Employment Law Daily Conservative law prof won’t get new trial in political discrimination suit
Thursday, November 9, 2017

Conservative law prof won’t get new trial in political discrimination suit

By Lisa Milam-Perez, J.D.

With a conservative law professor’s refusal-to-hire case before it on appeal for the third time, the Eighth Circuit refused to consider several of her arguments contesting the district court’s refusal to grant her a new trial in her political discrimination suit. Most of her assertions of error were not adequately presented on appeal, and the Eighth Circuit refused to consider them. And those arguments properly before the appeals court were rejected, succinctly, on the merits (Manning v. Jones, November 7, 2017, Arnold, M.).

The plaintiff, a conservative Republican, was rejected for a full-time position as a legal writing instructor at the University of Iowa College of Law. Against the associate dean’s advice, she alleged, the plaintiff made her political leanings and affiliations known on her resume and was denied hire on that basis. She filed a Section 1983 action against the college and its then-dean in her individual capacity asserting political discrimination and a violation of equal protection.

Litigation background. When the case was up on appeal the first time, the Eighth Circuit reversed the district court’s grant of summary judgment in the dean’s favor based on qualified immunity, finding that the plaintiff had established a question of material fact on whether the dean discriminated against her based on her political affiliation and beliefs, and whether the dean knew such conduct was unlawful.On remand, the case went to jury trial, and the presiding magistrate erroneously declared a mistrial on the political discrimination claim. The jury in fact had found for the defendant on this claim—the foreperson’s note to the magistrate attesting that the jurors “will never agree” was meant only as to the equal protection cause of action. So the magistrate recalled the jury, polled the jurors, corrected the error, and entered judgment on the verdict in the defendant’s favor on the political discrimination cause of action. The plaintiff moved for a new trial, arguing the magistrate lacked authority to reconvene the jury and accept a verdict after a mistrial had already been declared. The court denied the motion.

Round two. In a matter of first impression, the Eighth Circuit adopted a new standard and concluded the lower court abused its discretion in denying the plaintiff’s new trial motion in light of the magistrate’s errors. Thus, it reversed the district court’s order and directed the trial court to revisit its jury instructions related to the political discrimination claims, particularly, the instruction that no showing of pretext need be made.

Once again, a jury found that the plaintiff did not establish that the law dean had discriminated against her on the basis of her politics. Once again, the plaintiff filed a motion for a new trial. Again, the motion was denied; again, she appealed that denial. This time, the Eighth Circuit found no abuse of discretion and affirmed.

Sloppy appellate work. The plaintiff’s procedural lapses didn’t help her case on appeal, in particular, her “routine failure” to cite the relevant parts of the record in her appellate brief. She argued the trial court misled the jury in its initial instructions, when it told the jurors the dean would argue she was “obliged” to follow the faculty’s recommendation not to hire, but she didn’t tell the appeals court where to find this contested instruction in the record. She also asserted the court’s final instruction was erroneous, but she did not quote the language of the instruction, or tell the appeals court where it could be found in the record. So the appeals court refused to consider these arguments. She challenged the court’s decision not to admit the dean’s salary into evidence, but did not tell the appeals court where that salary information or the court’s decision as to its admissibility appeared in the record.

The plaintiff urged that the district court erred in ruling that the law school dean was entitled to argue, in the second trial, that the dean was not ultimately responsible for faculty hiring decisions. During oral argument of the second appeal, the dean made a binding judicial admission of her responsibility, the plaintiff asserted; the dean should have been barred from making this argument because the appeals court had decided that the dean was responsible. Here too, the plaintiff failed to identify where in the record the trial court made the challenged ruling, so the appeals court would not review it.

Dean’s authority not at issue on appeal. But even if the appeals court were to address this argument on the merits, it would fail anyway, the appeals court said. In deciding the second appeal, it wrote, “we could hardly have intended to usurp the jury’s right to determine the factual issue of the dean’s responsibility.” Any comments in its opinion regarding the dean’s “final authority and responsibility for the exercise of the College’s employment actions” was mere dictum, it explained, since the scope of the dean’s authority was not at issue in that appeal. As it noted in the first appeal, whether the dean had authority to hire the plaintiff without a favorable vote from the faculty was a matter for the jury, not the court. Therefore, the district court’s order denying the plaintiff’s motion for a new trial was affirmed.

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