Deborah Kramer v. Logan Cty. School

UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

No. 97-3132

Deborah Kramer, *
*
Appellee, *
* Appeal from the United
v. * States District Court
* for the District of Nebraska
Logan County School District No. *
R-1, a/k/a Stapleton Public Schools, *
*
Appellant. *

Submitted: February 9, 1998
Filed: October 14, 1998

1
Before RICHARD S. ARNOLD, Chief Judge, HANSEN, Circuit Judge, and
LIMBAUGH,2 District Judge.

1
The Hon. Richard S. Arnold stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on April 17,
1998. He has been succeeded by the Hon. Pasco M. Bowman II.
2
The Hon. Stephen N. Limbaugh, United States District Judge for the
Eastern District of Missouri, sitting by designation.
LIMBAUGH, District Judge

Logan County School District No. R-1, a/k/a Stapleton Public Schools ("the
school district") appeals following a jury verdict entered in favor of one of its former
employees, Deborah Kramer, on her discriminatory discharge claim arising under Title
VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. For the
reasons set forth below, we affirm the judgment of the district court.3
I
Deborah Kramer began working for the school district as a substitute teacher
during the 1987-88 school year. She was certified in mathematics and chemistry.
While working for the school district, Kramer obtained further certification in middle
school mathematics, middle school all subjects, general science and natural science.

During the 1990-91 school year, the school district’s high school science teacher
was placed on administrative leave and, ultimately, resigned. Kramer was named as
his replacement and awarded a full-time teacher’s contract. She was subsequently
awarded annual full-time teacher’s contracts for the 1991-92 and 1992-93 school years.
At all times, Kramer remained a probationary teacher as defined by Nebraska law.

In February, 1993, the school district’s high school principal, Mike Apple, and
superintendent, John Broadbent, decided that they would recommend that Kramer’s
teaching contract not be renewed for the following school year. The school board
approved the recommendation of non-renewal and, on March 18, 1993, sent Kramer
a notice letter to that effect.4 Kramer requested and was granted the right to an

3
The Honorable Thomas M. Shanahan, United States District Judge for the
District of Nebraska.
4
Under Nebraska law, only a school board may act to non-renew the
(continued...)
2
informal hearing before the school board to allow her the opportunity to discuss and
explain her position with regard to continued employment, to present information and
to ask questions of those appearing on behalf of the school district. See Neb. Rev. Stat.
§§ 79-828(5) and (8).

The hearing was held on April 28, 1993. Kramer was represented by counsel,
called several witnesses and cross-examined the witnesses against her. Although she
challenged the recommendation regarding the non-renewal of her teaching contract,
Kramer did not present any allegations or evidence of gender discrimination. In all, the
hearing lasted nearly five hours.

After approximately one hour of deliberations, the school board unanimously
adopted a resolution stating that Kramer’s employment contract would not be renewed
because she could not get along with the administration, received below average
evaluations, failed to function as a team player in the everyday working environment
of the school district, and that the school district would be better served by seeking a
more cooperative teacher.

Kramer elected not to challenge the school board’s decision in state court. She
did, however, file a charge of discrimination with the Nebraska Equal Opportunity

4
(...continued)
contract of a probationary teacher. See Neb. Rev. Stat. § 79-828; Nuzum v. Board
of Education of the School District of Arnold, 417 N.W.2d 779, 782 (1988)
(Nebraska statutes "repose[] in the board, not in a superintendent, the power to
contract with teachers and administrators."). The school board may elect not to
renew the contract of a probationary teacher for any reason it deems sufficient, so
long as it "is not for constitutionally impermissible reasons." Neb. Rev. Stat. § 79-
828(4). Once it is determined that a probationary teacher’s contract may not be
renewed, the probationary teacher is to be given written notice "that the school
board will consider . . . non-renewal of such [probationary teacher’s] contract for
the ensuing school year." Neb. Rev. Stat. 79-828(3).
3
Commission. Upon receiving her right-to-sue letter, Kramer initiated the instant lawsuit
in the United States District Court for the District of Nebraska. Her Complaint alleges
that she was discriminatorily discharged because of her gender.

