Filed: Mar. 14, 2007
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Summary: NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 07a0197n.06 Filed: March 14, 2007 Case No. 05-5444 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ELIZABETH M. NELSON, ) ) Plaintiff-Appellant, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE WESTERN CHRISTIAN BROTHERS UNIVERSITY, ) DISTRICT OF TENNESSEE ET AL., ) ) Defendants-Appellees. ) ) _ ) ) BEFORE: BATCHELDER, MOORE, and BALDOCK,* Circuit Judges. ALICE M. BATCHELDER, Circuit Judge. Plaintiff-Appellant, Dr. Eliza
Summary: NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 07a0197n.06 Filed: March 14, 2007 Case No. 05-5444 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ELIZABETH M. NELSON, ) ) Plaintiff-Appellant, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE WESTERN CHRISTIAN BROTHERS UNIVERSITY, ) DISTRICT OF TENNESSEE ET AL., ) ) Defendants-Appellees. ) ) _ ) ) BEFORE: BATCHELDER, MOORE, and BALDOCK,* Circuit Judges. ALICE M. BATCHELDER, Circuit Judge. Plaintiff-Appellant, Dr. Elizab..
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0197n.06
Filed: March 14, 2007
Case No. 05-5444
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ELIZABETH M. NELSON, )
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE WESTERN
CHRISTIAN BROTHERS UNIVERSITY, ) DISTRICT OF TENNESSEE
ET AL., )
)
Defendants-Appellees. )
)
_______________________________________ )
)
BEFORE: BATCHELDER, MOORE, and BALDOCK,* Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge. Plaintiff-Appellant, Dr. Elizabeth Nelson
(“Dr. Nelson”), appeals the jury’s verdict in favor of the Defendants-Appellees on her Title IX
retaliation claim against her employer, Christian Brothers University (“CBU” or “the University”),
the school’s then-President, Stanislaus Sobczyk (“Brother Stan”), and Louis Althaus (“Brother
Louis”), the school’s then-Vice-President of Academic Affairs. She appeals also the district court’s
order granting summary judgment to the Defendants on her claim for breach of contract. Because
we find that the district court did not err in instructing the jury on the Title IX retaliation claim and
that the jury’s verdict is not against the weight of the evidence, and we further find that no genuine
*
The Honorable Bobby R. Baldock, United States Circuit Judge for the United States Court of Appeals for the
Tenth Circuit, sitting by designation.
issue of material fact remained for trial on the claim for breach of contract and the Defendants were
entitled to judgment on that claim as a matter of law, we affirm.
I.
On September 8, 2003, Dr. Nelson filed a complaint alleging, inter alia, that the Defendants
created a hostile work and educational environment based on sex and failed to promote her because
of a presentation that she made to the University Faculty Assembly regarding the school’s policies
and procedures concerning sexual assaults on campus. Dr. Nelson alleged that the Defendants
denied her a promotion in retaliation for her exposing violations of federal and state campus crime-
reporting requirements. She further alleged that the University breached her employment contract
by improperly conducting the promotion review meeting in which her promotion was denied.
On January 10, 2005, the district court granted in part and denied in part the Defendants’
motion for summary judgment. The court’s order granted summary judgment regarding Dr. Nelson’s
claims pursuant to Title VII, the Tennessee Human Rights Act, and breach of contract, but denied
summary judgment regarding Dr. Nelson’s claims of sexual harassment, gender discrimination,
retaliation under Title IX, and civil conspiracy. Dr. Nelson’s case proceeded to jury trial on January
24, 2005, and at the close of Dr. Nelson’s proof, the court granted the Defendants’ motion for a
directed verdict on the Title VII sexual harassment claim. On January 28, 2005, the jury returned
a verdict in favor of the Defendants on all of the remaining issues. On February 4, 2005, Dr. Nelson
filed a motion for a new trial, which the district court denied. This appeal followed.
II.
Dr. Nelson is a female, tenured associate professor in CBU’s Department of Behavioral
Sciences. The University receives federal funding and is subject to Title IX. In the fall of 2002, Dr.
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Nelson became aware that a University student claimed that in September of that year, she had been
sexually assaulted on campus by a male classmate. The student did not immediately press criminal
charges, but filed an official complaint with the Associate Vice-President with Student Life, and
asked Dr. Nelson to help her in proceeding with the complaint. Dr. Nelson and the student went to
the Student Life office to inquire about a disciplinary hearing. On October 25, 2002, the ten member
student-faculty disciplinary committee unanimously found the alleged perpetrator not guilty. On
October 28, 2002, the student appealed the committee’s decision to Brother Stan, the then-President
of the University, and on November 12, 2002, Brother Stan upheld the committee’s ruling.
