                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    _____________

                                    No. 98-2822MN
                                    _____________

Catherine M. LaClair,                   *
                                        *
              Appellant,                *
                                        * On Appeal from the United
      v.                                * States District Court
                                        * for the District of
                                        * Minnesota.
City of St. Paul; Ross Lundstrom; and *
Dennis Conroy,                          *
                                        *
              Appellees.                *
                                   ___________

                               Submitted: May 13, 1999
                                   Filed: August 13, 1999
                                    ___________

Before RICHARD S. ARNOLD, JOHN R. GIBSON, and BOWMAN, Circuit Judges.
                            ___________

RICHARD S. ARNOLD, Circuit Judge.


       The plaintiff, Catherine M. LaClair, brought this suit against the City of St. Paul,
claiming that certain policies and customs of her employer, the St. Paul Police
Department, violated her rights under the First and Fourteenth Amendments. The
District Court granted partial summary judgment for the City and dismissed LaClair's
claim under the First Amendment. Her claim under the Equal Protection Clause of the
Fourteenth Amendment was tried, and the jury returned a verdict for the City. LaClair
argues on appeal that the District Court1 erred in excluding certain evidence that the
City had tolerated past misconduct, thereby limiting her ability to demonstrate that her
rights were violated because of a policy or custom of the City, and also incorrectly
dismissed her claim under the First Amendment. We hold that no error of law or abuse
of discretion occurred. The judgment will be affirmed.

                                           I.

       LaClair's equal-protection claim stemmed from an encounter she had with
Deputy Chief Ross Lundstrom while LaClair was off-duty and while both officers were
out of state. According to LaClair, she was not a willing participant in this encounter,
and acquiesced in Lundstrom's advances because of his authority. LaClair also claims
she was prevented from reporting Lundstrom's behavior, and even forced to lie and
mischaracterize the incident as consensual when questioned by department
investigators, because she feared retaliation by fellow officers and supervisors.

       The jury found against LaClair on her claim against Lundstrom, and we state the
facts in the light most favorable to that verdict. On June 19, 1993, LaClair attended a
houseboat party in Prescott, Wisconsin, with several other St. Paul police officers,
including Deputy Chief Lundstrom and his girlfriend, Laurel Hutton. After drinking for
several hours, LaClair and two other people from the party went to a nearby bar, where
they were joined by Lundstrom and Hutton. LaClair and Lundstrom discussed various
topics, including LaClair's opportunities for advancement within the department. The
tone of the conversation between Lundstrom and LaClair was described as "flirting"
and "playing around." According to one witness, this behavior took place whenever
Hutton ventured off from the group, and ceased when she returned. There was also
testimony that LaClair rubbed Lundstrom's leg, and discussed the possibility of taking


      1
      The Hon. Ann D. Montgomery, United States District Judge for the District of
Minnesota.

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a "river getaway" with him. When Hutton returned, LaClair was heard to say, "Shh .
. . , here comes Laurie [Hutton]." After a time, Lundstrom took Hutton back to his
nearby houseboat and then left, telling her he had to go use the bathroom. Instead,
Lundstrom returned to the bar, and he and LaClair went out to his car. After driving
a short distance to where LaClair's car was parked, they partially disrobed and engaged
in sexual activities. Meanwhile, Hutton, who had left the boat to find Lundstrom,
approached the car and began to scream and pound on the window bringing an end to
the incident.

       A little more than a month later, on July 25, 1993, LaClair was summoned to
Police Chief William Finney's office to discuss the encounter. The Chief had heard
about the incident from other sources. Although she was very upset about the incident,
LaClair stated that her actions with Lundstrom were consensual and insisted that she
did not wish to be part of an investigation. LaClair consistently maintained this version
of events through several more interviews, including one with the Internal Affairs
Division.

       On February 23, 1995, LaClair brought suit against the City of St. Paul2 under
42 U.S.C. § 1983, alleging violation of her rights under the First and Fourteenth
Amendments. The basis of her suit was what she contended was the City's
unconstitutional "custom or practice of chilling and discouraging reports of sexual
harassment by females, through toleration of retaliation once a report is made"
(Appellant's Br. at 25). According to LaClair, she felt compelled to accede to
Lundstrom's unwelcome sexual advances, to keep quiet about his behavior, and to lie
to investigators about the incident in order to avoid the retaliation inflicted on those


      2
        LaClair also sued Deputy Chief Lundstrom and Dennis Conroy, a police
department Employee Assistance Program psychologist. Her claims against Conroy
were dismissed, and she does not appeal this ruling. Her suit against Lundstrom was
settled before trial.

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who reported sexual harassment. LaClair maintained that such retaliation was
condoned by the policy-makers of the St. Paul Police Department from the Chief of
Police on down. In order to prove these allegations, LaClair introduced evidence of the
department's past and current tolerance of this type of retaliation, including testimony
of female officers who had suffered similar fates. In the end, the jury responded to the
special verdict form as follows:

      1. Has Plaintiff Catherine LaClair established by the preponderance of
      the evidence that Ross Lundstrom sexually harassed her in violation of her
      right to equal protection of the law? "No."

