United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 03-2624

___________

Betty Lou Dossett, *

*

Appellant, *

*

v. * 

*

First State Bank, Loomis, Nebraska, *

*

Appellee. *

______________________ * Appeal from the United States

 * District Court for the

Betty Lou Dossett, * District of Nebraska.

*

Appellant, *

*

v. *

*

Lauritzen Corporation, doing business *

as Financial Services Company, *

*

Appellee. *

___________

Submitted: June 16, 2004

Filed: February 28, 2005

___________

Before MORRIS SHEPPARD ARNOLD, RILEY, and COLLOTON, Circuit Judges.

___________

COLLOTON, Circuit Judge.
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Betty Lou Dossett brought this action pursuant to 42 U.S.C. § 1983 against her

former employer, First State Bank of Loomis, Nebraska, (“Bank”) and the Lauritzen

Corporation (“Lauritzen”). Dossett claimed that the defendants conspired with the

Loomis School District (“School District”) to terminate her employment at the Bank

in retaliation for her exercising the constitutional right to freedom of speech at a

public school board meeting. Dossett appeals several decisions made by the district

court in the trial and re-trial of her case. We affirm in part, reverse in part, and

remand for a new trial.

I.

Dossett is a resident of Holdredge in Phelps County, Nebraska. In February

1994, she began working at the Bank, where she “did a little bit of everything,”

including serving as a teller and bookkeeper. On January 15, 1998, Dossett attended

a public meeting held by the Phelps County R-6 School District where the issue of

merging with the Loomis School District was discussed. At the meeting, she inquired

why no one from the Loomis School District had informed the public about potential

tax consequences of the proposed merger.

The Loomis School District was one of the Bank’s largest deposit accounts.

After the meeting, the Loomis School District superintendent and two members of the

Loomis school board spoke about the meeting with employees of the Bank, including

the president of the Bank, John Nelsen. The superintendent, Keith Fagot, who also

had his personal bank accounts at the Bank, informed Nelsen that he felt Dossett

inappropriately had questioned his integrity and the integrity of the Loomis school

board members. As a result, Fagot said that he would wait for another teller when

visiting the Bank in order to avoid contact with Dossett. Nelsen believed that as

superintendent, Fagot had the power to direct the School District’s funds elsewhere.

Nelsen also heard that school board member Nancy Morse, who maintained a

personal account at the Bank, was upset by Dossett’s remarks at the meeting. School
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board member Mike Thorell, a prospective customer of the Bank, also informed

Nelsen that he was offended by Dossett’s comments and would not be comfortable

with her waiting on him as a teller. 

Nelsen reported the problem relating to Dossett to Dan O’Neill, the executive

vice president of Lauritzen and president of Financial Services Company, a division

of Lauritzen. O’Neill testified that Nelsen told him that several customers had

threatened to change banks or sever their relationships with the Bank because of

Dossett's remarks. Nelsen denied that any of the school board members or the

superintendent threatened to remove funds from the Bank or demanded that Dossett

be fired. Ultimately, on January 29, 1998 – two weeks after the public meeting

regarding the merger – Nelsen terminated Dossett's employment. At the termination

meeting, Nelsen informed Dossett that as a result of her comments, the Bank was on

the verge of losing two large depositors and loan customers. In a letter, Nelsen

further advised Dossett that her employment was terminated because of “comments

made by [her] during a meeting on January 15, 1998, which were negative about our

local school board and superintendent, thereby reflecting poorly on our community

and placing at risk substantial customers of the Bank.”

At the end of a first jury trial, the jury returned a verdict in favor of Dossett in

the amount of $1,555,678.76. The day after the verdict, the district court sua sponte

notified the parties that it was considering the grant of a new trial on both liability and

damages, because the court tentatively believed the verdict was excessive and the

product of passion and prejudice. After briefing and argument, the court ordered a

new trial. With regard to the first trial, Dossett appeals the district court’s decisions

granting a new trial, granting defendant Lauritzen’s motion for judgment as a matter

of law, and denying Dossett’s request for a punitive damages instruction.

