Wagner v. Jones

Filing 57

TRANSCRIPT of Proceedings held on 2/08/2010 before Judge Wolle. Court Reporter/Transcriber: Eileen Hicks, Telephone Number: 515/243-6596. Page No(s).: 1-20. Transcript may be viewed at court public terminal or purchased through Court Reporter/Transcriber before deadline for Release of Transcript Restriction. After that date it may be obtained through court reporter, Clerk's Office, or PACER.. Redaction Request due 8/19/2010. Redacted Transcript Deadline set for 8/27/2010. Release of Transcript Restriction set for 10/25/2010. (Hicks, Eileen)

1
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF IOWA
DAVENPORT DIVISION
- - - - - - - - - - - - - - - - -X
TERESA R. WAGNER,
:
:
Plaintiff,
:
:
vs.
:
:
CAROLYN JONES, Dean Iowa College :
of Law (In her official and
:
individual capacities),
:
:
Defendant.
:
- - - - - - - - - - - - - - - - -X

Case No. 3:09-cv-00010

HEARING TRANSCRIPT

Telephone Conference
Monday, February 8, 2010
10:00 a.m.
BEFORE:

The Honorable CHARLES R. WOLLE, Senior Judge.

APPEARANCES:
For the Plaintiff:

STEPHEN T. FIEWEGER, ESQ.
Katz Huntoon & Fieweger
1000 36th Avenue
PO Box 950
Moline, IL 61265

For the Defendant:

GEORGE A. CARROLL, ESQ.
Department of Justice
Hoover State Office Building
1305 East Walnut Street, 2nd Floor
Des Moines, IA 50319

EILEEN HICKS - CERTIFIED SHORTHAND REPORTER

2
1

P R O C E E D I N G S

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THE COURT:

Good morning, and I'll have the arguments

3

on the qualified immunity issue.

4

MR. CARROLL:

5

THE COURT:

6

Mr. Carroll.

7

MR. CARROLL:

8

I'm sorry.

9

THE COURT:

Mr. Carroll.

Yes.
And we have a reporter.

Just a minute, Your Honor.

When you're ready, the first issue is

10

whether to grant or deny the request to extend the record with

11

deposition testimony.

12

Mr. Carroll.

MR. CARROLL:

Yes.

Actually I had that on the top of

13

my list.

14

summary judgment, discovery was closed.

15

actually Magistrate Shields extended it, and we had with

16

plaintiffs counsel agreed to do some depositions, so I had

17

simply filed I think Friday pages of the only named defendants.

18
19
20

I filed that motion mostly because when I filed the

THE COURT:

All right.

Once I filed it, then

Mr. Fieweger, you may reply to

that request.
MR. FIEWEGER:

Judge, I don't have any objections to

21

it so long as plaintiff has the opportunity to submit what she

22

believes is in support of her position on this.

23
24
25

THE COURT:

And how much time do you need to

supplement the record on your behalf?
MR. FIEWEGER:

Seven days.

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1

THE COURT:

2

MR. FIEWEGER:

3

All right.
After I have the transcripts and

sections already outlined.

4

THE COURT:

Fine.

At this point it seems to me fair

5

that the record should be supplemented, and we'll do it

6

simultaneously.

7

the defendant already has supplemented, may do so within seven

8

days from today.

9

Anyone wishing to supplement, including what

I guess that would make it the 15th.

And then if there's a request that something

10

surprising has come in and you need additional filing, you may

11

make that request in making your filing, or within three days

12

after that.

13

I'll consider the whole matter submitted on the 18th.

14

But at this point of course both of you know what was in the

15

depositions, so you may argue as though that's already in the

16

record.

17
18

And now, Mr. Carroll, you may make your argument on
the merits of your claim for qualified immunity.

19

MR. CARROLL:

Yeah, thank you.

20

You know, obviously the only named defendant is the

21

dean of the law school, Carolyn Jones, and the constitutional

22

violations require an intentional violation, so we start with

23

that premise.

24

intend to violate a statute or the Constitution, this requires

25

an intentional violation.

