The Honorable Lawrence L. Piersol, United States District Judge for th e District 1 of South Dakota, sitting by designation. United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ Nos. 96-4010, 97-1131/1132

___________ Leslie Cowan, *
* Cross-Appellant/Appellee, *
* Appeals from the United States
v. * District Court for the Western
* District of Missouri. Strafford R-VI School District, *
* Appellant/Cross-Appellee. *

___________ Submitted: November 20, 1997 Filed: April 7, 1998

___________ Before FAGG and HANSEN, Circuit Judges, and PIERSOL, District Judge. 1

___________ PIERSOL, District Judge.

Straffor d R-VI School District appeals from a jury verdict in favor of Lesli e Cowan, a former school te acher, in her lawsuit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., for religious discrimination and 42 U.S.C. § 1983, for violation of her First Amendment rights. Cowan has filed a cross-appeal. She-2-

appeals from the district court’s decision to deny reinstatement as a remedy in this case. We affirm.

I. BACKGROUND

Leslie Cowan was hired by the Strafford R-VI School District as a second grad e tea cher on a probationary basis in the fall of 1990. As a probationary teacher, he r contract was subject to renewal by the Schoo l Board on an annual basis. Customarily, the decis ion of whether or not to renew an elementary school teacher's contract wa s made by the School Board with the advice of the school principal, Lucille Cogdill, and in general, the school board followed Cogdill’s recommendations.

For the first two years of Cowan's tenure, the School Board renewed Cowan’s contract. After her third year, however, the School Board voted unanimously not to renew Cowan's contract in accordance with Cog dill's advice. Cowan believes that this action was a result of a "magic rock le tter" that she sent home with her second graders on the last day of school. The letter read as follows: Dear Second Grader:

You have com

pleted second grade. Because you have worked so hard, you deserve something special and unique; just like you! That something special is your very own magic rock. The magic rock you have will always let you know that you can do anything that you set yo ur mind to. To make your rock work, close your eyes, rub it and say to yourself three times, “I am a special and terrifi c person, with talents of my own!” Before you put your rock away, think of three good thing s about yourself. After you have put your rock away, you will know that the magic has worked.

HAVE FUN IN THIRD GRADE!!!!One of the many factual disputes at trial was whether the School Board ha d 2 disc ussed issuing job targets to Cowan in March of 1992, although they were no t issued until August, or whether Cogdill had issue d the job targets only after the "magic rock" issue came to light. This factual controversy underlies the School District' s motion for relief from judgment under Fed.R.Civ.P. 60(b). School Board membe r Roger Li le testified at trial that he could specifically remember discussing the jo b targets at the March 1992 meeting based upon his recollection o f the timing of Cowan's miscarriage that spring. In rebuttal, Cowan took the stand to testify that she had had a miscarriage in the spring of 1993. Upon discovering that Cowan had had an abortion in the spring of 1992, the School District filed a Rule 60(b) motion alleging that Cowan lied about the miscarriage.
-3- Cowan att ached a rock to this letter and sent one home with each student in May o f 1992.

In August of 1992, Cogdill informed Cowan that she had received complaint s from parents regarding the “magic rock letter.” In particular, Cogdil l indicated that two famili es had decided to move their children to private Christian schools as a direc t result of the use of the letter. Cogdill followed up this discussion with an admonition to C owan to avoid magical ideas in her teaching. After Cogdill spoke with Cowa n regard ing the letter, she informed the School District Superintendent that the magi c rock letter was a cause for concern among community parents. This information was also p assed on to the School Board. Also in August of 1992, Cogdill issued “jo b targets” to Cowan. Job targets are devices used by the School Distr ict to indicate areas of needed improvement in a t eacher’s performance. The job targets issued to Cowan 2 indicate dtwo areas she needed to improve: interpersonal relationships with parent s and instructional process.

Atthe beginning of the 1992-93 school year, Cogdill held a staff meeting i n which she informed the teachers that she was concerned about the perception of th e school in the community with regard to teaching New Ageism, and she instructe d teachers to avoid magical notions in their teaching. In conjunction with this-4-

discussion, she announced a seminar coordinated by a local pastor, the Reverend Stark, that was devoted to the issue of New Ageism and the infiltration of New Age thinking in the public schools.
Cogdill had been informed about the seminar by the Reverend Stark personally. He visited Cogdill after he had seen a copy of the magic rock letter brought home by his grandd aughter. The Reverend communicated to Cogdill that he considered th e letter to be contrary to his religious beliefs. Other members of the Strafford religious community were concerned about the magic rock letter as well. The Reverend Vawter, another loc al pastor, indicated to his congregants that they needed to be concerne d about New Age

infiltration of the schools because a teacher in the school system was teaching New Ageism to students through the use of magic rocks.