The case proceeded to trial on May 16, 1997. Kramer presented evidence that
she had been disparately treated by the school district’s high school principal, Mike
Apple. Specifically, she presented testimony by her former co-workers and others,
including herself, detailing how Apple had disciplined her more harshly and severely
than male teachers for similar misconduct. Likewise, other female teachers testified
that they too had been treated inappropriately or unfairly because of their gender.
Kramer presented testimony of off-color and/or inappropriate remarks made by both
Apple and the school district’s superintendent, John Broadbent. She produced written
reprimands by Apple from her personnel file which were neither signed nor given to
her, in direct contravention of a written school policy.

Additionally, Kramer presented evidence that Apple and Broadbent made
material misrepresentations and omissions to the school board in presenting their
recommendation that her teaching contract not be renewed. She presented evidence
that they misrepresented that her performance evaluations were below average, when
five out of six evaluations were average or better. She maintains that Broadbent
specifically instructed the school board not to read the evaluations before the hearing
and that the board members did not have an opportunity to read the evaluations during
the hearing. Kramer adduced evidence that fifteen of the seventeen tenured teachers
had signed a letter in support of her, but that Broadbent failed to give the letter to the
school board. Finally, she presented evidence that Apple had decided to leave his
position as high school principal and had informed Broadbent of his intentions prior to
the hearing, but that they purposefully kept this information from the school board.

The school district moved for judgment as a matter of law at the end of Kramer’s
case and, again, at the close of all of the evidence. It argued that Kramer

4
failed to introduce evidence sufficient to support a finding of intentional gender
discrimination. The district court denied both motions.

At the initial jury instruction conference, the district court presented
counsel with seventeen proposed jury instructions. No objections were made, though
Kramer requested that Instruction No. 2 be amended to substitute the word
"corporation" with "political subdivision" to more accurately describe the party-
defendant. The school district did not object and the district court agreed to amend the
instruction. As amended, Instruction No. 2 provides:

The parties to this action are the plaintiff, Deborah Kramer and the
defendant, Stapleton Public Schools. Throughout these instructions, the
plaintiff may be referred to as the plaintiff or by her name. The defendant
may be referred to as the defendant or by its name.

In cases such as this, a political subdivision, including Stapleton
Public Schools, acts through its agents and employees. An agent or
employee of a political subdivision may bind the political subdivision by
acts and statements made by the agent or employee while the agent or
employee is acting with [sic] the scope of the authority delegated to the
agent or employee by the political subdivision. Additionally, the agent or
employee may bind the political subdivision by acts and statements made
within the scope of the employee’s duties as an employee of the political
subdivision.

On May 22, 1997, the jury received the case. After several hours of
deliberations, the jury submitted the following questions to the district court:

Under Instruction No. 10(a), does "Stapleton Public Schools" stand
for the school board, or the school board and administration?

Under Instruction No. 10(a), the phrase "actions against the
plaintiff" - does that include the hearing or all that happened during her

5
 period of employment?

Instruction 10(a) provides:

If you find in favor of the plaintiff under Instruction No. 10, then
you must answer the following question in the verdict form: Has the
defendant, Stapleton Public Schools, proved by the preponderance of the
evidence that the defendant would have taken the same actions against the
plaintiff regardless of the plaintiff’s gender?

Following a conference with counsel, the district court answered the first
question by drafting supplemental Instruction No. 20. Supplemental Instruction No.
20 provides:
As used in these instructions, Stapleton Public Schools means the
defendant, Logan County School District No. R-1, which is a political
subdivision governed by the district’s school board. Please refer to
Instruction No.2.

Please reread all the instructions and continue your deliberations.

The school district specifically objected to the reference to Instruction No. 2. It also
proposed that the district court answer the question by stating simply, "the school
board."