Unlike other claims, where you don't have to

4
1

And our request for qualified immunity is based on the

2

fact that, one, it's a matter of law for the Court, although

3

there clearly are Eighth Circuit cases and other circuits that

4

say if there's underlying facts, maybe it shouldn't be as a

5

matter of law, but it's not based on the qualified immunity

6

issue.

7

And so in this case what I truly believe is

8

uncontroverted is the dean of the law school, and any other

9

position, she depends on the faculty to recommend names to her,

10

and not only depends on it but that is the faculty policy with

11

the affidavit of Dean Hines since the 1960's.

12

So in fact the dean of the law school at Iowa cannot

13

offer a job to somebody if the faculty does not recommend that

14

person to be offered a job.

15

And so that's what Dean Jones works with.

16

was hired in 2004.

17

University of Iowa.

18

I mean she

into that existing policy system.

19

She's actually a graduate from the
But when she was hired as dean, she came

Plaintiff in this case applied for a job and was not

20

recommended by the faculty.

21

qualified immunity is, she didn't have a name to appoint Teresa

22

Wagner.

23

based on my First Amendment rights or political affiliation,"

24

Dean Jones did not have her name to appoint her.

25

So Dean Jones--and significant to

Despite Wagner's claim, "Well, this must have been

Dean Hines' affidavit, Professor Burton's affidavit

5
1

says, "You can't hire her."

2

many, many years.

3
4
5

I mean this has been the policy for

And so from a qualified immunity point of view is,
here's Dean Jones, "I don't have her name.

I can't hire her."

With respect to--I think there was a comment in the

6

resistance brief that all jobs weren't at issue; but they are.

7

If you look at Professor Eric Andersen's affidavit, Wagner's

8

name never was forwarded to the dean of the law school.

9

The first position, the writing instructor, which I

10

think everybody will call like a permanent job, her name did not

11

surface, and then the adjunct jobs that showed up shortly

12

thereafter in the spring of '07, her name didn't surface, so

13

Dean Jones had--you know, she had nothing to react to.

14

Another point that they've made in their resistance is

15

the Jonathan Carlson e-mail, Professor Carlson at the law

16

school, and I believe he wrote the e-mail the day after the

17

faculty vote, basically brought up political affiliations.

18

mean the e-mail is in the record.

19

supplemented last Friday was, she read the e-mail.

20

down the hall, and she talked to Professor Carlson, and said,

21

"Well, what do you mean by this?"

I

Dean Jones, a part of what I
She walked

22

There was nothing there for Dean Jones to react to.

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It's no different than somebody else--and I cite in

24

our brief several Eighth Circuit cases--where somebody may have

25

said something, "Oh, I don't think this was fair," and the dean

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1

of the law school reacted to it.

2

And she reacted to it that day that she got the

3

e-mail, and then later the record will show she forwarded the

4

other names to be hired in this position.

5

And so two things on this Carlson e-mail:

6

reacted to it.

7

Jones.

8
9
10
11
12

One, she

And, two, it doesn't really do anything to Dean

So she knew of this information, and she reacted to it.
I mean the whole purpose of qualified immunity is what

did this defendant do under constitutional analysis?
She reacted to it, and she did what the policy then
allowed her to do.
THE COURT:

Initially you argue that there is no clear

13

constitutional rule that would be violated.

14

on that position?

15

MR. CARROLL:

Do you still stand

Well, you know, I'm not sure I'm going

16

to argue that, Your Honor.

I mean the First Amendment--I mean

17

there's a clear constitutional right to be protected from

18

discrimination, you know, based on political association or

19

affiliation.

20

But I think what we're relying on is she has to have

21

intentionally violated that right, you know, based on what she

22

had in front of her.

23

THE COURT:

And is it significant that before she

24

actually chose, based on the recommendations, she knew of the

25

e-mail in which it was suggested that there may be a political

7
1

affiliation problem?

2

MR. CARROLL:

Well, I think it's significant in the

3

fact that that e-mail exists, and that takes us to the stray

4

remark comments in cases in the Eighth Circuit; and one of them

5

is the school board member saying, you know, "I think this was

6

discriminatory," and the Eighth Circuit said, "Yes, that fact

7

existed."