Over the c ourse of the 1992-93 school year Cogdill showed only lukewar m support for Cowan in her efforts to improve her teaching. Then, in March of 1993, on the eve of the School Board’s vo te on Cowan's contract renewal, Cogdill suggested to Cowan that she resign because she was not going to be renewed. Cowan did no t resign, and shortly thereafter, the School Board voted unanimously not to rene w Cowan’s contract.

As a cons equence of her nonrenewal, Cowan filed suit against the Schoo l Distric t alleging that she was not renewed because she had offended the religiou s sensibilities of the Strafford community. Cowa n claimed that the School District acted in viola tion of her rights under Title VII and the First Amendment. The jury returned

a verdict for Cowan on the Title VII, religious discrimination claim, with damages in the amount of $18,000.00. The jury also returned a verdict in Cowan’s favor on th e First Amendment, 42 U.S.C. § 1983 claim, but no damages were awarded. Post-trial, the district court denied the School District’s motion for judgment as a matter of law or, in the alternative, for a new trial. Also, the trial court denied the School District’s motion for relief

from judgment under Fed.R.Civ.P. 60(b) based upon allegations that-5-

Cowa n had committed perjury at trial. In addition, the court considered Cowan’ s motion to be reinstated in her position with t he School District, but rather than reinstate Cowan, the trial court chose to aw ard Cowan two years front pay. Both parties appeal from the trial court's rulings.

II. DISCUSSION
A. Denial of Summary Judgment

The first issue ra

ised by the School District is whether the district court erred in denying its mo tion for summary judgment. This Court has directly addressed whether a denial of summary judgment may be reviewed after a full trial on the merits. See, e.g., Metropolitan Life Ins. Co. v. Golden Triangle , 121 F.3d 351, 354 (8th Cir. 1997) ; John son Int’l Co. v. Jackson Nat’l Life Ins. Co. , 19 F.3d 431, 434 (8th Cir. 1994). It is well esta blished that “[a] ruling by a district court denying summary judgment i s interlocutory in nature and not appealable a fter a full trial on the merits.” Johnson Int’l at 434 (citing Bot

tineau Farmers Elevator v. Woodward-Clyde Consultants , 963 F.2d 1064, 1068 n.5 (8th Cir. 1992)) . After a district court has denied a summary judgment motion and the case proceeds to trial, the question of whether a party has met its burden is answered by considering the record a s a whole, not the pretrial evidence in isolation. Johnson Int’l

at 434. Therefore, the Court concludes that the first issue raised an d briefed by the School District is not properly before this Court.
B. Mixed-Motives Analysis

The School District also argues that the trial court erred when it denied th e School District’s motion for judgment as a matter of law or, in the alternative, for a new trial. O n appeal the Court reviews the district court’s denial of a motion for judgment

as a matter of

law de novo using the same standards as the district court. Keenan v

. Computer Assoc. Int'l, Inc. , 13 F.3d 1266, 1268 (8th Cir. 1994). This Court must-6-

determine “‘whether there is sufficient evidence to support a jury verdict.’” Id . (quoting White v. Pence , 961 F.2d 776, 779 (8th Cir. 1992)). Of course, the Court must vie w that evid ence in the light most favorable to the verdict, and it may not engage in a “weighing or evaluation of the evidence or c onsider questions of credibility.” Id . "The law places a high standard on overturning a jury verdict." Hathaway v. Runyon , 13 2 F.3d 1214, 1220 (8th Cir. 1997). Thus, judgment as a matter of law “is onl y appropriate when all of the evidence points one way and is ‘susceptible of n o reasonable in ference sustaining the position of the nonmoving party.’” Keenan at 1269 (quotin g White at 779). The evidence must be such that no reasonable juror could have found for the non-moving party. Hathaway at 220. When an appellate court reviews a denial of a motion for a new trial under Fed.R.Civ.P. 59 (a) a much more deferential standard is used; the trial court’s decision will not be re versed absent a clear abuse of discretion. Keenan at 1269.
The School District argues that Cowan did not produce any evidence linking the Distri ct’s employment decision to the magic rock letter as required under Title VII. A plaintiff in a discrimination case under Title VII can proceed under the Pric e Waterhouse v. Hopkins , 490 U.S. 228, 109 S.Ct. 1775, 10 4 L.Ed.2d 268 (1989), mixed motives analysis if an employee first estab lishes that religion was a motivating factor in the em ployment decision. Then the burden of persuasion shifts to the defendant, who must show that it would have made the sa me decision even in the absence of the illegal criteria. See Stacks v. Southwestern Bell Yellow Pages, Inc. , 996 F.2d 200, 202 (8th Cir. 1993). A plaintiff is entitled to have her case analyzed under the mixed motive s standard if she presents “‘evidence of con duct or statements by persons involved in the decision m aking process that may be viewed as directly reflecting the allege d discriminatory attitude. . . .’” Nitschk e v. McDonnell Douglas Corp. , 68 F.3d 249, 253 (8th Cir. 19 95) (quoting Radabaugh v. Zip Feed Mills , 997 F.2d 444, 449 (8th Cir

