Carol Peterson v. Marquette University

No.�� 94-2178

STATE OF WISCONSIN IN COURT OF APPEALS

� DISTRICT I��

��

CAROL PETERSON,

�� Plaintiff-Appellant,

�� v.�� ERRATA SHEET

MARQUETTE UNIVERSITY and

RONALD ORMAN,

�� Defendants-Respondents.

��

Marilyn L. Graves

Clerk of Court of Appeals

231 East, State Capitol

Madison, WI�� 53702

Peg Carlson

Chief Staff Attorney

119 Martin Luther King Blvd.

Madison, WI� 53703

Jennifer Krapf

Administrative Assistant

119 Martin Luther King Blvd.

Madison, WI� 53703

Court of Appeals, District II

2727 N. Grandview Blvd.

Suite 300

Waukesha, WI�� 53188-1672

Court of Appeals, District III

740 Third Street

Wausau, WI�� 54401-6292

Court of Appeals, District IV

119 Martin Luther King Blvd.

Madison, WI� 53703

Hon. Michael J. Barron

(L.C. # 92-CV-012358)

Milwaukee Cty. Crthouse.

901 N. Ninth St., Rm. 402

Milwaukee, WI� 53233

Robert E. Sutton

Sutton & Kelly

1409 E. Capitol Dr.

Milwaukee, WI� 53211

Barry L. Chaet

Beck, Chaet & Loomis

330 E. Kilbourn Ave., Ste. 1085

Milwaukee, WI� 53202

Katherine L. Williams

Beck Chaet Loomis

330 E. Kilbourn Ave., Ste. 1085

Milwaukee, WI� 53202

�� PLEASE TAKE NOTICE that the attached pages 5, 9, 10, 11 and 12 of the majority opinion and page 3 of the concurrence/dissent are to be substituted for the original of such pages of the above-captioned majority opinion and concurrence/dissent which was released on June 13, 1995.

�� Dated this 11th day of December, 2006.

�� Once her case was assigned to the Honorable Michael J. Barron's court, Peterson requested by correspondence that Judge Barron voluntarily recuse himself from the case because he was a graduate of Marquette University Law School.� Judge Barron declined to voluntarily recuse himself, explaining that he attended law school thirty-three years ago, this case did not specifically involve the law school, and he believed he could be impartial.� No formal motion for recusal or request for substitution was made.

�� The case was tried to a jury, which found that Peterson had been constructively discharged and the motivation for the discharge was her age and her religion.� Peterson was forty years old at the time of her resignation and a member of the Jewish faith.� Marquette moved for a directed verdict or judgment notwithstanding the verdict, which was granted by the trial court.� Peterson now appeals.

II. DISCUSSION

�� Because this case involves resignation rather than discharge, Peterson first needed to prove that her resignation was in actuality a constructive discharge.� See Chambers v. American Trans Air, Inc., 17 F.3d 998, 1005 (7th Cir.), cert. denied, 115 S. Ct. 512 (1994).� The trial court determined that Peterson did not satisfy her burden of proof on this issue and that there was no evidence to support a

�� The budget cuts leading to restructuring of the Residence Life department may have created a difficult working environment.� Peterson's receipt of �work expectations� memos from a new supervisor may have been unpleasant.� The offer of a four-month provisional contract in place of the usual one-year renewal certainly was not pleasing to Peterson.� Nevertheless, there is no substantiation in the record documenting �intolerable conditions��conditions that are physically impossible or so grossly demeaning that a reasonable person in Peterson's shoes would be forced to quit instead of seeking redress while continuing to work.� We conclude, therefore, that the record does not contain any evidence that Peterson's resignation was a result of intolerable working conditions.� Accordingly, we are not convinced that the trial court's determination was clearly wrong.

B. Recusal.

�� We consider next whether the trial court erred in refusing to voluntarily recuse itself from presiding over this case.� Peterson claims that Judge Barron should have recused himself because he was a graduate of Marquette University Law School.

�� Section 757.19(2),[1] Stats., governs when a judge should disqualify himself or herself.� Our standard of review is an objective one, although under subsection (g), the trial judge makes a subjective determination as to impartiality, and the objective review is limited to establishing whether the judge made a determination requiring disqualification.� See State v. American TV & Appliance, 151 Wis.2d 175, 181-86, 443 N.W.2d 662, 664-66 (1989).� Peterson contends that recusal of the trial judge in this case was required under subsections (f) and (g).

