848 F.2d 1032 (10th Cir. 1988), 87-1249, Willner v. Budig

Docket Nº87-1249, 87-1869.
Citation848 F.2d 1032
Party NameDorothy WILLNER, Plaintiff-Appellant, v. Gene BUDIG, F. Allan Hanson, Alfred E. Johnson, Robert L. Lineberry, Robert J. Smith, and Deanell Tacha, Defendants-Appellees.
Case DateJune 01, 1988
CourtUnited States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1032

848 F.2d 1032 (10th Cir. 1988)

Dorothy WILLNER, Plaintiff-Appellant,

v.

Gene BUDIG, F. Allan Hanson, Alfred E. Johnson, Robert L.

Lineberry, Robert J. Smith, and Deanell Tacha,

Defendants-Appellees.

Nos. 87-1249, 87-1869.

United States Court of Appeals, Tenth Circuit

June 1, 1988

Rehearing Denied Aug. 18, 1988.

Page 1033

Dorothy Willner, pro se.

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

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

PER CURIAM.

Dorothy Willner appeals from the grant of summary judgment for the defendants and from the imposition of attorney fees and costs in her civil rights suit. We affirm.

I

Dorothy Willner is a full professor of anthropology at the University of Kansas. The six defendants are individuals associated with the University whom Willner has sued in their individual capacities. Willner claims that while acting as agents of the University and under color of state law, the defendants conspired to commit and did commit various acts of harassment and retaliation against her for bringing a sex discrimination claim against the University. Willner specifically claimed that the following acts constituted harassment or retaliation: omitting materials on her curriculum vitae, providing insufficient salary increases, bringing complaints against her, seeking to have her removed from the anthropology department, manipulating her assignments to reduce student enrollment, depriving her of office services, harassing a student until the student ceased to study with her, affecting her course enrollment, and creating problems with the documents she had submitted in support of raises. She claimed that these acts of harassment and retaliation violated the first, fifth, and fourteenth amendments, the Civil Rights Acts (Title 42 U.S.C. Secs. 1983, 1985, 1986), and Title IX (20 U.S.C. Sec. 1681 et seq.). Willner added pendent state law claims for fraudulent interference with economic relations, slander, and intentional infliction of emotional distress. The district court granted summary judgment on all these claims and awarded the defendants attorney fees and costs.

II

Willner contends that the district court erred when it granted summary judgment on her section 1983 claim against the defendants in their individual capacities. 1 We will affirm a grant of summary judgment if it is clear from the record that there are no genuine issues of material fact and the

Page 1034

defendants are entitled to judgment as a matter of law. Security Insurance Co. of Hartford v. Wilson, 800 F.2d 232, 233 (10th Cir.1986).

The district court found that there were no genuine issues of material fact because collateral estoppel barred relitigation of the issues that formed the basis of Willner's section 1983 claim.

Collateral estoppel precludes the relitigation of factual or legal issues that were decided in a previous case, regardless of whether that case was based on the same cause of action. There are two prerequisites to the application of collateral estoppel: (1) the issue to be precluded must have been actually and necessarily decided in the prior case, and (2) the party against whom collateral estoppel is invoked must have had a full and fair opportunity in the earlier case to litigate the issue to be precluded. Ten Mile Industrial Park v. Western Plains Service Corp., 810 F.2d 1518, 1523 (10th Cir.1987).

The factual basis for Willner's section 1983 claim is that the defendants, acting as agents of the University in their individual capacities, harassed or retaliated against Willner for bringing her sex discrimination claim against the University.

In an earlier action, Willner brought an employment discrimination suit against the University. Willner claimed that the University and its agents, by committing acts virtually identical to those alleged in this case, harassed her and retaliated against her for bringing a sex discrimination claim, in violation of Title VII, 42 U.S.C. Sec. 2000e et seq., and the Equal Pay Act, 29 U.S.C. Sec. 206(d). The court entered judgment for the defendants, finding that neither the University nor its agents, employees, or officials retaliated against her or harassed her because she filed a sex discrimination claim. The court noted that Willner simply misperceived many acts of the University as retaliation or reprisal.

Willner's claims in this case that University agents harassed and retaliated against her because she brought a discrimination suit were actually and necessarily decided in her earlier suit. 2

In her Title VII action, Willner was allowed to present extensive evidence about the alleged retaliatory actions of individuals at the University. Furthermore, Willner answered virtually all the interrogatories in this case by referring to evidence in her Title VII action. She was given a full and fair opportunity to prove these allegations of retaliation...

