teresa wagner v. jones _iowa college of law_ - motion for a new trial

8/20/2019 Teresa Wagner v. Jones _Iowa College of Law_ - Motion for a New Trial

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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF IOWA

DAVENPORT DIVISION

TERESA R. WAGNER, )) Law No. 3:09-cv-10

Plaintiff, )

) MOTION FOR NEW TRIAL

vs. ))

CAROLYN JONES, Former Dean of )

Iowa College of Law )(in her official and individual capacities), )

GAIL B. AGRAWAL, Dean of the )

Iowa College of Law, in her official )

capacity, ))

Defendants. )

Plaintiff Teresa R. Wagner, by and through her attorneys, Katz, Huntoon & Fieweger,

P.C., pursuant to Federal Rule of Civil Procedure 59(a), states as follows for her Motion for New

Trial:

1. Plaintiff Teresa Wagner respectfully moves this Court for a new trial as to Count I.

2. As the first grounds for a new trial, plaintiff reiterates her argument previously made

that the Magistrate Judge did not have authority to accept any verdict as to Count I after

declaring a mistrial and discharging this jury. See Memorandum of Law.

3. The second ground for new trial is the Court’s prohibition of plaintiff from

questioning jurors during voir dire regarding their personal position or beliefs regarding abortion

and/or same sex marriage. While the Court’s recollection was that it did not prohibit plaintiff’s

counsel from inquiring, plaintiff had proposed voir dire questions regarding the issues of

abortion and same sex marriage, and, respectfully, plaintiff’s counsel’s recollection is the

opposite of this Court’s – plaintiff believes this Court explicitly disallowed plaintiff from

Case 3:09-cv-00010-RP-TJS Document 133 Filed 11/20/12 Page 1 of 4


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inquiring as to those matters during voir dire. Thus plaintiff did not so inquire of the potential

jurors on these issues.

4. The third ground for a new trial is the trial court’s overruling of plaintiff’s objections

to the cross-examination of one of plaintiff’s witnesses, Professor Mark Osiel. Specifically, this

Court abused its discretion in allowing defense counsel to question Professor Osiel regarding an

unsubstantiated allegation and/or reference to an investigation of noises emanating from behind

the closed door of Professor Osiel’s office, with the implication by defense counsel that this

noise came from acts of a sexual nature. As supported in the accompanying Memorandum of

Law, “before the District Court may admit 404(b) evidence, it must: (1) determine whether this

is sufficient evidence that the prior acts occurred; (2) determine whether the other act is

admissible for one of the proper purposes outlined in the rules; and (3) apply Rule 403 balancing

to determine whether the probative value of the evidence is substantially outweighed by the

danger of unfair prejudice.” (Helfrich v. Lakeside Park Police Dept., 2012 F.App. 0956 N. (6

Cir. 2012), citing United States v. Hardy, 643 F.3d 143, 150 (6th

Cir. 2011).) There was no

evidence the prior acts occurred, no proper purpose for admission, and clearly any remote

probative value of this unsubstantiated evidence was substantially outweighed by the danger of

unfair prejudice to plaintiff as well as this witness called by the plaintiff.

5. As fourth grounds for a new trial, this Court erred in refusing to re-read the testimony

of Randall Bezanson after the jury made this request on Tuesday, October 23, 2012, to view that

deposition transcript. Bezanson was the chief witness on the political discrimination claim and

his deposition testimony had been read to the jury one week prior to the request. This Court’s

refusal to allow the jury to view that deposition was thus highly prejudicial to plaintiff as to

Count I.



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6. As fifth grounds for new trial, the Court erred in sustaining defendant’s hearsay

objections during the direct examination of plaintiff to statements made to plaintiff by Associate

Dean Carlson and Associate Dean Andersen. While this Court recognized its error and allowed

plaintiff to testify at the conclusion of her case, plaintiff still asserts that it was error by this

Court not to allow plaintiff during her presentation of her evidence originally to introduce

statements of Dean Jones’ agents that, as to Carlson, he had mentioned to plaintiff not to mention

her prior job offer from Ava Maria Law School; and, as to Andersen, he had made the comment

that he “did not know” whether the faculty would hold plaintiff’s politics against her. These

were primary pieces of evidence in plaintiff’s case, and it was error for this Court not to allow

plaintiff to present them during her direct examination.

