advancing "arguments in support of [plaintiff's] contention that ... court erred in concluding that her unfavorable job evaluations were not motivated by a discriminatory or retaliatory intent"
How later courts described this case
- advancing "arguments in support of [plaintiff's] contention that ... court erred in concluding that her unfavorable job evaluations were not motivated by a discriminatory or retaliatory intent"
- “The defendant can produce its legitimate [nondiscriminatory] reason during the plaintiff’s case either through adverse witnesses, express statements by the plaintiff, or documentary evidence.”
- transcript of school board hearing admissible to show non-renewal motive and intent
- describing plaintiffs burden of proving discriminatory intent in failure to renew contract case
Written by the judges who cited it.
The opinion
RUBIN, Circuit Judge,
dissenting:
The majority reviews the record fairly and comprehensively. They and I agree that, as they say in part IV of the majority opinion, the trial court erred when it did not disclose what Ms. McDaniel’s attorney said about her in chambers. The majority concludes that this was harmless error, finding “no reason to believe that the trial judge was prejudiced” or that Ms. McDaniel’s choice of counsel would have been different. I respectfully dissent from this conclusion. Ms. McDaniel’s rights were substantially affected because she was required to proceed unaware of her attorney’s aspersions and because the judge did not disqualify himself.
Would any of us, judges or lawyers, experienced in the ways of the courtroom, consent to a trial before a jury who had heard our attorney say of us what Ms. McDaniel’s attorney said of her: she had “perjured herself very severely during her deposition;” she “is changing her testimony minute by minute;” “her mental condition is deteriorating very rapidly;” “no one seems to have the same recollection of events as my client, including me;” and that Ms. McDaniel’s E.E.O.C. attorney was present “to take the stand and impeach her if I call him?” Would any of us elect to be represented by a lawyer who had such an opinion of his client and her cause?
The questions are rhetorical because, to me, the answer to both is obvious. None of us would trust the jury to erase these words from memory and fairly assess our case. None of us would willingly proceed with a lawyer who is simply going through the motions of advocacy. The circumstances here are worse than my example in two respects: The judge who acted as the finder of fact presumably placed confidence in Ms. McDaniel’s attorney because he had himself appointed her. Second, Ms. McDaniel was the sole witness. The entire case hung on the credibility of her testimony.
I do not imply that Ms. Dasher, Ms. McDaniel’s lawyer, should have condoned what she believed to be perjury or that, having once failed in an effort to withdraw, she should not have impressed on the trial judge the reasons why she could not in good conscience continue as advocate. 1 She should not, however, have breached her duty of loyal representation to her *1352 client by an in-chambers communication to the judge 2 and the court should not have compounded her error by refusing to relieve Ms. Dasher of her court appointment. This was not a criminal case, and there was no speedy-trial imperative, nor was there any hint of contrivance by either client or lawyer to obtain a delay not otherwise available.
Bells cannot be unrung. Tolstoy could not stand in the corner and forget the white bear — even though it was imaginary. 3 Ms. McDaniel was stigmatized by private testimony unconstrained by the rules of evidence and untempered by cross examination. 4 If not ineradicable from the judge’s mind, this created, at least, a situation in which the judge’s impartiality might reasonably have been questioned. 5
The standard for judicial disqualification is whether a reasonable person, knowing all the circumstances, and “under a realistic appraisal of psychological tendencies and human weakness” 6 would harbor doubt about the trial judge’s impartiality. 7 Public respect for the legal system, as Congress and the courts have recognized, depends not only on doing justice, but also on demonstrating that the system operates fairly. 8
Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
[Our] stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way “justice must satisfy the appearance of justice.” 9
Even if I am incorrect in believing that Ms. McDaniel was prejudiced in having her case decided by a trier of fact who had received information outside the record, I do not agree that the harmless error rule should be applied. The issue is not whether she was in fact damaged but whether she or any other litigant would believe that, under the circumstances, a fair trial was possible. The appearance of prejudice is in itself a blight on the trial of a case that warrants a new trial, even if we were persuaded that the case would have come out no differently.