On February 6, 2003, Dr. Nelson presented a PowerPoint slide show to the Faculty Assembly.
Her presentation focused on the University’s sexual assault policies and procedures and their
deficiencies – as she perceived them – and included information about the students involved in the
alleged September rape incident and in another alleged on-campus sexual assault. Brother Stan met
with several members of the faculty regarding Dr. Nelson’s presentation, and questions were raised
about Dr. Nelson’s allegations and the appropriateness of her presentation. An affidavit provided
by Brother Louis, then-Vice-President of Academic Affairs, states that he became aware that:
there was information included in her Faculty Assembly presentation that was
unsubstantiated and reflected poor academic research. She presented unsubstantiated
information as “facts,” failed to properly research her subject, and failed to qualify
her statements. She claimed that a student who had been tried and found innocent
of rape charges had moved to another state and “committed further sexual assault[s].”
Dr. Nelson had no proof to support this allegation that the male student, tried and
acquitted in Shelby County Criminal Court, had moved to another state and
committed any assaults. Further, complaints were received by me from attendees at
the Faculty Assembly presentation as to the explicit nature of the presentation and I
am aware that faculty members were upset that the presentation was made in an
unprofessional manner.
3
On February 28, 2003, Brother Stan and Brother Louis met with Dr. Nelson to discuss their
concerns over her Faculty Assembly presentation. Brother Louis kept notes of that meeting and put
them in Dr. Nelson’s tenure file. Those notes indicate that the Brothers explained to Dr. Nelson:
that the former student who had been found innocent in the Memphis court system
had not been arrested for other crimes as she had claimed in the presentation. She
was asked to give documentation for her assertions. In addition, Brother Stan
explained to her that it is unprofessional and unethical to bring the two current
students to trial before the Faculty Assembly after the Discipline Committee found
no evidence of a sexual assault. He also explained that the whole campus would now
be aware of the two students and their supposed immoral behavior . . . . [I]t was
brought to her attention that case studies are to be done without revealing, even
obliquely, personal names and facts. While she did not give the two students’ names,
the descriptions were adequate to make quite clear who the students are, at least to
some of the faculty members present at the Faculty Assembly presentation. The
Power Point slides were quite explicit and were upsetting to some of the faculty
present, giving them concern to call upon the President to voice their displeasure.
The University’s Rank and Tenure Committee, whose voting members comprised nine men
and one woman, was scheduled to meet on March 7, 2003, to consider Dr. Nelson’s request for
promotion from Associate Professor to Professor. Brother Louis was a non-voting member of the
Committee, and Kristen Pruit, the Dean of the School of Arts, was the sole female member of the
Committee. The Committee voted 6-4 in favor of recommending Dr. Nelson for promotion. The
only reasons given in opposition to her promotion mirrored those listed in Brother Louis’s affidavit,
namely, that “[t]here was discussion of her presentation on Sexual Assault at CBU, her lapse of
professional judgment in presenting a case study of two current students, the quality of the research
into the background of the case, and the failure in the confidentiality that the case deserved.”
On March 12, 2003, Dr. Nelson received a letter from Brother Stan stating that her promotion
had been denied due to the Committee’s mixed recommendation. Dr. Nelson appealed the denial
to the Faculty Review Committee. The five member Faculty Review Committee concluded that
4
Brother Stan’s action in denying the promotion was not procedurally improper, but that “the
procedure by which the Rank and Tenure Committee reached its decision on the basis of information
that Dr. Nelson had not been previously informed would be presented to the Rank and Tenure
Committee is a defective procedure, and that procedure should be changed.” A letter from the
Faculty Review Committee Chair, Dr. Carriere, suggests that the information that was improperly
considered by the Rank and Tenure Committee included Dr. Nelson’s imprudent presentation at the
Faculty Assembly. According to Dr. Carriere, “[t]he Faculty Handbook, which the President
continually notes in the Faculty Appointment Contract, is ‘herewith incorporated by reference and
made a part of this contract,’ makes it quite clear that only information presented by the Dean,
Department Chair, and the Faculty’s response, can be used in decisions on advancement.” Dr.