7. The sixth ground for a new trial occurred when the trial court erred in failing to give

the jury instructions tendered by plaintiff.

8. Seventh, the court erred in giving the business judgment instruction tendered by the

defendant due to the fact that defendant was not the actual employer and the jury had already

been instructed on this issue under the “same decision” portion of the political discrimination

instruction.

9. Finally, the court erred in failing to provide the jury additional instruction on the legal

meaning of “acting under the color of state law” when it was clear that the jury was seeking

definition of the phrase that had not been adequately defined in the jury instruction.

WHEREFORE, plaintiff respectfully moves this Court under Rule 59 to grant her a new

trial as to Count I, or for such further relief as this Court deems appropriate.

Respectfully submitted,

KATZ, HUNTOON & FIEWEGER, P.C.



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By: /s/Stephen T. Fieweger

Stephen T. Fieweger (AT0002490)

1000 - 36th

AvenueMoline, IL 61265-7126

Telephone: 309-797-3000

Fax: 309-797-2167E-mail: [email protected]

Attorneys for Plaintiff

Teresa R. Wagner

CERTIFICATE OF SERVICE

I hereby certify on November 20, 2012, I electronically filed Plaintiff’s Motion for New

Trial with the Clerk of the Court using the CM/ECF System which will send notification of this

filing to the following:

[email protected]

George A. Carroll


s:\wp\worddoc\14512001.70Mot for New Trial



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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF IOWA

DAVENPORT DIVISION

TERESA R. WAGNER, )) Law No. 3:09-cv-10

Plaintiff, )

) MEMORANDUM OF LAW

vs. ) IN SUPPORT OF MOTION) FOR NEW TRIAL

CAROLYN JONES, Former Dean of )

Iowa College of Law )(in her official and individual capacities), )

GAIL B. AGRAWAL, Dean of the )

Iowa College of Law, in her official )

capacity, ))

Defendants. )

Plaintiff Teresa R. Wagner, by and through her attorneys, Katz, Huntoon & Fieweger,

P.C., states as follows for her Memorandum of Law in Support of her Motion for New Trial

pursuant to F.R.C.P. 59:

INTRODUCTION

In the event this Court allows the jury “verdict” as to Count I to stand, plaintiff

respectfully moves for a new trial as to Count I. As initial grounds, plaintiff must reiterate her

position that the Magistrate Judge simply did not have the authority under Federal Rule of

Evidence 606(b) as well as the great weight of the case authority previously presented to this

Court to reconvene this jury after declaring a mistrial and discharging this jury, and then question

them as to whether they had reached a verdict on either count.

I. A NEW TRIAL MUST BE GRANTED AS TO COUNT I BECAUSE THERE IS

NO VERDICT AS TO THAT COUNT.

Case 3:09-cv-00010-RP-TJS Document 133-1 Filed 11/20/12 Page 1 of 13


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Plaintiff’s first argument is that a new trial must be granted as to Count I because there is

no verdict as to that count. Briefly to refresh the Court’s recollection, according to the “Clerk’s

Court minutes” filed at approximately 4:42 p.m. on October 24, 2012:

“At 4:31 p.m. in open court, without counsel, court addressed the jury. Court

reads jury note. Jury declares a mistrial. Court thanks the jury at 4:35 p.m. At 4:37 p.m.,

without counsel, in open court, court again addressed the jury. Jury finds for defendant

on Count I but cannot reach a verdict on Count II. Court declares a mistrial on Count II.Court thanks jury and jury excused 4:42 p.m.” (Exhibit 1)

The pertinent portion of the transcript of what transpired at approximately 4:30 p.m. is as

follows:

“I have received a message signed by Ms. Tracy and I believe Mr. Braun. Thisnote says, ‘We are still unable to come to a unanimous verdict. I do not see us ever

agreeing. One juror has a conflict and needs to leave at 4:30 today and another juror with

a sick child may not be able to attend on Thursday. Please advise where we go fromhere.’