      2. Has Plaintiff LaClair proven by the preponderance of the evidence that
      her Fourteenth Amendment right to equal protection of the law has been
      violated by a hostile work environment? "Yes."

      3. Has Plaintiff LaClair established by a greater weight of the evidence
      that the City of St. Paul has a policy, custom, or practice which caused
      intentional discrimination against LaClair? "No."

Appellant's Addendum at 23-24.

                                           II.

       It is LaClair's contention on appeal that a pre-trial evidentiary ruling by the
District Court prevented her from adequately explaining why she felt compelled to
accede to Lundstrom's advances and hampered her ability to offer sufficient evidence
of the City's unconstitutional policies. This ruling was the result of a Motion in Limine
filed by the City relating to certain evidence the City sought to have excluded at trial.

       First, the City wanted to exclude any evidence of alleged retaliation following
a prior incident which occurred in 1989, when LaClair reported sexual harassment by
another superior, Sergeant Thomas Walsh. At the time, LaClair had just completed her

                                          -4-
police training and had been assigned to work the night shift of the Northwest Team
patrol division. According to LaClair's offer of proof, on the evening of February 26,
1989, Sergeant Walsh, who was a day-shift supervisor and off duty at the time, asked
the police dispatcher to contact LaClair and request that LaClair meet Walsh at the
station. When she arrived, Walsh was intoxicated and partially undressed. He
attempted to engage LaClair in conversation and at one point he kissed her hand and
tried to embrace her. She reported this incident to the Lieutenant in charge of the
Northwest Team, and the Lieutenant reported the incident to the then Chief of Police,
William McCutcheon. Walsh was subsequently suspended for fifteen days for,
according to McCutcheon, "being drunk and stupid."

       LaClair contended that after she reported this incident she began to suffer
retaliation from her co-workers and supervisors in the form of interrupted radio
transmissions, refusal to respond to request for back-up during questionable calls,
negative evaluations, and denial of transfer. In addition, LaClair claimed she was twice
disciplined by Chief McCutcheon on groundless allegations. In the first instance, she
was disciplined for making a false report. LaClair appealed this decision to the Civil
Service Commission, which rescinded the charges and ordered her record cleared. In
the second instance, she was herself charged with sexual harassment for briefly hugging
another officer, a man named Timm, from behind. This charge was also appealed, and
after a hearing an administrative law judge issued a memorandum decision which
stated: "It is concluded that it [is] extremely unlikely that the hugging incident was
fabricated in order to cause trouble for Officer LaClair. Even if Officer LaClair has
been the subject of harassment since she filed her lawsuit or if she has had conflicts
with her supervisors, there is no reason to believe that this resulted in trumped-up
allegations in this proceeding" (Appellant's App. 105). The ALJ sustained the charge,
but reduced the sanction from a three-day suspension to one day.

      As a result of all of this alleged retaliation for reporting the Walsh incident,
LaClair filed suit in 1994 in a Minnesota state court against the City and Officer Walsh.

                                          -5-
Her claims against Walsh were dismissed for failure to prosecute, and the most of her
claims against the City were dismissed on summary judgment. Her claim against the
City for retaliation and under the Minnesota Whistleblower Statute, Minn. Stat. Ann.
§ 181.932(1)(a), proceeded to trial. After several unfavorable discovery rulings,
LaClair moved to dismiss her suit without prejudice on the day of trial. This motion
was denied, and LaClair declined to pursue the suit any further. On September 28,
1995, the state trial judge dismissed the remainder of the suit with prejudice.

        The second area of evidence related to several pages of handwritten notes taken
by an unidentified city attorney during a meeting with Chief of Police McCutcheon.
The meeting concerned possible strategies for the department's response to the Walsh
incident. The notes reveal, according to LaClair, that the prior Chief was insensitive
to the plight of sexual-harassment victims. Evidently, these notes were produced
inadvertently by the City during discovery. The City claimed attorney-client privilege
still protected the notes, and LaClair claimed that any privilege was waived.
        Third, the City wanted to exclude the results of a workplace assessment survey
on the basis of an alleged evidentiary privilege for self-critical analysis. The survey had
been ordered by Chief Finney upon taking office to evaluate how much difficulty
female officers were experiencing in the male-dominated police department. And
finally, the City moved to exclude comments the new Chief made during his deposition
in this litigation regarding his opinion of the past administration's mishandling of the
Walsh incident and the validity of LaClair's retaliation claims.

       The District Court ruled much of the evidence described above inadmissible.
Instead of addressing the various grounds argued by the City, the Court made a ruling
restricting all testimony about the policy or custom of the department to incidents which
occurred after July 15, 1992. This was the date the current Chief, William Finney, took
office and was some eleven months prior to LaClair's encounter with Lundstrom. In
the Court's view, evidence of the department's practices which predated the new Chief's


                                           -6-
tenure was too distant in time to be relevant to the policies in place at the time of the
Lundstrom incident in June 1993. During trial the Court amplified its reasoning.

