Walzer v. St. Joseph State Hospital, 00-1177EM

• Decision Date: 15 September 2000
• Docket Number: No. 00-1177EM,00-1177EM
• Citation: Walzer v. St. Joseph State Hospital, 231 F.3d 1108 (8th Cir. 2000)
• Parties: (8th Cir. 2000) DIANNE WALZER, APPELLANT, v. ST. JOSEPH STATE HOSPITAL; MISSOURI DEPARTMENT OF MENTAL HEALTH; AND RON DITTEMORE, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY, APPELLEES. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1108

231 F.3d 1108 (8th Cir. 2000)

DIANNE WALZER, APPELLANT, v. ST. JOSEPH STATE HOSPITAL; MISSOURI DEPARTMENT OF MENTAL HEALTH; AND RON DITTEMORE, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY, APPELLEES.

No. 00-1177EM

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: September 15, 2000

Filed: November 8, 2000

On Appeal from the United States District Court for the Western District of Missouri.

Before Richard S. Arnold, Circuit Judge, Battey ¹ and Moody, ² District Judges. ³

Richard S. Arnold, Circuit Judge.

This case arises from a Title VII action alleging gender discrimination. Dianne Walzer claims the District Court ⁴ erred in denying her motion for a new trial and excluding from evidence at trial files of employees Ms. Walzer claims were similarly situated. We affirm.

I.

Saint Joseph State Hospital hired Ms. Walzer as a Clinical Case Worker Assistant I in 1994. The position required the employee to develop a close therapeutic relationship with clients and to assist them in obtaining services. At Saint Joseph all new employees had to undergo a background check which included a Division of Family Services inquiry. If the Division of Family Services had records concerning an employee, Saint Joseph's Human Resource Director would request that the employee obtain the records and give them to Saint Joseph. DFS indicated it had records for Ms. Walzer. The Human Resource Director requested and obtained copies of the reports from Ms. Walzer.

The DFS reports documented several alleged instances of emotional abuse by Ms. Walzer towards her children. ⁵ Dr. Ron Dittemore, the Superintendent of Saint Joseph, reviewed the reports and subsequently dismissed Ms. Walzer, claiming that she presented a risk to the welfare of Saint Joseph's clients. Ms. Walzer filed this suit under Title VII of the 1964 Civil Rights Act, as amended, 42 U.S.C. Sec 2000e-2(a)(1), against Saint Joseph, alleging gender discrimination.

During voir dire, counsel for Ms. Walzer asked the veniremen to raise their hand if they believed an employer should have an obligation to keep the workplace free from discrimination. All of the veniremen on the panel raised their hands except for one designated as A.U. When questioned individually, A.U. stated that he had not raised his hand because he had not heard the question. However, A.U. said that had he heard counsel's question he would have raised his hand.

Additionally, the Court asked A.U. if he had ever been involved in any kind of domestic-violence issues. A.U. stated that he had been arrested for violating an ex parte order of protection issued on behalf of his wife. A.U. stated that the order stemmed from his wife's false allegations of physical abuse. A.U. claimed that his wife bailed him out of jail, that the charge was "thrown out" of court, and that the couple remained married. Plaintiff's App., Vol. II 269, 271. A.U. stated that he could be impartial and fair in cases involving domestic-violence issues. Plaintiff moved the Court to strike A.U. for cause. The Court denied the motion. Plaintiff did not use one of her peremptory strikes against A.U., and he was seated on the jury.

In a post-trial investigation, plaintiff's counsel discovered that the ex parte order had not been dismissed on the merits, but, instead, A.U.'s wife had signed a consent to termination of the order. Moreover, A.U. was not arrested for violating the ex parte order, but on other, related allegations of domestic abuse.

Counsel for the plaintiff also asked the potential jurors to raise their hands if any of them had been parties in any litigation. A.U., who did disclose the ex parte order, did not raise his hand or in any way indicate that he had ever been involved in any litigation. A post-trial investigation revealed that A.U. was involved in litigation on four prior occasions. He was a named plaintiff in an automobile-accident case, ⁶ he was a defendant in a suit for unpaid city taxes, ⁷ he was a defendant in an ex parte order of protection, and he was complained against for criminal assault (in connection with the same incident involving the order of protection).

Also during individual voir dire, plaintiff's counsel questioned Venireman R.M. R.M. stated that he did not believe in affirmative action, and that the "best person ought to get the job." Plaintiff's App., Vol. II 283. He stated he knew of an instance in which a woman had gotten a job just because she was a woman. R.M. also stated,

[I]t seems to me like a lot of times at the drop of the hat something can be determined as sexual harassment. I don't believe in that. Something down the road comes up and it was okay then but six months down the road it is brought out, like I didn't like that, that kind of attitude I don't like, as far as the sexual harassment stuff.

