                         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,1 District Judge.
                            ___________

PIERSOL, District Judge.


       Strafford R-VI School District appeals from a jury verdict in favor of Leslie
Cowan, a former school teacher, 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




      1
       The Honorable Lawrence L. Piersol, United States District Judge for the District
of South Dakota, sitting by designation.
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 grade
teacher on a probationary basis in the fall of 1990. As a probationary teacher, her
contract was subject to renewal by the School Board on an annual basis. Customarily,
the decision of whether or not to renew an elementary school teacher's contract was
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 Cogdill's advice. Cowan believes that this
action was a result of a "magic rock letter" that she sent home with her second graders
on the last day of school. The letter read as follows:
       Dear Second Grader:

            You have completed 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 your mind to. To make your rock work, close your
      eyes, rub it and say to yourself three times, “I am a special and terrific
      person, with talents of my own!” Before you put your rock away, think
      of three good things about yourself. After you have put your rock away,
      you will know that the magic has worked.

      HAVE FUN IN THIRD GRADE!!!!



                                           -2-
Cowan attached a rock to this letter and sent one home with each student in May of
1992.

        In August of 1992, Cogdill informed Cowan that she had received complaints
from parents regarding the “magic rock letter.” In particular, Cogdill indicated that two
families had decided to move their children to private Christian schools as a direct
result of the use of the letter. Cogdill followed up this discussion with an admonition
to Cowan to avoid magical ideas in her teaching. After Cogdill spoke with Cowan
regarding the letter, she informed the School District Superintendent that the magic
rock letter was a cause for concern among community parents. This information was
also passed on to the School Board. Also in August of 1992, Cogdill issued “job
targets” to Cowan. Job targets are devices used by the School District to indicate areas
of needed improvement in a teacher’s performance.2 The job targets issued to Cowan
indicated two areas she needed to improve: interpersonal relationships with parents
and instructional process.

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

      2
        One of the many factual disputes at trial was whether the School Board had
discussed issuing job targets to Cowan in March of 1992, although they were not
issued until August, or whether Cogdill had issued 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 member
Roger Lile testified at trial that he could specifically remember discussing the job
targets at the March 1992 meeting based upon his recollection of 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-
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 granddaughter. The Reverend communicated to Cogdill that he considered the
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 local pastor, indicated to his congregants that they needed to be concerned
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 course of the 1992-93 school year Cogdill showed only lukewarm
support for Cowan in her efforts to improve her teaching. Then, in March of 1993, on
the eve of the School Board’s vote on Cowan's contract renewal, Cogdill suggested to
Cowan that she resign because she was not going to be renewed. Cowan did not
resign, and shortly thereafter, the School Board voted unanimously not to renew
Cowan’s contract.

        As a consequence of her nonrenewal, Cowan filed suit against the School
District alleging that she was not renewed because she had offended the religious
sensibilities of the Strafford community. Cowan claimed that the School District acted
in violation 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 the
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

                                           -4-
Cowan had committed perjury at trial. In addition, the court considered Cowan’s
motion to be reinstated in her position with the School District, but rather than reinstate
Cowan, the trial court chose to award Cowan two years front pay. Both parties appeal
from the trial court's rulings.

                                   II. DISCUSSION

A. Denial of Summary Judgment

       The first issue raised by the School District is whether the district court erred in
denying its motion 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);
Johnson Int’l Co. v. Jackson Nat’l Life Ins. Co., 19 F.3d 431, 434 (8th Cir. 1994). It
is well established that “[a] ruling by a district court denying summary judgment is
interlocutory in nature and not appealable after a full trial on the merits.” Johnson Int’l
at 434 (citing Bottineau 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 as a whole, not the pretrial evidence in isolation.
Johnson Int’l at 434. Therefore, the Court concludes that the first issue raised and
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 the
School District’s motion for judgment as a matter of law or, in the alternative, for a new
trial. On 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

                                           -5-
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 view
that evidence in the light most favorable to the verdict, and it may not engage in a
“weighing or evaluation of the evidence or consider questions of credibility.” Id. "The
law places a high standard on overturning a jury verdict." Hathaway v. Runyon, 132
F.3d 1214, 1220 (8th Cir. 1997). Thus, judgment as a matter of law “is only
appropriate when all of the evidence points one way and is ‘susceptible of no reasonable
inference sustaining the position of the nonmoving party.’” Keenan at 1269 (quoting
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 reversed absent a clear abuse of discretion.
Keenan at 1269.

