                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0054n.06

                                            No. 08-5234

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

                                                                                        FILED
ROBERT KESSLER,                                    )                                Jan 28, 2010
                                                   )                          LEONARD GREEN, Clerk
       Plaintiff-Appellee,                         )
                                                   )
v.                                                 )   ON APPEAL FROM THE UNITED
                                                   )   STATES DISTRICT COURT FOR THE
PATRIZIA RICCARDI,                                 )   MIDDLE DISTRICT OF TENNESSEE
                                                   )
       Defendant-Appellant.                        )




       Before: NORRIS, CLAY and SUTTON, Circuit Judges.


       SUTTON, Circuit Judge. Dr. Patrizia Riccardi sued Dr. Robert Kessler, alleging that he

retaliated against her after she reported him for sexual harassment. Kessler, in turn, sued Riccardi

for defamation, alleging that her reports against him were false and damaged his reputation and

mental health. Kessler prevailed in both suits, and Riccardi, now proceeding pro se, claims the

district court erred by: (1) granting partial summary judgment to Kessler on her retaliation claim; (2)

resolving three evidentiary motions incorrectly; (3) granting Kessler’s pre-verdict motion for

judgment as a matter of law on the remainder of her retaliation claim; and (4) denying her post-

verdict motion for judgment as a matter of law on Kessler’s defamation claim. We affirm, except

with regard to the pre-verdict judgment as a matter of law on the retaliation claim, which we reverse

and remand.
No. 08-5234
Kessler v. Riccardi

                                                 I.


       Riccardi, a psychiatrist, began a medical-research fellowship in the Radiology Department

at Vanderbilt University in September 2003. She worked under the direct supervision of Kessler,

a radiology and psychiatry professor. When Riccardi accepted a part-time faculty position in July

2004, she agreed to fund a percentage of her salary with grant money, which she could accomplish

either by obtaining her own grants or by contributing to the grants of other faculty members, who

would then allocate a portion of their grant funding to her salary.


       During Riccardi’s first two years at Vanderbilt, she worked almost exclusively with Kessler,

researching a number of mental-health disorders using Positron Emission Tomography, a

neuroimaging technology. Riccardi claims she came to Vanderbilt specifically to work with Kessler,

as he was a recognized scholar in PET imaging, the field in which she too wanted to specialize. As

Riccardi understood it, Kessler planned to include her on all of his grants and help her with grants

of her own so that she could reach her funding goal.


       The nature of Riccardi and Kessler’s relationship differs dramatically depending on whom

you ask. Riccardi alleges that Kessler began sexually harassing her in November 2003, which

gradually worsened and culminated in an attempted rape in June 2005 when they were in Toronto

attending a professional conference. Kessler denies these allegations, contending that the two began

an on-again-off-again affair in January 2004 that lasted until June 2005, and that he, not Riccardi,

was the victim of the physical altercation in Toronto.


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Kessler v. Riccardi

        The Toronto incident prompted Riccardi to report allegations of Kessler’s sexual harassment

and attempted rape to Vanderbilt in June 2005. University authorities conducted an investigation,

ultimately concluding that the evidence was insufficient to substantiate Riccardi’s claims. During

the investigation, Kessler told Vanderbilt authorities that he and Riccardi had engaged in a

consensual sexual relationship. The university thereafter strictly limited Kessler’s interaction with

Riccardi, instructing him to avoid being alone with her and not to communicate with her directly.

Because much of Riccardi’s work required the assistance or supervision of Kessler, the parties

worked out a system whereby Riccardi and Kessler would communicate by e-mail and copy each

other’s attorneys on all of their messages.


       In June 2006, Riccardi filed a sexual harassment complaint that named Vanderbilt, Kessler

and radiology department chair Dr. Martin Sandler as defendants. She raised a state-law claim for

retaliation against Kessler individually, along with claims for battery and intentional infliction of

emotional distress stemming from the physical altercation in Toronto. Kessler countersued, alleging

defamation as well as assault and battery claims based on the Toronto incident. Riccardi settled her

claims against Vanderbilt and Sandler before trial.