Id. at 284.

When questioned by plaintiff's counsel as to whether he would disregard the Court's instructions, R.M. stated, "If it was the law, I couldn't, you couldn't." Id. at 286. Counsel for the plaintiff moved the Court to strike R.M. for cause. The Court denied the motion. Plaintiff's counsel used a peremptory challenge against R.M., and he was not seated on the jury.

At the conclusion of the trial the jury rendered a defense verdict. Ms. Walzer filed a motion for an evidentiary hearing on the two jurors' qualifications and a motion for a new trial. The District Court denied both motions. The Court held that A.U.'s and R.M.'s responses did not indicate that either should have been stricken for cause. The Court found that there was no evidence that A.U.'s nondisclosures were dishonest instead of inaccurate or that, "had that information been provided it would have supported striking the juror for cause." District Court's Order of December 1, 1999, at 12.

On appeal, Ms. Walzer asserts that the Court violated her right to a fair trial in refusing to strike R.M. and A.U. for cause and in refusing to grant a new trial due to juror misconduct. We will discuss each juror in turn. For reasons explained below, we will not reach the merits of Ms. Walzer's claim that the Court erred in excluding certain employee files at trial.

II.

The decision whether to grant a motion for a new trial is within the discretion of the trial court. McDonough Power Equip. v. Greenwood, 464 U.S. 548 (1984); Aimor Electric Works v. Omaha Nat'l Bank, 727 F.2d 688, 692 (8th Cir. 1984). An appellate court will not reverse a trial court's determination on a motion for new trial without a clear showing that there was an abuse of discretion. Burnett v. Lloyds of London, 710 F.2d 488, 490 (8th Cir. 1983). The plaintiff alleges three instances of error on which the Court should have granted her motion for a new trial.

A.

Plaintiff contends that both A.U. and R.M. were biased, and therefore the Court should have stricken them for cause. First, Ms. Walzer contends that R.M.'s responses regarding discrimination laws evidenced an "extremely negative attitude toward affirmative action and about females receiving jobs in the workforce." Brief for the Appellant 28. Therefore, she argues, the Court's refusal to strike R.M. for cause forced her to use a peremptory strike, impairing her statutory right under 28 U.S.C. 1870 to exercise three peremptory strikes. We disagree, on the authority of United States v. Martinez-Salazar, 120 S. Ct. 774 (2000).

In Martinez-Salazar, co-defendants were tried and convicted on a criminal charge. In a written questionnaire given to the panel of veniremen, a potential juror indicated that he thought he would be prejudiced in favor of the prosecution. Martinez- Salazar, 120 S. Ct. at 777. Upon questioning by defense counsel the venireman stated, "You assume that people are on trial because they did something wrong." Id. at 778. When the defendants challenged the potential juror for cause, the trial court declined to strike the juror. The defendants exercised one of their peremptory challenges to keep the venireman from being seated on the jury.

On appeal the defendants asserted that the trial court abused its discretion in refusing to strike the venireman for cause, thus impairing their right to a full allotment of peremptory strikes. The Supreme Court held that if the trial court errs in refusing to strike a venireman for cause, and "the defendant elects to cure such an error by exercising a peremptory challenge, and is subsequently convicted by a jury on which no biased juror sat, he has not been deprived of any rule-based or constitutional right." Id. at 777; Ross v. Oklahoma, 487 U.S. 81, 88 (1988) (holding "peremptory challenges are not of constitutional dimension"). Accordingly, we hold that Ms. Walzer suffered no constitutional or rule-based violation due to the Court's refusal to strike R.M. for cause. Moreover, "[i]n choosing to remove [R.M.] rather than taking [her] chances on appeal, [Ms. Walzer] did not lose a peremptory challenge. Rather, [she] used the challenge in line with a principal reason for peremptories: to help secure the constitutional guarantee of trial by an impartial jury." Martinez-Salazar, 120 S. Ct. at 782.

Second, Ms. Walzer asserts that because the Court did not strike A.U. for cause he was seated on the jury which prevented her from receiving a fair trial. Ms. Walzer contends that A.U.'s failure to agree initially with other panel members that an employer should have an obligation to keep the workplace free from discrimination, coupled with his answers regarding the ex parte order, gave the appearance of bias. We disagree.

To challenge a juror for cause, a party must show actual partiality growing out of the nature and circumstances of the case. United States v. Tucker, 137 F.3d 1016, 1029 (8th Cir. 1998). "A district court is required to strike for cause any juror who is shown to lack impartiality or the appearance of impartiality, and, '[a]bsent abuse of discretion, we will not interfere with the District Court's determination of juror...