Ladies and Gentlemen, is this the consensus of all of you as to the contents of thisnote?”

[Whereupon the 12 jurors were polled and all answered “yes.”]

“Judge Shields: I am going to declare a mistrial and I want to say a few things.

I don’t want to keep you, I know this has been a long period for you. Judge Pratt wantsyou to know he really appreciates everything that you have done in working as hard as

you have. He wanted me to assure you that this is not a failure. These things happen.

There is no guarantees in a lawsuit what will happen, what will not happen. Sometimesthere are just the inabilities for people to agree as to verdicts and we recognize that. That

is why there is a mistrial. …

… I am happy to answer any questions that I can if any of you want to ask me

questions. If you don’t, I appreciate that too and you can leave. Thank you all. Safe

trips back to your home and as I said, if there is anything that we can do or anything youneed from us, do not hesitate to call. You are excused.” (Emphasis added.)

See Exhibit 2, pp. 2-5.)

As argued previously, once Magistrate Judge Shields declared a mistrial and

excused/discharged this jury, he had no discretion to reconvene the jury to accept some alleged



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(and unsigned) verdict in favor of defendant on Count I. Judge Shields had no authority to

communicate ex parte with this jury and invite them back to complete a verdict which in

absolutely no way had been communicated to the court or parties prior to a mistrial being

declared. See Gander v. FMC Corp., 892 F.2d 1373, 1379-1380 (8th Cir. 1990):

"It is well settled that a jury's misunderstanding of testimony, misapprehension of

law, errors in computation or improper methods of computation, unsound reasoning orother improper motives cannot be used to impeach a verdict." Chicago, Rock Island &

Pacific R.R. v. Speth, 404 F.2d 291, 295 (8th Cir. 1968). …

But given correct instruction on the law and no clear disregard for that instructionon the face of the verdict, a jury verdict must remain immune from questioning by

the district court …

any inquiry by the district court would have been improper.

See also Karl v. Burlington N. R. Co., 880 F.2d 68, 73 (8th Cir. 1989):

We conclude, however, that the method by which the court ascertained the jury's

"true verdict" -- receiving testimony from the jurors after they had returned a verdict and

after the jury had been discharged -- is prohibited by Fed. R. Evid. 606(b).

It appears that is exactly what occurred in this case. Without dispute, there was no

indication whatsoever from this jury that they had any verdict as to Count I prior to a mistrial

being declared and the jury being discharged. In fact, Judge Shields’ polling of the jury

established that they unanimously agreed that they had not reached a verdict on either Count I or

II.

While it is not clear precisely what occurred between 4:35 p.m. when the jury was

excused and left the courtroom, and 4:37 p.m. on October 24, 2012 when Judge Shields brought

the jury back into the courtroom, there can be no dispute that whatever occurred must have

involved Judge Shields receiving testimony from the jurors after the mistrial had been declared

and after the jury had been discharged. As noted in Karl, supra, this is expressly prohibited

under Rule 606(b). Further compounding the error, Judge Shields directed the jury foreperson to



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sign the verdict form on Count I (See Exhibit 2, p. 6), which again invaded the jury deliberation

process.

Accordingly, there was no verdict, and a new trial must be granted as to Count I.

II. THE COURT ERRED IN RESTRICTING PLAINTIFF’S VOIR DIRE.

Although this Court had broad discretion in determining what questions will be asked

during voir dire (see Ratliff v. Schiber Truck Co., 150 F.3d 949, 956 (8th

Cir. 1998)), this Court

abused that discretion in not allowing plaintiff’s counsel to inquire of the jurors regarding their

positions on abortion and same sex marriage, which were clearly highly relevant areas of inquiry

in this particular case. Respectfully, plaintiff believes this Court acknowledged these should

have been relevant areas of inquiry by claiming it did not, in fact, disallow plaintiff from

inquiring during voir dire regarding these subjects. Plaintiff’s counsel respectfully disagrees

with this Court’s characterization of what occurred outside of the presence of the jury and court

reporter; plaintiff’s counsel’s recollection is that this Court expressly forbade plaintiff’s counsel

from inquiring as to those two areas. In support, see Harold v. Corwin, 846 F.2d 1148, 1150 (8th

