United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 03-2721

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Gwenn Okruhlik, *

*

Plaintiff/Appellant, *

*

v. *

*

University of Arkansas, *

*

Defendant/Appellee, * Appeal from the United States

* District Court for the

Donald O. Pederson, in his Official * Western District of Arkansas.

Capacity; Bernard Madison, in his *

Individual and Official Capacity; Mark *

Cory, in his Individual and Official *

Capacity; Adnan Haydar, in his *

Individual and Official Capacity; *

Mounir Farah, in his Individual and *

Official Capacity; Steven Neuse, in his *

Individual and Official Capacity; *

Donald Kelley, in his Individual and *

Official Capacity; Jeff Ryan, in his *

Individual and Official Capacity; Todd *

Shields, in his Individual and Official *

Capacity; Conrad Waligorski, in his *

Individual and Official Capacity, *

*

Defendants, *

*

Randall Woods, in his Official and *

Individual Capacity, *

*

Defendant/Appellee. *
1

The Honorable Jimm Larry Hendren, United States District Judge for the

Western District of Arkansas.

2

We deny defendants’ motion for sanctions, but express our displeasure over

and our frustration with the lack of candor displayed by Appellant’s counsel during

oral argument. We expect, particularly in complicated, fact-intensive cases, that

counsel will aid our understanding of the record, not confuse or hinder it.

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Submitted: April 15, 2004

Filed: January 24, 2005

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Before WOLLMAN, McMILLIAN, and RILEY, Circuit Judges.

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WOLLMAN, Circuit Judge.

Gwen Okruhlik appeals from the district court’s1

 grant of judgment as a matter

of law to the University of Arkansas and Randall Woods following the jury’s verdict

in her favor on her claims of retaliation and hostile work environment based on sexual

harassment. We affirm.2

I.

We state the facts in the light most favorable to the verdict. Okruhlik was

offered a tenure-track position in the political science department of the Fulbright

College of Arts and Sciences at the University of Arkansas, Fayetteville, beginning

in 1995. In addition, she was hired to participate in the cross-disciplinary Middle

East Studies Program (the “Program”), established with a $20 million donation from

Saudi Arabia to the University. Okruhlik became extensively involved in trying to

develop the program, but soon experienced tension with some of the program’s male

faculty administrators and felt intentionally closed out of participation in its further
3

One of her colleagues, Linda Schilcher, is the plaintiff in a separate lawsuit in

which we recently addressed questions of qualified immunity. Schilcher v. Univ. of

Arkansas, 387 F.3d 959 (8th Cir. 2004).

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development. She and three other faculty members (two women and one man)3

expressed their concerns about the management of the program to the then dean,

Bernard Madison, who initiated an investigation by a special committee. The

committee developed a report that formed the basis for restructuring the program.

Okruhlik’s relationship with male faculty members remained tense, both in her

department and in the program. In early 1998, prior to her third-year review, an

important milestone on the way to tenure-review in the sixth year, she began to

overhear conversations in the office adjacent to hers, which was occupied by Steve

Neuse, who became the chair of the political science department the following year.

The conversations, which occurred over several months, included dirty jokes and

negative comments about Okruhlik, deriding her work and expressing a desire to get

rid of her. Okruhlik told only her husband about the conversations until after they had

stopped. She then mentioned the conversations to Vice Chancellor for Academic

Affairs, Donald Pederson, who immediately took her to the Office of Affirmative

Action.

The results of Okruhlik’s third-year review were mixed, but she was

reappointed by Dean Madison for a fourth year. Okruhlik’s emotional and

psychological state deteriorated to the point that she found it necessary to take sick

leave in the spring of 1999, followed by research leave for an additional year.

Okruhlik filed an EEOC complaint in the fall of 1998, alleging discrimination and

harassment by a number of individual professors involved in the Middle East Studies

Program and her third-year review. She received a right to sue letter in April 1999,

but waited to file suit until May 2000. Randal Woods had succeeded Madison as

dean of Fulbright College in 1999. After Okruhlik filed the lawsuit, Woods became

concerned about how Okruhlik’s tenure review should be conducted and sent her a
4

Tenure candidates in the political science department at the University of

Arkansas, Fayetteville, generally participate in the following process. Three external

evaluators within the political science discipline at other institutions evaluate the

candidate’s credentials. Department of Political Science Personnel Document,

section III(C)(2) (Department Policy); see also Fulbright College Personnel

Document § V(A) (Fulbright Policy). The chair of an elected personnel policy

committee (PPC) convenes a meeting with the tenured faculty in the department about

the candidate and produces a report. Department Policy § III(C)(2). The department

chair makes a separate written assessment, and both reports are sent to the dean. Id.

