Gilster v. Primebank

• Citation: 747 F.3d 1007
• Decision Date: 04 April 2014
• Docket Number: No. 12–3064.,12–3064.
• Parties: Mindy GILSTER, Plaintiff–Appellee v. PRIMEBANK; Joseph Strub, Defendants–Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

747 F.3d 1007

Mindy GILSTER, Plaintiff–Appellee

v.PRIMEBANK; Joseph Strub, Defendants–Appellants.

No. 12–3064.

United States Court of Appeals, Eighth Circuit.

Submitted: Dec. 18, 2013.

Filed: April 4, 2014.

Douglas L. Phillips, argued, Sioux City, IA, for Plaintiff–Appellee.

Paige Fiedler, Brooke Timmer, Whitney Judkins, Urbandale, IA, for Defendants–Appellants.

Before RILEY, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.

LOKEN, Circuit Judge.

Primebank and Joseph Strub (“Defendants”) appeal a $900,000 jury verdict in favor of Plaintiff Mindy Gilster on her claims of unlawful sexual harassment and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and the Iowa Civil Rights Act, Iowa Code § 216.6. Defendants argue they are entitled to a new trial because the district court erred in overruling their objection to improper rebuttal closing argument by Gilster's counsel, and then abused its discretion in denying Defendants' post-trial motion because this argument, while improper, was not sufficiently prejudicial to warrant a new trial. Concluding this is one of those relatively rare cases where Defendants have made a sufficient showing of prejudice caused by “plainly unwarranted and clearly injurious” closing argument, we reverse and remand for a new trial. See Morrissey v. Welsh Co., 821 F.2d 1294, 1303 (8th Cir.1987) (standard of review).

I.

We briefly summarize evidence from the six-day jury trial that bears on the prejudicial closing argument issue presented on appeal. Joseph Strub as Market President of Primebank's branch in Sioux City, Iowa, hired Gilster as Credit Administrator in December 2007. Gilster filed an internal sexual harassment complaint in July 2009, alleging continuing sexual harassment by Strub. Gilster testified that the harassment started “around the summer of 2008.” She finally overcame her reluctance to make a formal complaint when Gilster inquired about a possible bonus and Strub replied, in front of the entire small staff, that Gilster should “take out your teeth,¹ come into my office, and shut the door.” According to Gilster, Strub also made comments about her legs when she wore skirts; placed his arm around her shoulders and said that they “should hook up”; approached her from behind while she was fixing breakfast in the employee break room, placed his hands on the counter alongside hers, and pressed his pelvis against her backside; and massaged her shoulders “intimately” when she was seated at her desk.²

Primebank investigated Gilster's complaint. Strub admitted making the “take out your teeth” comment; he denied her other allegations of continuing sexual harassment. Primebank “found that there was substance” to Gilster's complaint and disciplined Strub by issuing a formal reprimand, requiring him to attend sexual harassment training at a local community college, instructing him to stop harassing Gilster, and warning him not to retaliate.

Though Gilster reported no further instances of overt sexual harassment by Strub directed to her, she began complaining of retaliation by Strub in late July 2009, complaints that continued and intensified until Primebank fired her in February 2011. According to Gilster, Strub began avoiding her after she complained and changed his voicemail message to direct callers to contact a less experienced employee rather than Gilster. Primebank investigated the retaliation complaints. Strub explained that he was “quiet” for a few days after Gilster's initial complaint, but the office was quickly back to normal. He changed his voicemail message when he went on vacation because Gilster was just returning, and the other employee had been dealing with new clients while Gilster was away. The Primebank officers to whom Gilster complained considered this a legitimate business reason that was “not retaliatory.” Gilster testified that Strub never put her back on his voicemail message.

Gilster subsequently complained that Strub denied her a promised promotion to a salaried position in December 2009. Primebank officers investigated the complaint and concluded that the position Gilster wanted did not exist and her current position could not be an exempt salaried position. When Primebank took no action on this complaint, Gilster hired counsel and filed a complaint of sexual harassment and retaliation with the Iowa Civil Rights Commission. Primebank responded by interviewing Gilster's co-workers, making them aware that Gilster had complained of harassment by Strub. Several employees complained to Primebank about Gilster beginning in late 2009, complaints that her former co-workers characterized at trial as reflecting a downturn in Gilster's work performance rather than retaliation. Gilster testified that the co-worker interviews made her work environment more “difficult” and “hostile.” Co-workers testified that a change in Gilster's attitude led to a tense environment in the office.

