Humphries v. Pulaski County Special School District

Filing 228

ORDER granting in part and denying in part 213 the District's motion for judgment as a matter of law or a new trial; and, denying Dr. Humphries' 217 motion to amend. Signed by Judge D. P. Marshall Jr. on 4/28/2011. (dmn)

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

DONNA HUMPHRIES

v.

PLAINTIFF

Case No. 4:06-cv-606-DPM

PULASKI COUNTY SPECIAL
SCHOOL DISTRICT

DEFENDANT

ORDER
The jury's verdict on Dr. Humphries's breach-of-contract and § 1981/
§ 1983 discrimination claims has raised several issues for decision.

The Pending Issues
First, the Court took under advisement the District's timely Rule 50
motion for judgment as a matter of law on Dr. Humphries's contract claim
and her stand-alone discrimination claim - her claim alleging race
discrimination apart from the District's affirmative action policies. The Court
twice denied the District's motion on Dr. Humphries's discrimination claim
based on the District's affirmative action policies. The District has renewed
two-thirds of its motion in a post-trial filing, Document No. 213, which also
seeks a new trial in the alternative. The District has not added to its argument

at trial for judgment as a matter of law on the stand-alone discrimination
claim.
Second, the Court asked the parties to brief the effect of the jury's
verdict on the pending validity issue.

The Court had ruled, with

encouragement from the parties, that the validity of the District's affirmative
action policies was a question of law. Setser v. Novack Inv. Co., 657 F.2d 962,
969 (8th Cir. 1981), cert. denied, 454 U.S. 1064 (1981). Further, to avoid
confusing the jury and prejudicing either party, the Court ruled that the
disputed facts about validity would be tried to the bench. The Court held that
part of the trial during two days in late August.

At the end of those

proceedings, the Court left the record open on validity so that it could
consider any proof relevant to validity that came in during the jury phase, as
well take any additional proof outside the jury's presence. In the event, after
he testified for the jury, Dr. David Sharp (Humphries's expert) gave the Court
alone some expert testimony about his statistical analysis of the District's
policies and hiring patterns. And the parties have now filed helpful briefs
about the verdict's impact on the validity issue.
Third, and relatedly, after the jury phase Dr. Humphries moved to
amend her complaint again. Document No. 217. She says:

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If, and to the extent Plaintiff's pending Amended and
Supplemental Complaint falls short of explicitly asserting a claim
that [P]laintiff will suffer the inability to compete for
administrative positions on the same footing as black applicants
in the future as a result of the District's affirmative action policies,
Plaintiff requests leave to amend her complaint to make that
claim explicit as the issues were tried by consent or over the
objection of the District.

Document No. 217, at 1. The District opposes the proposed amendment. It
argues, in essence, that the prospective-application issue was neither pleaded
nor tried and that the amendment is really about pressing forward on the
validity issue notwithstanding the jury's verdict.
Judgment as a Matter of Law
1.

To the extent the issue is not mooted by the jury's verdict, the

Court denies the District's motion for judgment on Dr. Humphries's
discrimination claim based on the District's affirmative action policies. A
reasonable jury could have found for or against the District on this claim
based on the extensive record made before the jury at trial.

FED.

R. ClV. P.

50(b)(3).
2.

Dr. Humphries's stand-alone race discrimination claim is in a

peculiar posture. Under the agreed interrogatories, this issue was submitted
to the jury as an alternative to Dr. Humphries's policies-based discrimination
claim. Document No. 209, Interrogatories Nos. 1 & 2. The jury concluded that
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race through the District's affirmative action policies was a motivating factor

in the District's decision not to promote Dr. Humphries. The jury's "yes"
answer to Interrogatory No.1 sent it to Interrogatory No.3, which asked
whether the District would have made the same decision apart from race. The
jury answered "yes" to this interrogatory too.
The Court concludes two things here. First, the jury's verdict moots the
District's motion for judgment because there was no finding for Dr.
Humphries on the stand-alone race claim.