After hearing Ms. Dasher in chambers, the judge should have disqualified himself.
*1353 If he did not do so, he should at least have given Mrs. McDaniel all the information that might reasonably have influenced her choice to proceed, either pro se or represented by the attorney who had damned both her and her case. Judicial case management, avoidance of delay, and denial of unjustified continuances are all commendable. They are, however, only means to an end. That end is justice; justice done and perceived to be done. However highly motivated the able trial judge may have been, it is not only Ms. McDaniel who suffers from what was done here. The splendor of justice is tarnished.
. Cf. Whiteside v. Scurr, 744 F.2d 1323, 1326-29 (8th Cir.1984), cert. granted sub nom. Nix v. Whiteside, — U.S. -, 105 S.Ct. 2016 , 85 L.Ed.2d 298 (1985).
. Whiteside v. Scurr, 750 F.2d 713, 714 (8th Cir. 1984) (denial of rehearing en banc), cert. granted sub nom. Nix v. Whiteside, -— U.S.-, 105 S.Ct. 2016 , 85 L.Ed.2d 298 (1985).
. When Leo Tolstoy was a child, his older brother taught him that he would be permitted up an imaginary mountain only on certain conditions:
These were: first, stand in the corner and not think about a white bear. I remember how I stood in the corner and tried and tried, but could not possibly keep from thinking of a white bear____
A. Tolstoy, A Life of My Father, 17-18 (1953).
. Cf. In re Murchison, 349 U.S. 133, 138 , 75 S.Ct. 623, 626 , 99 L.Ed. 942, 947 (1955); Price Brothers Co. v. Philadelphia Gear Corp., 629 F.2d 444 (6th Cir.1980), cert. denied, 454 U.S. 1099 , 102 S.Ct. 674 , 70 L.Ed.2d 641 (1981).
. 28 U.S.C. 455 provides, in part:
. Withrow v. Larkin, 421 U.S. 35, 47 , 95 S.Ct. 1456, 1464 , 43 L.Ed.2d 712, 724 (1975); Dyas v. Lockhart, 705 F.2d 993, 996-97 (8th Cir.), cert. denied, — U.S.-, 104 S.Ct. 424 , 78 L.Ed.2d 359 (1983).
. Chitamacha Tribe of Louisiana v. Harry L. Laws Co., 690 F.2d 1157, 1165 (5th Cir.1982), cert. denied, — U.S. -, 104 S.Ct. 69 , 78 L.Ed.2d 83 (1983); Parliament Insurance Co. v. Hanson, 676 F.2d 1069, 1075 (5th Cir.1982); Potashnick v. Port City Construction Co., 609 F.2d 1101, 1111 (5th Cir.), cert. denied, 449 U.S. 820 , 101 S.Ct. 78 , 66 L.Ed.2d 22 (1980); Fredonia Broadcasting Corp., Inc. v. RCA Corp., 569 F.2d 251, 257 (5th Cir.1978), cert. denied, 439 U.S. 859 , 99 S.Ct. 177 , 58 L.Ed.2d 167 (1978).
. SCA Services v. Morgan, 557 F.2d 110, 113 (7th Cir.1977); Hearings on S. 1064 Before the Subcommittee on Improvements in Judicial Machinery of the Senate Committee on the Judiciary, 93d Cong., 1st Sess. (July, 1971-May, 1973) at 95; 13A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3541 (2d ed. 1984); Note, Disqualification of Judges & Justices in the Federal Courts, 86 Harv.L.Rev. 736 (1973).
. In re Murchison, 349 U.S. 133, 136 , 75 S.Ct. 623, 625 , 99 L.Ed. 942, 946 (1955) (quoting Offutt v. United States, 348 U.S. 11, 14 , 75 S.Ct. 11, 13 , 99 L.Ed. 11 (1954)).