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Eisenhour v. Weber County

United States Court of Appeals, Tenth Circuit

July 27, 2018

MARCIA EISENHOUR, Plaintiff - Appellant,
v.
WEBER COUNTY, a political subdivision of the State of Utah; CRAIG D. STOREY; CRAIG DEARDON; KENNETH BISCHOFF; JAN ZOGMAISTER, in their official and individual capacities, Defendants - Appellees. MARCIA EISENHOUR, Plaintiff - Appellee,
v.
CRAIG D. STOREY, Defendant-Appellant, and WEBER COUNTY, a political subdivision of the State of Utah; CRAIG DEARDON; KENNETH BISCHOFF; JAN ZOGMAISTER, in their individual and official capacities, Defendants.

          Appeal from the United States District Court for the District of Utah (D.C. No. 1:10-CV-00022-CW)

          April Hollingsworth, Hollingsworth Law Office, LLC, Salt Lake City, Utah for Plaintiff-Appellant.

          Susan Black Dunn, Dunn & Dunn, P.C., Salt Lake City, Utah, for Defendant-Appellees (W. Lewis Black, Dunn & Dunn, P.C., Salt Lake City, Utah, on the briefs)

          Linette Bailey Hutton, Hutton Law Associates, Salt Lake City, Utah for Defendant-Appellee, Craig D. Storey.

          Before BRISCOE, EBEL, and HARTZ, Circuit Judges.

          HARTZ, CIRCUIT JUDGE.

         Plaintiff Marcia Eisenhour worked for 24 years as a court administrator for the Weber County Justice Court. In 2008, when her supervisor was Judge Craig Storey, the only judge of that court, she complained to the county attorney about sexual harassment by Storey. The matter was referred to Utah's Judicial Conduct Commission, which found no misconduct. Eisenhour then went public in 2009, and the press reported her allegations. Several months later, three Weber County Commissioners-defendants Craig Deardon, Kenneth Bischoff, and Jan Zogmaister-voted to close the Justice Court and merge it with a similar court in another county. This eventually left Eisenhour without a job.

         Eisenhour sued Storey, Weber County, and the three commissioners who voted to close the Justice Court, raising a variety of claims. The district court granted summary judgment against Eisenhour on all claims, and she appealed. This court reversed in part. Relevant to this appeal, we held that Eisenhour had presented enough evidence to support (1) her claim under § 1983 against Storey for sexually harassing her in violation of her right to equal protection and (2) her claim against the County and the three commissioners under 42 U.S.C. § 1983, alleging that they retaliated against her for exercising her First Amendment free-speech rights by closing the Justice Court and depriving her of a job. See Eisenhour v. Weber Cty., 744 F.3d 1220, 1235-36 (10th Cir. 2014). We also remanded for trial her claim under the Utah Whistleblower Act against the County (there was no whistleblower claim against the commissioners), see id., but no issues relating to that claim are raised on this appeal.

         At the trial on the remanded claims, the jury rendered verdicts for Eisenhour on the equal-protection harassment claim against Storey and the whistleblower claim against the County but found against her on the First Amendment retaliation claims against the County and the commissioners. The district court then granted a motion by the County for a new trial on the whistleblower claim, and it sua sponte ordered a new trial on the retaliation claims against the County and the commissioners. At the retrial on those claims the court granted the commissioners' motion for judgment as a matter of law under Fed.R.Civ.P. 50(b) on the retaliation claim against them, and the jury found for the County on the whistleblower and retaliation claims against it.

         After Eisenhour and Storey appealed, we consolidated the two appeals for decision. Storey raises two issues on appeal: (1) the denial of his motion for judgment as a matter of law because the evidence against him was insufficient, and (2) the admission into evidence of a poem he had written concerning Eisenhour. Eisenhour raises three contentions with respect to the judgments in favor of the County and the commissioners: (1) the judge who presided at the first trial should have recused himself after the jury rendered its verdict in that trial, (2) her second trial was unfair because of the district court's evidentiary rulings, and (3) at the second trial the district court should not have granted the commissioners a judgment as a matter of law but should have let the claim go to the jury. With respect to her claims against Storey, she contends that the district court should not have set aside the jury's assessment of economic damages against Storey for the loss of her job and should not have dismissed her punitive-damages claim. We reject all challenges by both parties except the dismissal of the punitive-damages claim.