The parties and the Court

agreed - either with intention or by oversight- to the alternative submission
of the two race claims. And the jury's "yes" answer for Dr. Humphries on the
policies-based Interrogatory No.1 ended its consideration of the other claim
and implicitly decided that claim for the District. Finally, neither party asked
to send the jury back for more deliberations to clarify this issue after the
verdict was published. On this analysis, the District's motion for judgment
made at the trial on the stand-alone race claim is denied as moot because the
District has prevailed on this claim.
Second, any error in the alternative submission, plain or otherwise, was
harmless. As the Court noted tentatively at trial, there was insufficient
evidence to support a verdict that race-apart from the affirmative action

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policies - played any part in the District's promotion decisions. It was all
about the policies - that was the thrust and strength of Dr. Humphries's case.
Witness Lou Jackson, a member of one or more of the interview committees,
did acknowledge her deposition testimony that race played a part in her
ranking of promotion candidates. But her testimony as a whole, and the
testimony of every other witness on this point, made it clear that race came
into the promotion process only through the District's affirmative action
policies for staffing decisions, not as a separate motivating factor. There
simply was no proof that racial considerations apart from the policies, or
racial animus of any kind, was in play.

Therefore, to the extent Dr.

Humphries's stand-alone race claim survived the verdict, the Court grants the
District judgment as a matter of law on it.
3.

FED.

R. ClV. P. 50(b)(3).

Dr. Humphries claimed a breach of this provision of her contract

with the District: "Priority consideration will be given to qualified internal
applicants for vacant administrative positions before the District employs an
external applicant." Plaintiffs Exhibit 8, at § 9A. The Court ruled that the term
II

priority consideration" was ambiguous; it could mean a variety of things to

reasonable people. And believing that the term's meaning depended on
disputed extrinsic evidence - for

example,

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the

parties'

course

of

performance - the Court left the ambiguity for the jury to resolve at trial as a

threshold issue on Dr. Humphries's breach claim. Smith v. Prudential Property
and Casualty Ins. Co., 340 Ark. 335, 340-41, 10 S.W.3d 846, 851 (2000). The

Court, with the parties' approval, gave standard instructions about the means
for ascertaining the parties' intent in the contested term. Instructions No.
18-23.
Dr. Humphries's contract claim boiled down to the final element
because the others were essentially undisputed. Instruction Nos. 16 & 17. That
final element was whether she proved" that the District did not give'priority
consideration' to Dr. Humphries's applications for promotion. III The jury
answered "yes" to the breach interrogatory, and awarded Dr. Humphries
$63,244.00 in damages.
The Court grants the District's motion for judgment as a matter of law
on the contract claim. As it turned out, the extrinsic proof about the parties'
Instruction No. 16 provided:
Dr. Humphries claims that the District breached its contract with
her and has the burden of proving each of four essential
propositions: First, that Dr. Humphries and the District entered
into a contract; Second, that the contract required the District to
give "priority consideration" to Dr. Humphries's applications for
promotion; Third, that Dr. Humphries did what the contract
required of her; and Fourth, that the District did not give "priority
consideration" to Dr. Humphries's applications for promotion.
I

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contract was not disputed. Therefore the construction and legal effect of the

ambiguous term" priority consideration" was a matter of law for the Court,
not of fact for the jury. Smith, 340 Ark. at 340-41, 10 S.W.3d at 850.
This ambiguous term is part of the Professional Negotiations
Agreement between the District and The Pulaski Association of Classroom
Teachers. Without objection, Dr. Humphries introduced an excerpt from the
Agreement that included the" priority consideration" term. Plaintiff's Exhibits
8 & 9. 2 In her testimony, she pointed out the contested term and another term
about "Promotion with Supplemental Contract." Plaintiffs Exhibit 8, at § 8B.
This other term contains an explicit tiebreaker: "when it is determined that a
tie exists with regard to the selection of the most qualified candidate, then
seniority shall be the determining factor." Dr. Humphries testified that this
term shows that the parties knew how to write a tie-breaking provision if they
intended to do so. Dr. Humphries did not testify, however, about what she
thought the "priority consideration" term meant or required of the District,
how the District had implemented the term, or other internal applicants'
experience with it. She offered no evidence on these issues.
There were actually two excerpts, one from the 2000-2003

Agreement and one from the 2003-2006 Agreement. They are identical in

all material respects.

2

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The District's witnesses spoke as one on the" priority consideration"
term. Every witness who gave evidence on this point testified that the term
was a tiebreaker: if an external applicant and an internal applicant tied at the
end of the selection process, then the internal applicant got the job.
The record simply does not contain any disputed extrinsic evidence on
the contract claim. The District's testimony about the meaning of "priority
consideration" was not contradicted. There was no testimony that the term
had meant different things at different times. There was no testimony about
varying customs in the education field ascribing different meanings to the
term. Dr. Humphries's testimony pointing to another promotion term of the
contract, while relevant to the contested term's meaning, does not create a
dispute in the extrinsic evidence either. The words are what they are. Of
course the two parts of the whole should be construed in light of one another.