After a second trial, the jury returned a verdict in favor of the Bank. Dossett

claims that one of the key jury instructions was erroneous. She complains about an
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instruction that required her to prove in her First Amendment retaliation claim that

the School District superintendent and board members, who allegedly conspired with

the Bank, had “actual authority” or “apparent authority” as agents of the School

District to enter into an agreement with the Bank to discharge Dossett in retaliation

for the comments she made at the school board meeting. Moreover, Dossett claims

that she was entitled to further discovery on this element of actual or apparent

authority, and that the district court erred in conditioning further discovery on her

payment of the Bank’s costs in preparing for trial. In addition, Dossett contends that

the district judge erred in denying her motion for recusal, a request for a punitive

damages instruction, and a motion for a new trial.

II.

At the conclusion of Dossett’s case-in-chief in the first trial, on February 11,

2003, the district court entered judgment in favor of Lauritzen pursuant to Federal

Rule of Civil Procedure 50(a). When the district court granted a new trial with

respect to claims against the Bank on February 28, 2003, it stated that for purposes

of Federal Rule of Civil Procedure 54(b), there was no just reason to delay entering

a final judgment dismissing with prejudice all claims against Lauritzen. At that point,

there was indisputably a final judgment subject to appeal, but Dossett did not file her

notice of appeal in this case until June 6, 2003. As a result, Dossett’s notice of appeal

with respect to Lauritzen was untimely under Federal Rule of Appellate Procedure

4(a)(1)(A), because it was not filed within 30 days after the district court entered

judgment in favor of Lauritzen. See Speer v. City of Wynne, 276 F.3d 980, 988 (8th

Cir. 2002). Accordingly, we lack jurisdiction to address Dossett’s claim that the

district court erred in granting judgment as a matter of law in favor of Lauritzen. See

Browder v. Dir., Dep’t of Corrs. of Ill., 434 U.S. 257, 264 (1978) (time limit set forth

in Federal Rule of Appellate Procedure 4 regarding when to file a notice of appeal is

“mandatory and jurisdictional”).
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III.

After the first trial, the district court advised the parties that the court was

considering an order for a new trial on its own motion pursuant to Federal Rule of

Civil Procedure 59(d). After consideration of the parties’ briefs and oral arguments,

the court ordered a new trial on Dossett’s First Amendment claim. Relying on

Sanford v. Crittenden Memorial Hospital, 141 F.3d 882, 884-86 (8th Cir. 1998), the

district court granted a new trial because the verdict of $1,555,678.76 was

“excessive” and “the finding of liability and the award of damages was the product

of passion and prejudice.” (J.A. at 183). Under our precedents, review of the district

court’s decision to grant a new trial based on the size of the verdict is “extraordinarily

deferential,” in view of the opportunity of the district court to hear the testimony,

observe the demeanor of the witnesses, and know the community and its standards.

Sanford, 141 F.3d at 884; see also Solomon Dehydrating Co. v. Guyton, 294 F.2d

439, 447-48 (8th Cir. 1961). 

We cannot say that the district court abused its discretion in finding that the

jury’s verdict of over $1.5 million was excessive and a product of passion and

prejudice. The jury was instructed to base any award only on actual damages, which

in this case included lost wages and “emotional pain, suffering, inconvenience,

mental anguish, loss of enjoyment of life and reputation damage.” (J.A. at 155). The

jury was not instructed to consider punitive damages. Because the parties stipulated

that the amount of Dossett’s lost wages was $55,678.76, (id. at 513), it follows that

the jury awarded Dossett exactly $1.5 million for pain, suffering, and other noneconomic damages. Even Dossett’s attorney was not so bold as to argue for anything

close to that sum. During closing arguments, he urged only a total of $500,000 in

damages. 

The first jury’s award, as far as we can tell, would represent an unprecedented

amount of damages in a First Amendment retaliation case. Dossett has not identified
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any comparable award, and our precedents generally involve damages well below the

seven-figure sum at issue here. See, e.g., Naucke v. City of Park Hills, 284 F.3d 923,

926-27, 930 (8th Cir. 2002) (upholding award of $8,542 in back pay, $50,000 for

emotional distress, and $100,000 for punitive damages for a fired chief of the fire

department, and $6,750 in back pay, $10,000 for emotional distress, and $30,000 in

punitive damages for a fired part-time fireman); Campbell v. Ark. Dep't of Corr., 155

F.3d 950, 957 (8th Cir. 1998) ($94,000 for back pay, mental and emotional distress,

humiliation, and loss of reputation); Casey v. City of Cabool, 12 F.3d 799, 802 (8th

Cir. 1993) ($18,888 in damages); Trudeau v. Wyrick, 713 F.2d 1360, 1368 (8th Cir.

