We leave it to the district court to calculate an 

appropriate length of front pay on remand aided by the guidance in this opinion. 

* * * 

We review the district court’s front pay award “with considerable deference,” 

Abuan, 353 F.3d at 1177, yet we are again certain that this is one of those rare 

instances in which we find clear error in the calculation, to Dr. Tudor’s prejudice, 

resulting in a manifestly unreasonable front pay award. Title VII’s command, as 

stated by this Court, is clear: make victims of discrimination whole. Carter, 36 F.3d 

at 957. This error resulted in a front pay award that has not made Dr. Tudor whole in 

this case. Accordingly, we reverse the $60,040.77 front pay award and remand for 

the district court to recalculate front pay consistent with this opinion including the 

annual compensations amount, the cutoff date and any other matters in mitigation. In 

recalculating front pay on remand, additional evidence may be helpful to the district 

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court. We leave it to the court’s discretion to decide whether to reopen the record or 

to hold the parties to the record already created. 

3. Title VII Statutory Cap 

Dr. Tudor lastly challenges the district court’s application of the Title VII 

statutory damages cap to the $1.165 million in damages awarded by the jury, which 

resulted in a reduced award for damages of $360,040.77 ($300,000 in capped 

compensatory damages and $60,040.77 in uncapped back pay). Dr. Tudor argues that 

Southeastern waived the cap, or else that the district court’s application of the cap 

violated the Seventh Amendment’s Reexamination Clause. We find no waiver. We 

review de novo whether the district court’s application of the cap violated the 

Seventh Amendment, Patton v. TIC United Corp., 77 F.3d 1235, 1245 (10th Cir. 

1996), and we find no Seventh Amendment violation. Accordingly, we affirm. 

a. Legal Background 

The Title VII statutory cap limits “the sum of the amount of compensatory 

damages awarded . . . for future pecuniary losses, emotional pain, suffering, 

inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary 

losses” to $300,000 for a company the size of Southeastern. 42 U.S.C. § 1981a(a)(1), 

(b)(3)(D). The statute excludes from the cap “backpay, interest on backpay, or any 

other type of relief authorized under section 706(g) of the Civil Rights Act of 1964.” 

Id. § 1981a(b)(2). In addition to the explicit exclusion of backpay, it is well 

established by Supreme Court and Tenth Circuit precedent that the Title VII cap also 

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does not apply to front pay. Pollard, 532 U.S. at 852 (“[F]ront pay is excluded from the 

statutory cap.”); Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 556 (10th Cir. 1999). 

b. Waiver 

Dr. Tudor first argues that Southeastern waived the cap because it failed to 

plead it in its answer. But the parties stipulated in their joint pretrial report that 

“[b]ased on the number of Defendants’ total employees, the $300,000 damage cap at 

42 U.S.C. § 1981a(b)(3)(D) applies to this case.” (SE App. vol. 2 at 335.) This 

stipulation controls over the pleadings. Wilson v. Muckala, 303 F.3d 1207, 1215 

(10th Cir. 2002). The Title VII cap was in effect.18

c. Reexamination Clause 

Dr. Tudor next argues that the district court’s application of the cap violated 

the Seventh Amendment’s Reexamination Clause. The Reexamination Clause states 

that “no fact tried by a jury, shall be otherwise re-examined in any Court of the 

United States, than according to the rules of the common law.” U.S. Const. amend. 

18 Dr. Tudor also argues that the cap should not apply because Southeastern did 

not object to the general jury verdict form, which made it impossible for the district court 

to know for certain how much of the jury’s award was intended for the capped 

compensatory damages as opposed to uncapped backpay. See Pals v. Schepel Buick & 

GMC Truck, Inc., 220 F.3d 495, 499–501 (7th Cir. 2000) (refusing to apply Title 

VII’s damages cap where the defendant-employer failed to object to similar jury verdict 

form). But Dr. Tudor also failed to raise the ambiguity of the verdict form below, and 

this precludes her from making this argument now. See Okland Oil Co. v. Conoco Inc., 

144 F.3d 1308, 1319 (10th Cir. 1998) (“[A] party who fails to bring to the trial court’s 

attention . . . ambiguities . . . may not seek to take advantage of such ambiguities on 

appeal.”) We are not bound by Pals’ contrary result, and regardless Pals is 

distinguishable, because the record shows that Dr. Tudor was aware of the cap at trial. 