Gilster filed this lawsuit in September 2010. Primebank's human resources officer was directed to encourage Gilster's co-workers to report any performance problems. In December 2010, Gilster received a worse performance review than in periods before she complained of Strub's harassment. Gilster “felt that there was a big target on [her] back.” On February 3, 2011, staff discovered that Gilster's emails from her office computer were being monitored. Gilster reacted in a way Primebank management considered disruptive. On February 7, she filed a second discrimination complaint with the Iowa Human Rights Commission. Three days later, Primebank fired Gilster. She filed a Second Amended Complaint. The case proceeded to trial.

At trial, the parties disputed the extent and nature of Strub's initial harassment, whether Strub or any other Primebank employee retaliated against Gilster, and whether Primebank's reasons for termination were pretextual. Witness credibility was crucial, as the parties introduced sharply conflicting testimony regarding who was to blame for what obviously became an exceedingly unpleasant workplace in the months leading up to Gilster's termination. Primebank witnesses offered two nonretaliatory reasons for Gilster's termination; vigorous cross-examination by her attorneys made it plausible for the jury to infer that these reasons were pretextual.

There was also conflicting evidence regarding the extent and the cause of Gilster's emotional distress. Gilster, her husband, and a nurse practitioner, Elizabeth Pratt, provided detailed evidence of emotional distress. But Gilster initially told Nurse Pratt in August 2008 that her anxiety and depression began in December 2007, before she alleged that Strub began sexually harassing her. Gilster saw Nurse Pratt again in November 2008, but she did not complain of workplace harassment until July 2009, just after filing her internal complaint. Gilster testified that she suffered enhanced injury from Strub's harassment because she had been sexually abused as a child, but she never discussed this history with Nurse Pratt. Gilster, her husband, and Nurse Pratt provided testimony supporting a claim of future emotional distress that Gilster allegedly suffered after she was fired, including depression, anxiety, excessive alcohol consumption, and self-mutilation. But Gilster only saw a counselor once, and Nurse Pratt had not seen Gilster since August 2010.

The jury found both Primebank and Strub liable for unlawful sexual harassmentand retaliation. The verdict awarded Gilster over $900,000. The district court reduced the verdict to eliminate obvious duplications and excesses and denied Defendants' post-trial motion for new trial. This appeal followed.

II.

The issue on appeal is whether counsel for Gilster during rebuttal closing argument made improper remarks that were so “plainly unwarranted and clearly injurious” that they warrant a new trial. Morrissey, 821 F.2d at 1303. We review the district court's denial of a new trial for abuse of discretion. Billingsley v. City of Omaha, 277 F.3d 990, 997 (8th Cir.2002).

In our view, counsel's rebuttal argument included numerous comments that clearly violated the following provisions in Rule 32:3.4 of the Iowa Rules of Professional Conduct, titled Fairness to Opposing Party and Counsel:

A lawyer shall not ... in trial, allude to any matter ... that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, [or] the culpability of a civil litigant....

Thus, the critical question is whether the comments were sufficiently prejudicial to require the new trial the district court denied. In considering this issue, our focus is on counsel's final remarks, which appear on pages 1470–71 of the trial transcript:

Mindy told you when she made her complaint back in 2009 she feared ... retaliation and that making her complaints and what effect it would have on her career.

Mindy Gilster had the strength to make that complaint back on July 2, 2009. I sure didn't. Back in 2006 I was sexually harassed by a professor at Drake, but I was on my way out. I was a third-year law student, and I had been a student bar association president for the last year, and I was well respected and liked by my peers. I had a great relationship with the dean of the law school because of my role as president. But I refused to be that—

[DEFENSE COUNSEL]: Excuse me, counsel. Your Honor, I do not think this is appropriate for argument.

THE COURT: Overruled.

MS. TIMMER: And I refused to stand up for myself. It takes great strength and fearlessness to make a complaint against your supervisor.

Given my calling as a civil rights lawyer, I am constantly amazed by the strength and courage that my clients have when facing their employers and supervisors, the people who hold all the power. It is my sincere hope that one day my daughter, my friends,...