        The School District argues that Cowan did not produce any evidence linking the
District’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 Price
Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), mixed
motives analysis if an employee first establishes that religion was a motivating factor in
the employment decision. Then the burden of persuasion shifts to the defendant, who
must show that it would have made the same 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 motives
standard if she presents “‘evidence of conduct or statements by persons involved in the
decision making process that may be viewed as directly reflecting the alleged
discriminatory attitude. . . .’” Nitschke v. McDonnell Douglas Corp., 68 F.3d 249, 253
(8th Cir. 1995) (quoting Radabaugh v. Zip Feed Mills, 997 F.2d 444, 449 (8th Cir.
1993)).




                                            -6-
       The trial court allowed Cowan to proceed under the Price Waterhouse mixed
motives analysis, and despite the School District’s contentions to the contrary, there was
sufficient evidence presented at trial for a reasonable jury to conclude that persons
involved in the decision making process were motivated by religious concerns regarding
the teaching of New Ageism. Principal Cogdill received complaints from parents who
believed the magic rock letter violated their religious beliefs, and during the 1992-93
school year, there was concern among Strafford's religious community regarding the
dissemination of New Age beliefs. Cogdill felt compelled to respond to these concerns.
She 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 practicing
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 we
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
response to the community apprehensions regarding New Ageism coupled with her
generally unsupportive behavior toward Cowan, provided sufficient evidence for the
jury to conclude that Cogdill was motivated by religious concerns.3




      3
        The Eighth Circuit has neither considered nor adopted the “religious
sensibilities” or “employment atmosphere” claim of religious discrimination as
articulated by the court in Turic v. Holland Hospitality, Inc., 842 F. Supp. 971 (W.D.
Mich 1994) (plaintiff properly pled a claim for religious discrimination where she
alleged that Christian co-workers opposed plaintiff’s view of abortion and that
employer acted in response to co-workers religious approbation of plaintiff), aff'd in
part, rev'd in part on other grounds, 85 F.3d 1211 (6th Cir. 1996). The Court notes
that whether Cowan properly stated her prima facie case was not raised below, and
therefore, this Court will not address the issue here.

                                           -7-
       There was evidence presented at trial indicating that Cowan's teaching
performance was poor. In particular, there was evidence demonstrating substantial
discrepancies between the grades Cowan gave her students and the scores her students
received on standardized tests. The jury could properly discount this evidence,
however, in view of the testimony of other teachers who believe that the standardized
test scores are not good measures of teacher performance.

       Further, although Cogdill was not a voting member of the School Board, there
was substantial evidence to indicate the she was intimately involved in the decision
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 were
made, she presented her recommendation regarding Cowan's contract, and according
to the School Board members who testified at trial, Cogdill's judgment was given great
weight. Many of the School Board members conceded that in general, Cogdill's
recommendation was the most significant factor in the decision whether to renew a
teacher's contract. Under these circumstances Cogdill can clearly be regarded as
someone who was part of the decision making process, and a reasonable jury could
conclude that her animus toward Cowan infected that process. Therefore, the trial court
correctly denied the motion for judgment as a matter of law or new trial.4


      4
        Given the foregoing analysis, the Court need not address the School District's
argument that the instructions caused confusion among the jurors. In order to preserve
an instructional 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 the
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
Waterhouse burden of proof instruction." Tr. at 968. The School District failed to
properly state its "confusion" objection. Thus, our review is under the plain error
standard. Kehoe v. Anheuser-Busch, Inc., 96 F.3d 1095, 1104 (8th Cir. 1996). Even

                                           -8-
       In a related argument, the School District contends that the district court abused
its discretion in submitting the mixed-motives theory in its jury instructions.5 As
indicated above, the evidence was sufficient to support a verdict under the mixed
motives analysis, and therefore, the mixed motives instructions were appropriately
submitted to the jury.

C. Cowan's Miscarriage

      The School District contends that the district court abused its discretion by
denying its motion under Fed.R.Civ.P. 60(b) based upon newly discovered evidence
ENDFIELD


assuming, without deciding, that the court gave faulty instructions, any error could not
be considered plain, since the evidence was sufficient to support a finding of
discrimination. Id.
      5
        The School District also argues that the trial court erred in submitting jury
instruction five which states:

      The defendant Strafford R-VI School District may act only through
      natural persons as its agents. Under the law prohibiting employment
      actions based upon religious concerns, the school district may be held
      responsible for the actions of Mrs. Cogdill, the principal. In addition, any
      action of the Board of Education regarding non-renewal of teacher
      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 for
Cowan’s §1983 claim under an impermissible theory of respondeat superior. See
Springdale Educ. Assoc. v. Springdale School Dist., 133 F.3d 649, 651 (8th Cir. 1998).
The School District properly states the law with respect to respondeat superior liability
in the § 1983 context, but as indicated above, the School District failed to properly
state its objection on the record. Further, the Court believes the instruction may be
fairly read to distinguish between the Title VII and § 1983 claims, and thus, any
ambiguity certainly does not rise to the level of plain error.


