Thompson v. Millard Public School District No. 17

         1. Judges: Recusal. A recusal motion is initially addressed to the discretion of the judge to whom the motion is directed.

         2. __: __.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.

         3. Judges: Recusal: Presumptions. A party alleging that a judge acted with bias or prejudice bears a heavy burden of overcoming the presumption of judicial impartiality.

         4. 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.

         5. 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.

         6. Judges: Recusal: Time. The issue of judicial disqualification is timely if submitted at the earliest practicable opportunity after the disqualifying facts are discovered.

         7. 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 Conduct.

          Appeal from the District Court for Douglas County: Peter C. Bataillon, Judge. Affirmed in part, and in part vacated and remanded with directions.

          Abby Osborn and Joy Shiffermiller, of Shiffermiller Law Office, PC, L.L.O., for appellant.

          Duncan 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.

          Cassel, J.

         INTRODUCTION

         Kim M. 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 different judge.

         [302 Neb. 72] BACKGROUND

         Thompson, 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 employment.

         Acting 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.

         At the 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.

         At the 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.

         While 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 ...