Carriere’s letter did not make reference to or quote the language of any specific Handbook provision.
In response to the Faculty Review Committee’s findings, Willis Willey, Chairman of the
University’s Board of Trustees, discussed the matter with Brother Stan. In a letter responding to the
Faculty Review Committee, Chairman Willey relied on the Faculty Review Committee’s finding
“that Brother President did not act ‘in an inappropriate manner in denying promotion.’” Moreover,
Chairman Willey concluded that “[w]ith the finding rendered by you and the Faculty Review
Committee as peers, it was decided that no further action would be taken on this case for the
2003–2004 academic year.”
Dr. Nelson raises three arguments on appeal: (1) the trial court’s inclusion of an Employment
at Will - Business Judgment jury instruction was fundamentally erroneous and allowed the jury to
deliberate using the wrong legal standard; (2) the jury’s verdict was against the weight of the
evidence; and (3) the summary judgment in favor of the Defendants on the breach of contract claim
5
was inappropriate because the record had presented a genuine issue of material fact. Because these
arguments lack merit, we AFFIRM the jury’s verdict.
III.
A. THE JURY INSTRUCTION ON THE TITLE IX RETALIATION CLAIM
Dr. Nelson’s complaint alleged that by failing to promote her the University had subjected
her to an adverse employment action in retaliation for “her presentation to the Faculty Assembly, and
[her] assisting one of the sexual assault victims in dealing with the administration, and [her] assisting
the U.S. Department of Education’s Office of Human Rights in its investigation of the complaint of
one of the assault victims.” Department of Education regulations prohibit retaliation against
participants in Title IX investigations:
No recipient or other person shall intimidate, threaten, coerce, or discriminate against
any individual for the purpose of interfering with any right or privilege secured by
section 601 of the Act or this part, or because he has made a complaint, testified,
assisted, or participated in any manner in an investigation, proceeding or hearing
under this part.
34 C.F.R. 100.7(e).
In denying the Defendants’ motion for summary judgment on this claim, the district court
held that it was undisputed that Dr. Nelson’s February 2003 presentation at least contributed to her
not being promoted, and genuine issues of material fact existed as to whether the Defendants were
aware of Dr. Nelson’s participation in the Department of Education’s investigation prior to the
decision not to promote her. The court therefore allowed the issue to proceed to the jury inasmuch
as the record “could support an inference that a causal connection existed between Plaintiff’s
purported Title IX activity and the University’s decision not to promote her.” The jury found in
favor of the Defendants, and Dr. Nelson now challenges a portion of the court’s jury instruction,
6
namely, the Employee at Will – Business Judgment instruction. The district court’s instruction on
the issue states:
Under the law to be applied in this case, an employer, such as defendant . . . has the
right to promote or not promote an employee, such as plaintiff . . . for a good reason,
a bad reason, or no reason at all, as long as the decision not to promote is not
motivated by the employee’s protected Title IX activity. If you find that the
defendant’s decision to not promote the plaintiff in this case was not motivated by
the plaintiff’s alleged protected Title IX activity, then you must render a verdict for
the defendant, even though you might feel that the defendant’s actions were
unreasonable, arbitrary, or unfair. You are not to focus on the soundness of the
defendant’s business judgment or to second guess its business decisions.
Dr. Nelson concedes that she did not object to this instruction at trial, and we therefore
review the instruction for plain error. See Fed.R.Civ.Proc. 51(d)(2). See also Jordan v. City of
Cleveland, 464 F.3d 584, 599 (6th Cir. 2006) (“[Appellant] concedes that it did not object to the
instructions as required by Rule 51, so that Rule 51(d)(2) prescribes that our review is limited to
determining whether the instruction constituted ‘clear and prejudicial error’ (Chonich v. Wayne
County Comm. Coll.,
973 F.2d 1271, 1275 (6th Cir.1992)).”). Dr. Nelson argues that it is plain error
to allow a “jury to deliberate under an incorrect legal standard that affect[s] the core issue of the case
and result[s] in prejudice.” Reynolds v. Green,
184 F.3d 589, 594 (6th Cir. 1999).
Dr. Nelson contends that she had an employment contract with the University that calls for
“certain specific procedures that must be followed in considering a faculty member for promotion,”
and therefore, the court’s instruction that CBU “had the right to promote or not promote an
employee, such as plaintiff Elizabeth Nelson, for a good reason, a bad reason, or no reason at all”
was misleading to the jury. Dr. Nelson appears to argue that because there were procedures for CBU
to follow in considering her promotion, the defendants’ failure to follow those procedures
demonstrates pretext. According to Dr. Nelson, because the jury instruction described an
7
employment at will rather than the contract under which she was employed, it was more difficult for
the jury to find pretext.