The district court answered the second question by substituting a new
instruction, Revised Instruction No. 10(a). Revised Instruction No. 10(a) provides:

If you find in favor of the plaintiff under Instruction No. 10, then
you must answer the following question in the verdict form: Has the
defendant, Stapleton Public Schools, proved by the preponderance of the
evidence that the defendant would have made the same decision not to
renew the plaintiff’s contract of employment for another year regardless
of the plaintiff’s gender?

6
On May 23, 1997, the jury returned a verdict in favor of the plaintiff, Deborah

7
Kramer. The jury awarded her $110,000.00 for lost wages and benefits and
$15,000.00 for emotional pain and suffering. The court clerk entered judgment on the
jury’s verdict in the amount of $125,000.00. Thereafter, Kramer filed a motion to
amend the judgment to include an order of reinstatement or of front pay and
prejudgment interest. Kramer also filed a motion for her attorneys’ fees and costs.

The district court granted in part and denied in part Kramer’s motion to amend
the judgment. It denied her request for reinstatement, awarded her three years of front
pay - reduced to its present value of $71, 288.06 and denied her request for
prejudgment interest. The district court also granted in part and denied in part
Kramer’s motion for attorneys’ fees. It awarded her fees and costs, but reduced the
amount to $42, 378.18. The district court entered its final judgment on July 9, 1997.
II
For its first point on appeal, the school district argues that the district court erred
in denying its motion for judgment as a matter of law.

We review de novo the denial of a motion for judgment as a matter of law,
applying the same standards as the district court. Feltmann v. Sieben, 108 F.3d 970,
974 (8th Cir. 1997). We "must assume as proven all facts that the nonmoving party’s
evidence tended to show, give her the benefit of all reasonable inferences, and assume
that all conflicts in the evidence were resolved in her favor." Hathaway v. Runyon, 132
F.3d 1214, 1220 (8th Cir. 1997). Judgment as a matter of law is appropriate only if,
considering the evidence in this manner, no reasonable jury could find for the
non-moving party. See Ryther v. KARE 11, 108 F.3d 832, 844 (8th Cir.) (en banc),
cert. denied, 117 S. Ct. 2510 (1997)). "[W]e will not set aside the jury’s verdict
lightly." Triton Corp. v. Hardrives, Inc., 85 F.3d 343, 345 (8th Cir. 1996).

The school district argues that Kramer’s discriminatory discharge claim is
insufficient as a matter of law because there is no evidence that the school board
engaged in intentional gender discrimination. As the school board was the ultimate

8
decisionmaker with respect to the non-renewal of Kramer’s teaching contract, the
school district contends that it is the motivations of the individual board members that
are at issue. The school district insists that the school board articulated several
legitimate, non-discriminatory reasons for its decision, and that Kramer failed to
establish that the reasons given were a pretext for intentional gender discrimination.

Kramer does not suggest that the evidence presented indicates that the individual
board members elected to not renew her teaching contract because of her gender.
Rather, she argues that because the non-renewal of her contract was initiated by Apple
and Broadbent, acting within the scope of their employment, and because Apple and
Broadbent made material misrepresentations and omissions in presenting their
recommendation to the board, the school district should be liable for their
discriminatory conduct. Moreover, Kramer argues that the evidence of her competency
and, by contrast, of Apple’s and Broadbent’s disparate treatment of female teachers,
sufficiently undermines the legitimate, non-discriminatory reasons articulated by the
school board. Accordingly, Kramer maintains that there was ample evidence to support
a finding that the real reason for the non-renewal of her full-time teacher’s contract was
intentional gender discrimination.