Cir. 1988):

This discretion, however, is not without limits. The court, in the realization thatthe purpose of the voir dire is to afford the parties a trial by a qualified, unbiased, and

impartial jury, should at all times be on guard in its questioning in order to assist counsel

in the exercise of his or her preemptory challenges and challenges for cause to eliminatethose persons with an interest or bias. See Labbee v. Roadway Express, Inc., 469 F.2d

169 (8th Cir. 1972) (Voir dire examination is subject to right of parties to have an

impartial jury and the questioning must in general attempt to preserve that right).

See also Fietzer v. Ford Motor Co., 622 F.2d 281, 284-285 (7th Cir. 1980):

The substance of voir dire, however, is subject to the right of the parties to havean impartial jury. Courts have consistently held that the trial court, when endeavoring to

preserve that right, should permit a reasonably extensive examination of prospective

jurors so that the parties have a basis for an intelligent exercise of the right to challenge.



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… the trial court may abuse its discretion when limitations placed on the

parameters of voir dire threaten to undermine the purpose for conducting an examinationof prospective jurors. Specifically, we stated that the trial court "must exercise its

discretion so as not to block the reasonable exploration of germane factors that might

expose a basis for challenge, whether for cause or peremptory." Id. at 1138. And, inUnited States v. Dellinger, 472 F.2d 340 (7th Cir. 1972), cert. denied, 410 U.S. 970, 93 S.

Ct. 1443, 35 L. Ed. 2d 706 (1973), we held that the trial court has the affirmative duty to

pose questions that go beyond what may bring out information that would disqualify the

juror for cause. "Thus it is essential to explore the backgrounds and attitudes of the jurorsto some extent in order to discover actual bias, or cause." Id. at 367, citing Kiernan v.

Van Schaik, supra, 347 F.2d at 779. In its entirety, the examination must reveal inquiry

adequate "to call to the attention of the veniremen those important matters that might leadthem to recognize or to display their disqualifying attributes." United States v. Lewin,

supra, 467 F.2d at 1138.

It was imperative that plaintiff’s counsel be allowed to inquire regarding the abortion and

same sex marriage issues to ensure plaintiff’s right to have an impartial jury in this case.

III.

UNWARRANTED ATTACK ON MARK OSIEL.

The third issue in plaintiff’s Motion for New Trial is that the Court erred in allowing

defense counsel to cross-examine Mark Osiel on some alleged “other act” under Rule 404(b). As

this Court should recall, almost the entirety of defendant’s cross-examination of Mr. Osiel

consisted of this improper attack concerning some allegation that some anonymous source had

heard noises coming from behind the closed door of Mr. Osiel’s office which were interpreted to

be of a sexual nature, and that there was an investigation regarding this allegation. As the Court

will recall, Mr. Osiel explained that he was performing doctor-prescribed exercises for his

arthritic hip, which he does for ten minutes in his office twice a day. Clearly, defendant was

attempting to convey to the jury that Mr. Osiel was testifying adversely to defendant out of some

nebulous vindictiveness because of this investigation.



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There are two enormous problems with this. Leaving aside for the moment the legal

problems under Rule 404(b), the entire argument was nonsensical. First, the inference was that

this allegation/investigation occurred within the last few months. All of Mr. Osiel’s testimony

concerned items on which he has been of record for many years. As the Court should recall, Mr.

Osiel testified that he had written a letter of reference at least two years ago for Ms. Wagner; he

had written letters to the State Legislature regarding the discriminatory hiring practices at the

University of Iowa nine years ago. Obviously, this predates any allegation or investigation into

Mr. Osiel’s conduct in the last few months.

The second enormous problem is that this Court completely failed to perform its required

duties as gatekeeper under Rule 404(b) prior to allowing this evidence that was of clearly such a

prejudicial nature. In support, see Helfrich v. Lakeside Park Police Dep't, 2012 U.S. App.