       Riccardi alleged—and continues to claim on appeal—that Kessler unlawfully retaliated

against her by inadequately supporting her grant-writing efforts and by refusing to include her on a

number of his own grant proposals. The district court granted partial summary judgment to Kessler

regarding his conduct on five of the grants, finding that Kessler presented legitimate non-retaliatory

reasons for his actions and that Riccardi had not shown a genuine factual issue as to whether the

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No. 08-5234
Kessler v. Riccardi

stated reasons were pretextual. As for his conduct on two of the research projects, however, the

district court found that Riccardi established a question of fact sufficient to warrant a trial.


       With the issues whittled down to Riccardi’s remaining two allegations of retaliatory conduct,

Kessler’s defamation claim and both of their personal-injury claims, the case proceeded to trial. At

the close of the evidence and before the case went to the jury, the district court granted Kessler’s

motion for judgment as a matter of law on Riccardi’s remaining two allegations of retaliation,

determining that Riccardi neither established that she suffered any adverse action nor demonstrated

that the explanations Kessler gave for his conduct were pretextual.


       The jury found in Kessler’s favor across the board, awarding him $15,000 in damages for

battery, $10,000 in compensatory damages for assault, $500,0000 in actual monetary damages for

defamation, $1,500,000 in other compensatory damages for defamation and $950,000 in punitive

damages. App. 1236–39.


       Riccardi filed a post-verdict motion for judgment as a matter of law, claiming that Kessler

failed to present evidence of actual damages resulting from the defamatory statements. In the

alternative, she requested a new trial or a remittitur of the compensatory and punitive damages for

defamation. The court granted her motion with respect to the $500,000 in actual monetary damages

but denied it as to the other compensatory damages and the punitive damages, on the condition that

Kessler accept a remittitur decreasing the compensatory damages award from $1,500,000 to




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No. 08-5234
Kessler v. Riccardi

$250,000 and the punitive damages award from $950,000 to $250,000. Kessler accepted the

remittitur and the district court entered a final judgment.


                                                  II.


       Riccardi first claims that the district court erred in granting partial summary judgment to

Kessler on her retaliation claim. Tennessee state law prohibits individuals from “retaliat[ing] or

discriminat[ing] in any manner against a person because such person has opposed a [discriminatory]

practice.” Tenn. Code Ann. § 4-21-301. A plaintiff alleging a retaliation claim under the statute

must, as with a Title VII claim, show “(1) that she engaged in activity protected by the THRA; (2)

that the exercise of her protected civil rights was known to the defendant; (3) that the defendant

thereafter took a materially adverse action against her; and (4) [that] there was a causal connection

between the protected activity and the materially adverse action.” Allen v. McPhee, 240 S.W.3d 803,

820–21 (Tenn. 2007). If the plaintiff makes the required showing, the burden shifts to the defendant

“to articulate a legitimate, non-discriminatory reason for” the adverse action. Id. at 821. And if the

defendant satisfies that burden, the burden shifts back to the plaintiff, who “must present evidence

demonstrating that the articulated reason is pretextual and that the defendant’s action was actually

motivated by a desire to retaliate against the employee.” Id.


       Kessler does not dispute that Riccardi demonstrated the first two elements of her retaliation

claim—reporting her allegations to Vanderbilt and filing a complaint against Kessler amounted to

protected activities and Kessler knew about them. See R.133, 35. As for the five allegedly


                                                -5-
No. 08-5234
Kessler v. Riccardi

retaliatory actions on which the district court granted summary judgment, however, Riccardi’s

attempt to show retaliation falters after that point.


                                                  A.


        Riccardi alleges that Kessler retaliated against her by “providing inadequate assistance with”

her “Sex Differences Grant proposal.” Riccardi Br. 45. The facts, as relayed by Riccardi, show that

several months after filing suit, Riccardi sought Kessler’s assistance as she prepared to submit the

grant proposal. Riccardi gave Kessler a draft of the proposal on a Friday, believing that doing so

would give Kessler sufficient time over the weekend to review it before the Monday submission

deadline. Still awaiting his response on Sunday, Riccardi asked a university employee to call Kessler

on her behalf at about 3:00 that afternoon. Kessler responded by emailing Riccardi at 4:20, telling

her that he “only now had the opportunity to carefully read” her grant and offering several paragraphs

of comments and suggestions. App. 726–28. The eighty minutes he spent reviewing and

commenting on the draft departed from his normal practice of spending one to two days reviewing

a grant proposal.