This Court has previously recognized this application of agency principles in the
Title VII context. See Kientzy v. Mc Donnell Douglas Corp., 990 F.2d 1051, 1060
(8th Cir. 1993)("[a] reasonable jury could have found that [plaintiff’s supervisor] used
[a company investigator], the disciplinary committee, and [the director of human
resources] as the conduit of his prejudice"); Jiles v. Ingram, 944 F.2d 409 (8th Cir.
1991)("there is no inconsistency between the district court’s finding of no intentional
discrimination by the two high ranking officials who made the final recommendation
and decision to discharge, and its conclusion that the City was guilty of a disparate
treatment violation because of the uncontradicted evidence of intentional discrimination
by the lesser officials who initiated the discharge proceeding"); see also Shager v.
Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990) ("If [the committee] acted as

9
the conduit of [plaintiff’s supervisor’s] prejudice--his cat’s paw--the innocence of its
members would not spare the company from liability.").

The school district argues that this case is distinguishable because the school
board conducted an independent fact-finding hearing. See e.g., Long v. Eastfield
College, 88 F.3d 300, 307 (5th Cir. 1996)("If [college president] based his decisions
on his own independent investigation, the causal link between [plaintiffs’ supervisors]
allegedly retaliatory intent and [plaintiffs’] terminations would be broken."). Even
more troubling is that Kramer, who was represented by counsel at the hearing, did not
present any evidence of, nor even mention, her allegations of gender discrimination.
Yet, these concerns involve credibility determinations which we do not consider when
reviewing a motion for judgment as a matter of law. Triton Corp., 85 F.3d at 345 ("We
will not weigh, evaluate, or consider the credibility of the evidence."). The question
of whether the school board accurately accessed Kramer’s situation or performed a
perfunctory review and "rubber stamped" the recommendation to non-renew was
appropriately presented to the jury. Assuming the facts as alleged by Kramer were
proven, giving her the benefit of all reasonable inferences, and resolving all conflicts
in the evidence in her favor, we cannot say that it was unreasonable for the jury to
conclude that the non-renewal of her full-time teacher’s contract was the result of
intentional gender discrimination.
III
For its second point on appeal, the school district argues that Instruction No. 2,
the agency instruction, was not supported by the evidence.

As an initial matter, we note that the school district made no objection to
Instruction No.2 at the instruction conference or at trial. Rule 51 of the Federal Rules
of Civil Procedure provides that "[n]o party may assign as error the giving or the failure
to give an instruction unless that party objects thereto before the jury retires to consider
its verdict, stating distinctly the matter objected to and the grounds of the objection."
Fed.R.Civ.P. 51; see also Dupre v. Fru-Con Engineering, Inc., 112 F.3d

10
329, 334 (8th Cir. 1997)("to preserve an argument concerning a jury instruction for
appellate review, a party must state distinctly the matter objected to and the grounds
for the objection on the record"). In circumstances such as these, we will reverse only
if the instruction amounts to plain error. Dupre, 112 F.3d at 333; Ryther, 108 F.3d at
847. Under plain error review, an instruction is grounds for reversal "only if the error
prejudices the substantial rights of a party and would result in a miscarriage of justice
if left uncorrected." Rush v. Smith, 56 F.3d 918, 922 (8th Cir. 1995) (en banc).

As we have already determined that agency principles can and do apply in the
Title VII context, Instruction No. 2 was not error - let alone plain error.
IV
For its third point on appeal, the school district argues that Supplemental
Instruction No. 20, given in response to a question from the jury, placed undue
emphasis on the erroneous agency instruction. As the school district specifically
objected to the express reference to Instruction No. 2 at trial, this claim of error is
properly before us. Kostelec v. State Farm Fire and Casualty Co., 64 F.3d 1220, 1225
(8th Cir. 1995).

"We review the district court’s jury instructions for abuse of discretion and on
review must determine simply whether the instructions, taken as a whole and viewed
in light of the evidence and applicable law, fairly and adequately submitted the issues
in the case to the jury." Kim v. Nash Finch Co., 123 F.3d 1046, 1057 (8th Cir.
1997)(internal quotations omitted). We will reverse on instructional error only if we
find that the error "affected the substantial rights of the parties." Id.