LEXIS 18471, 11-22 (6th Cir. 2012):

Rule 404(b)(1) prevents other-acts evidence from being offered "to prove a

person's character in order to show that on a particular occasion the person acted inaccordance with the character." But that evidence "may be admissible for another

purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident." Fed. R. Evid. Rule 404(b)(2). Before thedistrict court

may admit 404(b) evidence, it must: (1) determine whether this is sufficient

evidence that the prior acts occurred; (2) determine whether the other act is admissible forone of the proper purposes outlined in the rule; and (3) apply Rule 403 balancing to

determine whether the probative value of the evidence is substantially outweighed by the

danger of unfair prejudice.

United States v. Hardy, 643 F.3d 143, 150 (6th Cir. 2011). We review the district

court's decision under the three-prong test using the following standards of review: clearerror on the first prong, de novo on the second, and abuse of discretion on the third.

United States v. Johnson, 27 F.3d 1186, 1190 (6th Cir. 1994).

… The court held that the evidence was inadmissible under Rule 403 because its probative value would be substantially outweighed by the danger of unfair prejudice,

confusing the jury, and undue delay. "Under Rule 403, a district court is granted very

broad discretion in determining whether the danger of undue prejudice outweighs the



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probative value of the evidence." United States v. Fisher, 648 F.3d 442, 449 (6th Cir.

2011) (internal quotation marks omitted).

… In sum, the evidence's probative value was slight, but it created a substantial

danger of undue delay, unfair prejudice, and confusing the jury.

See also Crawford v. Sandy City Corp., 2012 U.S. Dist. LEXIS 127789, 4-5 (D. Utah Sept. 7,

2012):

The admissibility of Rule 404(b) evidence is determined by considering whether

the following four requirements are satisfied:

(1) the evidence is offered for a proper purpose under Fed. R. Evid. 404(b); (2)

the evidence is relevant under Fed. R. Evid. 401; (3) the probative value of the evidence

is not substantially outweighed by its potential unfair prejudice under Fed. R. Evid. 403;

and (4) the district court, upon request, instructs the jury to consider the evidence only forthe purpose for which it was admitted. U.S. v. Tan, 254 F.3d 1204, 1207-08 (10th Cir.

2001).

None of these required steps or requirements was satisfied in this case. There is

absolutely no evidence that any alleged prior act actually occurred; no determination whether

any such act was admissible for one of the proper purposes outlined in Rule 404, and no

balancing done under Rule 403 to determine whether the probative value of the evidence was

substantially outweighed by the danger of unfair prejudice. Frankly, there was no probative

value to this unwarranted attack on Mr. Osiel, and to the extent any probative value could be

argued, it would undoubtedly be substantially outweighed by the danger of unfair prejudice.

Defendant was allowed to imply to this jury that Mr. Osiel was testifying adversely to defendant

in this case not because it was perfectly consistent with what he has been arguing and writing for

years, but because of some nebulous retribution for some unfounded claim that he was having

sex in his office.

This smear campaign by defendant and her counsel should have been prevented by the

court, since there was no proof that the “bad act” that Mr. Osiel had allegedly committed had in



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fact occurred. In essence, Mr. Carroll was permitted by this court to introduce before the jury

improper innuendo akin to the “when did you stop beating your wife” type of questioning that

has long been inadmissible.

This Court erred in allowing Mr. Osiel to be attacked on this spurious basis without first

determining whether there was any sufficient evidence of such prior act and without first

determining whether any scant probative value was substantially outweighed by the obvious

danger of unfair prejudice.

IV.

VIEWING OF DEPOSITION TRANSCRIPT.

Fourth, this Court abused its discretion in denying the jury’s request to review the

deposition transcript of Randall Bezanson during its deliberations in the late morning of

Tuesday, October 23, 2012. While plaintiff must concede that “the decision whether to accede to

a jury’s request to review testimony or exhibits in the jury room, during deliberations is generally

left to the sound discretion of the trial court,” Johnson v. Richardson, 701 F.2d 753, 757 (8th

Cir.

1983), it was an abuse of discretion in this case to refuse to allow the jury to view Bezanson’s

deposition transcript. As several of defendant’s own witnesses admitted, Bezanson was the

primary opponent to plaintiff and thus the chief witness on the political discrimination claim.