�� We first address subsection (f).� Section 757.19(2)(f), Stats., requires a trial judge to recuse himself or herself:�� [w]hen a judge has a significant financial or personal interest in the outcome of the matter.� Such interest does not occur solely by the judge being a member of a political or taxing body that is a party.�� The question for our consideration is whether the trial judge in this case had a �personal interest in the outcome� because he graduated from Marquette University Law School.� Judge Barron pointed out two additional factors to counter Peterson's argument: (1) he graduated thirty-three years ago; and (2) the law school was not a defendant.� Our search of the record reveals that the only factor suggesting that Judge Barron may have a personal interest in the outcome is the fact that he graduated from the law school.� This factor standing alone is insufficient to require recusal under � 757.19(2)(f), especially in light of the length of time that has passed since his graduation.� See Goodman v. Wisconsin Elec. Power Co., 248 Wis. 52, 58, 20 N.W.2d 553, 555 (1945) (personal interest must be substantial and not remote to require disqualification).� Accordingly, we reject Peterson's argument based on � 757.19(2)(f).

�� Our consideration under subsection (g) is limited: (1) to reviewing whether Judge Barron subjectively believed he could be fair and impartial; and (2) to establishing whether the judge made a determination requiring disqualification.� American TV, 151 Wis.2d at 183, 443 N.W.2d at 666.� Section 757.19(2)(g), Stats., requires a trial judge to recuse himself or herself:� �[w]hen a judge determines that, for any reason, he or she cannot, or it appears he or she cannot, act in an impartial manner.�� The basis for disqualification under sec. 757.19(2)(g), Stats., is a subjective one.� Accordingly, the determination of the existence of a judge's actual or apparent inability to act impartially in a case is for the judge to make.�� American TV, 151 Wis.2d at 183, 443 N.W.2d at 665.� We first consider whether the trial judge subjectively believed he could be fair and impartial.� Correspondence from Judge Barron to both parties clearly established his subjective belief that his graduation from Marquette University Law School thirty-three years ago would not color his ability to be fair and impartial.� Further, Peterson has offered no evidence that demonstrates Judge Barron subjectively believed that he could not be fair.� We conclude that the trial judge satisfied the subjective standard under � 757.19(2)(g).

�� Our final consideration under � 757.19(2)(g), Stats., is to establish whether the trial judge made a determination requiring disqualification and failed to heed his own finding.� Consideration of this point in light of the foregoing is futile.� The trial judge in this case clearly made a determination that he was not required to disqualify himself.� Accordingly, we reject Peterson's contention that the trial court erred in refusing to recuse itself.

�� By the Court.�Judgment affirmed.

decision under doctrine of stare decisis); see also� � 752.41(2), Stats., (�Officially published opinions of the court of appeals shall have statewide precedential effect.�).

�� Applying the correct standard of review to this case, we should examine the record to determine whether there is credible evidence to sustain the jury's verdicts.� In doing so, we should be mindful that when more than one reasonable inference may be drawn, we must accept the inference drawn by the jury.� Macherey at 8, 516 N.W.2d at 436.� The majority's summary of the evidence, however, is incomplete, misleading, and in total disregard of the inferences the jury was entitled to draw.

�� The majority ignores the testimony of Father Leahy who, in describing the reasons he wanted Orman as dean, added that �[i]t was a bonus that he was Catholic.�� The majority also ignores the evidence that Father Leahy advised James Forrest that he wanted a �younger� person in Forrest's position.� The trial court decision granting judgment notwithstanding the verdict minimized the former testimony as an �illtempered remark,� and similarly dismissed the latter by saying, �Age was never mentioned at the trial except by Fr. Leahy on why he wanted Orman as dean.�� Then, apparently referring to both comments, the trial court wrote, �a mere isolated or ambiguous remark is not in itself sufficient to show discrimination on the part of the employer.�� Perhaps, but Peterson offered more than these remarks.

�� [1] This statute provides:

(2) Any judge shall disqualify himself or herself from any civil or criminal action or proceeding when one of the following situations occurs:

(a) When a judge is related to any party or counsel thereto or their spouses within the 3rd degree of kinship.

(b) When a judge is a party or a material witness, except that a judge need not disqualify himself or herself if the judge determines that any pleading purporting to make him or her a party is false, sham or frivolous.

(d) When a judge prepared as counsel any legal instrument or paper whose validity or construction is at issue.

(e) When a judge of an appellate court previously handled the action or proceeding while judge of an inferior court.

(f) When a judge has a significant financial or personal interest in the outcome of the matter.� Such interest does not occur solely by the judge being a member of a political or taxing body that is a party.

(g) When a judge determines that, for any reason, he or she cannot, or it appears he or she cannot, act in an impartial manner.