Summary
The Nebraska Supreme Court held that the district court judge was required to recuse himself because his brother-in-law was likely to be a material witness in the plaintiff’s Equal Pay Act claim. The court determined that the plaintiff timely sought recusal and had not waived the objection. It affirmed the disposition of claims resolved before the Equal Pay Act claim was added, vacated the judgment on the remaining claims, and remanded for a new summary judgment hearing before a different judge.
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Practice areas
Questions Presented
- Whether the district judge was required to recuse himself because his brother-in-law was likely to be a material witness and comparator in Thompson's Equal Pay Act claim.
- Whether Thompson timely asserted the recusal motion or waived disqualification.
- Whether vacatur and reassignment to a different judge were the appropriate remedies for the failure to recuse.
- Whether the district court's summary judgments on the retaliation, hostile work environment, and Equal Pay Act claims should stand.
Holdings
- Under Neb. Rev. Code of Judicial Conduct § 5-302.11(A)(2)(d), a judge must disqualify himself or herself when a person within the fourth degree of relationship to the judge is likely to be a material witness. Mainelli, the judge's brother-in-law, was likely to be a material witness because his testimony had a logical connection to the Equal Pay Act claim and he was the sole comparator.
- A judge should recuse when a reasonable person who knew the circumstances would question the judge's impartiality under an objective standard of reasonableness, even absent proof of actual bias or prejudice.
- Thompson did not waive her right to seek disqualification because she moved for recusal at the earliest practicable opportunity after learning that Mainelli was the judge's brother-in-law and renewed the motion when the Equal Pay Act claim made Mainelli the comparator.
- The three-factor special harmless-error test from Liljeberg governs whether vacatur is appropriate when a trial judge fails to recuse despite disqualification. Applying that test, vacatur of the judgment on the later claims and reassignment to a different judge were required.
Key quotations
“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.” (302 Neb. at 75)
“Mainelli’s testimony would have a logical connection and relevance to the Equal Pay Act claim.” (302 Neb. at 76-77)
“The risk of undermining the public’s confidence in the judicial process is simply too high under these circumstances.” (302 Neb. at 79)
Factual background
Kim M. Thompson, a former project manager for Millard, had an affair with an independent contractor whose wife later complained to Millard's superintendent about Thompson's online and offline conduct. After an alleged act of insubordination, Millard offered Thompson the option to resign in lieu of termination. Thompson later added an Equal Pay Act claim alleging that Millard paid Stephen Mainelli, a male employee hired into the same project-manager position, more than it had paid her. Mainelli was the district judge's brother-in-law and was identified as a potential material witness concerning the comparator position, hiring process, qualifications, and salary.
Procedural history
Thompson sued Millard after resigning in lieu of termination, asserting retaliation, hostile work environment, false light/invasion of privacy, intentional infliction of emotional distress, and breach of contract. The district court granted partial summary judgment on the latter three claims. After Thompson obtained counsel, she amended her complaint to add an Equal Pay Act claim based on a male employee, Stephen Mainelli, who was the district judge's brother-in-law and alleged comparator. The district court denied recusal and granted summary judgment on the remaining claims. The Nebraska Supreme Court affirmed the earlier-disposed claims, vacated the judgment concerning the later claims, and remanded for a new summary judgment hearing before a different judge.
Remand instructions
The judgment is affirmed as to claims disposed of before the Equal Pay Act claim was asserted. The judgment concerning the retaliation, hostile work environment, and Equal Pay Act claims is vacated, and the matter is remanded for a new summary judgment hearing before another judge appointed by the Nebraska Supreme Court.