                                          -9-
and fraud and its motion for reconsideration of its motion for a new trial. Newly
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 judgment 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 final
judgment based upon fraud, misrepresentation or other misconduct of the adverse party.
Id. Relief is only available under Rule 60(b)(3) where the 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 misconduct by clear and convincing evidence. Hicks at 1317. Further, this
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 factual issues in the case was the timing of the School Board's
discussion of Cowan's "job targets" which were issued in August of 1992. School
Board member 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 this
testimony, 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
1992 School Board meeting, the implication was that the job targets were issued in
August as a consequence of the magic rock letter.

       After the conclusion of the trial, the School District examined Cowan's medical
records and found evidence that Cowan had an abortion as a result of an ectopic
pregnancy at about the same time Lile believed that she had had a miscarriage. Based
upon this evidence, the School District filed its 60(b) motion arguing that Cowan had
lied regarding her pregnancies.

      The district court soundly rejected the School District's argument. The medical
evidence presented to the court indicates that Cowan had an ectopic or tubal pregnancy

                                          -10-
that was surgically terminated in the spring of 1992 and suffered a miscarriage in the
spring of 1993. This Court agrees with the district court that Cowan did not lie
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 about
regarding that pregnancy. This circumstance does not provide an appropriate basis to
grant Rule 60(b) relief, nor is the newly discovered evidence of sufficient weight, in
view of the trial record, to grant the School District's motion. Baxter Int’l, Inc. v.
Morris, 11 F.3d 90, 93 (8th Cir. 1993). Therefore, the trial court did not abuse its
discretion by denying the Rule 60 (b) motion. Similarly, 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 must consider whether the trial court erred in granting Cowan
equitable relief in the form of two years front pay. The trial court's decision to grant
Cowan front pay is reviewed for abuse of discretion. Standley v. Chilhowee R-IV
School Dist., 5 F.3d 319, 322 (8th Cir. 1993). The district court determined that
although reinstatement is generally the preferred remedy in an unlawful employment
termination case, this case presented extraordinary 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 correctly
concluded that the teacher-principal relationship between Cowan and Cogdill was so
badly damaged that none could be reestablished. Without such a working relationship
the school would not be able to function properly. Id. Thus, where reinstatement
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 this case. After a finding of discrimination, the court
has an obligation to fulfill the make-whole purposes of Title VII. Taylor v. Teletype
Corp., 648 F.2d 1129, 1138 (8th Cir. 1981). An award of front pay, however,

                                         -11-
requires the court to consider a number of complicated factors. Here, Cowan was a
probationary teacher with a one-year contract, and there was no guarantee that she
would continue with the School District because she might move to a different job or
because her contract might not be renewed for legitimate reasons. Under such
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 case
as there was sufficient evidence presented at trial from which a reasonable jury could
find in favor of Cowan. Also, the trial court properly denied the School District's
motion under Rule 60(b). Finally, the district court did not abuse its discretion in
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 concur in the court's opinion and its judgment, but only because the School
District failed adequately to raise the issue of whether Cowan met her initial burden of
showing a prima facie case. See McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973).

       Title VII makes it unlawful for 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 observance and practice, as well as belief[.]"
Id. § 2000e(j). This court has uniformly interpreted this statute to require a religious
discrimination plaintiff to plead and prove both that she has a bona fide religious belief
and that she has suffered an adverse employment action because of this bona fide
religious belief. See, e.g., Vetter v. Farmland Indus., Inc., 120 F.3d 749, 751 (8th Cir.

                                          -12-
1997); Tribulak v. Minirth-Meier-Rice Clinic, 1997 WL 177456, at *1 (8th Cir. 1997)
(unpublished); Wilson v. U. S. West Communications, 58 F.3d 1337, 1340 (8th Cir.
1995); Johnson 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 magic rocks, much less that her employer knew of such a belief or decided not to
renew her contract because of it. Her Title VII claim is therefore insufficient as a matter
of law and probably would not have withstood a properly crafted motion to dismiss for
failure 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.




                                          -13-