Contrary to the implication in Dr. Nelson’s brief, the district court did not instruct the jury
only that CBU “had the right to promote or not promote an employee, such as plaintiff Elizabeth
Nelson, for a good reason, a bad reason, or no reason at all.” Review of the entire instruction reveals
that this sentence in the instruction did not end there, but continued with the words “as long as the
decision not to promote is not motivated by the employee’s protected Title IX activity.” As Dr.
Nelson’s brief concedes, “[t]he core issue in this case involves whether or not the defendants
retaliated against Dr. Nelson by not promoting her.” This instruction did not, as Dr. Nelson
contends, permit the jury to deliberate under an incorrect standard that affected this issue, and we
conclude that the instruction did not constitute plain error.
B. THE WEIGHT OF THE EVIDENCE
Dr. Nelson contends that the district court erred in denying her motion for a new trial because
the jury’s verdict was against the clear weight of the evidence. She maintains that “the only real
issue was whether or not the reason given for not promoting the Plaintiff was a pretext, and said
reason was clearly invalid,” and therefore, the jury could not reasonably have found in favor of the
Defendants. We review a district court’s denial of a motion for new trial for abuse of discretion.
See Holmes v. City of Massillon, 78 F.3d 1041, 1045 (6th Cir. 1996).
Generally, courts have looked to Title VII, 42 U.S.C. §§ 2000e, as an analog for the legal
standards in both Title IX discrimination and retaliation claims. See Brown v. Hot, Sexy and Safer
Prods, Inc., 68 F.3d 525, 540 (1st Cir. 1995) (“Because the relevant caselaw under Title IX is
relatively sparse, we apply Title VII caselaw by analogy.”) (discrimination claim); Preston v.
8
Virginia ex rel. New River Cmty. Coll., 31 F.3d 203, 206-07 (4th Cir. 1994) (“Title VII, and the
judicial interpretation of it, provide a persuasive body of standards to which [the court] may look in
shaping the contours of a private right of action under Title IX.”) (retaliation claim); Roberts v. Colo.
State Bd. of Agric.,
998 F.2d 824, 832 (10th Cir. 1993) (Title VII provides “the most appropriate
analogue when defining Title IX's substantive standards.”) (disparate impact claim) (citation
omitted), cert. denied,
510 U.S. 1004 (1993); Lipsett v. Univ. of P.R.,
864 F.2d 881, 896 (1st Cir.
1988) (Court “can draw upon the substantial body of case law under Title VII to assess the plaintiff's
[Title IX claim].”) (discrimination claim); see also Murray v. N.Y. Univ. Coll. of Dentistry,
57 F.3d
243, 248-49, 251 (2nd Cir. 1995) (discrimination and retaliation claims). Here, the district court
instructed the jury to assess Dr. Nelson’s Title IX claim using the burden shifting framework of
McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).
Whether Dr. Nelson established a prima facie case of Title IX discrimination is not at issue
in this appeal. The appeal centers on whether the evidence supports the jury’s conclusion that the
Defendants articulated a legitimate non-discriminatory reason for failing to promote Dr. Nelson, and
Dr. Nelson failed to demonstrate pretext.
Dr. Nelson argues that the only reason that the Rank and Tenure Committee gave for denying
her promotion concerned her presentation at the Faculty Assembly, namely, activity protected under
Title IX, and, therefore, “[g]iven that the sole reason given for not promoting Dr. Nelson was her
protected activity opposing violations of Title IX, it suffices to say that the defendants did not give
a non-retaliatory reason for denying Dr. Nelson’s promotion.” We disagree.
As the Defendants observe, the jury was entitled to draw its own inferences and reach its own
conclusions based upon the evidence presented at trial. There was sufficient evidence in the record
9
for the jury to conclude that the Rank and Tenure Committee members were not upset that Dr.
Nelson challenged the sexual assault policies at the school, but were dismayed by the way that she
chose to challenge them. The record clearly demonstrates that faculty members were surprised by
the lack of professional judgment that Dr. Nelson displayed in putting two current students on parade
in a case study, effectively revealing their identities, raising false and unsubstantiated allegations
about one student, and not presenting a fully researched position. Based upon the affidavits and the
meeting notes of Brother Louis, it is clear that faculty and administration members believed that Dr.