1983) ($25,000 in actual damages was not excessive). Dossett argues that her case

is comparable to Rustenhaven v. American Airlines, Inc., 320 F.3d 802 (8th Cir.

2003), in which the jury awarded $4,242,000 to a plaintiff who survived a plane crash

and suffered physical and various cognitive injuries. Id. at 804. But while our court

concluded that the evidence of mental and emotional consequences was sufficient to

support an award of $3,242,000 (after remittitur), we emphasized that the noneconomic damages were the result of physical injuries sustained in a traumatic, lifethreatening accident. Id. at 807-09. The factual scenario presented in Rustenhaven

is so different from the case at hand that the district court was well within its

discretion to measure the reasonableness of Dosset’s damages award differently from

Rustenhaven’s. Although Dossett did experience a tumultuous period after losing her

job, it was not an abuse of discretion to find that an award for non-economic damages

of almost twenty-eight times her lost wages was excessive.

Dossett also argues that even if the jury award was the product of passion and

prejudice, the district court should not have granted a new trial on the issue of

liability, or, alternatively, that the court should have offered her a remittitur. It is

“generally inappropriate,” however, to order only a partial new trial on the issue of

damages when the district court concludes the damages award was motivated by

passion and prejudice. Sanford, 141 F.3d at 885. We have reasoned that if passion

or prejudice influenced the jury’s damages decision, then that same passion or
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prejudice may well have affected its decision on the issue of liability as well. Id. For

similar reasons, absent unusual circumstances, a remittitur is not appropriate when

there is a finding of passion or prejudice. Id.; Everett v. S.H. Parks & Assocs., Inc.,

697 F.2d 250, 253 n.5 (8th Cir. 1983). Finding no unusual circumstances here, we

hold that the district court did not abuse its discretion in granting a new trial with

respect to damages and liability and refusing to offer a remittitur.

IV.

In the second trial, the claim tried to the jury was Dossett’s allegation that the

Bank and the School District conspired to have her terminated for exercising her First

Amendment rights at the R-6 school board meeting, and that the Bank was liable for

that conspiracy under 42 U.S.C. § 1983. This claim was premised on the Supreme

Court’s recognition that a private actor may be liable under § 1983 when the private

actor “‘is a willful participant in joint activity with the State or its agents’” in denying

a plaintiff’s constitutional rights. Adickes v. S.H. Kress & Co., 398 U.S. 144, 152

(1970) (quoting United States v. Price, 383 U.S. 787, 794 (1966)); see also Tower v.

Glover, 467 U.S. 914, 920 (1984) (“[A]n otherwise private person acts ‘under color

of’ state law when engaged in a conspiracy with state officials to deprive another of

federal rights.”); Dennis v. Sparks, 449 U.S. 24, 27-28 (1980). The jury ultimately

returned a verdict in favor of the Bank.

Dossett’s principal claim on appeal relates to the district court’s jury instruction

concerning the elements of her § 1983 claim. Section 1983 imposes liability for

certain actions taken “under color of” law that deprive a person “of a right secured

by the Constitution and laws of the United States.” Lugar v. Edmondson Oil Co., 457

U.S. 922, 931 (1982) (internal quotation omitted). A deprivation of rights secured by

the First Amendment – against the States by way of the Fourteenth Amendment –

requires state action, see United Bhd. of Carpenters Local 610 v. Scott, 463 U.S. 825,

830-32 (1983), and “[i]n cases under § 1983, ‘under color’ of law has consistently
1

Jury Instruction No. 9 stated:

Third, there was a voluntary understanding, or willing meeting of

the minds, between Defendant and the Loomis School District that

Defendant would discharge Plaintiff in retaliation for the comments

made by Plaintiff at the R-6 school meeting. 

Before you may find that there was such an understanding or

meeting of the minds, you must find that the superintendent or one or

more members of the school board of the Loomis School District had

either “actual authority” or “apparent authority” as agents of the District

to enter into the understanding or meeting of the minds. 