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VII. Because the district court’s application of the damages cap did not violate the 

Seventh Amendment, we affirm. 

i. Background 

The jury awarded Dr. Tudor $1.165 million in damages. This amount 

potentially included compensation for backpay as well as physical or mental distress, 

including “mental anguish, emotional pain and suffering, inconvenience, loss of 

enjoyment of life, damage to professional reputation, or other non-pecuniary losses.” 

(Tudor R. vol. 2 at 61–62 (jury instructions).) Because of the way the verdict form 

was structured—asking only for a single number representing “the amount of 

damages to which Plaintiff is entitled to compensate her for her injuries”—it is 

impossible to know what amount should be attributed to each category of damages. 

(Id. at 72 (verdict form).) This created problems because the backpay award is 

indisputably not subject to the $300,000 cap, whereas the remainder of the damages 

encompassed by the jury award is. 

After finding that the Title VII cap applied, the district court resolved this 

tension by attempting to separate the backpay award from the remainder of the total 

damages award. Although it had no way of knowing how much the jury attributed to 

backpay, the court calculated the highest amount of backpay damages that it believed 

the jury could have reasonably awarded, $60,040.77, observing that it was “not 

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persuaded” that even that amount had been given based on the evidence.19 (Tudor R. 

vol. 5 at 82.) Having calculated the amount of backpay, the court set aside that 

uncapped amount ($60,040.77) and applied the $300,000 cap to the remaining 

$1,104,959.23 in capped compensatory damages, resulting in a total jury award of 

$360,040.77—$300,000 in capped compensatory damages and $60,040.77 in 

backpay. 

It is clearly established that the application of a statutory damages cap to a jury 

award does not violate the Reexamination Clause. Est. of Sisk v. Manzanares, 270 F. 

Supp. 2d 1265, 1277–78 (D. Kan. 2003); Schmidt v. Ramsey, 860 F.3d 1038, 1045 

(8th Cir. 2017). The Title VII cap is no exception. See, e.g., Madison v. IBP, Inc., 257 

F.3d 780, 804 (8th Cir. 2001), vacated on other grounds, 536 U.S. 919 (2002); Hemmings 

v. Tidyman’s, Inc., 285 F.3d 1174, 1201–02 (9th Cir. 2002). 

Dr. Tudor’s Seventh Amendment argument, however, is based not merely on 

the district court’s decision to apply a cap to the jury award, but on that court’s 

decision to determine what portion of the jury award could be attributed to backpay 

not subject to the cap. She argues that because the jury award was ambiguous as to 

capped versus uncapped damages, the court was not permitted to apply the cap, as the 

19 This backpay award presumably suffers from the same inaccuracies as the 

identical front pay award, but we do not address them here nor remand for a 

recalculation of backpay because regarding backpay Dr. Tudor challenges only the 

constitutionality of the district court’s allocation between capped and uncapped 

damages, not the numerical calculation involved in that allocation. 

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entire $1.165 million could theoretically have been intended as uncapped damages. 

That presents a novel question under the Seventh Amendment. 

ii. Analysis 

We conclude that the district court constitutionally applied the Title VII cap 

when it allocated $60,040.77 of the jury award to backpay and capped the remainder 

of the award at $300,000. In attempting to prove a Seventh Amendment violation, 

Dr. Tudor argues that, in a mixed damages award like this one with a single, 

unallocated amount of damages, where it is impossible to tell what amounts are 

capped versus uncapped, the district court cannot constitutionally apply the cap at all 

since in doing so it necessarily and impermissibly reexamines uncapped damages. 

She cites no cases in support. 