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62 practice notes
  • 773 F.Supp. 289 (D.Kan. 1991), 91-40002-01, United States v. Burger
    • United States
    • Federal Cases United States District Courts 10th Circuit District of Kansas
    • August 22, 1991
    ...personal. As the Tenth Circuit has stated, "[a] motion to recuse cannot be based solely on adverse rulings." Willner v. Budig, 848 F.2d 1032, 1035 (10th Cir.1988), cert. denied, 488 U.S. 1031, 109 S.Ct. 840, 102 L.Ed.2d 972 (1989) (citing Willner v. University of Kansas, 848 F.2d ......
  • 956 F.2d 1166 (9th Cir. 1992), 90-16330, Aguirre v. U.S.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • March 3, 1992
    ...judge of the same court. Starbuck v. City and County of San Francisco, 556 F.2d 450, 457 n. 13 (9th Cir.1977); see also Willner v. Budig, 848 F.2d 1032, 1035 (10th Cir.1988) (per Wright, Alarcon, and Hall, JJ., sitting by designation), cert. denied, 488 U.S. 1031 (1989); Threadgill v. Armst......
  • 23 F.Supp.2d 1321 (D.Wyo. 1998), 95-CV-211, Wellborn v. Mountain Accessories Corp.
    • United States
    • Federal Cases United States District Courts 10th Circuit District of Wyoming
    • October 20, 1998
    ...their employer, the University, which had previously prevailed on a trial on the merits of the discrimination claim. Willner v. Budig, 848 F.2d 1032, 1034 n. 2 (10th Cir.1988) (citing Morgan, supra ). However, the court did find that collateral estoppel applied as to the fact of the alleged......
  • 787 F.Supp. 977 (D.Kan. 1992), 91-10066-01, United States v. Cooley
    • United States
    • Federal Cases United States District Courts 10th Circuit District of Kansas
    • February 18, 1992
    ...Materials, Inc., 881 F.2d 866 (10th Cir.1989), cert. denied, 493 U.S. 1043, 110 S.Ct. 837, 107 L.Ed.2d 833 (1990); Willner v. Budig, 848 F.2d 1032 (10th Cir.1988), cert. denied, 488 U.S. 1031, 109 S.Ct. 840, 102 L.Ed.2d 972 (1989). Thus, in United States v. Carroll, 567 F.2d 955 (10th Cir.1......
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61 cases
  • 773 F.Supp. 289 (D.Kan. 1991), 91-40002-01, United States v. Burger
    • United States
    • Federal Cases United States District Courts 10th Circuit District of Kansas
    • August 22, 1991
    ...personal. As the Tenth Circuit has stated, "[a] motion to recuse cannot be based solely on adverse rulings." Willner v. Budig, 848 F.2d 1032, 1035 (10th Cir.1988), cert. denied, 488 U.S. 1031, 109 S.Ct. 840, 102 L.Ed.2d 972 (1989) (citing Willner v. University of Kansas, 848 F.2d ......
  • 956 F.2d 1166 (9th Cir. 1992), 90-16330, Aguirre v. U.S.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • March 3, 1992
    ...judge of the same court. Starbuck v. City and County of San Francisco, 556 F.2d 450, 457 n. 13 (9th Cir.1977); see also Willner v. Budig, 848 F.2d 1032, 1035 (10th Cir.1988) (per Wright, Alarcon, and Hall, JJ., sitting by designation), cert. denied, 488 U.S. 1031 (1989); Threadgill v. Armst......
  • 23 F.Supp.2d 1321 (D.Wyo. 1998), 95-CV-211, Wellborn v. Mountain Accessories Corp.
    • United States
    • Federal Cases United States District Courts 10th Circuit District of Wyoming
    • October 20, 1998
    ...their employer, the University, which had previously prevailed on a trial on the merits of the discrimination claim. Willner v. Budig, 848 F.2d 1032, 1034 n. 2 (10th Cir.1988) (citing Morgan, supra ). However, the court did find that collateral estoppel applied as to the fact of the alleged......
  • 787 F.Supp. 977 (D.Kan. 1992), 91-10066-01, United States v. Cooley
    • United States
    • Federal Cases United States District Courts 10th Circuit District of Kansas
    • February 18, 1992
    ...Materials, Inc., 881 F.2d 866 (10th Cir.1989), cert. denied, 493 U.S. 1043, 110 S.Ct. 837, 107 L.Ed.2d 833 (1990); Willner v. Budig, 848 F.2d 1032 (10th Cir.1988), cert. denied, 488 U.S. 1031, 109 S.Ct. 840, 102 L.Ed.2d 972 (1989). Thus, in United States v. Carroll, 567 F.2d 955 (10th Cir.1......
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1 books & journal articles
  • A better path for constitutional tort law.
    • United States
    • Constitutional Commentary Vol. 25 Nbr. 2, June 2008
    • June 22, 2008
    ...bind a different official in subsequent litigation that asserts a personal liability against the official .... "): Willner v. Budig, 848 F.2d 1032, 1034 n.2 (10th Cir. 1988) ("Government employees in their individual capacities are not in privity with their government employer.&qu......