“Actual authority” exists when an agent acts within the scope of

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been treated as the same thing as the ‘state action’ required under the Fourteenth

Amendment.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 928 (1982) (quoting

United States v. Price, 383 U.S. 787, 794 n.7 (1966)). Whether the school

superintendent and other school board members acted under color of law or in their

purely private capacities as bank customers during interaction with the Bank was

sharply contested at trial. Dossett asserts that the district court’s instruction on this

element of her claim was error.

Because Dossett claimed that the Bank was liable under § 1983 pursuant to the

“joint action” theory of Adickes, the district court instructed the jury that for Dossett

to prove her claim, she must establish that “there was a voluntary understanding, or

willing meeting of the minds, between Defendant and the Loomis School District that

Defendant would discharge Plaintiff in retaliation for the comments made by Plaintiff

at the R-6 school meeting.” (J.A. at 737.) With regard to the role of the school

officials, the district court advised the jury that it “must find that the superintendent

or one or more members of the school board of the Loomis School District had either

‘actual authority’ or ‘apparent authority’ as agents of the District to enter into the

understanding or meeting of the minds.”1

 During the jury instruction conference, the
his or her authority. The conduct of an agent is within the scope of his

or her authority: 

1. When it is the kind of thing he or she was employed or elected

to do;

2. When it is done substantially within any authorized limits on

time and place; and 

3. When it is done with at least the partial intention of furthering

the interests of his or her principal (in this case, the Loomis School

District).

For “apparent authority” to exist in this case, 

1. The Loomis School District must have led Defendant to

believe that its superintendent or one or [sic] members of the school

board had authority to agree that Defendant would discharge Plaintiff in

retaliation for the comments made by Plaintiff at the R-6 school

meeting; and 

2. Defendant’s belief that the superintendent or one or more

school board members had this authority must have been reasonable. 

If Plaintiff fails to prove any one of the three essential elements

of her First Amendment claim, your verdict must be for the Defendant.

(J.A. at 737-38).

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district court explained that it adopted this instruction to make the issue of “state

action” more “sensible to the jury . . . [b]y using actual authority and apparent

authority as opposed to magic words state action and that sort of thing.” (Trial Tr.

5/22/03, at 445). 
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Dossett contends that this jury instruction was erroneous because it required

her to prove that the school board members or superintendent had official authority

to enter into an understanding that Dossett should be fired in retaliation for exercising

her First Amendment rights. Dossett contends that the district court instead should

have given the model Eighth Circuit jury instruction on “color of state law” – “[a]cts

are done under color of law when a person acts or purports to act in the performance

of official duties under any state, county or municipal law, ordinance or regulation,”

8th Cir. Civil Jury Instr. 4.40 (2001) – which, ironically, was the instruction

requested by the Bank on this point. (Trial Tr. 5/22/04, at 443). We review the

district court’s jury instructions for abuse of discretion, making sure that they fairly

represent the evidence and applicable law. Warren v. Prejean, 301 F.3d 893, 900

(8th Cir. 2002). 

Under the instruction given to the jury, Dossett was required to prove that the

school board members or the superintendent had “authority” – actual or apparent –

to enter willingly into an understanding with the Bank to terminate Dossett in

retaliation for the exercise of her First Amendment rights. As defined, school

officials had “actual authority” only if an action was “the kind of thing he or she was

employed or elected to do” and an official had “apparent authority” only if the Bank

was led to believe that the school official “had authority” to make the agreement to

retaliate against Dossett, and it was “reasonable” for the Bank to believe that the

school officials had this authority. In other words, if the school officials acted in a

way that a reasonable person would believe was outside the official’s authority from

the School District, then the school officials were not acting “under color of law”

within the meaning of the jury instructions. 

We agree with Dossett that the disputed instruction was error, because it

excluded from the scope of “under color of” law actions taken by a school official

who was purporting to act in the performance of official duties, but was acting

outside what a reasonable person would believe the school official was authorized to
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do. “The traditional definition of acting under color of state law requires that the

defendant in a § 1983 action have exercised power ‘possessed by virtue of state law

and made possible only because the wrongdoer is clothed with the authority of state

law.’” West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313

U.S. 299, 326 (1941)). At the same time, however, the Supreme Court has made clear

that even the “[m]isuse of power” possessed by virtue of state law is action taken

“under color of state law.” Classic, 313 U.S. at 326. Thus, “under ‘color’ of law”

means “under ‘pretense’ of law,” and “[a]cts of officers who undertake to perform

their official duties are included whether they hew to the line of their authority or

overstep it.” Screws v. United States, 325 U.S. 91, 111 (1945) (plurality opinion)

(emphasis added); accord id. at 115-16 (Rutledge, J., concurring in the result).