Here, the jury was not asked to allocate its damages award between uncapped 

and capped damages and did not make any specific finding as to backpay. As a 

result, there existed no decision by the jury in the first instance for the court to 

reexamine when it allocated the award between capped and uncapped damages. See 

Cap. Traction Co. v. Hof, 174 U.S. 1, 13 (1899) (“[W]hen a trial by jury has been had 

in an action at law, . . . the facts there tried and decided cannot be re-examined in any 

court of the United States.” (emphasis added)). The jury decided only total damages, 

and a portion of this figure was subject to a constitutional statutory cap. After 

determining the highest amount the jury could have reasonably awarded in uncapped 

damages—something the jury did not itself decide as part of the verdict—the court 

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permissibly applied the cap to the remainder. Dr. Tudor’s reexamination argument 

therefore misses the mark. 

Backpay is viewed as equitable relief in a Title VII case to be decided by the 

judge, Albemarle Paper Co., 422 U.S. at 416 (stating that the court’s discretion to 

award backpay is “equitable in nature”); Whatley v. Skaggs Cos., 707 F.2d 1129, 

1138 (10th Cir. 1983) (“Title 42 U.S.C. § 2000e–5(g) leaves to the discretion of the 

trial court the amount of back pay to be awarded a successful plaintiff in an 

employment discrimination action.”), unless the parties have consented otherwise, 

Pals, 220 F.3d at 501 (“[A]n issue may be tried to the jury ‘with the consent of both 

parties’ even if the issue is ‘not triable of right by a jury.’” (quoting Fed. R. Civ. P. 

39(c))). Although there was no objection in this case to submitting backpay to the 

jury, in fact the jury did not make any specific findings of backpay, as already 

discussed. Instead, it issued only a general damages award. Thus, there can be no 

doubt about the judge’s ultimate authority to allocate what portion of this damages 

award should be considered backpay because this determination falls within her 

equitable authority to decide backpay and it does not conflict with any express jury 

finding. See Bartee v. Michelin N. Am., Inc., 374 F.3d 906, 913 (10th Cir. 2004). 

In addition, our conclusion makes sense when considering the reality that 

judges constitutionally adjust or even reverse jury verdicts in other contexts. 

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Remittitur20 and judgment as a matter of law are two well-established examples. 

Prager v. Campbell Cnty. Mem’l Hosp., 731 F.3d 1046, 1061 n.8 (10th Cir. 2013) 

(remittiturs are constitutional); Neely v. Martin K. Eby Const. Co., 386 U.S. 317, 321 

(1967) (Rule 50(b) is constitutional). In fact, Dr. Tudor’s Reexamination Clause 

argument seems more akin to a typical remittitur challenge that the district court 

abused its discretion in reducing the jury award by the amount that it did (in this 

case, allocating $60,040.77 to backpay when it could have theoretically determined 

the entire award was attributable to backpay). See Prager, 731 F.3d at 1061 (“We 

review the trial court’s decision regarding remittitur for an allegedly excessive 

damages award for an abuse of discretion.” (quoting Palmer v. City of Monticello, 31 

F.3d 1499, 1508 (10th Cir. 1994))).21 Learning from the remittitur context, Dr. Tudor 

could have challenged—but didn’t—the district court’s calculation of backpay as an 

abuse of discretion, arguing for a higher amount to be allocated to uncapped 

20 Dr. Tudor refers to the district court’s application of the cap as a remittitur, 

but she seems to do so only in the sense that the district court reduced the damages 

award as part of its application of the damages cap. Rather than “substitute[] its own 

evaluation of the evidence regarding damages for the jury’s factual findings”—a 

remittitur—the district court simply “determine[ed] that the law does not permit the 

[jury] award” as per the statutory cap. Cartel Asset Mgmt. v. Ocwen Fin. Corp., 249 

F. App’x 63, 80–81 (10th Cir. 2007) (unpublished) (quoting Corpus v. Bennett, 430 

F.3d 912, 917 (8th Cir. 2005)). 

