Willner v. University of Kansas
| Citation | 848 F.2d 1023 |
| Decision Date | 01 June 1988 |
| Docket Number | No. 86-2678,86-2678 |
| Parties | 52 Fair Empl.Prac.Cas. 515, 46 Empl. Prac. Dec. P 38,016, 11 Fed.R.Serv.3d 556, 47 Ed. Law Rep. 128 Dorothy WILLNER, Plaintiff-Appellant, v. UNIVERSITY OF KANSAS, Defendant-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
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 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.
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 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 demonstrate actual bias against Dorothy Willner.
In the same motion, Dorothy Willner also alleges:
Plaintiff has been informed that Judge Rogers was heard to make the following statement in reference to cases of sex discrimination being filed by female employees of defendant University of Kansas:
This allegation is also unaccompanied by a supporting affidavit or declaration stating the source of the hearsay statement or when and where it was made. In Hines, this court concluded that a recusal motion that "fail[ed] to state with reasonable particularity when, where, and to whom the statement was made" did not meet the requirements of a section 455 motion. Id. at 729. Dorothy Willner has failed to allege facts showing actual bias. A reasonable person would not doubt a judge's impartiality on the basis of a hearsay statement from an undisclosed informer of unknown reliability. Id.
In a motion filed on February 7, 1986, Dorothy Willner alleged that an attorney who had appeared for the individual defendants in this action, prior to his withdrawal, was related to Judge Rogers. No evidence was offered by Dorothy Willner to support this allegation. Judge Rogers denied that he was related to any attorney who had appeared in the case. In Hinman v. Rogers, 831 F.2d 937, 939-40 (10th Cir.1987) this court stated that a judge had a duty not to recuse himself on unsupported speculation.
Some of Dorothy Willner's challenges to Judge Rogers' rulings denying her motions for recusal are based on adverse rulings of the court. On January 7, 1985, she filed a motion for recusal under 28 U.S.C. Sec. 144 (1982). This motion was supported by an affidavit. The affidavit alleges that Judge Rogers denied her motion for reconsideration of his order granting her ten additional days to comply with a discovery order because he is personally biased against her because she is Jewish. The affidavit further states that on September 19, 1984, Judge Rogers ordered her to submit answers to five interrogatories within ten days, notwithstanding the fact that she had notified the court on September 12, 1984 that the Jewish High Holy Days of Rosh Hashanah and Yom Kippur and the Sabbath in between "were approaching." On September 21, 1984, after the court had previously granted her up to ten days to comply with the discovery order, Dorothy Willner informed the court that this religious celebration would commence on September 26, 1984.
The affidavit contained no facts that would support an inference that Judge Rogers was personally biased against Dorothy Willner because she is Jewish or for any other reason in ordering compliance with the discovery order.
Dorothy Willner was served with interrogatories on February 17, 1983. She was required to respond or object within 30 days. Fed.R.Civ.P. 33(a). She did not respond until June 30, 1983.
On August 18, 1983, the defendants moved to compel more complete and direct answers. Dorothy Willner opposed the motion on the ground that she had supplied sufficiently detailed answers. On March 5, 1984, a magistrate ordered her to supplement her answers before March 30, 1984. She failed to comply with this order.
On August 10, 1984, the individual defendants who had requested the answers to the interrogatories moved for dismissal of Willner's claims against them pursuant to Fed.R.Civ.P. 37(b)(2)(C). Rule 37(b)(2)(C) permits the court to dismiss an action when a plaintiff fails to comply with a discovery order.
On September 12, 1984, Willner claimed that certain circumstances, not of her own doing, led to...
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