Submitted December 18, 2013
Appeal from United States District Court for the Northern District of Iowa - Sioux City.
For Mindy Gilster, Plaintiff - Appellee: Paige Fiedler, Whitney Judkins, Brooke Timmer, Fiedler & Timmer, Urbandale, IA.
For Primebank, Defendant - Appellant: Douglas L. Phillips, Klass Law Firm, Sioux City, IA.
For Joseph Strub, Defendant - Appellant: Douglas L. Phillips, Klass Law Firm, Sioux City, IA.
Before RILEY, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.
LOKEN, Circuit Judge.
Primebank and Joseph Strub (" Defendants" ) appeal a $900,000 jury verdict in favor of Plaintiff Mindy Gilster on her
claims of unlawful sexual harassment and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000e et seq., and the Iowa Civil Rights Act, Iowa Code § 216.6. Defendants argue they are entitled to a new trial because the district court erred in overruling their objection to improper rebuttal closing argument by Gilster's counsel, and then abused its discretion in denying Defendants' post-trial motion because this argument, while improper, was not sufficiently prejudicial to warrant a new trial. Concluding this is one of those relatively rare cases where Defendants have made a sufficient showing of prejudice caused by " plainly unwarranted and clearly injurious" closing argument, we reverse and remand for a new trial. See Morrissey v. Welsh Co., 821 F.2d 1294, 1303 (8th Cir. 1987) (standard of review).
We briefly summarize evidence from the six-day jury trial that bears on the prejudicial closing argument issue presented on appeal. Joseph Strub as Market President of Primebank's branch in Sioux City, Iowa, hired Gilster as Credit Administrator in December 2007. Gilster filed an internal sexual harassment complaint in July 2009, alleging continuing sexual harassment by Strub. Gilster testified that the harassment started " around the summer of 2008." She finally overcame her reluctance to make a formal complaint when Gilster inquired about a possible bonus and Strub replied, in front of the entire small staff, that Gilster should " take out your teeth, come into my office, and shut the door." According to Gilster, Strub also made comments about her legs when she wore skirts; placed his arm around her shoulders and said that they " should hook up" ; approached her from behind while she was fixing breakfast in the employee break room, placed his hands on the counter alongside hers, and pressed his pelvis against her backside; and massaged her shoulders " intimately" when she was seated at her desk.
Primebank investigated Gilster's complaint. Strub admitted making the " take out your teeth" comment; he denied her other allegations of continuing sexual harassment. Primebank " found that there was substance" to Gilster's complaint and disciplined Strub by issuing a formal reprimand, requiring him to attend sexual harassment training at a local community college, instructing him to stop harassing Gilster, and warning him not to retaliate.
Though Gilster reported no further instances of overt sexual harassment by Strub directed to her, she began complaining of retaliation by Strub in late July 2009, complaints that continued and intensified until Primebank fired her in February 2011. According to Gilster, Strub began avoiding her after she complained and changed his voicemail message to direct callers to contact a less experienced employee rather than Gilster. Primebank investigated the retaliation complaints. Strub explained that he was " quiet" for a few days after Gilster's initial complaint, but the office was quickly back to normal. He changed his voicemail message when he went on vacation because Gilster was just returning, and the other employee had been dealing with new clients while Gilster was away. The Primebank officers to whom Gilster complained considered this a
legitimate business reason that was " not retaliatory." Gilster testified that Strub never put her back on his voicemail message.
Gilster subsequently complained that Strub denied her a promised promotion to a salaried position in December 2009. Primebank officers investigated the complaint and concluded that the position Gilster wanted did not exist and her current position could not be an exempt salaried position. When Primebank took no action on this complaint, Gilster hired counsel and filed a complaint of sexual harassment and retaliation with the Iowa Civil Rights Commission. Primebank responded by interviewing Gilster's co-workers, making them aware that Gilster had complained of harassment by Strub. Several employees complained to Primebank about Gilster beginning in late 2009, complaints that her former co-workers characterized at trial as reflecting a downturn in Gilster's work performance rather than retaliation. Gilster testified that the co-worker interviews made her work environment more " difficult" and " hostile." Co-workers testified that a change in Gilster's attitude led to a tense environment in the office.
Gilster filed this lawsuit in September 2010. Primebank's human resources officer was directed to encourage Gilster's co-workers to report any performance problems. In December 2010, Gilster received a worse performance review than in periods before she complained of Strub's harassment. Gilster " felt that there was a big target on [her] back." On February 3, 2011, staff discovered that Gilster's emails from her office computer were being monitored. Gilster reacted in a way Primebank management considered disruptive. On February 7, she filed a second discrimination complaint ...