Nelson’s presentation demonstrated a lack of scholarship and judgment, irrespective of any pending
promotion. Dr. Nelson has neither acknowledged nor challenged the criticism leveled by her
colleagues and, as the Defendants rightly note, she fails to perceive that it was not the subject of her
Faculty Assembly presentation that elicited the adverse reaction from her peers, but the manner in
which she chose to make her presentation. The jury, however, was entitled to – and did – draw that
distinction, and sufficient evidence supports its decision.
The third step in this analysis required the jury to determine whether the plaintiff proved, by
a preponderance of the evidence, that the non-retaliatory reason given by the defendant for the
adverse employment action was merely a pretext for the real reason, which was unlawful retaliation.
Dr. Nelson contends that the reason given for not promoting her was pretext, “primarily because the
sole reason given was invalid.” It is true that the Faculty Review Committee found that “the Rank
and Tenure Committee’s 6 to 4 vote ‘in favor of promotion’ for Dr. Beth Nelson had occurred as a
result of a ‘defective procedure’ . . . . [because its] decision came as a result ‘of information that Dr.
Nelson had not been previously informed would be presented to the Rank and Tenure Committee.’”
Dr. Nelson argues that because the Rank and Tenure Committee improperly considered her Faculty
10
Assembly presentation in violation of the Faculty Handbook, and because information about that
presentation was presented to the Committee in violation of the Faculty Appointment Contract, the
Faculty Presentation was an invalid reason for the denial of her request for promotion. Because the
reason given was invalid, she argues, the reason was necessarily pretextual. Again, we disagree.
First, the ultimate decision on whether to promote Dr. Nelson rested with Brother Stan, who
expressed concern about Dr. Nelson’s presentation at the Faculty Assembly before there was ever
a Rank and Tenure Committee report. Brother Stan met with Dr. Nelson and Brother Louis privately
on February 28, 2003, and explained all of the reasons he thought that her presentation was
unprofessional and improper. None of those reasons included concern over the protected subject
matter of the lecture. The Rank and Tenure Committee’s recommendation with regard to Dr.
Nelson’s promotion was precisely that – a recommendation – and, in fact, the Committee
recommended in favor of her promotion. It was Brother Stan who decided that a 6-4 Committee vote
was not enough to support promotion, and there is no evidence in the record that Brother Stan took
a different view of candidates with the same or similar Committee votes. Dr. Nelson has not
provided evidence that she was treated differently by the one who actually made the promotion
decision.
Second, that the Rank and Tenure Committee may have violated the internal procedures for
considering an applicant’s promotion does not mean that the reason that they denied the promotion
was a pretext aimed at disguising an unlawful retaliatory motive. This is precisely what the jury was
able to weigh and determine. The question for the jury was not whether the school had erred in
applying its own safeguards during the promotion vote, but whether the reasons actually given for
the ultimate denial of promotion were a mere pretext for an unlawful retaliatory reason. Here, the
11
burden of proof clearly weighs against Dr. Nelson. She provided no evidence – beyond the fact that
her offensive presentation may not have been properly before the Committee – to show that the
concerns raised about that presentation were pretextual. Weighing all of the evidence at trial, the
jury reasonably could have concluded from the testimony, the affidavits, and the slide show itself
that the University was concerned about the quality and professionalism of Dr. Nelson’s work and
not that it was retaliating against her because of the subject matter of that presentation.
As we explained in Strickland v. Owens Corning, 142 F.3d 353, 357 (6th Cir. 1998), the
district court “should deny the motion [for a new trial] if the verdict is one which could reasonably
have been reached, and the verdict should not be considered unreasonable simply because different
inferences and conclusions could have been drawn or because other results are more reasonable.”
Here, the district court rightly recognized that the jury could reasonably reach these conclusions
described above, and the court did not abuse its discretion in denying Dr. Nelson’s motion for a new
trial.
C. THE BREACH OF CONTRACT CLAIM
Finally, Dr. Nelson appeals the order of the district court granting the Defendants’ motion
for summary judgment on her breach of contract claim. We review de novo an order granting
summary judgment. Williams v. Mehra, 186 F.3d 685, 689 (6th Cir. 1999). The court noted that Dr.