Smith v. Southern Farm Bureau Casualty Ins. Co., 353 Ark. 188, 192, 114 S.W.3d
205,207 (2003). But there was no dispute that this was the parties' contract;
indeed Dr. Humphries and the District stipulated to the contract's existence,
and the Court so instructed the jury. Instruction No. 17.
In the absence of disputed extrinsic evidence, the meanIng of the
ambiguous term"priority consideration" is a question of law for the Court.

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Smith, 340 Ark. at 340-41, 10 S.W.3d at 850. And on the record presented to
the jury, the District is entitled to judgment as a matter of law on Dr.
Humphries's contract claim for two reasons. FED. R. ClV. P. 50(b)(3).
First, considering all things material to discerning the meaning of the
ambiguous" priority consideration" term, the Court concludes that it creates
a tiebreaker as the District argues. There was no evidence received that the
term had ever operated in any other fashion. This was the unanimous
interpretation of District employees involved in hiring for many years. This
construction does not overlook the other tie-breaker provision.

But

contracting parties are free to express similar notions in different language.
And there is no rule of law requiring imperfect people to be either perfectly
clear or perfectly consistent in their drafting. This agreement, we should not
forget, is between a teacher's union and a school district. Ambiguity has its
uses in reaching consensus in charged relationships like that one. Finally, the
best proof about the term's meaning is in its operation through years and
years of promotion decisions.

There the record is clear: the "priority

consideration" term was a tiebreaker.
Second, Dr. Humphries's argument that the term means some stronger
preference for internal candidates stumbles over the proof. In every instance,

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another internal candidate (and often more than one) was ranked ahead of Dr.

Humphries in the hiring process. On that record, the District did not breach
as to Dr. Humphries-even under her interpretation that the disputed term
was not a tiebreaker-when the District hired an external candidate. As
between two internal candidates the" priority consideration" term has no
work to do; there is no ambiguity on that score.
Dr. Humphries asks the Court to consider a 1994 arbitration decision
involving the District and the teacher's union in construing the contract. The
Court declines to do so. The decision was not admitted into evidence. The
one witness questioned about it (Deborah Coley, who supervised District
promotion decisions for a time) had no knowledge about the decision. In
ruling on the District's motion for judgment, the Court should not expand the
record beyond what the parties presented before resting their case. 9B
CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND
PROCEDURE § 2529 (3d ed. 2008).
4.

The Court sees no legal basis for granting the District's alternative

motion for a new trial on the contract claim. It is denied. If the judgment for
the District on this issue is reversed or vacated, the Court would still deny a
new trial. FED. R. CIV. P. 50(c)(1). Either the Court is right or wrong about the

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contract claim. But whatever happens on that issue, no good reason exists to

try it again.
The Mfirmative Action Policies' Validity
5.

This leaves the validity issues, which the Court let hang fire

pending the jury phase and further proof. Dr. Humphries urges the Court to
decide the validity of the District's affirmative action policies. She argues
primarily from Edwards v. Jewish Hospital of St. Louis, 855 F.2d 1345 (8th Cir.
1988) and standing cases such as Northeastern Florida Chapter of Associated

General Contractors ofAmerica v. City ofJacksonville, Florida, 508 U.S. 656 (1993).
The District contends that the jury's"same decision" verdict should end the
entire case. It stands on Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). And
relying on an opinion from Judge Eisele in a similar lawsuit, Flowers v.

Jefferson Hospital Association, Inc., 1992 U.S. Dist. LEXIS 22923, at *7-*12, the
District says Edwards did not survive Price Waterhouse.
The threshold inquiry is the nature of Dr. Humphries's federal claim.
She challenges the District's affirmative action policies as the vehicle for
unlawful discrimination on the basis of race in promotion decisions. She
alleges that the District's repeated failure to promote her violated "42 U.S.C.
1981 and 1983 by depriving [her] of her equal protection rights under the

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Fourteenth Amendment of the United States Constitution." Document No.