If either report is negative, the candidate may withdraw or appeal for reconsideration;

on reconsideration, the department chair and the faculty reassess the application,

along with any additional evidence. Id. The dean then submits all materials to an

elected college personnel committee (here the Fulbright Committee) which reviews

the case and makes a recommendation to the dean. Fulbright Policy § V(D). The

dean makes a recommendation and allows the candidate an opportunity to withdraw

or appeal for reconsideration before forwarding it on to the Vice Chancellor for

Academic Affairs. Id. The vice chancellor reviews the materials and makes a

recommendation. See Evaluative Criteria, Procedures and General Standards, §

III(B). If the vice chancellor’s recommendation is negative, the candidate may

request review by the Faculty Senate Committee on Appointment, Promotion and

Tenure, which performs an independent evaluation and makes a recommendation to

the chancellor. Id. The chancellor then makes a final recommendation to the

President and the Board of Trustees. Id. The President makes the final tenure

decision. Board Policy 405.1 § IV(A).

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letter detailing proposed changes in the process to ensure that the defendants named

in her lawsuit would not participate. Okruhlik observed that Woods became “cold”

towards her and would not help her prepare a strong tenure file, telling her that the

lawsuit had changed their relationship.

Okruhlik went through the multi-layered tenure process in early 2001.4

Okruhlik’s process differed slightly from the normal review process in that a

specially-formed personnel policy committee performed an independent evaluation

and that all of the defendants in the lawsuit, including Neuse, then chair of the

department, were precluded from voting on Okruhlik’s candidacy for tenure.
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Although Okruhlik received a positive recommendation from the special personnel

policy committee, she received a negative recommendation from the Fulbright

Personnel Committee, and Dean Woods ultimately recommended denial of tenure.

Okruhlik appealed Woods’s decision, and upon reconsideration, all parties reiterated

their prior conclusions. Woods forwarded his recommendation to Provost and Vice

Chancellor for Academic Affairs Bob Smith, who also issued a negative

recommendation, stating that “Dean Woods and the Fulbright College Personnel

Committee provide compelling arguments about the modest quality and unfocused

nature of your scholarship. These views are supported by the outside reviewers and

made more powerful by the absence of a publishable book-length manuscript.”

Appellant’s App. at 342. Okruhlik did not request further review upon receiving

Smith’s negative recommendation, so her candidacy was never considered by the

chancellor or the president. Because the probationary period for a tenure-track

faculty member may not extend beyond seven years, Board Policy 405.1 § IV(A)(4),

Okruhlik received a terminal appointment for her seventh year at the University.

Okruhlik’s lawsuit proceeded. After various pleadings and rulings, including

one by this court on matters unrelated to the current claims, Okruhlik v. Univ. of Ark.,

255 F.3d 615 (8th Cir. 2001) (addressing an 11th Amendment immunity issue),

Okruhlik filed a second amended complaint in March 2002, alleging that her tenure

process had been tainted by discriminatory animus. The district court granted the

defendants’ motion for summary judgment on some claims, D. Ct. Order of Oct. 2,

2002, but permitted the case to proceed to trial on the remaining claims.

At the conclusion of Okruhlik’s evidence, the defendants moved for judgment

as a matter of law. The district court granted the motion as to some of the defendants,

but allowed the trial to proceed on the remaining claims. The district court again

denied a similar motion at the close of the remaining defendants’ evidence and

submitted the case to the jury with specific interrogatories on Okruhlik’s disparate

treatment, Title VII retaliation, First Amendment retaliation, and hostile work

environment claims. The jury returned a verdict for the University on the disparate
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treatment claim, finding that gender was not a motivating factor in the decision not

to award tenure to Okruhlik. The jury found for Okruhlik and against the University

and Woods on the retaliation and hostile work environment claims, however, and

awarded damages totalling $353,000. It made the following findings by a

preponderance of the evidence in response to interrogatories presented by the court:

. . . that the University of Arkansas made a decision not to award Dr.

Okruhlik promotion and tenure and that the fact that Dr. Okruhlik

engaged in statutorily-protected activity was a motivating factor in that

decision.

. . . that Dean Randall Woods took adverse employment action against

Dr. Okruhlik because she made statements critical of the administration

of the Middle East Studies program or because she filed this lawsuit.

Appellant’s App. at 62-68. 