. 1993)).Th e Eighth Circuit has neither considered nor adopted the “religiou s 3
sens ibilities” or “employment atmosphere” claim of religious discrimination a s articulated by the cour

t in Turic v. Holland Hospitality, Inc. , 842 F. Supp. 971 (W.D. Mich1994) (plaintiff properly pled a claim for religious discrimination where sh e alle gedthat Christian co-workers opposed plaintiff’s view of abortion and tha t em ployer acted in response to co-workers religious approbation of plaintiff), aff'd i n pa rt, rev'd in part on other grounds, 85 F.3d 1211 (6th Cir. 1996). The Court note s that w hether Cowan properly stated her prima facie case was not raised below, an d therefore, this Court will not address the issue here.
-7- The trial court allowed Cowan to proceed under the Price Waterhouse mixe d motives analysis, and despite the School District’s contentions to the contr ary, there was sufficie nt evidence presented at trial for a reasonable jury to conclude that person s involved in the decision making process were motivated by religio us concerns regarding the teaching of New A geism. Principal Cogdill received complaints from parents who believed the magic rock letter violated their religious beliefs, and during the 1992-93 school ye ar, there was concern among Strafford's religious community regarding th e dissemination of New Age beliefs. Cogdill felt compelled torespond to these concerns. Sh e attended a program on New Ageism sponsored by the local religious community where she was called upon to defend the school against attacks that it was practicin g anti-Christian, New Age modes of teaching . In this anti-New Age atmosphere, Cogdill instructed her staff members to limit their use of magical notions. Cogdill singled out Cowan in particular and told her to avoid magical ideas in her teaching. While w e question whether Cowan properly pled a prima facie case of religious discrimination, since this issue

is not properly before the Court, we conclude that Cogdill's conduct in

re sponse to the community apprehensions regarding New Ageism coupled with he r genera llyunsupportive behavior toward Cowan, provided sufficient evidence for th e jury to conclude that Cogdill was motivated by religious concerns. 3Given the foregoing analysis, the Court need not address the School District's 4 argument that the instructions caused confusion among the jurors. In order to preserve an instructio nal issue for appeal, a party must state the precise basis for its objections in the record. Dupre v. Fru-Con Eng'g, Inc. , 112 F.3d 329, 333 (8th Cir. 1997). It is not sufficient for a party to claim that the grounds for the objections were stated off the record , particularly where the parties were invited to state their objections on th e record. Id . Here, the record indicates that the School District objected to "instruction No. 5 in its entirety. . . . [i]nstruction No. 7 as an improper Price Waterhouse burden of proof instruction . . . .[and] the final paragraph of No. 10, as also an improper Price Wat erhouse burden of proof instruction." Tr. at 968. The School District failed t o properly sta te its "confusion" objection. Thus, our review is under the plain erro r standard. Kehoe v. Anheuser-Bu sch, Inc. , 96 F.3d 1095, 1104 (8th Cir. 1996). Even
-8- There was evidence presented at trial indicating that Cowan's teachin g pe rformance was poor. In particular, there was evidence demonstrating substantia l discrepancies between the grades Co wan gave her students and the scores her students receiv ed on standardized tests. The jury could properly discount this evidence , howev er, in view of the testimony of other teachers who believe that the standardized test scores are not good measures of teacher performance.