178-2, at ,-r 20; see also ,-r 21. She abandoned her Title VII claim. So as the case
stands, Dr. Humphries's claim is under § 1981/§1983.3
There is a deeper point. The contours of this claim are determined by
§ 1983 precedent, not § 1981 precedent. It is settled law in this Circuit that" a
claim alleging a violation of § 1981 may not be brought directly against a state
actor, but must be brought under § 1983[.]" Lockridge v. Bd. of Trustees of the

University of Arkansas, 315 F.3d 1005, 1007 (8th Cir. 2003) (en bane); see also
Artis v. Francis Howell North Bank Booster Assn., Inc., 161 F.3d 1178, 1181 (8th
Cir. 1998). Thus the difficult and interesting questions about the samedecision defense that would be raised by a pure § 1981 claim against a private
employer - questions implicating Edwards, Price Waterhouse, Flowers, and the
Civil Rights Act of 1991- are not in the case. Instead, the Court must
scrutinize Dr. Humphries's hybrid claim with a § 1983 analysis.
The controlling precedent is Texas v. Lesage, 528 U.s. 18 (1999) (per

curiam). This decision is much applied in other Circuits, though as best the

Dr. Humphries also has a live claim under an unspecified part of
the Arkansas Civil Rights Act. Complaint,-r,-r 27-28. The parties make no
post-trial argument for treating this claim any differently than her § 1981/
§ 1983 claim. The Court concludes that these claims are identical in this
case.
3

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Court can tell the Eighth Circuit has neither cited nor applied it. E.g., Petit v.
City of Chicago, 352 F.3d 1111, 1113 (7th Cir. 2003); Aiken v. Hackett, 281 F.3d

516,519-20 (6th Cir. 2002), cert. denied, 537 U.s. 817 (2002); Donahue v. City of
Boston, 304 F.3d 110, 116-21 (1st Cir. 2002); see generally, 1 SHELDON H.

NAHMOD, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION § 4:10, pp. 4-48-4-52
(4th ed. 2010).
Lesage is a strikingly similar case. After he was denied admission to a

graduate program, while at least one minority applicant was admitted, the
white plaintiff challenged the University of Texas's admission process. The
fact that the University had considered race through an affirmative action
policy in that process was undisputed; here the jury has found that the
District considered race through its affirmative action policies in not
promoting Dr. Humphries.

The University established on summary

judgment that Lesage would not have been admitted in any event; here the
jury has found that the District would not have promoted Dr. Humphries in
any event. Lesage alleged an Equal Protection violation under § 1981/ §1983
and a Title VII violation. 528 U.S. at 19-20. His Equal Protection claim
mirrors Dr. Humphries's remaining claim.

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The Supreme Court's analysis of the same-decision defense was pithy.

The University was entitled to judgment on Lesage's § 1983 action seeking
damages. "Simply put, where a plaintiff challenges a discrete governmental
decision as being based on an impermissible criterion and it is undisputed
that the government would have made the same decision regardless, there is
no cognizable injury warranting relief under § 1983." Lesage, 528 U.S. at 21.
The District stands in the same position as the University. It is therefore
entitled to judgment on all Dr. Humpries's claims for damages based on
nonpromotion, as well as her request for an injunction promoting her and
requiring future promotion.
The Supreme Court was equally clear, however, about claims for
prospective injunctive relief against continuing race-conscious policies. "Of
course, a plaintiff who challenges an ongoing race-conscious program and
seeks forward-looking relief need not affirmatively establish that [s]he would
receive the benefit in question if race were not considered." 528 U.S. at 21. In
that kind of case, the plaintiff is injured by "the inability to compete on an
equal footing." Lesage, 528 U.S. at 21, quoting Northeastern Florida Chapter, 508
U.S. at 666 (1993). Lesage's claim against the University for " maintaining" a
race-conscious admissions program, and his companion request for injunctive

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relief against the program, survived the same-decision defense. 528 U.s. at

21-22. 4
6.

Whether Dr. Humphries has any remaining viable claims thus

comes down to what was pleaded, argued, and tried. Probably recognizing
this, Dr. Humphries moved after trial to amend her complaint again. If her
federal claims are unclear, she says, her proposed pleading specifically alleges
unequal footing (past and future) and the District's continuing violation.
Document No. 217-1, at 'il'il7, 9, 16, 18, 19,20,22, & 28. These issues, she says,

were tried by consent or over the District's objections, and therefore Rule
15(b) allows amendment if need be. The District objects. It first argues that
the proposed amended complaint would be futile. Under Lesage, this is
mistaken. The District also contends these issues were never tried, either by
consent or over objection.
The Court must, and does, liberally construe Dr. Humphries's active
complaint. Bediako v. Stein Mart, Inc., 354 F.3d 835, 839 (8th Cir. 2004). Her
Amended and Supplemental Complaint, Document No. 178-2, is the third

4Lesage's § 1981 claim also survived. In this case that possibility (at

least insofar as Dr. Humphries seeks damages) is foreclosed by Lockridge

and Artis, circuit precedent that binds this Court.

