Lana Rakow v. State of ND

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 98-3503
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Lana Rakow, *
*
Appellant, *
*
v. *
*
State of North Dakota, by and through *
the State Board of Higher Education; *
Kendall Baker, individually, and in his * Appeal from the United States
official capacity as President of the * District Court for the District
University of North Dakota; Marlene * of North Dakota.
Strathe, individually, and in her official *
capacity as Vice President of Academic * [UNPUBLISHED]
Affairs and Provost of the University of *
North Dakota; Bruce Jacobsen, *
individually, and in his official capacity *
as Dean of the College of Fine Arts and *
Communication at the University of *
North Dakota, *
*
Appellees. *
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Submitted: February 17, 2000
Filed: February 24, 2000
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Before McMILLIAN and FAGG, Circuit Judges, and KYLE,* District Judge.
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PER CURIAM.
In 1994, the University of North Dakota hired Lana Rakow as a tenured faculty
member in the School of Communication and also gave Rakow administrative
responsibilities as the Director of the School of Communication and as Associate Dean
of the College of Fine Arts and Communication. In October 1995, Rakow met with
two senior administrators, who notified Rakow of deficiencies in her administrative
performance. When Rakow's performance did not improve, the University removed
Rakow from her positions as Director and Associate Dean. Rakow remained a tenured
faculty member in the School of Communication. Rakow then filed this lawsuit against
the State of North Dakota and various University of North Dakota administrators
(collectively, the University). The district court dismissed some claims on pretrial and
posttrial motions and submitted the remaining claims to the jury, which returned a
verdict for the University. Rakow appeals.
Rakow first contends the district court committed error in dismissing her breach
of contract claims because Rakow sought only prospective injunctive relief as her
remedy. We disagree. As the district court properly concluded, Rakow's claims are
barred by the Eleventh Amendment, which prohibits federal courts from hearing suits
against states and state officers in their official capacities when, as in this case, the suit
alleges a violation of state law and regardless of whether money damages or injunctive
relief is sought. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106
(1984); Dover Elevator Co. v. Arkansas State Univ., 64 F.3d 442, 446-47 (8th Cir.
1995).
*
The Honorable Richard H. Kyle, United States District Judge for the District of
Minnesota, sitting by designation.
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Rakow also claims the district court improperly granted the University's motion
for judgment as a matter of law at the close of evidence on Rakow's claim that the
University violated her procedural due process rights. Specifically, Rakow argues she
had a protected property interest in her administrative positions because these positions
were tenured. Again, we disagree. Rakow received a preprinted form contract which
informed her of her "appointment as Professor of Communication and Director of [the]
School of Communication" and included a check mark beside "tenured." The form
contract also provided that "[o]ther responsibilities, if any, specific to your appointment
are indicated in the enclosed letter of understanding." The University's letter of
understanding offered Rakow a "[f]ull time tenured position as Professor of
Communication with an initial appointment as Director of the School of
Communication [and] [t]he position as Associate Dean of the College of Fine Arts and
Communication," specified that Rakow was "appointed to a three year term as
Director," and informed Rakow that "Associate Deans have no specific term, but rather
serve at the pleasure of the Dean." The North Dakota State Board of Higher Education
Policy Manual (Policy Manual) is part of Rakow's employment contract, see Hom v.
State, 459 N.W.2d 823, 824 (N.D. 1990), and also specified that "[t]enure shall not
extend to an administrative position," Policy Manual, § 605(A)(1)(d). Thus, the terms
of Rakow's employment contract establish that Rakow did not have tenure in her
administrative positions. See Board of Regents v. Roth, 408 U.S. 564, 578 (1972).
Instead, Rakow's employment as Associate Dean was at will, which does not implicate
a protected property interest. See id. Rakow did have a three-year contract as
Director, but because Rakow conceded the University paid her full salary as Director
throughout the remainder of her three-year term, "any constitutionally protected
property interest [Rakow] had as a result of [her] employment contract has been
satisfied by payment of the full compensation due under the contract." Royster v.
Board of Trustees, 774 F.2d 618, 621 (4th Cir. 1985). The district court properly
granted the University's motion for judgment as a matter of law on Rakow's due
process claims.
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We also reject Rakow's meritless contention that the district court abused its
discretion by refusing to instruct the jury on the proper use of after-acquired evidence
under McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352, 362-63 (1995).
Several faculty members testified about problems they had with Rakow, arising both
before and after she was removed from her administrative positions. The
administration did not learn of these disputes until after Rakow was no longer the
Director or Associate Dean and so could not have considered them in removing Rakow
from her administrative posts. The University, however, did not offer this testimony
to justify Rakow's removal from her administrative positions, but instead offered it to
rebut Rakow's claims that the faculty respected and supported her as an administrator.
Thus, the testimony was not after-acquired evidence within the meaning of McKennon,
and the district court did not abuse its discretion by refusing to give the requested
instruction. See Wolfe v. Gilmour Mfg. Co., 143 F.3d 1122, 1125 (8th Cir. 1998).
Finally, Rakow challenges the sufficiency of the evidence supporting the jury's
verdict for the University on Rakow's Title VII retaliation claims. Because Rakow
failed to move for judgment as a matter of law on these claims at the close of evidence,
she cannot now argue that the verdict was supported by insufficient evidence.
See Pulla v. Amoco Oil Co., 72 F.3d 648, 655 (8th Cir. 1995).
We affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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