        Riccardi has not shown that Kessler’s failure to respond more quickly—or more

substantively—constituted retaliatory conduct. Regardless of how quickly Kessler reviewed

Riccardi’s grant, the undisputed facts show that he complied with her request to review her draft and

provide comments before the Monday deadline. He suggested ways Riccardi might “give the

reviewers greater confidence that [her] study would produce significant results,” App. 726–27,


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No. 08-5234
Kessler v. Riccardi

pointed her to recent scholarship in the area and highlighted sections that “could be explained more

clearly,” App. 728. Riccardi has no evidence to substantiate her claim that this critique “was not

meaningful and was not provided in good faith.” Ricc. Br. 46. And though Kessler ordinarily might

have spent more than eighty minutes reviewing grants, Riccardi offers no evidence to show that the

explanation he offered for his conduct—that he had not had time to review the grant—was

pretextual. Riccardi, not Kessler, imposed the time constraints, and a jury could not reasonably infer

that his decision not to spend most of the weekend reviewing her grant constituted retaliatory

conduct.


                                                 B.


       Riccardi claims that Kessler retaliated against her by providing “insufficient assistance” with

the grant proposal she submitted to the NIH to obtain funding to study autism. Ricc. Br. 48. Kessler

provided Riccardi with “one page” of comments after reviewing her draft proposal. Ricc. Br. 49.

The grant was not funded, and the reviewers commented that the background section was “difficult

to follow” and “not cogent,” App. 721, and that the entire proposal needed “careful editing,” App.

719. As Riccardi sees it, the reviewers’ comments demonstrate that Kessler retaliated against her,

because he—as an NIH grant reviewer himself—should “have warned [her] that the reviewers would

make such comments and suggested meaningful ways to avoid such criticism.” Ricc. Br. 49.


       Riccardi has not demonstrated that Kessler’s supposedly inadequate assistance constitutes

an adverse employment action sufficient to sustain a retaliation claim. Kessler’s “one page”


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Kessler v. Riccardi

email—too short to be helpful by Riccardi’s estimate—suggested that she correct various

organizational and substantive problems, including some of the same problems mentioned by the

reviewers. See, e.g., App. 715–16 (suggesting she edit the background section to make it more

“tightly focused”). Riccardi offers no evidence that Kessler’s feedback amounted to an adverse

action: She does not show, for example, that Kessler’s comments on grant proposals prior to her

complaint were significantly more helpful, nor does she suggest what “meaningful” comments

should have looked like.


                                                    C.


        Riccardi fares no better on her claim that Kessler retaliated against her by refusing to act as

the “mentor/sponsor” of her application for a Young Investigator Award sponsored by NARSAD,

an organization that funds psychiatric research projects. The NARSAD application requires a

“mentor/sponsor letter” “from an on-site mentor/sponsor . . . describing the mentor’s/sponsor’s

commitment to facilitate the specific research proposal.” R.82-2, 2–3. Kessler declined Riccardi’s

request that he assume that role, stating that, in light of their strained relationship and her refusal “to

communicate with [him] except by email,” he “d[id] not see how [he] could effectively fulfill the

duties required of a Mentor/Sponsor for this project.” App. 730. Based on his own experience as

a member of the NARSAD scientific council as well as a conversation with a “senior member” of

the organization, he believed that he “would be required to disclose [their situation] to NARSAD”

in a Mentor/Sponsor’s letter, which could have threatened her chances of receiving the grant. R.82,

¶ 19.

                                                   -8-
No. 08-5234
Kessler v. Riccardi

          Riccardi challenges the district court’s conclusion that these were legitimate, non-retaliatory

reasons for declining her request. She says that his reason for declining the mentor/sponsor role must

be pretextual because the limits on their communication did not hamper other projects they worked

on together. But evidence about other projects does not help her show pretext, because the record

shows that the NARSAD mentor/sponsor role is more intensive than an ordinary co-investigator role.

See R. 82, ¶ 19, see also App. 729. Riccardi rejoins that she did not ask Kessler to be her “mentor,”

just her “senior collaborator,” which purportedly would not have required as much one-to-one

contact. Ricc. Br. 51–52. No matter the title, she does not dispute that Kessler would have had to

submit a letter outlining his plans to support her project and disclosing their limited ability to

communicate. Her only response is that Kessler obtained much of his understanding about the role

of a mentor/sponsor from conversations with an undisclosed member of NARSAD, which Riccardi

classifies as inadmissible hearsay inappropriate for consideration in a summary judgment ruling. But

because Kessler testified about his conversation with a senior member of the NARSAD council to

show the basis of his belief that he could not help her, not for the truth of the matter asserted, the

conversation is not hearsay and the district court did not err in considering it. See Fed. R. Evid.