21 While our analogy between remittiturs and the district court’s application of 

the cap is admittedly imperfect because, in order to be consistent with the Seventh 

Amendment, judges must offer plaintiffs the choice between remittitur and a new 

trial, Sloan v. State Farm Mut. Auto. Ins. Co., 360 F.3d 1220, 1225 (10th Cir. 2004), 

there is nonetheless no doubt that remittitur represents a similar instance in which a 

judge may permissibly examine the jury verdict. Whether the plaintiff chooses 

remittitur or a new trial, the original jury award will not stand. 

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54 

damages, rather than challenging the constitutional application of the cap under the 

Seventh Amendment.22

It is worth emphasizing that while it is common practice to leave the backpay 

calculation to the jury, 2 Kent Spriggs, Representing Plaintiffs in Title VII Actions § 

30.03 (2d ed. 2004), Title VII clearly identifies backpay as equitable relief. 42 

U.S.C. § 2000e-5(g)(1). That backpay is a form of equitable relief, traditionally 

under the judge’s discretion, supports our conclusion that the district court’s own 

calculation of backpay and subsequent application of the cap under these 

circumstances, where the jury did not explicitly find backpay, was constitutional. 

See Zisumbo, 801 F.3d at 1203 (observing that “[d]istrict courts possess considerable 

discretion to devise appropriate remedies for Title VII violations” in the context of 

reviewing district court’s backpay calculation); see also Galloway v. United States, 

319 U.S. 372, 392 (1943) (“[T]he [Seventh] Amendment was designed to preserve 

the basic institution of jury trial in only its most fundamental elements, not the great 

mass of procedural forms and details.”). 

The court was careful to give the jury award its full effect by setting aside the 

highest amount of uncapped damages that it believed was possible for the jury to 

have intended prior to applying the Title VII cap. Given the constitutionality of 

statutory caps, that the jury made no specific determination of uncapped damages, 

and the wide discretion afforded courts in equitable damages decisions, we hold that 

22 The availability of such a challenge will prevent arbitrary or clearly 

erroneous allocations between capped and uncapped damages. 

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55 

the district court’s application of the cap to the jury award after setting aside backpay 

damages was constitutional. We reject Dr. Tudor’s final challenge and affirm the 

jury award of $360,040.77. 

C. Attorneys’ Fees 

Dr. Tudor requested attorneys’ fees if she prevails in this appeal. Title VII 

allows this Court, in its discretion, to grant a prevailing party’s application for 

reasonable attorneys’ fees. 42 U.S.C. § 2000e-5(k); see also Christiansburg Garment 

Co. v. EEOC, 434 U.S. 412, 417 (1978). We find that Dr. Tudor is the prevailing 

party below and on both appeals. We therefore remand for the district court to 

calculate and award Dr. Tudor attorneys’ fees at both the district and appellate levels. 

III. CONCLUSION 

For these reasons, we AFFIRM the district court’s ruling on each issue in 

Southeastern’s cross-appeal. As to Dr. Tudor’s appeal, we AFFIRM the damages cap 

ruling but REVERSE the district court’s reinstatement and front pay rulings. Finally, 

we REMAND to the district court for an order determining the terms and conditions 

of Dr. Tudor’s reinstatement, a recalculation of the front pay award consistent with 

this opinion, and a determination of attorneys’ fees to which Dr. Tudor is entitled. 

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Exhibit D

Case: 1:20-cv-03366 Document #: 79 Filed: 12/23/21 Page 127 of 128 PageID #:4321
Jerry Bramwell <bramwell@fitzgeraldbramwell.com>

Calvente

Wermuth, Anna <awermuth@cozen.com> Thu, Aug 26, 2021 at 10:16 AM

To: Jerry Bramwell <bramwell@fitzgeraldbramwell.com>

Cc: "Sane, Nandini" <NSane@cozen.com>

Hi Jerry –

I see our rebuttal disclosure is due today; I just wanted to let you know we are not disclosing a rebuttal expert.

Thanks.

Anna

Anna Wermuth

Vice Chair, Labor & Employment Department | Cozen O'Connor

123 North Wacker Drive, Suite 1800 | Chicago, IL 60606

P: 312-474-7876 M: 312-545-4725 F: 312-878-2023

Email | Bio | LinkedIn | Map | cozen.com

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