         I. STOREY'S APPEAL

         A. Sufficiency of Evidence of Equal-Protection Claim

         The jury at the first trial rendered a verdict in favor of Eisenhour on her sexual-harassment equal-protection claim against Storey. He unsuccessfully moved for judgment as a matter of law. He now appeals the denial of that motion, contending that there was insufficient evidence to establish that his conduct was "severe or pervasive enough to create an objectively hostile or abusive work environment." Storey 1st Br. at 21. In his view, "The evidence shows that no other employee of the Justice Court found any conduct attributable to [him] severe, pervasive, humiliating, physically threatening, hostile or abusive." Id. at 22. "Rather," he argues, "the witnesses found it was . . . Eisenhour's conduct that created a hostile and abusive work environment." Id.

          For us to adopt this argument, however, we would have to disregard Eisenhour's testimony. She testified as follows: Storey's harassment began when he handed her, albeit for the purported purpose of filing, the erotic poem that he wrote about her. His misconduct escalated after that point and he began making physical contact with her. He would either come up behind her when she was sitting at her desk and press his groin into the back of her head or come up to her at the front counter and stand close enough that his groin touched her thighs. On one occasion Storey had her come into his office and he proceeded to tell her about a dream of his in which she was at work naked from the waist up. In addition, Storey, who served as her direct supervisor, became possessive of her after learning that she and her husband had separated. He began asking her co-employees about her activities and began placing restrictions on when she could use leave time (that is, only after informing him where she intended to go, whom she intended to go with, and what she intended to do).

         Storey asserts that it was Eisenhour who created a hostile or abusive environment. In support of this assertion, he cites only to the testimony of Eisenhour's co-worker Amanda Shipley, who testified about the atmosphere in the office. But the office atmosphere in general has little to do with how Storey treated Eisenhower. And in any event, a review of Shipley's testimony reveals that her complaints about the working environment all appear to postdate Storey's harassment of Eisenhour and virtually all relate to the period after Eisenhour complained to County officials about Storey's conduct and County officials took steps to minimize the contact between Eisenhour and Storey. Thus, contrary to establishing that it was Eisenhour who created a hostile or abusive working environment, Shipley's testimony indicates that it was Storey's conduct, and the County's response to it, that caused the difficult working environment for the other employees of the Justice Court.

         Considering the evidence as a whole, the jury could have reasonably found, and indeed did find, that Storey's actions created an objectively hostile or abusive working environment for Eisenhour.

         B. Admission of Storey's Poem Into Evidence

         Storey's other argument on appeal is that the district court erred in admitting his poem about Eisenhour into evidence. He argues (1) that the poem was irrelevant to Eisenhour's claims; (2) that there was insufficient evidence to support the district court's finding that Eisenhour discovered the poem in 2007 (we will discuss why the timing matters below); and (3) that Federal Rule of Evidence 403 barred admission of the poem because of its potential to cause unfair prejudice.

         These challenges to admission of the poem may well be barred under the law-of-the-case doctrine because this court implicitly ruled in the first appeal that the poem was relevant when we relied in part on the poem to hold that there was sufficient evidence to support Eisenhour's claim.

         In any event, admission of the poem was not reversible error. We review decisions to admit evidence for abuse of discretion. See United States v. Boeing Co., 825 F.3d 1138, 1145 (10th Cir. 2016). "Under this standard, we will not reverse unless the district court's decision exceeded the bounds of permissible choice in the circumstances or was arbitrary, capricious or whimsical." Id. (internal quotation marks omitted).

         Storey's first point is mistaken; the poem was relevant. He suggests that "there is absolutely no evidence that [the poem] was intended to harass or discriminate against [Eisenhour]." Storey 1st Br. at 16. But it reveals Storey's strong sexual feelings toward her, which could provide a motive for his conduct, ...


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