801(c).


                                                    D.


          Riccardi claims that Kessler retaliated by not naming her as a co-investigator on his

Vanderbilt Discovery Grant proposal for a project on “dopamine and depression.” Ricc. Br. 55. “[I]t

was a very small grant,” Kessler explains, “with a very limited budget and only the very most

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Kessler v. Riccardi

essential people could be included on it,” R.89-2 at 837, he “had to have someone from the

psychiatry department who would recruit the depressed subjects” and “[t]here was not enough money

in the budget for anyone else.” R.89-2 at 837. In addition, “the grant program required participation

by two Vanderbilt departments,” so “the . . . investigator on the budget [other than Kessler] had to

be from a department other than radiology”—the department in which Kessler and Riccardi worked.

R.82, ¶ 23. He added that, at the time he prepared the grant, “collaboration” with her “had been

exceptionally difficult,” presumably because of the restrictions placed on their interaction, R.89-2

at 837, and explained that the project was small enough that he would perform the PET scans

himself. Id. Other than claiming that this grant was related to a larger NIH grant on which she was

a co-investigator and that she would have worked for free, Riccardi offers no evidence to show that

these non-retaliatory reasons were pretextual. Ricc. Br. 56–7.


                                                 E.


        Riccardi argues that Kessler wrongfully withdrew his support of her “Borderline Personality

Grant” proposal “as a result of [her] complaint.” Ricc. Br. 41–42. According to Riccardi, Kessler

agreed to serve as her co-investigator for the grant in March 2005, several months prior to her June

2005 complaint to Vanderbilt authorities. He reviewed the draft proposal, provided Riccardi with

feedback and even offered her money from his own grant funding so that Riccardi could obtain

preliminary data for her proposal. Riccardi finished her proposal by June 2005, but decided to wait

to submit it until the next funding cycle rolled around in early 2006.



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No. 08-5234
Kessler v. Riccardi

       As she prepared to submit her proposal during January and February of 2006, Riccardi,

through Kessler’s secretary, asked Kessler to confirm that he would serve as co-principal investigator

by signing paperwork for the proposal. Kessler’s attorney informed Riccardi that Kessler “[did] not

intend to do this.” App. 635. Riccardi submitted the grant without Kessler’s (or any other faculty

member’s) assistance, and the grant was not funded. One grant reviewer commented on her junior

status, noting her failure to list “either an established psychiatric co-investigator, or a PET co-

investigator . . . as part of her team.” App. 704.


       Kessler provides a legitimate non-retaliatory reason for his refusal. The project, Kessler says,

involved administering medicine that could exacerbate the test subjects’ underlying conditions, and

he was concerned about patient safety. In addition, he claims that Riccardi did not provide him a

copy of the proposal in January 2006, so he could not, without running up against ethics rules, sign

off without thoroughly reviewing and understanding the “essential aspects” of her project. R.82, ¶

15. These reasons must be pretexual, Riccardi insists, because Kessler reviewed the proposal

approximately ten months earlier and agreed to serve as co-investigator without any mention of

safety or ethical concerns. But this argument does not satisfy her burden of showing pretext, as she

has not offered proof that the proposal remained in the same form as it was in June 2005, claimed

that she provided Kessler with a copy of the grant in January 2006 or shown that it would have been

ethically appropriate for Kessler to sign off on the proposal without re-reviewing it.


       Riccardi suggests in her reply brief that Kessler’s safety concerns about the grant are

pretextual because Kessler “agreed to serve as co-investigator on two of [her] other grants . . . which

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No. 08-5234
Kessler v. Riccardi

were similar in nature to the [grant] in terms of any potential ‘safety issues.’” Ricc. Reply 3.

Because she did not raise this point in the district court or in her initial brief, she has forfeited it. See

Moulton v. U.S. Steel Corp., 581 F.3d 344, 354 (6th Cir. 2009).


                                                    III.


        Riccardi challenges three of the district court’s evidentiary rulings, which we review for

abuse of discretion. See Biegas v. Quickway Carriers, Inc., 573 F.3d 365, 378 (6th Cir. 2009).