Applying these principles, the Supreme Court in Adickes held that the involvement

of a police officer in a conspiracy to deprive a citizen of equal protection of the laws

“plainly provides the state action essential to show a direct violation of petitioner’s

Fourteenth Amendment equal protection rights, whether or not the actions of the

police were officially authorized, or lawful.” 398 U.S. at 152 (emphasis added).

That is not to say that every action of a school official is under color of law

simply because the official is a public employee. “[A]cts of officers in the ambit of

their personal pursuits are plainly excluded,” Screws, 325 U.S. at 111, so exhortations

or agreements by a bank customer who also happens to be a school official do not

necessarily constitute actions under color of law. But on the other hand, the mere fact

that a school official also has a personal account at the Bank does not mean that the

official’s interactions with the Bank are exempt from scrutiny under § 1983.

“[G]enerally, a public employee acts under color of state law while acting in his

official capacity or while exercising his responsibilities pursuant to state law.” West,

487 U.S. at 50. Hence, as noted, one of the fighting issues in this case has been

whether school officials acted in their personal or official capacities when

communicating with the Bank about Dossett.
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The challenged jury instruction unduly narrowed the official capacity or “under

color of law” side of this equation. If the jury believed that a school official,

purporting to act in the performance of official duties, sought an agreement with the

Bank to terminate Dossett in retaliation for the exercise of her First Amendment

rights, but the jury believed that the school official’s actions were both unauthorized

and beyond those the Bank reasonably believed were authorized by the School

District, then the jury was directed to find that the school official was not acting under

color of law. This is not a correct application of the law. Just as a police officer

conspiring to obtain a search warrant based on false evidence, see Mark v. Furay, 769

F.2d 1266, 1273-74 (7th Cir. 1985), or a judge agreeing to issue an injunction in

exchange for a bribe, Sparks, 449 U.S. at 26-28 & n.5, may act under color of law

despite exceeding his actual and apparent authority as defined in these instructions,

a school official reaching a mutual understanding with a private actor to retaliate

against a private citizen for questioning the work of the school board may do the

same. Accordingly, we conclude that the jury instruction defining the elements of the

§ 1983 conspiracy was erroneous. By eliminating one potentially viable avenue to

establish liability, the error affected Dossett’s substantial rights. See Fed. R. Civ. P.

61.

V.

The Bank argues alternatively that even if the jury instruction was erroneous,

the judgment should be affirmed on the ground that a private employer cannot be

liable for violating the First Amendment rights of an employee based on “joint

action” with a state actor under Adickes. The Bank observes that whether a public

employee’s speech is protected by the First Amendment is subject to a balancing test.

See Pickering v. Board of Educ., 391 U.S. 563, 568 (1968). It contends that in the

case of a private employer alleged to have conspired with a state actor to retaliate

against a private employee for the exercise of First Amendment rights, the Pickering
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balance should be applied, and “any balancing must be decided in favor of the private

employer.” (Appellee’s Br. at 34). The district court rejected this contention.

We agree with the district court that the Supreme Court’s decision in Pickering

is not applicable in this situation. Pickering concerned speech on matters of public

concern by a public school teacher, and the Court recognized that “the State has

interests as an employer in regulating the speech of its employees that differ

significantly from those it possesses in connection with regulation of the speech of

the citizenry in general.” 391 U.S. at 568. The Court thus reasoned that “[t]he

problem in any case is to arrive at a balance between the interests of the teacher, as

a citizen, in commenting upon matters of public concern and the interest of the State,

as an employer, in promoting the efficiency of the public services it performs through

its employees.” Id. Dossett, by contrast, was not a public employee. She was a

member of “the citizenry in general,” and her speech on matters of public concern

clearly was protected by the First Amendment against abridgment by state actors,

without regard to a Pickering “balancing test.” 