Because we conclude that Instruction No. 2 was properly given, we do not find
any error in Supplemental Instruction No. 20. If, however, undue emphasis was placed
upon the agency instruction, we believe that any resulting error was harmless.
V
For its final point on appeal, the school district argues that the district court was

11
without jurisdiction to award Kramer $71, 288.06 in front pay because it exceeds the
statutory limit on compensatory damages for "future pecuniary loss." See 42 U.S.C.
§ 1981a(b)(3). Whether a monetary award of front pay is subject to the compensatory
damages cap in Title VII is an issue of first impression in this Court.

The Sixth Circuit has held that front pay is a legal remedy subject to the cap.
See Hudson v. Reno, 130 F.3d 1193, 1202-04 (6th Cir. 1997); Hamlin v. Charter
Township of Flint, 965 F. Supp. 984, 987 (E.D. Mich. 1997). Applying general
canons of statutory construction, the Sixth Circuit determined that the common,
ordinary meaning of the term "future pecuniary loss" is "an amount of money which will
be lost at a later time." Hudson, 130 F.3d at 1203. Accordingly, the Sixth Circuit
concluded that "‘front pay’, by both its definition and purpose in the law, is a ‘future
pecuniary loss’ because it is a monetary award for the salary that the employee would
have received but for the discrimination." Id.

Unlike the Sixth Circuit, however, this Court has always viewed front pay as a
form of equitable relief. See Newhouse v. McCormick & Co., 110 F.3d 635, 641 (8th
Cir. 1997)("Front pay is an equitable remedy, which the district court in its discretion
may award under the [civil rights statutes] to make the injured party whole.")(quoting
Smith v. World Insurance Co., 38 F.3d 1456, 1466 (8th Cir.1994)). In our view, front
pay is not so much a monetary award for the salary that the employee would have
received but for the discrimination, but rather the monetary equivalent of reinstatement,
to be given in situations where reinstatement is impracticable or impossible. See e.g.,
Newhouse, 110 F.3d at 641; Philipp v. ANR Freight System, Inc., 61 F.3d 669, 674
(8th Cir. 1995). This subtle distinction is more than semantics because section
1981a(b)(2) provides that, "[c]ompensatory damages awarded under this section shall
not include backpay, interest on backpay, or any other type of relief authorized under
section 706(g) of the Civil Rights Act of 1964." 42 U.S.C. § 1981a(b)(2)(emphasis
added). We therefore, respectfully, disagree with the Sixth Circuit and conclude that
front pay is an equitable remedy excluded from the statutory

12
limit on compensatory damages provided for in section 1981a(b)(3).

Accordingly, we affirm.

RICHARD S. ARNOLD, Circuit Judge, concurring.

I join Judge Limbaugh's thorough opinion for the Court fully, but write separately
to offer a few thoughts about our dissenting colleague's observations, especially his
invocation of our recent opinion in Lacks v. Ferguson Reorganized School Dist. R-2,
147 F.3d 718, suggestion for rehearing en banc denied, ____ F.3d ____ (8th Cir. 1998)
(9 - 2 vote).

Let me begin by indicating the points on which I agree with the dissent. All of
the following is true: Ms. Kramer presented no evidence of sex discrimination at the
hearing before the school board; the hearing was full and fair; there is no evidence that
any member of the board was personally biased; the board is the sole authority
empowered to make a non-renewal decision; Ms. Kramer did not exercise her right
under state law to have the board's decision reviewed by a state court; and, if she had
gone to a state court, the review would have been limited to the record of the hearing
before the school board and would have been governed by a deferential standard. In
my view, none of these points is fatal to Ms. Kramer's action under federal law. There
is no requirement that administrative remedies, other than those before the EEOC or
a state counterpart agency, be exhausted as a condition precedent to a suit in a federal
court under Title VII. That the plaintiff did not claim sex discrimination before the
school board may lessen the credibility of her later assertions, but that was a question
for the jury, as Judge Limbaugh rightly says, ante, at 9. Ms. Kramer was under no
obligation to pursue any state-law remedy. She has an independently created federal
right to sue under Title VII, and in that forum the defendant's motives are reviewed de
novo, though the burden of persuasion of course remains always with the plaintiff.
And, finally, the action is against the school district, the governmental

13
unit, not against the members of the school board or the board as an entity. Certainly
the board's good motives, uncontested here, are relevant, but they are not invariably
dispositive, as our cases, see ante, at 8-9, clearly state.