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iteration of Dr. Humphries's claims. Considered as a whole, her pleading is

ambiguous.
Unlike Lesage, Dr. Humphries does not allege that the District is
maintaining the affirmative action policies. 528 U.s. at 21. But of course it is;
and Dr. Humphries alleged (and proved) her repeated and unsuccessful
efforts to get promoted over many years, not a "discrete governmental
decision[.]" Ibid. The District has never disputed, moreover, the existence of
some affirmative action policies. Humphries v. Pulaski County Special School
District, 580 F.3d 688, 693-94. This undisputed fact eliminates any surprise or

uncertainty from Dr. Humphries implying, but not pleading, that the
District's race-conscious policies are on-going.
The ambiguities deepen, however, in her federal claim and her prayer
for relief. Dr. Humphries's § 1981/§ 1983 claim looks backwards: the District
"has unlawfully discriminated" against her by failing to promote her.
Document No. 178-2, at

~~

20-21 (emphasis added); there is no mention of

unequal-footing or an alleged injury that would support enjoining the policies
whether Dr. Humphries would have been promoted or not; there is no
mention of future applications; and there is no mention of a continuing
violation. Ibid. Dr. Humphries's requested relief looks both backward and

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forward. Among other things, she sought:

•

a declaration that the District's"acts complained of herein
violate" her constitutional rights;

•

an order requiring the District to publish the ruling in her
favor to all District hiring personnel and publish that it "has
abandoned" the challenged policies;

•

an injunction against bi-racial committees, some interview
forms, publication of District affirmative action reports or
goals, and consideration of race in hiring and promotions;

•

an injunction requiring consistent rules for getting an
interview, consistent promotional criteria, and individual
interviews;

•

an order requiring the District to promote her now and in
the future;

•

back-pay, front-pay, benefits, compensatory damages for
emotional pain; and

•

attorney's fees and costs.

Document No. 178-2, at 6-8.

This is a mixed bag. It seeks both redress for Dr. Humphries and
change in the District's policies going forward. Prospective injunctive relief
is clearly requested. Like the claims, however, the prayer is silent about Dr.
Humphries's entitlement to prospective injunctive relief no matter whether
her past-promotion claim succeeded or failed.

Dr. Humphries sought

forward-looking relief based on what had happened, not on what was
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happening or what would happen. The asserted injury, in other words, was
complete, not in the offing.
The federal rules require only notice pleading. FED. R. ClV. P. 8(a)(2);

Huggins v. FedEx Ground Package System, Inc., 592 F.3d 853, 862 (8th Cir. 2010).
Liberal construction, however, does not require either the court or the
opposing party"to divine a litigant's intent and create claims that are not
clearly raised." Bediako, 354 F.3d at 840. The parsing needed to discern
exactly what Dr. Humphries was claiming and seeking makes the point.
Liberally construed as a whole, her complaint leans in too many directions to
put everyone on notice Dr. Humphries sought forward-looking injunctive
relief against the District's affirmative action policies whether she prevailed
or not on her failure-to-promote claims.
7.

Should the Court grant Dr. Humphries leave to amend now?

Federal Rule of Civil Procedure 15(b)(2) governs. "When an issue not raised
by the pleadings is tried by the parties' express or implied consent, it must be
treated in all respects as if raised in the pleadings." The timing of any motion
to conform the pleadings based on trial by consent is immaterial. The Rule
expressly allows such a motion" at any time, even after judgment[.]" FED. R.
ClV. P. 15(b)(2). The Rule's purpose "is to ensure that the pleadings do not

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obstruct a court's ability to address the issues that were presented and

defended at trial." South Dakota Farm Bureau, Inc. v. Hazeltine, 340 F.3d 583,
590 (8th Cir. 2003); see also Clark v. Martinez, 295 F.3d 809, 814-16 (8th Cir.
2002) (both sides presented evidence on unpleaded self-defense issue).
The District says that it did not expressly consent to trial of Dr.
Humphries's unequal footing/ on-going violation claim. The Court agrees.
"In order to consent to the trial of an unpleaded issue, a party must have
notice of that issue and must be given an adequate opportunity to cure any
surprise caused by the amendment." Hazeltine, 340 F.3d at 590.
The Court has reviewed its notes from all the hearings and both phases
of the trial. The Court sees no clear statement from the District that it
recognizes the theory as being in the case and has no objection to its
adjudication. Dr. Humphries, according to the Court's notes, did mention this
issue at the August 2010 summary-judgment hearing. During her argument
seeking judgment as a matter of law that the policies were invalid, Dr.
Humphries drew a distinction between relief available on the individual­
hiring issues and relief available if the policies were invalid, which (she said)
did not require an analysis of the hiring decisions. The Court made a note
about being perplexed by this point, but the argument drifted to other