                                                     A.


        The district court did not err in permitting testimony that Riccardi told Kessler about her prior

sexual relationships. Though “evidence offered to prove” any alleged victim’s “other sexual

behavior” or “sexual predisposition” is generally inadmissible, the district court may allow such

evidence if “its probative value substantially outweighs the danger of harm to any victim and of

unfair prejudice to any party.” Fed. R. Evid. 412(a)(1)–(2), (b)(2). Kessler’s defense to Riccardi’s

allegations was that the two were in a consensual sexual relationship. Eliciting testimony about what

Riccardi told Kessler about her past sexual relationships, then, was probative as to whether the two

had the type of personal relationship in which Riccardi would disclose intimate details of her

personal life. We cannot say that the district court exceeded its discretion in determining that the

probative value of evidence going to the linchpin of Kessler’s defense substantially outweighed the

potential for unfair prejudice to Riccardi.



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Kessler v. Riccardi

       Riccardi’s alternative argument that the district court should have excluded the evidence on

Rule 404(b) grounds adds no merit to her objection. Rule 404(b) prohibits “evidence of other . . .

acts” “to prove the character of a person in order to show action in conformity therewith.” Fed. R.

Evid. 404(b). It does not, however, bar evidence of prior acts for other purposes—such as to show

that Riccardi shared personal details of her life with Kessler.


                                                  B.


       Nor did the district court abuse its discretion in denying Riccardi’s motion to admit evidence

that Kessler shifted assets and accounts to his wife’s name and sold property around the time

Riccardi made her complaint to Vanderbilt authorities. Riccardi suggests that the evidence should

have come in to show that Kessler “engaged in a pattern or scheme to evade responsibility for his

actions” once he suspected Riccardi might bring claims against him. Ricc. Br. 69. Even if this

evidence could have shown that Kessler wanted to “evade responsibility” by protecting his assets

from an unfavorable judgment, it would have been of little relevance to the ultimate issues in this

case—whether Kessler committed battery, intentionally inflicted emotional distress or retaliated

against Riccardi. The district court therefore did not abuse its discretion in omitting evidence of such

attenuated relevance.


                                                  C.


       Riccardi’s remaining evidentiary challenge—that the district court incorrectly permitted

“hearsay evidence consisting of statements [Kessler] made to others . . . that he had an intimate

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No. 08-5234
Kessler v. Riccardi

relationship with [Riccardi],” Ricc. Br. 63—is unavailing. The district court permitted Kessler to

testify that he told his boss and his wife that he was having an affair, citing the prior consistent

statement exemption from the hearsay rule. See Fed. R. Evid. 801(d)(1). An out-of-court statement

“consistent with” in-court testimony is admissible under Rule 801(d)(1) if the out-of-court statement

“is offered to rebut an express or implied charge against the declarant of recent fabrication.” Id.

Throughout the trial, Riccardi tried to prove that Kessler was lying when he claimed that their

relationship had been consensual. Therefore, Kessler offered testimony that he told his wife and his

boss of their purported affair months before Riccardi complained to Vanderbilt authorities for the

proper purpose of rebutting Riccardi’s claim that he lied about the affair to protect himself. No

doubt, it is possible that Kessler made up the affair and confessed it to those close to him to take the

sting out of Riccardi’s future sexual harassment claims, but the theory is sufficiently speculative that

we cannot say the district court abused its discretion in rejecting it.


        Riccardi gets nowhere with her challenges to other witnesses’ testimony regarding what

Kessler told them about his relationship with Riccardi. Because her attorneys did not object at trial

to Martin Sandler’s and Craig Oxford’s testimony, she has forfeited this argument. And because her

attorneys elicited testimony from Ingrid Kessler about Kessler’s out-of-court statements, R.264,

756–57, Riccardi cannot now maintain the court erred in allowing that testimony. See All Am. Life

& Cas. Co. v. Oceanic Trade Alliance Council Int’l, Inc., 756 F.2d 474, 479–80 (6th Cir. 1985).




                                                  IV.