Crucial to the present case is evidence that the two top administrators of the
district, Mr. Apple and Mr. Broadbent, were motivated by gender in recommending the
non-renewal of plaintiff's contract. Without this recommendation, the school-board
hearing would never have occurred. Some of the facts supporting these conclusions are
recounted in Judge Limbaugh's opinion. Among other things, there was evidence,
apparently persuasive to the jury, that the two top administrators treated women
teachers less favorably than men, and that coarsely disparaging remarks, the details of
which need not be recounted, were made about women teachers. There was also
evidence, presented by the defendant, that men and women received equal treatment.
It was up to the jury to decide which side to believe. In addition, the jury was given
a chance to decide whether Ms. Kramer would have been terminated in any event,
regardless of gender, and it found that she would not have.

With deference to my dissenting colleague, I do not think that any of this
reasoning, in the context of the record in this case, is inconsistent with our opinion in
Lacks. (As it happens, both Judge Hansen and I were members of the Lacks panel.)
As I read the Lacks opinion, it is very fact-specific. It does not erect any general rule
that a fair hearing before an impartial board immunizes a school district from the
consequences of discrimination on the part of the district's administration, if that
discrimination is the proximate cause of adverse employment action. The evidence of
bias on the part of the administrators in Lacks was very weak, and the misconduct of
the plaintiff teacher (or what the board regarded as misconduct) was egregious. In
those circumstances, it was our view that the jury verdict was wholly unreasonable.
Lacks is not authority compelling us to overturn the jury verdict in the quite different
circumstances of the present case.

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DAVID R. HANSEN, Circuit Judge, dissenting.

I respectfully dissent. In my view, Ms. Kramer has produced no evidence which
can support a reasonable inference of discrimination on the part of the Stapleton school
board, and a verdict in her favor therefore cannot stand. "In reaching that conclusion,
[I am] mindful that the evidence must be viewed in the light most favorable to the jury's
verdict, and that all reasonable inferences in support of the verdict must be allowed."
Lacks v. Ferguson Reorganized Sch. Dist. R-2, 147 F.3d 718, 724 (8th Cir. 1998). The
instant opinion correctly states, "Kramer does not suggest that the evidence presented
indicates that the individual board members elected not to renew her teaching contract
because of her gender." Supra at 8. Since Ms. Kramer sued to recover damages for
discriminatory discharge by the school board, one might suspect this failure should be
fatal to her case. However, if she could show that unlawful gender discrimination on
the part of the administrators who initially recommended her separation to the school
board poisoned any subsequent board action, so that the board's decision to terminate
her simply "rubber-stamped" the administrators' gender-based recommendation, the
jury's verdict could stand. See Kientzy, 990 F.2d at 1057. But allowing her to prevail
on the facts of the present case is a great departure from our precedents. The Stapleton
school board did not, by virtue of exercising its statutory authority to hire and fire
teachers, thus become a cat's paw, "one used by another to accomplish his purposes."
Webster's International Dictionary, 354 (3d Ed. 1986). Unfortunately, the court's
opinion today transforms our "cat's paw" cases into a cat o' nine tails that will be used
against every school district whose board provides a thorough, independent, statutorily
mandated, full-blown adjudicatory review before acting on termination
recommendations.

To present a submissible "cat's paw" claim, Ms. Kramer must proffer evidence
tending to demonstrate "that the school board was influenced by the bias of the
administrators, and that the board consequently served as the conduit, or 'cat's paw,' of
the . . . animus of the school administration." Lacks, 147 F.3d at 725. Since Ms.