8

So in this case for qualified immunity, she knew that

9

fact, and she addressed it, you know, with the professor that

10

wrote the e-mail; but I think more importantly, what was she

11

supposed to do with it?

12
13

I mean one professor wrote an e-mail.
faculty did not recommend plaintiff.

14
15

You know, the

THE COURT:

I'll now turn to Steve Fieweger, and then

give you a chance to reply, it's your motion.

16

Mr. Fieweger, your response.

17

MR. FIEWEGER:

18

Thank you, Your Honor.

Judge, it is a

question of fact of what was she supposed to do with this.

19

Not only that, but there was facts developed in the

20

deposition of Professor Bezanson, who was part of the faculty

21

that voted on turning down Ms. Wagner, that he admitted that

22

politics were discussed--her politics, meaning Ms. Wagner's

23

politics, were discussed during the meeting of January 25th,

24

2007.

25

That's the date in which they had voted to turn her down.
So you've got--and the fact of the matter is

8
1

Ms. Jones, Dean Jones, was part of that meeting.

2

of that process.

3

She was part

So what we have here, first, we have an associate

4

dean, Eric Andersen, informing the dean of the law school that

5

Teresa Jones came to him to express concern that she may not be

6

considered for this position on her merit because of her

7

conservative political affiliations.

8
9
10
11

Ms. Jones admits in her answers to interrogatories,
which we'll supplement, and I think maybe we have it here, that
she knew that going into the faculty vote.
Then we have Professor Bezanson saying, "Yeah, we

12

talked about her politics on the day of the vote."

13

hours after the vote we have Jon Carlson, another associate dean

14

of the law school, saying, "I'm concerned that she's not getting

15

this at least adjunct position from the faculty because they so

16

despise her politics."

17

Then 24

All of that raises a question of fact of what a

18

reasonable dean of the law school would do with that situation.

19

And she says, "Well, I don't have to do anything.

20

Carlson, and he couldn't identify in particular anybody, so I'm

21

done with it."

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That's not the test.

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THE COURT:

I talked to

And your position under the Iowa process,

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I guess it's a culture, maybe it's administrative rules, that

25

her duty was to do what, to return to a new faculty group?

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1

MR. FIEWEGER:

Oh, to inquire of the faculty as a

2

whole to find out if that's really what is holding up at least

3

an appointment to the adjunct position.

4
5

THE COURT:
whole?

There's a lot of professors.

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7

MR. FIEWEGER:

The ones that voted at the January

25th, 2007 meeting turning her down.

8
9

What do you mean by the faculty as a

THE COURT:

All right.

And then if she learned what

is in this record, then what is she to do?

10

MR. FIEWEGER:

11

There is no written policy, Judge, that requires a

12

dean of the law school only accept the recommendation of the

13

faculty.

14

I think she's to redo the appointment.

We'll point that out in our supplementation.
THE COURT:

All right.

But if it's a culture and

15

that's done, how can you claim it's intentional discrimination

16

based on political views?

17

MR. FIEWEGER:

Well, because of the Carlson e-mail,

18

saying, "Hey, it doesn't matter how qualified she is, this

19

faculty despises her politics so much that she's never going to

20

get a fair shake."

21

THE COURT:

Is it also your contention that Jones,

22

herself, had discriminatory motive or that it's simply the

23

faculty discrimination that she accepted?

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25

MR. FIEWEGER:

I think there's a question of fact as

to whether Dean Jones herself has a discriminatory intent,

10
1

Judge.

She's a Democrat.

2

Democrat.

3

presentation which are totally disputed by my client and are

4

also refuted by e-mails from other professors.

5

She admits she's a long-term

She attributes answers to my client in the faculty

Ms. Jones has taken the position in her deposition,

6

Teresa Wagner had abysmally failed her faculty interview on

7

January 24th by stating that she would refuse to teach analysis

8

to these students, which is one of the requirements of the LAWR

9

position.