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Kessler v. Riccardi

        Riccardi next challenges the district court’s denial of her post-verdict motion for judgment

as a matter of law on Kessler’s defamation claim. She claims that Kessler did not present a legally

sufficient evidentiary basis for a reasonable jury to find that he suffered actual injury as a result of

her allegations, which she discussed with other colleagues at Vanderbilt and reported to the

American Association of University Women. (She does not contest the sufficiency of the evidence

as to any of the other elements of a defamation claim, nor does she argue the reasonableness of the

punitive damages award.) Taking, as we must, the “strongest legitimate view of the evidence in

favor of” Kessler, we may reverse the district court’s denial of Riccardi’s motion only if “a

reasonable mind could draw but one conclusion”: a conclusion in Riccardi’s favor. Arms v. State

Farm Fire & Cas. Co., 731 F.2d 1245, 1248 (6th Cir. 1984).


        To recover damages on a defamation claim under Tennessee law, a party must prove “actual

injury” resulting from the allegedly defamatory statements. Memphis Publ’g Co. v. Nichols, 569

S.W.2d 412, 417–19 (Tenn. 1978). “[A]ctual injury is not limited to out-of-pocket loss,” and may

“include impairment of reputation and standing in the community, personal humiliation, and mental

anguish and suffering.” Id. at 416. But “anger, mere annoyance or loss of peace of mind” may not

be sufficient to demonstrate actual injury. See Murray v. Lineberry, 69 S.W.3d 560, 565 (Tenn. Ct.

App. 2001).


        Viewing the evidence in Kessler’s favor, a jury could reasonably have concluded that Kessler

experienced sufficient anguish, humiliation and suffering as a result of Riccardi’s allegations to

amount to a compensable “actual injury.” Kessler testified that Riccardi’s allegations of rape were

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Kessler v. Riccardi

“extremely stressful”; were “like a cloud that hangs over you and pushes you down and zaps your

energy”; made him “depressed somewhat, anxious somewhat” and “unable to work to get [his]

funding going”; caused him to “wonder . . . how many jobs, positions [he was] not being considered

for because people think [he’s] a rapist, a crazy person, a sexual harasser”; R.242 at 101–102, and

triggered ongoing problems sleeping at night, id. at 139.


       In addition to Kessler’s testimony, other record evidence lent support to the reasonableness

of the jury’s conclusion that Kessler’s injuries went beyond mere embarrassment, annoyance or

anger. Riccardi’s allegations, for one, prompted a lengthy internal investigation into Kessler’s

personal life at Vanderbilt. When she recounted her allegations to the American Association of

University Women, the organization posted them on its website. Kessler’s colleagues ran across the

website and alerted him to it, bolstering the legitimacy of Kessler’s belief that the allegations were

widely known and that Riccardi’s allegations had diminished his reputation. See Myers v. Pickering

Firm, Inc., 959 S.W.2d 152, 165 (Tenn. Ct. App. 1997) (finding actual injury in part because the

evidence showed that plaintiff believed his reputation was tarnished by the defamatory statements).

In light of the web publication and the intensive investigation prompted by Riccardi’s complaints,

this case is different from Tennessee cases in which the plaintiff suffered only “mere annoyance” or

“humiliation” insufficient to prove actual injury. See Handley v. May, 588 S.W.2d 772, 776–77

(Tenn. Ct. App. 1979) (no actual injury when there was “no evidence whatsoever of any impairment

of reputation and/or standing in the community” and the evidence showed that plaintiff was “under

mental stress and strain independent of the defamatory utterance”); Dowlen v. Mathews, No. M2001-


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Kessler v. Riccardi

03160-COA-R3-CV, 2003 WL 1129558, at *5 (Tenn. Ct. App. Aug. 25, 2003) (no actual injury from

defendant’s false statements about a police officer because he did not demonstrate harm “ris[ing]

above anger, mere annoyance or loss of peace of mind,” nor did he show that the false statements

led to the officer undergoing an “internal investigation,” “disciplinary action,” or any “cuts in pay,

demotions or suspensions”). Because the evidence was legally sufficient to sustain a damages

award, the district court did not err in denying Riccardi’s motion.


                                                   V.


         Lastly, Riccardi claims that the district court’s decision to grant Kessler’s pre-verdict motion

for judgment as a matter of law on Riccardi’s remaining two allegations of retaliation—those

surrounding Kessler’s decisions not to include Riccardi on his “Methamphetamine Grant” and on

his “Risperidone Contract.” When reviewing a judgment as a matter of law in a diversity case, “we

apply the same standards the forum state would apply,” Tschira v. Willingham, 135 F.3d 1077, 1087

(6th Cir. 1998), which means “tak[ing] the strongest legitimate view of the evidence in favor of the

non-moving party, construing all evidence in that party’s favor . . . [,] disregarding all countervailing

evidence” and reversing the judgment “unless reasonable minds could reach only one conclusion

from the evidence.” Johnson v. Tennessee Farmers Mut. Ins. Co., 205 S.W.3d 365, 370 (Tenn.