We see no reason why a private actor may not be liable under § 1983 for

conspiring with state officials to violate a private citizen’s right to freedom of speech

under the First Amendment, just as it may be held liable for conspiring to violate

other constitutional rights. See, e.g., Hudson v. Chi. Teachers Union Local No. 1, 743

F.2d 1187, 1191 (7th Cir. 1984) (“[W]hen a public employer assists a union in

coercing public employees to finance political activities, that is state action; and when

a private entity such as a union acts in concert with a public agency to deprive people

of their federal constitutional rights, it is liable under section 1983 along with the

agency.”). In Pendleton v. St. Louis County, 178 F.3d 1007 (8th Cir. 1999), we said

that “retaliation against protected speech can result in section 1983 liability even if

it ultimately is carried out by a private actor.” Id. at 1011. We held that the plaintiff

in that case stated a claim against state defendants for conspiring to deny

constitutional rights, because he alleged a meeting of the minds between the private
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employer, who allegedly forced the plaintiff to resign, and a state actor who allegedly

contacted the private employer in an effort to have the plaintiff terminated. Although

the private employer was not a party to the interlocutory appeal, it is clear that a

private entity acts under color of state law when engaged with state officials in a

conspiracy to deprive a person of federal constitutional rights. We think it follows

from Pendleton that both state officials and private actors may be liable under § 1983

for conspiring to retaliate against protected speech, if the evidence shows the

requisite agreement to violate or disregard the law.

In support of its argument that the Pickering balancing test should apply to this

case, the Bank complains that if Dossett were to prevail, then “a private employer

faced with potentially devastating loss of business could not take the only action that

would save its business.” (Appellee’s Br. at 34). We think this cataclysmic

prediction misunderstands Dossett’s claim. The allegation is not merely that the Bank

discharged Dossett because it exercised business judgment in the best interests of its

shareholders, or that it succumbed to economic pressure from school officials who

threatened to withdraw the school board’s significant bank account. If that were all

the evidence showed, then it may well be insufficient to establish liability for a

conspiracy under § 1983. Cf. Helvey v. City of Maplewood, 154 F.3d 841, 844-45

(8th Cir. 1998) (holding that, although private employer told plaintiff employee “[t]he

City says I have to fire you,” and the “City will revoke [my] license and put [me] out

of business unless [I] fire [you],” employee “offered no evidence” that private

employer “willingly agreed” with city manager to retaliate against her for testifying

in court proceeding, and thus dismissing claims under 42 U.S.C. § 1985 and state

civil conspiracy law).

Under § 1983, a plaintiff must establish not only that a private actor caused a

deprivation of constitutional rights, but that the private actor willfully participated

with state officials and reached a mutual understanding concerning the unlawful

objective of a conspiracy. See Adickes, 398 U.S. at 152. In Adickes, for example, the
2

See also United Steelworkers v. Phelps Dodge Corp., 865 F.2d 1539, 1546

(9th Cir. 1989) (en banc) (A disputed issue of material fact existed as to whether

private actor conspired to violate civil rights of strikers where a reasonable jury could

infer that company’s actions were designed not only to protect workers and property,

but “reflect[ed] an intent to punish the strikers. . . . This evidence . . . goes to the most

critical issue in the case: whether Phelps Dodge intended to violate the strikers’ civil

rights.”) (emphasis added); id. at 1548-50 (Trott, J., dissenting); Fonda v. Gray, 707

F.2d 435, 438-39 (9th Cir. 1983) (“To prove a conspiracy between private parties and

the government under § 1983, an agreement or ‘meeting of the minds’ to violate

constitutional rights must be shown,” and § 1983 claim failed where plaintiff “did not

produce evidence of the existence of a ‘meeting of the minds’ between the banks and

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Supreme Court considered whether Kress & Company was entitled to summary

judgment on the claim that it had conspired with city police to violate the plaintiff’s

equal protection rights when Kress refused service at a food counter. Kress argued

that summary judgment was warranted because evidence of its store manager’s nondiscriminatory motive for refusing service was undisputed. The store manager

claimed that Miss Adickes was refused food service “only because he was fearful of

a riot in the store by customers angered at seeing a ‘mixed group’ of whites and

blacks eating together.” 398 U.S. at 154. The Court rejected that argument, noting

that the plaintiff presented evidence “specifically disputing the manager’s assertion

that the situation at the store at the time of the refusal was ‘explosive,’ thus creating

an issue of fact as to what his motives might have been in ordering the refusal of

service.” Id. at 157 (emphasis added). The Court explained that the store manager’s

intent and motive were important to the question whether the store was liable under