10

My client says, "I didn't say that at all.

I was

11

questioned in detail by Professor Bezanson and another

12

professor," who's name I can't remember right now, "about what

13

is more important, teaching these people how to write legally or

14

teaching them the tools to do legal analysis?"

15

And she felt that that was not a fair question,

16

because it was required to do both in this class.

17

would do both, and then when pressed, said, "Well, I think we

18

need to teach writing over analysis more because that's what

19

we're here to do."

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21

THE COURT:

Is it still your position that there's a

spoliation issue--

22

MR. FIEWEGER:

23

THE COURT:

24
25

She said she

Oh, absolutely.

--in the erasing of tapes?

But doesn't

the record show without dispute that that was standard procedure?
MR. FIEWEGER:

Nobody knows that, other than--nobody's

11
1

given that testimony.

2

didn't do that work, and they knew that there was a dispute

3

right away.

4

It's a conclusory statement by people who

I mean, Judge, none of these professors or the deans

5

know what the statute of limitations is for a claim under

6

Section 1983.

7

It's our position that an employer is required to

8

preserve evidence to show what happened in the hiring process

9

for the length of the time that's necessary, whether a claim can

10
11
12
13

rise or not.

Here we'd say two years.

THE COURT:

What is the relief that she has requested

that it would be in your view a jury's decision to make?
MR. FIEWEGER:

To the monetary damages for the loss of

14

income from the full-time position versus what she's earning now

15

as a legal writing instructor.

16

She's also entitled to compensatory damages based on

17

damages to her emotional distress, et cetera, as the result of

18

incurring this loss of job opportunity.

19

THE COURT:

And attorneys fees, I'll bet.

20

MR. FIEWEGER:

21

THE COURT:

22

me, are they full time as well?

1988.

Are the adjunct positions, it's unclear to

23

MR. FIEWEGER:

24

teaches two classes each semester.

25

THE COURT:

No.

They are a part-time position that

So if it goes to a jury, that would have

12
1

to be separate interrogatories for the jury about which

2

position, if either, she was denied by reason of First

3

Amendment?

4

MR. FIEWEGER:

5

THE COURT:

6
7

Correct.

All right.

You may wind up your argument

and then I'll give Mr. Carroll a chance to respond.
MR. FIEWEGER:

Judge, I'd like to also cite the Court

8

to the Hafer versus Melo case, which is a U.S. Supreme Court

9

case from 1991, 112 Supreme Court 358.

10

THE COURT:

112, 358?

11

MR. FIEWEGER:

Yes, Corp., 358.

In that case there's

12

a discussion about individual versus official capacity and the

13

application of qualified immunity.

14

And in that case the auditor general of Pennsylvania

15

discharged a number of persons based on the fact that they were

16

allegedly Democrats.

17

The auditor general pled qualified immunity.

She was

18

carrying out official acts which entitled her to immunity from

19

personal liability, according to her.

20

The Third District Court of Appeals and the U.S.

21

Supreme Court rejected that, stating, "Requirement of action

22

under color of state law means that Hafer," meaning the auditor

23

general, "may be liable for discharging respondents precisely

24

because of her authority as auditor general.

25

the novel proposition that this same official authority

We cannot accept

13
1

insulates Hafer from suit."

2

Immunity from suit under section 1983 is predicated

3

upon considered inquiry into the immunity historically accorded

4

the relevant official at common-law and the interest behind it.

5

And officials seeking absolute immunity must show that

6

such immunity is justified for the governmental function at

7

issue.

8

My point of citing that is hiring and firing decisions

9

for a public law school is not a governmental function.

10

employer function that both private and public employees

11

It's an

perform.

12

So the question of the applicability of the qualified

13

immunity, I think, is a question at whole in this case based on

14

the decision of Hafer.

15

THE COURT:

I've always been confused somewhat, maybe

16

more than somewhat, about the difference between individual

17

liability and official liability, because really unless you were

18

acting as dean, there was nothing she could do in this case.

19

MR. FIEWEGER:

20

THE COURT:

21
22

liability?

Correct.