Nelson’s complaint did not allege any specific breach of contract, but claimed only that the
Defendants acted in bad faith for not promoting her. In response to the Defendants’ summary
judgment motion, Dr. Nelson argued that the University breached a provision of the Faculty
Handbook that had been incorporated into her employment contract, namely, the provision regarding
the information that the Rank and Tenure Committee may consider in its consideration of a request
12
for promotion. The district court granted the Defendants’ motion, holding that “[a]bsent evidence
of the provision of the Faculty Handbook that Defendants purportedly breached, no reasonable jury
could return a verdict for Plaintiff.”
On appeal, Dr. Nelson argues that the Defendants’ motion should have been denied because
a genuine issue of fact remained for trial regarding whether the promotion procedures violated Dr.
Nelson’s employment contract, as evidenced by the letter from Dr. Carriere, chairman of the Faculty
Review Committee, to Mr. Willey, chairman of the CBU Board of Trustees, expressing concern that
the Committee had used “defective procedures” in violation of the Handbook rules that were
incorporated into Dr. Nelson’s contract. But Dr. Nelson entirely ignores the fact that it was her
burden to prove that a genuine issue of fact remained for trial with regard to her claim of breach of
contract. Although the district court had before it the letter to which Dr. Nelson refers, the court
noted that the letter did not include a copy of or any reference to any section of the Handbook, and
was, in any event, hearsay. We need not determine whether the district court’s hearsay ruling is
correct; we conclude that in the absence of the Handbook provision or provisions on which Dr.
Nelson premises her claim of breach, the letter constitutes no more than a scintilla of evidence,
which is not sufficient to permit a jury to find in her favor on the issue. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986) (“The mere existence of a scintilla of evidence in support of
the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably
find for the plaintiff.”)
CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.
13
KAREN NELSON MOORE, Circuit Judge, concurring in the judgment in part and
dissenting in part. The parties presented only one issue for us to resolve regarding Dr. Nelson’s
breach of contract claim: whether the district court erred by concluding that Dr. Carriere’s letter was
inadmissible hearsay. It is clear that the district court erred. Dr. Carriere’s letter was “offered
against a party and is . . . a statement by the party’s agent or servant concerning a matter within the
scope of the agency or employment, made during the existence of the relationship,” FED . R. EVID .
801(d)(2)(D), and was thus admissible non-hearsay. Cf. Beck v. Haik, 377 F.3d 624, 638-40 (6th Cir.
2004); Carter v. Univ. of Toledo,
349 F.3d 269, 272, 274-76 (6th Cir. 2003).
The majority sidesteps this issue, however, and goes out of its way to dispose of Dr. Nelson’s
claim. First, the majority faults Dr. Nelson for not submitting a copy of her contract, a condition
which, however wise trial practice it might be, both the Federal Rules of Evidence and precedent
make clear is not required. See FED . R. EVID . 1004(3); Woods v. Lecureux, 110 F.3d 1215, 1223 (6th
Cir. 1997); Backstrom v. Dornbrock, No. 97-1840,
1998 WL 808239, at *2, *4 (6th Cir. Nov. 12,
1998) (unpublished opinion); Neville Constr. Co. v. Cook Paint & Varnish Co.,
671 F.2d 1107,
1110-11 (8th Cir. 1982). The majority then concludes that, without a copy of the contract, Dr.
Carriere’s letter was “no more than a scintilla of evidence” of the relevant contractual provisions.
This conclusory assertion is unsupported and unsupportable. Dr. Carriere’s letter stated: “The
Faculty Handbook, which the President continually notes in the Faculty Appointment Contract, is
‘herewith incorporated by reference and made a part of this contract,’ makes it quite clear that only
information presented by the Dean, Department Chair, and the Faculty’s response, can be used in
decisions on advancement.” 3 Joint Appendix at 391. The majority somehow concludes that,
without a copy of the relevant contract provisions, a reasonable jury could not conclude from Dr.
14
Carriere’s letter that Dr. Nelson’s contract required exactly what the letter said it did—“that only
information presented by the Dean, Department Chair, and the Faculty’s response, can be used in
decisions on advancement.” Cf. Neville Constr. Co., 671 F.2d at 1110-11 (concluding that a
witness’s testimony could be used to prove the contents of a warranty contained in a destroyed
brochure). Thus, it is improper simply to dispose of Dr. Nelson’s breach of contract claim. I
respectfully dissent.
15