Furthe r, although Cogdill was not a voting member of the School Board, ther e
was substantial evidence to indicate the she was intimately involved in the decisio n making process that led to Cowan's nonrenewal. Cogdill was present and participated in the closed executive School Board meetings in which all contract decisions wer e mad e, she presented her recommendation regarding Cowan's contract, and accordin g to the School Board members who testified at trial, Cogdill's judgment was given great

we ight. Many of the School Board members conceded that in general, Cogdill' s recommend ationwas the most significant factor in the decision whether to renew a te acher's contract. Under these circumstances Cogdill can clearly be regarded a s
someon e who was part of the decision making process, and a reasonable jury coul d conclude that her animus toward Cowan infected that process. Th erefore, the trial court correctly denied the motion for judgment as a matter of law or new trial. 4assuming, without deciding, that the court gave faulty instructions, any error could not be consid ered plain, since the evidence was sufficient to support a finding o f discrimination. Id

. The Sch ool District also argues that the trial court erred in submitting jury 5 instruction five which states:

The defendant Strafford R-VI School District may act only throug h natural p ersons as its agents. Under the law prohibiting employmen t act ions based upon religious concerns, the school district may be hel d responsible for the actions of Mrs. Cogdill, the p rincipal. In addition, any act ionof the Board of Education regarding non-renewal of teache r contracts is an action for which the school district may be held liable.

The School District contends that this instruction permitted it to be held liable fo r Cowan’s § 1983 claim under an impermissible theory of respondeat superior. Se e Springdale Educ. Assoc. v. Springdale School Dist. , 133 F.3d 649, 651 (8th C ir. 1998). The School District properly states the law with re spect to respondeat superior liability in the § 1983 context, but as indicated above, the School District failed to properl y state its o bjection on the record. Further, the Court believes the instruction may b e fairly read to distinguish between the Title VII and § 1983 claims, and thus, an y ambiguity certainly does not rise to the level of plain error.

-9- In a related argument, t

he School District contends that the district court abused its dis cretion in submitting the mixed-motives theory in its jury instructions. A s 5 indi cated above, the evidence was sufficient to support a verdict under the mixe d motives analysis, and therefore, the mixed motives instructions were appropriatel y submitted to the jury.
C. Cowan's Miscarriage

The Sc hool District contends that the district court abused its discretion b y denyi ng its motion under Fed.R.Civ.P. 60(b) based upon newly discovered evidenc e ENDFIELD-10-

and fra ud and its motion for reconsideration of its motion for a new trial. Newl y discovered evidence which by due diligence could not have been discovered in time to move for a new trial may be grounds for relief from a final judgme nt under Fed.R.Civ.P. 60(b )(2). Hicks v. Six Flags Over Mid-America , 821 F.2d 1311, 1317 n.6 (8th Cir

. 1987). Under Fed.R.Civ.P. 60(b)(3), the trial court may relieve a party from a fina l judgment based upon fraud, misrepresentation or other misco nduct of the adverse party. Id . Relief is only available under Rule 60(b)(3) where t he party's misconduct prevented the moving party from fully and fairly presenting its case. E. F. Hutton & Co., Inc. v. Berns , 757 F.2d 215, 217 (8th Cir. 1985). The moving party is required to prove the alleged mis conduct by clear and convincing evidence. Hicks at 1317. Further, thi s Court will not overturn a district court's Rule 60(b ) ruling absent an abuse of discretion. Mitchell v. Shalala , 48 F.3d 1039, 1041 (8th Cir. 1995). One of the major f

actual issues in the case was the timing of the School Board's dis cussion of Cowan's "job targets" which were issued in August of 1992. Schoo l Boardmember Roger Lile testified at trial that he could remember with certainty that the Board had discussed issuing job targets to Cowan in March of 1992 because it was around the same time that Cowan experienced a miscarriage. In response to thi s t e stimony, Cowan took the stand and told the jury that she had suffered a miscarriage in the spring of 1993, not in 1992. If the job targets were not discussed at the March 199 2 School Board meeting, the implication was that the job targets were issued i n August as a consequence of the magic rock letter.

After th e conclusion of the trial, the School District examined Cowan's medical

recor ds and found evidence that Cowan had an abortion as a result of an ectopi c pregnancy at about

the same time Lile believed that she had had a miscarriage. Based uponthis evidence, the School District filed its 60(b) motion arguing that Cowan had lied regarding her pregnancies.

