Jottings By An Employer's Lawyer

Tuesday, March 01, 2005

Small Town Setting, Big Time Legal Issues - Updated

Update: Yikes, how embarrassing. After just yesterday reading a commentary by well known blogger Dennis Kennedy about the dangers of blogging on the same subject as a fellow blogger without giving credit, I wrote the following post. Then, I checked Lisa Stone's great legalbogwatch column and found that my fellow blogger Michael Cernovich at Crime and Federalism was way ahead of me (not to mention more involved) on this one. So check out Michael's comments, Poor Betty Lou and the follow up comments, Congratulations Maren and Don't Be Modest Mike, detailing his role.

Loomis, Nebraska may only have a population of 397, but when a local bank teller criticized the School Board and Superintendent at a school board meeting, and the School District just happens to be the Bank's biggest customer, you have the potential for big problems. Sure enough when some of the School Board members and the Superintendent voiced their concerns to Bank officials, the teller found herself on the wrong end of a pink slip. In a letter, she was told she was being terminated because of ?comments made by [her] during a meeting on January 15, 1998, which were negative about our local school board and superintendent, thereby reflecting poorly on our community and placing at risk substantial customers of the Bank.?

And then things got interesting. Suing the Bank, but not the School Board under §1983 for retaliating against her because of her exercise of her freedom of speech, a jury awarded Sue Dossett, $1,555,678.76, precisely $1.5 million more than the stipulated amount of back pay. The amount, a million more than even Dossett's attorney asked for, was too much. The District Court, on its own motion, granted a new trial finding that the award was a product of "passion and prejudice." In the second trial, the bank won. All of which made for a most interesting medley of issues for the appellate court to resolve in Dossett v. First State Bank, Loomis, Nebraska (8th Cir. 2/28/05) [pdf].

And just as at the trial court, both sides won, and lost, on appeal. For the Bank, the Court upheld the court's grant of a new trial on both liability and damages following the $1.5 million verdict. For the plaintiff, the Court found that the jury instruction in the second trial was erroneous and that the Bank's alternative argument that a private employer could not be jointly liable with a state actor under §1983 was wrong. (A word to the wise for private sector employers and their counsel who automatically reject any thought of responsibility for §1983 action. Conspiring with a state actor might be enough to get you on the hook.) The net result of the 8th Circuit decision -- back to the district court for a new trial before the same judge, not withstanding the request of plaintiff to recuse him.

I must say I have never had the experience of being before a judge after trying to have him or her removed from a case -- can't be the best of feelings.

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