The University and Woods once again moved for judgment as a matter of law

on all claims. The district court granted the motion, finding that one of the elements

of the retaliation claims could not be met because Okruhlik was never officially

denied tenure by the University; she had not completed all the levels of the tenure

review process and did not receive a final decision by the University’s president. The

district court found that the completion of the process was “necessary in order to

reach the point of an ‘adverse employment action’ which would support an

employment discrimination claim.” D.Ct. Order of May 27, 2003, at 7. Okruhlik

therefore received a terminal appointment by operation of the policy because her

probationary period had expired. 

II.

We review de novo the district court’s decision to grant a motion for judgment

as a matter of law. Walsh v. Nat’l Computer Sys., 332 F.3d 1150, 1158 (8th Cir.

2003). We “draw all reasonable inferences in favor of the nonmoving party, and [ ]
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may not make credibility determinations or weigh the evidence.” Kipp v. Mo.

Highway & Transportation Comm’n, 280 F.3d 893, 896 (8th Cir. 2002) (quoting

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)). Judgment as

a matter of law is appropriate “when all the evidence points one way and is

susceptible of no reasonable inferences sustaining the position of the nonmoving

party.” Mouser v. Caterpillar, Inc., 336 F.3d 656, 662 (8th Cir. 2003) (citation

omitted). An inference is reasonable if it “may be drawn from the evidence without

resort to speculation.” McGreevy v. Daktronics, Inc., 156 F.3d 837, 840-41 (8th Cir.

1998) (citation omitted). The court may not substitute its own judgment for that of

the jury, but it may, in considering the whole record, give credence to the moving

party’s “uncontradicted and unimpeached [evidence], at least to the extent that that

evidence comes from disinterested witnesses.” Kinserlow v. CMI Corp., Bid-Well

Div., 217 F.3d 1021, 1025 (8th Cir. 2000) (citing Reeves, 530 U.S. at 151).

A.

Okruhlik contends that the district court erred in overturning the jury verdict

in her favor on her Title VII and First Amendment retaliation claims. The substance

of both claims is virtually identical, but they rest on different legal grounds inasmuch

as Title VII may serve as a basis for suit only against the University, whereas

Okruhlik’s First Amendment claim was brought under 42 U.S.C. § 1983 against

Woods in his individual capacity. See Lenhardt v. Basic Inst. of Technology, 55 F.3d

377, 381 (8th Cir. 1995) (stating that Title VII “liability for unlawful discrimination

in the workplace [is] imposed only on the employing entity”). To state a retaliation

claim, consisting of the same elements under Title VII and the First Amendment, a

plaintiff must prove that: (1) she engaged in a protected activity; (2) that the employer

took an adverse employment action against her, and (3) that the two situations are

causally connected. Kipp, 280 F.3d at 896 (Title VII); Duffy v. McPhillips, 276 F.3d

988, 991 (8th Cir. 2002) (First Amendment).

Defendants argue that the district court correctly found that Okruhlik could not

have established a prima facie retaliation case because she did not suffer an adverse
5

Okruhlik also argues that the district court’s grant of judgment as a matter of

law was procedurally flawed because the defendants failed to specify in their preverdict motion the grounds that they later argued in their post-trial motion. See Fed.

R. Civ. P. 50(b). We disagree. Although it is true that a post-trial motion for

judgment as a matter of law may not raise additional grounds that the party did not

raise in a pre-verdict motion, Walsh, 332 F.3d at 1158, the grounds are considered to

be sufficiently raised if the district court and the nonmoving party are apprised of the

basis for the motion. Lawrence v. CNF Transp., Inc., 340 F.3d 486, 491 n.2 (8th Cir.

2003). Technical precision in stating the grounds for the motion is not necessary.

Jarvis v. Sauer Sundstrand Co., 116 F.3d 321, 323 n.4 (8th Cir. 1997).

In this case, the defendants raised challenges to all the claims at issue here preverdict, both after Okruhlik’s evidence and after their evidence. The defendants

discussed the issue of adverse employment action and the district court was aware

that they were questioning both the existence of an adverse employment action and

the existence of causation on the retaliation claims. In their final pre-verdict motion,

the defendants reiterated the same arguments. Immediately after the verdict was

entered, the defendants stated that they intended to submit both judgment-as-a-matterof-law and Rule 59 motions, and then proceeded to do so. Accordingly, we conclude

that the relevant grounds were sufficiently preserved.