The distric t court soundly rejected the School District's argument. The medical evidence presented to the court indicates that Cowan had an ectopic or tubal pregnancy-11-

that was surgically terminated in the spring of 1992 and suffered a miscarriage in th e sprin g of 1993. This Court agrees with the district court that Cowan did not li e regarding the pregnancy in the spring of 1992. Instead, the School District did not ask Cowan questions that would have elicited the information now complained abou t regarding that pregnanc y. This circumstance does not provide an appropriate basis to grantRule 60(b) relief, nor is the newly discovered evidence of sufficient weight, i n view of the tr ial record, to grant the School District's motion. Baxter Int’l, Inc. v

. Morris , 1 1 F.3d 90, 93 (8th Cir. 1993). Therefore, the trial court did not abuse it s discretion by denying the Rule 60 (b) motion. Simi larly, the district court did not abuse its discretion in refusing to reconsider the School District's motion for a new trial.

D. Reinstatement
Finally, the Court mus t consider whether the trial court erred in granting Cowan equitable r elief in the form of two years front pay. The trial court's decision to gran t Cowan front pay is reviewed for abuse of discretion. Standley v. Chilhowee R-I V School Dist

. , 5 F.3d 319, 322 (8th Cir. 1993). The district court determined tha t although reinstatement is generally the preferred remedy in an unlawful employmen t termination case, this case presented e xtraordinary circumstances which warrant denial of reinstatement. See, e.g. , McIntosh v. Jones Truck Lines, Inc. , 767 F .2d 433 (8th Cir. 1985); see also Standley , 5 F.3d 321-22. We believe the district court correctl y
con cludedthat the teacher-principal relationship between Cowan and Cogdill was s o badly damaged that no ne could be reestablished. Without such a working relationship the school would not be able to function properly. Id . Thus, where reinstatemen t presents so extreme a burden this remedy becomes impossible.
Further, we conclude that the trial court correctly determined that two years front pay was the appropriate award in t his case. After a finding of discrimination, the court has an obl igation to fulfill the make-whole purposes of Title VII. Taylor v. Teletyp e Corp. , 648 F.2d 1129, 1138 (8th Cir. 1981). An award of front pay, however,-12-

requires the court to consider a number of complicated factors. Here, Cowan was a prob ationary teacher with a one-year contract, and there was no guarantee that sh e wouldcontinue with the School District because she might move to a different job or be cause her contract might not be renewed for legitimate reasons. Under suc h circumstances, the district court did not abuse its discretion in awarding two years front pay.

III. CONCLUSION

We affirm the district court’s entry of judgment on the jury verdict in this cas e
as there was sufficient evidence presented at trial from which a reasonable jury could find in fa vor of Cowan. Also, the trial court properly denied the School District' s motion underRule 60(b). Finally, the district court did not abuse its discretion i n refusing to order reinstatement. The facts of this case demonstrate that reinstatement would be impracticable, if not impossible, given the nature of school operations.
HANSEN, Circuit Judge, concurring.

I con cur in the court's opinion and its judgment, but only because the Schoo l District failed adequate ly to raise the issue of whether Cowan met her initial burden of show ing a prima facie case. See McDonnell Douglas Corp. v. Green , 411 U.S. 792 , 802 (1973).

Title VII makes it unlawful f or an employer to discriminate against an employee "because of such individual's . . . religion[.]" 42 U.S.C. § 2000e-2(a)(1). Religion is defined to include "all aspects of religious obs ervance and practice, as well as belief[.]" Id. § 2000e(j). This court has uniformly interpreted this statute to require a religiou s discrimination plaintiff to ple ad and prove both that she has a bona fide religious belief

an dthat she has suffered an adverse employment action because of this bona fid e religious belief. See, e .g. , Vetter v. Farmland Indus., Inc. , 120 F.3d 749, 751 (8th Cir.-13-

1997); Tribulak v. M inirth-Meier-Rice Clinic , 1997 WL 177456, at *1 (8th Cir. 1997) (unpu blished); Wilson v. U. S. West Communications , 58 F.3d 1337, 1340 (8th Cir

. 1995); John son v. Angelica Unif. Group, Inc. , 762 F.2d 671, 673 (8th Cir. 1985) ; Brown v. General Motors Corp. , 601 F.2d 956, 959 (8th Cir.1979).
Cowan has never once suggested that she has a bona fide religious belief relating to ma gic rocks, much less that her employer knew of such a belief or decided not t o renew her contract because of it. Her Title VII claim is therefore insu fficient as a matter of law and probably would not have withstood a properly crafted motion to dismiss for fai lure to state a claim. See Fed. R. Civ. P. 12(b)(6). Were the issue properly raised, I would reverse the district court. However, because the School District has not raised this issue, I concur.

A true copy.

ATTEST:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.