2006). As to both the Methamphetamine Grant and the Risperidone Contract, her challenge has

merit.


                                                   A.


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Kessler v. Riccardi

       Kessler submitted the Methamphetamine grant proposal to the NIH in October 2005. It

named several other Vanderbilt faculty members as co-investigators but did not include Riccardi.

At summary judgment, Kessler offered two non-retaliatory reasons for his conduct: (1) that Riccardi

did not have the required expertise in the grant’s subject matter; and (2) that the grant’s small budget

could not accommodate Riccardi. Riccardi countered that these reasons were pretextual, because

she had always been on his grants before, even if she did not have the necessary expertise, and

because, as the principal investigator, Kessler could have adjusted the budget to include her or given

her the opportunity to work on the grant without giving her a salary. Based on Riccardi’s reasoning,

the district court identified two issues of material fact that precluded summary judgment: (1) whether

Riccardi, regardless of her level of expertise, had been included on all of Kessler’s NIH grant

proposals involving PET scans up until she complained to Vanderbilt authorities in June 2005; and

(2) whether Riccardi reasonably expected that Kessler would include her on all of his grants

involving PET.


       The evidence submitted at trial did not resolve these questions. Kessler testified that from

the time Riccardi began work at Vanderbilt in Septermber 2003 until June 2005, Riccardi worked

on every grant he submitted. He did not refute Riccardi’s claim that her lack of expertise never

stopped Kessler from involving her on projects prior to June 2005 or grapple with her point that he

cited one of her papers in the grant application, suggesting that she at least had some expertise to

offer the study. The evidence presented at trial also did not settle whether Riccardi expected to be

included on all of Kessler’s PET-related grants. Kessler, in fact, lent some support to the


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Kessler v. Riccardi

reasonableness of her expectation, agreeing that he “probably” explained to Riccardi before she

arrived at Vanderbilt that she would work on his grants, App. 1202. And though Kessler now points

to Riccardi’s testimony that she worked on another researcher’s grant during that time period to

disprove the reasonableness of Riccardi’s belief, that proves only that she did not work solely on

Kessler’s grants, not that she did not expect to be on all of his grants. Because the same questions

of fact that precluded summary judgment remained unresolved at the close of the evidence, and

because “doubt exist[ed] as to the conclusions to be drawn from [the] evidence,” Johnson, 205

S.W.3d at 370, the jury, not the district court, should have determined whether Riccardi’s claim had

merit.


         Kessler tries to save this part of the judgment by claiming that the lingering questions about

pretext do not matter, because Riccardi failed to show an “adverse action” and therefore never

established a prima facie case of retaliation. The evidence showed that the grant was never funded,

Kessler argues, so failing to include Riccardi on the grant was not an adverse action, as it did not

hinder her in the end from meeting her funding requirements. The district court apparently agreed,

noting when granting the Rule 50 motion that any “damage” Riccardi incurred was “ethereal and

speculative.” App. 1232.


         But Kessler—and the district court—overlooked a crucial factual issue. The grant might not

have received funding, but Riccardi testified that even working on an unfunded grant proposal would

have advanced her career. From that, a jury reasonably could have found that being excluded from

career-building, albeit unfunded, grant work “well might have dissuaded a reasonable worker from

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Kessler v. Riccardi

making or supporting a charge of discrimination,” Allen, 240 S.W.3d at 820 (quoting Burlington

Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006), and therefore constituted an

adverse action. Kessler’s rationale—that his actions did not really harm Riccardi because she never

would have received funding from the grant anyway—contains another flaw. It is after-the-fact

reasoning that contains its own dose of speculation about whether the action was adverse to Riccardi

at the time it occurred. See Burlington Northern, 548 U.S. at 72–73 (“an indefinite suspension

without pay could well” be an adverse action “even if the suspended employee eventually received

backpay”).


                                                B.