15
Kramer "produced no evidence that the school board deferred to the opinion or
judgment of [the administrators] in making its determination," id., she has not shown
that the board was "influenced" by any gender bias on the part of the administrators,
except to the extent that the school board resolved the dispute raised by the termination
recommendation -- which, of course, Nebraska law requires the board to do. The
elected Stapleton school board accorded Ms. Kramer her statutory hearing at which she
was represented by counsel and presented witnesses and evidence on her own behalf,
and cross-examined witnesses who appeared against her. There is not a hint that the
hearing itself was other than full and fair. The trial-type hearing continued for nearly
five hours before the board retired, like a jury, into executive session to consider the
evidence and arguments which had been presented. Here, as in Lacks, "no members
of the administration were present during the board's deliberations." Id.

Ms. Kramer claimed at trial that bias infected the hearing, because the
administrators "made material misrepresentations and omissions in presenting their
recommendation to the board," supra at 8, and that these errors poisoned the board's
decision. She contends that Principal Apple and Superintendent Broadbent
misrepresented to the school board the contents of her performance evaluations. The
testimony to which she refers in fact indicates that, when Mr. Broadbent recommended
that the school board send a nonrenewal letter to Ms. Kramer, he requested that the
board members not review her evaluations until a hearing was held, and the evaluations
were presented at the hearing in Ms. Kramer's presence. (Trial Tr. at 987, 996-97.)
Ms. Kramer does not claim that she made any effort at the hearing to correct any
alleged misrepresentations made to the school board, or to expose any unfair, gender-
based treatment. She most certainly did not indicate to the school board that either of
the administrators had intentionally misled the board about her record because of a bias
against women. It strains credulity to its breaking point to believe that, over the course
of a long adversarial hearing and while represented by counsel, Ms. Kramer would not
challenge what she believed to be false statements

16
made by her supervisor, or make the charge that the statements were in fact bottomed
on gender bias. In any case, the evaluations themselves do not indicate gender bias,
but contain legitimate, non-discriminatory reasons for not renewing Ms. Kramer's
contract -- the very reasons proffered at trial. The board considered these evaluations
in making its decision. This evidence does not require us to make a credibility
determination. More importantly, it does not raise an inference that the board was
influenced by any hidden, undisclosed, and uncomplained about underlying gender bias
on the part of the principal and superintendent.

Ms. Kramer asserts that her evaluations reflected her supervisor's bias because
they contained criticisms for misconduct which similarly situated male teachers did not
receive. However, to show bias through disparate treatment, Ms. Kramer must
demonstrate that similarly situated male teachers were treated differently than she. See
Ward v. Proctor & Gamble Paper Prod. Co., 111 F.3d 558, 560-61(8th Cir. 1997). She
was a probationary employee but she alleged disparate treatment of tenured male
teachers. Needless to say, tenured teachers are not similarly situated to probationary
teachers. See Neb. Rev. Stat. §§ 79-828(4), 79-829 (1996). Further, many of her
specific allegations were completely and unequivocally refuted at trial, where
administrators, board members, and the teachers themselves all testified that the male
teachers had in fact been disciplined over misconduct for which Ms. Kramer claimed
they had not.

Ms. Kramer also claims that Mr. Broadbent possessed a letter, written in her
support and signed by many of the tenured teachers in Stapleton, which he did not
present to the board. Mr. Broadbent initially testified that he could not recall passing
that letter on (Trial Tr. at 655); but then testified that he did submit it to the board. (Id.
at 888-89.) Mr. Apple also testified that the letter was presented to the board. (Id. at
869.) Even if neither of the administrators had submitted the letter to the board, Ms.
Kramer was present at her hearing and represented by counsel. She called as witnesses
on her behalf many of the teachers who signed the support letter, and she

17
herself had a copy of it. If the board did not have the letter to consider as part of all the
evidence regarding Ms. Kramer's employment when it retired to deliberate, the reason
is Ms. Kramer's own negligence. Her proffer of evidence regarding the support letter
does not permit an inference of gender discrimination by the Stapleton school board.