§ 1983: “[Adickes] will be entitled to relief under § 1983 if she can prove that a

Kress employee, in the course of employment, and a Hattiesburg policeman somehow

reached an understanding to deny Miss Adickes service in the Kress store, or to

cause her subsequent arrest because she was a white person in the company of

Negroes.” Id. at 152 (emphasis added); see also DuBose v. Kelly, 187 F.3d 999, 1003

(8th Cir. 1999) (“The key inquiry is whether the private party was a willful participant

in the corrupt conspiracy.”).2
the FBI to knowingly attempt to accomplish an alleged wrongful purpose, a necessary

element of her conspiracy claim.”) (emphasis added); Kevin F. O’Malley, et al.,

Federal Jury Practice and Instructions § 167.31 (5th ed. 2001) (providing that in

claim of conspiracy to interfere with civil rights, “it must be shown by a

preponderance of the evidence that the conspiracy was knowingly formed, and that

the defendant who is claimed to have been a member knowingly participated in the

unlawful plan with the intent to advance or further some object or purpose of the

conspiracy”) (emphasis added); cf. Norton v. Liddel, 620 F.2d 1375, 1379 (10th Cir.

1980) (“[W]here a private individual actively conspires with an immune State official

(acting under color of law) with the intent to purposely and knowingly deprive an

individual of his rights secured under the Constitution and laws of the United States,

the fact that the State official is immune from suit in damages should not provide a

windfall defense to the private conspirator.”) (emphasis added).

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In this case, Dossett alleges that the Bank shared an unlawful objective with

the school officials. She asserts that the Bank willfully participated with school

officials to terminate her in retaliation for her exercise of First Amendment rights.

Although there was a good deal of evidence suggesting that the bank president was

primarily concerned that Dossett’s continued employment jeopardized the Bank’s

ability to retain the school district’s substantial bank account and other accounts,

Dossett also elicited testimony that “the basic reason” the Bank dismissed Dossett

was “the content of what she said at the school board meeting.” (Trial Tr. 5/21/03,

at 243). The Bank’s termination letter stated that Dossett was dismissed as a result

of comments she made during a school board meeting, “which were negative about

our local school board and superintendent, thereby reflecting poorly on our

community and placing at risk substantial customers of the Bank.” (J.A. at 763)

(emphases added). The district court concluded that there was a submissible issue as

to whether school officials and the Bank agreed to retaliate against Dossett, (Trial Tr.

5/22/03, at 446), and the Bank does not contest this point on appeal. As discussed,

the Bank’s submission on appeal is a broader claim that as a matter of law, a private

employer may never be liable under § 1983 for conspiring to violate the First

Amendment rights of a private employee, and we reject that proposition for the

reasons stated.
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VI.

Dossett also appeals the district court’s denial of her motion for recusal, which

she filed after the district court ordered a new trial and revised the jury instructions.

A judge should recuse himself if his “impartiality might reasonably be questioned.”

28 U.S.C. § 455. Dossett argues that the district judge projected an appearance of

partiality when he granted a new trial on his own initiative, circulated his own set of

jury instructions that revised the elements of Dossett’s § 1983 conspiracy claim,

denied Dossett’s requests for a continuance for further discovery in light of the new

jury instruction, rejected an instruction on punitive damages, and refused to permit

discovery regarding the Bank’s claim of reliance on counsel in defense of punitive

damages. Dossett also asserts that the trial judge “assisted” the Bank’s counsel by

advising him of the ramifications of a particular line of questioning for waiver of the

attorney-client privilege, prompting counsel for the Bank to withdraw the question

to avoid waiving the privilege.

The district court’s denial of a recusal motion is committed to its sound

discretion, and we review that decision only for abuse of discretion. Moran v. Clarke,

296 F.3d 638, 648 (8th Cir. 2002) (en banc). Recusal is required when an average

person knowing all the relevant facts of a case might reasonably question a judge’s

impartiality. Id. The crux of Dossett’s claim is that the district judge’s adverse

rulings on several key issues demonstrate partiality or bias toward the Bank. Adverse

judicial rulings, however, “almost never” constitute a valid basis for recusal; the

proper recourse for a dissatisfied litigant is appeal. Liteky v. United States, 510 U.S.