       The district court erred along similar lines in granting Kessler’s Rule 50 motion with respect

to the “Risperidone Contract.” In December 2006, Kessler signed the contract, which provided

funding to conduct PET scans of individuals with schizophrenia.              Kessler did not seek

Riccardi’s—or anyone else’s—assistance in preparing the funding application, claiming that “it was

far simpler just to write it” himself. R.89-2 at 13. The district court denied summary judgment,

noting that the project was similar to other work he and Riccardi had worked on together and that,

although Kessler prepared the application on his own, another colleague, Dr. Robert Shelton, was

listed as a co-investigator, which “[gave] rise to an inference that Kessler’s stated reason for not

including” Riccardi—“that it was just too much trouble”—was pretextual. R.133, 34.




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        At trial, Kessler testified that no one other than himself was listed on the Risperidone

Contract, purportedly to provide a legitimate non-retaliatory reason for excluding Riccardi. When

Riccardi’s counsel confronted him with the fact that Shelton was listed as a co-investigator with a

salary on the “proposal transmittal form,” R.242 at 107–09, Kessler claimed that another Vanderbilt

employee—not he—put Shelton’s name on the application. Even though Riccardi’s name was not

on the proposal, Kessler continued, she would not have been excluded from working on the

Risperidone Contract once work began on it, but work had been delayed by the company funding

the project.


        Kessler’s testimony that nothing would have prevented Riccardi from working on the

contract once work began does not dispel the inferences of pretext identified by the district court at

summary judgment. Riccardi claims that Kessler retaliated against her by leaving her name off the

proposal, and a number of facts related to this complaint came out at trial that the jury should have

had the opportunity to weigh, namely: (1) that Riccardi was included on all of his PET-related

projects between September 2003 and June 2005; (2) that he did not ask her to work on either of his

PET projects afterward; (3) that the Risperidone contract was related to their other work; and (4) that

someone else’s name was placed on the proposal, suggesting that he readily could have done what

he previously always had done: include Riccardi’s name.


        Kessler opposes this conclusion on two fronts, claiming that a jury could not have concluded

that Kessler’s conduct was an “adverse action” and that Riccardi offered nothing to support her claim

of pretext. Leaving Riccardi’s name off the project was not an adverse action, Kessler insists,

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Kessler v. Riccardi

because work on the project was delayed. But as with the Methamphetamine Grant, this reality does

not undermine Riccardi’s prima facie case. There was evidence after all that having one’s name on

projects is a career benefit. As to pretext, Kessler insists that Riccardi cannot rebut a purported non-

retaliatory reason for his action—that he did not exclude Riccardi from work because no one had

started working on the project. But any project delays do nothing to eliminate the harm of being left

off the grant. The district court erred when it did not allow the jury to decide these lingering

questions.


        (Kessler, we should note, appears to dispute the premise of our reasoning, claiming that

“Riccardi does not complain that her name was not included on the Risperidone Contract . . . only

. . . that she did not do any work on that Contract,” Kessler Br. 40. We are not sure where Kessler

gets this idea, as the cited transcript pages do not mention the Risperidone Contract and our review

of the trial transcript reveals nothing to that effect. But even if Riccardi at some point suggested that

she was only complaining about not getting to work on a yet-to-begin project, there is certainly

contrary testimony indicating that Kessler’s decision not to include her name on the contract formed

the basis of her complaint and her papers before both the district court and this court confirm as

much, see R.95, 38–39, Ricc. Br. at 61, Ricc. Reply at 19 (“[Kessler’s] retaliatory conduct was in

excluding me from the Risperidone contract proposal.”).)


        Two final points.      One, the reader may wonder why the parties—and the district

court—treated the various adverse actions in this case as distinct claims as opposed to one claim with

aggregated harms. We had the same question. The answer is that this is how the parties presented

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Kessler v. Riccardi

the case. And because the parties chose to structure the case in this manner and because no party has

complained about this aspect of the case on appeal, we need not decide whether their assumptions

about the appropriate structuring of this case are correct.


       Two, we have asked Robert Rack, the head of the Office of Circuit Mediators, to contact the

parties to determine whether they may wish to mediate the two claims left in this case. The mandate

as a result will not issue until the parties successfully mediate the case or determine that they no

longer wish to try to resolve their differences through court-sponsored mediation.


                                                 VI.


       For these reasons, we affirm the judgment, except with respect to the district court’s grant

of judgment as a matter of law on the two retaliation claims tried before a jury, which we reverse and

remand.




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