The school board members testified at trial that Ms. Kramer presented no
indication of gender bias to them, for their consideration in reviewing her employment
record. Member David Jones testified, "There was nothing brought up of any sexual
innuendo or discrimination at that hearing in April." (Trial Tr. at 683.) When asked,
"Did you hear anything like [gender bias] at that hearing on April 28th of 1993?"
member Linda Licking responded, "No, none of it." (Trial Tr. at 978.) Still, Ms.
Kramer insists that some hidden bias (which she joined in keeping hidden by not
bringing it to the board's attention) infected the board. She would have us believe that,
despite the hearing, and despite her presentation of her own witnesses to the school
board, the school board simply "rubber stamped" the recommendation not to renew her
contract. All evidence presented belies this, and the jury's inference to the contrary is
unreasonable.

After taking hours of evidence, the board retired into executive session with two
proposed motions before them, one to retain Ms. Kramer; one to terminate her, with
six reasons listed in support of the termination decision, a situation not unlike a jury
retiring with special verdict forms to consider and complete. Upon review of the
evidence, the board unanimously voted to terminate. They did not simply adopt the
proposed termination motion, however. Their review of the evidence led them to strike
two of the proposed reasons for termination. Ms. Kramer's trial counsel pointed out the
very evidence which demonstrates the board did not "rubber-stamp" the
recommendation. He asked board member Jones on cross-examination, "And those
lines were stricken [sic] after the board discussed the resolution, listened to the
evidence and decided how to decide this matter, correct?" Answer: "That's correct."

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(Trial Tr. at 694.) "On this record, the inference that the school board acted because
of [plaintiff's gender] is wholly unreasonable." Lacks, 147 F.3d at 726.

Nebraska law permits Ms. Kramer to appeal the board's decision to state district
court. See Neb. Rev. Stat. § 79-833; Schaffert v. Lancaster County Sch. Dist. No.
0001, 581 N.W.2d 444 (Neb. Ct. App. 1998). She elected not to do so. Instead, in my
view, having sandbagged the board by not revealing to the board at the nonrenewal
hearing her belief that the Superintendent's recommendation to terminate her was
actually based on her sex, she then proceeded to blindside the board by filing this Title
VII suit in federal court. Lest the reader believe that my analogy, comparing the role
of the school board at Ms. Kramer's hearing to that of a jury, is stretched, under
Nebraska law the board's termination decision would have been reviewed under a
deferential standard very similar to that used to review a jury's verdict. See Cox v.
York County Sch. Dist., 560 N.W.2d 138, 142-43 (Neb. 1997); Boss v. Filmore Sch.
Dist. No. 19, 559 N.W.2d 448, 452-53 (Neb. 1997). Her state court appeal would
have been limited to the record made before the school board, id., which, of course,
because she completely failed to complain about it, contained not a whiff of sex
discrimination at play.

After a thorough review of the record, I find no evidence that the board's review
was either perfunctory or pro forma, but rather it was a thorough review, conducted by
independently elected school board members conscientiously discharging their statutory
duty to adjudicate the issue set before them, with no taint of gender bias. In my view,
the admittedly full and fair adjudicatory hearing by independent fact-finders who
possessed no personal bias (let alone a sex-based one) and who had an opportunity to
hear all sides of the termination issues, served to break any causal connection between
the alleged underlying sex-based bias of the two top administrators and the final
decision. Here, because there was no evidence of "rubber stamping" there can be no
"cat's pawing." "The evidence in this case unequivocally shows that the board made
an independent determination as to whether [Kramer]

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should be terminated and did not serve merely as a conduit for the desires of school
administrators. [Kramer's] 'cat's paw' theory must therefore fail." Lacks, 147 F.3d at
725. Our recent precedent in Lacks demands that we set aside the jury's verdict. In my
view, "the exhaustive hearing given [Kramer] by the board leave[s] no room for anyone
reasonably to conclude that [Kramer] was [terminated] because of her [gender]." Id.
at 726. I respectfully dissent.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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