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matters. Dr. Humphries did not elaborate. And the District did not, as best

the Court can remember, respond or agree that forward-looking injunctive
relief remained a live issue whether race decided the promotion issue or not.
The Court has also reviewed the parties' briefs - those on summary
judgment, those related to the various hearings, and those after the bench part
of the case. All these papers are silent on an unequal footing/ on-going
violation theory for injunctive relief even if the District would not have
promoted Dr. Humphries apart from the affirmative action policies. The
Court sees no express consent by the District.
The cases teach that"trial of unpled issues by implied consent is not
lightly to be inferred." Triad Elec. & Controls, Inc. v. Power Sys. Eng'g Inc., 117
F.3d 180, 193 (5th Cir. 1997); see also Hazeltine, 340 F.3d at 590. The standard
is a" demanding" one. 340 F.3d at 590. Dr. Humphries contends that the case
on validity was the case on validity; the injection of her unequal footing/ on­
going violation claim would not change the evidence or the parties' direct and
cross examination of the witnesses; this theory, she continues, is just a specific
variation on legal themes she has long pressed, a more precise legal argument
for why she remains entitled to some relief.

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The Court is not persuaded that this perspective accurately captures the

situation. First, the District was entitled to frame its witness examinations
and its evidence after notice of exactly what Dr. Humphries claimed and what
relief she sought. Bringing a new theory in late eliminates this opportunity.

Hazeltine, 340 F.3d at 590-91.
Second, this case was tried about the past, not the future. In particular,
there was no proof about planned future applications. The Court specifically
recalls that (during the jury phase) Dr. Humphries's lawyer asked her what
position she wanted to be holding in three years or five years. Dr. Humphries
did not answer that question; she made another point instead.

If a

continuing-violation claim was being tried, then the Court would have heard
testimony (at some point) about letters of interest in 2008,2009, and 2010 (and
received those letters into evidence) and heard testimony about Dr.
Humphries's plans to keep applying for promotion. None of that proof was
offered. Compare Clark, 295 F.3d at 814-16. The proof in both phases looked
backward, not forward.
Third, overlap between the evidence on Dr. Humphries's claim about
what happened in years' past and a claim about an ongoing violation is not
dispositive. Pariser v. Christian Health Care Systems, Inc., 816 F.2d 1248, 1253

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(8th Cir. 1987). There is much overlap between the validity case as tried and
one about future applications on unequal footing. This overlap, however,
does not cover the evidentiary gap about Dr. Humphries's plans for the
future.
Fourth, and relatedly, there is a lurking standing concern. E.g., Donahue,
304F.3d at 119; Aiken, 281 F.3dat519-20. Dr. Humphries was extraordinarily
diligent about applying for open positions between 2003 and 2007. But past
/I

injury, 'while presumably affording [her] standing to claim damages ... , does
nothing to establish a real and immediate threat that she would again suffer
similar injury in the future.'" Adarand Constructors, Inc., v. Pena, 515 U.S. 200,
210-211 (1995), quoting Los Angeles v. Lyons, 461 U.S. 95, 105 (1983). Dr.
Humphries testified that the many rejections took their toll and she was worn
out with trying. What are her current intentions and future plans? The Court
would need more proof, and adversarial briefing, to address this standing
concern before reaching the merits of a continuing-violation theory.
The unequal footing/ on-going violation theory and related injunctive
relief would carry the Court directly into constitutional issues. While this
Court sits to adjudicate such claims when squarely presented, it is equally

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duty bound not to reach out for them. A continuing-violation claim was
neither presented nor defended at trial. Hazeltine, 340 F.3d at 590. The Court
therefore does not find implied consent either.

* * *
The District's motion for judgment as a matter of law or a new trial,

Document No. 213, is granted in part and denied in part. Dr. Humphries's
motion to amend, Document No. 217, is denied. The Court will enter judgment
for the District forthwith.
So Ordered.

D.P. Marshall Jr.

United States District Judge

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