540, 555 (1994); accord Fletcher v. Conoco Pipe Line Co., 323 F.3d 661, 665-66 (8th

Cir. 2003). 

We find no basis in the record to conclude that the district judge showed “a

deep-seated favoritism or antagonism that would make fair judgment impossible.”
3

With regard to Dossett’s claim that the district court “assisted” the Bank’s

counsel regarding a matter involving potential waiver of the attorney-client privilege,

it is evident to us that the court anticipated a potential controversy over “difficult

issues about the extent of waiver,” (Trial Tr. 2/11/03, at 176-77), and thus raised the

matter with counsel in advance as part of an effort to manage the trial. We disagree

with Dossett’s contention that the court’s action evinces favoritism requiring recusal.

-18-

Liteky, 510 U.S. at 555.3

 The district court’s actions in this case are not even in the

same realm as the judicial partiality that arose in United States v. Singer, 710 F.2d

431, 435-36 (8th Cir. 1983), upon which Dossett relies, where we ordered recusal

when the judge guided counsel for the government through almost every element of

the trial and admitted in front of the jury that he was helping the government try its

case. The district court did not abuse its discretion in denying the motion for recusal,

and we have no reason to believe that the district court will conduct future

proceedings in this matter with anything other than judicious impartiality.

VII.

Dossett next contends that the district court erred by denying her request for

a jury instruction on punitive damages. Although Dossett frames the issue as an

objection to the court’s jury instructions, in substance she objects to the district

court’s grant of the Bank’s motions for judgment as a matter of law on her punitive

damages claims. (Trial Tr. 2/11/03, at 345; Trial Tr. 5/22/03, at 436). We review de

novo a district court’s grant of a judgment as a matter of law. Standley v. Chilhowee

R-IV Sch. Dist., 5 F.3d 319, 323 (8th Cir. 1993). Judgment as a matter of law is

appropriate when “a party has been fully heard on an issue and there is no legally

sufficient evidentiary basis for a reasonable jury to find for that party on that issue.”

Fed. R. Civ. P. 50(a). Like the district court, we do not make credibility

determinations or weigh the evidence, and we draw all reasonable inferences in favor

of the non-moving party. Standley, 5 F.3d at 323.
-19-

Under § 1983, a jury may assess punitive damages “when the defendant’s

conduct is shown to be motivated by evil motive or intent, or when it involves

reckless or callous indifference to the federally protected rights of others.” Smith v.

Wade, 461 U.S. 30, 56 (1983). To support her claim of callous indifference, Dossett

relies on the testimony of John Nelsen, the president of the Bank, who stated that an

employee’s rights to free speech were limited if the speech harmed her employer’s

business. This evidence does not rise to the level of reckless or callous indifference

to constitutional rights. Indeed, absent willful participation in “joint action” with

state officials to retaliate for the exercise of constitutional rights, the Constitution

does not prevent the Bank, as a private actor, from terminating an employee’s at-will

employment if her public speech would damage the financial interests of the Bank.

See Manson v. Little Rock Newspapers, Inc., 200 F.3d 1172, 1173 (8th Cir. 2000).

In this case, it is undisputed that the Bank explored its options with counsel and

other persons in the banking industry for two weeks before deciding that Dossett

should be terminated. The legal issues are difficult, and the Bank’s potential liability

under § 1983 turns on subtle questions concerning its intent and motivation in

terminating Dossett, and whether it reached a “meeting of the minds” with school

officials to violate Dossett’s constitutional rights. Even assuming a jury were to find

that the Bank engaged in unlawful joint action with school officials, we do not

believe the record supports a finding that its conduct was so callous as to warrant an

award of punitive damages. Accordingly, we uphold the judgment as a matter of law

dismissing Dossett’s claim for punitive damages.

* * *

In sum, we dismiss Dossett’s appeal with respect to Lauritzen because her

notice of appeal was untimely. We affirm the district court’s grant of a new trial after

the first jury verdict, its judgment as a matter of law for the Bank on Dossett’s claim

for punitive damages, and its denial of the motion for recusal. We reverse the
-20-

judgment for the Bank on Dossett’s § 1983 conspiracy claim after the second trial,

and remand for further proceedings consistent with this opinion.

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