Kim M. Thompson, an individual, appellant,
Millard Public School District No. 17 and Millard Public Schools Board of Education, appellees.
Judges: Recusal. A recusal motion is
initially addressed to the discretion of the judge to whom
the motion is directed.
__.A judge should recuse himself or herself when a litigant
demonstrates that a reasonable person who knew the
circumstances of the case would question the judge's
impartiality under an objective standard of reasonableness,
even though no actual bias or prejudice was shown.
Judges: Recusal: Presumptions. A party
alleging that a judge acted with bias or prejudice bears a
heavy burden of overcoming the presumption of judicial
Rules of the Supreme Court: Judges:
Witnesses: Words and Phrases. For
purposes of Neb. Rev. Code of Judicial Conduct §
5-302.11(A)(2)(d), a material witness is one who can testify
about matters having some logical connection with the
consequential facts, especially if few others, if any, know
about those matters; a person who is capable of testifying in
some relevant way in a legal proceeding.
Judges: Recusal: Waiver. A party is said to
have waived his or her right to obtain a judge's
disqualification when the alleged basis for the
disqualification has been known to the party for some time,
but the objection is raised well after the judge has
participated in the proceedings.
Judges: Recusal: Time. The issue of judicial
disqualification is timely if submitted at the earliest
practicable opportunity after the disqualifying facts are
Judges: Recusal: Appeal and Error. The
three-factor special harmless error test in Liljeberg v.
Health Services Acquisition Corp., 486 U.S. [302 Neb.
71] 847, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988), should be
used for determining when vacatur is the appropriate remedy
for a trial judge's failure to recuse himself or herself
when disqualified under the Nebraska Revised Code of Judicial
from the District Court for Douglas County: Peter C.
Bataillon, Judge. Affirmed in part, and in part vacated and
remanded with directions.
Osborn and Joy Shiffermiller, of Shiffermiller Law Office,
PC, L.L.O., for appellant.
A. Young, Jeff C. Miller, and Keith I. Kosaki, of Young &
White Law Office, for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
Thompson resigned from her employment with a school district
after the district, asserting she had been insubordinate,
offered her the option to resign in lieu of termination.
Thompson then filed suit against Millard Public School
District No. 17 and its school board (collectively Millard).
In the midst of her employment discrimination suit against
Millard, the district court judge assigned to the case became
aware that due to a new claim asserted after counsel appeared
for Thompson, his brother-in-law was a potential witness. At
that point, Thompson moved for recusal and Millard moved for
summary judgment on Thompson's remaining claims. The
district court overruled the motion to recuse and granted
summary judgment on all remaining claims. Because the
judge's brother-in-law was likely to be a material
witness, the judge should have recused himself. We vacate in
part, and remand for a new summary judgment hearing with a
Neb. 72] BACKGROUND
a former project manager of Millard, had a consensual
extramarital affair with an independent contractor for
Millard. After their tumultuous breakup, the contractor's
wife sent a complaint to Millard's superintendent about
privacy and safety concerns for her children due to
Thompson's online and offline behavior. In July 2014,
following an insubordinate act, Millard requested
Thompson's resignation in lieu of termination of her
without counsel, Thompson originally brought suit against
Millard claiming (1) retaliation, (2) hostile work
environment, (3) false light/invasion of privacy, (4)
intentional infliction of emotional distress, and (5) breach
of contract. Millard moved for partial summary judgment on
claims (3) through (5). The district court granted summary
judgment on those claims. After they were disposed, Thompson
obtained counsel. Millard then moved for summary judgment on
the retaliation and hostile work environment claims.
summary judgment hearing, off the record, the district court
judge became aware that his brother-in-law, Stephen Mainelli,
was a potential witness for Thompson. Thompson moved for
recusal hearing, Millard stated that it was undisputed that
Mainelli was hired in January 2014 as a project manager and
assumed the same job description as Thompson. Thompson argued
she intended to call Mainelli as a witness, because his
testimony would be relevant to show other areas or examples
of discrimination. Millard argued that even if Mainelli was a
witness, he would not be competent to testify, because there
was no issue of his hiring, salary, or Thompson's firing
about which he could competently testify. The court took the
matter under advisement.
the recusal motion remained under advisement, Thompson
amended her complaint and added a claim under the Equal Pay
Act of 1963, 29 U.S.C. § 206(d) (2012). The amended
complaint alleged as follows:
[302 Neb. 73] In December, 2013, [Millard] hired [Mainelli]
as project manager to begin working January 31, 2014, which
was [Thompson's] same position;
. . . His rate of pay at hire was $96, 163. [Thompson's]
salary while being in the job 8 and Vi years of
[sic] $88, 985;
. . . The failure to pay [Thompson] the same sum of money as
male employees in a similar position is a willful violation