             All right. Well, the record should reflect, with respect to the
      objections raised yesterday and the Court's ruling in this case that the
      events which occurred prior to July 15th of 1992 are not relevant – I've
      previously said that I think there must be a temporal connection – in that
      regard, let me expand the record a little further in the sense that I've
      indicated that I think that they are not relevant because of the lack of
      timeliness to the plaintiff's case.

             At issue in this case is, has the City of St. Paul established a
      custom, policy, or practice which caused intentional discrimination, the
      so-called creation of an environment type issue? That policy or practice
      comes into play because of an underlying charge of alleged sexual
      harassment which occurred with the so-called Lundstrom incident in the
      summer of '93.

             The Court has arbitrarily selected approximately a year prior to
      that, which, just coincidentally, happens to be about the same time Finney
      came on, as an analysis of what's within the environment and time at
      which the reporting would occur for the alleged Lundstrom incident,
      which is the crux and the heart of the environment issue.

             In that regard, in addition to that evidence before that date being
      marginally relevant, I think the record should reflect at this time that I find
      that the evidence which is sought to be elicited also has marginal
      admissibility on other grounds. The alleged Walsh incident, in addition
      to being distant in time, was the result of a State Court action, parts of
      which were dismissed for failure of prosecution and parts of which were
      dismissed with prejudice at a later point in time.

            That was never adjudicated on the merits or tried. And, therefore,
      whether it has res judicata, collateral estoppel, or any type of claim
      preclusion arguments makes its admissibility dubious, at best.



                                           -7-
             Additionally, the Court is relying on Rule 403, which gives the
      Court the authority to exclude evidence which has a danger of confusing
      the issues, misleading the jury, or, by considerations of undue delay,
      waste of time, or needless presentation of cumulative evidence is not
      relevant. For those reasons, I do find that anything prior to the '92 time
      frame is not pertinent and relevant.


Tr. vol. IV at 12-13.

        This kind of evidentiary ruling is reviewed for abuse of discretion. We have
previously emphasized that proof of incidents other than those actually in suit should,
in general, be freely allowed in discrimination cases. Where a defendant's state of mind
is at issue, conduct by the defendant in other situations may be the only practical way
a plaintiff can establish her case. See, e.g., Estes v. Dick Smith Ford, Inc., 856 F.2d
1097, 1102 (8th Cir. 1988). We do not retreat from these expressions. The same
principle applies where, as here, a plaintiff must show that a practice or custom is "so
permanent and well settled as to constitute a custom or usage with the force of law,"
in order to establish municipal liability. Monell v. Department of Social Services, 436
U.S. 658, 691 (1978). For this reason courts should allow a reasonable degree of
latitude to plaintiffs attempting to satisfy what is necessarily a difficult standard of
proof. The factfinder must be allowed to see the "big picture" in order to judge
adequately what is, by definition, a state of affairs that exists only informally or by
implication.

       We believe, however, that there are special circumstances in the present case
that weigh strongly in favor of the District Court's decision to exclude the evidence.
Most of the evidence excluded related to two previous incidents, one involving
Sergeant Walsh and one involving Officer Timm. In both of these cases, impartial
decisionmakers had found against LaClair. Her lawsuit based on the Walsh incident
had been dismissed with prejudice by a state court, and an administrative law judge had


                                          -8-
found, in the Timm incident, that LaClair herself had been guilty of harassment. If the
District Court had admitted evidence of these two previous incidents, presumably all
of the evidence would have come in, including not only LaClair's version of the facts
and their claimed effect on her state of mind, but also the result of both proceedings,
a result unfavorable to LaClair. In this perhaps unusual state of affairs, we conclude
that the District Court was within its rights in ruling as it did. A great deal of time
would have been consumed by the evidence relating to these previous incidents,
particularly the one involving Sergeant Walsh, and, in the end, the jury would have
known that LaClair had lost both cases. It may be, as LaClair contends on appeal, that
the rulings in these previous matters were not entitled to res judicata or collateral-
estoppel effect, but that is not really the point. Even if LaClair would not have been
precluded from relitigating the facts underlying these incidents, the jury would still have
been told that the decisions had been adverse to her. In addition, the fact that the
incidents occurred during the administration of a prior Chief is important. When all of
these factors are weighed together, we hold that the District Court did not err. This is
the sort of decision that district judges must be primarily responsible for, and they
should be given wide latitude, within reasonable limits, to decide these matters.

                                           III.

       LaClair also argues that the District Court erred in dismissing her claim of
retaliation under the First Amendment. This claim alleged that the department's policy
of retaliating against females who reported sexual harassment prevented LaClair from
reporting a matter of public concern. This legal theory, based on the First Amendment,
is only another way of stating, with different legal labels, the Fourteenth Amendment
fear-of-retaliation theory that we have already discussed. With respect to this latter
theory, the jury found that there was no policy or custom of the City sufficient to
support LaClair's action. This finding is fatal to the First Amendment claim as well.




                                           -9-
                                 * * * * * *

      For the reasons given, the judgment of the District Court, dismissing LaClair's
claims with prejudice, is

      Affirmed.

      A true copy.

             Attest:

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




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