848 F.2d 1023 (10th Cir. 1988), 86-2678, Willner v. University of Kansas

Docket Nº:86-2678.
Citation:848 F.2d 1023
Party Name:, 11 Fed.R.Serv.3d 556, Dorothy WILLNER, Plaintiff-Appellant, v. UNIVERSITY OF KANSAS, Defendant-Appellee.
Case Date:June 01, 1988
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1023

848 F.2d 1023 (10th Cir. 1988)

, 11 Fed.R.Serv.3d 556,

Dorothy WILLNER, Plaintiff-Appellant,


UNIVERSITY OF KANSAS, Defendant-Appellee.

No. 86-2678.

United States Court of Appeals, Tenth Circuit

June 1, 1988

Page 1024

[Copyrighted Material Omitted]

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Dorothy Willner, pro se.

Rose Marino, Associate Gen. Counsel, University of Kansas, Lawrence, Kan., J. Steven Pigg, Fisher, Patterson, Sayler & Smith, Topeka, Kan., Clifford T. Mueller and Douglas M. Greenwald, McAnany, Van Cleave & Phillips, Lenexa, Kan., for defendant-appellee.

Before WRIGHT, ALARCON and HALL, Circuit Judges. [*]


Dorothy Willner appeals from the judgment for the defendants after a bench trial in this sex discrimination action. She makes the following contentions on appeal.

(1) The district judge erred in refusing to recuse himself from presiding over the case.

(2) The district court erred when it dismissed her claims against the individual defendants prior to trial because of her failure to comply with an order compelling her to answer interrogatories.

(3) The district court's factual findings were clearly erroneous.



Dorothy Willner, a professor of anthropology at the University of Kansas, filed this action naming as defendants the University of Kansas and twelve individuals who either were or had been University Chancellor, Dean of the College of Liberal Arts and Sciences, anthropology department chairpersons, or professors in the anthropology department (collectively individual defendants). She alleged the defendants had denied her equal pay, verbally abused her, harassed her, caused her to lose a Fulbright research grant, falsely evaluated her with regard to salary increases, deliberately failed to display a

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book that she had written, and slandered her to students, faculty, and others. She claimed the defendants discriminated against her because she is female and Jewish. She sought relief pursuant to 42 U.S.C. Secs. 1981, 1983, 1985, 1986, 1988; Title VII, 42 U.S.C. Sec. 2000e et seq.; the Equal Pay Act (EPA), 29 U.S.C. Sec. 206(d); Title IX of the Education Amendments of 1972, 20 U.S.C. Sec. 1681 et seq.; and the first, fifth, and fourteenth amendments.

Willner's attorney was granted leave to withdraw shortly after the complaint was filed. Willner appeared pro se throughout the course of the lawsuit. During pretrial proceedings, all of Dorothy Willner's claims were dismissed, except for the Title VII and the EPA claims against the University of Kansas. In May 1986, a bench trial was held on the remaining claims. The district court entered judgment for the University of Kansas. Willner appeals from the judgment.



Dorothy Willner moved for the recusal of Judge Richard D. Rogers on several grounds at various stages of the proceedings. She claims that recusal was warranted on the following grounds:

1. Judge Rogers' demeanor in a separate sex discrimination action filed against the University of Kansas by her sister suggested bias against all similarly situated females.

2. Judge Rogers had made statements evincing a bias against women employees who filed actions against the University of Kansas.

3. Judge Rogers failed to disclose that he was related to a former defense attorney in these proceedings.

4. Judge Rogers denied her motion for an extension of time and dismissed the claims against the individual defendants because she was Jewish.

5. Judge Rogers refused to grant her a protective order to delay her deposition.

6. Judge Rogers was a director of the alumni association of the University of Kansas when she filed her complaint with the Equal Employment Opportunity Commission (EEOC).

7. Judge Rogers was aware that there was an appearance of bias because he inquired of Myra Hinman, in a separate proceeding against the University of Kansas, whether she felt he would be biased because of his close association with the University of Kansas Alumni Association.

8. Judge Rogers was the president of the Board of Governors of the law school of the University of Kansas during the pendency of this action.

9. Judge Rogers permitted her attorney to withdraw on improper grounds.

10. Judge Rogers refused to strike alleged "defamatory remarks" from her attorney's notice of withdrawal.

The denial of a motion to recuse is reviewed for abuse of discretion. Weatherhead v. Globe International, Inc., 832 F.2d 1226, 1227 (10th Cir.1987). The district court did not abuse its discretion because the recusal motions (1) failed to allege sufficient facts, (2) involved adverse rulings, or (3) were untimely.

  1. Adequacy of Factual Allegations

    On October 11, 1983, Dorothy Willner filed a motion to recuse Judge Rogers pursuant to 28 U.S.C. Secs. 455(a) and 455(b)(1) (1982). She alleged, inter alia, that:

    Plaintiff pro se Dorothy Willner observed Judge Rogers' demeanor towards plaintiff pro se Ann Ruth Willner on June 8, 1983 when plaintiff pro se Ann Ruth Willner appeared before the Court. Having formed the distinct impression of personal prejudice of the Court toward plaintiff pro se Ann Ruth Willner, plaintiff pro se Dorothy Willner asks the Court to consider most carefully whether it has exhibited the full consideration due their own behalf.

    This allegation was unsupported by an affidavit or declaration.

    Section 455(a) requires that "[a]ny justice, judge, or magistrate of the United

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    States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." Section 455(b)(1) provides that a judge must disqualify himself when "he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding."

    An unsubstantiated suggestion of personal bias or prejudice is insufficient to mandate recusal under section 455(a). United States v. Hines, 696 F.2d 722, 729 (10th Cir.1982). The motion fails to state any facts concerning Judge Rogers' demeanor that would "cause a reasonable man to doubt the judge's impartiality." Id. Under such circumstances recusal is not mandated under section 455(a). Id.

    The October 11, 1983 motion is also insufficient to meet the requirements of section 455(b)(1). No facts were alleged that...

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