His deposition testimony had been read to the jury a full week prior to the jury’s request to view

that deposition. Counsel for both parties had characterized Mr. Bezanson’s deposition testimony

during their closing statements. Accordingly, this Court erred in refusing the jury’s request

under these circumstances and this error was highly prejudicial to plaintiff in the event any

alleged verdict is argued to exist as to Count I.



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V. THE COURT ERRED IN SUSTAINING DEFENDANT’S HEARSAY

OBJECTIONS TO ADMISSIONS BY DEFENDANT’S AGENTS.

Fifth, plaintiff respectfully asserts the Court erred in sustaining defense counsel’s

objections on the basis of hearsay during plaintiff’s direct examination as to admissions made by

Jon Carlson and Eric Andersen. Specifically, this Court did not allow plaintiff to testify that

Carlson had stated to her that she should conceal from the faculty during her interview that she

had been offered a job at Ava Maria. As to Eric Andersen, this Court did not allow plaintiff to

testify that he had made admissions to her that he “did not know” whether her politics would be

held against her.

Under Rule of Evidence 801(d)(2)(D), clearly these statements were “made by the party’s

agent or employee on a matter within the scope of that relationship and while it existed.”

Frankly, plaintiff believes it was undisputed that these statements should have been admitted, as

agent admissions. See Copeland v. ABB, Inc., 521 F.3d 1010, 1013 (8th

Cir. 2008):

“The statements made by Gallagher in the letters are not hearsay because they areagent admissions. See F.R.Evid. 801(d)(2)(D).”

The Court erred in not allowing plaintiff to testify to these admissions during her direct

examination. It improperly interrupted the direct examination of the plaintiff and could have

resulted in the jury subsequently rejecting her testimony when later offered into evidence.

VI. JURY INSTRUCTIONS

As explained, generally, in Swipies v. Kofka, 419 F.3d 709, 716 (8th Cir. 2005):

If a district court improperly instructs a jury, a new trial may be appropriate. SeeMcKay v. WilTel Communication Sys., Inc., 87 F.3d 970, 976 (8th Cir. 1996); see Fed.

R. Civ. P. 59. We review jury instructions for an abuse of discretion. Sanders v. May

Dep't Stores Co., 315 F.3d 940, 946 (8th Cir. 2003), cert. denied, 539 U.S. 942, 156 L.

Ed. 2d 627, 123 S. Ct. 2608 (2003). The touchstone of our review is whether theinstructions, "taken as a whole, fairly and adequately represent the evidence and

applicable law in light of the issues presented to the jury in a particular case." Brown v.

Sandals Resorts Int'l, 284 F.3d 949, 953 (8th Cir. 2002) (internal quotations omitted).



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Reversal for a new trial is appropriate only if there was an error that affected a substantial

right of the moving party. Sanders, 315 F.3d at 946.

Plaintiff respectfully asserts the court erred in failing to give the jury instructions tendered by

plaintiff, and specifically erred in giving the business judgment instruction tendered by the

defendant due to the fact that defendant was not the actual employer and the jury had already

been instructed on this issue under the “same decision” portion of the political discrimination

instruction.

Pursuant to the court’s instructions in its October 19, 2012 e-mail, plaintiff objected to

these instructions through counsel’s October 20, 2012 e-mail (Exhibit 3). The pertinent

objections were the following:

“POLITICAL DISCRIMINATION”

… I believe we need to include in the instruction the following language from the

Eighth Circuit opinion:

“Plaintiff may discredit defendant’s claimed nondiscriminatory reason,

either circumstantially or directly, by presenting evidence that discrimination wasmore likely than not a motivating factor.”

The precise language and context of that language was the following:

"In a political discrimination case, the plaintiff may discredit the proffered

nondiscriminatory reason, either circumstantially or directly, by adducing

evidence that discrimination was more likely than not a motivating factor."Padilla-Garcia, 212 F.3d at 77 (citations omitted). "In this way, the burden-

shifting mechanism is significantly different from the device used in other

employment discrimination contexts, such as Title VII cases, where a plaintiff isrequired to come forward with affirmative evidence that the defendant's

nondiscriminatory reason is pretextual." Id. (citations omitted).