So how can she have any individual

It would have to be in her official capacity.
MR. FIEWEGER:

Well, I understand, but what they're

23

saying is there's no liability under the Hafer decision.

24

They're saying you can't raise the immunity defense for a

25

decision you make in your position as the governmental official.

14
1

THE COURT:

2

Mr. Carroll, you may make a final argument, and then

3

Thank you.

I'll wait for further factual material before deciding the case.

4

MR. CARROLL:

All right.

Well, thank you.

5

I guess a couple of comments, Your Honor.

On this

6

record--and I know Steve called it like an unwritten policy, but

7

in fact you have the dean of the law school, the former dean,

8

William Hines, saying this has been the process since the

9

1960's.

10
11

So that's undisputed that the faculty has to vote to
recommend a hire.

12

Dean Jones had nothing to do with that process.

In

13

fact, if you look at Dean Hines' affidavit, it started from

14

Dean Mason Ladd's tenure at Iowa, and so that process has been

15

in place for a long time.

16
17

So she sits here today, or in '07, "I didn't get a
name recommended to me.

18

What am I supposed to do?"

And I think that's important.

I mean I don't think

19

it's an unwritten policy.

20

affidavit that it's written somewhere, but I'm sure it is, but I

21

think 40 years, if not 60 years, of a law school saying this is

22

how we do it, I think it's important for Dean Jones to say, "How

23

did I discriminate against this woman?"

24

did?"

25

Dean Hines didn't assert in his

You know, "What is it I

Now, she in fact was at the job talk or job

15
1

interview--Dean Jones; but the fact of the matter is, nothing

2

was forwarded to her.

3

hire the woman.

4

She could not under Dean Hines' affidavit

And to assert on this record, "Well, you could have

5

done something else," I mean Dean Hines is saying, "No, no, you

6

really can't."

7

never seen in 32 years"--I mean these are people that have been

8

at Iowa for a long, long time, so Dean Jones is sitting there,

9

and plaintiff has the right to file a claim against us, but also

10

she's asserting, oh, because she's a Democrat you voted against

11

me.

12

And Professor Burton's affidavit saying "I've

I mean, Your Honor, to be a little blunt here, it's

13

like saying because you're white, you didn't hire an African

14

American.

15

I mean it is so unfair to say to Dean Jones, "Oh,

16

you're a Democrat."

17

the question she was.

Well, maybe she is.

I think she answered

Well, so what?

18

She wasn't presented anybody.

19

Then with respect to quickly, Your Honor, on the

20

spoliation of the videotape, you know, while the lawsuit is

21

against Dean Jones, ultimately the University of Iowa, we have a

22

lot of employment interviews, and to suggest that we're somehow

23

supposed to keep every videotape or every document from every

24

hire for the statute of limitations, which varies, is just

25

unfair.

16
1

I mean--and there is in fact in this record an

2

affidavit by the person in charge of the videotape that said, "I

3

just recycle them.

4

these things."

I wasn't doing anything.

We simply recycle

5

And so I think it's unfair to accuse the University of

6

Iowa, particularly the college of law, of destroying evidence on

7

purpose when in fact plaintiff in his brief--I mean the

8

attorney's brief had pointed out we turned over 9,000 pages of

9

documents.

10

We weren't destroying anything, Your Honor.

That's

the process.

11

Thank you.

12

THE COURT:

I want each of you to make a final comment

13

about what I see as conflict in the Eighth Circuit and other

14

circuit cases about how a district judge like myself makes

15

factual determinations on qualified immunity issues when the

16

facts are in dispute.

17

Steve Fieweger.

18

MR. FIEWEGER:

19
20
21

then for the trier of fact.
THE COURT:

And then the jury gets the question of

qualified immunity?

22

MR. FIEWEGER:

23

THE COURT:

24

MR. CARROLL:

25

Again, I think it is a factual question

Yeah.

And George Carol?
Well, two things:

He have cited in a

reply brief O'Neil versus City of Iowa City.

17
1

THE COURT:

2

My case, yes.

MR. CARROLL:

Yes.