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employment action. Okruhlik argues that Dean Woods’s recommendation in fact

resulted in her failure to achieve tenure and that further internal appeals beyond the

vice chancellor would have been futile. She contends that the policy operating to

issue her a terminal appointment when she declined to appeal the vice-chancellor’s

negative recommendation constitutes an adverse employment action.5

We are mindful of the singular nature of academic decision-making, and we

lack the expertise to evaluate tenure decisions or to pass on the merits of a candidate’s

scholarship. We have said that “[w]hile 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.” Brousard-Norcross v. Augustana College Assoc.,

935 F.2d 974, 976 (8th Cir. 1991). The Supreme Court has made it clear that “[w]hen

judges are asked to review the substance of a genuinely academic decision, . . . they

should show great respect for the faculty’s professional judgment.” Regents of Univ.
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of Mich. v. Ewing, 474 U.S. 214, 225 (1985) (footnote omitted); see also Board of

Curators, Univ. of Mo. v. Horowitz, 435 U.S. 78, 90 (1978).

A plaintiff suffers an adverse employment action when the action results in a

“material employment disadvantage” such as “‘[t]ermination, reduction in pay or

benefits, and changes in employment that significantly affect an employee’s future

career prospects.’” Duncan v. Delta Consol. Indus., 371 F.3d 1020, 1026 (8th Cir.

2004) (quoting Spears v. Mo. Dep’t of Corrs. & Human Res., 210 F.3d 850, 853 (8th

Cir. 2000)). An official denial of tenure is an adverse employment action for

purposes of evaluating a retaliation claim. See, e.g., Abramson v. William Patterson

Coll., 260 F.3d 265, 288 (3d Cir. 2001). The academic setting and complex nature

of tenure decisions, however, distinguishes them from employment decisions

generally. See Dobbs-Weinstein v. Vanderbilt University, 185 F.3d 542, 545 (6th

Cir. 1999). We adopt these principles and believe it is appropriate for us to defer to

campus policy in determining when an official decision on tenure has been made,

particularly in light of the many intermediate recommendations involved in the

process. See id. at 545-46. We do not want to turn the tenure process into potentially

endless litigation over each intermediate step, and believe that a university should

have the opportunity to correct errors through its complete internal appeals process

that precedes its final decision. See id. at 546. “[W]here the tenure decision was

following the chain of appeal, each decision along the way is not actionable. Only

the final decision is the ultimate act.” Howze v. Virginia Polytechnic Inst. and State

Univ., 901 F. Supp. 1091, 1097 (W.D. Va. 1995). 

A candidate may only challenge the entire process once she has utilized the

prescribed process of tenure review and obtained a final university decision. At that

point, a negative evaluation that became part of an employee’s file, although it does

not itself constitute an adverse employment action, see Jones v. Fitzgerald, 285 F.3d

705, 714 (8th Cir. 2002), may be sufficient to show discrimination or retaliation if it

served as the basis for the adverse employment action. Intermediate decisions in a

promotion process are similar; they do not constitute independent adverse
6

In defining “tenure,” Board Policy 405.1 § I states that “[t]enure is the right

of continuous appointment. It is awarded by the President to eligible members of the

faculty upon successful completion by each of a probationary period.” The policy

clearly differentiates tenure from other employment decisions, such as reappointment

for non-tenured faculty members, for which the final decision is made by the dean and

the vice chancellor for academic affairs. Board Policy 405.1 § IV(B).

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employment actions unless they directly influence the decision-maker’s choice to

terminate the individual’s employment. See Abramson, 260 F.3d at 286. A jury may

reasonably “conclude that an evaluation at any level, if based on discrimination,

influenced the decisionmaking process and thus allowed discrimination to infect the

ultimate decision.” Id. (quoting Roebuck v. Drexel Univ., 852 F.2d 715, 727 (3d Cir.

1988)). The jury may not even consider that evidence and no recovery is possible,

however, if there is not an ultimate decision to review.

In contrast to Abramson, where the college’s president and the Board of

Trustees officially denied Abramson tenure according to the school's policies, see

Abramson, 260 F.3d at 268, 272, here the president never reviewed Okruhlik’s

candidacy because Okruhlik declined to seek review of the vice chancellor’s negative

recommendation. The University of Arkansas policy establishes that a final decision

on tenure has not been made until the president has issued his decision. This

conclusion does not automatically apply to all tenure cases and we will take a caseby-case approach, looking at the specifics of each school’s policies. In this case, the

president is the only official authorized to grant tenure.6

 The president, however,

“will not consider awarding tenure to a faculty member in a probationary status

without the prior recommendation of the faculty member’s departmental faculty,

chairperson, dean, chief academic officer, and the chief executive officer of the

campus concerned.” Board Policy 405.1 § IV(A)(7) (emphasis added). 

