An Ohio State University professor who sued the university for discrimination and retaliation is not entitled to the more than $213,000 in back pay awarded to her by a jury, said a federal appeals court in affirming a lower court ruling.

The unanimous three-judge panel of the 6th U.S. Circuit Court of Appeals in Cincinnati held in Sheryl L. Szeinbach v. The Ohio State University that while an employee can receive back pay based on what she would have received from another employer, she must prove she is entitled to it.

Ms. Szeinbach, who is a tenured professor at Ohio State's University College of Pharmacy in Columbus, filed suit against the university claiming she had been discriminated and retaliated against for her support of a Hispanic professor at the college, according to the April 20 ruling in the case.

Ms. Szeinbach contended that after she said an evaluation of the Hispanic professor was very biased, she conflicted with a professor of Indian origin which, among other results, led to him using foul language against her in a September 2007 faculty meeting.

Ms. Szeinbach, who continues to work at the university, filed suit against the institution, charging it with discrimination and retaliation under Title VII of the Civil Rights Act of 1964.

Evidence submitted at her June 2014 trial in U.S. District Court in Columbus included an expert witness who compared her salary unfavorably with those of pharmacy professors at other universities.

A jury awarded her a total of $513,368 in damages, including $300,000 in compensatory damages and $213,368 in back pay. Following an appeal by the university, the District Court eliminated the back pay award, and Ms. Szeinbach appealed.

The District Court erred in determining “any amount of back pay has to be based on a comparison between what Szeinbach actually earned, while being subjected to OSU's discrimination and what she would have earned at OSU in the absence of discrimination,” the 6th Circuit panel said.

However, it added even though Ms. Szeinbach “could appropriately seek an award of back pay based on what she would have earned with a third-party employer, Szeinbach must prove her entitlement to such back pay,” and she has failed to do so.

“To prevail on such a claim for back pay under Title VII, a plaintiff must establish the amount of back pay with reasonable certainty,” said the ruling. “The testimony provided, however, failed to establish a reasonably certain basis for calculating an award of back pay,” said the unanimous appeals panel in affirming the lower court ruling.