Wagner v. Jones, 664 F.3d 259, 272 (8th Cir. Iowa 2011)

“SAME DECISION”

… I believe under the mandate of the Eighth Circuit, we must include

some language in the instruction that makes clear to the jury that plaintiff may

discredit Dean Jones’ alleged grounds for why she would have made the “same



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decision” regardless of plaintiff’s political beliefs. I propose in the attached

Plaintiff’s Proposed Final Instructions” the following:

“Plaintiff may discredit defendant’s claimed nondiscriminatory

reason, either circumstantially or directly, by presenting evidence thatdiscrimination was more likely than not a motivating factor. You may find

that Plaintiff’s political beliefs and affiliations were a motivating factor in

Defendant’s actions if Plaintiff has proved by a greater weight of the

evidence that Defendant’s stated nondiscriminatory reasons for her actionsare not the true reasons, but are instead pretext to hide political

discrimination.”

Finally, I believe we need to add at the end of the last sentence the

following: “on this claim of political discrimination.”

It was error to reject these requested instructions since the given instructions failed to inform the

jury of the burden of proof under the Mt. Healthy holding. The given instructions failed to

follow the burden of proof test found to be applicable in Wagner v. Jones, 664 F.3d 259, 272 (8th

Cir. 2011.)

Likewise, plaintiff’s counsel objected to the “business judgment” instruction as follows:

“BUSINESS JUDGMENT”

I object to the submission of any business judgment instruction. Thisunfairly instructs in favor of the Defendant; an argument rather than a rule of

law. Also, an individual State actor is not a business, and not entitled to this

instruction. Plaintiff further objects because this instruction is redundant since

this court will be giving the “same decision” instruction.

Alternatively, if a “business judgment” instruction is given, Plaintiff

would request that a third sentence be added which reads: “On the other hand, ifyou find that the Defendant’s decision did violate the law, then you may return a

verdict for Plaintiff.”

The “business judgment” instruction was cumulative, inapplicable to this non-employer, and

confusing to the jury.



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VII. FAILING TO PROVIDE THE JURY ADDITIONAL INSTRUCTION ON THE

LEGAL MEANING OF “ACTING UNDER THE COLOR OF STATE LAW”

Finally, the court erred in failing to provide the jury additional instruction on the legal

meaning of “acting under the color of state law” when it was clear that the jury was seeking

definition of the phrase that had not been adequately defined in the jury instruction. See United

States v. Birges, 723 F.2d 666, 670-671 (9th Cir. 1984):

Questions or disputes as to the meaning of terms which arise during jury

deliberations should be settled by the court after consultation with counsel, insupplemental instructions. Such guidance will avoid the danger that jurors will use the

dictionary to construct their own definitions of legal terms which do not accurately or

fairly reflect applicable law.

Alternatively, the court erred in failing to instruct the jury that there was no issue in this case that

Dean Jones was, in fact, acting “under the color of state law.” Such supplemental instructions to

the jury would have given the jury the opportunity to deliberate with a clearer understanding of

the law.

CONCLUSION

For the foregoing reasons, plaintiff respectfully requests that this Court grant her Motion

for a New Trial.

Respectfully submitted,

KATZ, HUNTOON & FIEWEGER, P.C.

By: /s/Stephen T. Fieweger Stephen T. Fieweger (AT0002490)

1000 - 36th

Avenue

Moline, IL 61265-7126Telephone: 309-797-3000

Fax: 309-797-2167

E-mail: [email protected]

Attorneys for Plaintiff

Teresa R. Wagner



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CERTIFICATE OF SERVICE

I hereby certify on November 20, 2012, I electronically filed Plaintiff’s Memorandum ofLaw in Support of Motion for New Trial with the Clerk of the Court using the CM/ECF System

which will send notification of this filing to the following:

[email protected]

George A. Carroll


s:\wp\worddoc\14512001.69MemoSupMotNewTrial



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teresa wagner v. jones _iowa college of law_ - motion for a new trial

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