A faculty candidate at the University of Arkansas, therefore, must ensure that

the president receives all of the requisite recommendations in order to be officially

considered for tenure. If the recommendations below are positive, the policy dictates
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that they will automatically proceed to the next level; if they are negative, the

candidate must in several instances affirmatively seek further review by requesting

reconsideration of the recommendation. For example, if the candidate receives a

negative recommendation from the personnel policy committee chair or the

department chair, she “may request that the tenure application be terminated” or may

appeal for reconsideration, after which the recommendation is transmitted to the dean.

See Department Policy § III(c)(2)(b). In addition, as occurred in this case, if the

candidate receives a negative recommendation from the vice chancellor, she may

either choose not to seek further review or may request review by the University’s

Faculty Senate Committee on Appointment, Promotion and Tenure, which would

perform an independent evaluation of her tenure file, including all the prior

recommendations, and would make a recommendation to the chancellor. See

Evaluative Criteria, Procedures and General Standards § III(B). 

Because Okruhlik failed to pursue the additional levels of review available to

her after she received the negative recommendation from the vice chancellor, A.A.

342, we do not know whether the president would have decided to award tenure. We

conclude that Okruhlik's decision not to appeal the vice chancellor’s recommendation

therefore served as a withdrawal from the tenure-review process. She did receive a

terminal contract for her seventh year at the University, but that was due to the

operation of the clearly established term of employment for tenure-track professors

that the probationary period for such positions may not to extend beyond seven years.

Board Policy 405.1 § IV(A)(4). Okruhlik did not suffer an adverse employment

action for purposes of her complaint in this case, and thus we affirm the district

court’s grant of judgment as a matter of law on the retaliation claims.

B.

Okruhlik also contends that the district court erred in overturning the jury

verdict in her favor on her hostile work environment sexual harassment claim. She

alleges that she suffered harassment in both the Middle East Studies Program and the

Political Science department. She presented evidence that she was marginalized from
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decision-making in the program and that several men in her department participated

in conversations in the office next to hers that ranged from negative and offensive

statements about her to crude statements generally. To establish a prima facie case

for a hostile work environment based on sexual harassment, Okruhlik must show (1)

that she belongs to a protected group; (2) that she was subjected to unwelcome sexual

harassment; (3) that the harassment was based on sex; and (4) that the harassment

affected a term, condition or privilege of her employment. Henthorn v. Capitol

Communications, Inc., 359 F.3d 1021, 1026 (8th Cir. 2004).

The University properly preserved a challenge to the hostile work environment

claim on the applicability of the affirmative defense established in Faragher v. Boca

Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742

(1998). If no tangible employment action for which an employer may be held strictly

liable has occurred, the employer is liable for sexual harassment by its employees

only “if it knew or should have known about the conduct and failed to stop it.”

Ellerth, 524 U.S. at 759; see also Faragher, 524 U.S. at 807. A defendant may

therefore assert the defense by proving the following two elements: “(1) that the

employer exercised reasonable care to prevent and correct promptly any sexually

harassing behavior, and (2) that the plaintiff employee unreasonably failed to take

advantage of any preventative or corrective opportunities provided by the employer

or to avoid harm otherwise.” Pa. State Police v. Suders, 124 S. Ct. 2342, 2349

(2004). The defendant bears the burden of showing that the victim unreasonably

failed to take available steps to reduce the harm. Id. at 2354. 

Although Okruhlik experienced conflict with several of her colleagues, the

University responded to Okruhlik’s harassment concerns as soon as they came to

light. Most of Okruhlik’s conflicts with her colleagues appear to have involved

disagreements over the management of academic programs. When Okruhlik went to

see Dean Madison about mismanagement in the Middle East Studies Program, he

responded with concern, and initiated an investigation that resulted in a restructuring

of the program. The heart of Okruhlik’s harassment claim, however, related to the
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conversations she overheard from the adjacent office that consisted of negative and

even conspiratorial references to her work and job. Although the University

maintains an Office of Affirmative Action (OAA), where Okruhlik could have

initiated a grievance procedure to put the University on notice of the alleged

harassment, she failed to do so, choosing instead not to inform anyone at the

University of the conversations until after they had ended. The conversations ceased

in April 1998, and it was not until the next month that Okruhlik complained to ViceChancellor Pederson, who then personally accompanied Okruhlik to the OAA and

arranged for her to meet with the assistant director of that office. In light of these

facts, we conclude that the University was entitled to the benefit of its affirmative

defense, and we thus affirm the district court’s grant of judgment as a matter of law

on the hostile work environment claim.

The judgment is affirmed.

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