Teresa Manning v. Carolyn Jones , 875 F.3d 408 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-1406
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Teresa Manning, formerly known as Teresa R. Wagner
lllllllllllllllllllll Plaintiff - Appellant
v.
Carolyn Jones, Dean, Iowa College of Law (in her official and individual capacities)
lllllllllllllllllllll Defendant - Appellee
Gail B. Agrawal, Dean, Iowa College of Law (in her official and individual capacities)
lllllllllllllllllllll Defendant
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Appeal from United States District Court
for the Southern District of Iowa - Davenport
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Submitted: September 20, 2017
Filed: November 7, 2017
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Before LOKEN, ARNOLD, and SHEPHERD, Circuit Judges.
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ARNOLD, Circuit Judge.
Teresa Manning repeatedly applied without success to teach legal analysis and
writing at the University of Iowa College of Law. She contends that, during the
process attending her first application, an associate dean advised her not to tell the
faculty, only one of whom was a registered Republican, that a conservative law
school had once offered her a full-time teaching position. Manning's résumé,
meanwhile, made plain her affiliation with conservative groups. Claiming that the
dean of the College of Law had rejected her applications due to political
discrimination in violation of the First Amendment, Manning sued the dean under 42
U.S.C § 1983.
This is our third pass at this case. See Wagner v. Jones, 664 F.3d 259 (8th Cir.
2011) (Wagner I); Wagner v. Jones, 758 F.3d 1030 (8th Cir. 2014) (Wagner II). After
the second remand, Manning proceeded to trial before a jury, where the dean
defended herself by asserting, among other things, that Manning's applications had
been rejected on their merits. The jury found that Manning did not establish that the
dean had discriminated against her on the basis of her politics, and the district court1
denied her motion for a new trial. On appeal, Manning contests only the denial of her
new-trial motion, and we affirm.
The routine failure of the appellant's main brief to cite the "parts of the record
on which [she] relies," see Fed. R. App. P. 28(a)(8)(A), has considerably hampered
our review of this case. We cannot tell whether the district court erred in a ruling if
Manning does not direct us to a place in the record where we can find it, and so we
consider only those contentions that include appropriate citations. ASARCO, LLC v.
Union Pac. R.R. Co., 762 F.3d 744, 753 (8th Cir. 2014). We review the denial of a
motion for a new trial for a clear abuse of discretion, with the key question being
whether a new trial is necessary to prevent a miscarriage of justice. Dindinger v.
Allsteel, Inc., 853 F.3d 414, 421 (8th Cir. 2017).
1
The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa.
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Manning maintains that the district court misled the jury in its initial
instructions when, in summarizing the case, it stated that the dean was going to argue
that she was "obliged" to follow the faculty's hiring recommendation. Since Manning
does not tell us where we can find the contested instruction in the record, we do not
consider her argument. She maintains as well that the district court compounded its
error when it did not cure it in its final instructions, but since we have declined to
consider whether the initial instruction was error, we can hardly hold that the failure
to correct that instruction was error. Cf. United States v. York, 830 F.2d 885, 889–90
(8th Cir. 1987) (per curiam). To the extent that Manning argues that the final
instruction was erroneous, she neither quotes the language of that instruction, nor
directs us to a place in the record it can be found. So we do not consider this
argument, either.
We consider next Manning's assertion that the district court erred in ruling that
the dean could argue that she was not ultimately responsible for the law school's
hiring. According to Manning, the dean should have been barred from making that
argument because during the oral argument of the second appeal the dean supposedly
made a binding judicial admission of her responsibility, and because we decided the
fact of her responsibility in our opinion resolving that appeal. Even if we were to
construe this contention as directed at the denial of her new-trial motion, Manning
does not identify where in the record the district court's ruling or rulings took place.
So we decline to address her contention.
Were we to address the contention, it would still fail. Although the parties seem
to agree generally on the wording of the alleged admission, their minimalist sketch
of the circumstances in which it was made won't allow us to find that it had the
formality or the conclusiveness that Manning ascribes to it. Cf. Bannister v. Delo, 100
F.3d 610, 622 n.12 (8th Cir. 1996). In deciding the second appeal, moreover, we
could hardly have intended to usurp the jury's right to determine the factual issue of
the dean's responsibility. We did indeed say that "[t]he record establishes that
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although the College of Law uses a multifaceted process for receiving advice and
consent from relevantly involved faculty and staff, . . . the Dean has final authority
and responsibility for the exercise of the College's employment actions." Wagner II,
758 F.3d at 1032 n.1. But that statement was dictum only. The extent of the dean's
authority was never in issue in that appeal, and, as we noted in deciding the first
appeal, whether the dean "had the ability to hire [Manning] absent the faculty's vote
is a genuine issue of material fact that the jury, not the court, should decide."
Wagner I, 664 F.3d at 274–75.
Manning also maintains that she was entitled to judgment as a matter of law on
her discrimination claim. But she did not raise this argument in her new-trial motion,
and the district court did not decide it in denying the motion. Since Manning has
appealed only the district court's denial of her motion, not the judgment entered upon
the jury's verdict, we lack jurisdiction to hear this argument. See Rosillo v. Holten,
817 F.3d 595, 597 (8th Cir. 2016).
Manning challenges the district court's decision not to admit the dean's salary
into evidence. Since Manning fails to tell us where the salary information and the
decision as to its admissibility can be found in the record, we decline to address the
issue. Her challenge to the district court's ruling not to admit an e-mail into evidence
fares slightly better because she points us to the place in the record where the e-mail
and the ruling can be found. But we do not have jurisdiction to decide this matter
because Manning did not raise it in her new-trial motion, and the district court did not
decide it in denying the motion. See Rosillo, 817 F.3d at 597.
A final assignment of error takes issue with the district court's decision not to
instruct the jury on punitive damages. The issue is moot in light of the jury's verdict.
See Landscape Props., Inc. v. Vogel, 46 F.3d 1416, 1426 (8th Cir. 1995).
Affirmed.
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