Which basically said, you can't

3

look at the--you cannot look at the underlying constitutional

4

violation for qualified immunity.

5

something else.

6

Qualified immunity is

And then I guess more pointed to your question, Your

7

Honor, is, it doesn't have to be a special interrogatory.

8

there's a question of law, it has to be a question of law.

9

THE COURT:

If

So in your position, Mr. Carroll, if I

10

deny qualified immunity because there are fact issues, and we

11

get to trial in June, is it still a question of fact for the

12

judge rather than the jury based on the entire record at trial?

13

MR. CARROLL:

Well, and I'm working this on another

14

case, Your Honor, so I don't know.

15

look at the underlying constitutional violation.

16

look at what Dean Jones did.

17

I mean I think you can't
You have to

So if in fact--so it's a matter of--is it a question

18

for the trier of fact that Dean Jones got that affidavit--or,

19

excuse me, e-mail from Professor Carlson?

20

I mean that's undisputed.

21

So what did she do--and it's undisputed the law school

22
23

policy.
THE COURT:

All right.

But that's kind of begging the

24

question about what the judge does if you say, "Well, it's

25

really not in dispute."

18
1

But assuming that there are disputes in the documented

2

records here about the facts, does the judge still make

3

determinations of questions like Dean Jones' intent?

4

MR. CARROLL:

I think it has to be a special

5

interrogatory, like interestingly enough a First Amendment

6

question, and the one I've used to assist the Court is, "Answer

7

this interrogatory or verdict form,."

8

THE COURT:

9

Okay.

10

And then it's advisory.

Advisory jury issue.

Steve Fieweger, do you want to comment on that?

MR. FIEWEGER:

No.

I've seen it done that way, Judge;

11

but in my opinion, I still think it's a question of fact

12

once--once there are disputed issues of material fact on that

13

issue.

14

submitted that special interrogatory.

15
16
17
18

I still think that then the jury still should be

THE COURT:

Finally, really my comment is that I'll

try to get out a ruling by the end of the month.
You've got a week to file any additional documents,
plus three days if you have replies to those documents.

19

So by about February 20 I'll have the case ready for

20

decision, and assuming I decide, one of the problems in a case

21

like this, I think qualified immunity can be appealed to the

22

Court of Appeals either way; but do you still look to June 1 as

23

your trial date, Steve Fieweger?

24

MR. FIEWEGER:

25

THE COURT:

Yes, I do.

And Mr. Carroll?

19
1

MR. CARROLL:

2

THE COURT:

3
4

Yes, absolutely.
I would think both sides would want it

decided as soon as possible.
And, second question, is it a problem for you if we go

5

to trial that it's a backup?

6

that's ahead of it.

7

MR. FIEWEGER:

Because we have an older case

It could be for me, Judge, because I'm

8

set June 12th, and I'm also set for June 20th.

9

a busy June.

10

THE COURT:

All right.

11

MR. FIEWEGER:

13

THE COURT:

But I would think this would

be a fairly short case.

12

It's going to be

14
15

Yeah, I would think so.

Two or three days, maybe; but I don't want

to rock your boat by telling you you have to move it that fast.
Thank you for your presentations.

Well done.

I'll

16

get out a ruling as soon as you've filed your final documents.

17

Have a nice day.

18

MR. FIEWEGER:

19

THE COURT:

20

(Hearing concluded at 10:30 a.m.)

21
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Thanks, Judge.

Bye.

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1

C E R T I F I C A T E

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I, the undersigned, a Certified Shorthand Reporter of

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the State of Iowa, do hereby certify that I acted as the

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official court reporter at the hearing in the above-entitled

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matter at the time and place indicated;

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That I took in shorthand all of the proceedings had at

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the said time and place and that said shorthand notes were

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reduced to typewriting under my direction and supervision, and

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that the foregoing typewritten pages are a full and complete

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transcript of the shorthand notes so taken.

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Dated at Des Moines, Iowa, this 27th day of July,
2010.

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/s/ Eileen Hicks
CERTIFIED SHORTHAND REPORTER